Two Shields v. United States

United States Court of Appeals
for the Federal Circuit
______________________
RAMONA TWO SHIELDS, MARY LOUISE
DEFENDER WILSON, INDIVIDUALLY, AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-5069
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00090-LB, Judge Lawrence J.
Block.
______________________
Decided: April 27, 2016
______________________
KENNETH E. MCNEIL, Susman Godfrey LLP, Houston,
TX, argued for plaintiffs-appellants. Also represented by
SHAWN L. RAYMOND; ANDRES HEALY, Seattle, WA; NANCIE
GAIL MARZULLA, Marzulla Law, LLC, Washington, DC.
ROBERT HARRIS OAKLEY, Environment and Natural
Resources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by JOHN C. CRUDEN.
______________________
2 TWO SHIELDS v. US
Before PROST, Chief Judge, MOORE and TARANTO, Circuit
Judges.
PROST, Chief Judge.
Appellants Ramona Two Shields and Mary Louise De-
fender Wilson brought this action against the United
States, seeking redress for themselves and other Native
Americans in connection with the government’s alleged
mismanagement of oil-and-gas leases on Indian allotment
land. The United States Court of Federal Claims found in
favor of the government, granting summary judgment on
Count I and dismissing Counts II and III. J.A. 1–30. We
affirm.
I
Pursuant to the General Allotment Act of 1887 and
the Indian Reorganization Act of 1934, the United States
is the trustee of millions of acres of Indian allotment land.
The Bureau of Indian Affairs (“BIA”), under the Secretary
of the Interior, is the federal bureau responsible for
managing the trust lands.
Much of this case turns on events from a prior case,
commonly referred to as the Cobell litigation. We there-
fore begin with a discussion of the facts and circumstanc-
es surrounding that case.
A
In 1996, the Cobell class action lawsuit was filed on
behalf of more than 300,000 Native Americans. The
plaintiffs alleged that the government had mismanaged
their Individual Indian Money (“IIM”) accounts by failing
to account for billions of dollars relating to leases of
allotment land for oil extractions and logging. The litiga-
tion was complex and drawn-out, and eventually settled
in 2011. See Cobell v. Salazar, No. 96-1285, 2011 WL
TWO SHIELDS v. US 3
10676927 (D.D.C. July 27, 2011). It is the details of the
Cobell settlement that are relevant here.
The Cobell settlement provided that, following the en-
actment of legislation to carry it out, an amended com-
plaint would be filed. The amended complaint set forth
several different categories of claims. One was “historical
accounting claims” asserted by members of the “historical
accounting class”—these claims were closely tied to the
government’s mismanagement of IIM accounts that was
the focus of the original complaint. J.A. 652. Another
category of claims was much broader—it included any
“land administration claims” held by the “trust admin-
istration class,” a class defined as including those individ-
uals that held, as of the Record Date of September 30,
2009, “a recorded or other demonstrable ownership inter-
est in land held in trust or restricted status.” J.A. 656.
The land administration claims were broadly defined as
any “known and unknown claims that have been or could
have been asserted through the Record Date [of Septem-
ber 30, 2009] for Interior Defendants’ alleged breach of
trust and fiduciary mismanagement of land, oil, natural
gas, mineral, timber, grazing, water and other resources
and rights.” J.A. 653.
Importantly, the settlement agreement included an
opt-out provision. Members of the trust administration
class who failed to opt out of the settlement would be
“deemed to have released, waived, and forever dis-
charged” the government from any claims falling within
the scope of the settlement, including any land admin-
istration claims. J.A. 686.
In December of 2010, Congress passed the Claims
Resolution Act of 2010, which ratified the settlement and
funded it with $3.4 billion. See Pub. L. 111-291, 124 Stat.
3064 (Dec. 8, 2010). The amended complaint was duly
filed with the district court, the settlement approved, and
judgment entered in 2011. Cobell, 2011 WL 10676927. In
4 TWO SHIELDS v. US
accordance with the settlement terms, the district court
provided notice of the settlement, including class mem-
bers’ opt-out right. The fairness of the opt-out process
was challenged in court (including alleged violations of
Fifth Amendment due process and the notice provisions of
Fed. R. Civ. Pro. 23), but those challenges were ultimately
rejected. See id., aff’d, 679 F.3d 909 (D.C. Cir. 2012), cert
denied, 133 S. Ct. 543 (2012).
B
Appellants in this case, Ms. Two Shields and Ms.
Defender Wilson, are “Indian allotees” who hold interests
in allotment land located on the Fort Berthold Indian
Reservation in North Dakota. Appellants’ allotments are
located on part of the Bakken Oil Shale—one of the
country’s largest contiguous deposits of oil and natural
gas.
Pursuant to legislation enacted in 1998, Fort Berthold
allotees cannot lease their oil-and-gas interests unless the
Secretary approves the lease as “in the best interest of the
Indian owners of the Indian Land.” Pub. L. No. 105-188,
122 Stat. 620 (1998) (“Fort Berthold Act”) (amending 25
U.S.C. § 396). This approval step is “intended to ensure
that Indian mineral owners desiring to have their re-
sources developed are assured that they will be developed
in a manner that maximizes [the Indian owners’] best
economic interests and minimizes any adverse environ-
mental impacts or cultural impacts resulting from such
development.” 25 C.F.R. § 212.1(a).
In 2013, Appellants sued the government for violating
its obligations relating to approval of oil-and-gas leases on
Fort Berthold allotment lands. Appellants alleged that,
between 2006 and late 2009, a company called Dakota-3
obtained leases on thousands of acres of Fort Berthold
allotment land at below-market rates, then turned around
and sold those leases to the Williams Companies in No-
vember of 2010 for a profit of nearly $900 million. Appel-
TWO SHIELDS v. US 5
lants alleged that the BIA knew the below-market rates
were not in the Indian owners’ best interests, but none-
theless rubber-stamped every Dakota-3 lease.
The complaint contained three counts. The primary
one, Count I, alleged that the BIA breached its fiduciary
duty under 25 U.S.C. § 396 to ensure leases are in the
best interests of the Indian owners. The government
sought summary judgment on this count, arguing that
Appellants were barred from asserting it by the Cobell
settlement. It is undisputed that Ms. Two Shields and
Ms. Defender Wilson are members of the trust admin-
istration class and that they failed to opt out of the set-
tlement. 1 The government therefore argued that it was
entitled to summary judgment because Count I was a
land administration claim released by Appellants’ failure
to opt out of the Cobell settlement. The Court of Federal
Claims agreed, granting summary judgment for the
government. J.A. 14–21.
The complaint’s Counts II and III were made in the
alternative. In Count II, Appellants alleged that the
government breached a wholly separate fiduciary duty—a
duty to have disclosed to Appellants, during the Cobell
settlement proceedings, information relating to the Fort
Berthold claims Appellants assert in this case. The Court
of Federal Claims dismissed this count for lack of subject
matter jurisdiction, agreeing with the government that
there was no source of federal law that set forth the
specific fiduciary duty alleged to be breached. J.A. 25–27.
In Count III, Appellants alleged that the Claims Resolu-
tion Act of 2010 was a legislative taking of Counts I and
1 While Appellants refused to concede that they
were members of the trust administration class below, the
Court of Federal Claims made a finding that they were
members of the class, and Appellants do not dispute that
finding on appeal.
6 TWO SHIELDS v. US
II, in violation of the Fifth Amendment. The Court of
Federal Claims dismissed this count as well, finding that
Counts I and II did not amount to a cognizable property
interest that could be the subject of a takings claim be-
cause they lacked a final judgment; that Appellants could
not show an unjust taking occurred; and that, in any
event, Count III appeared to be a due process claim
“masquerading” as a takings claim, and therefore outside
the Court of Federal Claims’ jurisdiction. J.A. 27–29.
Appellants now appeal to us. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3).
II
We review a summary judgment determination by the
Court of Federal Claims “completely and independently,
construing the facts in the light most favorable to the non-
moving party.” Am. Airlines, Inc. v. United States, 204
F.3d 1103, 1108 (Fed. Cir. 2000). We review de novo the
Court of Federal Claims’ dismissals based on lack of
jurisdiction, Holmes v. United States, 657 F.3d 1301, 1309
(Fed. Cir. 2011), and failure to state a claim for which
relief can be granted, Hartford Fire Insurance Co. v.
United States, 772 F.3d 1281, 1284 (Fed. Cir. 2014).
A
We begin with what both parties agree is the primary
question in this case: whether the Cobell settlement bars
Appellants from now asserting Count I against the gov-
ernment. We treat the Cobell settlement as a contract,
VanDesande v. United States, 673 F.3d 1342, 1350 (Fed.
Cir. 2012), the proper interpretation of which is a ques-
tion of law, Landmark Land Co. v. FDIC, 256 F.3d 1365,
1373 (Fed. Cir. 2001). Appellants offer four reasons why
the Cobell settlement should not be interpreted as releas-
ing their claims. We take each in turn.
First, Appellants argue that Count I does not fall
within the definition of “land administration claims,”
TWO SHIELDS v. US 7
which is limited to only those claims that could have been
asserted by the Record Date of September 30, 2009.
Appellants contend that the crucial event in this case was
the November 2010 sale of leases from Dakota-3 to the
Williams Companies, at a profit—that Appellants’ claims
did not accrue until that time and thus do not meet the
September 30, 2009 cut-off date for “land administration
claims.”
Appellants are correct that “a claim does not accrue
until all events necessary to fix the liability of the defend-
ant have occurred.” Catawba Indian Tribe v. United
States, 982 F.2d 1564, 1570 (Fed. Cir. 1993). But the
November 2010 sale to the Williams Companies was not
an event necessary to fix the government’s purported
liability. Instead, “[a] cause of action for breach of trust
traditionally accrues when the trustee ‘repudiates’ the
trust and the beneficiary has knowledge of that repudia-
tion.” Shoshone Indian Tribe of Wind River Reservation v.
United States, 364 F.3d 1339, 1348 (Fed. Cir. 2004). “A
trustee may repudiate the trust by express words or by
taking actions inconsistent with his responsibilities as a
trustee.” Id. Here, the government’s purported liability
was fixed at the time it allegedly repudiated its trust
duties as set forth in § 396—when it approved the Dako-
ta-3 leases at below-market rates. Appellants do not
argue that they lacked knowledge of the below-market
rates at the time of approval, nor do they argue that any
of the approvals occurred after the September 30, 2009
cut-off date. Thus, although the November 2010 sale to
the Williams Companies was, in some sense, a final link
in the chain, Appellants’ claims had accrued, and could
have been asserted, back when the BIA approved the
below-market Dakota-3 leases. Count I therefore is a
“land administration claim” settled by Cobell—it compris-
es “known and unknown claims that have been or could
have been asserted through the Record Date [of Septem-
ber 30, 2009].”
8 TWO SHIELDS v. US
Second, Appellants argue that the Cobell settlement’s
payment mechanics show that Count I was not released.
The Cobell settlement provided that each member of the
trust administration class would receive a base payment
of approximately $800, plus an additional pro rata pay-
ment based on the amount of money deposited in the
member’s IIM account from October 1, 1985, through
September 30, 2009. Appellants argue that these pay-
ments “make[] no sense” as applied to the present case:
that individuals received an average of only $1,600 under
the Cobell settlement while they stand to receive any-
where from $100,000 to $150,000, if successful in this
case. Opening Br. 30. Appellants argue that invoking
Cobell’s release language in these circumstances would
mean that Appellants “waived their claims for nothing.”
Id. at 31.
Appellants’ argument is foreclosed by the simple fact
that they chose not to opt out of the settlement. Even if
the Cobell payments are less than satisfactory in rectify-
ing the Fort Berthold harm, Appellants are bound by the
settlement’s payment terms because they chose not to opt
out. Further, challenges to the fairness and adequacy of
the Cobell payment scheme have already been rejected.
In 2012, the United States Court of Appeals for the Dis-
trict of Columbia considered an argument that the Cobell
settlement’s distribution scheme was unfair because some
class members “likely possess more valuable claims than
do others and . . . the per capita baseline payment under-
compensates the former while over-compensating the
latter, an inequity that the pro rata payment does not
remedy.” Cobell v. Salazar, 679 F.3d at 918–19. The
court rejected this argument and closed the issue, stating
that “the distribution scheme is fair and ‘[i]t is hard to see
how there [c]ould be a better result.’” Id. at 919 (citation
omitted). The court further reasoned that “the existence
of the opt-out alternative effectively negates any inference
TWO SHIELDS v. US 9
that those who did not exercise that option considered the
settlement unfair.” Id. at 920. We agree.
Third, Appellants argue that the Cobell settlement
should not be construed as releasing the government’s
liability for Count I because the government failed to
provide “full information” about Appellants’ claims (e.g.,
details regarding the specific damages and breaches
relating to the Fort Berthold allegations) back when the
Cobell release was effectuated. As support for its “full
disclosure” theory, Appellants rely on a 2003 decision
from the Court of Federal Claims, Shoshone Indian Tribe
v. United States, 58 Fed. Cl. 542 (2003).
The Shoshone case does not stand for the broad-
sweeping proposition made by Appellants. At issue in
that case was the government’s motion in limine to ex-
clude evidence based on a letter sent by the Indian plain-
tiffs, which the government argued constituted a release
of the plaintiffs’ claims. Id. at 544. The Court of Federal
Claims denied the government’s motion to exclude.
Relying on a general treatise on trusts, the court found
that no release occurred because the government had not
provided plaintiffs “with the full information plaintiffs
would have needed before releasing the claims listed in
the 1997 letter.” Id. at 545. This decision is not control-
ling here. First, we are not bound by decisions of the
Court of Federal Claims. Second, as explained later in
this opinion, more recent cases from the Supreme Court
make clear that a general trust relationship between the
United States and its beneficiary is not enough to impose
an information-disclosure obligation found nowhere in the
governing statute. See infra pp. 12–14.
Finally, Appellants argue that the named Cobell
plaintiffs lacked standing to assert Appellants’ Count I
Fort Berthold claims. The Cobell settlement releases any
claims “that were, or should have been, asserted in the
Amended Complaint when it was filed.” J.A. 686. Appel-
10 TWO SHIELDS v. US
lants point out that the named Cobell plaintiffs had no
Fort Berthold oil-and-gas interests and the Cobell com-
plaint did not contain a single fact regarding the specific
Fort Berthold claims. They contend that the named
Cobell plaintiffs lacked standing to assert Appellants’
Count I Fort Berthold claims because the “alignment of
interest and injury must be exact” as between class repre-
sentatives and the other class members. Opening Br. 35.
Appellants are incorrect that exact alignment of injury
is required between class representatives and other class
members. Id. The question, instead, is whether or not
the claims of the class representatives and other class
members “implicate a significantly different set of con-
cerns.” Gratz v. Bollinger, 539 U.S. 244, 265 (2003).
Here, it is clear that the concerns implicated by the
Cobell claims and Appellants’ Count I claims are not
significantly different. Appellants assert in this case that
the BIA approved leases that were below market value,
and therefore were not in their “best interests” as re-
quired by the Fort Berthold Act. Those concerns are
precisely the same as the ones implicated by Cobell’s land
administration claims, which specifically included any
alleged “[f]ailure to obtain fair market value on leases”
and “failure to prudently negotiate leases” by the Secre-
tary on Indian allotment land. J.A. 654. The fact that the
named Cobell plaintiffs’ oil-and-gas interests may have
been tied to a location other than Fort Berthold is of no
moment—the alleged harm in both Cobell and this case is
not significantly different. Likewise, the fact that the
Cobell complaint did not specifically reference the Fort
Berthold Act is also insignificant, as the “best interest”
standard of the Fort Berthold Act adds little to the lan-
guage already present in § 396. See 25 U.S.C. § 396 (“The
Secretary of the Interior shall have the right to reject all
bids [for mineral leases] whenever in his judgment the
interests of the Indians will be served by so doing, and to
advertise such lease for sale.”). There is no standing issue
TWO SHIELDS v. US 11
that precludes application of the Cobell release to Appel-
lants’ Count I claims.
For the aforementioned reasons, we reject all four of
Appellants’ arguments as to why the Court of Federal
Claims was wrong to construe the Cobell settlement as
releasing their claims.
We also reject Appellants’ contention that the Court of
Federal Claims erred by arriving at its conclusion without
first allowing discovery of extrinsic evidence regarding the
facts and circumstances surrounding the negotiation and
execution of the Cobell settlement. Appellants’ position is
that this extrinsic context evidence must be considered in
determining whether the Cobell release language applies
to Appellants’ Count I claims. We disagree.
“Outside evidence may not be brought in to create an
ambiguity where the language is clear.” City of Tacoma v.
United States, 31 F.3d 1130, 1134 (Fed. Cir. 1994); see
also R.B. Wright Constr. Co. v. United States, 919 F.2d
1569, 1572 (Fed. Cir. 1990). Although we have noted that
evidence of “trade practice and custom” should be consid-
ered when interpreting contracts, that is not the type of
evidence Appellants seek to rely on here and, in any
event, even that type of evidence cannot be used “to create
an ambiguity where a contract was not reasonably sus-
ceptible of different interpretations at the time of con-
tracting.” Metric Constructors, Inc. v. Nat’l Aeronautics &
Space Admin., 169 F.3d 747, 751 (Fed. Cir. 1999); see also
id. (warning against “according undue weight to [a]
party’s purely post hoc explanations for its conduct”).
Likewise, this is not a case where the court below errone-
ously relied on a general dictionary definition to ascertain
the meaning of a contract, divorced from the context of the
agreement. See Rockies Exp. Pipeline LLC v. Salazar, 730
F.3d 1330, 1340–41 (Fed. Cir. 2013). Here, the language
of the Cobell settlement is clear. As explained above,
Appellants have failed to show any reason why Count I is
12 TWO SHIELDS v. US
not barred by its terms. We therefore affirm the Court of
Federal Claims’ grant of summary judgment.
B
Appellants’ Count II alleges that, even if Count I is
barred by Cobell, the government breached a wholly
separate fiduciary duty—a duty to have disclosed to
Appellants, during the Cobell settlement proceedings,
information relating to the Fort Berthold claims Appel-
lants assert in this case. Appellants rely on 25 U.S.C.
§ 396 and its regulations as supplying the requisite statu-
tory authority for this fiduciary duty. The Court of Fed-
eral Claims dismissed Count II for lack of jurisdiction,
finding that § 396 does not supply the fiduciary duty
alleged to be breached. We agree.
Both the Tucker Act, 28 U.S.C. § 1491, and the Indian
Tucker Act, 28 U.S.C. § 1505, create subject matter juris-
diction for the Court of Federal Claims over certain claims
brought against the United States. There are “two hur-
dles that must be cleared” before jurisdiction can be
invoked pursuant to these statutes. United States v.
Navajo Nation, 556 U.S. 287, 291 (2009). “First, the tribe
‘must identify a substantive source of law that establishes
specific fiduciary or other duties, and allege that the
Government has failed faithfully to perform those du-
ties.’” Id. (quoting United States v. Navajo Nation, 537
U.S. 488, 490 (2003) (Navajo Nation I)). If that threshold
is passed, the court must then determine whether the
relevant source of substantive law can be fairly interpret-
ed as a money-mandating. Id.Appellants’ Count II fails at the first hurdle. When
determining whether the government owes a particular
fiduciary duty, “the analysis must train on specific rights-
creating or duty-imposing statutory or regulatory pre-
scriptions.” Navajo Nation I, 537 U.S. at 506. Although
common-law principles can be used to inform the scope of
liability that Congress has imposed, United States v.
TWO SHIELDS v. US 13
White Mountain Apache Tribe, 537 U.S. 465, 475–76
(2003), “‘a general trust relationship between the United
States and the Indian People’ . . . alone is insufficient to
support jurisdiction under the Indian Tucker Act.” Nava-
jo Nation I, 537 U.S. at 506 (quoting United States v.
Mitchell, 463 U.S. 206, 225 (1983)). Rather, “the United
States is only subject to those fiduciary duties that it
specifically accepts by statute or regulation.” Hopi Tribe
v. United States, 782 F.3d 662, 667 (Fed. Cir. 2015).
The Supreme Court has found that some “statutes
and regulations . . . clearly establish fiduciary obligations
of the Government.” Mitchell, 463 U.S. at 226; id. at 220(finding specific fiduciary duties of timber management in
light of a statutory and regulatory scheme creating obli-
gations on “virtually every aspect of forest management”);
see also White Mountain Apache Tribe, 537 U.S. at 475(finding specific fiduciary duties to maintain and preserve
property that is “actually administer[ed]” in trust). But
where the relevant statute cannot be fairly read as impos-
ing the specific fiduciary duty alleged to be breached, the
Court has refused to impose the obligation on the gov-
ernment. See Navajo Nation I, 537 U.S. at 507–13 (find-
ing no specific fiduciary duties to ensure a specific rate of
return on coal leases or to proscribe ex parte communica-
tions in an administrative appeal process); United States
v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2329–30
(2011) (finding no specific fiduciary duty to disclose all
information related to the administration of Indian
trusts); see also Hopi Tribe, 782 F.3d at 668–71 (finding
no specific fiduciary duty to ensure adequate water quali-
ty on the Hopi reservation).
Appellants here rely on 25 U.S.C. § 396 as creating a
very specific fiduciary duty of the government—a duty to
have “disclose[d] ‘full information’ to Two Shields or their
counsel about their § 396 claims before securing their
release.” Reply Br. 23. But nothing in § 396 imposes such
an obligation. Section 396 is directed to the lease of
14 TWO SHIELDS v. US
Indian allotment land for mining purposes; it states that
the Secretary “is authorized to perform any and all acts
and make such rules and regulations as may be neces-
sary” and gives to the Secretary “the right to reject all
bids whenever in his judgment the interests of the Indi-
ans will be served by so doing.” 25 U.S.C. § 396. The Fort
Berthold Act further obliges the Secretary to approve only
those leases that it has determined to be “in the best
interest of the Indian owners of the Indian land.” Fort
Berthold Act, § 1(a)(2)(A)(ii). The obligations imposed on
the Secretary relate solely to the approval of mineral
leases on allotted land; nothing in the statute creates
litigation-related disclosure obligations, and certainly not
the specific Cobell settlement disclosure obligations
sought by Appellants in this case. Like the Supreme
Court in Jicarilla, we conclude that the relied-upon
statute here does not include a general duty “to disclose
all information related to the administration of Indian
trusts.” Jicarilla, 564 U.S. at 2330. Because Appellants
point to no other source of law providing the fiduciary
duty alleged to be breached, we affirm the Court of Feder-
al Claims’ dismissal of Count II.
C
Finally, in Count III, Appellants allege that if their
Counts I and II fail, the Claims Resolution Act of 2010
was a legislative taking of Counts I and II without just
compensation, in violation of the Takings Clause of the
Fifth Amendment. The Court of Federal Claims dis-
missed Count III for failure to state a claim. We agree
with the dismissal, but not for the reasons relied on by
the court.
We assume here, contrary to the Court of Federal
Claims, J.A. 28, that Counts I and II constitute property
protected by the Takings Clause. And we apply the
requirements of the Takings Clause—the only Clause
invoked by Count III and invoked by Appellants here—
TWO SHIELDS v. US 15
without re-characterizing the claim as a due process
claim. Cf. J.A. 28–29. We conclude that no taking oc-
curred here.
The Claims Resolution Act of 2010 ratified the Cobell
settlement agreement. That settlement gave Appellants
and other Cobell class members two options: accept the
settlement terms and agree to releasing all covered claims
against the government, or opt out of the settlement and
retain the ability to pursue covered claims against the
government. The choice was up to Appellants—they could
give up their claims against the government, or they could
retain them. By failing to exercise their opt-out right,
Appellants voluntarily chose to forfeit their claims against
the government—including Counts II and III. In these
circumstances, no unjust taking occurred.
Our sister circuit has reached the same conclusion in
similar circumstances. See Littlewolf v. Lugan, 877 F.2d
1058 (D.C. Cir. 1989). In Littlewolf, the D.C. Circuit
rejected an argument by tribe members that the White
Earth Reservation Land Settlement Act of 1985 was an
unconstitutional taking in violation of the Fifth Amend-
ment. Id. at 1059. That Act extinguished the Indians’
claims to land illegally transferred earlier in the century
in return for payment of compensation based on the fair
market value at the time of transfer plus five percent
interest. Id. As an alternative to the statutory compen-
sation, the Act also gave claimants the option of filing an
action for judicially-determined compensation within six
months of the issuance of the notice of the payment due
them, in which case they would forgo their statutory
compensation. Id. The D.C. Circuit affirmed the district
court’s determination that no unjust taking occurred in
those circumstances because “a Tucker Act ‘safety net’
suffices when ‘a statute’s “basic compensation scheme . . .
is valid but could result in payment of less than the
constitutional minimum.”’” Id. at 1065 (quoting Littlewolf
v. Hodel, 681 F. Supp. 929, 946 (D.D.C. 1988) (quoting
16 TWO SHIELDS v. US
Regional Rail Reorganization Act Cases, 419 U.S. 102, 150
(1974))). In other words, as the district court in that case
put it, “[t]here is not taking” when “those affected are
afforded a reasonable opportunity to bring suit.” Little-
wolf v. Hodel, 681 F. Supp. at 944 (citing Texaco v. Short,
454 U.S. 516, 531–32 (1982), Block v. N. Dakota, 461 U.S.
273, 286 n.23 (1983), and Keller v. Dravo Corp., 441 F.2d
1239, 1242 (5th Cir. 1971), cert denied, 404 U.S. 1017(1972)). The same rationale applies here.
The decision of the Court of Federal Claims is af-
firmed.
AFFIRMED