Chance v. Zinke
898 F.3d 1025
10th Cir.2018Background
- Merrill Chance is the surface owner of Osage County land above minerals held in trust for the Osage Nation; BIA/Osage Agency manages subterranean leases and must approve assignments and drilling permits.
- In 1963 Eason obtained an oil lease under Chance’s land; in 1991 Eason assigned the lease to Great Southwestern Exploration, Inc. (GSE) and BIA approved new drilling permits; wells have operated since the 1960s–1990s.
- In October 2016 Chance sued the government and GSE, alleging the Osage Agency violated NEPA by failing to perform site-specific environmental-impact statements and by failing to notify predecessors-in-interest; he also asserted BIA-wide, long-running noncompliance and concealment.
- The government moved to dismiss under Rule 12(b)(1) as untimely under 28 U.S.C. § 2401(a); GSE moved under Rule 12(b)(6). The district court treated § 2401(a) as jurisdictional, dismissed Chance’s claims against the government for lack of subject-matter jurisdiction, and dismissed the claims against GSE (alternatively declining supplemental jurisdiction).
- On appeal the Tenth Circuit held § 2401(a) is not jurisdictional, reversed the dismissal for lack of jurisdiction, but held Chance’s claims untimely (not entitled to equitable tolling) and instructed the district court to dismiss those claims for failure to state a claim; the court affirmed dismissal of claims against GSE by declining supplemental jurisdiction.
Issues
| Issue | Chance’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Is § 2401(a)’s six-year filing deadline jurisdictional (precluding equitable tolling)? | §2401(a) should be nonjurisdictional and subject to equitable tolling; Irwin presumption supports tolling. | §2401(a) should be jurisdictional like §2501 based on shared legislative history and origin in the Tucker Act. | §2401(a) is nonjurisdictional; district court erred labeling it jurisdictional. |
| If nonjurisdictional, is Chance entitled to equitable tolling such that his 2016 suit (for 1991 acts) is timely? | Governmental concealment and failure to notify predecessors justified tolling. | Even if nonjurisdictional, Chance lacked diligence and therefore tolling is not warranted. | Denied tolling: Chance did not plead diligence; claims untimely and must be dismissed for failure to state a claim. |
| Could the district court resolve merits without first establishing jurisdiction? | N/A — plaintiff argued merits should be considered if jurisdictional bar removed. | Government urged affirmance on merits regardless of jurisdictional label. | Court refused to assume hypothetical jurisdiction; jurisdictional question must be resolved first. |
| What happens to plaintiff’s claims against GSE if government claims fail? | GSE liability depends on successful challenge to government approvals. | If government claims fail, district court should dismiss/surrender supplemental jurisdiction over GSE claims. | Affirmed dismissal of GSE claims; district court permissibly declined supplemental jurisdiction. |
Key Cases Cited
- Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145 (warning against profligate use of the word “jurisdiction”)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (courts cannot assume hypothetical jurisdiction to decide merits)
- John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (holding §2501 jurisdictional due to stare decisis)
- United States v. Kwai Fun Wong, 135 S. Ct. 1625 (most time bars are nonjurisdictional; §2401(b) not jurisdictional)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (statutory requirements are jurisdictional only if Congress clearly says so)
- Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (presumption that statutes of limitations for suits against government are tollable)
- City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156 (district courts have discretion to decline supplemental jurisdiction)
- Jones v. Bock, 549 U.S. 199 (if complaint shows claim is time-barred, dismissal for failure to state a claim is appropriate)
- Herr v. U.S. Forest Serv., 803 F.3d 809 (6th Cir. holding §2401(a) nonjurisdictional; persuasive analysis adopted)
- Butler v. Kempthorne, 532 F.3d 1108 (10th Cir. standard of review for 12(b)(1) dismissal)