United States Court of Federal Claims

No. 15-1574

Filed: November 29, 2016

______________________________________

 )

EARL O. BOYAJIAN, individually and on )

behalf of all others similarly situated, )

 )

Plaintiff, )

 )

v. )

 )

THE UNITED STATES, )

 )

Defendant. )

______________________________________ 

Noah Michael Schubert, Schubert, Jonckheer & Kolbe, LLP, San Francisco, CA, attorney for 

plaintiff.

Brian A. Mizoguchi, United States Department of Justice, Civil Division, Washington, DC, for 

defendant.

OPINION AND ORDER

SMITH, Senior Judge

This case comes before the Court on defendant’s motion to dismiss. Plaintiff, Earl O. 

Boyajian, individually and on behalf of all others similarly situated, seeks just compensation 

under the Fifth Amendment Takings Clause for reserve tonnage raisins taken from raisin growers 

by the United States Department of Agriculture (“USDA” or “Agency”). Plaintiff argues that he, 

along with any potential fellow class members, was never compensated for the Raisin 

Administrative Committee’s (“Committee”) taking of his reserve raisins throughout 2007-2010. 

Defendant alleges that plaintiff’s claims for the 2007-08, 2008-09, and 2009-10 crop years 

should be dismissed because they are barred by the statute of limitations. Defendant’s motion to 

dismiss is fully briefed and ripe for review. 

I. Background 

During the Great Depression, Congress established the Agricultural Marketing 

Agreement Act of 1937 (“AMAA”) in order to help farmers obtain fair value for their 

agricultural productions. Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1358 (Fed. Cir. 

2005) (citing Pescosolido v. Block, 765 F.2d 827, 828 (9th Cir. 1985)); 7 U.S.C. § 602 (2000). 
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The AMAA directs the Secretary of Agriculture (“Secretary”) to issue “marketing orders” which 

regulate the marketing and sale of agricultural commodities. 7. U.S.C. § 608c (2012). The Act 

allows the Secretary to “issue marketing orders, upon the request of the affected producers, 

regulating the sale and delivery of various commodities, including raisins, ‘in order to avoid 

unreasonable fluctuation in supplies and price.’” Id. (citing Parker v. Brown, 317 U.S. 341, 368 

(1943); Kyer v. United States, 369 F.2d 714, 716-17 (1966), cert. denied, 387 U.S. 929 (1967); 7 

U.S.C. §§ 608c, 602(4) (2000)). 

On or before August 15 of each crop year, the Committee meets to review shipment and 

inventory data and “other matters relating to the quantity of raisins of all varietal types.” 7 

C.F.R. § 989.54(a). After the review, the Committee typically recommends a reserve pool, at 

which point the USDA usually implements the reserve by issuance of a final rule, which 

determines the percentage of each farmer’s crop that will be “free tonnage” and the percentage 

that will be “reserve tonnage.” 7 C.F.R. § 989.55. Then, on or about October 5 of each year, 

raisin handlers are required to set aside a certain percentage of their raisins as the reserve tonnage 

for the current crop year. 7 C.F.R. § 989.166(b)(1). The handlers do not pay the raisin producers 

for the reserve raisins. Complaint (hereinafter “Compl.”) at 4. 

Once the reserve raisins have been set aside, the Committee “acquires title to the reserve 

raisings that have been set aside, and decides how to dispose of them in its discretion.” Horne v. 

Dep’t of Agriculture, 135 S. Ct. 2419, 2424 (2015). Once the Committee determines what to do 

with the reserve raisins, the proceeds from those raisins are used to pay the Committee’s 

administrative expenses and export subsidies to certain handlers. Any remaining proceeds are 

given to the growers on a pro-rata basis. 7 C.F.R. §§ 989.53(a), 989.66(h). On June 22, 2015, 

the Supreme Court held in Horne v. Dep’t of Agriculture, that the California Raisin Handling 

Order’s reserve pool requirement was “a clear physical taking” that violated the Fifth 

Amendment’s Takings Clause and for which just compensation was due. 135 S. Ct. at 2428.

Plaintiff alleges that, in each of the 2007-08, 2008-09, and 2009-10 crop years, plaintiff

was only paid for his free tonnage raisins. Compl. at 6. Plaintiff further alleges that "[t]he 

Committee on behalf of the USDA physically appropriated Plaintiff’s and the Class members’ 

Reserve Raisins without providing just compensation to the Class members.” Id. at 8. 

Defendant argues that the Court does not have jurisdiction to hear this case because each of the 

claim years at issue accrued more than six years prior to the December 28, 2015 date on which 

Mr. Boyajian filed his claim, and are thus barred by the statute of limitations. Defendant’s 

Motion to Dismiss (hereinafter “MTD”) at 8.

II. Discussion

A. Standard of Review

This Court’s jurisdictional grant is found primarily in the Tucker Act, which provides the 

Court of Federal Claims the power “to render any judgment upon any claim against the United 
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States founded either upon the Constitution, or any Act of Congress or any regulation of an 

executive department, or upon any express or implied contract with the United States . . . in cases 

not sounding in tort.” 28 U.S.C. § 1491(a)(1). Although the Tucker Act explicitly waives the 

sovereign immunity of the United States against such claims, it “does not create any substantive 

right enforceable against the United States for money damages.” United States v. Testan, 424 

U.S. 392, 398 (1976). Rather, in order to fall within the scope of the Tucker Act, “a plaintiff 

must identify a separate source of substantive law that creates the right to money damages.” 

Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part). 

When the Court’s subject matter jurisdiction to hear a case is challenged, the plaintiff has 

the burden of establishing by a preponderance of the evidence that this Court has jurisdiction 

over its claims. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The 

Court “must accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all 

reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659 

F.3d 1159, 1163 (Fed. Cir. 2011) (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 

1995)). 

Summary judgment is appropriate when the evidence indicates that there is “no genuine 

dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” 

RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A “genuine” 

dispute is one that “may reasonably be resolved in favor of either party,” and a fact is “material” 

if it might significantly alter the outcome of the case under the governing law. Anderson, 477 

U.S. at 248, 250. In determining the propriety of summary judgment, the Court will not make 

credibility determinations, and will draw all inferences in the light most favorable to the 

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 

(1986). 

B. Statute of Limitation

Defendant argues in its motion to dismiss that plaintiff’s takings claims for the 2007-08, 

2008-09, and 2009-10 crop years are barred by the statute of limitations. MTD at 9. In making 

this argument defendant points out that the takings claims ripened in mid-October of each crop 

year and argues that plaintiff only had 6 years from each crop year’s mid-October taking during 

which to make their claims without running afoul of the statute of limitations. Id. Essentially, 

defendant argues that plaintiff’s earliest potential claim not barred by the statute of limitations 

would be for the 2010-11 year, as plaintiff filed this claim on December 28, 2015. This Court 

does not agree.

Plaintiff argues that his takings claim did not accrue until the Supreme Court decided 

Horne, because “prior to that ruling, he had ‘no reasonable probability of successfully 

prosecuting his claim against the government.’” Plaintiff’s Response to MTD (hereinafter “P’s 

Resp.”) at 11 (citing United States v. One 1961 Red Chevrolet Impala Sedan, 457, F.2d 1353 

(5th Cir. 1972) (Red Chevrolet)); Horne, 135 S. Ct. 2419. Essentially, plaintiff alleges that, due 
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to the ruling in Evans v. United States, his claims were inherently unknowable. Neely v. United 

States, 546 F.2d 1059 (3d Cir. 2011); see also Petro-Hunt, L.L.C. v. United States, 90 Fed. Cl. 

51, 61-62 (2009); Evans, 74 Fed. Cl. 554 (2006), aff'd, 250 F. App’x 321 (Fed. Cir. 2007, cert. 

denied, 552 U.S. 1187 (2008). As a result, plaintiff argues that the statute of limitations began to 

run on June 22, 2015. P’s Resp. at 13.

The plaintiff is essentially attempting to apply a version of the accrual suspension rule. 

The accrual suspension rule “suspends the statute of limitations when “an accrual date has been 

ascertained, but plaintiff does not know of his claim.” Petro-Hunt, 90 Fed. Cl. at 61 (quoting 

Japanese War Notes Claimants Ass’n, Inc. v. United States, 373 F.2d 356, 358-58 (Ct. Cl. 

1967)). Essentially, the accrual suspension rule suspends the accrual of a claim against the 

United States, “for purposes of 28 U.S.C. § 2501, until the claimant knew or should have known 

that the claim existed.” Id. (quoting Martinez v. United States, 333 F.3d 1295, 1319 (Fed. Cir. 

2003)). This rule applies when “the change in circumstance arises out of a decision that 

overrules or alters prior precedent, with the claim deemed to have been tolled until the modifying 

decision was made.” Id.

Defendant argues, in the alternative, that the accrual suspension rule does not apply here 

because the decision in Evans was not a binding precedent. Defendant’s Reply in support of 

MTD (hereinafter “D’s Reply”) at 18. Courts must look to the reality of a decision’s effect, not 

just to the formal question of whether the decision is binding precedent. It would certainly raise 

ethical questions for an attorney to file litigation in a case where the client was sure to lose. In 

such a case the attorney would be wasting the client, the government, and the Court’s time and 

resources. In cases where the facts are dramatically different or a long period has gone by since 

the original decision there may be an ethical basis for relitigating an issue. However, the 

plaintiff and his attorney should not be made to speculate that filing may breach an ethical duty 

and non-filing may forfeit a potential claim. Such a legal standard would undercut rational legal 

decision making in a changing world. It is important for courts to look not only to the letter of 

the law, but also to principles of equity in making determinations. The decision in Evans, while 

not technically binding, effectively barred plaintiff from making a takings claim. It was not until 

the decision in Horne that plaintiff’s claims were legally defensible. It would be unreasonable to 

expect the plaintiff to file a takings claim that he reasonably believed was barred by Evans

precedent. As such, we must deny defendant’s motion to dismiss the claims during the 2007-08, 

2008-09, and 2009-10 crop years.
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III. Conclusion

For the reasons set forth above, defendant’s MOTION to dismiss or in the alternative for 

summary judgment is DENIED. On or before Tuesday, December 20, 2016, the parties shall 

file a joint status report indicating how this case should proceed, with a proposed schedule, as 

appropriate.

IT IS SO ORDERED.

s/Loren A. Smith

Loren A. Smith,

Senior Judge