        In the United States Court of Federal Claims
                                             No. 00-512L

                                       (Filed: January 8, 2013)
                                              _________

 PETRO-HUNT, L.L.C.,                              *   Judicial takings claim; Motion for
                                                  *   reconsideration under RCFC 54(b) and
                                                  *   59(a)(1); Standard for reconsideration;
                          Plaintiff,
                                                  *   Central Pines – application of 28 U.S.C. §
                                                  *   1500 to supplemental complaint under
         v.                                           RCFC 15(d); Central Pines distinguishable
                                                  *
                                                      from case involving supplemental complaint
                                                  *
 THE UNITED STATES,                                   that raises entirely new claim; Motion
                                                  *   denied.
                                                  *
                         Defendant.
                                                  *
                                                  *
                                              _________

                                              OPINION
                                             __________

        Joseph Ralph White, White Law Firm, New Orleans, LA, for plaintiff.

      William James Shapiro, Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C., with whom was Assistant Attorney General Ignacia S.
Moreno, for defendant.

ALLEGRA, Judge:

        On May 2, 2012, this court denied defendant’s motion to dismiss the “judicial takings”
claim alleged in plaintiff Petro-Hunt’s supplemental complaint. See Petro-Hunt, L.L.C. v. United
States, 105 Fed. Cl. 37 (2012). On October 18, 2012, defendant filed a motion to reconsider this
ruling under RCFC 54(b) and 59(a), in light of the Federal Circuit’s recent decision in Central
Pines Land Company, L.L.C. v. United States, 697 F.3d 1360 (Fed. Cir. 2012). Defendant argues
that Central Pines holds that this court lacks jurisdiction over a supplemental complaint when the
original complaint is barred by 28 U.S.C. § 1500.

        Rule 54(b) provides that “any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . .
may be revised at any time before the entry of a judgment adjudicating all the claims and all the
parties’ rights and liabilities.” RCFC 54(b). “RCFC 54(b), therefore, recognizes the principle
that interlocutory orders may be modified by the issuing court at any time before a final
judgment is entered.” Stevens v. United States, 2012 WL 2021740, at *4 (Fed. Cl. June 4, 2012);
see also Wolfchild v. United States, 68 Fed. Cl. 779, 784-85 (2005). Rule 59(a)(1) provides in
relevant part that this court may grant a motion for reconsideration to any party as follows: “(A)
for any reason for which a new trial has heretofore been granted in an action at law in federal
court; [or] (B) for any reason for which a rehearing has heretofore been granted in a suit in equity
in federal court.” RCFC 59(a)(1)(A)-(B). Taken together, these rules permit the court to depart
from a prior ruling when, inter alia, there is “an intervening change of controlling legal
authority, or when the prior decision is clearly incorrect and its preservation would work a
manifest injustice.” Intergraph Corp. v. Intel Corp., 253 F.3d 695, 698 (Fed. Cir. 2001); see also
Smith Int’l Inc. v. Hughes Tool Co., 759 F.2d 1572, 1576 (Fed. Cir. 1985); Starr Int’l Co., Inc. v.
United States, 2012 WL 4056242, at *2 (Fed. Cl. Sept. 17, 2012); Martin v. United States, 101
Fed. Cl. 664, 670 (2011).

         Defendant argues that Central Pines represents an intervening change in the law that
obliges this court to reconsider its ruling that section 1500 does not require dismissal of
plaintiff’s “judicial takings” claim. It notes that, in Central Pines, the Federal Circuit rejected an
argument that the plaintiff could cure a defective complaint by filing a supplemental complaint
under RCFC 15, holding that “jurisdiction under § 1500 is dependent on the state of things when
the action is brought, and cannot be rescued by subsequent action of either party or by resolution
of the co-pending litigation.” 697 F.3d at 1367. Based upon this analysis, the Federal Circuit
concluded that this court “cannot retroactively acquire jurisdiction, via the filing of a
supplemental complaint or otherwise, after a co-pending district court action is final,” id., adding
that, in such a situation, ‘“[t]he suit must be dismissed and refiled to avoid § 1500.”’ Id. (quoting
Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1166 n.2 (Fed. Cir. 2011)).

         As plaintiff points out, however, there are significant differences between the facts in
Central Pines and those in this case. For one thing, the two complaints in Central Pines (the first
in the district court, the second in this court) were “nearly identical complaints that, at best,
repackaged the same conduct into different theories.” Central Pines, 697 F.3d at 1365. That is
certainly not the case here, in terms of the “judicial takings” claim. Moreover, the only fact that
was added in the supplemental complaint filed in Central Pines – reflecting the resolution of a
quiet title action – was relatively insignificant and neither gave rise to a new cause of action nor
constituted a new “operative” fact under the claims previously pled. Central Pines Land Co. v.
United States, 99 Fed. Cl. 394, 402 (2011); see also Central Pines, 697 F.3d at 1364. Reviewing
the situation in Central Pines, this court, in its original opinion in this case, fully agreed with
defendant that “[s]upplemental pleadings under RCFC 15(d) may not be used to cure jurisdiction
by adding new facts to a preexisting cause of action that, as originally pled, was barred under
section 1500.” Petro-Hunt, 105 Fed. Cl. at 45. Indeed, in so concluding, the court specifically
cited, as authority, the trial court’s opinion in Central Pines, which raised the supplemental
pleading argument eventually adopted by the Federal Circuit. See id. (citing Central Pines, 99
Fed. Cl. at 403-04).

       In its earlier opinion, this court went on to explain, in detail, why the trial court’s opinion
in Central Pines was distinguishable from this case, and it did so, importantly for our purposes,
based on a rationale that likewise distinguishes the Federal Circuit’s more recent opinion. Thus,
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this court noted that, unlike in Central Pines, the plaintiff here “filed a supplemental complaint
that added an entirely new cause of action based upon a takings that allegedly occurred seven
years after the filing of its original complaint.” Petro-Hunt, 105 Fed. Cl. at 45. Citing a host of
opinions, the court held that “a supplemental pleading that ‘requires proof of independent
operative facts peculiar to the transaction involved and constitutes a separate claim’ does not
relate back to the date the original complaint was filed for purposes of applying relevant statutes
of limitation.” Id. (quoting Blau v. Lamb, 191 F. Supp. 906, 906 (S.D.N.Y. 1961), rev’d on other
grounds, 314 F.2d 618 (2d Cir.), cert. denied, 375 U.S. 813 (1963)). It concluded that “[t]he
logic of these cases suggests that section 1500 ought not apply to the portion of a supplemental
complaint that raises a new claim that ‘requires proof independent operative facts’ if, at the time
the supplemental complaint is filed, no other suit involving that same claim is pending in another
court.” Petro-Hunt, 105 Fed. Cl. at 45. In support of this view, it noted that “plaintiff’s judicial
takings claim rests upon ‘independent operative facts’ that are not only unlike those in the first
two complaints it filed in this case, but also unlike those that were operative in the claims that it
originally pursued in the district court.” Id.

        This last point, in many ways, resonates the most here, and for several reasons. First, the
fundamental nature of the respective complaints here distinguishes them from those considered
in Central Pines. Contrary to defendant’s assertions, the latter case cannot be read to address
how section 1500 applies in every situation involving a supplemental complaint under RCFC
15(d), let alone in a situation like this, in which an entirely new claim arose out of actions that
post-date by years the filing of an initial complaint. The Federal Circuit did not consider
anything remotely like this in Central Pines, but instead dealt with a case where there were
nearly identical claims (even after the supplementation). Second, as this court has already noted,
Petro-Hunt, 105 Fed. Cl. at 45, given the unique elements of plaintiff’s “judicial takings” claim,
a persuasive argument can be made that even if section 1500 applies here, it would not lead to
the dismissal of that claim because the operative facts associated with that takings claim include
key facts (e.g., the opinions of the district court and the Fifth Circuit) that were neither pled nor
even implicated by plaintiff’s prior district court complaint. See Trusted Integration, 659 F.3d at
1168 (suggesting that the focus is on the “legally operative” facts); see also W. Mgmt., Inc. v.
United States, 2012 WL 6177111, at *3 n.3 (Fed. Cir. Dec. 12, 2012); U.S. Home Corp. v.
United States, 2012 WL 6582374 (Fed. Cl. Dec. 14, 2012). Finally, to the extent that res
judicata principles play a role in the analysis here, see, e.g., United States v. Tohono O’odham
Nation, 131 S. Ct. 1723, 1730 (2011); Trusted Integration, 659 F.3d at 1168-69, the court sees
no basis for concluding that the resolution of plaintiff’s district court case somehow would
preclude plaintiff’s “judicial takings” claim under any version of that doctrine. See id. at 1170
(the evidence version of the res judicata test is not met if the “evidence [in the suit before this
court] would be insufficient to establish the claims alleged in the district court complaint, and
vice versa”). While not determinative in its own right, this is yet another signal that defendant is
wrong. See id. at 1168-69.




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         The court has fully considered defendant’s other arguments and rejects them all.1 Based
on the foregoing, the court hereby DENIES defendant’s motion for reconsideration under RCFC
54(b) and 59(a)(1). The discovery schedule in this case remains in effect and will not be further
altered.

               IT IS SO ORDERED.



                                                             s/Francis M. Allegra
                                                             Francis M. Allegra
                                                             Judge




       1
          In its reply brief on its motion for reconsideration, defendant makes a statute of
limitations argument, based on 28 U.S.C. § 2501, predicated on the notion that plaintiff’s judicial
takings claim arose in 2004, when the Fifth Circuit rendered its first opinion in the district court
case. See Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 399 (5th Cir. 2004). But, this court
has already held that plaintiff’s “judicial takings claim rests upon the Fifth Circuit’s second
opinion,” which was rendered in 2007. Petro-Hunt, 105 Fed. Cl. at 45 (referencing Petro-Hunt,
L.L.C. v. United States, 2007 WL 715270 (5th Cir. Mar. 6, 2007)). In arguing that the latter
finding is wrong, defendant cites no intervening authority nor any other reason why this court
should depart from normal law-of-the-case considerations. See Matthews v. United States, 73
Fed. Cl. 524, 525 (2006) (reconsideration is “not intended, however, to give an ‘unhappy litigant
an additional chance to sway’ the court” (quoting Froudi v. United States, 22 Cl. Ct. 290, 300
(1991))). Accordingly, the court rejects this argument, as well.
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