      In the United States Court of Federal Claims
                                     No. 07-650L
                              (Filed November 5, 2013)

*************************
                               *
THOMAS H. ASKINS, JR., et al., *               Motion to strike class allegations;
                               *               motion to dismiss; American Pipe class
                               *               action tolling; anti-stacking rule;
             Plaintiffs,       *               statute of limitations; avigation
                               *               easement takings claims.
         v.                    *
                               *
THE UNITED STATES,             *
                               *
             Defendant.        *
                               *
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      Martin E. Wolf, Gordon & Wolf, Chtd., Towson, Maryland, for plaintiffs.
Richard S. Gordon, Gordon & Wolf, Chtd., of Towson, Maryland, Charles R.
Hofheimer, Jack E. Ferrebee, Kristen D. Hofheimer, Hofheimer/Ferrebee, P.C., all of
Virginia Beach, Virginia, Thomas Shuttleworth, Stephen C. Swain, and Charles
Lustig, Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C., all of Virginia Beach,
Virginia, Kieron F. Quinn, of Baltimore, Maryland, of counsel.

       Joshua A. Doan, Environment & Natural Resources Division, Department of
Justice, with whom was Ignacia S. Moreno, Assistant Attorney General, and Alison
D. Garner, all of Washington, D.C., for defendant. Robert J. Smith, Naval Litigation
Office, Washington, D.C., of counsel.

                    MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

       This case has been brought as a class action by five couples who own property
in Virginia Beach or Chesapeake, Virginia, in the vicinity of Naval Air Station
Oceana or Naval Auxiliary Landing Field Fentress. Class Action Compl. for Inverse
Condemnation (Compl.) ¶¶ 1-2, 4-5. Plaintiffs allege that on July 1, 1999, the
increased operation of F/A-18 C/D fighter jets at these naval facilities resulted in the
taking of their property without payment of just compensation. Id. ¶¶ 5, 21-25,
29-33. The Court has previously ruled that the individual claims of the plaintiffs in
this case, and in a companion case that was not brought as a class action, see
Abernethy v. United States, 108 Fed. Cl. 183 (2012), were timely filed due to class
action tolling of the statute of limitations period. Askins v. United States, No.
07-650L, 2012 WL 6117950, at *1 (Fed. Cl. Dec. 10, 2012).

       The government has moved to strike, or alternatively to dismiss, the class
allegations due to a lack of subject-matter jurisdiction, under Rules 12(f) and 12(b)(1)
of the Rules of the United States Court of Federal Claims (RCFC). Def.’s Mot. to
Strike at 1-2. The government argues that the tolling of the statute of limitations
due to the filing of a prior class action lawsuit in which class certification was denied
does not allow new class claims to be brought by putative members of the
previously-rejected class. For the reasons that follow, the government’s motion to
strike the class allegations in plaintiffs’ complaint is GRANTED. 1

                                 I.   BACKGROUND

       In the mid-1990s, the Department of Defense Base Closure and Realignment
Commission decided to close a naval air station in Florida. Compl. ¶ 27. Nine fleet
squadrons of F/A-18 C/D fighter planes (approximately 156 aircraft) were relocated
to Naval Air Station (NAS) Oceana in Virginia Beach, Virginia, starting in 1998 and
ending in June 1999. Id. ¶¶ 28-29. These new fighter planes, which are twice as
loud as F-14s, cause significantly more noise and vibration than aircraft previously
flown from this station. Id. ¶ 31. Plaintiffs in this case are individuals who own
property in Virginia Beach or Chesapeake, Virginia, in the vicinity of NAS Oceana or
Naval Auxiliary Landing Field (NALF) Fentress, and who allege that on July 1,
1999, the increased operation of F/A-18 C/D fighter jets at these naval facilities
resulted in the taking of their property without payment of just compensation.
Compl. ¶¶ 1, 5, 21-25, 29-33. The property interests taken under such
circumstances have come to be known as “avigation easements.” See, e.g., Herring v.
United States, 142 Ct. Cl. 695, 697 (1958). The five couples (owning six properties)
who are plaintiffs in this matter have brought this action as a class action.

       This lawsuit was filed on September 5, 2007, and would ordinarily have been
dismissed because it was brought more than six years after the claims accrued on
July 1, 1999. See 28 U.S.C. § 2501. 2 But on April 5, 2001, nine plaintiffs from


1  As the Court finds that it is appropriate to strike class allegations when it is
evident that a class action may not be maintained, see Pilgrim v. Universal Health
Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011); 1 Joseph M. McLaughlin, McLaughlin
on Class Actions § 3:4 (9th ed.), the motion to dismiss these allegations is DENIED as
MOOT.

2  Section 2501 provides, in relevant part, that “[e]very claim of which the United
States Court of Federal Claims has jurisdiction shall be barred unless the petition

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Virginia Beach and Chesapeake filed a class action complaint alleging that the
United States had taken their property, based on the very same relocation of F/A-18
C/D fighter planes at issue in this case. See Testwuide v. United States, 56 Fed. Cl.
755, 756-57 (2003). On the same day that their complaint was filed, the Testwuide
plaintiffs filed a motion for class certification, which was denied in an opinion dated
June 17, 2003 --- two years and seventy-three days later. See id. at 756, 759, 765-67.
The filing of the Testwuide class action complaint tolled the running of the six-year
limitations period for the putative members of the proposed classes until class
certification was denied, under the class action tolling doctrine established by the
Supreme Court in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 553-54
(1974), and extended to our court by the Federal Circuit in Bright v. United States,
603 F.3d 1273, 1284-90 (Fed. Cir. 2010). See Abernethy, 108 Fed. Cl. at 187-89.
Taking this suspension period into account, the Askins plaintiffs filed their complaint
with seven days to spare. Askins, 2012 WL 6117950, at *1. The question for the
Court in the present matter is whether a new class action may take advantage of this
tolling doctrine. As will be seen below, the answer to this question requires a close
look at the decision to deny class certification in Testwuide.

       The Testwuide plaintiffs sought to certify two classes, based on noise exposure
contours calculated by a Navy contractor to reflect the day-night average sound
levels (DNL), as measured in decibels (dB), experienced by residents of properties
near NAS Oceana and NALF Fentress. See 56 Fed. Cl. at 758-59. One class was to
consist of owners of properties that were in a DNL noise zone of 80 dB or higher after
the arrival of the F/A-18s, and whose noise zone increased by at least 5 dB DNL
because of the relocation of the jets. Id. at 759. The second proposed class was
owners of properties whose noise zone was 65-79 dB DNL after the jets were
relocated, and also increased by at least 5 dB DNL because of the relocation. Id.

       The judge in Testwuide began her consideration of class certification by
reciting our court’s Rule 23, which had recently been revised to reflect the criteria
from Rule 23 of the Federal Rules of Civil Procedure previously borrowed by our
predecessor for use in opt-in class actions. Id. at 760-61 (quoting RCFC 23 (May 1,
2002) and citing Quinault Allottee Ass’n v. United States, 197 Ct. Cl. 134, 140-41
(1972)). These criteria for certifying a class action have commonly been distilled, for
the sake of convenience, into five elements: (1) numerosity; (2) commonality;
(3) typicality; (4) adequacy; and (5) superiority. Curry v. United States, 81 Fed. Cl.
328, 332 (2008) (citing Barnes v. United States, 68 Fed. Cl. 492, 494 (2005)). After
noting the lack of precedent for certifying a class action in an avigation easement
takings case, the judge described the parties’ positions on class certification.
Testwuide, 56 Fed. Cl. at 761-62. The plaintiffs contended that the changes in noise

thereon is filed within six years after such claim first accrues.” 28 U.S.C. § 2501
(2006).

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levels experienced by the class members could be the basis for both determining that
property interests were taken and valuing these interests, while the government
maintained that the impact of higher noise on enjoyment and value of residential
property must be determined separately for each parcel. Id.

       The development of avigation easement takings jurisprudence was next
considered. From the cases following United States v. Causby, 328 U.S. 256 (1946),
three determinative factors had developed: that the offending flights flew directly
over the affected property, flew at heights below the relevant navigable airspace, and
substantially (and directly) interfered with enjoyment and use of the property.
Testwuide, 56 Fed. Cl. at 763-64 (citing, inter alia, Brown v. United States, 73 F.3d
1100, 1103 (Fed. Cir. 1996)). The judge recognized that “courts have acknowledged
that noise and vibrations have replaced physical encumbrance as the primary
complaint of claimants seeking compensation,” id. at 764 (citing Argent v. United
States, 124 F.3d 1277, 1280 (Fed. Cir. 1997)), and noted that two binding precedents
departed from a requirement that all three Causby factors be satisfied: Branning v.
United States, 228 Ct. Cl. 240, 242, 257 (1981), in which the Court of Claims held that
a taking could, under certain conditions, result from flights that were not below the
navigable airspace; and Argent v. United States, 124 F.3d 1277, 1284 (Fed. Cir. 1997),
in which the Federal Circuit determined that a taking could be based on flights that
were not directly over the subject property. See Testwuide, 56 Fed. Cl. at 764-65.

        Since the relevant case law allowed for takings liability when a substantial
interference with use and enjoyment of property was occasioned by either flights
occurring directly overhead or flights at an altitude lower than the navigable
airspace height, the judge in Testwuide was troubled that the proposed classes were
defined only in terms of interference with use and enjoyment. Id. at 765. She
found “it would be a case of first impression” for flights that were neither overhead
nor below the navigable airspace to result in the taking of an avigation easement,
and thus facts relating to the height and path of the jets might be needed to
determine if any owner’s property interests were taken. Id. She concluded “it
would be entirely inappropriate for the court to grant plaintiffs’ motion for class
certification because the inquiry of whether the class could be certified based on noise
and home ownership alone is inextricably fused with the legal question of what
plaintiffs must establish in order to prove a taking.” Id.

       The judge went on to describe several possible groups into which proposed
class members might have to be divided --- based on whether flights were directly
overhead and whether they were below the navigable airspace level --- and explained
that differing standards might apply in determining which, if any, of the groups were
sufficiently burdened to justify a recovery. Id. at 765-66. The results of this
inquiry, it was explained, “may differ based on the specific factual circumstances and
variables affecting each group that go to the root of the question of whether a taking

                                          -4-
occurred,” making plaintiffs’ proposed methodology for determining the class “not
viable in view of the existing precedent.” Id. at 766. The issue of class certification
was then certified for interlocutory appeal. Testwuide, 56 Fed. Cl. at 766-67 (citing
28 U.S.C. § 1292(d)(2)). The Federal Circuit denied the Testwuide plaintiffs’
petition for permission to appeal the ruling. Testwuide v. United States, 73 F. App’x
395, 396 (Fed. Cir. 2003).

      In a previous order in this matter, the Court reserved judgment on the issue of
whether a rule against using class action tolling to “stack” successive class actions
would bar plaintiffs’ class action allegations. Askins, 2012 WL 6117950, at *1. The
Court noted that while the stacking issue arose in the course of briefing and
argument, the motion to dismiss under consideration at that time did not present the
appropriate vehicle for resolving the issue. Id. The pending motion to strike
properly presents this issue for the Court’s determination.

                                 II.   DISCUSSION

        In American Pipe, the Supreme Court determined that “the commencement of
a class action suspends the applicable statute of limitations as to all asserted
members of the class who would have been parties had the suit been permitted to
continue as a class action.” 414 U.S. at 554. This class action tolling rule was
adopted in order to preserve “the efficiency and economy of litigation which is a
principal purpose of the [class action] procedure.” Id. at 553. Without such tolling,
before the limitations period ended “[p]otential class members would be induced to
file protective motions to intervene or to join in the event that a class was later found
unsuitable.” Id. To avoid this “needless duplication of motions,” id. at 554, and
thereby “to insure effectuation of the purposes of litigative efficiency and economy,”
id. at 556, the Supreme Court suspended the running of the limitation period during
the pendency of the class certification question, to allow putative class members to
intervene in the lawsuit after the limitations period would otherwise have expired.

       In a subsequent case, the Supreme Court expanded the applicability of
American Pipe tolling to cases in which the purported class members sought to file
separate, individual actions following the denial of class certification in another
lawsuit. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353-54 (1983).
Otherwise, a party who would prefer to bring his own lawsuit rather than intervene
in the previously-filed one, were class certification to be denied, “would have every
incentive to file a separate action prior to the expiration of his own period of
limitations,” resulting in “a needless multiplicity of actions” of the sort that American
Pipe and the class action procedure “were designed to avoid.” Id. at 351. The class
action tolling rule suspends the running of the limitations period for putative class
members as a means to an end --- and that end is the efficiency of the class action
procedure. See Bright, 603 F.3d at 1285, 1287-88. This tolling rule allows the

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initial class action lawsuit filed concerning a particular controversy to proceed
without the court being flooded with motions or complaints that would prove
unnecessary were the class action certified. The rule is not designed to provide class
actions with a special immunity from statutes of limitations, as would result were
subsequent class actions to be filed during the extended limitations period once the
suspension is lifted, thereby tolling again the statute of limitations. In such a
circumstance, a third bite at the certification apple could then follow if the second is
unsatisfying, indefinitely prolonging the applicable limitations period.

        With this in mind, the Circuits which have considered the question of
“stacking” or “piggybacking” class actions have generally concluded that a
subsequent class action cannot take advantage of the class action tolling period when
certification had previously been denied. See, e.g., Basch v. Ground Round, Inc., 139
F.3d 6, 11-12 (1st Cir. 1998); Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir. 1994);
Andrews v. Orr, 851 F.2d 146, 149 (6th Cir. 1988); Korwek v. Hunt, 827 F.2d 874,
878-79 (2d Cir. 1987); Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d
1334, 1351 (5th Cir. 1985). 3 A proposed class is not allowed to relitigate the
question when there has been a “definitive determination of the inappropriateness of
class certification.” Korwek, 827 F.2d at 879.

       The only recognized exceptions to this anti-stacking rule have been in the
limited circumstances when the prior failure of class certification was due to
deficiencies with the class representatives. See Yang v. Odom, 392 F.3d 97, 108-12
(3d Cir. 2004) (tolling allowed for class claims previously brought by inadequate and
atypical lead plaintiffs); McKowan Lowe & Co. v. Jasmine, Ltd., 295 F.3d 380, 383,
388-89 (3d Cir. 2002) (tolling allowed where lead plaintiff’s claims were atypical and
he was an inadequate representative); Catholic Soc. Servs., Inc. v. INS, 232 F.3d
1139, 1142-49 (9th Cir. 2000) (en banc) (tolling allowed when previously-approved
classes were narrowed by a Supreme Court decision on the ripeness of certain claims
and a statutory change to the definition of who was eligible to challenge a particular
policy). In these cases, the denials of class certification were “unrelated to the
appropriateness of the substantive claims for certification.” McKowan, 295 F.3d at
389. Of the five elements for class certification, see Curry, 81 Fed. Cl. at 332, denials
that could toll class claims would center on typicality or adequacy, as opposed to
numerosity, commonality, or superiority. See, e.g., Alidina v. Penton Media, Inc.,
143 F. Supp. 2d 363, 365 n.1 (S.D.N.Y. 2001) (allowing tolling when class certification
was denied in original suit because proposed lead plaintiffs were inadequate and
atypical of the class); In re Quarterdeck Office Sys., Inc. Sec. Litig., No. CV-92-3970,
1994 WL 374452, *5 (C.D. Cal. Mar. 24, 1994) (allowing tolling when proposed class
representatives in prior suit were inadequate).


3   No binding precedent exists, as the Federal Circuit has yet to address this issue.

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       The plaintiffs have not been able to identify any precedent for applying
American Pipe tolling to class claims when class certification had been denied in a
prior suit due to problems of a class nature. One case that they highlight, Yang v.
Odom, held that “tolling will not apply to sequential class actions where the earlier
denial of certification was based on a Rule 23 defect in the class itself.” Yang, 392
F.3d at 104; see also id. at 108, 110-11 (disallowing tolling when certification was
denied on numerosity ground). In the other case they discuss, Popoola v.
MD-Individual Practice Ass’n, 230 F.R.D. 424 (D. Md. 2005), a district court had
denied class certification without prejudice while ordering a new complaint to be filed
that clarified the class definition for purposes of certification, and also allowed a new
named plaintiff to join as the representative party. Id. at 429-30. Although the
prior rejection of class certification was based in part on commonality problems, it
also rested on a lack of typicality, see id. at 433, and the new plaintiff had replaced
one who lacked standing to sue, id. at 428-30. In any event, a court’s decision to
revisit or reconsider a tentative denial of class certification in a particular case while
that case is pending does not appear relevant to the question of how the denial of
class certification in a previous case should affect a subsequent class action.

        Without helpful precedents, the plaintiffs attempt to shoehorn Testwuide to fit
into those they have. They maintain that the denial of class certification was not a
“definitive ruling” on the suitability of the claims for class treatment, as the denial
was due to the “proposed methodology for creating classes.” Pls.’ Mem. of Law in
Opp’n to Def.’s Mot. (Pls.’ Opp’n) at 5. The plaintiffs opine that “[d]enying class
certification on the basis that the proposed methodology for identifying the class is
inadequate is tantamount to denying the class because the class representative is
inadequate or some other non-substantive reason.” Id. at 5-6. Why this should be
so is not really explained. When the named representatives are found to be
inadequate or to have claims that are not typical of those of the purported class, this
is no reflection on the ability of different plaintiffs to prosecute the class claims.

        But, as we saw above, the ruling in Testwuide had nothing to do with
deficiencies in the named plaintiffs --- the particular circumstances of Carol and
Robert Testwuide or any of the other eight named plaintiffs were not even discussed.
See Testwuide, 56 Fed. Cl. at 763-66. The problem with the proposed classes was
that they, in the opinion of the judge presiding over the matter at that time,
neglected to take into account factual differences that she felt would be relevant to
the determination of whether avigation easements were taken. Id. at 765-66.
Regardless of whether one agrees with that analysis of the relevant precedents, the
decision was clearly based on “the appropriateness of the substantive claims for
certification,” McKowan, 295 F.3d at 389, and did not depend on the identities of the
named plaintiffs. Although the decision did not explicitly state that the denial of
certification was due to either a problem with commonality (as common questions did
not predominate over factual differences concerning the height and location of the

                                           -7-
jets’ flight paths) or superiority (due to the difficulties in managing classes that
might need to be subdivided on the basis of these factual differences), it is clear that
these are the reasons the judge found class certification “entirely inappropriate” and
the classes for which certification was sought “not viable.” Testwuide, 56 Fed. Cl. at
765-66. Since “the earlier denial of certification was based on a Rule 23 defect in the
class itself,” Yang, 392 F.3d at 104, class action tolling cannot be used to allow the
question of class certification to be relitigated.

        The plaintiffs also argue that the Testwuide decision was not definitive, but
instead “tantamount to a ‘conditional’ denial,” Pls.’ Opp’n at 7, because the judge
acknowledged “there is substantial ground for difference of opinion on the issue of
class certification,” Testwuide, 56 Fed. Cl. at 767. She also noted that “[t]he Federal
Circuit may deem it appropriate to expand existing precedent or apply existing
precedent in such a manner as to render plaintiffs’ proposed method of class
certification viable,” and accordingly certified the matter for interlocutory appeal.
Id. But the fact that the judge sought immediate guidance from the Circuit on the
issue does not make the decision to deny certification any less definitive from her
perspective. See id. (noting “that a trial court may certify a question for
interlocutory appeal while continuing to find that its own resolution of that question
was correct”). To the contrary, a trial judge would hardly bother an appellate
tribunal with a request to review a tentative decision.

        Finally, the plaintiffs maintain that the Testwuide decision should not be
considered definitive, because a court may “redefine the class at any point during the
litigation.” Pls.’ Opp’n at 7. But the power of a judge to consider a revised class
definition exists no matter the reason that certification was denied, including
problems with numerosity, commonality, or superiority. Yet no precedent has been
found allowing American Pipe tolling to preserve class claims when class-based
problems were the reason for denying certification. And whether the court in
Testwuide could have certified classes based on the location and height of jet flights
relative to class members’ property is beside the point, as no such certification was
sought prior to that case’s conclusion. Indeed, the classes proposed by the plaintiffs,
although sorted and separated based on proximity to either NAS Oceana or NALF
Fentress, continue to ignore the height and location of the flight patterns and rest
solely on increased noise. See Compl. ¶ 5. Whether the Testwuide court could have
certified different classes (that are not even proposed in this litigation) does not make
the denial of certification any less definitive.

       Class action tolling is not designed to allow putative class members to
relitigate a prior determination that class claims were not suitable for certification.
The government’s motion to strike the class allegations from the complaint is
GRANTED.


                                           -8-
                               III.   CONCLUSION

       For the foregoing reasons, class action tolling cannot be used to extend the
statute of limitations for the class claims that the plaintiffs seek to litigate.
Defendant’s motion to strike the class allegations from the complaint is GRANTED.
The government’s motion in the alternative, to dismiss the class claims, is thus moot
and is DENIED accordingly. The class allegations contained in paragraphs four
through twelve of the complaint are hereby stricken as beyond our court’s
jurisdiction.

IT IS SO ORDERED.


                                       s/ Victor J. Wolski
                                       VICTOR J. WOLSKI
                                       Judge




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