 United States Court of Appeals for the Federal Circuit

                                         05-1104


                 HARVEY DUMARCE, KENNETH ERVIN DUMARCE,
                COLLEEN RENVILLE DUMARCE, PAMELA RENVILLE,
                        and DENNIS L. DUMARCE, SR.,

                                                       Plaintiffs-Appellees,

                                            v.



                    DIRK KEMPTHORNE, Secretary of the Interior,
                        DEPARTMENT OF THE INTERIOR,
                             and UNITED STATES,

                                                       Defendants-Appellants.



        David P. Graham, Oppenheimer Wolff & Donnelly LLP, of Minneapolis,
Minnesota, filed a petition for rehearing en banc for plaintiffs-appellees. With him on the
petition was David A. Prange.

       Kathryn E. Kovacs, Attorney, Appellate Section, Environment & Natural
Resources Division, United States Department of Justice, of Washington, DC, filed a
response to the petition for defendants-appellants. With her on the response was Sue
Ellen Wooldridge, Assistant Attorney General.

Appealed from: United States District Court for the District of South Dakota

Judge Charles B. Kornmann
      United States Court of Appeals for the Federal Circuit
                                        2005-1104

                 HARVEY DUMARCE, KENNETH ERVIN DUMARCE,
                COLLEEN RENVILLE DUMARCE, PAMELA RENVILLE,
                        and DENNIS L. DUMARCE, SR.,

                                                        Plaintiffs-Appellees,

                                             v.


                     DIRK KEMPTHORNE, Secretary of the Interior,
                         DEPARTMENT OF THE INTERIOR,
                              and UNITED STATES,

                                                        Defendants-Appellants.


                      ON PETITION FOR REHEARING EN BANC

Before MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, RADER, SCHALL,
BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges.

                                        ORDER

       A petition for rehearing en banc was filed by the Appellees, and a response

thereto was invited by the court and filed by the Appellants. The matter was referred

first as petition for panel rehearing to the panel that heard the appeal, and thereafter the

petition for rehearing en banc and response were referred to the circuit judges who are

authorized to request a poll whether to rehear the appeal en banc. A poll was

requested, taken, and failed.

       Upon consideration thereof,

       IT IS ORDERED THAT:

       (1) The petition for rehearing is denied.

       (2) The petition for rehearing en banc is denied.
       (3) The mandate of the court will issue on October 11, 2006.

       GAJARSA, Circuit Judge, dissents in a separate opinion, in which NEWMAN,

Circuit Judge, joins.



                                               FOR THE COURT


_Oct 4_2006__                                  _s/Jan Horbaly___
     Date                                      Jan Horbaly
                                               Clerk



cc:    David P. Graham, Esq.
       Kathryn E. Kovacs, Esq.




2005-1104                              2
US COURT OF APPEALS FOR THE FEDERAL CIRCUIT


                                       2005-1104



                 HARVEY DUMARCE, KENNETH ERVIN DUMARCE,
                COLLEEN RENVILLE DUMARCE, PAMELA RENVILLE,
                        and DENNIS L. DUMARCE, SR.,

                                                               Plaintiffs-Appellees.

                                            v.

                 P. LYNN SCARLETT, Acting Secretary of the Interior,
                        DEPARTMENT OF THE INTERIOR,
                                     and
                              UNITED STATES,

                                                               Defendants-Appellants.




GAJARSA, Circuit Judge, with whom Circuit Judge NEWMAN joins, dissents from the
denial of en banc hearing.


       I must dissent from the failure of this court to review this matter en banc. I

believe that the panel's decision reversing the district court's judgment in this case

merits reconsideration en banc in light of the Supreme Court's recent decision in Jones

v. Flowers, 126 S. Ct. 1708 (2006). The due process principles announced in Jones

suggest that the notice provided by the government to the plaintiffs in this case was

constitutionally inadequate.   If the notice failed the requirements of due process, it

certainly also violated the government's fiduciary duty to inform DuMarce of all the facts

giving rise to her cause of action. Violation of that fiduciary duty, in turn, requires the
equitable tolling of the statute of limitations. See Menominee Tribe of Indians v. United

States, 726 F.2d 718, 721 (Fed. Cir. 1984).

        In Jones, the Supreme Court notes the long-settled principle that notice of a

deprivation "must be such as one desirous of actually informing" the recipient "might

reasonably adopt to accomplish it," and must take "due regard for the practicalities and

peculiarities" of the individual circumstances. Mullane v. Cent. Hanover Bank & Trust

Co., 339 U.S. 306, 315 (1950). Jones addresses whether one particular "circumstance

and condition"—knowledge by the state that its initial attempt to provide notice of a

property forfeiture has failed—acts to vary the constitutionally required notice. Jones,

126 S. Ct. at 1714.      It holds that such knowledge does increase the notice due,

requiring the government to take enhanced measures to provide notice. Id. at

1718.

        Dumarce's case, like Jones's, involves a property forfeiture. The question is

whether the notice provided to DuMarce was constitutionally adequate in light of the

"circumstances and conditions" in which it was delivered. I believe that it was not, and

that the principles of Jones required us to reconsider DuMarce's case en banc.

        The government's notice to DuMarce in this case stated simply that "[p]art of [her

father's] land interests in the Sisseton Reservation are subject to Pub. L. 98-513 . . . . In

addition, if the decedent's interest in a parcel of land amounts to less than 2 ½ acres,

then such interest escheats to the Tribe. . . .       Therefore, as set forth above, the

decedent's respective interests . . . shall escheat to the United States."

        Few lay people would understand the drastic import of the legalism "escheat."

One enterprising enough to consult a common dictionary in 1987 would have found the



                                             2
2005-1104
following unilluminating definition: "1: escheated property 2 a: the reversion of lands in

English feudal law to the lord of the fee when there are no heirs capable of inheriting

under the original grant b: the reversion of property to the crown in England or to the

state in the U.S. when there are no legal heirs."        Webster's Ninth New Collegiate

Dictionary at 424 (1985).

       Nothing in the notice or in the definition of "escheat" makes clear to the recipient

the critical fact that the federal government will take her land without compensation. It is

the fact of noncompensation that gives rise to DuMarce's takings claim and is therefore

the relevant fact in determining when her cause of action accrued. It is arguable, in my

judgment, whether the government's notice to DuMarce was sufficient under any

"circumstances and conditions." It seems clear to me under the principles of Jones that

such a notice is insufficient where, as here, the relevant "circumstance and condition" is

the fiduciary relationship between the government and the recipient.

       In Jones, the Supreme Court emphasizes that the amount and nature of notice

required by due process must take into account "unique information about an intended

recipient regardless of whether a statutory scheme is reasonably calculated to provide

notice in the ordinary case."     Jones, 126 S. Ct. at 1716.       A fiduciary relationship

between the government and the intended recipient certainly constitutes such "unique

information"—especially in light of other relationships that have been consistently held

to increase the government's notice obligations.        Where, for example, the notice

recipient is a ward of the state (such as a prisoner), the government has been held to a

higher standard of notice. See, e.g., Weng v. United States, 137 F.3d 709 (2d Cir.

1998) (holding that where the recipient is a federal prisoner, the government is required



                                            3
2005-1104
to provide him with actual notice of a deprivation); United States v. Woodall, 12 F.3d

791, 794-95 (8th Cir. 1993) (same).       It would be a strange result indeed if the

government's role as prison warden increases its duty to provide adequate notice, but

its role as trustee to Native Americans does not.

       In short, I believe that the Supreme Court's decision in Jones requires us to

conclude that the notice of forfeiture provided to DuMarce was constitutionally

inadequate in the context of the "practicalities and peculiarities" of her situation—

namely, the government's fiduciary duty to her as trustee. Id. A notice that was even

arguably inadequate as a matter of minimum constitutional requirements could not

possibly satisfy the government's independent fiduciary duty to inform DuMarce of all

the facts giving rise to her cause of action. The government's failure to satisfy its

fiduciary duty renders DuMarce's ignorance of the relevant facts excusable, and acts to

toll the applicable statute of limitations. See Menominee Tribe of Indians, 726 F.2d at

721.

       For these reasons, I believe the court should consider this matter en banc.




                                           4
2005-1104
