Los Angeles Personal Injury Lawyer - Statute of Limitations

Court of Federal Claims: Putative Class Members Must Opt Into Class Action Within 6 Year Statute of Limitations

Shehnaz Bhujwala — Sun, 21 Jun 2009 13:07:02 GMT

Big Class Actions Against the Feds May Falter Plaintiffs lawyers say recent decision goes against more than a century of practice

Mike Scarcella
The National Law Journal
June 22, 2009

A case quietly winding through the federal courts in Washington could dramatically change the rules for plaintiffs across the country who file big-money class actions against the federal government.

Pending and future class actions may be chopped down to size if the U.S. Court of Appeals for the Federal Circuit agrees with the Justice Department's strict interpretation of a six-year statute of limitations. Plaintiffs lawyers who handle such cases have issued dire warnings.

Earlier this year, in a takings dispute before the U.S. Court of Federal Claims, the Justice Department successfully argued that any class member who didn't sign on to the litigation before the six-year window closed is barred from signing on at all. Justice's win shuts the door to potentially hundreds of landowners in Kansas and Missouri who could be owed money for the government's planned conversion of property along an abandoned railroad line into a public hiking trail. Only the original plaintiff, Earleen Fauvergue, can go forward in the case.

But the impact of what even Judge Christine Miller called a "draconian" interpretation of the law doesn't end there. Plaintiffs lawyers say it goes against more than a century of practice and could severely limit the use of class actions against the federal government altogether.

Miller certainly recognized the wider consequences of her decision. If the government has its way, she said in a December hearing before she ruled, then it "really is a severe rethinking of class actions in this court, if not their abrogation."

The Court of Federal Claims, where the government is always the defendant and the dispute is always over money, handles many cases brought by private property owners looking for compensation for takings and by federal employees seeking overtime and back pay. When the liability is greater than $10,000 per person, class actions against the government must be filed in the claims court and not federal district court.

Plaintiffs lawyers argue that filing a class complaint within the six-year window should stop the clock from running against all those as-yet-unidentified class members. Cases involving hundreds of defendants often take considerable time to develop and finding all class members is not swiftly done, say the lawyers. Plaintiffs who don't beat the clock will have to proceed in much smaller groups, individually or -- as the lawyers warn -- not at all.

In Fauvergue v. U.S., the plaintiffs have appealed to the Federal Circuit; their opening brief was filed this month. "Let's be honest, the Justice Department in this case is attempting to take land owned by American citizens and avoid its constitutional obligation to compensate these citizens for the land it has taken," said Mark "Thor" Hearne II, lead counsel in the case. "I find this unconscionable."

Hearne, a partner in the St. Louis office of Lathrop & Gage, argues that Justice is misreading the U.S. Supreme Court's decision last year in John R. Sand & Gravel Co. v. U.S. The high court ruled that the six-year statute of limitations is a jurisdictional limit that the Justice Department cannot waive. Hearne argues that John R. Sand & Gravel has nothing to do with the Fauvergue case because, among other things, it was not a class action.

A Justice spokesman, Andrew Ames, said in an e-mail that "Judge Miller's decision fairly and properly applies the law."

LANDOWNERS LOST

In June 2008, the lawyers for Fauvergue, an elderly widow who lives in Missouri, filed a 50-page complaint in the claims court -- nine days before the statute of limitations expired. Fauvergue represents a class of similarly situated plaintiffs who own land along the former Memphis Carthage & Northwestern Railroad Co. line linking Jasper County, Mo., and Cherokee County, Kan. A notice of interim trail use was filed against the land on June 21, 2002, triggering the statute of limitations.

The case is part of the nationwide litigation involving the Rails to Trails Act of 1983, which let local governments and private groups obtain easements to turn old rail lines into public trails. The plaintiffs in these cases argue that the government must pay for taking land for public trails.

Justice lawyers orally moved to dismiss Hearne's effort to bring additional landowners into the case after June 21, 2008, when the statute of limitations expired. They said John R. Sand & Gravel "crystallized" the absolute nature of the six-year limit. (The statute says simply that a claim in the Court of Federal Claims "shall be barred unless the petition is filed within six years after such claim first accrues.") Environmental division trial attorney Kristine Tardiff argued that, without an exception from Congress, judges cannot expand or restrict the six-year period. She said that the Justice position is not novel and that Hearne, the plaintiffs lawyer, is making "broad-brush statements."

Miller mused in court that John R. Sand & Gravel had handed Justice a gift and now Justice was "experimenting with it and seeing what its reach is."

Six years might seem like a long time, but Hearne said it's not. He said there's often a delay between when the government initiates a taking and when the landowner learns about it -- especially in these Rails to Trails cases. "Nobody knocked on [Fauvergue's] door and said the government is planning to build a trail on her property in the future," Hearne said. That's why litigation generally starts "late into that six-year period."

Hearne, who served as national election counsel to President George W. Bush's 2004 re-election campaign, said there are more than 160 parcels in Kansas and Missouri in the Fauvergue case that belong to landowners who, without class action procedure, could not cost-effectively make a claim. In some Rails to Trails cases, he said, the amount of money owed is often smaller than the cost of making a claim. For instance, the government in a 1996 case paid $19,000 for the value of land and nearly $300,000 in attorney fees and costs. By contrast, in a 2005 class action that involved 116 parcels of land, the government paid nearly $7.4 million for the land and just $770,000 in attorney fees.

A LEGITIMATE IRONY

Roger Marzulla, a property rights specialist who has filed an amicus brief in the Federal Circuit appeal, agrees that the department's take on John R. Sand & Gravel is devastating for class actions in the claims court. The department, he said, is expecting that individuals with small-dollar claims will abandon their claims because of the money and time required for an individual lawsuit.

"The real irony about this aggressive use of statute of limitations is that it undermines the whole notion that the Department of Justice is there not to beat down plaintiffs," said Marzulla, whose law firm, Washington, D.C.'s Marzulla Law, has an active practice in the Court of Federal Claims. "If they can beat it on a technicality, they don't care whether the claim has merit or not. That loses sight of the whole purpose of the Justice Department."

Plaintiffs lawyer Ira Lechner, a solo practitioner who splits time between Washington and San Diego, calls the Justice Department "shortsighted" in its approach to Fauvergue and other class actions. Lechner is representing a class of former federal employees suing for back pay. Justice lawyers, citing John R. Sand & Gravel, argued that the statute of limitations should bar all claims in his case. Senior Judge Loren Smith of the Court of Federal Claims denied the government's motion to dismiss about a month before Miller adopted the department's position in the Fauvergue case.

"The Justice Department has completely rejected class procedure," Lechner said.

Hearne said he is "certain" that members of Congress do not support the Justice strategy. He points to an April 2008 statement by Sen. Richard Burr, R-N.C., chastising the department for employing a statute-of-limitations argument in another Rails to Trails takings case involving one of Burr's constituents. Burr urged the department to settle.

Whether or not the Justice Department should be aggressively pushing the six-year statute of limitations, however, Miller noted in court this year that the government "can use any legitimate legal tool in its arsenal."

Originally posted at InjuryBoard by Shehnaz Bhujwala

Los Angeles Mayor Antonio Villaraigosa's Proposed Budget Cuts Include Skimping on Ethics

Paul Kiesel — Mon, 11 May 2009 18:50:10 GMT

From the Los Angeles Times:

There's more to public safety than police and fire protection. A safe city also is one that makes an effort to shield its people from the corrosive influences of sleazy politics, cronyism and corruption.

That's why, when the full City Council takes up Mayor Antonio Villaraigosa's crisis budget next week, it needs to take extraordinary care to see that the Ethics Commission isn't crippled in the rush to economize. The commission is a unique civic institution, the only city department that gets its mandate directly from the people, who created it in June 1990, when they overwhelmingly voted to amend the City Charter with a sweeping package of ethical and campaign finance reforms.

As a Times editorial pointed out at the time, the new ethics code was the product of a novel process. It was "drafted by a citizens' commission appointed by -- but independent of -- Mayor Tom Bradley, passed on by the City Council after days of historic, open debate and, finally, ratified by a decisive 57% of the city's voters." Like many of those involved in the struggle to draft the omnibus amendment, The Times argued that creation of a permanent city ethics commission -- something many in city government bitterly opposed -- was the heart of the reform effort.

In the years since, the five-member commission with its staff of 27 has become something of a national model. It also has taken on expanded duties, educating and advising lawmakers and their staffs on ethical and campaign finance issues. Last quarter, it levied $127,000 in fines in seven cases involving money laundering and improper campaign contributions. The staff currently has 46 open cases under investigation.

Thus, the mayor's proposal to cut the commission's $2.5-million budget by 17.9% -- roughly double the 9.4% median reduction among all city departments -- deserves careful scrutiny. Now it's true that the city's fiscal crisis is unprecedented, and the mayor's plan was pulled together in the face of revenues that seem to fall more dramatically and local unemployment that seems to climb more steeply with each passing day. Villaraigosa and his team, moreover, deserve high marks for subjecting the whole range of civic expenditures to searching analysis, and for their determination to maintain essential services and to keep as many city workers as possible on the job.

The question the council needs to ask now is whether the commission's ability to render its own form of essential public service will be too severely compromised to justify what are, even in this context of dire emergency, relatively meager savings. The commission's president, attorney Helen Zukin, points out that the proposed $450,000 cut amounts to just .01% of the city's overall $4.4-billion budget. She says she has no doubt, moreover, that the commission's ability to conduct investigations and undertake enforcement will be "greatly reduced." Zukin says the cuts will force six layoffs, including an investigator and an auditor, at a time when serious investigations are underway.

Article continues here...

Originally posted at InjuryBoard by Paul Kiesel

NYT: Religious Leaders Lobbying to Thwart Sexual Abuse Bill Favoring Victims

Paul Kiesel — Thu, 12 Mar 2009 19:03:16 GMT

This article is in regards to a New York State Senate bill, the Child Victims Act. The bill is growing in popularity by the new Democratic majority in the State Legislature, and there is a good chance that it will pass. However, Roman Catholic and Orthodox Jewish officials in New York are trying their best to prevent this piece of legislation from seeing the light of day; a bill that would help victims of sexual abuse seek the justice they deserve.

From The New York Times:

March 12, 2009

By PAUL VITELLO

Roman Catholic and Orthodox Jewish officials in New York are mounting an intense lobbying effort to block a bill before the State Legislature that would temporarily lift the statute of limitations for lawsuits alleging the sexual abuse of children.

A perennial proposal that has been quashed in past years by Republicans who controlled the State Senate, the bill is now widely supported by the new Democratic majority in that chamber, and for the first time is given a good chance of passing.

If signed by Gov. David A. Paterson, a longtime supporter, the bill would at minimum revive hundreds of claims filed in recent years against Catholic priests and dioceses in New York, but dismissed because they were made after the current time limit, which is five years after the accuser turns 18. Similar legislation has passed in Delaware and in California, where a 2003 law led to claims that have cost the church an estimated $800 million to $1 billion in damages and settlements.

The rekindled prospects of the New York bill, known as the Child Victims Act, come at a delicate juncture for the Archdiocese of New York, the nation’s flagship see, where Cardinal Edward M. Egan is scheduled to hand over the reins in April. His successor, Archbishop Timothy M. Dolan of Milwaukee, was so hard hit by settlements for past abuse by priests in that archdiocese that he was forced to put its headquarters up for sale.

“We believe this bill is designed to bankrupt the Catholic Church,” said Dennis Poust, spokesman for the New York State Catholic Conference, a group representing the bishops of the state’s eight dioceses. He said that Cardinal Egan and Bishop Nicholas A. DiMarzio of Brooklyn visited Albany this week to voice their opposition, and that a statewide network of Catholic parishioners had bombarded lawmakers via e-mail.

But while the Catholic Church is leading the opposition, in recent months a loose coalition of disparate groups has also joined the effort. They include leaders of the Hasidic and Sephardic Jewish institutions in Brooklyn, which could face equally costly abuse claims. The New York Civil Liberties Union and the criminal defense bar oppose lifting statutes of limitation as unfair to the accused, who must defend themselves against claims of transgressions decades old.

Under the Albany measure, which Assemblywoman Margaret M. Markey, a Queens Democrat, has shepherded to Assembly approval in each of the last three sessions, people claiming they were sexually abused as children would be given a one-year exemption from the statute of limitations. Regardless of how long ago the alleged abuse occurred, they could file suit in civil court.

At the year’s end, time limits on such claims would be restored, but with a wider window: Instead of a five-year period after turning 18, victims would have 10 years to file claims.

The bill would not lift the statute of limitations for criminal prosecutions of child abuse, which in most cases are the same as for civil complaints. For violent assaults like rape, there are no time limits on prosecution.

Many children’s advocates say guilt, shame and fear of the emotional toll on family members have often deterred victims from reporting sexual abuse until well into adulthood. The revelations of past abuse by priests that became a national scandal starting in 2002 prompted some to seek redress, only to discover they were barred by the statutes of limitation.

Marci A. Hamilton, a professor at the Benjamin N. Cardozo School of Law at Yeshiva University who has argued that states should remove all statutes of limitation on child sex abuse claims, said the principle is comparable to the way industrial pollution is treated under the law. “The consequences of toxic pollution may not be known or felt for years after the fact,” she said. “The same is often true for children who are sexually abused.”

But opponents of such unlimited time frames of liability contend that decades-old memories of childhood events are not reliable.

THE REST OF THE ARTICLE IS HERE.

Originally posted at InjuryBoard by Paul Kiesel