           In the United States Court of Federal Claims
                                           No. 15-1297C
                                       (Filed: May 27, 2016)

*************************************
DOUGLAS G. BROWN et al., For          *
Themselves and As Representative of a *
Class of Similarly Situated Persons,  *
                                      *               Rails-to-Trails; Motion to Certify a Class
                       Plaintiffs,    *               Action; Failure to Satisfy All Requirements
                                      *               of RCFC 23; Joinder Not Impracticable;
 v.                                   *               Wal-Mart Stores, Inc.
                                      *
THE UNITED STATES,                    *
                                      *
                       Defendant.     *
*************************************

J. Robert Sears, St. Louis, MO, for plaintiffs.

Joanna K. Brinkman, United States Department of Justice, Washington, DC, for defendant.

                                    OPINION AND ORDER

SWEENEY, Judge

        In this Rails-to-Trails case, plaintiffs own real property in Cleveland County, North
Carolina, adjacent to a railroad right-of-way. They contend that the United States, by authorizing
the conversion of the railroad right-of-way into a recreational trail pursuant to the National Trail
Systems Act (“Trails Act”), took their property without paying just compensation in violation of
the Fifth Amendment to the United States Constitution. Plaintiffs bring suit in this court on
behalf of themselves and those similarly situated, and now move to certify the case as a class
action. For the reasons set forth below, the court denies plaintiffs’ motion.

                                       I. BACKGROUND

        The Trails Act, as amended, provides for the preservation of “established railroad rights-
of-way for future reactivation of rail service” by authorizing the interim use of such rights-of-way
as recreational and historical trails.1 16 U.S.C. § 1247 (2012). This process is referred to as
“railbanking,” and is overseen by the Surface Transportation Board (“Board”), id., the federal


       1
           The court derives this background from the relevant statutes and regulations, the
complaint, the amended complaints, the court’s docket, and the exhibits attached to the parties’
briefs in support of and opposition to plaintiffs’ motion to certify a class action.
agency with the exclusive jurisdiction to regulate “the construction, acquisition, operation,
abandonment, or discontinuance” of most railroad lines in the United States, 49 U.S.C.
§ 10501(b) (2012).

        Before railbanking can occur, the railroad company must seek to abandon its line, either
by initiating abandonment proceedings with the Board pursuant to 49 U.S.C. § 10903, or by
requesting that the Board exempt it from such proceedings pursuant to 49 U.S.C. § 10502.
While considering the railroad company’s abandonment application or exemption request, the
Board will entertain protests and comments from interested third parties, including requests from
interested third parties for the interim use of the railroad line as a trail pursuant to 16 U.S.C.
§ 1247(d). 49 C.F.R. §§ 1152.25, 1152.29(a) (2014).

         If an interested third party submits a trail use request to the Board that satisfies the
requirements of 16 U.S.C. § 1247(d), the Board makes the necessary findings pursuant to 49
U.S.C. § 10502(a), and the railroad company agrees to negotiate a trail use agreement, the Board
will issue a Notice of Interim Trail Use or Abandonment (“NITU”). Id. § 1152.29(b), (d). The
effect of the NITU is to “[p]ermit the railroad to discontinue service, cancel any applicable
tariffs, and salvage track and materials, consistent with interim trail use and rail banking . . . ; and
permit the railroad to fully abandon the line if no agreement is reached 180 days after the NITU
is issued, subject to appropriate conditions . . . .” Id. § 1152.29(d)(1). The Board will entertain
requests to extend the 180-day deadline to enable further negotiations. If the railroad company
and the interested third party execute a trail use agreement, then abandonment of the railroad line
is stayed for the duration of the agreement. Id. § 1152.29(d); 16 U.S.C. § 1247(d). If no trail use
agreement is executed, the railroad company is permitted to fully abandon the line. 49 C.F.R.
§ 1152.29(d). If the railroad company notifies the Board that it has fully abandoned the line, see
id. § 1152.29(e)(2), the Board is divested of jurisdiction over the abandoned railroad line and
“state law reversionary property interests, if any, take effect.” Caldwell v. United States, 391
F.3d 1226, 1228-29 (Fed. Cir. 2004).

        On August 4, 2015, the Board issued a NITU pertaining to four segments of a railroad
right-of-way in North Carolina over which Norfolk Southern Railroad Company (“Norfolk
Southern”) formerly operated its railroad. These four segments are situated between milepost SB
144.55 and milepost SB 154.59, between milepost SB 158.10 and milepost SB 160.00, between
milepost SF 384.6 and milepost SF 407.4, and between milepost SB 144.55 and milepost SB
141.35.

        Three days after the Board issued the NITU, four individuals–Otis Mull Meacham,
Montrose Meacham Ballard, Charles Jr. Shivers, and Rhonda K. Shivers–filed suit in this court
alleging that the NITU effected a taking under the Fifth Amendment for which they were not paid
just compensation. The case was captioned Meacham v. United States, No. 15-843L. An
amended complaint was filed the following month; several plaintiffs were added to the suit and
the caption of the case changed to Brooks v. United States, No. 15-843L. In November 2015, as
publicized in an article appearing in the local newspaper, the attorney representing the plaintiffs
in Brooks held two town hall meetings to explain the suit to potentially affected residents. A
second article, published two days later, included the attorney’s website address for those who

                                                  -2-
wanted additional information regarding the suit. Eventually, on February 9, 2016, a second
amended complaint was filed in Brooks that named 151 plaintiffs.

        In the meantime, on November 2, 2015, four individuals filed the instant suit, on behalf
of themselves and other similarly situated individuals, contending that the August 4, 2015 NITU
effected a taking of their property for which they were not paid just compensation in violation of
the Fifth Amendment. Fourteen additional plaintiffs were named in a February 23, 2016
amended complaint and two additional plaintiffs were named in a May 19, 2016 second amended
complaint.2 In their second amended complaint, plaintiffs allege that Norfolk Southern owned an
easement for railroad purposes underlying the four segments of the railroad right-of-way covered
by the NITU; claim that Norfolk Southern’s easement lay across their property; and identify the
specific parcels of land encumbered by the purported easement, each of which is located in
Cleveland County, North Carolina. In addition, plaintiffs’ attorney asserts via affidavit that
Norfolk Southern acquired its easement via condemnation, prescription, and right-of-way deeds,
and that the deeds “are all of the same type and have the same or very similar operative
language.” Pls.’ Ex. A ¶ 16.

        Plaintiffs now move to certify the case as a class action pursuant to Rule 23 of the Rules
of the United States Court of Federal Claims (“RCFC”), defining the proposed class as:

       All persons who on August 4, 2015, owned an interest in lands constituting part of
       the railroad corridor or right-of-way on which a rail line was formerly operated by
       Norfolk Southern Railway Company (NSR), from milepost SB 144.55 to milepost
       SB 154.50 and from milepost SB 158.10 to milepost [SB] 160.00, in Cleveland
       County, North Carolina, and who claim a taking of their rights to possession,
       control and enjoyment of such lands due to the operation of the “rail banking”
       provisions of the National Trails System Act (“NTSA”), 16 U.S.C. § 1247(d).
       Excluded from this Class are the owners of land that abut segments of the subject
       right-of-way that the railroad acquired fee simple to; railroad companies and their
       successors in interest; [and] persons who have elected to pursue their claims in
       separate lawsuits against the United States for compensation for the same interests
       in land.

Pls.’ Mot. 1. The parties have fully briefed the motion and the court deems oral argument
unnecessary.




       2
         The twenty named plaintiffs in the second amended complaint are Douglas G. Brown,
Mary Louise Kelley, Russell Keith, Dara Champion, Jane Billedeaux, Hamrick S R Heirs et al.,
Susan Baxter King, Linda Kirby Owensby, Tomjack Investments LLC, Wake Chapel Properties
LLC, Knalda Wright, Doris B. Bettis, Gene Bettis Family Trust, Evelyn K. Wallace Clark,
Shirley K. Clark, Carl R. Porter, Kathern C. Porter, Tube Enterprises, Inc., Charles W. Tull
Revocable Trust, and Joseph M. Webb.

                                                -3-
                                        II. DISCUSSION

       RCFC 23 describes the requirements for maintaining a class action in the United States
Court of Federal Claims (“Court of Federal Claims”):

       (a) Prerequisites. One or more members of a class may sue as representative
       parties on behalf of all members only if:
           (1) the class is so numerous that joinder of all members is impracticable;
           (2) there are questions of law or fact common to the class;
           (3) the claims or defenses of the representative parties are typical of the
           claims or defenses of the class; and
           (4) the representative parties will fairly and adequately protect the interests of
           the class.

       (b) Class Actions Maintainable. A class action may be maintained if RCFC 23(a)
       is satisfied and if:
           (1) [not used];
           (2) the United States has acted or refused to act on grounds generally
           applicable to the class; and
           (3) the court finds that the questions of law or fact common to class members
           predominate over any questions affecting only individual members, and that a
           class action is superior to other available methods for fairly and efficiently
           adjudicating the controversy. The matters pertinent to these findings include:
                (A) the class members’ interests in individually controlling the
                prosecution of separate actions;
                (B) the extent and nature of any litigation concerning the controversy
                already begun by class members;
                (C) [not used]; and
                (D) the likely difficulties in managing a class action.

RCFC 23(a)-(b) (alterations in original). In other words, a putative class representative must
demonstrate: (i) numerosity–that the proposed class is so large that joinder is impracticable; (ii)
commonality–that there are common questions of law or fact that predominate over questions
affecting individual prospective class members and that the government has treated the
prospective class members similarly; (iii) typicality–that his or her claims are typical of the
proposed class; (iv) adequacy–that he or she will fairly represent the proposed class; and (v)
superiority–that a class action is the fairest and most efficient method of resolving the suit.
Toscano v. United States, 98 Fed. Cl. 152, 155 (2011); Barnes v. United States, 68 Fed. Cl. 492,
494 (2005). The class action’s proponent must satisfy each of the requirements by a
preponderance of the evidence. Messner v. Northshore Univ. HealthSys., 669 F.3d 802, 811 (7th
Cir. 2012) (citing Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d
196, 202 (2d Cir. 2008)); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)
(“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must
affirmatively demonstrate his compliance with the Rule–that is, he must be prepared to prove that
there are in fact sufficiently numerous parties, common questions of law or fact, etc.”).

                                                -4-
Moreover, “[t]hese requirements are in the conjunctive; hence, a failure to satisfy any one of
them is fatal to class certification.” Barnes, 68 Fed. Cl. at 494. The court may certify a class
only if, “after a rigorous analysis,” it finds that the requirements of RCFC 23 have been met.
Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982).

       Plaintiffs contend that they have satisfied all of the requirements of RCFC 23, while
defendant asserts that plaintiffs have not satisfied the numerosity, commonality, typicality, and
superiority requirements. As explained below, the court concludes that the proposed class fails
to completely satisfy any of the rule’s requirements.

                                           A. Numerosity

         To prevail on their motion to certify a class action, plaintiffs must first satisfy the
numerosity requirement. RCFC 23(a)(1) specifies that a class action is appropriate only if “the
class is so numerous that joinder of all members is impracticable[.]” “‘Impracticable does not
mean impossible.’” Jaynes v. United States, 69 Fed. Cl. 450, 454 (2006) (quoting Robidoux v.
Celani, 987 F.2d 931, 935 (2d Cir. 1993)); see also Fauvergue v. United States, 86 Fed. Cl. 82,
96 (2009) (“The ability to use joinder does not preclude certification.”), rev’d on other grounds
sub nom. Bright v. United States, 603 F.3d 1273 (Fed. Cir. 2010). Rather, a putative class
representative need only establish that “‘it is extremely difficult or inconvenient to join all the
members of the class.’” Jaynes, 69 Fed. Cl. at 454 (quoting 7A Charles Alan Wright et al.,
Federal Practice and Procedure § 1762 (3d ed. 2005) (“Wright 2005”)). A court must examine
the facts of the case to determine whether the numerosity requirement has been satisfied. Gen.
Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980). In particular, a court should
consider the number of potential class members, the geographic dispersal of the potential class
members, and the size of each potential class member’s claim. King v. United States, 84 Fed. Cl.
120, 123-24 (2008); accord Jaynes, 69 Fed. Cl. at 454; 5 James Wm. Moore et al., Moore’s
Federal Practice ¶ 23.22[1][b] (3d ed. 2012); 7A Charles Alan Wright et al., Federal Practice and
Procedure § 1762 (3d ed. 2016) (“Wright 2016”).

        The number of potential class members is considered to be the most important factor of
the numerosity requirement. King, 84 Fed. Cl. at 124; Fauvergue, 86 Fed. Cl. at 96. Plaintiffs
represent that based on a search of the records maintained by the Cleveland County Tax
Administration Department, the proposed class includes 156 potential claimants. Relying on a
statement in King that a proposed class of forty or more members is generally sufficient to satisfy
the numerosity requirement, see 84 Fed. Cl. at 124, plaintiffs argue that a proposed class of 156
members is large enough to presumptively render joinder impracticable. Defendant counters that
plaintiffs ignore the fact that in Brooks, another Rails-to-Trails case pending before the court
pertaining to the same railroad right-of-way and the same NITU, 151 claimants are proceeding
through joinder, and not by a class action. The similarity in the number of plaintiffs in Brooks
and the number of potential class members in this case, defendant contends, establishes that
joinder is not impracticable in this case. In rebuttal, plaintiffs assert that the fact that only 151 of
the 307 potential claimants joined the Brooks suit, even after the publicity generated by the town
hall meetings and the newspaper articles, demonstrates that joinder is impracticable. Plaintiffs


                                                  -5-
further argue that there have been several instances in this court in which a class action, a joinder
suit, and individual suits relating to the same NITU have coexisted without difficulty.

        Defendant’s contentions are more persuasive. It defies common sense to contend, as
plaintiffs do, that it is impracticable for 156 claimants to proceed through joinder when, in a case
involving the same railroad right-of-way and the same NITU, 151 claimants are, in fact,
proceeding through joinder. Indeed, the fact that there are 151 plaintiffs in Brooks demonstrates
that a 156-member class is not large enough to create a presumption that joinder is
impracticable.3 Additionally, the failure of all 307 potential claimants to join the Brooks suit
reflects only that some potential claimants did not want to pursue a claim; the failure has no
bearing on whether joinder is impracticable. Further, although plaintiffs are correct that class
actions and joinder suits regarding the same railroad right-of-way and NITU have coexisted in
this court on prior occasions, they ignore the salient fact that in all of the examples they cited, the
class action was filed first; there was no preexisting joinder suit that might demonstrate that
proceeding by joinder was practicable.4 In short, plaintiffs have failed to demonstrate that the


       3
          Even had Brooks not been filed, the court would decline plaintiffs’ invitation to
establish a minimum number of proposed class members that would presumptively render
joinder impracticable. Accord Bell v. United States, 123 Fed. Cl. 390, 397 (2015); Singleton v.
United States, 92 Fed. Cl. 78, 83 (2010); Jaynes, 69 Fed. Cl. at 454. The court notes, however,
that the number of potential class members identified by plaintiffs–156–has been considered to
be sufficient to weigh in favor of satisfying the numerosity requirement in other Rails-to-Trails
cases. See, e.g., Geneva Rock Prods., Inc. v. United States, 100 Fed. Cl. 778, 788 (2011) (“[T]he
putative class comprises approximately 23 members . . . . Though this number is at the smaller
end of the spectrum, it is still within the acceptable bounds for class certification.”); Douglas R.
Bigelow Tr. v. United States, 97 Fed. Cl. 674, 676-77 & n.5 (2011) (concluding that a proposed
class that included twenty-five members satisfied the numerosity requirement and noting that, in
other Rails-to-Trails cases, the government had stipulated to the certification of class actions with
thirty-three, forty-eight, and forty-four class members); Singleton, 92 Fed. Cl. at 84 (“[J]oinder of
the estimated 135 potential claimants would entail a sufficient degree of extra difficulty and/or
expense that makes it ‘impracticable.’”); Fauvergue, 86 Fed. Cl. at 98 (concluding that joinder
was impracticable with a proposed class of 150 property owners); King, 84 Fed. Cl. at 124 (“The
actual number of members of the class already identified, 152, . . . is likely sufficient to satisfy
the numerosity prong by itself.”).
       4
          Plaintiffs’ first example of coexisting suits is Raulerson v. United States, No. 10-193L,
and Ingram v. United States, No. 10-463L. Raulerson was filed as a class action on March 31,
2010, and Ingram, the joinder suit, was filed on July 19, 2010. Plaintiffs’ second example is
Bridgeman v. United States, No. 11-548L, Williams v. United States, No. 15-416L, and
McClelland v. United States, No. 15-508L. Bridgeman was filed as a class action on August 30,
2011, Williams, the first joinder suit, was filed on April 24, 2015, and McClelland, the second
joinder suit, was filed on May 18, 2015. Plaintiffs’ third example is Finch v. United States, No.
12-92L, and Carpenter v. United States, No. 15-415L. Finch was filed as a class action on
February 9, 2012, and Carpenter, the joinder suit, was filed on April 24, 2015. Plaintiffs’ final

                                                  -6-
number of members in their proposed class is a factor that weighs in their favor. Although the
number of potential class members is the most important factor in the numerosity inquiry, the
court examines other relevant factors–the geographic dispersal of the potential class members
and the size of each potential class member’s claim–to ascertain whether plaintiffs have made a
showing that can overcome this significant deficiency.

         It is well settled that joinder is less practicable when potential class members are
dispersed geographically. Geneva Rock Prods., Inc., 100 Fed. Cl. at 787; King, 84 Fed. Cl. at
124-25. Plaintiffs aver that potential class members are located in nine states,5 and contend that
such a geographic distribution supports the satisfaction of the numerosity requirement.
Defendant responds that the geographic distribution of potential class members has little
relevance in a Rails-to-Trails case because the facts required to dispose of such a case relate to
the property at issue rather than the owners of that property. Plaintiffs, in their reply, recognize
that the geographic distribution of potential class members is not a significant factor in the
numerosity inquiry, but emphasize that a nine-state distribution is sufficient to tip the scale in
their favor. The court agrees with plaintiffs; although the geographic distribution of potential
class members is not a heavily weighted factor, the fact that the potential class members
identified by plaintiffs reside in nine states does tilt the factor, albeit slightly, in their favor.
Accord Geneva Rock Prods., Inc., 100 Fed. Cl. at 788 (finding the numerosity requirement
satisfied even though “the putative class members reside[d] in relatively close proximity to one
another”); Haggart v. United States, 89 Fed. Cl. 523, 531-32 (2009) (“[Geographic proximity]
has been taken into account in such varying ways that it does not often contribute to a particular
result. . . . However, the close geographic proximity of potential class members does not by
itself preclude class certification.”).

         “The practical implications of class-member geographical distribution also require
consideration of a number of the factors applicable to numerosity: the facility of serving process,
the ease of identification, the ease of ascertaining addresses, and the distance between their
residences are all fact-specific inquiries that influence the impracticality of joinder.” Fauvergue,
86 Fed. Cl. at 97. Plaintiffs aver that they have identified 156 potential class members and their
addresses. Given this averment, defendant remarks that plaintiffs fail to explain why certification
of a class is a better option than simply inviting these already-identified potential class members
to join the suit. Although defendant correctly suggests that plaintiffs’ identification of potential
class members and their addresses might make joinder more practicable because plaintiffs could


example is Haggart v. United States, No. 09-103L, and Smith v. United States, No. 14-387L.
Haggart was filed as a class action on February 19, 2009, and Smith, the joinder suit, was filed on
May 6, 2014.
       5
          For this averment, plaintiffs rely on a spreadsheet submitted with their motion to certify
a class action identifying all potential class members. That spreadsheet, however, only contains
the potential class members’ street addresses, and not the associated cities and states.
Nevertheless, the court accepts plaintiffs’ averment as true, especially given defendant’s failure
to challenge it.

                                                 -7-
easily contact the potential claimants regarding joining the suit, cf. Jaynes, 69 Fed. Cl. at 455,
plaintiffs’ possession of such information does not preclude the certification of a class action, see
Houser v. United States, 114 Fed. Cl. 576, 578-79 (2014). Rather, plaintiffs’ possession of this
information “merely means that assembling a class and communicating with its members will be
relatively easy . . . .” Id. at 578; accord id. at 579 (“The greater the ease of soliciting opt-ins
[and] communicating with the class, . . . the easier it will be to manage the class.”).

        A third factor that bears on the numerosity inquiry is the size of the prospective class
members’ individual claims, because in circumstances where there are numerous prospective
claimants with small claims, a class action allows those individuals to pursue their claims
without incurring litigation costs that would overwhelm their potential recoveries. Geneva Rock
Prods., Inc., 100 Fed. Cl. at 787; King, 84 Fed. Cl. at 125; see also 5 Moore et al., supra,
¶ 23.22[1][e] (“Numerosity may be satisfied, on the basis that joinder is likely to be
impracticable, if individual class members lack the ability or the motivation to institute
individual actions. For example, if each class members’ individual claim involves only a small
amount of damages, each class member would be unlikely to file a separate action.”); 7A Wright
2016, supra, § 1762 (“A variety of factors, including . . . the size of the individual claims, . . .
may contribute to the court’s decision under Rule 23(a)(1) in a given case.” (footnote omitted));
cf. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (noting that although class
certification is not prohibited when numerous potential class members have large claims, the
current class action scheme is aimed at vindicating the rights of individuals with small claims).
Plaintiffs assert that some of the potential class members possess claims that “are fairly small
relative to the cost necessary to present those claims individually” because they own small
parcels of land that are “encumbered by the easement a few hundred feet (or fewer) in length.”
Pls.’ Mem. 6. Defendant, in turn, argues that the size of the individual claims is irrelevant
because regardless of whether this case proceeds as a class action or through joinder, all potential
claimants will be required to take an affirmative step to participate in the litigation. And,
defendant contends, plaintiffs have not explained why a claimant with a small claim would
choose to opt into a class action but not join the suit as a plaintiff.6 In response, plaintiffs
contend that the court in King specifically found the opposite of defendant’s contention–that
“[t]he smaller the size of the claim and the larger the number of persons, the less likely it is that,


       6
            Defendant advances two additional related arguments. First, defendant contends that
plaintiffs have not explained why the 156 potential class members they identified would opt into
a class action after declining to join the Brooks suit as plaintiffs. In response, plaintiffs argue
that it is not their burden to establish why potential claimants would opt into a class action after
declining to join the Brooks suit. Plaintiffs are correct; they are not required to explain the
motivations of potential class members. Defendant also argues that information from other cases
certified as class actions indicates that it is unlikely that all 156 potential class members
identified by plaintiffs would choose to participate in a class action. However, defendant cites no
precedent for its proposition that the court should disregard the size of the proposed class and
instead consider how many potential class members would actually opt into the class. Indeed,
any efforts by the court to ascertain the ultimate size of a class would be nothing more than pure
speculation.

                                                 -8-
without the benefit of a class action, any plaintiff will recover.” 84 Fed. Cl. at 120 (citing
Barnes, 68 Fed. Cl. at 499-500).

         Plaintiffs have not established that the size of the potential class members’ claims in this
case render joinder impracticable. First, as defendant notes, plaintiffs do not articulate any
reason why a claimant with a small claim would, as a general proposition, choose to opt into a
class action but not join a suit as a plaintiff. Specifically, plaintiffs do not explain why a
potential claimant would realize a smaller recovery by joining an existing suit as a plaintiff than
the potential claimant would realize by becoming a member of a class. Second, plaintiffs do not
indicate how the size of the claims of the 156 potential class members in this case are any
different from the size of the claims of the 151 claimants who joined the Brooks suit as plaintiffs.
If, as is likely, some of the plaintiffs in Brooks have small claims, then their decision to join the
Brooks suit suggests that the size of their claims was not a deterrent.

         In sum, plaintiffs have not established that the number of members in their proposed class
is so large that joinder is impracticable. Nor have plaintiffs made a sufficient showing on the less
important factors–the geographic dispersal of the potential class members and the size of each
potential class member’s claim–that would enable them to demonstrate that joinder is
impracticable. Accordingly, plaintiffs have not satisfied the numerosity requirement of RCFC
23(a)(1). This failure is fatal to plaintiffs’ motion. Nevertheless, for the sake of completeness,
the court will address plaintiffs’ satisfaction of the remaining requirements of RCFC 23.

                                          B. Commonality

        The next requirement, commonality, comprises three separate inquiries. First, are there
factual or legal issues common to the proposed class? RCFC 23(a)(2). Second, do these
common issues predominate over issues that are not common to the proposed class? RCFC
23(b)(3). And third, has the government acted or refused to act on grounds applicable to the
entire proposed class? RCFC 23(b)(2). In analyzing whether the commonality requirement has
been satisfied, “the court must, where necessary, look beyond the pleadings, and seek to develop
an understanding of the relevant claims, defenses, facts and substantive law.” Barnes, 68 Fed.
Cl. at 494; accord Wal-Mart Stores, Inc., 564 U.S. at 350-52.

                                         1. Common Issues

        To establish the existence of a common factual or legal issue, plaintiffs must demonstrate
that the claims of the potential class members “depend upon a common contention” that “is
capable of classwide resolution[.]” Wal-Mart Stores, Inc., 564 U.S. at 350; see also King, 84
Fed. Cl. at 126 (agreeing that “‘commonality is satisfied where the lawsuit challenges a
system-wide practice or policy that affects all of the putative class members.’” (quoting
Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001))); Barnes, 68 Fed. Cl. at 496 (“[T]he
questions underlying the claims of the class merely must share essential characteristics, so that
their resolution will advance the overall case.”). A common contention can be resolved for the
entire class if the “determination of its truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc., 564 U.S. at 350; accord

                                                  -9-
id. (“‘What matters to class certification . . . is not the raising of common “questions”–even in
droves–but, rather the capacity of a classwide proceeding to generate common answers apt to
drive the resolution of the litigation. Dissimilarities within the proposed class are what have the
potential to impede the generation of common answers.’” (quoting Richard A. Nagareda, Class
Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131-32 (2009))); Tyson
Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (“[A] common question is one where
‘the same evidence will suffice for each member to make a prima facie showing [or] the issue is
susceptible to generalized, class-wide proof.’” (quoting 2 William B. Rubenstein, Newberg on
Class Actions § 4:50, at 196-97 (5th ed. 2012)). Only one significant common contention
capable of classwide resolution is necessary to satisfy the common-issue requirement. See
Barnes, 68 Fed. Cl. at 496 n.6.

        In this case, plaintiffs assert in their opening memorandum that there is a legal issue
common to all potential members of the class: Did the Board’s issuance of the NITU on August
4, 2015, constitute a taking of the potential class members’ property interests without the
payment of just compensation in violation of the Fifth Amendment?7 Defendant acknowledges
the existence of a common legal question, but, relying on the decision of the United States
Supreme Court (“Supreme Court”) in Wal-Mart Stores, Inc., argues that plaintiffs cannot
demonstrate that there is a common answer to this question applicable to all potential class
members because “the question of whether a taking has occurred for each property turns on a
series of individualized, fact-specific and property-specific inquiries, requiring the Court and the
parties to assess each individual property claim to confirm whether a taking occurred for each
parcel.”8 Def.’s Resp. 10-11. In other words, defendant contends that the common legal issue is
not capable of classwide resolution. Plaintiffs, in their reply, argue that Wal-Mart Stores, Inc. did
not alter the standard for assessing the common-issue requirement. In addition, plaintiffs identify
five issues common to their proposed class (four more than they identified in their opening
memorandum):

               The common questions of law and fact are (1) whether the NITU applies
       to the segment of the easement at issue in this case, (2) whether that NITU caused
       a taking of plaintiffs’ property interest, and (3) whether, under North Carolina


       7
           Plaintiffs further contend in their opening memorandum that all facts arising from the
issuance of the NITU are common to all potential class members. While this contention may be
accurate, it is of no moment. It is a common factual issue, not a common fact, that will satisfy
the common-issue requirement of RCFC 23(a)(2).
       8
           Defendant advances this argument in the portion of its response devoted to the
predominance requirement. However, as the Supreme Court explained in Wal-Mart Stores, Inc.,
its “focus on the dissimilarities between the putative class members” was “not in order to
determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to
determine (as Rule 23(a)(2) requires) whether there is ‘[e]ven a single [common] question.’”
564 U.S. at 359 (quoting Richard A. Nagareda, The Preexistence Principle and the Structure of
the Class Action, 103 Colum. L. Rev. 149, 176 n.110 (2003)).

                                                -10-
       property law, plaintiffs owned the fee interest underlying the railroad easement. . .
       . [(4) T]he factual question, i.e., the terms of the easement deeds, is common to
       the entire class. [(5)] Whether the terms of the deeds created an easement under
       North Carolina law is likewise a . . . common question.9

Pls.’ Reply 7 (footnote added).

        Plaintiffs’ contention that Wal-Mart Stores, Inc. had no effect on how courts assess the
common-issue requirement is unavailing. Decisions of the Supreme Court are binding on the
Court of Federal Claims, FCC v. Pottsville Broad. Co., 309 U.S. 134, 140 (1940), and the
Supreme Court in Wal-Mart Stores, Inc. clearly states that a common contention must be capable
of being resolved on a classwide basis, 564 U.S. at 350. The court recognizes that the facts of
Wal-Mart Stores, Inc. differ significantly from those in this case. However, the Supreme Court’s
explanation regarding what a putative class representative must demonstrate to satisfy the
common-issue requirement was not dependent upon the underlying facts of the case before it.
See id. at 349-50. Indeed, it is well established that the Supreme Court in Wal-Mart Stores, Inc.
made it more difficult for all class action proponents to satisfy the common-issue requirement.
See, e.g., Brown v. Nucor Corp., 785 F.3d 895, 903 (4th Cir. 2015) (noting “Wal-Mart’s
heightened requirement of commonality”); M.D. v. Perry, 675 F.3d 832, 839 (5th Cir. 2012)
(“[T]he Wal-Mart decision has heightened the standards for establishing commonality under
Rule 23(a)(2) . . . .”); Elizabeth Chamblee Burch, Constructing Issue Classes, 101 Va. L. Rev.
1855, 1863-64 (2015) (“Wal-Mart Stores, Inc. v. Dukes strengthened the commonality standard
under Rule 23(a) . . . . After Dukes, defendants have convinced courts to scrutinize the plaintiffs’
commonality vis-à-vis one another and have thereby dodged class certification in toxic-tort cases,
environmental-law cases, products-liability cases, breach-of-contract claims, and Truth in
Lending Act claims to name but a few.” (footnotes omitted)); Christine P. Bartholomew,
Redefining Prey and Predator in Class Actions, 80 Brook. L. Rev. 743, 772 (2015) (“In Wal-Mart
v. Dukes, . . . the Supreme Court heightened the [commonality] requirement. . . . This
heightened commonality requirement makes class certification harder and has already resulted in
certification denials . . . . Accordingly, the standards for class certifications are more arduous
than a decade ago . . . .” (footnotes omitted)).

        The Court of Federal Claims’ class certification decisions in Rails-to-Trails cases that
predate Wal-Mart Stores, Inc. do not specifically address whether the identified common
issue–whether the NITU constituted a taking of the potential class members’ property interests
without the payment of just compensation in violation of the Fifth Amendment–was capable of
classwide resolution. See, e.g., Toscano, 98 Fed. Cl. at 155; Douglas R. Bigelow Trust, 97 Fed.
Cl. at 678; Singleton, 92 Fed. Cl. at 84; Jenkins v. United States, 104 Fed. Cl. 641, 644 (2009);
Haggart, 89 Fed. Cl. at 533; Fauvergue, 86 Fed. Cl. at 99. Accordingly, they lack persuasive
value on this issue. Thus, the court turns its attention to more recent decisions.



       9
          Like defendant, plaintiffs erroneously address the common-issue requirement in the
portion of their reply dedicated to the predominance requirement.

                                               -11-
        A review of post-Wal-Mart Stores, Inc. class certification decisions in federal courts
reveals only three decisions that address the common-issue requirement in a Fifth Amendment
takings context. All three decisions were issued by the Court of Federal Claims, and only one of
those decisions was in a Rails-to-Trails case. In the Rails-to-Trails decision, the court held that
the common legal issue was “whether the NITU issued on December 31, 2002 effected a taking
of the class members’ property.” Geneva Rock Prods., Inc., 100 Fed. Cl. at 789. The court did
not address whether that issue was capable of classwide resolution. However, the court
identified several subissues–“central legal questions”–that were capable of resolution using
generalized proof. Id. One of those questions was whether the railroad acquired the rail line via
“a single grant pursuant to a federal statute in 1875,” as the plaintiff apparently alleged. Id.
Because no individualized inquiries were required to answer that question, it is clear that it was,
under the standard set forth in Wal-Mart Stores, Inc., capable of classwide resolution. Thus, it
was not necessary for the court to address whether the overarching common question–whether
the NITU effected a taking–could be resolved on a classwide basis.

        The other two class certification decisions are equally unhelpful to plaintiffs. In Starr
International Co. v. United States, the plaintiff proposed two classes, one related to a credit
agreement and one related to a reverse stock split. 109 Fed. Cl. 628, 631-32 (2013). The court
identified a core legal question for each proposed class: whether the credit agreement/reverse
stock split constituted a taking without the payment of just compensation or an illegal exaction.
Id. at 633-34. The court then concluded that the resolution of the core legal issue for each
proposed class would affect all prospective members of that class and would require only
generalized proof. Id. In short, because no individualized proof was necessary to establish a
Fifth Amendment taking or illegal exaction, it is unquestionable that the core legal questions
could be resolved on a classwide basis.

        In Bell v. United States, the parties agreed that plaintiffs’ property was encumbered by
easements owned by the government that allowed for the construction, operation, and
maintenance of levees for flood control purposes. 123 Fed. Cl. at 393-94. In seeking to certify
the case as a class action, the plaintiffs identified a common question of law: whether a structure
erected by the government on their property exceeded the scope of the existing flood control
easements and therefore constituted a taking of their property interests without the payment of
just compensation in violation of the Fifth Amendment. Id. at 400. The court did not
specifically assess whether the common legal issue identified by the plaintiffs was capable of
classwide resolution. However, there can be no dispute that whether the government exceeded
the scope of existing flood control easements by erecting a structure on the potential class
members’ property can be resolved either affirmatively or negatively for the putative class as a
whole.

       In contrast, the primary common legal issue identified by plaintiffs in this case–whether
the Board’s issuance of the NITU on August 4, 2015, constituted a taking of the potential class
members’ property interests without the payment of just compensation in violation of the Fifth
Amendment–cannot be resolved for the proposed class as a whole. The NITU only effects a
Fifth Amendment taking if, among other prerequisites, Norfolk Southern possessed an easement
and the scope of the easement was limited to railroad purposes. See Ladd v. United States, 630

                                               -12-
F.3d 1015, 1019 (Fed. Cir. 2010) (noting that in Trails Act cases, a taking occurs when
“government action destroys state-defined property rights by converting a railway easement to a
recreational trail, if trail use is outside the scope of the original railway easement”). However,
because Norfolk Southern acquired its property interests in the railroad right-of-way through
condemnation, prescription, and various deeds, it is not possible to ascertain whether Norfolk
Southern acquired an easement–or the scope of any such easement–in one fell swoop as required
by Wal-Mart Stores, Inc. Rather, an examination of each of the deeds and other documents
relied upon by plaintiffs is necessary. Such an examination may reveal that Norfolk Southern
owns both fee simple estates and easements in the railroad right-of-way, and that the easements
acquired by Norfolk Southern, if any, are of varying scopes.10 Accordingly, the answer to the
primary common question identified by plaintiffs might be “yes” for some potential class
members and “no” for other potential class members. The question therefore cannot be resolved
on a classwide basis.

        The other four issues described by plaintiffs in their reply–“whether the NITU applies to
the segment of the easement at issue in this case”; “whether, under North Carolina property law,
plaintiffs owned the fee interest underlying the railroad easement”; “the terms of the easement
deeds”; and “[w]hether the terms of the deeds created an easement under North Carolina
law”–also cannot be used to satisfy the common-issue requirement. The first two issues are
common to the proposed class only if the deeds and documents that established the railroad right-
of-way created an easement. Although plaintiffs contend that all of the deeds contain “the same
or similar operative language” creating an easement, Pls.’ Reply 7, they have not, as noted above,
established that contention by sufficient evidence. This failure of proof also affects the
remaining two issues described by plaintiffs; those issues cannot be resolved on a classwide basis
unless the deeds contain sufficiently similar language.

       In short, plaintiffs have not identified a common contention that can be resolved on a
classwide basis, and therefore have not satisfied the common-issue requirement of RCFC
23(a)(2).




       10
            Along with their motion to certify a class action, plaintiffs submitted an affidavit from
their attorney attesting that Norfolk Southern acquired an easement via condemnation,
prescription, and right-of-way deeds, and that the deeds “are all of the same type and have the
same or very similar operative language.” Pls.’ Ex. A ¶ 16. Plaintiffs also submitted copies of
the deeds; however, many of the deeds are barely legible or not legible at all (most are
handwritten, and some of the copies are of poor quality). Thus, the court is unable to verify
plaintiffs’ attorney’s broad representation that all of the deeds are of the same type and contain
similar operative language. Moreover, plaintiffs’ attorney made no representations concerning
the scope of the purported easements acquired by Norfolk Southern via condemnation,
prescription, and deed. And, due to the legibility issues, the court could not determine whether
the deeds, assuming that they conveyed an easement, limited the scope of the easement to
railroad purposes.

                                                -13-
                                         2. Predominance

        In addition to determining whether plaintiffs have established the existence of common
factual or legal issues, the court must determine whether those issues predominate over issues
that are not common to the proposed class. This predominance inquiry “tests whether proposed
classes are sufficiently cohesive to warrant adjudication by representation” and “is far more
demanding” than the initial common-issue inquiry. Amchem Prods., Inc., 521 U.S. at 623-24;
accord Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013). Common issues–those in
which the same evidence could be used by each member of the class to make a prima facie
showing–predominate over individual issues–those in which each member of the class must
present individualized evidence to make a prima facie showing–if they “‘are more substantial
than the issues subject only to individualized proof.’” Jaynes, 69 Fed. Cl. at 457 (quoting Moore
v. PayneWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002)); accord Tyson Foods, Inc., 136 S. Ct.
at 1045; Geneva Rock Prods., Inc., 100 Fed. Cl. at 789.

        Plaintiffs contend that they satisfy the predominance requirement because the central
legal question applicable to all potential class members–whether the Board’s issuance of the
NITU on August 4, 2015, constituted a taking of the potential class members’ property interests
without the payment of just compensation in violation of the Fifth Amendment–predominates
over any individual issues, such as the amount of compensation to which each potential class
member might be entitled. Plaintiffs emphasize that there are “few factual differences” among
the potential class members because the deeds that conveyed the property interests to create the
railroad right-of-way contain similar language, and because all potential class members own
property along the same “stretch of land.” Pls.’ Mem. 8. In response, defendant asserts that
individual issues–(1) whether Norfolk Southern owned an easement, (2) the scope of any
easement, (3) whether the potential class members owned property encumbered by an easement
owned by Norfolk Southern on the date that the Board issued the NITU, and (4) the amount of
just compensation–predominate over the common question of whether the Board’s issuance of
the NITU effected a taking. Plaintiffs, in turn, characterize the individual issues raised by
defendant as issues of fact, and contend that “the factual inquiry needed in this particular case is
actually very limited and manageable.” Pls.’ Reply 7.

        As an initial matter, plaintiffs mischaracterize the issues identified by defendant; some are
factual in nature, but others require legal analysis. For example, determining whether a particular
deed conveys an easement, and, if so, the scope of that easement, will require an examination of
North Carolina law. More problematic for plaintiffs is the fact that they have not identified any
issues common to the entire proposed class that can be resolved on a classwide basis. Thus, they
cannot establish that common issues predominate over issues that require individual
determinations, such as the issues identified by defendant.

                                      3. Similar Treatment

        The final aspect of the commonality requirement is determining whether the government
has “acted or refused to act on grounds generally applicable to the class.” RCFC 23(b)(2).
Plaintiffs contend, and defendant does not dispute, that the Board’s issuance of the NITU is a

                                                -14-
government action generally applicable to the entire proposed class. Plaintiffs are correct. See
Geneva Rock Prods., Inc., 100 Fed. Cl. at 789 (“The NITU was a single act that affected all
putative class members. This single act is the wellspring of all the putative class members’
claims.” (citations omitted)); see also Ladd, 630 F.3d at 1019 (“The NITU is the government
action that prevents the landowners from possession of their property unencumbered by the
easement.”); Caldwell, 391 F.3d at 1233-34 (“The issuance of the NITU is the only government
action in the railbanking process that operates to prevent abandonment of the corridor and to
preclude the vesting of state law reversionary interests in the right-of-way.”). Accordingly,
plaintiffs have satisfied this aspect of the commonality requirement.

                                           C. Typicality

        The third general requirement for maintaining a class action is that the claims of the
proposed class representative(s) be typical of the claims of the other prospective class members.
See RCFC 23(a)(3). In many ways, the typicality requirement is similar to the commonality
requirement: “Both serve as guideposts for determining whether under the particular
circumstances maintenance of a class action is economical and whether the named plaintiff’s
claim and the class claims are so interrelated that the interests of the class members will be fairly
and adequately protected in their absence.” Gen. Tel. Co. of the Sw., 457 U.S. at 157 n.13.
Nevertheless, typicality and commonality are distinct requirements. Typicality is demonstrated
“when ‘each class member’s claim arises from the same course of events, and each class member
makes similar legal arguments to prove the defendant’s liability.’” Barnes, 68 Fed. Cl. at 498
(quoting In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992)). It “may
be satisfied even if some factual differences exist between the claims of the named
representatives and the claims of the class, provided that the named representatives’ claims share
the same essential characteristics as the claims of the class at large.” Fisher v. United States, 69
Fed. Cl. 193, 200 (2006) (citing Piazza v. EBSCO Indus., Inc., 273 F.3d 1341, 1351 (11th Cir.
2001)). Accordingly, “[t]he threshold requirement for typicality is . . . not high.” Id.

        Plaintiffs argue that they have satisfied the typicality requirement because their claims
and the claims of the proposed class are “premised on a common legal theory of recovery,” and
because both they and the proposed class “allege that they own fee simple title to lands along the
Railroad Line in Cleveland [County], North Carolina.” Pls.’ Mem. 9. Defendant counters that
plaintiffs have not met the typicality requirement because they “have not established that the
named plaintiffs have an ownership interest in the subject corridor or that the deeds for the
named plaintiffs’ properties are representative or typical of the deeds affecting the claims of the
putative class members.” Def.’s Resp. 9-10. In response, plaintiffs argue that defendant is
applying a stricter standard for typicality than is warranted.

        Normally, plaintiffs’ contention that their claims and the claims of the proposed class are
premised on the same legal theory–that the Board’s issuance of the NITU on August 4, 2015,
effected a taking of their property interests without the payment of just compensation in violation
of the Fifth Amendment–would be sufficient to satisfy the typicality requirement. See
Fauvergue, 86 Fed. Cl. at 100 (“Plaintiffs have satisfied their burden in proving typicality under
RCFC 23(a)(3). The named representatives’ claims share the same essential characteristics as

                                                -15-
the claims of the entire putative class: all plaintiffs’ claims in the proposed class arose under the
Trails Act when the same NITU was issued.”). However, upon review of the second amended
complaint, it appears that some or all of the named plaintiffs may not have claims typical of the
proposed class.

        As previously noted, plaintiffs allege in their second amended complaint that Norfolk
Southern owned an easement for railroad purposes underlying the segments of a railroad right-of-
way situated between milepost SB 144.55 and milepost SB 154.59, between milepost SB 158.10
and milepost SB 160.00, between milepost SF 384.6 and milepost SF 407.4, and between
milepost SB 144.55 and milepost SB 141.35–the same four segments covered by the August 4,
2015 NITU. They further allege that Norfolk Southern’s easement lay across their property, and
identify the specific parcels of land encumbered by that easement. However, plaintiffs did not
indicate which plaintiffs owned parcels of land adjacent to which segment(s) of Norfolk
Southern’s purported easement.11 Accordingly, from the facts alleged in the second amended
complaint, the court can surmise only that each plaintiff owns one or more parcels of land
adjacent to one or more of the four segments of the purported easement.

        Despite claiming that they own property adjacent to the four segments of the railroad
right-of-way described in the NITU, plaintiffs, in their motion to certify this case as a class
action, describe the proposed class as:

       All persons who on August 4, 2015, owned an interest in lands constituting part of
       the railroad corridor or right-of-way on which a rail line was formerly operated by
       Norfolk Southern Railway Company (NSR), from milepost SB 144.55 to milepost
       SB 154.50 and from milepost SB 158.10 to milepost [SB] 160.00, in Cleveland
       County, North Carolina . . . .

Pls.’ Mot. 1 (emphasis added). Excluded from this proposed class definition are persons who
own an interest in parcels of land adjacent to the segments of the railroad right-of-way situated
between milepost SF 384.6 and milepost SF 407.4, and between milepost SB 144.55 and
milepost SB 141.35. If any of the twenty named plaintiffs own parcels of land that are adjacent
only to these two segments, then they might not be representative of the proposed class. As a
result, any such plaintiffs might not have claims that are typical of the claims of the potential
class members. This possibility precludes plaintiffs from satisfying the typicality requirement of
RCFC 23(a)(3).12


       11
          For example, plaintiffs allege that Douglas G. Brown owns parcel number 71228, but
do not identify the segment or segments of the purported easement to which parcel number
71228 is adjacent.
       12
          The court recognizes that the incongruity between the allegations in the second
amended complaint and the proposed class definition may be the result of imprecise drafting.
The August 4, 2015 NITU, which neither party submitted with their pleadings or briefs, reflects
that Norfolk Southern sought to (1) abandon the two segments situated between milepost SB

                                                -16-
                                           D. Adequacy

        In addition to establishing numerosity, commonality, and typicality, a putative class
representative must establish that he or she will “fairly and adequately protect the interests of the
class.” RCFC 23(a)(4). There are two aspects to the adequacy requirement: the existence of
conflicts between the putative class representative and the members of the proposed class, and
the qualifications and capabilities of proposed class counsel. Amchem Prods., Inc., 521 U.S. at
625-26 & n.20; Gen. Tel. Co. of the Sw., 457 U.S. at 157 n.13.

                                      1. Conflicts of Interest

        The first component of the adequacy requirement concerns whether there are any conflicts
of interest precluding a plaintiff from serving as a class representative. See Gen. Tel. Co. of the
Nw., Inc., 446 U.S. at 331. Because plaintiffs have not established the existence of common
issues resolvable on a classwide basis or that their claims are typical of the claims of the potential
class members, it is not possible to conclude that plaintiffs lack any conflicts of interest with the
proposed class. See Amchem Prods., Inc., 521 U.S. at 626 n.20 (“The adequacy-of-
representation requirement ‘tend[s] to merge’ with the commonality and typicality criteria of
Rule 23(a) . . . .”). Plaintiffs therefore have not satisfied the conflicts-of-interest requirement.

                                    2. Proposed Class Counsel

       The second component of the adequacy requirement focuses on the experience and
competence of proposed class counsel. Before the court can appoint class counsel, it “must
consider”:

       (i) the work counsel has done in identifying or investigating potential claims in
       the action;
       (ii) counsel’s experience in handling class actions, other complex litigation, and
       the types of claims asserted in the action;
       (iii) counsel’s knowledge of the applicable law; and
       (iv) the resources that counsel will commit to representing the class[.]


144.55 and milepost SB 154.59, and between milepost SB 158.10 and milepost SB 160.00; (2)
discontinue trackage rights over the segment situated between milepost SF 384.6 and milepost
SF 407.4; and (3) discontinue service over the segment situated between milepost SB 144.55 and
milepost SB 141.35. See Surface Transportation Board, Decision and Notice of Interim Trail
Use or Abandonment: Norfolk Southern Railway Company–Abandonment, Discontinuance of
Trackage Rights and Discontinuance of Service–In Cleveland and Rutherford Counties, N.C.,
and Cherokee County, S.C., https://www.stb.dot.gov/Decisions/readingroom.nsf/UNID/
5F817A6B4689ED2385257E970069CE04/$file/44597.pdf (Aug. 4, 2015). It may be the case
that all of the property owned by plaintiffs is adjacent to the two segments that Norfolk Southern
sought to abandon (in other words, the two segments included in the proposed class definition).
However, the court cannot to draw this conclusion based on the evidence currently before it.

                                                -17-
RCFC 23(g)(1)(A). In addition, it “may consider any other matter pertinent to counsel’s ability
to fairly and adequately represent the interests of the class[.]” RCFC 23(g)(1)(B). Although
defendant does not challenge the experience or qualifications of plaintiffs’ counsel, the court
must satisfy itself that the appointment of plaintiffs’ counsel as class counsel would be in the best
interests of the proposed class. RCFC 23(g)(2).

        In an affidavit submitted with plaintiffs’ motion to certify this case as a class action,
plaintiffs’ counsel describes the work he performed to identify and investigate potential claims
and his experience in handling Rails-to-Trails cases, including class actions. Further, there is no
dispute that plaintiffs’ counsel possesses knowledge of the applicable law and the resources
necessary to represent the proposed class. Based on the information before it, the court
concludes that the appointment of plaintiffs’ counsel as class counsel would be in the best
interests of the proposed class if the case were certified as a class action.

                                          E. Superiority

         The final requirement that plaintiffs must satisfy to maintain a class action is superiority;
in other words, a class action must be “superior to other available methods for fairly and
efficiently adjudicating the controversy.”13 RCFC 23(b)(3). This requirement is met if the
prospective class representative establishes that “a class action would achieve economies of time,
effort, and expense, and promote uniformity of decision as to persons similarly situated, without
sacrificing procedural fairness or bringing about other undesirable results.” Fed. R. Civ. P. 23
Advisory Committee Note (1966 Amendment), quoted in Amchem Prods., Inc., 521 U.S. at 615.
Among the factors to consider in determining superiority are (1) the potential “class members’
interests in individually controlling the prosecution of separate actions”; (2) “the extent and
nature of any litigation concerning the controversy already begun by class members”; and (3)
“the likely difficulties in managing a class action.” RCFC 23(b)(3). “Essentially, under this
prong of the analysis, the court is obliged to conduct a cost/benefit analysis, weighing any
potential problems with the manageability or fairness of a class action against the benefits to the
system and the individual members likely to be derived from maintaining such an action.”
Barnes, 68 Fed. Cl. at 499, quoted in Geneva Rock Prods., Inc., 100 Fed. Cl. at 790; see also
Jaynes, 69 Fed. Cl. at 459 (“In making [the superiority] assessment, the court must consider what
alternative procedures are available for disposing of the dispute and compare the possible
alternatives to determine whether Rule 23 will be sufficiently effective to justify the class action
approach. The superiority requirement is most clearly satisfied ‘if a comparative evaluation of
other procedures reveals no other realistic possibilities.’” (citation omitted) (quoting 7AA Wright
2005, supra, § 1779)).


       13
            There are several other methods of adjudicating the claims of multiple individuals
arising from the same course of conduct: the permissive joinder of parties under RCFC 20; the
filing of a related case under RCFC 40.2; and consolidation under RCFC 42(a). Procedurally,
RCFC 20 requires a motion to amend the complaint to join new plaintiffs, while RCFC 40.2 and
RCFC 42(a) require the filing of separate complaints.

                                                -18-
         Neither party specifically addresses the factors described in RCFC 23(b)(3). However,
their arguments generally pertain to the second and third factors. Plaintiffs argue that a class
action is the superior method of litigating this case because it would achieve economies of time,
effort, and expense, and prevent inconsistent adjudications. Specifically, they contend that it
would be more efficient for the court to hear the claims of the 156 potential class members in one
suit rather than in 156 separate suits, and more efficient for the parties to conduct title research
and property appraisals in a class action. Defendant, in contrast, argues that litigating this case as
a class action is not superior to proceeding through joinder. It asserts that parties and the court in
Rails-to-Trails cases have developed efficient methods of litigating suits proceeding through
joinder; that the notice to potential claimants required in a class action might confuse those
claimants who have already joined the Brooks suit; and that the evidence required for each
potential class member to establish their Fifth Amendment takings claim will be unique. In their
reply, plaintiffs assert that defendant has not identified any problem with proceeding as a class
action that the court has not already addressed or managed in other cases.

        Although plaintiffs are correct that many Rails-to-Trails cases have proceeded as class
actions in this court, they fail to meet their burden of proving that a class action is superior to
other methods of litigating this particular case. As an initial matter, the court has already held
that plaintiffs did not demonstrate that proceeding through joinder would be impracticable in this
case. To the contrary, the fact that the Brown suit is proceeding through joinder reflects that
joinder is a reasonable and practicable method of adjudicating whether the Board’s issuance of
the August 4, 2015 NITU effected a taking of property interests without the payment of just
compensation in violation of the Fifth Amendment. Moreover, plaintiffs’ failure to identify any
common issues that can be resolved on a classwide basis strongly suggests that a class action is
not superior to proceeding through joinder. Finally, there is no risk of inconsistent adjudications
when proceeding through joinder.

         In sum, the court cannot conclude that a class action would be a superior method of
litigating this case. Rather, based on the evidence proffered by plaintiffs, proceeding through
joinder is at least an equally effective means of litigating the claims of plaintiffs and the other
potential claimants. Accordingly, plaintiffs have not established that a class action is superior to
other means of litigating this case as required by RCFC 23(b)(3).

                                       III. CONCLUSION

        As set forth above, plaintiffs have not met the requirements set forth in RCFC 23 for
maintaining a class action. In particular, they have not satisfied the numerosity, typicality, and
superiority requirements, and they have failed to satisfy elements of the commonality and
adequacy requirements. Each of plaintiffs’ failures is fatal to their motion to certify this case as a
class action. Accordingly, plaintiffs’ motion is DENIED. By no later than Friday, June 10,




                                                 -19-
2016, the parties shall file a joint status report containing a proposed schedule for the liability
phase of this case.

       IT IS SO ORDERED.

                                                        s/ Margaret M. Sweeney
                                                        MARGARET M. SWEENEY
                                                        Judge




                                                 -20-
