United States Court of Appeals for the Federal Circuit 

2009-5048 

EDWARD L. BRIGHT, II, FRED E. EVANS, NANCY A. EVANS, 

EARLEEN FAUVERGUE, CLARENCE FORKNER, RANDY W. FROEBE, 

DEBRA J. FROEBE, GENEVA GRUBBS, NORMA LOU HALL, HOMER E. HAMILTON, DEBBIE 

M. HAMILTON, SHIRLEY HENDRICKS, DAVID HOUSER, GAIL HOUSER, PATRICK J. 

O’BRYAN, TRUSTEE OF THE PATRICK J. O’BRYAN REVOCABLE LIVING TRUST UNDER 

AGREEMENT DATED 9/7/2001, LESTER ROARK, 

DONALD LEE ROPER, II, RICKY D. RUSSELL, B. LORENE SOPER, 

BRADY J. STUART, and ROSE M. STUART, for Themselves and As Representatives of a 

Class of Similarly Situated Persons, 

 Plaintiffs-Appellants, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

Mark F. (“Thor”) Hearne, II, Lathrop & Gage LLP, of St. Louis, Missouri, argued for 

plaintiffs-appellants. With him on the brief were Lindsay S.C. Brinton and Meghan S. Largent. 

Kristine S. Tardiff, Attorney, Environment and Natural Resources Division, United 

States Department of Justice, of Concord, New Hampshire, argued for defendant-appellee. 

With her on the brief were John C. Cruden, Acting Assistant Attorney General; and Kathryn E. 

Kovacs, Attorney, of Washington, DC. 

Nancie G. Marzulla, Marzulla Law, of Washington, DC, for amici curiae Klamath 

Irrigation District, et al. With her on the brief was Roger J. Marzulla. 

Brent W. Baldwin, Baker Sterchi Cowden & Rice, LLC, of St. Louis, Missouri, for amici 

curiae Larry J. Rhutasel, et al. With him on the brief were Steven M. Wald and J. Robert 

Sears; and Thomas S. Stewart, of Kansas City, Missouri. 

Helen K. Michael, Howrey LLP, of Washington, DC, for amicus curiae National 

Federation of Federal Employees. With her on the brief was John F. Stanton. 

Appealed from: United States Court of Federal Claims 

Judge Christine O.C. Miller 
United States Court of Appeals for the Federal Circuit 

2009-5048 

EDWARD L. BRIGHT, II, FRED E. EVANS, NANCY A. EVANS, 

EARLEEN FAUVERGUE, CLARENCE FORKNER, RANDY W. FROEBE, 

DEBRA J. FROEBE, GENEVA GRUBBS, NORMA LOU HALL, HOMER E. HAMILTON, 

DEBBIE M. HAMILTON, SHIRLEY HENDRICKS, DAVID HOUSER, GAlL HOUSER, 

PATRICK J. O'BRYAN, TRUSTEE OF THE PARTICK J. O'BRYAN REVOCABLE 

LIVING TRUST UNDER AGREEMENT DATED 9/7/2001, LESTER ROARK, 

DONALD LEE ROPER, II, RICKY D. RUSSELL, B. LORENE SOPER, 

BRADY J. STUART, and ROSE M. STUART, for Themselves and As Representatives 

of a Class of Similarly Situated Persons, 

 Plaintiffs-Appellants, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

Appeal from the United States Court of Federal Claims in 08-CV-431, 

 Judge Christine O.C. Miller. 

_________________________ 

 DECIDED: May 3, 2010 

_________________________ 

Before MICHEL, Chief Judge, RADER, and SCHALL, Circuit Judges, 

SCHALL, Circuit Judge. 

Plaintiffs-Appellants (“Appellants”) are putative members of a class of 

landowners seeking compensation under the Fifth Amendment pursuant to the Tucker 
Act, 28 U.S.C. § 1491(a)(1). They seek compensation for the alleged taking of their 

respective property interests under the National Trail Systems Act, 16 U.S.C. §§ 1241-

1251 (the “Trails Act”). The United States Court of Federal Claims dismissed 

Appellants’ second amended complaint as to all named plaintiffs other than Earleen 

Fauvergue, for lack of subject matter jurisdiction. Fauvergue v. United States, 86 Fed. 

Cl. 82 (2009), and erratum (changing “tenets” to “tenet” on page 16) (filed Mar. 18, 

2009) (together, “Dismissal Order”). The court did so on the ground that although Ms. 

Fauvergue filed a class action complaint and sought class certification prior to expiration 

of the six-year limitations period prescribed by 28 U.S.C. § 2501, none of the twenty 

other putative class members opted in to the suit as named party plaintiffs prior to 

expiration of the period. 

For the reasons set forth below, we hold that when a class action complaint is 

filed in the Court of Federal Claims and class certification is sought prior to expiration of 

the section 2501 limitations period, the limitations period is tolled. The limitations period 

is tolled during the period the court allows potential class members to opt in to the class. 

We therefore reverse the judgment of the Court of Federal Claims dismissing 

Appellants’ second amended complaint and remand the case to the court for 

proceedings on the merits of Appellants’ taking claims. 

BACKGROUND 

I. 

Appellants’ taking claims arose under the Trails Act. The Trails Act sets out a 

statutory scheme pursuant to which unused railroad lines can be converted into 

designated trails for recreational uses. See Preseault v. Interstate Commerce Comm’n, 

2009-5048 2
494 U.S. 1, 5 (1990) (stating that the purpose of the Trails Act is to preserve shrinking 

rail trackage by converting unused railroad rights-of-way into recreational trails). We 

explained the operation of the Trails Act in Caldwell v. United States, 391 F.3d 1226 

(Fed. Cir. 2004). 

The Surface Transportation Board (“STB”) is charged with regulating the 

construction, operation, and abandonment of most railroad lines in the United States. 

Id. at 1228. When a railroad seeks to abandon a railroad right of way within the 

jurisdiction of the STB, it must either (1) file a standard abandonment application or (2) 

seek an exemption from filing such an application. Id. If the STB approves a standard 

abandonment application or grants an exemption, and the railroad ceases operation 

over the line, the STB relinquishes jurisdiction over the abandoned railroad right of way 

and state law reversionary property interests, if any, take effect. Id. at 1228-29. 

Through a process known as “railbanking,” the Trails Act provides an alternative 

to abandoning a railroad right of way. Id. at 1229. The Trails Act allows a railroad to 

negotiate with a state, municipality, or private group (the “trail operator”) to assume 

financial responsibility for operating the railroad right of way as a recreational trail. Id. If 

the railroad and the trail operator are willing to negotiate a trail use agreement, the STB 

stays the abandonment process and issues a notice allowing the railroad right-of-way to 

be “rail-banked.” Id. The effect of this notice, if the railroad and prospective trail 

operator reach an agreement, is that the STB retains jurisdiction for possible future 

railroad use and the abandonment of the corridor is blocked, even though the conditions 

for abandonment are otherwise met. Id. Section 8(d) of the Trails Act states: “[S]uch 

interim use [for trails] shall not be treated, for purposes of any law or rule, as an 

2009-5048 3
abandonment of the use of such rights-of-way for railroad purposes.” 16 U.S.C. 

§ 1247(d). What this means is that the Trails Act prevents the operation of state laws 

that would otherwise come into effect upon abandonment, specifically, property laws 

that would “result in extinguishment of easements for railroad purposes and reversion of 

rights of way to abutting landowners.” Rail Abandonments—Use of Rights—of—Way 

as Trails, Ex Parte No. 274 (Sub-No. 13), 2 I.C.C. 2d 591, 1986 WL 68617 (1986). A 

Fifth Amendment Taking occurs if the original easement granted to the railroad under 

state property law is not broad enough to encompass a recreational trail. Caldwell, 391 

F.3d at 1229. 

The typical railbanking process begins when a railroad files with the STB an 

abandonment application or, as in this case, a request for an exemption. Id. at 1230. If 

a request for an exemption is filed and the request is approved, the STB publishes a 

Notice of Exemption in the Federal Register. Id. A potential trail operator then may file 

a railbanking petition pursuant to regulations promulgated by the STB. Id. If the petition 

meets regulatory criteria, and the railroad agrees to negotiate with the potential trail 

operator, the STB issues a Notice of Interim Trail Use or Abandonment (“NITU”) to the 

railroad and to the potential trail operator for the portion of the right-of-way to be 

covered by the agreement. Id., citing 49 C.F.R. §§ 1152.29(b)(2) and (d). The NITU 

allows the rail carrier to discontinue service and salvage track and other equipment 

without an abandonment taking place. Id. At the same time, the NITU extends 

indefinitely to permit interim trail use once an agreement is reached between the 

railroad and the trail operator. Id.

2009-5048 4
 II. 

The facts pertinent to this case are not in dispute. Appellants are landowners 

who allege that the conversion of a railroad line into a public hiking trail under the Trails 

Act resulted in a Fifth Amendment taking of their reversionary property interests. The 

railroad line at issue ran 28.25 miles between Columbus, in Cherokee County, Kansas, 

and Carthage, in Jasper County, Missouri. The line consisted of a 100-foot-plus wide 

strip of land that was originally secured by the Memphis Carthage & Northwestern 

Railroad Company (the “MCNRC”) in 1876. The MCNRC retained the line until 1980, 

when it transferred it to the St. Louis and San Francisco Railroad Company. Eventually, 

following a series of mergers, in 1995 that company became the Burlington Northern 

and Santa Fe Railway Company (the “BNSF”). 

On May 23, 2002, The STB published a Notice of Exemption filed by the BNSF. 

In the Notice, the BNSF sought to abandon the Columbus-Carthage railroad line, based 

upon two years of nonuse. See The Burlington Northern and Santa Fe Railway 

Company—Abandonment Exemption—in Cherokee County, KS, and Jasper County, 

MO, 67 Fed. Reg. 36,298 (May 23, 2002). On June 21, 2002, the STB issued a NITU 

authorizing conversion of the Columbus-Carthage railroad line into a public-access 

recreational trail, pursuant to section 8 of the Trails Act. As explained above, the effect 

of the NITU was to stay railroad abandonment during the pendency of trail use. A 

further effect of the NITU was to accrue an action for compensation by any affected 

landowners based on a Fifth Amendment taking. See, e.g., Barclay v. United States, 

443 F.3d 1368, 1373 (Fed. Cir. 2006) (“a Trails Act taking begins and a takings claim 

accrues, if at all, on issuance of the NITU.”). Thus, the NITU publication date is the date 

2009-5048 5
on which the six-year limitations period of 28 U.S.C. § 2501 begins to run for a taking 

claim under the Trails Act. Caldwell, 391 F.3d at 1235. Under section 2501, “[e]very 

claim of which the United States Court of Federal Claims has jurisdiction shall be barred 

unless the petition thereon is filed within six years after such claim first accrues.” 

Therefore, as of June 21, 2002, June 21, 2008 was the last day on which any affected 

landowner could file a Fifth Amendment taking claim in the Court of Federal Claims 

based on the rail-to-trail conversion in this case. 

III. 

On June 12, 2008, Ms. Fauvergue filed a class-action complaint in the Court of 

Federal Claims under the Tucker Act. In her complaint, she sought, on behalf of herself 

and as “representative of a class of similarly situated persons,” compensation for the 

value of the land now occupied by the Columbus-Carthage trail and for the diminished 

value of the adjoining property. Ms. Fauvergue asserted this claim based on an alleged 

physical taking of property by the United States as a result of the rail-to-trail conversion 

of the Columbus-Carthage railroad line under the Trails Act. While Ms. Fauvergue filed 

the complaint in her name and in anticipation of class-action certification, she was the 

only named plaintiff in the complaint. Six days later, on June 18, 2008, she filed a 

motion to certify the class with an accompanying memorandum describing the claims of 

class members holding fee title to land in Jasper County, Missouri, or Cherokee County, 

Kansas. 

On December 11, 2008, the Court of Federal Claims granted leave to amend the 

complaint a second time to add twenty putative class members as named plaintiffs, 

under Court of Federal Claims Rule (“RCFC”) 23, the rule governing class actions in the 

2009-5048 6
Court of Federal Claims. See Fauvergue v. United States, 85 Fed. Cl. 50 (2008). 

Thereafter, however, on February 24, 2009, the court granted the government’s motion 

to dismiss the second amended complaint as to all named class members other than 

Ms. Fauvergue, on the ground that the claims of such plaintiffs were barred by the 

statute of limitations. See Dismissal Order, 86 Fed. Cl. at 93. 

In its decision, the court drew a distinction between an opt-in class action, such 

as in the Court of Federal Claims under RCFC 23, and an opt-out class action under 

Federal Rule of Civil Procedure (“FRCP”) 23.1 The court stated: “Putative members of 

an opt-in class action in the Court of Federal Claims must opt in before the expiration of 

28 U.S.C. § 2501. Putative members attempting to opt in after the expiration of 28 

U.S.C. § 2501 cannot take advantage of the statutory tolling enjoyed by class members 

opting out in federal courts under [FRCP] 23.” See Dismissal Order, 86 Fed. Cl. at 93. 

The court recognized that in American Pipe & Construction Co. v. Utah, 414 U.S. 

538 (1974), and Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345 (1983), the 

Supreme Court allowed the filing of a timely class-action complaint to toll the applicable 

statute of limitations for putative members of the class. Id. at 88-89. American Pipe

and Crown, Cork & Seal both were decided in the context of FRCP 23’s opt-out 

procedure. The court also recognized that in Stone Container Corp. v. United States, 

229 F.3d 1345 (Fed. Cir. 2000), this court allowed the filing of a timely class action 

complaint to toll the applicable statute of limitations in the Court of International Trade 

 1

 Under the former, in order to become a class member, an individual must 

affirmatively respond to a Rule 23(c)(2) notice to “opt in” by requesting inclusion in the 

action. See RCFC 23(c)(2) and (3). Under the latter, all members of a class are 

included in the action and are bound by the judgment unless they “opt out” by 

affirmatively requesting exclusion. See FRCP 23(c)(2) and (3). 

2009-5048 7
for putative members of the class. Id. at 90. Stone Container was decided in the 

context of Court of International Trade Rule 23 (“CIT Rule 23”), which also involves an 

opt-out procedure. This court described the tolling in American Pipe, Crown, Cork & 

Seal, and Stone Container as “statutory tolling.” Stone Container, 229 F.3d at 1354. 

The Court of Federal Claims held, however, that class action tolling is not 

available in the Court of Federal Claims to allow putative class members to opt into a 

suit under RCFC 23 after the expiration of section 2501’s limitations period. The court 

based this holding on what it saw as “two significant differences” between the case 

before it and American Pipe, Crown, Cork & Seal, and Stone Container. See Dismissal 

Order, 86 Fed. Cl. at 93. First, the court reasoned that, unlike FRCP 23 and CIT Rule 

23, RCFC 23 is not statutory. The court pointed out that, unlike FRCP 23, RCFC 23 

was not transmitted to Congress. Neither, it pointed out, did 28 U.S.C. § 2501 

incorporate by reference the rules of the Court of Federal Claims, as the applicable 

statute of limitations in Stone Container incorporated the rules of the Court of 

International Trade. Second, the court stated that, in John R. Sand & Gravel Co. v. 

United States, 552 U.S. 130 (2008), the Supreme Court defined section 2501 “as being 

jurisdictional in nature and more absolute and rigid than other statutes of limitation, 

whereas the statutes of limitation in American Pipe, Crown Cork, and Stone Container

have not been characterized in that manner.” Id. The court emphasized that “John R. 

Sand & Gravel limits, or even abrogates the ability of the Court of Federal Claims to use 

any rule of the court . . . to allow putative class members to opt in after the expiration of 

28 U.S.C. § 2501.” Id.

2009-5048 8
The Court of Federal Claims also rejected Appellants’ argument that RCFC 15(c) 

supported amending the complaint to add putative class members to the suit. RCFC 

15(c) permits an amendment to a pleading to relate back to the date of the original 

pleading when the claim “arose out of the conduct, transaction, or occurrence set out—

or attempted to be set out—in the original pleading.” RCFC 15(c)(1)(B). The court 

determined that “the relation-back doctrine cannot be used to revive a class-action claim 

that is not within the jurisdiction of the Court of Federal Claims.” Fauvergue, 85 Fed. Cl. 

at 59. 

Finally, the Court of Federal Claims considered the merits of plaintiffs’ class 

certification motion, and rendered an alternative ruling to its dismissal of the suit. In that 

ruling, the court determined that the class action plaintiffs had satisfied all four 

prerequisites for class certification under RCFC 23(a), as well as the two requirements 

of RCFC 23(b) for establishing that a class action can be maintained.2

 The court thus 

held that it would have certified the class had it not lacked jurisdiction by reason of the 

operation of the statute of limitations. Id. at 101. Final judgment dismissing the claims 

of all named plaintiffs except Ms. Fauvergue was entered on February 27, 2009. 

Thereafter, Appellants timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 

1295(a)(2). 

 2

 The court summarized the requirements of RCFC 23(a) and (b) as follows: 

(1) numerosity, (2) commonality, (3) typicality, (4) adequacy, and (5) superiority (i.e., 

superiority of a class action to other litigation-management approaches). See Dismissal 

Order, 86 Fed. Cl. at 95, citing Curry v. United States, 81 Fed. Cl. 328, 332 (2008); 

Barnes v. United States, 68 Fed. Cl. 492, 494 (2005). The court analyzed each of the 

elements and found plaintiffs had satisfied all five. 

2009-5048 9
DISCUSSION 

I. 

Before turning to the contentions of the parties and our analysis, it may be helpful 

to set forth the pertinent law relating to class actions. In American Pipe, the Supreme 

Court adopted the principle of “class action tolling.” The Court held that “the 

commencement of a class action suspends the applicable statute of limitations as to all 

asserted members of the class who would have been parties had the suit been 

permitted to continue as a class action.” 414 U.S. at 554. The Court expressly found 

that rule “in no way inconsistent” with the proper function of a statute of limitations, 

because when suit was filed, a defendant would have been notified of the substantive 

claims and “also of the number and generic identities of the potential plaintiffs” involved 

in the class action. Id. at 554-555. 

American Pipe addressed the post-1966 and close to current-day version of 

FRCP 23, which had been significantly overhauled from its original 1938 version. As 

noted, FRCP 23 contemplates an opt-out class-action procedure. Under that 

procedure, a determination as to whether an action shall be maintained as a class 

action is made by the court “at an early practicable time” pursuant to FRCP 23(c)(1)(A).3 

Thereafter, potential class members “are either nonparties to the suit and ineligible to 

participate in a recovery or to be bound by a judgment, or else they are full members 

who must abide by the final judgment, whether favorable or adverse.” 414 U.S. at 549. 

The prior 1938 version of FRCP 23, which was superseded by the 1966 amendments, 

 3

 2003 amendments to FRCP 23 changed the “as soon as practicable” 

formulation, as used at the time of American Pipe, to the "at an early practicable time" 

current formulation. 

2009-5048 10
involved an opt-in procedure. Under that procedure, a so-called “spurious” class action 

could be maintained where no determination was needed in advance of final judgment 

as to which of the potential class members were actual members bound by the 

judgment, thereby allowing members of the class to await final judgment before 

deciding whether to participate in the action. Id. at 545-47. 

The rule of American Pipe appeared to apply only to purported members of the 

class who made timely motions to intervene after the trial court denied class 

certification. However, in Crown, Cork & Seal, the Court extended the rule of American 

Pipe to all members of the asserted class, including those who subsequently file their 

own suits, because tolling properly allows class members to “rely on the existence of 

the suit to protect their rights.” 462 U.S. at 350. 

In Stone Container, this court was faced with the question of whether the 

two-year statute of limitations of 28 U.S.C. § 2636(i), which is applicable to suits in the 

Court of International Trade under 28 U.S.C. § 1581(i), is subject to class action tolling 

under CIT Rule 23. The court held that it is. The court first explained that the Supreme 

Court’s decisions in “American Pipe and Crown, Cork & Seal were not based on judgemade equitable tolling, but rather on the Court's interpretation of Rule 23.” 229 F.3d at 

1354. Continuing, the court stated that “[b]ecause ‘[a]ll laws in conflict with [the Federal 

Rules of Civil Procedure] shall be of no further force and effect after such rules have 

taken effect,’ 28 U.S.C. § 2072(b), the Federal Rules of Civil Procedure, like the Federal 

Rules of Criminal Procedure, are ‘as binding as any federal statute.’” Id., quoting Bank 

of Nova Scotia v. United States, 487 U.S. 250, 255 (1988). The Federal Rules of Civil 

Procedure were promulgated by the Supreme Court pursuant to statutory authority and 

2009-5048 11
were implicitly adopted by Congress after transmission to Congress in their proposed 

form. See 28 U.S.C. §§ 2071-2074. In light of this statutory promulgation scheme, the 

Supreme Court has held that the Federal Rules of Civil Procedure are deemed to have 

“the force [and effect] of a federal statute.” Sibbach v. Wilson & Co., 312 U.S. 1, 13 

(1941). The Stone Container court therefore described tolling under FRCP 23 as 

“statutory.” 229 F. 3d at 1354. 

Turning to CIT Rule 23, the court acknowledged that, unlike FRCP 23, it is not 

statutory. The court pointed out, however, that the statute of limitations at issue itself 

incorporates the rules of the Court of International Trade. Under 28 U.S.C. § 2636(i), an 

action under 28 U.S.C. § 1581(i) “is barred unless commenced in accordance with the 

rules of the court within two years after the cause of action first accrues.”) Id. (emphasis 

in opinion). The Stone Container court therefore rejected the government’s attempt to 

distinguish CIT Rule 23 from FRCP 23 “for purposes of American Pipe.” Id. The court 

concluded: “Having determined that [CIT] Rule 23 tolling is statutory rather than 

equitable, it follows that the rule of American Pipe applies to the government just as it 

does to private parties, both generally and in this particular case.” Id. 

In Arctic Slope Native Association, Ltd. v. Sebelius, 583 F.3d 785 (Fed. Cir. 

2009), this court again considered the issue of class action tolling against the 

government. Arctic Slope, which was decided after the decision of the Court of Federal 

Claims in this case, involved Indian tribes and tribal organizations that had provided 

health care services to their members under contracts with the Indian Health Service. 

The contracts were entered into pursuant to the Indian Self Determination and 

Education Assistance Act (“ISDA”), 25 U.S.C. §§ 450-450n. The case before the court 

2009-5048 12
arose when the Civilian Board of Contract Appeals (“Board”) dismissed certain ISDA 

contract claims by the Indian tribes and tribal organizations because the claims were not 

presented to the government’s contracting officers within six years after the claims 

accrued, as required by section 605(a) of the Contract Disputes Act (“CDA”), 41 U.S.C. 

§ 605(a). 1988 amendments to the ISDA made the CDA applicable to disputes 

concerning self-determination contracts. 

One of the questions before the Arctic Slope court was whether class action 

tolling was available with respect to section 605(a)’s limitations period. The 

government’s position was that, by virtue of the ISDA’s incorporation of CDA 

procedures, the temporal scope of the waiver of sovereign immunity was six years, and 

that any claim not submitted to a contracting officer within that time period was 

jurisdictionally barred from further review, administrative or judicial. 583 F.3d at 791. 

The appellant Indian tribes and tribal organizations argued that the six-year 

presentment period in section 605(a) could be equitably or legally tolled without 

exceeding the limits on the government’s waiver of sovereign immunity. Id. The tribes 

and tribal organizations based their claim for legal tolling on the fact that they were 

members of putative classes in either of two earlier-filed suits, the Zuni and Cherokee 

Nation class actions. They argued that the six-year period for filing their administrative 

claims under section 605(a) should be tolled until class certification was denied in those 

cases. 

The Arctic Slope court rejected the government’s argument that because the sixyear time limit in section 605(a) is a condition on the waiver of sovereign immunity, the 

statute is jurisdictional, and its time period is not subject to class action tolling. The 

2009-5048 13
court stated: “The government’s contentions that class action tolling cannot apply to a 

temporal limitation on actions against the government, and that class action tolling is 

‘judge-made’ rather than statutory . . . have no force in light of Stone Container.” Id. 

The court dismissed the government’s attempt to distinguish Stone Container as not 

involving a “jurisdictional statute of limitations” by explaining that “[t]he limitations statute 

at issue in Stone Container . . . constituted a waiver of sovereign immunity and thus 

defined the court’s jurisdiction.” Id. at 792-93. Ultimately, the Arctic Slope court denied 

the appellants the benefit of class action tolling. The court did so not because the 

limitations provision at issue was “jurisdictional” in nature, but rather because the 

appellants had failed to exhaust their administrative remedies by timely presenting their 

claims to contracting officers as required by 41 U.S.C. § 605(a). See id. at 794-96. The 

court thus agreed with the government’s “alternative, and narrower,” argument that the 

appellants’ failure to present their claims to contracting officers within six years of 

accrual meant that those claims could not have been litigated in the Zuni and Cherokee 

Nation class actions even if those suits had been permitted to continue. Id. at 793. The 

court noted that a claimant who complied with the administrative claim presentment 

requirements “would be eligible to benefit from classwide relief and would presumably 

be entitled to class action tolling.” Id. at 797.4

 

 4

 The court did, however, conclude that the appellants were potentially 

eligible for equitable tolling. The court reasoned that the Supreme Court’s holding in 

Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990) applied. In Irwin, the 

Court held that “the same rebuttable presumption of equitable tolling applicable to suits 

against private defendants should also apply to suits against the United States.” The 

Arctic Slope court concluded that “the Irwin presumption applies, which means that we 

must assume that Congress intended equitable tolling to be available unless there is 

good reason to believe otherwise.” 583 F.3d at 798. 

2009-5048 14
American Pipe, Crown, Cork & Seal, Stone Container, and Arctic Slope outline 

the framework of class action tolling, as applied both against private parties and against 

the government. None of these cases, however, addressed class action tolling of the 

limitations period in 28 U.S.C. § 2501 under RCFC 23. Whether class action tolling is 

available for opt-in classes in the Court of Federal Claims is an issue of first impression 

for this court. 

II. 

The question before us is this: 

When a class action complaint is filed in the Court of Federal Claims 

within the six-year limitations period of 28 U.S.C. § 2501 by one named 

plaintiff, are putative class members permitted to opt in under RCFC 23 

after expiration of the limitations period, when class certification was 

sought prior to expiration of the limitations period, but the complaint was 

not amended to add other named plaintiffs as putative class members until 

after expiration of the limitations period? 

 

As seen, the Court of Federal Claims answered this question in the negative and 

dismissed the second amended complaint as to all plaintiffs other than Ms. Fauvergue. 

We review the court’s dismissal for lack of jurisdiction and its underlying legal 

conclusions without deference. Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1362 

(Fed. Cir. 2005); Applegate v. United States, 25 F.3d 1579, 1581 (Fed. Cir. 1994). 

Appellants argue first that the Court of Federal Claims erred in dismissing the 

second amended complaint because the timely filing of a class-action complaint itself 

commences the action for all persons who eventually opt in to the class. Appellants 

contend that no tolling issue arises in this case because the initial timely-filed complaint 

asserted the claims of all similarly situated Missouri and Kansas landowners whose 

property was subject to the June 21, 2002 NITU and who were subsequently 

2009-5048 15
determined to be members of the class. Thus, in Appellants’ view, section 2501 was 

satisfied for every class member when Ms. Fauvergue filed her complaint on June 12, 

2008. See Appellants’ Br. 28. In advancing this argument, Appellants point to the 

statement in American Pipe that “the commencement of the action satisfied the purpose 

of the limitation provision as to all those who might subsequently participate in the suit 

as well as for the named plaintiffs.” 414 U.S. at 551. 

Appellants’ second argument is that the Court of Federal Claims erred by not 

suspending or tolling the statute of limitations to allow putative class members to opt in 

to the action. Appellants urge that the fact that RCFC 23 is a procedural rule adopted 

by the court that cannot extend or limit the jurisdiction of the Court of Federal Claims 

does not distinguish it from the Federal Rules of Civil Procedure because neither do 

those rules “extend or limit” any court’s jurisdiction; see FRCP 82 (“These rules do not 

extend or limit the jurisdiction of the district courts or the venue of actions in those 

courts.”). Appellants contend that the Court of Federal Claims incorrectly extended the 

John R. Sand & Gravel holding that section 2501 is jurisdictional to proscribe any form 

of tolling thereunder, i.e., not only equitable tolling but also class action statutory tolling. 

See Dismissal Order, 86 Fed. Cl. at 91; Appellants’ Br. 70, 77-79. 

Appellants argue that because the Supreme Court has read FRCP 23 to permit 

statutory tolling in class actions in federal district court, see, e.g., American Pipe and 

Crown, Cork & Seal, and because this court has read a corresponding rule (CIT Rule 

23) to permit tolling in a class action against the government, see Stone Container, 229 

F.3d at 1354, RCFC 23 must operate similarly to permit tolling here. Appellants, along 

with several amici curiae, namely, National Federation of Federal Employees; Larry J. 

2009-5048 16
Rhutasel et al.; and Klamath Irrigation District et al., contend that if this court does not 

reverse the decision of the Court of Federal Claims, use of class-action procedures will 

be effectively eliminated in the Court of Federal Claims. See, e.g., Appellants’ Br. at 64-

67; National Federation of Federal Employees Br. at 17-19. 

Finally, Appellants contend that the Court of Federal Claims erred by failing to 

acknowledge that, by reason of RCFC 15(a), the second amended complaint relates 

back to the date of the original complaint for purposes of independently satisfying the 

limitations period of section 2501. Appellants argue that the original class action 

complaint identified the same “conduct, transaction, or occurrence” giving rise to the 

government’s liability (the issuance of the NITU) that was specified in the second 

amended complaint, with the result that Appellants’ claims relating to this general fact 

situation should not be time-barred under section 2501. See Appellants’ Br. 86-88. 

The government responds that we should affirm the final judgment of the Court of 

Federal Claims. The government argues first that there is no merit to Appellants’ 

argument that the filing of Ms. Fauvergue’s complaint on June 12, 2008, satisfied the 

statute of limitations as to putative class members and that there thus is no need to 

reach the question of whether the filing served to toll the limitations period. 

Characterizing this argument as an attempt to “avoid John R. Sand & Gravel,” the 

government states that, “to the extent that the filing of the opt-out class action complaint 

in American Pipe ‘satisfied’ the applicable statute of limitations, it did so because the 

filing operated to toll the statute of limitations,” not satisfy it. See Appellee’s Br. 23-24. 

Turning next to the issue of tolling, the government posits that, while this court 

has not yet ruled on whether American Pipe tolling applies to opt-in class actions, the 

2009-5048 17
answer to the question lies in reconciling RCFC 23 and 28 U.S.C. § 2501. Id. at 30. 

Addressing the question on those terms, the government states first that, in John R. 

Sand & Gravel, the Supreme Court “reaffirmed that the six-year statute of limitations 

applicable to Appellants’ claims is jurisdictional and not subject to equitable tolling.” Id.

at 33. The government goes on to endorse the reasoning of the Court of Federal 

Claims that, although John R. Sand & Gravel does not address statutory class action 

tolling, its holding “rigidly proscribes any tolling” because of the “absolute nature of the 

six-year statute of limitations imposed by § 2501.” Dismissal Order, 86 Fed. Cl. at 91; 

Appellee’s Br. 19-20. 

The government elaborates that American Pipe statutory tolling is inapplicable to 

section 2501 for several reasons. First, unlike FRCP 23, which was at issue in 

American Pipe, RCFC 23 is not statutory. According to the government, that is because 

the procedural rules of the Court of Federal Claims are not transmitted to Congress for 

review and approval under 28 U.S.C. §§ 2071-74. Therefore, the government reasons, 

they do not carry the weight of a statute enacted by Congress. At the same time, the 

government notes that the Court of Federal Claims “cannot, through its acknowledged 

rule-making power, expand its jurisdiction beyond the limits prescribed by Congress.” 

Rolls-Royce, Ltd. v. United States, 364 F.2d 415, 419 (Ct. Cl. 1966). See Appellee’s Br. 

33. Second, the government points out that, in contrast to Stone Container, where the 

relevant statute of limitations incorporated CIT Rule 23, section 2501 does not 

incorporate RCFC 23. Third, and in the view of the government most importantly, 

neither American Pipe, Crown, Cork & Seal, nor Stone Container involved a statute of 

limitations that the Supreme Court had held to be jurisdictional and not subject to tolling. 

2009-5048 18
See Appellee’s Br. 34-35. With American Pipe and Crown, Cork & Seal in mind, the 

government contends that the Supreme Court held tolling available in private actions in 

federal court because doing so gave effect to the opt-out class action procedure of 

FRCP 23 in a manner that was “in no way inconsistent with the functional operation” of 

the statute of limitations at issue. American Pipe, 414 U.S. at 554-555. The 

government asserts this court used similar reasoning to permit tolling for opt-out class 

actions in the Court of International Trade in Stone Container. See 229 F.3d at 1353-

54; Appellee’s Br. 32. 

 Finally, the government urges us to reject Appellants’ reliance on the “relationback” rule set forth in RCFC 15. Citing Snoqualmie Tribe of Indians v. United States, 

372 F.2d 951, 960 (Ct. Cl. 1967), the government states that “[t]he test for determining 

whether a claim added by an amendment to a complaint after the statute of limitations 

has expired may be related back to the original pleading to avoid the bar of the statute 

of limitations is essentially one of notice.” Appellee’s Br. 44-45. The government 

argues that the relation-back rule of RCFC 15 is not available to Appellants because, in 

John R. Sand & Gravel, the Supreme Court made it clear that section 2501 is not the 

kind of statute of limitations that seeks primarily to protect defendants against stale or 

unduly delayed claims, but rather is the kind of statute of limitations that “seek[s] to 

achieve a broader system-related goal, such as . . . limiting the scope of a governmental 

waiver of sovereign immunity.” Id., quoting 552 U.S. at 133. 

III. 

We first address Appellants’ contention that the filing of the original complaint 

satisfied the limitations requirement of section 2501 outright for all putative members of 

2009-5048 19
the class. We reject this argument. We do so because we are not prepared to extend 

non-class action case law, which permits the filing of a complaint to stop the running of 

the statute of limitations, see, e.g., Henderson v. United States, 517 U.S. 654, 657 

(1996), and FRCP 3 (“a civil action is commenced by the filing of a complaint with the 

court”), to cover class actions. It is true that the American Pipe Court stated that “the 

commencement of the action satisfied the purpose of the limitation provision as to all 

those who might subsequently participate in the suit as well as for the named plaintiffs.” 

414 U.S. at 551. The Court made clear, however, that the means by which the action 

“satisfied” the limitation provision’s purpose was by “tolling” the running of the statute for 

all purported members of the class. Id. at 553 (“the commencement of the original 

class suit tolls the running of the statute for all purported members of the class”). See 

also Crown, Cork & Seal, 462 U.S. at 350 (“[t]he filing of a class action tolls the statute 

of limitations . . .”) (emphasis added).5

 

Because the Supreme Court chose to describe the appropriate statute of 

limitations as being “tolled,” we have referred to “the tolling rule of American Pipe,” 

Stone Container, 229 F.3d at 1354; Arctic Slope, 583 F.3d at 791-92, and have framed 

the question to be decided as “whether the limitations period was tolled.” Stone 

Container at 1352. We therefore agree with the Court of Federal Claims and the 

government that section 2501 was not satisfied on its face for all putative class 

members when Ms. Fauvergue filed her June 12, 2008 class action complaint. 

 5

 When a court states that a time period is tolled, it means that it abates, or 

stops the running of, the limitations period in question. See Black’s Law Dictionary

1625 (9th ed. 2009). 

2009-5048 20
IV. 

We turn now to the question of tolling. In that regard, as we have seen, the 

decision of the Court of Federal Claims hinged on two points. First, the court drew a 

distinction between the opt-out procedure of FRCP 23 and the opt-in procedure of 

RCFC 23. In the court’s view, because RCFC 23 is not statutory and is not 

incorporated by reference into 28 U.S.C. § 2501, it cannot support the kind of class 

action tolling scheme applied by the Supreme Court in American Pipe. See Dismissal 

Order, 86 Fed. Cl. at 89-90. Second, the court stated that section 2501 was viewed by 

the Supreme Court in John R. Sand & Gravel “as being jurisdictional in nature and more 

absolute and rigid than other statutes of limitation, whereas the statutes of limitation in 

American Pipe, Crown, Cork & Seal, and Stone Container have not been characterized 

in that manner.” Dismissal Order, 86 Fed. Cl. at 93. Accordingly, the court concluded 

that “John R. Sand & Gravel limits, or even abrogates, the ability of the Court of Federal 

Claims to use any rule of the court, equitable tool, or ameliorative doctrine to allow 

putative class members to opt in after the expiration of 28 U.S.C. § 2501.” Id. 

A. 

We consider first the difference between the opt-out procedure of FRCP 23 that 

was at issue in American Pipe and the opt-in procedure of RCFC 23. In American Pipe, 

the Supreme Court noted that under the prior version of FRCP 23, which embodied an 

opt-in procedure, there existed a difference of opinion among federal appeals and trial 

courts as to whether parties should be allowed to join or intervene as members of a 

“spurious” class after the termination of a limitations period, when the initial class action 

complaint was filed before the period had run. 414 U.S. at 549. The court observed 

2009-5048 21
that “[a] majority of the courts ruling on the question, emphasizing the representative 

nature of a class suit, concluded that such intervention was proper.” Id. 

For example, in York v. Guar. Trust Co., 143 F.2d 503 (2d Cir. 1944), rev’d on 

other grounds, 326 U.S. 99 (1945), the Second Circuit took the position that the filing of 

the initial class action complaint, even in a “spurious” class action, commenced the 

action for the class. The court reasoned that to hold otherwise, and deny potential class 

members “the benefit, by intervention, of the institution of the suit by plaintiff would be to 

convert the Rule into a trap.” 143 F.2d at 528. Likewise, in Escott v. Barchris Constr.

Corp., 340 F.2d 731, 733 (2d Cir. 1965), the court permitted intervention by additional 

plaintiffs after the statute of limitations had run because the original action had been 

instituted within the statutory period. The court tolled the statute of limitations “for those 

in whose behalf the representative action is brought as well as for those who actually 

bring the action.” Id. 733-34 (noting “it is certain that the existence of a representative 

action which does not have the effect of tolling the statute does constitute a trap.”). The 

minority view, the Supreme Court stated, was that “since a spurious class action was 

essentially a device to permit individual joinder or intervention, each individual also 

participating would have to satisfy the timeliness requirement.” American Pipe, 414 

U.S. at 550. 

A split of authority has continued in the wake of American Pipe. In Sperling v. 

Hoffmann-La Roche, Inc., 24 F.3d 463, 471 (3d Cir. 1994), the Third Circuit applied 

tolling to opt-in class actions under the Age Discrimination in Employment Act 

2009-5048 22
(“ADEA”).6

 The court did so because “application of principles of legal tolling to a class 

action for age discrimination is . . . consistent with the three basic purposes a statute of 

limitations serves.”7

 The contrary view is exemplified by Grayson v. K Mart Corp., 79 

F.3d 1086 (11th Cir. 1996). There, the Eleventh Circuit reasoned that tolling should not 

apply to plaintiffs suing under the ADEA, because “opt-in plaintiffs commence an ADEA 

civil action, not when the Complaint is filed, but when the putative plaintiff files a written 

consent to opt into the class action.” Id. at 1105. 

Viewing the split of authority both pre- and post-American Pipe, we find ourselves 

in agreement with the courts holding that class action tolling is available under an opt-in 

scheme. In our view, such a result is most consistent with the objectives which class 

action procedures are meant to achieve. See, e.g., Crown, Cork & Seal, 462 U.S. at 

361 (reasoning that if the statute of limitations were not tolled by the filing of a class 

action, “[t]he result would be a needless multiplicity of actions—precisely the situation 

that [FRCP] 23 and the tolling rule of American Pipe were designed to avoid.”); see 

also, Escott, 340 F.2d at 733 (stating that the “obvious desirability of avoiding a 

multiplicity of actions turns us toward favoring the representative suit and encouraging 

its use.”); Basch v. Ground Round, Inc., 139 F.3d 6, 10 (1st Cir. 1998) (“[i]n American 

 6

 The ADEA borrows the opt-in class action procedure of the Fair Labor 

Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq. 24 F.3d at 464. The court 

noted that the relevant statutory provision states that an opt-in class member’s claim for 

relief under the FLSA “does not commence until the date the opt-in member’s written 

consent to join the representative action is filed.” Id., citing 29 U.S.C. § 256. 

7

 The court identified the “three basic purposes” of a statute of limitations 

as, first of all, a “practical and pragmatic device[ ] to spare the courts from litigation of 

stale claims, and the citizen from being put to his defense after memories have faded, 

witnesses have died or disappeared, and evidence has been lost.” Secondly, limitations 

periods “put defendants on notice of adverse claims,” and thirdly, they “prevent plaintiffs 

from sleeping on their rights.” Id. at 471-472 (quotations and citations omitted). 

2009-5048 23
Pipe the Supreme Court balanced the policies served by the class action rule, [FRCP] 

23, and the policies served by the statute of limitations.”). In short, we think that, all 

other considerations being equal, the laudable goal of avoiding “multiplicity of actions” 

should prevail. 

B. 

 As noted, however, the government urges that, unlike FRCP 23, which was at 

issue in American Pipe, RCFC 23 is not statutory and cannot carry the force of law. 

And the government notes that the Court of Federal Claims cannot, through its 

procedural rules, expand its jurisdiction. See supra Rolls-Royce, 364 F.2d at 419. 

RCFC 23 was promulgated in accordance with the authorization of Congress. 28 

U.S.C. § 2503 vests the Court of Federal Claims with the authority to prescribe rules of 

procedure governing the conduct of cases in the court, which cases include class 

actions. See 28 U.S.C. § 2503(b). “[U]nlike the United States district courts, which lack 

the power to promulgate their own rules . . . Congress authorized the Claims Court [the 

predecessor of the Court of Federal Claims] to adopt its rules without the need for 

supervisory or statutory oversight.” M.A. Mortenson Co. v. United States, 996 F.2d 

1177, 1183 (Fed. Cir. 1993). In M.A. Mortenson, we observed that “[i]t is well 

established that a court’s procedural rules promulgated pursuant to statutory 

authorization are deemed to have the force and effect of law.” 996 F.2d at 1183-84. 

We also addressed the authority of the Court of Federal Claims’ predecessor to 

promulgate its rules in Wood-Ivey Sys. Corp. v. United States, 4 F.3d 961 (Fed. Cir. 

1993). In that case, we rejected the government’s contention that Claims Court Rule 

6(a), dealing with the computation of time, could not apply to the statutory period for 

2009-5048 24
filing a claim under the CDA in the Claims Court. See 41 U.S.C. § 609(a). We stated 

that “Claims Court Rule 6(a) was enacted in accordance with the authorization of 

Congress to promulgate rules of procedure. It is an official rule on which the court and 

the public must rely.” Id. at 964. 

When, in Stone Container, we accorded CIT Rule 23 tolling force, and applied it 

against the government, we relied on the fact that the statute of limitations at issue 

incorporated the court’s procedural rules. 229 F.3d at 1354. The Stone Container court 

did not speak to the question of whether the court’s rules still would have been given 

such force if they had not been so incorporated, but instead had been promulgated 

under authority given by Congress. The M.A. Mortenson court did speak to this 

question, however. In reviewing a grant of sanctions against the government under 

RCFC 37, we explained that the court’s procedural rules “have the same force and 

effect as if expressly included in the statute,” and that that force is “only strengthened

when the rule in question specifically adopts its corresponding FRCP.” M.A. Mortenson, 

996 F.2d at 1184 (emphasis added). In M.A. Mortenson we rejected the government’s 

argument that the court lacked jurisdiction to enforce its own rules of procedure, finding 

“no basis on which to differentiate between the abilities of the federal district courts and 

the Court of Federal Claims to [enforce a rule] against the United States pursuant to 

either the FRCP or the [RCFC].” Id. 

Stone Container’s holding that the filing of a class action complaint under CIT 

Rule 23 can toll the limitations period of 28 U.S.C. § 2636(i), combined with the Court of 

Federal Claims-specific teaching of M.A. Mortenson, instructs us to permit the filing of a 

class action complaint in the Court of Federal Claims to toll the limitations period of 28 

2009-5048 25
U.S.C. § 2501. Permitting such tolling comports with the proposition that the rules of 

the Court of Federal Claims, which are promulgated pursuant to statutory authorization, 

“are deemed to have the force and effect of law.” M.A. Mortenson, 996 F.2d at 1183. It 

also comports with the logical goal of having class action procedures in the Court of 

Federal Claims operate in a manner consistent with the American Pipe rationale for 

class actions. See American Pipe, 414 U.S. at 555 (“insur[ing] effectuation of the 

purposes of litigative efficiency and economy” while giving defendants “the essential 

information necessary to determine both the subject matter and size of the prospective 

litigation”). By contrast, prohibiting tolling under RCFC 23 in this case would not serve 

the purposes of the class action rule. Instead, it would eliminate class actions in the 

Court of Federal Claims in instances where suit was filed, and class certification was 

sought, before the expiration of section 2501’s limitations period, but the putative class 

was not certified before the period expired. This would increase the likelihood of 

multiplicity of suits. 

C. 

The government candidly acknowledges the authority of Stone Container, M.A. 

Mortenson, and Wood-Ivey. It argues that these cases do not help Appellants, 

however, because they did not involve 28 U.S.C. § 2501 and were decided prior to John 

R. Sand & Gravel. As seen, John R. Sand & Gravel was the linchpin of the decision of 

the Court of Federal Claims. The court was of the view that John R. Sand & Gravel

“rigidly proscribes any tolling” because of the “absolute nature of the six-year statute of 

limitations imposed by § 2501.” Dismissal Order, 86 Fed. Cl. at 91. 

2009-5048 26
As this court recently noted en banc, “[t]he issue in John R. Sand & Gravel was 

narrow. The Supreme Court stated: ‘The question presented is whether a court must 

raise on its own the timeliness of a lawsuit filed in the Court of Federal Claims, despite 

the [g]overnment’s waiver of the issue.’” Henderson v. Shinseki, 589 F.3d 1201, 1217 

(Fed. Cir. 2009) (en banc), quoting John R. Sand & Gravel, 552 U.S. at 132. The 

Supreme Court held in John R. Sand & Gravel that section 2501 requires such sua 

sponte consideration, thereby affirming the decision of this court “to ignore the 

[g]overnment’s waiver and to decide the timeliness question.” Id. at 133. In so holding, 

the Court reasoned that section 2501 is a “jurisdictional” statute of limitations of the type 

that “forbids a court to consider whether certain equitable considerations warrant 

extending a limitations period.” Id. at 134. John R. Sand & Gravel did not address the 

question before us. That question is whether section 2501’s limitations period is 

non-equitably tolled for putative class members under RCFC 23 when a class action 

complaint is filed, and class certification is sought, prior to the expiration of the 

limitations period. 

In Arctic Slope, we rejected “the government’s sweeping contention that any time 

limitation . . . which defines the matters that a board or court may adjudicate . . . is not 

subject to class action tolling because that provision is ‘jurisdictional’ in nature.” 583 

F.3d at 793. So too here, we reject the notion that John R. Sand & Gravel “rigidly 

proscribes” class action statutory tolling of section 2501. See Dismissal Order, 86 Fed. 

Cl. at 91. 

In our view, the fact that equitable tolling is barred under section 2501 does not 

mean that class action statutory tolling also is barred. The two concepts are different. 

2009-5048 27
Equitable tolling is a principle that permits courts to modify a statutory time limit and 

“extend equitable relief” when appropriate. See Irwin, 498 U.S. at 96 (describing the 

range of instances in which courts have applied the equitable tolling doctrine); see also, 

Hallstrom v. Tillamook County, 493 U.S. 20, 27 (1989) (a “traditional equitable tolling 

principle” should not be applied to a statutory limitations period when “the equities do 

not weigh in favor of modifying statutory requirements”). Class action statutory tolling, 

on the other hand, does not modify a statutory time limit or “extend equitable relief.” 

Rather, it is a procedure that suspends or tolls the running of the limitations period for all 

purported members of a class once a class suit has been commenced, in a manner 

consistent with the proper function of a statute of limitations. See Arctic Slope, 583 F.3d 

at 791 (statutory class action tolling principles permit “the statute of limitations [to be] 

suspended during the pendency of the class action proceedings”). 

By the same token, RCFC 23, which has “the force and effect of law,” see M.A. 

Mortenson, 996 F.2d at 1183, does not modify a statutory time limit or “extend equitable 

relief.” Its procedures can only come into play once a class action complaint has been 

filed within the section 2501 limitations period. Neither does tolling of the limitations 

period under RCFC 23 turn on “equities,” because such tolling is not triggered by 

equitable considerations. See, e.g., Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946) 

(equitable considerations apply where a plaintiff has been injured by fraud and remains 

in ignorance of it without any fault or want of diligence or care on his part); Glus v. 

Brooklyn Eastern Dist. Terminal, 359 U.S. 231, 235 (1959) (equitable considerations 

apply when plaintiff was intentionally misled by defendant into letting filing period lapse); 

Klehr v. A.O. Smith Corp., 521 U.S. 179, 194 (1997) (equitable tolling warranted when a 

2009-5048 28
plaintiff does not know of a defendant's fraudulent activity and defendant affirmatively 

conceals the activity). RCFC 23 tolling, on the other hand, serves to facilitate the 

objectives of the class action procedure. See, e.g., American Pipe, 414 U.S. at 553, 

558 (“the efficiency and economy of litigation . . . is a principal purpose of the [class 

action] procedure”). In sum, we are not persuaded by the government’s argument that 

allowing class action tolling in this case would be contrary to the statement of the 

Supreme Court in John R. Sand & Gravel that 28 U.S.C. § 2501 is “jurisdictional.” 

Moreover, this is not a case in which section 2501’s limitations period was not 

satisfied. Ms. Fauvergue filed her class action complaint prior to the expiration of 

section 2501’s six-year period. In addition, she moved for class certification prior to the 

expiration of the limitations period. While it is true that no individuals other than Ms. 

Fauvergue were named in the original complaint, we are unwilling to hold that that fact 

results in section 2501 operating as a bar to their opting in to the action. Such a holding 

would create a regime in which prospective class action plaintiffs would be charged with 

the task of forecasting when, during the pendency of a class action proceeding, the 

class certification process and opt in period would be completed so that section 2501 

would be satisfied. See Arctic Slope, 583 F.3d at 791 (noting “it is unknowable at the 

time a class action is filed whether the class will be certified”); Sperling, 24 F.3d at 467 

(describing the practical problems that would ensue if tolling were not permitted in opt-in 

class actions). It also would place on the court the burden of timing class certification 

and implementing opt-in procedures in such a way as to make sure that the limitations 

period was met. This would be virtually impossible in cases such as this, where suit 

was filed late in the period. See, Brief of Amici Curiae Larry J. Rhutasel et al. at 11-12 

2009-5048 29
(unintentional procedural delays in ruling on class certification would terminate putative 

class members’ claims if tolling did not permit putative members to opt in to a 

representative suit after the statute of limitations had run). 

Such a holding also would create an anomalous difference between the conduct 

of class action litigation under the Tucker Act, 28 U.S.C. § 1491(a)(1), and the Little 

Tucker Act, 28 U.S.C. § 1346(a)(2). While the Tucker Act gives exclusive jurisdiction to 

the Court of Federal Claims for claims over $10,000, the Little Tucker Act provides 

federal district courts with jurisdiction, concurrent with the Court of Federal Claims, for 

claims against the government below $10,000. As the Court of Federal Claims 

acknowledged in its Dismissal Order, 86 Fed. Cl. at 88, if section 2501 is not subject to 

class action tolling, a situation can exist where one class-action complaint, filed under 

FRCP 23 and 28 U.S.C. § 24018 in federal district court under the Little Tucker Act, can 

cover the putative class, while the same class-action complaint, filed under RCFC 23 

and section 2501 in the Court of Federal Claims, cannot provide jurisdiction over the 

identical putative class members. 

In this respect, we would be creating a regime in which the class action process 

in the Court of Federal Claims was not just different from the class action process in 

federal district court (opt-in versus opt-out), but was also so cumbersome and unwieldy 

in its operation that, unlike the process in district court, it frustrated the purpose of 

avoiding multiplicity of suits. Supreme Court precedent strongly suggests that such a 

result, i.e., one in which jurisdictional differences dictate different outcomes in the law, is 

 8

 Section 2401 states, in relevant part, that “every civil action commenced 

against the United States shall be barred unless the complaint is filed within six years 

after the right of action first accrues.” 28 U.S.C. § 2401(a). 

2009-5048 30
not favored. See, e.g., Dickinson v. Zurko, 527 U.S. 150, 165 (1999) (holding that the 

Federal Circuit should not accord less deference to factual findings of the Patent and 

Trademark Office than courts accord to the findings of other agencies under the 

Administrative Procedure Act); eBay Inc. v. MercExchange LLC, 547 U.S. 388, 390-91 

(2006) (holding that application of equitable principles in evaluating requests for 

permanent injunctions under the Patent Act should not differ from treatment of 

permanent injunctions in other fields of law); MedImmune, Inc. v. Genentech, Inc., 549 

U.S. 118, 139-140 (2007) (holding that the standard for assessing whether a justiciable 

controversy exists should not be more stringent in lawsuits seeking a declaration of 

patent invalidity or noninfringement than in non-patent fields). 

Finally, we agree with the reasoning of the predecessor of the Court of Federal 

Claims in Barbieri v. United States, 15 Cl. Ct. 747 (1988). Barbieri involved a Tucker 

Act suit in the Claims Court by customs agents working in Key West, Florida. The 

National Treasury Employees Union, together with five named individuals, filed a class 

action complaint asserting that members of a class of customs agents were entitled to 

extra compensation for performing temporary boarding officer services to assist in 

searches for Cuban refugees, for the processing of refugees, and for the enforcement of 

related immigration laws, all of which they had undertaken in the spring of 1980. Id. at 

748. The complaint, filed “in the waning months of [section 2501’s] limitations period,” 

stated that suit was being brought on behalf of a class potentially in excess of 80 

individuals. Id. at 749. 

The court denied class certification in 1988. Following denial of class 

certification, suit was filed by thirteen unnamed members of the class on whose behalf 

2009-5048 31
class certification had previously been sought. Id. That suit was filed after the 

limitations period had run. Accordingly, the court stated that the action was “clearly 

time-barred unless . . . the running of the limitations period was tolled for the period that 

the motion for class certification remained pending before the court.” Id. Addressing 

the question, the court rejected the government’s argument that the second suit was 

barred by the statute of limitations, allowing class action tolling for the period that the 

motion for class certification remained pending before the court in the first suit. Id. at 

749-50. 

Significantly, the Claims Court arrived at its decision even though it agreed with 

the government that “governing case law insists upon a strict construction of the court’s 

statute of limitations.” Id. at 752. For this rule, the court cited Soriano v. United States, 

352 U.S. 270, 276 (1957). The Court in John R. Sand & Gravel reaffirmed the authority 

of Soriano. 552 U.S. at 136-37. Thus, although Barbieri was decided prior to John R. 

Sand & Gravel, it proceeded under the same premise as that decision—that 28 U.S.C. 

§ 2501 is jurisdictional. We agree with Barbieri that allowing class action tolling “does 

not involve [the court’s] power to ‘liberalize’ the statute of limitations but rather its power 

to avoid a multiplicity of suits through a representative action.” Barbieri, 15 Cl. Ct. at 

752, citing Western Cherokee Indians v. United States, 27 Ct. Cl. 1, 54 (1891); aff’d sub 

nom, United States v. Old Settlers, 148 U.S. 427, 479-80 (1893). 

D. 

Accordingly, we answer as follows the question of first impression presented in 

this case. When, as here, a class action complaint is filed within the six-year limitations 

period of 28 U.S.C. § 2501 as to one named plaintiff, putative class members are 

2009-5048 32
permitted to opt in under RCFC 23 after expiration of the limitations period, when class 

certification is sought prior to expiration of the period, but the complaint is not amended 

to add other named plaintiffs as putative class members until after expiration of the 

period.9

 The statute of limitations is tolled during the period the Court of Federal Claims 

allows putative class members to opt in to the class.10 Thus, when a class action 

complaint is filed and class certification is sought prior to the expiration of section 2501’s 

limitations period, the limitations period is subject to class action tolling during the period 

the court allows putative plaintiffs to opt in to the class. 

CONCLUSION 

For the reasons set forth above, we hold that the running of the six-year 

limitations period of 28 U.S.C. § 2501 was tolled for all putative members of the opt-in 

class in this case. We therefore reverse the Court of Federal Claims’ dismissal of the 

second amended complaint as to all plaintiffs other than Ms. Fauvergue. We remand 

the case for proceedings on the merits of Appellants’ taking claims.11 Based upon our 

disposition of this appeal, it is not necessary for us to address the question of whether 

section 2501’s limitations period was satisfied through relation-back under RCFC 15.12 

 9

 We leave for another day the question of whether tolling would be allowed 

where class certification was sought after expiration of the limitations period. 

10 Under RCFC 23, the Court of Federal Claims directs to individual class 

members the best notice that is practicable under the circumstances and that clearly 

and concisely states, inter alia, “the time and manner for requesting inclusion.” RCFC 

23 (c)(2)(B)(vi). 

11 If, after receiving the views of the parties, the Court of Federal Claims 

determines that there are additional putative class members who should be given the 

opportunity to opt in to the suit, it can, consistent with this opinion, fashion an 

appropriate procedure under RCFC 23. 

12 As to the Court of Federal Claims’ ruling that the requirements for class 

action certification were met, we let it stand at this point. We agree that the government 

2009-5048 33
2009-5048 34

COSTS 

No costs. 

REVERSED and REMANDED

 

correctly did not seek to challenge the class certification ruling in this appeal. See

Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1322 (Fed. Cir. 2008) (“[a]s we have 

repeatedly explained, a party lacks standing to cross-appeal unless it is adversely 

affected by the judgment it seeks to challenge”). The government is not precluded from 

appealing the certification ruling at a later date if circumstances warrant and it chooses 

to do so.