                                       REVISED

                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                                      No. 95-60625



CHRIS W. BEGGERLY; JAMES R. BEGGERLY;
CLARK M. BEGGERLY; VELMA B. GARNER;
SUZANNE REED; DAVID REED,
                                                                      Plaintiffs-Appellants,
                                         versus
UNITED STATES OF AMERICA,
                                                                      Defendant-Appellee.


                       Appeal from the United States District Court
                         For the Southern District of Mississippi

                                      July 28, 1997
                                      On Rehearing


Before POLITZ, Chief Judge, EMILIO M. GARZA and STEWART, Circuit Judges.
POLITZ, Chief Judge:

      The panel substitutes the following for its opinion previously issued:
      The Beggerlys appeal the district court’s order granting the motion to dismiss

by the United States and denying the Beggerlys’ cross-motion for summary

judgment in which they sought to vacate a consent judgment under which the
United States acquired title to property previously held by the Beggerlys.

Concluding that the Beggerlys are entitled to the relief sought, we reverse, render,

and remand.
                                  BACKGROUND
         On April 3, 1950 Clark M. Beggerly, Sr., on behalf of his family, bought a

portion of Horn Island, offshore in the Gulf of Mexico, at a tax sale in Jackson,

Mississippi. On January 8, 1971 Congress enacted legislation authorizing the
Department of Interior to establish a federal park on lands that included Horn

Island.1 In 1972 the National Park Service began negotiating with the Beggerlys

for the purchase of their property on Horn Island. In October 1975 the Beggerlys

entered into a contract to sell the land to the government for $156,500.
Subsequently the government canceled the contract contending that because it had
never issued a land patent, it was the title owner of Horn Island.
         In 1979 the government brought a quiet title action in the Southern District

of Mississippi against the Beggerlys and other defendants. During discovery the
Beggerlys sought proof of their title, and government officials ostensibly conducted

a thorough search of the public land records. The government then formally
represented to the Beggerlys and the district court that no part of Horn Island had
ever been granted to a private landowner and, as a result of these representations,

in 1982 the government persuaded the Beggerlys to accept a settlement agreement

it proposed. The district court entered judgment based upon that agreement; the
Beggerlys received $208,175.87 and title was quieted in favor of the United States.2

         Their disappointment with the results of the settlement led the Beggerlys to


   1
       16 U.S.C. § 459h.
   2
       United States v. Adams, No. S79-0338(R) (S.D. Miss. Dec. 3, 1982).
                                           2
mount an exhaustive search for a land patent to support their claim of title. They
wrote letters to public officials, made Freedom of Information Act requests, and

searched land records in Alabama, Mississippi, Louisiana, and Washington, D.C.

Finally, in 1991 the Beggerlys hired a genealogical record specialist who conducted
research in the National Archives and discovered the Boudreau Grant which

supported the Beggerlys’ claim of title. Government officials reportedly had

searched the National Archives during the quiet title suit but had not discovered

this document and thereafter erroneously advised the court and the Beggerlys that
Horn Island had never been privately disposed. The Beggerlys contacted the
Bureau of Land Management requesting the issuance of a land patent for Horn
Island. The BLM summarily denied their request.

         The Beggerlys then filed the instant action on June 1, 1994 seeking to set
aside the consent judgment and to recover just compensation. The government

moved to dismiss the complaint, invoking Fed.R.Civ.P. 12(b)(6) and 12(b)(1). The
Beggerlys filed a cross-motion for summary judgment and filed an amended
motion to add the Tucker Act3 and the Quiet Title Act4 as jurisdictional bases. The

district court granted the government’s motion to dismiss and denied the

Beggerlys’ cross-motion for summary judgment and motion to amend. The
Beggerlys timely appealed.

                                    ANALYSIS


   3
       28 U.S.C. § § 1346, 1491.
   4
       28 U.S.C. § 2409a.
                                          3
         1. Sovereign Immunity
         The government contends that sovereign immunity bars the Beggerlys from

proceeding with an independent action in equity. The government relies on Zegura

v. United States5 in which we held that sovereign immunity barred a bill of review
brought to vacate a prior judgment obtained by the United States. The Eleventh

Circuit viewed Zegura as controlling authority for the proposition that an

independent action could not be brought against the government absent a waiver

of sovereign immunity.6 We are not so persuaded and do not find Zegura as
controlling herein. Zegura dealt only with a bill of review, which is a type of
equitable action that has been replaced by the motions enumerated in Fed.R.Civ.P.
60(b). Although an independent action in equity is similar to a bill of review and

its modern successors -- the Rule 60(b) motions -- it is nonetheless a different
action. Rule 60(b) makes the distinction clear, stating that it does not “limit the

power of a court to entertain an independent action.” We therefore conclude that
Zegura does not control in the independent action context.
         We have held that an independent action filed in the same court that rendered

the original judgment is a continuation of the original action for purposes of subject

matter jurisdiction.7 It would be anomalous to torpedo a party bringing the
independent action with a plea of sovereign immunity when the action is in reality

   5
       104 F.2d 34 (5th Cir.), cert. denied, 308 U.S. 586 (1939).
   6
       United States v. Timmons, 672 F.2d 1373 (11th Cir. 1982).
   7
    West Virginia Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d 702
(5th Cir. 1954).
                                           4
a continuation of the original lawsuit in which jurisdiction was not an issue. To
allow the government to use sovereign immunity as a shield where it previously has

invoked the court’s jurisdiction and prevailed in an action based upon its

misrepresentations, negligence, or mistake would do unacceptable violence to our
basic notions of justice. We therefore agree with our colleagues in the Second

Circuit and now conclude and hold that governmental consent is not required to

bring an independent action in the same court as the original action.8

           2. The Independent Action
           The elements of an independent action are:
           (1) a judgment which ought not, in equity and good conscience, to be
           enforced; (2) a good defense to the alleged cause of action on which
           the judgment is founded; (3) fraud, accident, or mistake which
           prevented the defendant in the judgment from obtaining the benefit of
           his defense; (4) the absence of fault or negligence on the part of the
           defendant; and (5) the absence of any adequate remedy at law.9

The Beggerlys have satisfied these elements. We now hold that the district court
erred as a matter of law in denying the Beggerlys’ action to vacate the consent
judgment. Crucial to that determination is our conclusion that the district court

erred in failing to recognize the validity of the Boudreau Grant. That document is

an English translation of a 1781 Spanish land grant in which the Governor General
of Spanish Louisiana conveyed Horn Island to Catarina Boudreau. Although the


   8
       Weldon v. United States, 70 F.3d 1 (2d Cir. 1995).
       9
     Bankers Mortgage Co. v. United States, 423 F.2d 73 (5th Cir.) (quoting
National Sur. Co. v. State Bank, 120 F. 593, 599 (8th Cir. 1903)), cert. denied, 90
S. Ct. 2242 (1970).
                                             5
available document is not the original grant, it is the only copy available,
presumably because a fire destroyed the Spanish West Florida archives where the

original Spanish version would have been stored. The Supreme Court has held that

a certified translation of a Spanish land grant may be used to prove the existence
of a grant where the original cannot be found or has been destroyed.10 We therefore

find and conclude that the English translation is the best evidence of the original

grant and is admissible to prove its existence.

         The government contended at oral argument that the Boudreau Grant was
merely an application for a land patent. In the early 19th century Congress
established land commissions to organize the private claims of landowners, in what
are now the states of Louisiana, Mississippi, Alabama, and Florida, who had

acquired their property from England, France, or Spain.                Heirs of Catarina
Boudreau presented the Boudreau Grant to the land commissioner for claims east

of the Pearl River. It was not accepted. The land commissioners were responsible
for ascertaining titles and claims but did not have the authority to adjudicate title.
The controlling statute required that the commissioners submit claims to Congress

for final action.11 We must therefore conclude that the land commissioner’s refusal

to accept the application did not conclusively determine that Horn Island belonged
to the United States.

         It is abundantly clear that the land commissioners did not have the authority

   10
        United States v. Delespine’s Heirs, 37 U.S. (12 Pet.) 654 (1838).
 11
   Act of April 25, 1812, 2 Stat. 713; see generally United States v. Percheman,
32 U.S. (7 Pet.) 51 (1833).
                                              6
to confiscate property rightfully owned by private individuals. It is well-settled
that, absent a specific congressional act, land validly granted by a foreign nation

remained privately owned after the United States acquired political control of the

subject area. Chief Justice John Marshall taught:
         The modern usage of nations, which has become law, would be
         violated; that sense of justice and of right which is acknowledged and
         felt by the whole civilized world would be outraged, if private
         property should be generally confiscated, and private rights annulled.
         The people change their allegiance; their relation to their ancient
         sovereign is dissolved; but their relations to each other, and their rights
         of property, remain undisturbed.12
Articles II and III of the treaty consummating the Louisiana Purchase, under which
the United States acquired property south of the 31st parallel where Horn Island is
located,13 expressly protected the rights of private landowners. We consider it

beyond serious debate that if the Boudreau Grant was a valid land grant under the
Spanish law of 1781, then Horn Island remained private property after the

Louisiana Purchase. If, however, the grant was incomplete or invalid under
Spanish law, then the land commissioner was justified in his rejection. We inquire,
therefore, as to the validity of the Boudreau Grant under Spanish law at the time it

was made. The summary judgment record contains an affidavit by Professor Hans

Baade, offered by the Beggerlys as evidence that the Boudreau Grant was complete
and valid under the Spanish law of 1781. On the record before us the Boudreau

Grant vested complete and valid title in Catarina Boudreau. On that record,

   12
        Percheman at 86-87.
   13
     United States v. Louisiana, 363 U.S. 1 (1960); Foster v. Neilson, 27 U.S. (2
Pet.) 253 (1829), overruled on other grounds by Percheman.
                                             7
therefore, we must conclude that the property at issue herein remained privately
owned after the Louisiana Purchase and did not enter the public domain of the

United States until the misrepresentation-based consent judgment of 1982.

          The government possessed a document that was vital to the Beggerlys’ claim
of title to the land they had acquired on Horn Island.          Notwithstanding, it

represented to the Beggerlys and to the district court that no evidence existed that

Horn Island had ever been privately owned. This representation precipitated the

Beggerlys’ involuntary settlement of the government’s lawsuit. Their inability to
prove their title was directly caused by the government’s failure to produce the
grant and its misrepresentation that no private disposal had ever been made. Equity
permits us to correct injustice in extraordinary and unusual circumstances such as

are here presented. We exercise that authority and as to the Beggerlys set aside the
challenged consent judgment as null and void ab initio.14

          3. Quiet Title Act Claim
          The Beggerlys filed a motion to amend their complaint to claim relief under
the Quiet Title and Tucker Acts. The district court denied that motion. We read

the Beggerlys’ complaint and motion for summary judgment as stating alternative

causes of action. Although the district court did not have jurisdiction over an
inverse condemnation action under the Tucker Act,15 it did have jurisdiction to


     14
     We note that there are no fixed time limitations on bringing an independent
action in equity. In re West Texas Mktg. Corp., 12 F.3d 497 (5th Cir. 1994).
15
 See 28 U.S.C. §§ 1346, 1491 (vesting exclusive jurisdiction in the Federal Court
of Claims for claims exceeding $10,000).
                                           8
adjudicate title under the Quiet Title Act. We conclude that the district court
abused its discretion and should have allowed the Beggerlys to amend their

complaint because “[t]he requested amendment would have done no more than

state an alternative jurisdictional basis for recovery upon the facts previously
alleged.”16

         The record reflects that the Beggerlys legally acquired a part of Horn Island

in a tax sale. Because we have set aside the earlier judgment as to the Beggerlys

and have found that the United States has no legitimate claim to the land, the
validity of the Beggerlys’ title is a legal certainty. The government maintains,
however, that a claim under the Quiet Title Act is barred unless it is commenced
within 12 years of the date on which it accrued.17 A claim is deemed to accrue on

the date the plaintiff knows or should have known about the claim of the United
States.18 The Beggerlys knew about the claim at the earliest in 1976 when the

government ceased contract negotiations with them for the purchase of their Horn
Island property. More than 12 years passed before the Beggerlys commenced the
current action; however, a statute of limitations may be tolled on equitable grounds.

“Equitable tolling applies principally where the plaintiff is actively misled by the

defendant about the cause of action or is prevented in some extraordinary way from




   16
        Miller v. Stanmore, 636 F.2d 986, 990 (5th Cir. 1981).
   17
        28 U.S.C. § 2409a(g).
   18
     Id.
                                             9
asserting his rights.”19 On the record before us the government may not benefit
from the limitations period, especially in light of the diligence displayed by the

Beggerlys in seeking the truth and pursuing their rights, which resulted in their

discovering a grant that apparently not even custodians of the public land records
could or would locate. We conclude that the limitations period was tolled from the

time the Beggerlys began searching for evidence of a private disposal during the

original quiet title action until they discovered the Boudreau Grant and, thus, that

their action manifestly was filed within the 12-year limitations period.
         We remand to the district court so that it may enter judgment quieting title
in favor of the Beggerlys. Under 28 U.S.C. § 2409a(b) the United States has the
option of delivering possession of the 729 acres claimed by the Beggerlys or it may

elect to retain possession thereof and pay the Beggerlys just compensation for
same. The district court is to take into account the compensation of $208,175.87

received by the Beggerlys in the 1982 settlement. The judgment of the district
court is REVERSED and judgment is RENDERED in favor of the Beggerlys and
this cause is REMANDED for further proceedings consistent herewith.

ENDRECORD




    19
     Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996).
Equitable tolling may be applied against the United States. Irwin v. Department
of Veterans Affairs, 111 S.Ct. 453 (1990).
                                          10
EMILIO M. GARZA, Circuit Judge, dissenting:
      I agree with much of today’s majority opinion. I agree with the majority that

the complaint is not a motion under Fed. R. Civ. P. 60(b)(1)-(6), and that it should

more properly be considered an independent action in equity, since Beggerly
explicitly invoked the equitable jurisdiction of the district court in his complaint.

I agree with the majority that the district court erred in dismissing the action as

untimely, because there is no fixed limitations period for such equitable actions.

And finally, I agree with the majority that the equities of this case favor Beggerly
and his family. However, because we do not have jurisdiction to provide such
relief, I must part company with the majority. As judges, we have equitable
discretion to do justice within the limits of the law, but we can go no further. In

this case, the government has not waived its sovereign immunity to suit, which bars
our jurisdiction to provide relief.
      As an initial matter, I would not treat an independent action

in equity as a “continuation” of the underlying suit with ancillary

jurisdiction from the original action.              In a similar context, the
Supreme Court appears to have foreclosed the notion of ancillary

jurisdiction in cases such as this one, involving a challenge to a

settlement agreement in federal court.              Kokkonen v. Guardian Life

Ins. Co. of Am., 511 U.S. 375, 380, 114 S. Ct. 1673, 1676, 128 L.

Ed. 2d 391 (1994) (“No case of ours asserts, nor do we think the

concept of limited federal jurisdiction permits us to assert,

ancillary jurisdiction over any agreement that has as part of its

consideration the dismissal of a case before a federal court.”).

                                         11
       Furthermore, the Fifth Circuit has long held that independent

actions must have jurisdiction independent of the judgments they

challenge.     Bankers Mortgage Trust Co. v. United States, 423 F.2d

73, 78 (5th Cir.), cert. denied, 399 U.S. 927, 90 S. Ct. 2242, 26

L. Ed. 2d 793 (1970); Jones v. Watts, 142 F.2d 575 (5th Cir.),

cert. denied, 323 U.S. 787, 65 S. Ct. 310, 89 L. Ed. 628 (1944);

Zegura v. United States, 104 F.2d 34, 35 (5th Cir.), cert. denied,

308 U.S. 586, 60 S. Ct. 109, 84 L. Ed. 490 (1939).20

       West Virginia Oil & Gas v. George E. Breece Lumber, cited by

the majority, appears to have created an exception to this general

rule.   West Virginia Oil was a federal diversity case in which the

parties to the original action were diverse, but after judgment,

sales of the property at stake defeated complete diversity.                      213

F.2d 702, 704 (5th Cir. 1954).           In West Virginia Oil, we held that

the district court had continuing diversity jurisdiction to correct

errors in the original judgment.              Id. at 706-07.      The “ancillary

jurisdiction” reasoning of West Virginia Oil has little or no



  20
       I recognize that there is a conflict among the other circuits regarding whether
independent actions require independent jurisdiction. Compare Weldon v. United
States, 70 F.3d 1, 4 (2d Cir. 1995) (holding that independent actions are ancillary
to original suit) and Crosby v. Mills, 413 F.2d 1273, 1275 (10th Cir. 1969) (same)
with In re Hunter, 66 F.3d 1002, 1005-06 (9th Cir. 1995) (rejecting notion of
ancillary jurisdiction in independent actions); United States v. Timmons, 672 F.2d
1373, 1378-79 (11th Cir. 1982) (same); and Andrade v. United States, 485 F.2d 660,
664 (Ct. Cl. 1973) (same), cert. denied, 419 U.S. 831, 95 S. Ct. 55, 42 L. Ed. 2d 57
(1974). See also 11 Charles A. Wright, Arthur R. Miller & Mary K.
Kane, Federal Practice & Procedure: Civil § 2868 at 403 (2d ed.
1995) (supporting notion of ancillary jurisdiction, citing
generally Pacific R. Co. v. Missouri Pac. Ry. Co., 111 U.S. 505,
522, 4 S. Ct. 583, 28 L. Ed. 498 (1884)); 7 James W. Moore, Moore’s
Federal Practice ¶ 60.38[1], at 60-399 (2d ed. 1995) (same).

                                         12
precedential value in light of the Supreme Court’s holding in

Kokkonen or in light of our prior cases, reflected most recently in

Bankers Mortgage, in which we required that an independent action

be        “founded   upon    an   independent   and   substantive   equitable

jurisdiction.” 423 F.2d at 78.

          Moreover, to the extent that West Virginia Oil has any value

as precedent, the case is inapposite here because it is on a

completely different jurisdictional footing. West Virginia Oil was

a case in which the parties could not review the judgment in

federal court without ancillary jurisdiction.              Beggerly, on the

other hand, could have pursued this suit under several different

statutes conferring federal jurisdiction independent of that in the

original action.            The federal courts would have had independent

jurisdiction over a timely action under the Quiet Title Act, 28

U.S.C. § 2409a; the Tucker Act, 28 U.S.C. § 1491; and probably

general federal question jurisdiction under 28 U.S.C. § 1331

(putting sovereign immunity to one side for the moment).              Because

there is no need to assert ancillary jurisdiction to review the

underlying settlement in federal court, West Virginia Oil is not on

point, even to the extent that it was ever good law in the first

place.21

     21
      Our West Virginia Oil opinion relies solely on an apparent misreading of
Supreme Court precedent. In West Virginia Oil, the court confused the history
of independent actions and the common law predecessors to the separate actions
of Fed. R. Civ. P.
60(b). Independent actions are distinct, and “should under no
circumstances be confused with ancillary common law and equitable
remedies, or their modern substitute, the 60(b) motion.” Bankers
Mortgage, 423 F.2d at 78. The West Virginia Oil court simply cited

                                         13
     My    concern   over   the   characterization      of     this   suit   as

independent or ancillary is not as serious as my other concerns:

waiver of sovereign immunity and the proper reach of the majority

opinion.

     The United States is, of course, immune from suit without its

consent, Loeffler v. Frank, 486 U.S. 549, 554, 108 S. Ct. 1965,

1969, 100 L. Ed. 2d 549 (1988), and we are to construe waivers of

sovereign immunity “strictly in favor of the sovereign.”                United

States Dep't of Energy v. Ohio, 503 U.S. 607, 615, 112 S. Ct. 1627,

1633, 118 L. Ed. 2d 255 (1992).          Beggerly can cite no statutory

waiver of sovereign immunity in this case, either in the original

action or in the independent action.           The majority bypasses the

question   of   sovereign   immunity     by   holding   that   “governmental



a Supreme Court case that found ancillary jurisdiction for the
precursor to Rule 60(b) motions, and held that there was similar
ancillary jurisdiction in independent actions.
     The West Virginia Oil court relied on Pacific Railroad of
Missouri v. Missouri Pacific Railway Co., 111 U.S. 505, 522, 4 S.
Ct. 583, 592, 28 L. Ed. 2d 498 (1884), which involved a bill in
equity to vacate a judgment on the basis of fraud. The bill in
equity in that case was a bill of review (one of the forebears of
Rule 60(b)), not an independent action in equity. Zegura, 104 F.2d
at 35 (characterizing the bill in Pacific Railroad as a “bill of
review”). Therefore Pacific Railroad has little or no precedential
force for independent actions. A bill of review, like a Rule 60(b)
motion, had to be brought in the court that rendered judgment and
was essentially a request that the court reopen the judgment to
reverse or correct a final decree. Wright, Miller & Kane, Federal
Practice & Procedure: Civil § 2867 at 394. The unremarkable fact
that a motion to reopen a judgment enjoys ancillary jurisdiction
therefore should not disturb our precedents holding that
independent actions in equity are founded upon an independent and
substantive equitable jurisdiction. Bankers Mortgage, 423 F.2d at
78. I agree with the Bankers Mortgage court, and apparently the
Supreme Court in Kokkonen, that it is important not to confuse the
two conceptually distinct avenues for review.

                                    14
consent is not required to bring an independent action in the same

court as the original action[,]” citing the Second Circuit’s

opinion in Weldon v. United States, 70 F.3d 1, 4 (2d Cir. 1995).

Regardless of the equities of any individual case, governmental

consent    is   always    required      as     a        prerequisite       to    federal

jurisdiction.    Loeffler, 486 U.S. at 554.

     The Second Circuit’s opinion in Weldon is not to the contrary.

Although the Second Circuit in Weldon agrees with the majority that

independent actions are “continuations” of the original actions

they challenge, the court does not claim that waiver of sovereign

immunity is unnecessary.         In Weldon, the parties sued under the

Federal Tort Claims Act in the original suit, which constituted a

statutory waiver of sovereign immunity.                 70 F. 3d at 2.         The Weldon

court held that, because the independent action was essentially a

continuation of the original suit, the government’s waiver of

sovereign immunity in the original action should continue to bind

the United States in the subsequent challenge.                      Id.    Weldon does

not suggest that waiver is unnecessary, only that it may be

continued from the original suit.            So even if we were to find in

the instant case that independent actions should be considered a

continuation of the original actions they challenge (a point I

still dispute),       there    would   still       be    no   waiver      of    sovereign

immunity in the original action for us to continue.                       Of course, we

cannot    equitably    waive    sovereign      immunity        on    behalf       of   the

government; therefore we do not have jurisdiction to consider this




                                       15
suit.22

      My final concern is that the majority reaches issues not

before us in this opinion.      Even if there were a waiver of

sovereign immunity in this case, we would have no jurisdiction to

reach the merits of Beggerly’s cross motion for summary judgment,

the validity of the Boudreau grant, or the ownership of Horn

Island, as the majority does.        These issues are fraught with

difficult fact questions that must be decided by the district

court, which alone has jurisdiction to consider them.    Moreover,

the majority should not have reached those issues on the incomplete

summary judgment record before us, but instead should have remanded

them to the district court.   Therefore I respectfully dissent.




 22
     Presumably a timely challenge to the original action under the
Quiet Title Act or the Tucker Act, each of which involves a
statutory waiver of immunity, would not suffer from this infirmity
of the independent action in equity.

                                16
