mr her and i think we're ready to proceed welcome to the court thank you your honor and may it please the court congress wrote in twenty eight u s c twenty five zero one that every claim of which first two thousand and two under this court's decisions and caldwell and barclay judge miller is going to say that you are bar any time from opting in any time past the six year limit she's going to say that's because of the american and pipe case is an up didn't clause past the six year limit controlled by the spur s suit language of american pipe absolutely not your honor and let me explain why first the question is what jurisdiction congress said which was turned on commen when the suit was commence which was within that six year period of time on june twelfth the claims that were presented were those again a fight in the petition and everyone admits judge miller as well as the government that that initial original says is that the claims need to be presented with in that six year period of time and they need to be presented in a petition so we would lose what we would suggest that the supreme court has said if we look at that petition what claims were presented in that petition if the class they re adopted it after american pipe was settled law and everyone knew that when you have a class action that really adoption netted something in it not that i know of your honor i don't know when it clearly and where did we add in the early filing requirement within a reasonable time early in the process then they are not the spurious class action referred to by american pipe where people would wait until even the case was decided before they would often write correct when the court discusses spurious class actions your honor it's in that reference to footnote nineteen in american pipe in just a stewart's decision what they're talking about is the three classes of class actions true hybrid say that the error judge miller made was in classifying all opt ins as spurious class actions when in fact they can't be spurious class actions after the amendment of rule twenty three precisely and that's because american pipes said as much in addition to that your honor i would note that in footnote nineteen the supreme court in american pipe refers to a wall review article as background discussion of villanova article which details and under the  action pre nine hundred sixty six the parties had that joined by intervention of the rule twenty four so it was a very different paradigm it wasn't a class action as it's currently administered under this court but the supreme court's discussion of ob gyn opt out of the me then women mention opt in opt out the supreme court's discussion a spurious they're not concerned about the procedure by which somebody participates what the supreme court was concerned about is when they participate as judge reader you just noted the question is they don't want some one way intervention where literally they could wait till the final judgments ok count me in because it was a successful result but that's not the procedure we have anymore where we have to as a rule should noted state we have to have the court determined that at the earliest possible moment when it's all and have to do with the foundation of those miller room and american but by the way dealt with enough out didn't it well i would not say that because when american pipe dealt with it is another unique distinction in this case is they never read the procedure by which people would participate in american pipe said that it did not grant class or vacation so there never was a class certification granted either american pipe or the others what happened in that case is the court never reached the step of determining the procedure which by should judge would allow individuals to opt in opt out or how they would be included in the final class so we don't know what procedure would have been adopted in that case was  well judge miller's error your honor is i think the fact that is just as good judge rater was noting the fact that she equated the current opt in class to be the equivalent of a pre nine hundred sixty six  words i think she does it in her opinion where she says it is an explicit in the supreme court's decision in american pipe is inextricably linked or connected to the supreme court's view in judge miller's determination that it was limited only to opt out post nine hundred sixty six cases where she makes that distinction that is i think her fundamental error but even more fundamentally i think the most basic error justice or judge miller made was just simply not recognizing the even more basic concept that this is individuals who filed and commenced an action within the statutory period we as we note in a briefing we don't even need to reach this concept of tolling american can all the other tolling or a situation where a class certification is denied and then the individual who would otherwise have been able to participate are a den of fide and describing that class want to come in either in that court or another court after the statute has run that's not what this case presents this is the easy case with the much nearer question judge miller said she would have granted class certification if she had not felt that they were ardently because of twenty five a one these individuals just seek to proceed as class members in this case and we believe that we did or are entitled to do that because the claim was timely turn se if we were to agree with you in the case goes back what would be the next step in the proceedings would some kind of an order be drawn up an issued that would provide for people to opt in correct there would be it would proceed as just judge miller indicated she would with the class she anticipated the possibility of reversal and in her order pad the alternative ruling that i grant would going to grant classification in this case but then proceed as it would under the rules where there would be a notice to individuals who were eligible were described in that class and the other steps necessary to allow them to choose to participate in this case that's what we might be about the numbers here we have a single plaintiff originally plus a class correctly then a little later we had something like twenty additional landowners along right away and tempted to join in as named plaintiffs are there along with it is a right of way that's about twenty miles long buyer estimation there would be something more than one hundred potentially eligible property owners able to participate and they were all in a den of find that information was provided to the in the motion for class certification a den of fine all those members the individuals who wanted to come in as additional representative plaintiffs in judge miller granted their motion to amend though she later dismissed them because she felt that the time mar but those individuals were also members of that same class of they came out of that group if you will of the one hundred or so that are property owners along that let me have a little bit too and page four five forty eight of american pipe the court makes clear that it was an opt out class action it was brought under federal rules of civil procedure twenty three b three so there is an opt out it's for that reason again distinguishable from this fact well in fact the judge miller even took the step of saying i've already made that determination we're not believe mistaken belief that it was time barred we already have that determination that cook class certification would be granted in the next step is a notice to those individual st do you choose to participate and that's another important distinction with this opt in opt out procedure the rules the statute never mentions what opt in is we all think we know what it is but it's actually one step in a series of steps that are administratively and judge made different for each case the procedure really has to be spelled out in the order that the court issues precise up in procedure precisely your honor and it's different in every case and it's tied to what that person must submit so for example the purpose of the opt in is to say that individual says i was in fact an eligible member of this class as defined when the clay case was commenced because here see these documents attached it's not just a sheet of paper that says yes or no i want to participate but the judge normally orders that certain information that's in this case deeds or other proof of ownership on the particular date be submitted with th information that is more than is required to satisfy twenty five one certainly not something that congress said must be satisfied in order for an individual to make a claim again we go back to our fundamental point which is well it's certainly interesting and we enjoy discussing tolling an american pipe and we certainly believe that under american pipe that that is still good was john r sand in overrule it but we don't need to reach the concept of a tolling we don't even need to reach the concept of tolling because unlike the class members in those cases these individual just want to proceed in a case that would otherwise be certified for a class when i say many times i want to say five minutes right well you don't  six months before the end of the statute of limitations a suit is filed and it's sort of to be a class action suit ok well months later after briefing argument upset or the  federal claims issues an order saying i find there's a class and we're in an opt in situation because we're in court of federal claims room twenty three and the court sends out an order that says all right everybody has but the other fifty though they comply with the order that has been issued by the court they come in within the six month period of the order they enter after the limitation period is run knows your position that those people  would be blurred by the statute of limitations even though they complied with an order that was issued by the court it is our position that those claims that those persons who opted in after the six year period had run would be time by then that would certainly be an error on the court's part in the issue in order that allow them to opt in after that period had expired and certainly in practice when the court will claim to be very cognizant of this particular decision knowing that it's not binding and is you had the case was filed twelve it was twelve days before the end nine days before the statue and then they just requested certification within the six month with a six year period i'm sorry so nobody could really time you know that in this particular case the complaint seeking to certify a class action was was filed too late when they filed nine days before that statue imitation was due to expire and to fit it in the rules of civil procedure and acted by congress waive the sovereign immunity i am jumping ahead to recognize that the only way you could make that argument is if you're saying this is all jurisdictional and they have not wa civil procedure are not the relevant rules in this case we're dealing with the rules of the court of federal claims which are procedural rules don't have the way of congress but see the keno really is getting a sector to chad you're correct on on that point i think up to a point but isn't own rules and to what we said about that in any morton's and we kind of said this is effectively it has the imprimatur if you will of congressional action and three the would i the decision i think those three points considerations i think respectfully undermined a bit what you're saying in response judge raters question let me add one more the little tucker act allows federal rules of civil procedure the congress has approved them for the court of federal claims giving them the same authority and waiver of sovereign immunity i think to answer both of those questions we have to step back and look at twenty five zero one which is this fifth specific satchel limitations it is here of class actions it is singular in nature the availability of class actions then when the bible one uses the same words as twenty or a one which is the little talk or act that i just talked to you about correct i think the distinction is i think the class action so class actions are governed by the laws it doesn't expressly provide for telling in the context of class actions it has some other extension provisions that don't apply here so then if we go and look at the court of federal claims rules you know we've got appellants rely on here which talks about a civil action being commence with a piling up a complaint but even that rule doesn't deal with the question of when class action claims are properly brought before the a class action as with the opt in here i don't think you place that at all and i think she recognized that in american pie it wasn't porton that that was opt out and the court recognized th determination as to whether the action will be allowed to proceed as a class action has to be made at an early practicable time under either but the difference is that in the octon context the court's decision to certify the class action that doesn't logic is that in the opt in context again this is over he does not have the ability to assert the claims the individual claims of her fellow landowners her neighbors she simply does not have the ability a claim in the that will benefit the class as generally defined without any need to identify those class members in the takings context and under the opt in role that is absolutely not the case each individual property owner claiming that there has that's one of the reasons i think if you look at the real committee notes associated with the roll and it was amended in two thousand and two it made it very clear that the rule in the court of federal claims is opt in only in one of the reasons with the need for specificity in money judgments and obviously in the we know this is the taking skilling but supposing you had one of these paper vision cases where everybody who worked to certain hours does certain amount of work say you know you had a whole bunch of people claim they were  title hazardous duty pay for example is that the kind of thing where you would say the initial litigant who came in timely under the statute of limitations could represent a class where  you knew who these hundred people were and what their causes of action were going to be certainly the filing of the like i'm not prejudiced by lack of notice well and i'm usually worried about and that gets us back to the purpose of this particular statute of limitations if we go back to john r sand john r sand explain that there are really two paddock away from the limitations the first one are statutes that are intended to essentially provide notice of the defendant the second category which is where we are with twenty five zero one are more absolute in their nature and in this particular case it's a statue of limitations that serves to limit the government's waiver of opportunity to suit and the supreme court there was very clear in the sand case was equitable tolling how applicable is that  tolling it is not and it is not judicial tolling based on equitable consideration but this case involved additional tolling to give effect to the court's procedure on our  equitable tolling occurs on different grounds certainly but again because we're dealing with the court's procedural rules when the court is looking to give effect to its procedural rules it has to do so in a manner that's consistent with the specific limitations and that's really what american pipe tells us that you don't american pipe didn't just create an announced a a universal rule of class action tolling even in the context of that the situation the court's decision was specific to the statute of san beyond its facts right at in this case no and we don't have to in this case but i think we're taking the same approach that we've had to take post current where in determining whether it's particular statute of limitations was subject to equitable and yet in the stone container case we said that class actions were permitted and i think the distinction there and so container was that the court looked at the specific statute of and then we have the facts of this particular case my hypothetical was they file their claim six months before the end of the limitations fear here we have filing eight twelve days before we have an amicus brief defend you blues but that's kind of a scenario makes you will cohen will well and let me make two points there that i think answer the question first of all in klamath their mind that when the plaintiffs there and that was that was my case i'm very familiar with it when the plaintiffs there piled their complaint on the same day in a more practical matter moving forward i think clearly but with clarification of you know the nature and purpose of twenty five zero one and whether the parts can be applied in a manner that extends it going to that situation where a court sits on it limitations period they leave the early of the period yet the class action issue didn't get sorted out till the end and it would seem or to to you know tax if you will the the people try to opt in an order that's issued at the end of the period and i went over my time so let me just answer briefly and bear in mind that we have a full six year statute limitations and every claimant seeking to bring their claim in this court has a variety of options available to them in this case these the john are saying which i know the government is judge miller indicated is seeking to expand or extend in a very novel way involved a case where the complaint was originally filed after the six had already run out we're not confronted with that situation we are confronted rather with the situation where the complaint that commenced the case and describe the complaint the claims of the class members was timely file that's the important distinction we believe in it is one that shows that this was satisfied how do you get around twenty five zero one but i think we simply satisfy it because we look at twenty five on one and we would say what does that require requires a petition we would look at the petition what is described in the petition or the claims that are presented and those claims described in the original petition were the claims for all those property owners and everybody understood that this is not a case the government may have more of an argument if they were arguing a situation were just early informant you filed a complaint and then the statute ran and then some time after the fact we tried to amend it or add a class action complaint that would be a different situation that's not what we're confronted with what congress required was simply the filing of the complaint that established that in his judge shall your questions are noting it would create an administrative nightmare to adopt the proposition the government has because as i've indicated every different class action complaint the up in procedure is different and tailor and subject to the litigation in that case the claimant case is not a anomaly there are many cases where variety of pieces of the litigation delay the determination of class certification or allowing the use that as a tool to effectively efficiently resolve these claims without requiring as the government now proposes every individual to go out multiple individual cases thank you and i think you both feel is submitted