In Re Addicks and Barker (Texas) Flood-Control Reservoirs v. United States
17-3000
| Fed. Cl. | Dec 8, 2017Background
- Over 153 takings claims were filed after Hurricane Harvey alleging Army Corps of Engineers caused upstream/downstream flooding; master docket In re Addicks and Barker, No. 17-3000L.
- On Nov. 13 and Nov. 20, 2017 the Court issued orders dividing cases into upstream and downstream sub-dockets, assigned judges, appointed lead plaintiffs' counsel, and set a pre-trial schedule.
- The Government moved on Dec. 1, 2017 to vacate the November 20 orders, arguing (inter alia) lack of compliance with RCFC 16(b), improper timing of RCFC 12 motions, problematic multi-judge assignment, undue discovery burden, and delay of class-certification.
- The Court recited a timeline showing parties had submitted position statements (Oct. 2–6), the Government proposed a schedule (Oct. 5), and the Court held hearings on Oct. 6 and Nov. 1 with active Government participation.
- The Court explained its management choices (separating upstream/downstream, assigning different judges for jurisdictional vs. merits discovery) as necessary for efficient adjudication and consistent with RCFC 1 and App. A.
- The Court offered alternatives (accelerated liability trial scheduling or other proposals) and denied the Government’s motion to vacate, directing any recommendations by Dec. 18, 2017.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Nov. 20 scheduling orders violated RCFC 16(b) by issuing without party consultation | Plaintiffs: Court consulted parties via written position statements and two hearings (Oct. 6, Nov. 1); consultations satisfied RCFC 16(b) | Gov: Parties had not yet conferred to propose a schedule, so orders violated RCFC 16(b) | Held: Court found consultation occurred and RCFC 16(b)(1)(B) satisfied; Government’s assertion inaccurate |
| Whether the schedule improperly delays disposition of RCFC 12 motions until after discovery | Plaintiffs: Jurisdictional and merits issues may require discovery; some 12(b) motions (esp. 12(b)(6)) may be intertwined with merits and appropriately deferred | Gov: Orders postpone 12 motions until after discovery, defeating purpose of timely Rule 12 adjudication | Held: Court explained differences between 12(b)(1) and 12(b)(6); schedule permits jurisdictional discovery and timely 12 filings (Amended Complaints by Jan 15; 12 motions by Feb 15); deferral can be proper when jurisdiction/merits intertwined |
| Whether assigning parts of the same case to multiple judges is unauthorized and risks inconsistent rulings | Plaintiffs: Functional allocation (jurisdictional discovery to one judge; merits/dispositive motions to another) is permitted under RCFC 40.1(b)/(c) and needed for efficiency | Gov: RCFCs contain no provision to transfer same case to more than one judge; multiple judges may produce inconsistent merits rulings | Held: Court relied on RCFC 40.1(b)/(c) and App. A to permit transfers and reassignments for efficient administration; separation was justified to avoid docket disruption |
| Whether the schedule improperly delays class-certification and forces unnecessary discovery costs | Plaintiffs: Class certification is premature; Supreme Court precedent shows discovery and liability development may be needed before certification | Gov: Orders indefinitely delay class-certification and force parties to incur discovery costs that might be unnecessary if 12 motions succeed | Held: Court found no indefinite delay; permissibly deferred certification until appropriate (citing Dukes and Comcast) and noted plaintiffs agreed to assume risk/costs of pursuing discovery |
Key Cases Cited
- Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23 (2012) (standards for physical takings inquiry)
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (class certification requires commonality capable of generating common answers)
- Comcast Corp. v. Behrend, 569 U.S. 27 (2013) (class certification under FRCP 23(b)(3) requires a proper damages model tied to legal theory)
- Greenlee Cty., Ariz. v. United States, 487 F.3d 871 (Fed. Cir. 2007) (class certification need not precede ruling on Rule 12 motions)
- Schweizer v. Trans Union Corp., 136 F.3d 233 (2d Cir. 1998) (Rule 23 does not prohibit merit-based Rule 12 or Rule 56 decisions before certification)