David A. HERR; Pamela F. Herr, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, et al., Defendants-Appellees, SWC, LLC, et al., Intervenors.
No. 14-2381
United States Court of Appeals, Sixth Circuit.
Oct. 9, 2015.
Argued: Aug. 4, 2015.
803 F.3d 809
KEITH, Circuit Judge, dissenting.
DISSENT
Because I believe that it is not prudent for a court to act before it determines that it has subject-matter jurisdiction, I respectfully dissent.
If we lack jurisdiction to review the Rule, then we lack jurisdiction to grant a stay. See Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 77-78 (D.C.Cir.1984) (holding that a district court did not have jurisdiction to review a rule or issue a writ of mandamus because of a special review statute that assigned judicial review to the courts of appeals); see also Greater Detroit Recovery Auth. v. EPA, 916 F.2d 317, 321-24 (6th Cir.1990) (holding that a district court was without subject-matter jurisdiction and, therefore, did not have the authority to award attorneys’ fees because a special review statute gave the courts of appeals exclusive jurisdiction).
One of the issues in this case is whether this court has exclusive jurisdiction to review the Rule in the first instance. We can enjoin implementation of the Rule if we determine that we have jurisdiction. But until that question is answered, our subject-matter jurisdiction is in doubt, and I do not believe we should stay implementation of the Clean Water Rule.
Because subject-matter jurisdiction is a threshold determination, I do not reach the merits of the petitioners’ motion.
OPINION
SUTTON, Circuit Judge.
David and Pamela Herr bought waterfront property on Crooked Lake in the Upper Peninsula of Michigan and planned to use their gas-powered motorboat on it. That plan was dashed when the U.S. Forest Service threatened to enforce a regulation that bans non-electric motorboats from the ninety-five percent of the lake that falls within a National Wilderness Area. The Herrs responded with this lawsuit, seeking to enjoin enforcement of the regulation on the ground that the relevant federal statute preserves their state-law property right to use all of the lake. The district court held that a six-year time bar on the action was jurisdictional and that the Herrs had waited too long to file this lawsuit. We reverse based in large part on a Supreme Court decision handed down after the district court‘s decision. See United States v. Kwai Fun Wong, — U.S. —, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015).
I.
Nestled in old-growth forest 120 miles from Marquette, Crooked Lake is three miles long and is one of thirty-six interconnected glacial lakes that offer all manner of activities for those who appreciate the outdoors. Most of Crooked Lake rests in the federally protected Sylvania Wilderness Area, which the U.S. Forest Service oversees under the Michigan Wilderness Act of 1987, 101 Stat. 1274. A National Wilderness Area like Sylvania “preserv[es] the wilderness character of [an] area” by minimizing human impact.
That rule would seem to bar gas-powered motorboats from Crooked Lake, and for the most part that is true. See
No one protests the use of these motorboats on the part of the lake outside the wilderness. But inside the protected zone, the Forest Service says, the landowners, like the general public, must abide by all restrictions on motorized boats. One restriction, found in the Forest Service‘s 2006 forest-management plan for the Sylvania Wilderness, bans motorboats from the wilderness portion of Crooked Lake except for those powered by electric motors with less than four horsepower. U.S. Forest Serv., Final Environmental Impact Statement for 2006 Ottawa National Forest Plan 3-48 (2006). The agency may punish violations of the requirement with a fine of up to $5,000 or a prison sentence of up to six months (or both). See
When this restriction went into effect, David and Pamela Herr, a married couple, were occasional visitors to Crooked Lake, having vacationed there at various times since 1979. In September 2010, they became landowners, buying two of Crooked Lake‘s waterfront lots. One reason the
At first no problems arose after the Herrs bought the property. “Each summer from 2010-2012,” the couple bought “a pass from the Forest Service ... to use the Forest Service boat landing on Crooked Lake” as lake access for “their gas-powered motorboat.” Id. They used “the entire surface of Crooked Lake” during that time, and the Forest Service never stopped them. Id.
Things changed in 2013. The Forest Service informed the Herrs by letter that local “Forest Service personnel [would start] fully enforc[ing]” the motorboat restrictions against them (and others) “within the wilderness portion of Crooked Lake.” R. 4-5 at 2. Until this letter, so far as the pleadings show, the Forest Service had not enforced the 2007 forest order against private landowners.
In May 2014, the Herrs filed this lawsuit under the Administrative Procedure Act to enjoin the Forest Service from enforcing the motorboat restriction against them. See
II.
The Herrs’ appeal raises two questions: (1) Does the statute of limitations (
A.
Jurisdiction. For the last decade, the Supreme Court has been on a mission to rein in profligate uses of “jurisdiction,” a word with “many, too many, meanings.” Arbaugh v. Y & H Corp., 546 U.S. 500, 510, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). The meaning that counts here, and the one the Court has become disciplined about distinguishing from others, is subject-matter jurisdiction. Properly understood, subject-matter jurisdiction turns on whether a federal court has “statutory or constitutional power to adjudicate the case” before it. Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The stakes of the inquiry are high. In the absence of subject-matter jurisdiction, a federal court must dismiss the lawsuit—no matter how far along the litigation has progressed (including to the last-available appeal), no matter whether the parties for-
Kwai Fun Wong, decided after the district court‘s decision in this case, applied this clear-statement rule to a neighboring statute of limitations that, like
In ruling that the statute of limitations in
It is tempting to leave it at that. If Kwai Fun Wong establishes that
The apparent contextual clue suggested by the sibling pairing of these statutes of limitations is misleading. The codification of two provisions next to each other does not necessarily mean that they were enacted together or for that matter that they share common roots. In this instance, subsection (b) comes from the Federal Tort Claims Act, § 420, 60 Stat. 812, 845 (1946), while subsection (a) comes from the Tucker Act, § 1, 24 Stat. 505, 505 (1887). The potential inference created by the codified pairing thus is not a real inference. We do not “infer[] that Congress, in revising and consolidating the laws, intended to change their effect, unless such intention is clearly expressed.” Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 227 & n. 8, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957); cf. Wachovia Bank v. Schmidt, 546 U.S. 303, 314-15, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006). Section 2401 contains no such indication. Even so, that does not alter our ultimate conclusion. It means only that a potential additional reason for treating subsection (b) as non-jurisdictional does not exist. That does not undermine the many other ways in which the Court‘s cases, including Kwai Fun Wong, indicate that this statute of limitations does not limit our jurisdiction over this case.
One other complication requires a longer (a few pages longer) digression, covering the history of the Big and Little Tucker Acts, two other Supreme Court decisions, and the role of stare decisis. First the history. In 1887, Congress passed the Tucker Act, which waived some of the federal government‘s sovereign immunity, authorizing a range of private-party lawsuits against the government for money damages and other relief. Tucker Act, §§ 1-2, 24 Stat. at 505; see Dep‘t of Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999). Before then, Congress had permitted only a few money-damages lawsuits against the federal government, all in the Court of Claims. See Act of Mar. 3, 1863, § 2, 12 Stat. 765, 765; Langford v. United States, 101 U.S. 341, 343-44, 25 L.Ed. 1010 (1879). And those lawsuits had been governed by an 1863 statute of limitations, which provided that “every claim against the United States ... shall be forever barred unless” filed “within six years after the claim first accrues.” Act of Mar. 3, 1863, § 10, 12 Stat. at 767.
The Tucker Act expanded the federal courts’ jurisdiction over money-damages lawsuits against the federal government in two ways. A provision now known as the Big Tucker Act enlarged the Court of Claims’ jurisdiction. See Tucker Act, § 1, 24 Stat. at 505; Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc in relevant part). And a provision now called the Little Tucker Act authorized the district and circuit courts to hear any lawsuit that could be brought in the Court of Claims as long as the amount in controversy did not exceed $10,000. See Tucker Act, § 2, 24 Stat. at 505; United States v. Bormes, — U.S. —, 133 S.Ct. 12, 15, 184 L.Ed.2d 317 (2012). Governing both provisions, Big and Little, was a new six-year statute of limitations, which provided that “no suit against the Government of the United States, shall be allowed under this act unless the same shall have been brought within six years after the right accrued for which the claim is made.” Tucker Act, § 1, 24 Stat. at 505. This 1887 provision did not repeal the 1863 statute of limitations, meaning that both laws governed lawsuits in the Court of Claims unless they were “absolutely irreconcilable.” United States v. Greathouse, 166 U.S. 601, 605, 17 S.Ct. 701, 41 L.Ed. 1130 (1897).
To the Forest Service, this history shows that
The key link is John R. Sand, and it does not provide the necessary foundation for this argument. The decision does not establish that other statutes of limitations sharing language and features of the John R. Sand statute of limitations must be treated as jurisdictional on stare decisis grounds. Otherwise, several cases resolved during the Court‘s ten-year push to straighten this area out would have come out differently. To use the most salient example, John R. Sand held that a limitations statute saying that late claims against the United States “shall be barred” created a jurisdictional limitation.
The decision stands only for the modest proposition that, if the Court has already definitively interpreted a statute (there
A critical feature of stare decisis—perhaps the salient feature of it—is that it requires courts to preserve error. All three explanations for the doctrine—stability, predictability, and ease of judicial administration—have work to do in preserving mistakes. Only the last one—allowing judges to work less hard—plays a role when it comes to correctly decided prior decisions. Much as these explanations may justify the doctrine in both settings, they disappear when parties seek to extend precedent—especially flawed precedent. Stare decisis may require courts to give respect to prior mistaken decisions. It may even require courts to cover prior mistakes with bubble wrap and lock them in safe places. But it does not require courts to extend them.
What of the fact that
What of the canon that directs courts to construe waivers of sovereign immunity narrowly? Does that trump the canon that insists on a clear statement before courts will treat limitations on causes of action as jurisdictional? Kwai Fun Wong (and Irwin before it) rejected the same argument. The Court in both cases “declined to count time bars as jurisdictional merely because they condition waivers of immunity.” Kwai Fun Wong, 135 S.Ct. at 1637. It instead treated them as it would any other statute of limitations. So do we.
Regardless, the Forest Service responds, McDonald v. Resor, 34 F.3d 1068, 1994 WL 419551, at *2 (6th Cir.1994) (unpublished order), indicates that
After today‘s decision, it is true, there is a 4-3 circuit split on the point, with four of the circuits favoring the gov-
B.
Statute of limitations. That a limitations period is not jurisdictional does not mean it is not mandatory. We must determine (1) whether the Herrs filed this claim within the limitations period and if not (2) whether they are entitled to equitable tolling.
Here is the timeline: The Herrs rented property on the lake at various times since 1979; the agency rule at issue went into effect in 2007; the Herrs bought their lakefront property in 2010; and they filed this lawsuit in 2014. The statute creates a six-year limitations period, making the start of the six-year clock the dispositive issue. If the time period began running in 2007 when the Forest Service promulgated this regulation, the statute required the Herrs to file the lawsuit within the next six years—by 2013. If the time period began running when they purchased their property, this 2014 lawsuit comes well within the six-year limitations period.
The limitations period in
To file a lawsuit under the Administrative Procedure Act, parties must satisfy two requirements. They must know or have reason to know that the challenged agency action caused them to suffer a “legal wrong” or “adversely affected or aggrieved” them “within the meaning of a relevant statute.”
In their complaint, the Herrs allege that the Forest Service‘s 2007 forest order invaded their state-law property right to use their gas-powered motorboat on all of Crooked Lake, a right that section 5 of the Michigan Wilderness Act protects. Both parties agree that the 2007 forest order constitutes final agency action. And both appear to agree that the deprivation of a property right would “aggrieve[]” the Herrs “within the meaning of” section 5, a provision that protects private property rights from abrogation by the Forest Service. See
September 2010. That is when the Herrs purchased their waterfront property on Crooked Lake. The Herrs allege that their property right “to use the entire surface” of Crooked Lake “ar[ose], by operation of [Michigan] law, as an incident to [their] ownership of property adjoining the banks” of the lake. R. 4 at 5. If that is correct, they had no property right to use all of Crooked Lake until they owned lots abutting the lake. The Herrs thus could not have become “aggrieved” by the Forest Service‘s invasion of that property right until they became property owners on the lake—until they purchased their waterfront real estate in September 2010. Only at that point could the Herrs meet both requirements to bring this lawsuit under the APA by pleading final agency action and an injury to their rights under the Michigan Wilderness Act. Only at that point did their “right of action” under the APA “accrue[].”
The Forest Service tries to counter this conclusion in several ways. It argues that a right of action under the APA accrues upon final agency action regardless of whether that action aggrieved the plaintiff. But that contradicts the text of the statute and Supreme Court precedent to boot. Only “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute,”
Some courts, it is true, have suggested that an APA claim “first accrues on the date of the final agency action.” Hardin v. Jackson, 625 F.3d 739, 743 (D.C.Cir.2010); see, e.g., Latin Ams. for Soc. & Econ. Dev. v. Adm‘r of the Fed. Highway Admin., 756 F.3d 447, 464 (6th Cir.2014). But these cases show why we don‘t read precedents like statutes. These cases all involved settings in which the right of action happened to accrue at the same time that final agency action occurred, because
Southwest Williamson County Community Ass‘n v. Slater, 173 F.3d 1033 (6th Cir.1999), is not to the contrary. It held that the limitations period for challenging an agency‘s environmental assessments started to run when final agency action occurred even though the plaintiff-association did not come into existence until later. Id. at 1036. The reason, however, is that the association did not allege harms to itself as an organization, cf. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982); it sought relief on behalf of its members, see Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Nat‘l Wildlife Fed‘n v. Hodel, 839 F.2d 694, 704 n. 7 (D.C.Cir.1988). Nothing in the case suggests that any member first became aggrieved after, rather than when, final agency action occurred.
Even if a claimant needs to suffer an injury to bring an APA challenge, the Forest Service maintains that the Herrs sustained an injury when it issued the order in 2007. Because the Herrs have boated on Crooked Lake since the late 1970s through vacation rentals, the Service argues, they had a recreational interest that the 2007 forest order infringed. Yes and no. Yes, the boating restriction harmed the couple‘s recreational interests in 2007 and perhaps might have given them a right of action under the APA at that time. But no, this right of action did not accrue at that time. A “right of action,” as understood when Congress enacted
Different legal wrongs give rise to different rights of action. See Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 13, 71 S.Ct. 534, 95 L.Ed. 702 (1951); Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 321, 47 S.Ct. 600, 71 L.Ed. 1069 (1927); Union Pac. Ry. Co. v. Wyler, 158 U.S. 285, 291-92, 15 S.Ct. 877, 39 L.Ed. 983 (1895). That is so even if the different legal wrongs stem from the same order. See 1A C.J.S. Actions § 189; 1 Am.Jur.2d Actions § 76. The upshot is this: Even if the Herrs had some right of action to remedy some legal wrong related to their recreational interests in 2007, they could not have had this right of action to remedy this legal wrong—the infringement of a property right in violation of the Michigan Wilderness Act—until they obtained that property right in 2010.
Property law says otherwise. Once a right of action accrues, it becomes a “piece” of intangible personal property called a “chose in action.” Sprint Commc‘ns Co. v. APCC Servs., Inc., 554 U.S. 269, 275, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008). Choses of action to enforce property rights do not, as a general matter, automatically transfer when the underlying property changes hands. See, e.g., Peters v. Bowman, 98 U.S. 56, 58-59, 25 L.Ed. 91 (1878) (right to enforce covenant does not run with land); Ginsberg v. Austin, 968 F.2d 1198, 1201 (Fed.Cir.1992) (right to recover outstanding rent payments does not run with land); In re Nucorp Energy Sec. Litig., 772 F.2d 1486, 1490 (9th Cir.1985) (right of action under Rule 10b-5 does not automatically transfer when security is sold); see also Restatement (Second) of Contracts § 317 (1981); Restatement (First) of Property § 552 (1944). No doubt, one may assign a chose in action to another party, see Sprint, 554 U.S. at 275-77, 128 S.Ct. 2531, but that requires the assignor to “manifest an intention to transfer the right” to the assignee, Restatement (Second) of Contracts, supra, § 324; see Restatement (First) of Property, supra, § 552 cmt. c. No such intention appears in this record. The Herrs’ deed says only that they acquired the “premises” of their lots from the prior owner. R. 4-1 at 2.
Nor does
If the transfer of property alone permits new APA challenges arising from ownership of that property, the Service warns, agency regulations will never be safe from attack. That is not true in one sense. As just shown, Congress knows how to make statutes of limitations run against current owners and “predecessors in interest.” It simply chose not to do so here.
That argues much too much in another sense. A federal regulation that makes it six years without being contested does not enter a promised land free from legal challenge. Regulated parties may always assail a regulation as exceeding the agency‘s statutory authority in enforcement proceedings against them. See NLRB Union v. Fed. Labor Relations Auth., 834 F.2d 191, 195 (D.C.Cir.1987); Functional Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C.Cir.1958); see also Wind River, 946 F.2d at 714 (collecting cases). That is true of old and new regulations. See Horne v. Dep‘t of Agric., — U.S. —, 135 S.Ct. 2419, 2424-25, 192 L.Ed.2d 388 (2015) (regulatory regime dating back to 1937); Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 163, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007) (regulation promulgated in 1975). Recall that the Forest Service has threatened criminal action against the Herrs. Does anyone really think that the Herrs would not be allowed to challenge the Forest Service‘s administrative authority to put them in jail for six months or fine them $5,000 based on its interpretation of this statute? See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); cf. Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 729-36 (6th Cir.2013) (Sutton, J., concurring). That is a steep climb. Any such theory of repose is a mirage in still another sense. Regulated parties may always petition an agency to reconsider a longstanding rule and then appeal the denial of that petition (as the denial counts as final agency action).
Our decision adds only a modest wrinkle to this regime. When a party first becomes aggrieved by a regulation that exceeds an agency‘s statutory authority more than six years after the regulation was promulgated, that party may challenge the regulation without waiting for enforcement proceedings. That makes sense, as courts “normally do not require plaintiffs to bet the farm ... by taking the violative action before testing the validity of the law.” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 490-91, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) (quotations omitted).
Even if the Herrs filed their complaint within
Any effort to exhaust in this case, moreover, would be futile. Courts may excuse exhaustion provisions when the agency “predetermined the issue before” the plaintiff filed the lawsuit. McCarthy v. Madigan, 503 U.S. 140, 148, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). Courts have discussed the applicability of that principle under
For these reasons, we reverse and remand for further proceedings consistent with this opinion.
JEFFREY S. SUTTON
UNITED STATES CIRCUIT JUDGE
UNITED STATES of America, Plaintiff-Appellee, v. Roger Lee ANDREWS, Defendant-Appellant.
No. 14-2045
United States Court of Appeals, Sixth Circuit.
Oct. 16, 2015.