In the United States Court of Federal Claims

No. 99-4451L

(consolidated with, 99-4452 L, 99-4453 L, 99-4454 L, 99-4455 L, 99-4456 L, 99-4457 

L, 99-4458 L, 99-4459 L, 99-44510 L, 99-44511 L, 99-44512 L, 00-365 L, 00-379 L, 

00-380 L, 00-381 L, 00-382 L, 00-383 L, 00-384 L, 00-385 L, 00-386 L, 00-387 L, 00-

388 L, 00-389 L, 00-390 L, 00-391 L, 00-392 L, 00-393 L, 00-394 L, 00-395 L, 00-396 

L, 00-398 L, 00-399 L, 00-400 L, 00-401 L, 05-1353 L, 05-1381 L, 06-072 L) 

(E-Filed: January 30, 2015) 

JOHN H. BANKS, et al., 

 Plaintiffs, 

v. 

THE UNITED STATES, 

 Defendant. 

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Mandate Interpretation; Claim Accrual 

Principles in Takings Cases Involving 

Gradual Physical Processes; 

“Permanent” Nature of Taking in 

Determining Claim Accrual; Factual 

Findings Presented in the Alternative 

Mark E. Christensen, Chicago, IL, with whom was John B. Ehret, Olympia Fields, IL, for 

plaintiffs in No. 99-4451L. Eugene J. Frett, Chicago, IL, pro se in No. 05-1353L. 

Terry M. Petrie, Environment & Natural Resources Division, United States Department 

of Justice, Denver, CO, with whom was Sam Hirsch, Acting Assistant Attorney General, 

Environment & Natural Resources Division, United States Department of Justice, 

Washington, DC, for defendant. 

OPINION AND ORDER 

CAMPBELL-SMITH, Chief Judge 

The purpose of this Opinion and Order is to address and resolve the initial issues 

raised by plaintiffs in light of the Federal Circuit’s mandate in Banks v. United States

(“Banks IV”), 741 F.3d 1268, 1283 (Fed. Cir. 2014), Dkt. No. 508, which reversed this 

court’s dismissal of plaintiffs’ claims for lack of jurisdiction in Banks v. United States 

(“Banks III”), 102 Fed. Cl. 115 (2011), Dkt. No. 505, and remanded the case for further 

proceedings. 
I. Background 

A thorough discussion of the history of this case can be found in the court’s 

opinions following trials on liability and damages. See Banks v. United States (“Liability 

Opinion”), 78 Fed. Cl. 603, 604–09 (2007), Dkt. No. 245; Banks III, 102 Fed. Cl. at 120–

26. For ease of reference, however, a brief description of the facts and a review of the 

current procedural posture of the case follows. 

This case involves a Fifth Amendment taking by continuous, physical processes. 

Beginning in the 1830s, the United States government, acting through the United States 

Army Corps of Engineers (“defendant” or “the Corps”) re-constructed the mouth of the 

St. Joseph River and began constructing two harbor jetties that jutted into Lake Michigan 

in order to accommodate commercial shipping vessels exiting the St. Joseph River into 

Lake Michigan. Liability Opinion, 78 Fed. Cl. at 604. Over time, the Corps lengthened 

the jetties and encased them in steel. Id. The Corps released a series of reports 

(collectively, “Corps Reports”) over several decades describing the erosion caused by the 

jetties south of the St. Joseph Harbor, outlining a plan to mitigate the erosion attributable 

to the jetties, and evaluating the effectiveness of the mitigation program that was 

eventually implemented. Id. at 612. 

Plaintiffs are landowners along approximately four and a half miles of the eastern 

shore of Lake Michigan, south of St. Joseph Harbor. Id. at 604. Plaintiffs allege that the 

Corps’ construction and maintenance of the jetties caused erosion of their shoreline 

property. Id. “Specifically, plaintiffs claim that the encasement of the jetties in ‘sandtight’ steel sheet piling during the period from 1950 to 1989, at the direction of the Corps, 

interrupted the natural littoral drift of sand to their properties,” and effected a shoreline 

loss for which plaintiffs seek damages. Banks III, 102 Fed. Cl. at 120–21 (footnote 

omitted) (citing Banks v. United States, 99 Fed. Cl. 622, 624 (2011), Dkt. No. 499). 

On motion to dismiss, the court dismissed plaintiffs’ claims as untimely filed. 

Banks v. United States (“Banks I”), 49 Fed. Cl. 806, 809 (2001), Dkt. No. 3, rev’d, 314 

F.3d 1304 (Fed. Cir. 2003). On appeal, the circuit court reversed and remanded the 

claims. Banks v. United States (“Banks II”), 314 F.3d 1304, 1310 (Fed. Cir. 2003), Dkt. 

No. 6. On first remand, the court conducted separate trials on liability and damages. 

Following the trial on damages, a jurisdictional arose as to plaintiffs’ claims, and the 

court again dismissed plaintiffs’ claims as time-barred. Banks III, 102 Fed. Cl. at 119. 

The Federal Circuit considered the case for a second time on appeal in Banks IV 

and found that this court’s dismissal decision in Banks III: (1) violated the mandate rule 

by redetermining the accrual date of plaintiffs’ claims, Banks IV, 741 F.3d at 1276–79; 

and (2) erred in its analysis of accrual suspension by finding that plaintiffs knew or 

should have known of their claims before 1952, id. at 1279–82. 

2 
The Federal Circuit further held that it lacked jurisdiction to review the merits 

discussion contained in Banks III. Id. at 1282–83; see id. at 1282 (“In the absence of 

anything appealable, this court lacks appellate jurisdiction. To be final and appealable, a 

decision must end the litigation on the merits, and the judge must clearly declare her 

intention in this respect.” (internal citations, quotation marks and alterations omitted)). 

The Federal Circuit remanded the claims with a mandate that reinforced its earlier 

mandate in Banks II. Id. at 1283; cf. Banks v. United States, 68 Fed. Cl. 524, 528–29 

(2005), Dkt. No. 87 (finding that “[b]ecause the last of the three reports, the 1999 Report, 

was issued in January 2000 . . . , the effective date of claim accrual for plaintiffs’ claims 

in this case is January 2000”). 

Following receipt of the mandate in Banks IV, this court issued a post-remand 

order, noting that “[a]s the appellate court limited its review to the jurisdictional issue and 

did not review this court’s alternative findings on the merits, this court is inclined to reenter its merit findings and proceed to a damages analysis.” Order, Apr. 30, 2014, Dkt. 

No. 512. Before doing so, the court solicited the parties’ perspectives on the proposed 

approach for moving forward on remand. Id. 

The parties thereafter filed a joint status report in which the plaintiffs posited that 

there are “substantive legal issues . . . [to] be initially addressed and ruled upon in light of 

the remand.” Joint Status Report, June 19, 2014, Dkt. No. 519, at 1. Although defendant 

disagreed with plaintiffs, id., both parties agreed that at this juncture, the most efficient 

way to move forward is to resolve the “predicate and necessary” issues identified by 

plaintiffs, id. at 3, 6. Thus, to address the issues identified by plaintiffs, the court 

scheduled post-remand briefing. Order, July 17, 2014, Dkt. No. 521. 

Now pending before the court are the parties’ post-remand briefings: Plaintiffs’ 

Post-Remand Motion for Entry by this Court of Rulings Consistent With and to Enforce 

the Federal Circuit Court of Appeals’ January 28, 2014 Mandate (“Pls.’ Mot.”), Dkt. No. 

523, filed August 12, 2014; United States’ Brief on the Federal Circuit’s Mandate and 

This Court’s Denial of Plaintiffs’ Motion-in-Limine (“Def.’s Br.”), Dkt. No. 524, filed 

August 12, 2014; Plaintiffs’ Response to United States’ Brief on the Federal Circuit’s 

Mandate and This Court’s Denial of Plaintiffs’ Motion-in-Limine, Dkt. No. 525, filed 

August 29, 2014; Eugene Frett’s Response to United States’ Brief on the Federal 

Circuit’s Mandate and This Court’s Denial of Plaintiffs’ Motion in Limine, Dkt. No. 528, 

filed September 22, 2014;1

 United States’ Response to Plaintiffs’ Post-Remand Motion, 

1

 Self-represented plaintiff, Eugene J. Frett, filed a separate response brief, docketed 

as Dkt. No. 528, in his individual action that was consolidated in 2006 with the other 

pending claims. See Order, Mar. 17, 2006, Frett v. United States, Case No. 05-1353, 

Dkt. No 7 (consolidating Frett v. United States, Case No. 05-1353, with Banks v. United 

States, Case No. 99-4451); cf. infra note 2 (explaining plaintiffs’ improper filing of two 

reply briefs). 

3 

 
Dkt. No. 529, filed September 22, 2014; Plaintiffs’ Reply in Support of Post-Remand 

Motion for Entry by This Court of Rulings Consistent With and to Enforce the Federal 

Circuit Court of Appeals’ January 28, 2014 Mandate (“Pls.’ Reply”), Dkt. No. 531, filed 

October 6, 2014;

2

 and United States’ Reply Brief on the Federal Circuit’s Mandate, Dkt. 

No. 532, filed October 6, 2014. 

On remand, plaintiffs ask the court to enter a ruling making two factual findings 

that, plaintiffs claim, are “necessary and predicate” to their offered interpretation of the 

Federal Circuit’s mandate: first, a finding that the taking of plaintiffs’ properties is 

permanent and irreversible; and second, a finding that the nearshore lakebed adjacent to 

plaintiffs’ properties is cohesive, not sandy. Pls.’ Mot. 38; see also Pls.’ Reply 1–2. 

Plaintiffs also ask the court not to re-enter, but instead to re-open, the alternative merits 

findings it made after trial because, plaintiffs contend, the trial findings were based on a 

mistaken understanding of the claims’ factual predicate on which plaintiffs now seek a 

ruling.3

 Pls.’ Mot. 38. Defendant, on the other hand, urges the court to re-enter the 

2

 In contravention of the Rules of the Court of Federal Claims (“RCFC”), plaintiffs’ 

counsel filed, on behalf of all plaintiffs, two separate documents, both identified as reply 

briefs. See Order, Jan. 13, 2015, Dkt. No. 535, at 1 (identifying two reply briefs filed 

respectively by John B. Ehret and Mark E. Christensen). Based on the representations of 

plaintiffs’ counsel in the two documents filed as statements of clarification regarding the 

reply briefs, see Dkt. Nos. 536–37, the court deemed the reply brief filed by Mark E. 

Christensen, docketed as Dkt. No. 531, to be the properly filed post-remand reply 

briefing on behalf of all plaintiffs, see Order, Jan. 21, 2015, Dkt. No. 538, at 2. The court 

struck the other reply brief filed by John B. Ehret, docketed as Dkt. No. 530, and, at 

plaintiffs’ request, the first statement of clarification regarding the reply briefs, docketed 

as Dkt. No. 536, which was improperly filed by John B. Ehret as a joint motion to 

schedule an early neutral evaluation. Id. 

3

 Portions of plaintiffs’ post-remand briefing are devoted to discussing the other 

post-remand relief sought by plaintiffs, to include a request to exclude the testimony, 

declarations, and report of defendant’s expert witness on the ground that such evidence is 

inconsistent with what the Federal Circuit has mandated. Pls.’ Mot., Dkt. No. 523, at 38; 

see also Pls.’ Reply, Dkt. No. 531, at 1 (contending that the alternative merits findings 

reflect an improper consideration of evidence that is contrary to plaintiffs’ proposed 

factual findings, the Federal Circuit’s mandate, and scientific possibility). Plaintiffs 

assert that once the problematic findings in the alternative merits findings are set aside, 

“the remaining unrebutted evidence [establishes] that the United States is responsible for 

70% of the erosion to [p]laintiffs’ shoreline properties.” Pls.’ Mot. 38. Further, plaintiffs 

request that the court enter judgment in the amount of $19,113,621.00 for diminution in 

value damages for land taken, plus interest, and in the amount of $2,246,197.00, plus 

interest, for the out-of-pocket shore protection expenses that plaintiffs have incurred. Id. 

4 

 
alternative merits findings from the damages trial and complete the damages analysis. 

Def.’s Br. 13. 

II. Governing Standards

A. The Mandate Rule 

On remand, the court is bound by the mandate of the Federal Circuit and by its 

own prior findings—to the extent such findings are not inconsistent with the mandate. 

As informed by the law-of-the-case doctrine, “‘when a court decides upon a rule of law, 

that decision should continue to govern the same issues in subsequent stages in the same 

case.’” Banks IV, 741 F.3d at 1276 (quoting Christianson v. Colt Indus. Operating Corp., 

486 U.S. 800, 815–16 (1988)). “This rule encourages both finality and efficiency in the 

judicial process by preventing relitigation of already-settled issues.” Id. 

The mandate rule, which is encompassed by the broader law-of-the case doctrine, 

provides that “‘an inferior court has no power or authority to deviate from the mandate 

issued by an appellate court.’” Id. (quoting Briggs v. Pa. R. Co., 334 U.S. 304, 306 

(1948)); see also Cent. Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1580 (Fed. 

Cir. 1983) (explaining that the law-of-the-case doctrine was “judicially created to ensure 

judicial efficiency and to prevent the possibility of endless litigation”). “Once a question 

has been considered and decided by an appellate court, the issue may not be reconsidered 

at any subsequent stage of the litigation, save on appeal.” Banks IV, 741 F.3d at 1276. 

The mandate rule “is limited to issues ‘actually decided, either explicitly or by 

necessary implication’” in the previous litigation. Id. (quoting Toro Co. v. White Consol. 

Indus., Inc., 383 F.3d 1326, 1335 (Fed. Cir. 2004)). “In evaluating the scope of the 

mandate, the actions of the Court of Federal Claims must not be inconsistent with the 

letter or spirit of the mandate.” Id. at 1279 (citing Engel Indus. Inc. v. Lockformer Co., 

166 F.3d 1379, 1383 (Fed. Cir. 1999)). “Indeed, ‘all issues within the scope of the 

appealed judgment are deemed incorporated within the mandate and thus are precluded 

from further adjudication.’” Id. (quoting Engel Indus., 166 F.3d at 1383). 

B. Claim Accrual Principles 

The Federal Circuit has remanded this action once again for further proceedings 

based on a determination that plaintiffs’ cause of action was not time-barred by claim 

accrual principles. Claim accrual principles that govern jurisdictional timeliness 

at 38–39. Finally, plaintiffs ask the court to set this matter for hearing on the issue of 

plaintiffs’ future damages. Id. at 39.

5 

 
determinations for takings actions that arise from gradual physical processes—such as 

those at work in this case—have been established in the case law. These principles offer 

guidance to courts making the difficult determination in these types of cases as to when a 

claim has become ripe for action. 

As first set forth by the Supreme Court in United States v. Dickinson, a plaintiff’s 

cause of action in a takings case involving a gradual physical process does not accrue 

“until ‘the situation becomes stabilized.’” Banks II, 314 F.3d at 1308 (quoting United 

States v. Dickinson, 331 U.S. 745, 749 (1947)). The Federal Circuit has interpreted the 

guidance provided in Dickinson to mean that “‘stabilization occurs when it becomes clear 

that the gradual process set into motion by the government has effected a permanent 

taking, not when the process has ceased or when the entire extent of the damage is 

determined.’” Id. (alteration omitted) (quoting Boling v. United States, 220 F.3d 1365, 

1370–71 (Fed. Cir. 2000)). The Federal Circuit has explained: 

During the time when it is uncertain whether the gradual process will result 

in a permanent taking, the plaintiff need not sue, but once it is clear that the 

process has resulted in a permanent taking and the extent of the damage is 

reasonably foreseeable, the claim accrues and the statute of limitations 

begins to run. 

Boling, 220 F.3d at 1371. A claim stabilizes—and thus becomes ripe—“when the 

‘permanent nature’ of the taking is evident.” See Banks II, 314 F.3d at 1309 (quoting 

Fallini v. United States, 56 F.3d 1378, 1382 (Fed. Cir. 1995)). 

In Banks IV, the Federal Circuit discussed how the stabilization doctrine, which it 

had addressed in Banks II, and the accrual suspension doctrine inform a claim accrual 

determination in a circumstance where the government undertakes mitigation efforts to 

offset the effects of government-triggered erosion at the same time that the impacts of the 

natural erosion are ongoing. The Federal Circuit has counseled against a strict 

application of claim accrual principles under either doctrine based on the practical 

difficulties of evaluating the “permanent” nature of a taking involving gradual, 

continuous processes. See Banks II, 314 F.3d at 1309 (quoting Boling, 220 F.3d at 1371, 

for the proposition that the statute of limitations jurisprudence “recognize[s] that gradual 

takings present special difficulties and ‘represent an application of general accrual 

principles, rather than a broad exception to them’”); Banks IV, 741 F.3d at 1282 

(reiterating that the statute of limitations jurisprudence “discourage[s] a strict application 

of accrual principles in unique cases involving Fifth Amendment takings by continuous 

physical processes” (citing Applegate v. United States, 25 F.3d 1579, 1582 (Fed. Cir. 

1994))). 

6 
1. The “Justifiable Uncertainty of the Permanency of the Taking” 

In Banks II, the Federal Circuit determined that the relevant question for claim 

accrual purposes, under the stabilization doctrine, was “whether the ‘predictability [and 

permanence]’ of the extent of damage to the [plaintiffs’] land’ was made justifiably 

uncertain by the Corps’ mitigation efforts.” Banks II, 314 F.3d at 1309 (alterations in 

original) (quoting Applegate, 25 F.3d at 1583). Based on the information available to 

plaintiffs, the Federal Circuit found that “[w]ith . . . mitigation efforts underway, the 

accrual of plaintiffs’ claims remained uncertain until the Corps’ 1996 Report, 1997 

Report, and 1999 Report collectively indicated that erosion was permanent and 

irreversible.” Id. at 1310. The Federal Circuit held that the claims were not time-barred 

prior to the issuance of the three reports “because plaintiffs remained uncertain as to the 

permanent nature of the taking until the Corps reported that the erosion was permanent 

and irreversible.” Id.; see also Boling, 220 F.3d at 1372 (“[I]t is the uncertainty 

surrounding the permanent nature of the taking, and not the uncertainty surrounding the 

ultimate extent of the erosion damage, that is critical in determining whether the situation 

has stabilized.” (citing to Applegate, 25 F.3d at 1583)). 

2. The Meaning of the Term “Permanence” When Evaluating the 

Timeliness Takings Claims Based on Erosion-Related Property Loss 

After the Federal Circuit’s decision in Banks II, this court, on remand, addressed 

the “permanence” element of the stabilization doctrine in a pre-trial ruling on plaintiffs’ 

request to exclude certain evidence from trial based on the expansive interpretation of the 

mandate in Banks II that plaintiffs proposed. Banks v. United States (“Order Denying 

Mot. in Lim.”), 98 Fed. Cl. 123, 123, 129 (2011), Dkt. No. 452 (denying plaintiffs’ 

motion in limine and concluding that “the issue decided by the Federal Circuit [in Banks 

II] was the point at which plaintiffs’ justifiable uncertainty ‘as to the permanent nature of 

the taking’ ended, rather than whether erosion of their properties was permanent” 

(quoting Banks II, 314 F.3d at 1310)). This court clarified that the term “permanent” is 

used in two distinct ways in such takings cases: first, “in its popular sense,” to discuss 

the constancy of erosion, and second, “as a legal term of art” in the context of takings 

claims when describing the lasting impact of a gradual, physical process. Id. at 127. 

This court also explained that “the term ‘permanent taking’ is employed by courts 

when examining the period of time during which a cause of action does not accrue for 

purposes of the statute of limitations because the property owners are ‘justifiably 

uncertain about the permanency of the . . . taking.’” Id. at 127–28 (alteration in original) 

(quoting Boling, 220 F.3d at 1372). In such circumstances, “[t]he focus is on the 

plaintiff’s justifiable uncertainty as to when any permanent taking accrued, not on the 

merits question of whether a taking actually did occur.” Id. at 128. 

7 
This court acknowledged that “[s]ome of the confusion about what issue the 

Federal Circuit decided [in Banks II] may [have] result[ed] from the phrasing of its 

opinion,” and observed that “[s]everal times, the Federal Circuit [had] referred [in Banks 

II] to the point at which the information available to plaintiffs indicated that erosion was 

‘permanent and irreversible,’ rather than merely “permanent,” the term ordinarily used in 

the context of the stabilization doctrine.” Id. at 129 n.4 (internal citation omitted). The 

court added: “It is not the view of the court—and plaintiffs do not contend—that use of 

the term ‘permanent and irreversible’ rather than ‘permanent’ to describe the potential 

taking in this case indicates an additional factual determination about the nature of the 

erosion to plaintiffs’ properties.” Id. 

3. Plaintiffs’ Awareness of the “Permanent” Nature of the Erosion 

Subsequently, on the second appeal of the case in Banks IV, the Federal Circuit 

found that the court had erred in its jurisdictional analysis by finding that plaintiffs had 

waived their accrual suspension arguments. See Banks IV, 741 F.3d at 1280 (observing 

that “[t]hough [plaintiffs] did not use the term ‘accrual suspension’ in making [their] 

argument, the substance [of their asserted position] is the same as that which [they had] 

argue[d] before the court,” and finding that the “[plaintiffs’] argument ‘that as late as 

1997 it was not understood that the harbor jetties caused increased erosion in plaintiffs’ 

zone’ [was] not waived”). 

Under the articulated accrual suspension rule, a claim against the United States 

does not accrue—but rather is suspended for purposes of 28 U.S.C. § 2501—until the 

claimant knew or should have known that the claim existed. Id. at 1280–81. For the 

accrual suspension rule to apply, either the claimant “must . . . show that the defendant 

has concealed its acts with the result that plaintiff was unaware of their existence or it 

must show that its injury was ‘inherently unknowable’ at the accrual date.” Id. at 1280 

(quoting Young v. United States, 529 F.3d 1380, 1384 (Fed. Cir. 2008)). “The inherently 

unknowable test ‘includes a reasonableness component.’” Id. (quoting Holmes v. United 

States, 657 F.3d 1303, 1320 (Fed. Cir. 2011)). 

The Federal Circuit observed that “when determining when a taking claim accrues, 

‘the key issue is whether the permanent nature of the taking was evident such that the 

landowner should have known that the land had suffered erosion damage.’” Id. (quoting 

Boling, 220 F.3d at 1373). The circuit court added that “[c]laims are deemed to accrue 

once the [erosion] damage has ‘substantially encroached the parcels at issue and the 

damages [are] reasonably foreseeable.’” Id. at 1281 (quoting Boling, 220 F.3d at 1373). 

To assist courts in making such determinations regarding “permanence,” the Federal 

Circuit identified the following factors for consideration: “the uncertainties of the terrain, 

the difficulty in determining the location of the government’s easement, and the irregular 

8 
process of erosion.” Id. (quoting Boling, 220 F.3d at 1373);4

 see also Boling, 220 F.3d at 

1373 (observing that “[t]he point at which the erosion damage transitions from ‘mere 

inches’ to substantial encroachment is not amenable to precise definition, and will vary 

from parcel to parcel”). 

The appellate court noted that other factors specific to plaintiffs’ shorelines further 

complicated the determination of “when [plaintiffs] knew or should have known of their 

alleged takings claims.” Banks IV, 741 F.3d at 1281. While the factually complicated 

circumstances in this case involving naturally occurring erosion and erosion caused by 

the government-installed jetties provided “plaintiffs[’] . . . [with an] aware[ness] of some 

erosion[, that awareness was] not sufficient for the claim to accrue.”5

 Id. 

As it had expressed earlier in Banks II, the Federal Circuit in Banks IV noted 

again that “[t]he [g]overnment’s mitigation efforts . . . delayed when [plaintiffs] knew or 

should have known they had a claim.” Id. at 1282. “Without a basis for imputing 

knowledge [to plaintiffs] of the effect of the jetty-caused erosion on [their] properties,” 

the Federal Circuit found that “[plaintiffs] could not reasonably have known the damage 

was ‘permanent’ until the Corps issued its 1996, 1997, and 1999 Reports showing that its 

mitigation efforts could not reverse the damage caused by its jetties.” Id. (citing Banks 

II, 314 F.3d at 1310). The appellate court also eliminated in Banks IV any confusion that 

4

 The court notes that in its discussion of the accrual suspension rule, the Federal 

Circuit cites to claim accrual principles that were developed within the context of the 

stabilization doctrine. See Banks v. United States (“Banks IV”), 741 F.3d 1268, 1280–81 

(Fed. Cir. 2014), Dkt. No. 508 (citing Boling v. United States, 220 F.3d 1365, 1373 (Fed. 

Cir. 2000)). The stabilization doctrine evolved to squarely address the complexity of 

takings cases that result from gradual physical processes, and the accrual suspension rule 

is a form of equitable tolling with broader application. In this case, both the stabilization 

doctrine and accrual suspension rule operate similarly to delay the accrual of claims. In 

its earlier decision, the Federal Circuit clarified that the “justifiable uncertainty of the 

permanency of the taking” that delayed stabilization of plaintiffs’ claims was further 

complicated by the efforts to mitigate the damages. See Banks v. United States (“Banks 

II”), 314 F.3d 1304, 1310 (Fed. Cir. 2003), Dkt. No. 6. Here, in Banks IV, the Federal 

Circuit examined plaintiffs’ awareness of the “permanent” nature of their claims by 

applying the accrual suspension rule to the same particularized set of facts, while also 

considering the uncertainties of plaintiffs’ shorelines. See Banks IV, 741 F.3d at 1279–

82. 

5

 On at least two occasions, the Federal Circuit refers to plaintiffs’ “claim,” rather 

than plaintiffs’ “claims.” See Banks IV, 741 F.3d at 1281, 1282. While the takings 

claims are individual to the plaintiffs in this consolidated action, the issue addressed by 

the appellate court was “claim” accrual.

9 

 
might have arisen from the use of the term “permanent” in its earlier opinion in Banks II, 

by placing the term within quotation marks and using the term in a manner that is 

consistent with the claim accrual principles set forth in case law. See id. (citing Banks II, 

314 F.3d at 310). 

IV. Discussion 

A. Issues Before the Federal Circuit in Banks IV 

The principal issues on appeal in Banks IV were: (1) whether the Federal 

Circuit’s opinion in Banks II precluded this court from reconsidering when plaintiffs’ 

claims accrued for the purposes of subject matter jurisdiction; and (2) whether plaintiffs 

knew or should have known that their claims accrued by 1952. Banks IV, 741 F.3d at 

1275. 

1. The Banks II Mandate Precluded This Court from Redetermining the 

Claim Accrual Date

In analyzing whether this court violated the mandate rule, the Federal Circuit 

reiterated its earlier holding in Banks II, stating: “We are satisfied that the plaintiffs met 

their jurisdictional burden before the Court of Federal Claims on the basis of the 

justifiable uncertainty of the permanence of the taking caused by the actual mitigation 

efforts of the Corps.” Banks IV, 741 F.3d at 1277 (alteration omitted) (quoting Banks II, 

314 F.3d at 1310). Emphasizing that its first decision in “Banks II did not ‘leave open 

the issue of when [p]laintiffs’ claims accrued,” the appellate court explained that 

“[n]ecessary and predicate” to the Banks II holding that plaintiffs’ claims were not barred 

by the statute of limitations “was a finding that the mitigation efforts [had] delayed claim 

accrual.” Id. at 1278. “Because the Banks II mandate [had] decided the [claim] accrual 

date,” the Federal Circuit turned, in Banks IV, to consider whether an exception to the 

mandate rule permitted this court to revisit the accrual date—namely, “whether 

subsequent evidence presented at trial was substantially different from the original 

evidence” presented to this court in Banks I (and reviewed by the Federal Circuit in 

Banks II). Id. 

The Federal Circuit found that a “Beach Erosion Control Study” that was released 

by the Corps in 1958 and admitted into evidence in July 2007 (six years after Banks I and 

four years after Banks II), id., “was not ‘new’ but merely cumulative of evidence before 

[the trial court] in 2001,” id. at 1279. The appellate court examined the evidentiary 

record that was before this court in Banks I—in particular, the three Corps Reports from 

the 1990s, a 1998 newspaper article, and testimony given by plaintiffs’ expert—and 

determined that the developed record at trial “contained information similar to that in the 

[Beach Erosion Control] Study.” Id. The Federal Circuit failed to be persuaded “that any 

‘new’ evidence required reexamining [the issue of] jurisdiction that had already been 

10 
decided [in its earlier Banks II decision],” and it concluded that without any new 

evidence to consider, this court was precluded by the mandate rule from redetermining 

the accrual date of plaintiffs’ claims. Id. The Federal Circuit accordingly reversed this 

court’s dismissal decision. Id. 

2. This Court Erred in Its Claim Accrual Suspension Analysis 

As discussed in Section II.B.3 above, the Federal Circuit noted the factually 

complicated circumstances presented in this case, and considered—when performing its 

claim accrual suspension analysis—whether plaintiffs were aware of the “permanent” 

nature of their claims. Banks IV, 741 F.3d at 1279–82. The circuit court decided that the 

“plaintiffs[’] . . . aware[ness] of some erosion [was] not sufficient for the claim to 

accrue,” id. at 1281, and noted that the “[t]he [g]overnment’s mitigation efforts . . . 

delayed when [plaintiffs] knew or should have known they had a claim,” id. at 1282. 

Although plaintiffs appear to concede that the appellate court limited its review to 

the jurisdictional issue of claim accrual, see Pls.’ Mot. 25 (“[B]oth the Banks II court and 

the Banks IV court were deciding on appeal whether, for purposes of the stabilization 

doctrine, there was justifiable uncertainty about the permanency of the [alleged] taking” 

(second alteration in original) (internal quotation marks omitted)), plaintiffs contend that 

the Federal Circuit’s jurisdictional determination amounted to a pronouncement on the 

merits of plaintiffs’ takings claims, see Pls.’ Reply 8 (“[T]he Federal Circuit’s 

jurisdictional inquiry under the stabilization doctrine—and the Circuit’s conclusions that 

the taking by the United States was permanent, irreversible, and not capable of 

mitigation—was ‘inextricably intertwined’ with the merits.”).6

6

 Citing to the Federal Circuit’s decision in Nippon Steel Corp. v. United States, 219 

F.3d 1348, 1353 (Fed. Cir. 2000), plaintiffs assert their view that “where (as here) the 

jurisdictional issue and the merits are factually intertwined, the Federal Circuit 

necessarily considers and decides the merits when rendering its opinion on the 

jurisdictional issue.” Pls.’ Reply 3. Plaintiffs’ reliance on this case is misplaced. Both 

the “unusual” factual and procedural circumstances in Nippon Steel are distinguishable 

from the case at hand. Nippon Steel Corp., 219 F.3d at 1353. Because the Court of 

International Trade’s jurisdiction turned on whether the initiation by the Department of 

Commerce of an anticircumvention inquiry contravened the scope of the agency’s 

authority, the Federal Circuit in Nippon Steel concluded that “both the merits and the 

jurisdictional inquiry turn, at least in part, upon the same question: Did Commerce act 

within its authority in initiating its inquiry?” Id. 

By turning to Nippon Steel, plaintiffs ignore persuasive jurisprudential teaching 

that questions on the merits in takings cases are not resolved per se by a factually 

interrelated jurisdictional inquiry. See Hansen v. United States, 65 Fed. Cl. 76, 129 

(2005). 

11 

 
Given the fact-intensive nature of both claim accrual determinations and takings 

claim considerations, the same facts might inform both inquiries. Examination of the 

same facts within the context of both inquiries, however, does not make the facts 

informing a claim accrual question fully dispositive of the merits issues. 

As this court observed in Hansen v. United States, “the accrual of takings claim is 

not the same thing as [a determination of] takings liability.” Hansen v. United States, 65 

Fed. Cl. 76, 129 (2005). After a determination on claim accrual, which solely relates to 

the period of time during which a cause of action does not accrue for statute of limitations 

purposes, a “plaintiff will of course have to prove the elements of a takings claim; this 

limited issue of claim accrual does not establish defendant’s liability.” Id. 

In the instant case, the court conducted trials on liability and damages further to 

the first remand, but dismissed plaintiffs’ claims for timeliness. See Banks III, 341 F.3d 

at 119. In the alternative, the court made detailed liability and damages findings. See id. 

at 150–215. 

B. The Alternative Merits Discussion in Banks III is Not a Final, Appealable 

Decision 

On appeal in Banks IV, the Federal Circuit held that the “alternative merits 

discussion” contained in Banks III did not constitute “a final and appealable decision 

over which [it had] jurisdiction.” Banks IV, 741 F.3d at 1283; see also id. at 1282 (“In 

the absence of anything appealable, this court lacks appellate jurisdiction. To be final 

and appealable, a decision must end the litigation on the merits, and the judge must 

clearly declare her intention in this respect.” (internal citations, quotation marks, and 

alterations omitted)). 

The Federal Circuit observed that this court had presented its findings from the 

trial on damages “in the alternative” for purposes of judicial efficiency in the event that 

the jurisdictional threshold had been met. See id. at 1275 (noting that this court 

“additionally presented findings ‘in the alternative’ on the merits of the case, stating if 

‘any appeal should disagree with the court’s view of its jurisdiction, and to avoid the 

possibility . . . of a repetitive trial, the court also presents here its findings from the trial’” 

(alteration in original) (quoting Banks III, 102 Fed. Cl. at 120)). The circuit court 

recognized that most of the fact finding from the trial on damages had been completed, 

except for a final determination of damages with respect to plaintiffs’ shoreline protection 

expenses. See id. (observing that the trial court explained that “‘if the reviewing court 

does not agree with the court’s determination that it lacks jurisdiction to address 

plaintiffs’ claims,’ it would direct the parties to file either a stipulation or briefing” in 

order to make such a determination (alteration omitted) (quoting Banks III, 102 Fed. Cl. 

at 212)). 

12 
With a narrow determination of damages yet to be made, the Federal Circuit 

acknowledged the prematurity of any review on appeal of the alternative merits findings. 

Id. at 1282–83. Contrary to plaintiffs’ contention, the Federal Circuit’s 

acknowledgement that shoreline protection expenses have not yet been finalized does not 

amount to an invitation to re-litigate and reargue the merits of this case.7

C. Implementing the Federal Circuit’s Mandate in Banks IV 

Plaintiffs make their post-remand requests based on their interpretation of the 

Federal Circuit’s mandate. To properly evaluate these various requests, the court first 

must ascertain for itself the scope of the directive contained in the Federal Circuit’s 

mandate in Banks IV. As discussed in Section II.A above, the court is bound by the 

mandate, and by its own prior findings—to the extent such findings are not inconsistent 

with the mandate. 

The Federal Circuit set forth the following mandate in Banks IV: 

The Court of Federal Claims’ alternative merits discussion is not a final and 

appealable decision over which this court has jurisdiction. On remand, the 

Court of Federal Claims may reconsider any merits rulings that were 

rendered at a time it mistakenly believed it lacked jurisdiction. In light of 

the Court of Federal Claims’ clearly erroneous fact finding on claim 

accrual, it is appropriate that there be no law-of-the-case or comparable 

obstacle preventing it from reconsidering its earlier, related findings on the 

7

 The issue of shoreline composition has been litigated extensively in this case. 

Nonetheless plaintiffs seek to visit this issue yet again. See Pls.’ Mot. 38 (asking the 

court to make a factual “finding that the nearshore lakebed adjacent to [p]laintiffs’ 

properties is cohesive, not sandy”). Following the trial on liability, the court addressed 

the evidence presented at trial and issued findings regarding the composition of the 

shoreline adjacent to plaintiffs’ properties. Banks v. United States, 78 Fed. Cl. 603, 621–

28 (2007), Dkt. No. 245. “Plaintiffs had the opportunity during [the] trial [on liability] to 

present evidence regarding the composition of the nearshore lakebed of plaintiffs’ zone,” 

but the court nevertheless allowed plaintiffs to present additional evidence at the trial on 

damages “in order to avoid possible inefficiency and delay in resolving plaintiffs’ 

claims.” Banks v. United States, 84 Fed. Cl. 288, 297–98 (2008), Dkt. No. 276. Despite 

plaintiffs’ attempt to exclude this evidence, see, generally, Banks v. United States, 98 

Fed. Cl. 123 (2011), Dkt. No. 452, the court again addressed the evidence presented at 

the trial on damages and made findings, see Banks III, 102 Fed. Cl. at 150–80. Because 

the issue of shoreline composition has been litigated fully, it need not be treated—as 

plaintiffs contend—as if it had not been so considered. 

13 

 
merits. This court’s prior mandate—that the claims did not accrue until the 

1999 Report—is still law-of-the-case, binding below. 

Banks IV, 741 F.3d at 1283. 

Because the Federal Circuit carefully limited its appellate review to the 

jurisdictional issue of claim accrual in Banks IV, the scope of what is contemplated by 

the mandate is very narrow. The Federal Circuit resolved decisively the issue of claim 

accrual, affirming its earlier holding that plaintiffs’ claims accrued upon publication of 

the 1999 Report. Id. at 1282. Consistent with the mandate rule, the matter of plaintiffs’ 

claims accrual is settled and cannot be adjudicated further. See Engel Indus., 166 F.3d at 

1383. 

The Federal Circuit allowed, however, that certain of the trial court’s fact finding 

might warrant reconsideration on remand, but advised that such reconsideration is limited 

to only the factual findings that were premised on evidence that was considered purely to 

support the court’s erroneous determination that it lacked jurisdiction in Banks III. See

Banks IV, 741 F.3d at 1283. Accordingly, further proceedings by this court on remand 

must be narrowly tailored to evaluating whether any of the alternative merits findings on 

damages were calculated based on any time-sensitive parameters that are inconsistent 

with the January 2000 claim accrual date.8

 

The factual findings plaintiffs now ask the court to make by far exceed the scope 

of both the Federal Circuit’s mandate and the extensive findings made after the two trials 

held on liability and damages, respectively. Counter to plaintiffs’ arguments, the Federal 

Circuit did not direct the court to engage in an unrestricted effort to reconsider all of the 

merits findings presented in the alternative in Banks III, which were based on the 

evidence heard and considered during the two trials. 

Plaintiffs also misapprehend the Federal Circuit’s use of the term “permanent” in 

the context of ascertaining the date of claim accrual; the appellate court considered it only 

as a pertinent factor in determining whether plaintiffs’ claims were timely filed. The 

circuit court adverted to the alternative merit findings in Banks III, and indicated that it 

could not evaluate the substantial but incomplete findings because no final decision had 

yet issued. Nonetheless, plaintiffs ask this court to disregard, on remand, the entirety of 

8

 In accordance with the Federal Circuit’s earlier mandate, see Banks II, 314 F.3d at

1310 (concluding that the statute of limitations did not begin to run for plaintiffs’ claims 

until the Corps issued the 1996, 1997, and 1999 Reports), on remand, the court 

determined that “[b]ecause the last of the three reports, the 1999 Report, was issued in 

January 2000 . . . , the effective date of claim accrual for plaintiffs’ claims in this case is 

January 2000,” Banks v. United States, 68 Fed. Cl. 524, 528–29 (2005), Dkt. No. 87. 

14 

 
the evidence presented by defendant at trial and to render—on the remaining record—a 

decision that would be much more favorable to plaintiffs. 

Although styled as plaintiffs’ request to “enforce the mandate,” plaintiffs 

effectively endeavor to re-litigate matters that have been fully litigated, but not yet 

concluded. Plaintiffs offer no compelling reason for doing so, other than their own 

insistence. Plaintiffs have misconstrued the circuit court’s timeliness of filing 

determination to be a finding that defendant is liable for damages of an amount that 

comports with plaintiffs’ views exclusively about their alleged losses. But plaintiffs’ 

alleged interpretation obtains no support from the plain language of the mandate and 

proposes to unduly extend this already protracted litigation. 

V. Conclusion 

Accordingly, based on the foregoing, Plaintiffs’ Post-Remand Motion for Entry by 

this Court of Rulings Consistent With and to Enforce the Federal Circuit Court of 

Appeals’ January 28, 2014 Mandate is DENIED. By separate order, the court will 

address further proceedings in light of this ruling. 

IT IS SO ORDERED. 

 s/ Patricia Campbell-Smith 

PATRICIA CAMPBELL-SMITH 

Chief Judge

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