Kudos to whomever added the Wilhelm Scream

In trial court litigation, the “final judgment” is a milestone. That’s when your window to an appeal starts, that’s when it is truly done in a trial court. If you are one of the parties or lawyers in the trial court, that’s when you can respond to the question “did you win?” truly with a “yes” or “no.”

And that little voice in our head keeps reminding us that until final judgment, in the (perhaps apocryphal) words of Yogi Berra, “it ain’t over ’til its over.” Yes, you might win a partial summary judgment. Or that motion gets denied. Or the court decides that yes, the court has jurisdiction. Or whatever. All that stuff is mostly interlocutory and therefore subject to revision, revocation, or reconsideration. Or in the case of subject-matter jurisdiction, something that can come back to bit a plaintiff is the butt at any time until the final buzzer (or even after, if you’ve ever had the experience of an appellate court laying the subject-matter jurisdiction bomb on you). 

And that, folks, is the scene where today’s story takes place.

It looked like to the plaintiff who raised a takings claim because the federal government allegedly failed to “provide the drainage it was obligated to provide,” resulting in flowage and seepage on the owner’s property. The Court of Federal Claims rejected the government’s argument that bringing the claim in 2011 was too late, because more than six years had passed since the claim allegedly accrued. The last time the feds provided any drainage was way back in 1986, back when dudes were wearing t-shirts with linen suits, and facial stubble as a thing made its cultural debut. 

If you are a seasoned reader, you know that when takings liability is premised on a drawn-out series of slow-motion events rather than One Big Thing, and courts are trying to figure out when a SoL window opened, they turn to the “stabilization” doctrine: when the slow-mo action has resulted in enough injury that the plaintiff should have become aware of it, the SoL window doesn’t open until the challenged action’s effects have “stabilized.”

Way back in 2013, the CFC rejected the government’s argument that the six years had run way before the 2011 complaint, holding that the stablization here occurred less that six years before 2011. At that point, the parties got to talking. Pleased with the kumbaya, the CFC stayed further forward progress of the litigation. For “nearly seven years[.]”

Apparently they talked a lot, but nothing more and eventually 2020, the CFC lifted the stay and the parties resumed fighting. The feds filed a 12(b)(6) motion, and as luck would have it, during the briefing the CFC judge went to senior status “and the case was reassigned.” You know what’s coming next…

That’s right, now that the case had a new judge the court sua sponte went back and revisited the formerly-denied motion to dismiss for lack of subject-matter jurisdiction, and held, contrary to the court’s former judge, that the stabilization doctrine did not apply, and thus the plaintiff is literally and metaphorically SOL.

In Etchegoinberry v. United States, No. 23-2196 (Mar. 24, 2025), the U.S. Court of Appeals for the Federal Circuit affirmed. The court first rejected the plaintiff’s “been there, done that!” argument, and held that the law-of-the-case doctrine does not prevent a trial court from exercising its discretion to do this kind of revisiting. That doctrine isn’t so much a “once and done” rule, but more like guidelines than actual rules. Slip op. at 4 (“The doctrine, however, ‘merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.'”) (citation omitted)).

Plus this is subject-matter jurisdiction and although this is an Article I tribunal and not an Article III court, the court must maintain Tucker Act jurisdiction for the whole case, not just at the beginning. Thus, the CFC (v.2.0) could go back and revisit the prior judge’s ruling.

Turning to whether the CFC correctly held that the stabilization doctrine didn’t save the complaint from a SOL dismissal, the Federal Circuit held that it doesn’t. 

The stabilization doctrine does not apply to Appellants’ claim. Appellants alleged the taking as the “full productive use of their farmlands,” by the United States through non-performance of its statutory duty to provide drainage. E.g., J.A. 2942. This is not a flooding case like Dickinson, where the government constructed a dam, resulting in a “continuing process of physical events” that eroded the plaintiffs’ land over time. 331 U.S. at 749. Appellants here irrigated their land for over forty years knowing the United States had not provided any drainage. The lack of drainage did not change at any point in this time period. As the Court of Federal Claims suggested, “the provision of irrigation water was regular, consistent, and recurring, and not a slow, gradual, physical process that may (or may not) eventually lead to a taking.”

Slip op. at 7-8 (footnote and citations omitted).

The owners “have applied fresh water to their lands without the United States providing any drainage since at least 1986. J.A. 2931. Appellants know this resulted in regular damage to their land.” Slip op. at 8.

A decade’s worth of effort and expense, including seven years of trying to settle: down the drain.

End of story, end of case.

Etchegoinberry v. United States, No. 23-2196 (Fed. Cir. Mar. 24, 2025)