     In the United States Court of Federal Claims
                                           No. 14-924L
                                       Filed: July 29, 2015

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                                       *
                                       *
YURIY PRAKHIN,                         *                Jurisdiction;
                                       *                Motion to Dismiss,
      Plaintiff,                       *                    RCFC 12(b)(1);
                                       *                Statute of Limitations,
v.                                     *                    28 U.S.C. § 2501;
                                       *                Takings Clause,
THE UNITED STATES,                     *                    U.S. Const. amend. V.
                                       *
      Defendant.                       *
                                       *
                                       *
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Rachel L. Kaylie, Law Office of Yuriy Prakhin, New York, New York, Counsel for Plaintiff.

Carter F. Thurman, United States Department of Justice, Washington, D.C., Counsel for the
Government.

                             MEMORANDUM OPINION AND ORDER

BRADEN, Judge.

I.     RELEVANT FACTUAL BACKGROUND.1

       On December 19, 1995, Yuriy Prakhin purchased a home and the adjacent real property
located at 3857 Ocean View Avenue, Brooklyn, New York, 11224. Compl. ¶ 1. This property is
in Sea Gate, “a private, gated community in Brooklyn . . . . occup[ying] the western end of the
Coney Island peninsula,” and adjacent to the property at issue in Vaizburd v. United States, 57
Fed. Cl. 221, 222 (2003). Compl. ¶ 5.

       Prior to 1995, the Sea Gate Community private beach (“Sea Gate Beach”) and adjacent
public beach experienced “severe erosion.” Vaizburd, 57 Fed. Cl. at 222–23. This prompted the




       1
         The relevant facts discussed herein were derived from the September 29, 2014 Complaint
(“Compl.”) and attached Exhibits (“Pl. Exs. A–C”), and Vaizburd v. United States, 57 Fed. Cl. 221
(2003) (“Vaizburd”), attached as Court Exhibit A. Compl. ¶ 6 (Plaintiff “asks that this Court adopt
th[ose] relevant facts [in Vaizburd] as if enumerated at length herein”).
United States Army Corps of Engineers (“Corps”) to extend the “length and the bulk of the existing
groin” in order to replenish the beaches (“Coney Island Project”). Id. at 223.

        In January 1995, the Corps constructed an 860-foot rock groin and placed 3 million cubic
yards of sand on both beaches. Id. By January 1997, waterfront homeowners along Ocean View
Avenue began complaining of sand accretions that created a beach behind their homes as a result
of the Coney Island Project.2 Id. By August 1998, the sand behind the Ocean View Avenue homes
was “almost as wide as the Sea Gate Beach,” and by April 1999, the accretion was “wider than
most of Sea Gate Beach.” Id. Due to the “relatively fine” sand and the “long, unimpeded wind
approach to Ocean[ V]iew Avenue,” the wind is able to “march sand up from the beach, across the
bulkheads and houses, and into the neighborhood.” Id. at 225.

         In 1999, the Corps planned to move 20,000 cubic yards of sand from Gravesend Bay to
Sea Gate Beach, but the Vaizburd plaintiff and neighbors denied the Corps permission to access
the beach from their property.3 Id. at 224. In 2000, the City of New York performed a “similar
operation,” although it removed less sand than the Corps planned. Id. In October 2000, the Corps
transferred 100,000 cubic yards of sand from Gravesend Bay to Sea Gate Beach. Id. These
initiatives achieved only temporary results and were repeated “periodically,” but did not restore
the Ocean View Avenue homes to their prior condition. Id.

        In 2000, the Corps obtained congressional authorization for the Sea Gate Project. Pl. Resp.
Ex. A at 3 (Sea Gate Project informational slides). The Sea Gate Project was intended to solve the
problems of “[r]apid sand erosion in Sea Gate” and “[a]ccretion of sand along Gravesend Bay.”
Pl. Resp. Ex. A at 2. In 2004, the Corps completed a Limited Reevaluation Report of the Sea Gate
Project. Pl. Resp. Ex. E at 35 (Sea Gate Project Informational Slides). The record does not indicate
that any material events transpired over the next nine years.

        On October 1, 2004, the United States Court of Appeals for the Federal Circuit vacated the
trial court’s decision in Vaizburd, because the Government conceded, on appeal, that sand
accretion amounted to a taking, and remanded the case for a determination of sufficiency of
evidence as to the cost of removing sand on the property at issue. Vaizburd v. United States, 384
F.3d 1278, 128387 (Fed. Cir. 2004).

        In 2013, Congress enacted the Disaster Relief Appropriations Act of 2013 to fund the
construction of the Sea Gate Project. Disaster Relief Appropriations Act of 2013, Pub. L. No. 113-
2, 127 Stat. 4; Pl. Resp. Ex. E at 35 (Sea Gate Project Informational Slides). Thereafter, the Corps
performed a second Limited Reevaluation Report and planned to begin construction in Fall 2014.
Pl. Resp. Ex. E at 35 (Sea Gate Project Informational Slides).

       The Sea Gate Project will involve the construction of “T-groins” outside of Sea Gate Beach
to “help manage sediment movement and reduce erosion” on the beach. Pl. Resp. Ex. E at 33
(Corps’ “Sea Gate—Additional Information”). In addition, the Corps plans to move 150,000 cubic

       2
           The record does not indicate whether Mr. Prakhin complained of sand accretions by 1997.
       3
         The record does not indicate whether Mr. Prakhin denied the Corps permission to enter
his property.


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yards of sand from Gravesend Bay, i.e., the area behind Mr. Prakhin’s home, and Jamaica Bay
Federal Navigation Channel to the new T-groins. Pl. Resp. Ex. E at 22 (“Elected Officials Break
Ground On T-Groins To Prevent Beach Erosion In Seagate,” by Rachel Silberstein, February 16,
2015), 34 (Sea Gate Project Informational Slides).

II.     PROCEDURAL HISTORY.

       On September 29, 2014, Mr. Prakhin (“Plaintiff”) filed a Complaint in the United States
Court of Federal Claims, alleging that the sand that accreted on his property violated the Takings
Clause of the Fifth Amendment.4

        On December 15, 2014, the Government filed a Motion To Dismiss (“Gov’t Mot.”),
pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”).
On March 6, 2015, Plaintiff filed a Response (“Pl. Resp.”). On April 20, 2015, the Government
filed a Reply (“Gov’t Reply”).

III.    DISCUSSION.

        A.      Jurisdiction.

        The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28
U.S.C. § 1491, “to render judgment upon any claim against the United States founded either upon
the Constitution, or any Act of Congress or any regulation of an executive department, or upon
any express or implied contract with the United States, or for liquidated or unliquidated damages
in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, is “a
jurisdictional statute; it does not create any substantive right enforceable against the United States
for money damages . . . . [T]he Act merely confers jurisdiction upon [the United States Court of
Federal Claims] whenever the substantive right exists.” United States v. Testan, 424 U.S. 392,
398 (1976).

        Therefore, to pursue a substantive right under the Tucker Act, a plaintiff must identify and
plead an independent contractual relationship, Constitutional provision, federal statute, and/or
executive agency regulation that provides a substantive right to money damages. See
Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) (“[J]urisdiction under the Tucker Act
requires the litigant to identify a substantive right for money damages against the United States
separate from the Tucker Act[.]”); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.
2005) (en banc) (“The Tucker Act . . . does not create a substantive cause of action; . . . a plaintiff
must identify a separate source of substantive law that creates the right to money
damages. . . . [T]hat source must be ‘money-mandating.’”). Specifically, a plaintiff must
demonstrate that the source of substantive law upon which he relies “can fairly be interpreted as
mandating compensation by the Federal Government.” United States v. Mitchell, 463 U.S. 206,
216 (1983) (quoting Testan, 424 U.S. at 400). And, the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv.,
        4
         Plaintiff seeks a jury trial. Compl. at 1. But, the United States Court of Federal Claims
does not conduct jury trials. “In this court the judge, rather than a jury, is always the trier of fact.”
Persyn v. United States, 34 Fed. Cl. 187, 194 (1995).



                                                   3
846 F.2d 746, 748 (Fed. Cir. 1988) (“[O]nce the [trial] court’s subject matter jurisdiction [is] put
in question . . . . [the plaintiff] bears the burden of establishing subject matter jurisdiction by a
preponderance of the evidence.”).

       In this case, Plaintiff has stated a claim for money damages against the United States under
the Takings Clause of the Fifth Amendment of the Constitution. As such, the court has jurisdiction
to adjudicate Plaintiff’s claim.

        B.      Standard of Review for a Motion to Dismiss Pursuant to RCFC 12(b)(1).

        A challenge to the United States Court of Federal Claims’ “general power to adjudicate in
specific areas of substantive law . . . . is properly raised by a [Rule] 12(b)(1) motion.”
Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b)(1) (allowing
a party to assert, by motion, “lack of subject-matter jurisdiction”). When considering whether to
dismiss an action for lack of subject matter jurisdiction, the court is “obligated to assume all factual
allegations [of the complaint] to be true and to draw all reasonable inferences in plaintiff’s favor.”
Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). “If a motion to dismiss for lack of
subject matter jurisdiction . . . challenges the truth of the jurisdictional facts alleged in the
complaint, the district court may consider relevant evidence in order to resolve the factual dispute.”
Reynolds, 846 F.2d at 747.

        The United States Supreme Court has held that “to survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)); see also A & D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1157–
58 (Fed. Cir. 2014) (quoting Iqbal, 556 U.S. at 678) (“A claim is facially plausible when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable. If the plaintiff fails to include such allegations in his complaint, it is deficient.”)
(citation omitted).

        C.      The Government’s December 15, 2014 Motion To Dismiss.

                1.      The Government’s Argument.

        The Government argues that the court does not have subject matter jurisdiction to
adjudicate Plaintiff’s claim, because the relevant events stabilized more than six years before
Plaintiff filed his September 29, 2014 Complaint. Gov’t Mot. at 9; see also 28 U.S.C. § 2501
(“Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred
unless the petition thereon is filed within six years after such claim first accrues.”) (emphasis
added).

        According to the stabilization doctrine, accrual occurs when it is clear that “the gradual
process set into motion by the [G]overnment has effected a permanent taking, not when the process
has ceased or when the entire extent of the damage is determined.” Gov’t Reply at 3–4. A potential
plaintiff need not wait until “damages are complete and fully calculable” before filing suit. Gov’t
Reply at 4. Instead, his claim accrues when the “permanent nature” of the process is clear, “and
the extent of the damage is reasonably foreseeable.” Gov’t Reply at 4.



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        The Vaizburd court determined that a takings claim “accrued no later than December 31,
1995.” Gov’t Mot. at 1; see also Vaizburd, 57 Fed. Cl. at 230 (“[T]he court finds that the process
of accretion had sufficient impact . . . and was sufficiently noticeable and recurring to constitute a
taking, as of December 31, 1995.”). Plaintiff’s claim is based upon the same Coney Island Project
as in Vaizburd, and there is no alleged material difference regarding how the two plaintiffs’ homes
were affected. See Compl. ¶ 5. Therefore, the court should concur with the December 31, 1995
accrual date in Vaizburd and find Plaintiff’s claim time-barred, because the statute of limitations
expired on December 31, 2001—six years after December 31, 1995 accrual. Gov’t Mot. at 8.

        Alternatively, even if December 31, 1995 is not the accrual date, Plaintiff was aware of the
sand accretions more than six years prior to filing his September 29, 2014 Complaint. Gov’t Mot.
at 9. In 1999, the sand accretion was “wider than most of Sea Gate [B]each.” Vaizburd, 57 Fed.
Cl. at 223. By April 2003, the beach behind Plaintiff’s home had grown from “a thin but noticeable
margin of sand” to “about four hundred feet wide,” and the blowing sand had become problematic.
Gov’t Mot. at 9. Thus, by 2003 Plaintiff knew or should have known of the permanence of the
sand accumulating on his property—eleven years prior to the September 29, 2014 Complaint.
Gov’t Mot. at 9–10.

        And, the justifiable uncertainty doctrine does not apply here, because it has been applied
only in cases when the Government made specific promises. Gov’t Reply at 5–6. Although there
is a plan to provide a long-term solution to the continual erosion of Sea Gate Beach, the Sea Gate
Project “has never included a plan, proposal, or promise to remove sand from any properties,
including Plaintiff’s.” Gov’t Reply at 6. Because the existing sand accumulation is the source of
the alleged taking—not its future additional accumulation—Plaintiff cannot invoke justifiable
uncertainty. Gov’t Reply 6–8.

                2.      Plaintiff’s Response.

       Plaintiff responds that the stabilization doctrine and justifiable uncertainty doctrine
combine to delay the accrual of his claim. Pl. Resp. at 7. Because the Government has made
promises to mitigate damage caused by the sand accretion, Plaintiff has been unable to determine
the permanence of the accretion, and reliance on these promises delayed filing. Pl. Resp. at 8.

        The justifiable uncertainty doctrine provides that the Government’s promises to mitigate
damages delay accrual of a takings claim. The United States Court of Appeals for the Federal
Circuit has held that Government promises to mitigate damage to a plaintiff’s beach by proposing
a sand transfer plant that would restore the flow of a river and restore the beach to its prior condition
“destroyed any predictability of the extent of damage.” Applegate v. United States, 25 F.3d 1579,
1583 (Fed. Cir. 1994). Therefore, the plaintiff was justifiably uncertain as to whether there would
be permanent physical taking. Id.; see also Etchegoinberry v. United States, 114 Fed. Cl. 437, 478
(2013) (“[J]ustifiable uncertainty doctrine builds upon the stabilization doctrine and holds that
[G]overnment promises to mitigate damages to a plaintiff’s property, which otherwise would
constitute a taking, can warrant application of the stabilization doctrine and delay the accrual of a
taking.”).

       The Sea Gate Project received congressional approval in 2000 but without funding. Pl.
Resp. Ex. E at 35. In 2004, a “limited Revaluation Report” was issued. Pl. Resp. Ex. E at 35. In


                                                   5
2013, Congress authorized funding. Pl. Resp. Ex. E at 35. In February 2015, construction began,
with an expected completion date of 2016. Pl. Resp. at 8–11. All of these Government promises
created a justifiable uncertainty as to whether its actions would resolve the issue of the taking. Pl.
Resp. at 11–12. As such, the permanence of the Government’s action is not settled and will not
be settled until at least the completion of the Sea Gate Project in 2016. Pl. Resp. at 12. Therefore,
the statute of limitations has not yet run.

               3.      The Court’s Resolution.

        The Takings Clause of the Fifth Amendment to the United States Constitution provides
that “private property [shall not] be taken for public use, without just compensation.” U.S. CONST.
amend. V. Whether a compensable taking has occurred requires the court to resolve “a question
of law based on factual underpinnings.” Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir.
2001) (citations omitted).

        As a matter of law, a potential plaintiff must file a claim within six years of accrual for the
United States Court of Federal Claims to have jurisdiction. See 28 U.S.C § 2501 (“Every claim of
which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition
thereon is filed within six years after such claim first accrues.”). Because this case involves a
waiver of the United States’ sovereign immunity, the six-year statute of limitations must be
construed strictly. See Navajo Nation v. United States, 631 F.3d 1268, 1273 (Fed. Cir. 2011)
(citing John R. Sand & Gravel Co. v. United States 552 U.S. 130, 136–39 (2008) (“This six-year
limitations period is jurisdictional and may not be waived.”)).

         Generally, “a claim ‘first accrues’ when all the events have occurred which fix the alleged
liability of the defendant and entitle the plaintiff to institute an action.” Hopland Band of Pomo
Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988); see also Boling v. United States,
220 F.3d 1365, 1370 (2000) (“In general, a takings claim accrues when all events which fix the
[G]overnment’s alleged liability have occurred and the plaintiff was or should have been aware of
their existence.”) (internal quotation marks omitted). Cases involving a gradual physical process
such as sand accretion, however, require a more holistic factual examination in order to determine
when accrual occurs. See Boling, 220 F.3d at 1370 (“[I]n cases where the [G]overnment leaves
the taking of property to a gradual physical process, rather than utilizing the traditional
condemnation procedure, determining the exact moment of claim accrual is difficult.”).

        But, the United States Supreme Court has held that the condition alleged to be a taking
must be “stabilized” in order to determine the date of a Fifth Amendment takings claim accrual.
See United States. v. Dickenson, 331 U.S. 745, 749 (1947) (“[T]here is nothing in legal doctrine[]
to preclude the law from meeting such a process by postponing suit until the situation becomes
stabilized.”). A situation stabilizes when the nature of the taking becomes evident, damages are
reasonably foreseeable, and the potential plaintiff knew or should have known that the claim
existed. See Mildenberger v. United States, 643 F.3d 938, 946 (Fed. Cir. 2011) (“The obligation
to sue arises once the permanent nature of the Government action is evident[.]”); see also Boling,
220 F.3d at 1371 (Fed. Cir. 2000) (“[O]nce it is clear that the process has resulted in a permanent
taking and the extent of the damage is reasonably foreseeable, the claim accrues and the statute of
limitations begins to run.”).



                                                  6
        The United States Court of Federal Claims’ statute of limitations is not subject to tolling.
John R. Sand & Gravel, 552 U.S. at 134. But, the United States Court of Appeals for the Federal
Circuit has recognized that delaying accrual of a claim is not equivalent to tolling the statute of
limitations. See Mildenberger, 643 F.3d at 947–48 (outlining the history of the stabilization and
justifiable uncertainty doctrines and recognizing their continued application after John R. Sand &
Gravel). Thus, even though the court has an obligation to consider a jurisdictional statute of
limitations claim sua sponte, it has determined that Plaintiff’s justifiable uncertainty doctrine
argument does not toll the statute of limitations; instead, it delays accrual of its Fifth Amendment
takings claim. See id.

        A potential plaintiff is not required to wait until the process is complete or the damages are
fully known to file suit. See Banks v. United States, 741 F.3d 1268, 1281 (Fed. Cir. 2014) (“[T]he
statute of limitations under the Tucker Act only begins to run when it becomes clear that the
gradual process set into motion by the [G]overnment has effected a permanent taking, not when
the process has ceased or when the entire extent of the damage is determined.”) (internal quotation
marks omitted); see also Boling, 220 F.3d at 1371 (“The contention that Dickinson stands for the
proposition that the filing of a lawsuit can be postponed until the full extent of the damage is known
has been soundly rejected.”); see also Columbia Basin Orchard v. United States, 116 Ct. Cl. 348,
357 (1950) (“[W]e do not think the [United States] Supreme Court, in the Dickinson case, meant
to hold that plaintiff was entitled to wait until any possibility of further damage had been
removed.”).

        The United States Court of Federal Claims has determined that the Coney Island Project
caused the accumulation of sand behind the Ocean View Avenue houses. See Vaizburd, 57 Fed.
Cl. at 223 (finding that there is a “natural scour along the Coney Island shore” that carries sand
from Sea Gate Beach into Gravesend Bay, where it “accumulates behind the houses on Ocean
View Avenue”). Because of the “relatively fine” sand and the “long, unimpeded wind approach
to Ocean[ V]iew Avenue,” the wind is able to “march sand up from the beach, across the bulkheads
and houses, and into the neighborhood.” Id. at 225. The sand enters the yards, houses, and street
of Ocean View Avenue residents. Id. In response, “most of [the] neighbors, have [constructed]
different means to keep sand from getting into their backyards.” Id. Even so, the Vaizburd
plaintiff’s backyard filled with up to three feet of sand, which was typical of other homes in the
neighborhood. Id.

         In this case, the September 29, 2015 Complaint alleges that accretion of sand initially
caused by the Coney Island Project has not stabilized, because Plaintiff does not “know when or
if his land [will] be permanently destroyed, and the extent of the damage to [his] property is not
yet foreseeable.” Pl. Resp. at 8. But, this is not the standard for stabilization. Stabilization does
not occur once the situation is completely settled, but instead when the environmental forces have
a substantial, evident, and permanent effect on a plaintiff’s property. See Boling, 220 F.3d at 1371
(“Properly understood, stabilization as discussed in Dickinson is not deferred until the progressive
environmental damage stops, but occurs when the environmental forces have substantially and
permanently invaded the private property such that the permanent nature of the taking is evident
and the extent of the damage is reasonably foreseeable.”). In Vaizburd, the United States Court of
Federal Claims held that by the impact of the accretion process was sufficiently noticeable by
December 31, 1995 to constitute a taking. See Vaizburd, 57 Fed. Cl. at 240 (“[T]he process of
accretion had sufficient impact, i.e., impeded the plaintiff’s access to the water, and was


                                                  7
sufficiently noticeable and recurring to constitute a taking, as of December 31, 1995.”). For these
reasons, the court has determined that the sand accretion on Plaintiff’s property attributed to the
Coney Island Project was stabilized by December 31, 1995, unless sufficient evidence to the
contrary is proffered.

                         a.      Plaintiff States A Facially Plausible Claim Regarding
                                 Justifiable Uncertainty.

        The justifiable uncertainty doctrine, however, delays the accrual of a takings claim when
the Government promises to mitigate the damage caused by a taking, so that a plaintiff is justifiably
uncertain as to the extent and permanence of the damage. See Mildenberger, 643 F.3d at 947 (“As
explained in Banks v. United States, [314 F.3d 1304, 1309 (Fed. Cir. 2003),] the Government’s
promises to mitigate damages caused by a continuous physical process delays accrual of a takings
claim when the claimant demonstrates that the predictability [and permanence] of the extent of the
damage to the [claimant’s] land was made justifiably uncertain by the Corps’ mitigation efforts.”)
(internal quotation marks omitted); see also Applegate, 25 F.3d at 1583 (Government promises to
build a sand treatment plant that would stop the continuing erosion and restore the land previously
eroded were sufficient evidence to allow the plaintiff to invoke the justifiable uncertainty
doctrine.); see also Banks v. United States, 314 F.3d 1304, 1310 (Fed. Cir. 2003) (Ongoing
Government promises to mitigate and actual mitigation efforts rendered Plaintiff justifiably
uncertain as to the “predictability and permanence” of the extent of the alleged takings damage.).

         Here, Plaintiff argues that the Sea Gate Project created justifiable uncertainty that delayed
accrual of its Fifth Amendment takings claim. Pl. Resp. at 7–8. Construing all inferences in the
Plaintiff’s favor and accepting all of the facts alleged in the September 29, 2014 Complaint and
March 6, 2015 Response5 as true, the court finds that Plaintiff’s reliance on the doctrine of
unjustifiable certainty is “plausible on its face.” See Iqbal, 556 U.S. at 678 (“[T]o survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”). The Government’s contention that the Sea Gate Project
would not mitigate the alleged taking, but instead prevent further accretion, is a disputed factual
issue. Therefore, the court must resolve these factual issues before deciding whether the statute of
limitations has run. See Green v. United States, 586 F. App’x 586, 587 (Fed. Cir. 2014), cert.
denied, 135 S. Ct. 1905 (2015) (“[I]n resolving disputes regarding jurisdictional facts, a trial court
may look beyond the pleadings and inquire into the jurisdictional facts that are disputed.”). As
such, Plaintiff is entitled to conduct limited jurisdictional discovery to proffer evidence as to the
nature of the alleged Government’s promises and the actual effect that the Sea Gate Project will
have on mitigation, and whether or not Plaintiff had complained about the shifting of the sands
around the same time as the Vaizburd case.6

       5
         The stabilization doctrine first was raised in the Government’s December 15, 2015
Motion To Dismiss. As such, Plaintiff did not raise the issue in his September 29, 2014 Complaint,
and instead rebutted the Government’s stabilization doctrine argument in his March 6, 2015
Response.
       6
         Plaintiff also contends that res judicata applies to the issues raised in Vaizburd, because
there was no statute of limitations issue in Vaizburd. Pl. Resp. at 13. This argument faild, because
res judicata requires that the litigants in both matters be the same or share privity, which is not


                                                  8
IV.    CONCLUSION.

        For these reasons, the Government’s July 22, 2013 Motion To Dismiss is denied. See
RCFC 12(b)(1). The parties are ordered to submit a proposed scheduling order regarding
jurisdictional discovery within 30 days.

       IT IS SO ORDERED.


                                                       s/ Susan G. Braden
                                                       SUSAN G. BRADEN,
                                                       Judge.




present in this case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 1278
(Fed. Cir. 2014), cert. denied, 135 S. Ct. 1401 (2015) (“[T]hree preconditions must be met: (1) an
identity of parties (or their privies); (2) there has been an earlier final judgment on the merits of a
claim; and (3) the second claim is based on the same set of transactional facts as the first.”).


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