Banks v. United States, 2014 U.S. App. LEXIS 1689

Background

Lakefront owners (37 plaintiffs) sued the U.S. Army Corps of Engineers under the Fifth Amendment, alleging the St. Joseph Harbor jetties interrupted littoral drift and caused progressive, irreversible erosion of their property.
Jetties were built and extended through 1903; major refitting (sheet piling) occurred 1950–1989. Corps mitigation (beach nourishment and later rock placement) ran intermittently from 1976 onward.
Corps issued technical reports in 1958, 1973, 1996, 1997, and 1999 assessing erosion and mitigation; plaintiffs relied on the 1996–1999 reports to show permanency was uncertain until then.
Plaintiffs filed in 1999; CFC dismissed as time-barred (claims accrued earlier). Federal Circuit reversed in Banks II (2003), holding accrual delayed until the 1996, 1997, and 1999 Reports.
On remand the CFC retried liability/damages, later again dismissed for lack of jurisdiction holding claims accrued by 1952; plaintiffs appealed. Federal Circuit reversed, finding the CFC violated the prior mandate and clearly erred about accrual knowledge before 1952.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the CFC was bound by this court’s Banks II mandate on accrual date	Banks: Banks II decided accrual occurred with 1996–1999 Reports; mandate precludes relitigation	U.S.: Banks II did not decide whether accrual occurred before 1952; CFC could revisit accrual based on trial factfinding	Held: Banks II’s mandate decided that mitigation delayed accrual; CFC violated mandate by relitigating accrual absent a valid exception
Whether subsequent trial evidence was "new" enough to excuse deviation from mandate	Banks: Post-remand evidence was cumulative, not substantially different; mandate stands	U.S.: The 1958 Study and fuller trial record supported earlier accrual and justified reconsideration	Held: Evidence was cumulative of record before appellate decision; not a valid exception to mandate
Whether plaintiffs knew or should have known of a compensable, permanent taking by 1952 (accrual/ statute of limitations)	Banks: Claim accrual was suspended by uncertainty and mitigation efforts; plaintiffs could not reasonably know damage was permanent until the 1996–1999 Reports	U.S.: Publicly documented erosion made the takings claim reasonably knowable well before 1952	Held: CFC’s finding that plaintiffs knew or should have known by 1952 was clearly erroneous; accrual suspension applied until the later Corps reports
Whether the CFC’s alternative merits findings were final and appealable	Banks: CFC’s alternative merits discussion was nonfinal and should not bar remand action; CFC may reconsider merits consistent with mandate	U.S.: (implicit) CFC’s merits discussion could resolve some issues if jurisdictional ruling reversed	Held: Alternative merits discussion was not a final, appealable judgment; remand required and prior law-of-the-case remains binding

Key Cases Cited

Banks v. United States, 314 F.3d 1304 (Fed. Cir. 2003) (accrual delayed until Corps’ 1996, 1997, 1999 Reports)
Applegate v. United States, 25 F.3d 1579 (Fed. Cir. 1994) (stabilization doctrine and accrual for gradual takings)
Boling v. United States, 220 F.3d 1365 (Fed. Cir. 2000) (accrual suspension test: claimant must not have known or should not have known)
Dickinson v. United States, 331 U.S. 745 (1947) (stabilization doctrine for gradual physical takings)
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988) (law-of-the-case/mandate principles)
Laitram Corp. v. NEC Corp., 115 F.3d 947 (Fed. Cir. 1997) (appellate interpretation of mandate reviewed de novo)
Briggs v. Pennsylvania R. Co., 334 U.S. 304 (1948) (inferior court must follow appellate mandate)