## 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, NORM A LOU HALL, HOMER E. HAMILTON, DEBBIE M. HAMILTON, SHIRLEY HENDRICKS, DAVI D HOUSER, GAIL HOUSER, PATRICK J. O’BRYAN, TRUSTEE OF THE PATRICK J. O’BRYAN REVOCABLE LI VING 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. Wi th him on the brief were Lindsay S.C. Brinton and Meghan S. Largent

. Kristine S. Tardiff , Attorney, Environment and Natura l 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, NO RMA LOU HALL, HOMER E. HAMILTON,

DEBBIE M. HAMILTON, SHIRLEY HENDRI CKS, DAVID HOUSER, GAlL HOUSER,

PATRICK J. O'BRYAN, TRUSTEE OF TH E PARTICK J. O'BRYAN REVOCABLE LIVING TRUST UNDER AGREEMENT DATED 9/7/2001, LESTER ROARK, DONALD LEE ROPER, II, RICKY D. RUSSE LL, 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 (“Appe llants”) are putative members of a class of landowners seeking compensation under the Fifth Amendment pursuant to the TuckerAct, 28 U.S.C. § 1491(a)(1). They seek co mpensation for the alleged taking of their respective property interests under the Na tional 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 t he 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 opt ed 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 to lled. The limit ations period is tolled during the period the court allows potential class member s to opt in to the class. We therefore reverse the judgment of t he 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 Tr ails Act. The Trails Act sets out a statutory scheme pursuant to which unus ed railroad lines can be converted into designated trails for recreational uses. See Preseault v. Interstate Commerce Comm’n ,

2009-5048 2494 U.S. 1, 5 (1990) (stating that the purpose of the Trails Ac t 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 (“S TB”) is charged with regulating the construction, operation, and aba ndonment 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 standar d abandonment application or (2) seek an exemption from f iling such an application. Id. If the STB approves a standard abandonment application or grant s an exemption, and the railroad ceases operation over the line, the STB relinquishes jurisdic tion over the abandoned railroad right of way and state law reversionary property in terests, if any, take effect. Id. at 1228-29. Through a process known as “railbanking,” t he 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, munici pality, or private group (t he “trail operator”) to assume financial responsibility for operat ing the railroad right of way as a recreational trail. Id. If the railroad and the tra il operator are wi lling to negotiate a trail use agreement, the STB stays the abandonment process and issues a notic e 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 3abandonment of the use of su ch rights-of-way for railr oad purposes.” 16 U.S.C. § 1247(d). What this means is that the Tra ils Act prevents the operation of state laws that would otherwise come into effect upo n abandonment, specifically, property laws that would “result in exting uishment of easements for ra ilroad purposes and reversion of rights of way to abutting landowners.” Rail Abandonments—Use of Rights—of—Way as Trails , Ex Parte No. 274 (Sub-N o. 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 wh en 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 purs uant to regulations prom ulgated by the STB. Id. If the petition meets regulatory criteria, and the railroad agr ees to negotiate with the potential trail operator, the STB issues a Notice of Interi m Trail Use or Abandonment (“NITU”) to the railroad and to the potential tr ail 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 on ce an agreement is reached between the railroad and the tr ail operator. Id.

2009-5048 4II. The facts pertinent to this case are not in dispute. Appell ants are landowners who allege that the co nversion of a railroad line into a pub lic hiking trail under the Trails Act resulted in a Fifth Amendment taking of t heir reversionary property interests. The railroad line at issue r an 28.25 miles between Columbus , in Cherokee County, Kansas, and Carthage, in Jasper Count y, Missouri. The line cons isted of a 100-foot-plus wide strip of land that was or iginally secured by the Me mphis Carthage & Northwestern Railroad Company (the “MCNRC”) in 1876. T he MCNRC retained the line until 1980, when it transferred it to the St. Louis and S an Francisco Railroad Company. Eventually, following a series of mergers, in 1995 thatcompany became the Burlington Northern and Santa Fe Railway Company (the “BNSF”). On May 23, 2002, The STB p ublished a Notice of Exempt ion filed by the BNSF. In the Notice, the BNSF sought to abandon t he Columbus-Carthage railroad line, based upon two years of nonuse. See The Burlington Norther n and Santa Fe Railway Company—Abandonment Exempt ion—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-C arthage 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 Fi fth 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 5on which the six-year limitat ions 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 si x years after such claim first accrues.” Therefore, as of June 21, 2002, June 21, 20 08 was the last day on which any affected landowner could file a Fifth Amendment taking claim in t he Court of Federal Claims based on the rail-to-trail conversion in this case. III. On June 12, 2008, Ms. Fauvergue filed a cla ss-action complaint in the Court of Federal Claims under the Tucker Act. In her co mplaint, she sought, on behalf of herself and as “representative of a class of simila rly situated persons,” compensation for the value of the land now occupied by the Co lumbus-Carthage trail and for the diminished value of the adjoining property. Ms. Fauv ergue 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 rail road 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. Si x days later, on June 18, 2008, she filed a motion to certify the class with an accom panying 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 F ederal Claims granted leave to amend the complaint a second time to add twenty puta tive class members as named plaintiffs, under Court of Federal Claims Rule (“RCFC”) 23, the rule governing class actions in the

2009-5048 6Court of Federal Claims. See Fauvergue v. United States , 85 Fed. Cl. 50 (2008). Thereafter, however, on February 24, 2009, t he 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 distin ction 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 Civ il 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 attemp ting 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 putat ive 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 allow ed the filing of a timely class action complaint to toll the applicable statute of limit ations in the Court of International Trade

1 Under the former, in order to bec ome 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 7for putative members of the class. Id. at 90. Stone Containerwas decided in the context of Court of Internati onal Trade Rule 23 (“CIT Rule 23 ”), which also involves an opt-out procedure. This c ourt described the tolling in American Pipe , Crown, Cork & Seal , and Stone Containeras “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 F ederal Claims to allo w putative class members to opt into a suit under RCFC 23 after the expiration of sect ion 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 tha t, 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 Containerincorporated the rule s 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 stat utes 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 ofthe 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 8The Court of Federal Claim s also rejected Appellants’ argument that RCFC 15(c) supported amending the complaint to add putati ve 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-bac k doctrine cannot be used to re vive 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 cons idered the merits of plaintiffs’ class certification motion, and rendered an alternative ruling to its dism issal 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 certifi ed the class had it not lacked jurisdiction by reason of the operation of the statut e of limitations. Id. at 101. Final judgment dismissing the claims of all named plaintiffs except Ms. Fauv ergue was entered on F ebruary 27, 2009. Thereafter, Appellants timely appealed. We have jurisdicti on pursuant to 28 U.S.C. § 1295(a)(2).

2 The court summarized the requirement s of RCFC 23(a) and (b) as follows: (1) numerosity, (2) commonality, (3) typicali ty, (4) adequacy, and (5) superiority (i.e., superiority of a class action to ot her 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). T he court analyzed each of the elements and found plaintiffs had satisfied all five.

2009-5048 9DISCUSSION 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 w ould 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 inconsis tent” with the proper function ofa statute of limitations, because when suit was filed, a defendant would have been not ified of the substantive claims and “also of the number and generic ident ities 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 signific antly overhauled from its original 1938 version. As noted, FRCP 23 contemplat es 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 eithernonparties to the suit and ineligible to participate in a recovery or to be bound by a judgment, or else th ey are full members who must abide by the final j udgment, whether favorable or ad verse.” 414 U.S. at 549. The prior 1938 version of FRCP 23, wh ich was superseded by the 1966 amendments,

32003 amendments to FRCP 23 ch anged 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 10involved 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 me mbers were actual members bound by the judgment, thereby allowing me mbers of the class to aw ait 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, in cluding those who subsequently file their own suits, because tolli ng properly allows class members to “rely on the existence of the suit to protect their ri ghts.” 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 und er 28 U.S.C. § 1581(i), is subject to class action tolling under CIT Rule 23. The court he ld that it is. The court fi rst explained that the Supreme Court’s decisions in “ American Pipe and Crown, Cork & Seal were not based on judgemade equitable tolling, but rat her on the Court's interpretation of Rule 23.” 229 F.3d at 1354. Continuing, the court stat ed that “[b]ecause ‘[a]ll laws in conflict with [the Federal Rules of Civil Procedure] shal l be of no further force and e ffect after such rules have taken effect,’ 28 U.S.C. § 2072(b), the Federa l Rules of Civil Procedur e, 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 11were 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] ofa federal statute.” Sibbach v. Wilson & Co. , 312 U.S. 1, 13 (1941). The Stone Containercourt therefore described tolling under FRCP 23 as “statutory.” 229 F. 3d at 1354. Turning to CIT Rule 23, the court ack nowledged 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 Inter national 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 courtwithin two years after the cause of action first accrues.”) Id. (emphasis in opinion). The Stone Containercourt therefore rejected t he government’s attempt to distinguish CIT Rule 23 from FRCP 23 “for purposes of American Pipe .” Id. The court concluded: “Having determined that [CIT] Ru le 23 tolling is stat utory rather than equitable, it follows that the rule of American Pipe applies to the government just as it does to private parties, both generallyand in this particular case.” Id. In Arctic Slope Native Associ ation, 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 decis ion of the Court of Federal Claims in this case, involved Indian tribes and tribal or ganizations 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 (“ISD A”), 25 U.S.C. §§ 450-450n. The case before the court

2009-5048 12arose when the Civilian Board of Contract Appeals (“Board”) dismissed certain ISDA contract claims by the Indian tribes and tri bal organizations because the claims were not presented to the government’s contracting officers within six years after the claims accrued, as required by secti on 605(a) of the Contract Dis putes Act (“CDA”), 41 U.S.C. § 605(a). 1988 amendments to the ISDA m ade the CDA applicable to disputes concerning self-determi nation contracts. One of the questions before the Arctic Slope court was whether class action tolling was available with respect to sect ion 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 contra cting officer within that time period was jurisdictionally barred from further review, adm inistrative or judicial. 583 F.3d at 791. The appellant Indian tribes and tribal organizations argued t hat the six-year presentment period in sect ion 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 l egal tolling on the fact that they were members of putative classes in eit her 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) shou ld be tolled until class cert ification 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 condit ion on the waiver of so vereign immunity, the statute is jurisdictional, and its time period is not subject to class action tolling. The

2009-5048 13court stated: “The government’s contentions that class action tolling cannot apply to a temporal limitation on actions against t he 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 governm ent’s attempt to distinguish Stone Containeras not involving a “jurisdictional statute of limitations” by explai ning that “[t]he lim itations statute at issue in Stone Container. . . constituted a waiver ofsovereign immunity and thus defined the court’s jurisdiction.” Id. at 792-93. Ultimately, the Arctic Slope court denied the appellants the benefit of cl ass action tolling. The court did so not because the limitations provision at iss ue was “jurisdictional” in nat ure, but rather because the appellants had failed to exhaust their administrat ive 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 gover nment’s “alternative, and na rrower,” 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 suit s had been permitted to continue. Id. at 793. The court noted that a claimant who complied with the administrativ e claim presentment requirements “would be eligible to benefit from classwide relief and would presumably be entitled to class action tolling.” Id. at 797. 4

4The court did, however, conclude that the appellants were potentially eligible for equitable tolling. The court reasoned that the Suprem e Court’s holding in Irwin v. Department ofVeterans Affairs , 498 U.S. 89, 95-96 (1990) applied. In Irwin , the Court held that “the same rebu ttable presumption of equitabl e 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 equitabl e tolling to be availa ble unless there is good reason to believe otherwise.” 583 F.3d at 798.

2009-5048 14American Pipe , Crown, Cork & Seal , Stone Container , and Arctic Slope outline the framework of class action to lling, as applied both against private parties and against the government. None of thes e 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 F ederal 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 peri od of 28 U.S.C. § 2501 by one named plaintiff, are putative class member s permitted to opt in under RCFC 23 after expiration of the limitations period, when class certification was sought prior to expiration of the limi tations period, but the complaint was not amended to add other named plainti ffs as putative class members until after expiration of the limitations period? As seen, the Court of Feder al Claims answered this q uestion 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 t he 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 event ually 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 si tuated Missouri and Kansas landowners whose property was subject to the June 21, 2002 NITU and who were subsequently

2009-5048 15determined to be members of t he class. Thus, in Appell ants’ view, section 2501 was satisfied for every class member when Ms. Fauvergue filed her co mplaint on June 12, 2008. See Appellants’ Br. 28. In advancing th is argument, Appellants point to the statement in American Pipe that “the commencement of t he action satisfied the purpose of the limitation provision as to all those who might subseque ntly participate in the suit as well as for the named plaint iffs.” 414 U.S. at 551. Appellants’ second argument is that the Court of F ederal Claims erred by not suspending or tolling the statut e of limitations to allow putat ive class members to opt in to the action. Appellants ur ge 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 Cl aims 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 tolli ng but also class action statutory tolling. See Dismissal Order , 86 Fed. Cl. at 91; Appe llants’ Br. 70, 77-79. Appellants argue that becaus e the Supreme Court has read FRCP 23 to permit statutory tolling in cl ass 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 oper ate similarly to permit tolling here. Appellants, along with several amici curiae, namely, National F ederation of Federal Em ployees; Larry J.

2009-5048 16Rhutasel et al.; and Klamath Irrigation District et al., contend that ifthis court does not reverse the decision of the Cour t of Federal Claims, use of class-action procedures will be effectively eliminated in t he Court of Federal Claims. See, e.g. , Appellants’ Br. at 64- 67; National Federation of Feder al Employees Br. at 17-19. Finally, Appellants co ntend 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 complain t for purposes of independently satisfying the limitations period of secti on 2501. Appellants argue that the original class action complaint identified the same “conduct, transact ion, or occurrence” giving rise to the government’s liability (the iss uance of the NITU) that was specified in the second amended complaint, with the result that Appellants’ claims rela ting to this general fact situation should not be time -barred under section 2501. See Appellants’ Br. 86-88. The government responds that we should af firm the final judgment of the Court of Federal Claims. The government argues firs t that there is no me rit 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 whethe r 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 t he statute of limitations ,” not satisfy it. See Appellee’s Br. 23-24. Turning next to the issue oftolling, the government pos its that, while this court has not yet ruled on whether American Pipe tolling applies to opt-in class actions, the

2009-5048 17answer to the question lies in reconciling RCFC 23 and 28 U.S.C. § 2501. Id. at 30. Addressing the question on those terms, th e government states first that, in John R. Sand & Gravel , the Supreme Court “reaffi rmed that the six-year statute of limitations applicable to Appellants’ claims is jurisdictional and not s ubject 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 tolli ng” because of the “abs olute nature of the six-year statute of limit ations 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, whic h was at issue in American Pipe , RCFC 23 is not statutory. Accordi ng to the government, that is because the procedural rules of the Court of Federal Claims are nottransmitted to Congress for review and approval under 28 U.S.C. §§ 2071-74. Therefor e, 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 Feder al Claims “cannot, thr ough its acknowledged rule-making power, expand its jurisdiction beyond the limits pr escribed by Congress.” Rolls-Royce, Ltd. v. United States , 364 F.2d 415, 419 (Ct. Cl. 1966). See Appellee’s Br. 33. Second, the government point s out that, in contrast to Stone Container , where the relevant statute of limitations incorpor ated CIT Rule 23, section 2501 does not incorporate RCFC 23. Third, and in the view of the gov ernment most importantly, neither American Pipe , Crown, Cork & Seal , nor Stone Containerinvolved a statute of limitations that the S upreme Court had held to be jurisdicti onal and not subject to tolling.

2009-5048 18See Appellee’s Br. 34-35. With American Pipe and Crown, Cork & Seal in mind, the government contends that the Supreme Court held tolling av ailable in priv ate 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 inc onsistent with the func tional operation” of the statute of limitat ions 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 reje ct Appellants’ relianc e on the “relationback” rule set forth in RCFC 15. Citing Snoqualmie Tribe of Indi ans v. United States , 372 F.2d 951, 960 (Ct. Cl. 1967), t he government states that “[t]he test fo r determining whether a claim added by an amendment to a co mplaint 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 essentiallyone of notice.” Appellee’s Br. 44-45. The government argues that the relation-back ru le of RCFC 15 is not available to Appellants because, in John R. Sand & Gravel , the Supreme Court made it clearthat section 2501 is not the kind of statute of limitations that seeks primarily to pr otect defendants against stale or unduly delayed claims, but rather is the kind ofstatute of limitations that “seek[s] to achieve a broader system-related goal, such as . . . limiting the sc ope 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 sect ion 2501 outright for all putative members of

2009-5048 19the class. We reject this argument. We do so because we are not prepared to extend non-class action case law, which permits the f iling 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 commenc ed by the filing of a complaint with the court”), to cover class acti ons. It is true that the American Pipe Court stated that “the commencement of the action sati sfied the purpose of the limit ation 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, howe ver, that the means by which the action “satisfied” the limitatio n 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 appropri ate statute of limitations as being “to lled,” 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 per iod was tolled.” Stone Containerat 1352. We therefor e agree with the Court ofFederal Cla ims and the government that section 2501 was not satisf ied 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 limit ations period in question. See Black’s Law Dictionary 1625 (9 th ed. 2009).

2009-5048 20IV. We turn now to the question of tolling. In that regard, as we have seen, the decision of the Court of Feder al 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, becaus e RCFC 23 is not statutory and is not incorporated by reference into 28 U.S.C. § 2501, it cannot sup port the kind of class action tolling scheme applied by the Supreme Court in American Pipe

. See Dismissal Order , 86 Fed. Cl. at 89-90. Se cond, 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 stat utes of limitation, whereas t he statutes of limitation in American Pipe , Crown, Cork & Seal , and Stone Containerhave not been characterized in that manner.” Dismissal Order , 86 Fed. Cl. at 93. Accord ingly, the court concluded that “ John R. Sand & Gravel limits, or even abrogat es, the ability of the Court of Federal Claims to use any rule of the court, equitabl e 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 procedur e 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 feder al appeals and trial courts as to whether parties should be allo wed to join or intervene as members of a “spurious” class after the termination of a limit ations period, when the initial class action complaint was filed before the period had r un. 414 U.S. at 549. The court observed

2009-5048 21that “[a] majority of the courts ruling on the question, emphasizi ng 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 t ook 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 plai ntiff 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 stat ute of limitations “for those in whose behalf the representative action is brought as well as fo r 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 joi nder or intervention, each individual also participating would have to satisf y the timeliness requirement.” American Pipe , 414 U.S. at 550. A split of authority has c ontinued 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 . . . consistentwith 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 Elevent h Circuit reasoned that tolling should not apply to plaintiffs suing under the ADEA, be cause “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 au thority 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 mo st 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 statut e of limitations were not to lled by the filing of a class action, “[t]he result would be a needless multiplicity of actions—precisely the situation that [FRCP] 23 and t he tolling rule of American Pipe were designed to avoid.”); see also , Escott, 340 F.2d at 733 (stating that the “obvious desirabilityof avoiding a multiplicity of actions turns us toward favo ring 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 unt il the date the opt-in member’s written consent to join the representative action is filed.” Id. , citing 29 U.S.C. § 256. 7The court identified the “three basic purposes” of a statut e of limitations as, first of all, a “practical and pragmatic de vice[ ] 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 disappear ed, 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 23Pipe the Supreme Court balanced the policies served by t he class action rule, [FRCP] 23, and the policies served by t he statute of limitatio ns.”). In short, we think that, all other considerations being equa l, 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 c annot carry the force of law. And the government notes that the C ourt of Federal Claim s cannot, through its procedural rules, expa nd its jurisdiction. See supra Rolls-Royce , 364 F.2d at 419. RCFC 23 was promulgated in a ccordance with the authorization of Congress. 28 U.S.C. § 2503 vests the Court of Federal Claim s 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 it s 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 ru les promulgated purs uant 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 gover nment’s contention that Claims Court Rule 6(a), dealing with the computation of time, could not apply to the statutory period for

2009-5048 24filing 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 ofprocedure. 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 to lling force, and applied it against the government, we relied on the fact t hat the statute of lim itations at issue incorporated the court’s procedural rules. 229 F.3d at 1354. The Stone Containercourt did not speak to the question of whether the court’s rule s still would have been given such force if they had not been so inco rporated, 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 specificallyadopts 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 ofprocedure, finding “no basis on which to different iate between the abilities of t he federal district courts and the Court of Federal Claims to [enforce a rule] against t he United States pursuant to either the FRCP orthe [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), comb ined with the Court of Federal Claims-spec ific teaching of M.A. Mortenson , instructs us to permit the filing of a class action complaint in the Court of Federal Claims to to ll the limitations period of 28

2009-5048 25U.S.C. § 2501. Permitting su ch tolling comports with the pr oposition that the rules of the Court of Federal Claims, which are promulgated pursuant to statut ory authorization, “are deemed to have the force and effect of law.” M.A. Mortenson , 996 F.2d at 1183. It also comports with the logica l 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 econom y” while giving def endants “the essential information necessary to determine both the s ubject 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 cl ass 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 ackn owledges the authority of Stone Container , M.A. Mortenson , and Wood-Ivey . It argues that these case s 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 wa s 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 26As this court recently noted en banc, “[t]he issue in John R. Sand & Gravel was narrow. The Supreme Court stated: ‘The q uestion presented is whether a court must raise on its own the timeliness ofa 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 whethercertain equitable c onsiderations warrant extending a limit ations period.” Id. at 134. John R. Sand & Gravel did not address the question before us. That question is w hether section 2501’s limitations period is non-equitably tolled for putative class mem bers 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 sweep ing 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 pr ovision is ‘jurisdicti onal’ in nature.” 583 F.3d at 793. So too here, we reject the notion that John R. Sand & Gravel “rigidly proscribes” class action statut ory tolling of section 2501. See Dismissal Order , 86 Fed. Cl. at 91. In our view, the fact that equitable toll ing is barred under section 2501 does not mean that class action statutory tolling also is barred. T he two concepts are different.

2009-5048 27Equitable tolling is a principl e 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 modify ing 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 toll s the running of the limitations period for all purported members of a class once a cla ss 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 principl es 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 peri od. Neither does tolli ng 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 app ly where a plaintiff has been injured by fraud and remains in ignorance of it wit hout any fault or want of d iligence 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 bydefendant into letting filing period lapse); Klehr v. A.O. Smith Corp. , 521 U.S. 179, 194 (1997) (equi table tolling warranted when a

2009-5048 28plaintiff does not know of a defendant's fr audulent activity and def endant affirmatively conceals the activity). RCFC 23 tolling, on the other hand, serves to facilitate the objectives of the clas s 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 governm ent’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 ac tion complaint prior to the expiration of section 2501’s six-year period. In addition, she moved for clas s certification prior to the expiration of the limitations per iod. 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 t heir opting in to the ac tion. Such a holding would create a regime in which prospective class action plaintiffs would be charged with the task of forecasting when, during the p endency of a class action proceeding, the class certification process and opt in perio d would be completed so that section 2501 would be satisfied. See Arctic Slope , 583 F.3d at 791 (noting “i t is unknowable at the time a class action is filed whethe r 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 impo ssible 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 cert ification 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 an omalous difference between the conduct of class action litigation underthe 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 ju risdiction, 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 sect ion 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. § 2401 8 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 cu mbersome and unwieldy in its operation that, unlike the process in district court, it frustrated the purpose of avoiding multiplicity of suits. Supreme Co urt precedent strongly suggests that such a result, i.e., one in which jurisdic tional differences dictate diffe rent outcomes in the law, is

8 Section 2401 states, in relevant part, that “every civil action commenced against the United States shall be barred unle ss the complaint is f iled within six years after the right of action first a ccrues.” 28 U.S.C. § 2401(a).

2009-5048 30not favored. See, e.g. , Dickinson v. Zurko , 527 U.S. 150, 165 (1999) (holding that the Federal Circuit should not accord less defer ence to factual findings of the Patent and Trademark Office than courts accord to t he findings of other agencies under the Administrative Procedure Act); eBay Inc. v. MercExchange LLC , 547 U.S. 388, 390-91 (2006) (holding that applicat ion 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) (holdi ng that the standard for asse ssing whether a justiciable controversy exists should not be more stri ngent in lawsuits seeking a declaration of patent invalidity or noninfringemen t than in non-patent fields). Finally, we agree with the reasoning of th e 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 individu als, filed a class action complaint asserting that members of a class of customs agents were entitled to extra compensation for perform ing temporary boarding officer services to assist in searches for Cuban refugees, for the processi ng of refugees, and for the enforcement of related immigration laws, all of which t hey had undertaken in the spring of 1980. Id. at 748. The complaint, filed “in th e 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 31class certification had previously been sought. Id. That suit was filed after the limitations period had run. Accordingly, th e court stated that the action was “clearly time-barred unless . . . the running of the lim itations 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 governm ent’s argument that the second suit was barred by the statute of limit ations, allowing class action to lling for the period that the motion for class certification remained pend ing 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 lim itations.” Id. at 752. For this rule, the court cited Soriano v. United States , 352 U.S. 270, 276 (19 57). 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 comp laint is filed within t he six-year limitations period of 28 U.S.C. § 2501 as to one named plainti ff, putative class members are

2009-5048 32permitted to opt in under RCFC 23 after expira tion of the limitation s period, when class certification is sought prior to expiration ofthe 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 lim itations is tolled du ring 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 cl ass 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 t he Court of Federal Clai ms’ 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 necessa ry 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 ques tion of whether tolling would be allowed where class certification was sought after expiration of the limit ations period. 10 Under RCFC 23, the Court of Federal Claims directs to individual class members the best notice that is practicabl e 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 add itional putative class member s 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 Claim s’ ruling that the requirements for class action certification were met, we let it stand at this point. We agr ee that the government

2009-5048 332009-5048 34 COSTS No costs. REVERSED and REMANDED

correctly did not seek to challenge the class certification ruli ng 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 challen ge”). The government is not precluded from appealing the certification ruling at a later date if circumstances warrant and it chooses to do so.