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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CASE NO. 17-11908-D

NE 32ND STREET, LLC, as agent for

The Frank Sawyer Revocable Trust,

Plaintiff/Appellant,

v.

UNITED STATES OF AMERICA,

Defendant/Appellee.
______________________________/

On appeal from the United States District Court

for the Southern District of Florida
District Court Case No. 9:16-cv-80802-RLR (Rosenberg/Brannon)

INITIAL BRIEF OF APPELLANT NE 32ND STREET, LLC,

as agent for The Frank Sawyer Revocable Trust

ROBIN I. FRANK, ESQ.

ANDREW B. BLASI, ESQ.
SHAPIRO, BLASI, WASSERMAN
& HERMANN, P.A.
Attorneys for Plaintiff/Appellant
7777 Glades Road, Suite 400
Boca Raton, Florida 33434
Telephone: (561) 477-7800
Facsimile: (561) 477-7722
E-Mail: [email protected]
[email protected]
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
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CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT

Appellant, NE 32ND STREET, LLC, as agent for The Frank Sawyer Revocable

Trust, by and through its undersigned counsel, pursuant to Rule 26.1-3, submits the

following statement of interested persons and corporate disclosure statement:

1. BLASI, ANDREW B.
Counsel for Plaintiff/Appellant
Shapiro, Blasi, Wasserman & Hermann, P.A.
7777 Glades Rd., Suite 400
Boca Raton, FL 33434
Tel: (561) 477-7800
Fax: (561) 477-7722
E-Mail: [email protected]

2. BRANNON, DAVE LEE HONORABLE

Magistrate Judge, U.S. District Court, Southern District of Florida,
West Palm Beach Division
Paul G. Rogers Federal Building and U.S. Courthouse
701 Clematis St., Room 438
West Palm Beach, FL 33041
Tel: (561) 803-3470

3. ERICKSON-POGORZELSKI, ANTHONY
Counsel for Defendant/Appellee
U.S. Attorney’s Office
99 NE 4th St., 3rd Floor
Miami, FL 33132
Tel: (305) 961-9296
Fax: (305) 530-7139
E-Mail: [email protected]

C-1
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4. FRANK, ROBIN I.
Counsel for Plaintiff/Appellant
Shapiro, Blasi, Wasserman & Hermann, P.A.
7777 Glades Rd., Suite 400
Boca Raton, FL 33434
Tel: (561) 477-7800
Fax: (561) 477-7722
E-Mail: [email protected]

5. GREENBERG, BENJAMIN G.
Acting U.S. Attorney for the Southern District of Florida
U.S. Attorney’s Office
99 NE 4th St.
Miami, FL 33132
Tel: (305) 961-9296
Fax: (305) 530-7139

6. HEYER-BEDNAR, LORI L.
Counsel for Plaintiff/Appellant
Shapiro, Blasi, Wasserman & Hermann, P.A.
7777 Glades Rd., Suite 400
Boca Raton, FL 33434
Tel: (561) 477-7800
Fax: (561) 477-7722
E-Mail: [email protected]

7. NE 32ND STREET, LLC, as agent for The Frank Sawyer Revocable

Trust
Plaintiff/Appellant
c/o Shapiro, Blasi, Wasserman & Hermann, P.A.
7777 Glades Rd., Suite 400
Boca Raton, FL 33434
Tel: (561) 477-7800
Fax: (561) 477-7722

C-2
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8. ROSENBERG, ROBIN L. HONORABLE

Magistrate Judge, U.S. District Court, Southern District of Florida, Ft.
Pierce Division
Alto Lee Adams, Sr. U.S. Courthouse
101 S. U.S. Hwy. One, Courtroom 4008
Ft. Pierce, FL 34950
Tel: (772) 467-2340

9. SMACHETTI, EMILY M.
Counsel for Defendant/Appellee
U.S. Attorney’s Office
99 NE 4th St., Suite 522
Miami, FL 33132
Tel: (305) 961-9295
Fax: (305) 536-7214
E-Mail: [email protected]

10. UNITED STATES OF AMERICA

Defendant/Appellee
c/o U.S. Attorney’s Office
99 NE 4th St.
Miami, FL 33132
Tel: (305) 961-9295
Fax: (305) 536-7214

C-3
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STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument. This case concerns the construction of the

Quiet Title Act statute of limitations when the United States government holds only

an easement interest in private property, with broad implications for both private

property owners and the federal government, which oral argument will help to clarify

factually nuanced propositions of law which are before the Court.

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . . . . C-1 - C-3

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITATIONS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN

DISMISSING THE CASE FOR LACK FOR LACK OF SUBJECT-

MATTER JURISDICTION BECAUSE NE 32ND’S CLAIMS ARE NOT

BARRED BY THE QTA STATUTE OF LIMITATIONS. . . . . . . . . . . 10

A. The United States Failed to Establish Grounds for Reconsideration 1.2

B. NE 32nd’s QTA cause of action did not begin to accrue until December

5, 2013, when the ACOE Permit was issued. . . . . . . . . . . . . . . . . . . 14

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C. F.E.B. is inapposite . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CERTIFICATE OF COMPLIANCE WITH RULE 32(g)(1). . . . . . . . . . . . . . . . . 29

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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TABLE OF CITATIONS AND AUTHORITIES

Cases:

Baker v. Birmingham Bd. of Educ.,

531 F.3d 1336 (11th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Block v. North Dakota,

461 U.S. 273, 103 S.Ct. 1811, 75 L.Ed. 2d 840 (1983). . . . . . . . . . . . . . . . 10

Broward Gardens Tenants Ass’n v. EPA,

311 F.3d 1066 (11th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Burger King Corp. v. Ashland Equities, Inc.,

181 F. Supp. 2d 1366 (S.D. Fla. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Dunavant v. Sirote & Permitt, P.C.,

No. 14–13314, 603 Fed.Appx. 737 (11th Cir. February 9, 2015). . . . . . . . 12

F.E.B. Corp. v. United States,

818 F.3d 681 (11th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10, 11, 26

Kane County, Utah v. United States,

772 F.3d 1205 (10th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Knapp v. United States,

636 F.2d 279 (10th Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Leisnoi, Inc. v. United States,

267 F.3d 1019 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 21, 22, 23

Makro Capital of Am., Inc. v. USB AG,

543 F.3d 1254 (11th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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McMaster v. United States,

177 F.3d 936 (11th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Modern, Inc. v. Fla.,

No. 6:03-cv-718-Orl-31KRS, 2008 WL 239148 (M.D. Fla. Jan. 28, 2008).17

Ramos v. U.S. Dept. of Health & Human Serv.,

No. 10–15020, 429 Fed.Appx. 947 (11th Cir. June 14, 2011). . . . . . . . . . . . 5

Sabatier v. SunTrust Bank,

No. 08–10351, 301 Fed.Appx. 913 (11th Cir. December 9, 2008). . . . . . 4, 5

United States v. Mottaz,

476 U.S. 834, 106 S.Ct. 2224, 90 L.Ed. 2d 841 (1986). . . . . . . . . . . . . . . . 10

Valley View Dev., Inc. v. United States,

721 F. Supp. 2d 1024 (N.D. OK 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Werner v. United States,

9 F.3d 1514 (11th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11

Z.K. Marine, Inc. v. M/V Archigetis,

808 F. Supp. 1561 (S.D. Fla. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Statutes:

28 U.S.C. § 1291.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

28 U.S.C. § 1346(f).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Vii

28 U.S.C. § 2409a... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii, 1

28 U.S.C. § 2409a(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10, 22

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28 U.S.C. § 2409a(g).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix, 3, 10, 22

Rules:

Fed. R. App. P. 32(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Fed. R. App. P. 32(a)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Fed. R. App. P. 32(a)(7)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Fed. R. App. P. 32(a)(7)(B)(iii).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Secondary Sources:

BLACK’S LAW DICTIONARY (10th ed. 2014). . . . . . . . . . . . . . . . . . . . . . 17-18

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STATEMENT OF JURISDICTION

The Plaintiff/Appellant, NE 32ND STREET, LLC, as agent for The Frank

Sawyer Revocable Trust, filed this action to quiet title to property to which NE 32nd

holds record title and to which the Defendant/Appellee, the United States, now claims

an adverse easement interest. The District Court had subject matter jurisdiction

pursuant to the Quiet Title Act, 29 U.S.C. § 2409a (“QTA”) and 28 U.S.C. § 1346(f).

After denying the government’s Motion to Dismiss for Lack of Subject Matter

Jurisdiction, upon reconsideration, the district court held that it lacked subject matter

jurisdiction on the ground that the statute of limitations had run. As set forth below,

Appellant argues that the decision was erroneous. Appellant essentially contends that

the district court got it right the first time.

Specifically, this is a direct appeal from a final order entered by the District

Court for the Southern District of Florida on April 18, 2017, in which it granted the

government’s Motion for Reconsideration of the District Court’s Order denying the

government’s Motion to Dismiss for Lack of Subject Matter Jurisdiction, and

dismissed Appellant’s case for lack of subject matter jurisdiction. The order disposed

of all pending claims.

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The notice of appeal was timely filed on April 26, 2017. This Court has

jurisdiction pursuant to 28 U.S.C. § 1291.

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STATEMENT OF THE ISSUES

I. Whether the statute of limitations set forth in the Quiet Title Act (“QTA”), 28

U.S.C. § 2409a(g), which requires an action to be commenced within twelve

years of the date upon which it accrued, acts as a jurisdictional bar where the

federal government has held an easement interest encumbering

Plaintiff’s/Appellant’s property beyond the twelve-year accrual period (since

1938) that was not in actual dispute (i.e., the easement holder and the fee

holder peacefully coexisted with one another on the property) until such time

as the federal government recently issued and recorded a conflicting permit,

and recorded a conflicting and contradictory conservation easement in

connection therewith, (within the twelve-year accrual period), inasmuch as the

government’s claim of interest arising from the easement did not become

“adverse” to Plaintiff’s/Appellant’s property interest for purposes of the QTA

until the conflict between the easement holder and the fee holder actually arose

(to wit: as a result of the conflicting permit and conflicting conservation

easement) as opposed to when the spoil easement was merely recorded back

in 1938.

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STATEMENT OF THE CASE

A. Nature of the Case and Course of Proceedings

The Plaintiff/Appellant, NE 32ND STREET, LLC, as agent for The Frank

Sawyer Revocable Trust (“NE 32nd”), sued the United States under the Quiet Title

Act, 28 U.S.C. § 2409a (“QTA”) to quiet the Defendant’s/Appellee’s, the United

States, spoil easement over real property owned by NE 32nd. (D.E. 1).1 The United

States moved to dismiss for lack of subject-matter jurisdiction, arguing that NE

32nd’s suit was time-barred by the statute of limitations contained in the QTA. (D.E.

13). After the issue was fully briefed and the district court heard oral argument on

the motion to dismiss, the district court denied the United States’ motion to dismiss.

(D.E. 34). Thereafter, the United States filed a motion for reconsideration, which also

was fully briefed. (D.E. 40, 44, and 46). The district court granted the government’s

motion for reconsideration, and dismissed NE 32nd’s case for lack of subject-matter

jurisdiction, finding that the QTA statute of limitations had run. (D.E. 55). NE 32nd

appealed this Final Order. (D.E. 56).

1
References are to Appellant’s Appendix to the Initial Brief. For ease of
reference, record cites are to the docket entry number from the district court, and then
to the page number within that document, as follows: D.E. 1-5.

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B. Statement of Facts

NE 32nd holds record title to a parcel of real property (“MSA 686" or “the

subject property”) encumbered by a spoil easement “for the deposit of dredged

material . . .” that the United States was voluntarily granted from NE 32nd’s

predecessor in interest in 1938. (D.E. 1-2, ¶¶ 5-6, 8; DE 39-2, ¶¶ 5-7). On December

5, 2013, the United States, through the Army Corps of Engineers (“ACOE”), issued

NE 32nd a permit to construct a home and a dock on MSA 686. (D.E. 1-3, ¶ 15; D.E.

39-2, ¶ 8). The permit required that a conservation easement be placed on the land,

which easement was recorded by the ACOE on June 11, 2013 (“ACOE Permit”).

(D.E. 1-4-5, ¶¶ 16-20; D.E. 39-3-4, ¶¶ 9-13). The precise purpose behind the Army

Corps of Engineers issuing the ACOE Permit was to enable the property owner to

construct a home on the property, in direct contradiction of and contrary to the spoil

easement. It is indisputable and uncontroverted for purposes of the United States’

motion to dismiss that the conservation easement is in conflict with and in

contradiction of the United States’ spoil easement in that the conservation easement

would prohibit the placement of spoil on the subject property. (D.E. 1-8, ¶ 36; D.E.

39-6, ¶ 24; D.E. 59-10, lines 19-21; 59-26 lines 2-6).

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The QTA waives the government’s sovereign immunity, allowing the United

States to be named as a defendant in civil actions to quiet disputed title to real

property in which the United States claims an interest. 28 U.S.C. § 2409a(a). The

QTA contains a jurisdictional statute of limitations, requiring that any actions must

be brought within twelve years of accrual. 28 U.S.C. § 2409a(g). An action under

the QTA is “deemed to have accrued on the date the plaintiff or his predecessor in

interest knew or should have known of the claim of the United States.” 28 U.S.C. §

2409a(g). This Court previously recognized and established that it is not any interest,

but rather only an adverse interest, which gives rise to the accrual of an action under

the QTA. See, e.g., F.E.B. Corp. v. United States, 818 F.3d 681, 686, 692 (11th Cir.

2016) and Werner v. United States, 9 F.3d 1514, 1518-1519 (11th Cir. 1993).

The United States argued that the statute of limitations accrued in 1938 when

the United States obtained its spoil easement from NE 32nd’s predecessors in interest;

i.e., it claims its interest was adverse to NE 32nd’s property interest for purposes of

the QTA merely by virtue of the fact that the easement was recorded back in 1938.

(D.E. 13-7-9, D.E. 29-2-3, D.E. 40, D.E. 46; D.E. 59-13, lines 9-15). NE 32nd argued

that the statute of limitations did not accrue until 2013, when the conflicting ACOE

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permit and the accompanying conservation easement was recorded was issued; i.e.,

NE 32nd claims that the easement holder and the fee holder peacefully coexisted with

one another on the property until such time as the government issued the conflicting

ACOE permit (and the accompanying conservation easement was recorded) in 2013,

and that therefore, there was no cognizable adverse interest in existence until 2013,

such that the statute of limitations did not begin to accrue until then. (D.E. 25, D.E.

44; D.E. 59-23). The district court initially agreed with NE 32nd and found that

because the United States’ interest in MSA 686 was not adverse to NE 32nd’s interest

until the ACOE Permit was issued in 2013, NE 32nd’s lawsuit was not time-barred.

(D.E. 34). Subsequently, and after the United States convinced the district court to

reconsider its decision, the district court reversed itself, finding that adverse interests

were present in 1938 upon the mere recordation of the spoil easement, and dismissed

NE 32nd’s lawsuit for lack of subject-matter jurisdiction based upon the QTA’s

statute of limitations. (D.E. 55).

C. Standard of Review

This Court reviews the granting of a motion for reconsideration for an abuse

of discretion. See, e.g., Sabatier v. SunTrust Bank, No. 08–10351, 301 Fed.Appx.

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913 (11th Cir. December 9, 2008) (citing Makro Capital of Am., Inc. v. USB AG, 543

F.3d 1254, 1261 (11th Cir. 2008)). This Court reviews an order of dismissal for lack

of subject-matter jurisdiction, as well as the district court’s interpretation and

application of the statute of limitations, de novo. See, e.g., Ramos v. U.S. Dept. of

Health & Human Serv., No. 10–15020, 429 Fed.Appx. 947 (11th Cir. June 14, 2011)

(citing Broward Gardens Tenants Ass’n v. EPA, 311 F.3d 1066, 1072 (11th Cir. 2002)

and Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1337 (11th Cir. 2008)). As

conceded by the government, its motion to dismiss Appellant’s Complaint constituted

a facial attack on the Complaint, and therefore, the government did not contest any

facts alleged by Appellant in its Complaint. Moreover, and as such, the Court looks

and sees if Appellant has sufficiently alleged a basis of subject matter jurisdiction,

and the allegations in Appellant’s Amended Complaint must be taken as true. See

McMaster v. United States, 177 F.3d 936, 940 (11th Cir. 1999).

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SUMMARY OF THE ARGUMENT

The district court erred in granting, upon reconsideration, the government’s

Motion to Dismiss for Lack of Subject Matter Jurisdiction because the QTA’s statute

of limitations did not bar NE 32nd’s claims.

While the district court properly recognized the well-settled law that an adverse

interest is required to trigger the accrual of the QTA statute of limitations, it

nonetheless erred in finding that adversity was present back in 1938 by the mere

recordation of the spoil easement. Neither the district court nor the government has

supported this contention with any factual or legal finding.

Indeed, there was nothing adverse about the existence of the spoil easement

and NE 32nd’s title, or NE 32nd’s predecessor in interest’s title, to the subject

property until the ACOE Permit was issued and the conservation easement was

recorded by the ACOE in direct conflict therewith. And it is an undisputed fact for

purposes of the issue on appeal that the ACOE Permit (and the accompanying

conservation easement) and the spoil easement are in conflict with, and compete with,

one another and cannot co-exist. The fact that NE 32nd’s predecessor in interest

voluntarily granted the spoil easement to the United States demonstrates that the

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easement was not an interest opposed or contrary to the interests of the fee owner, but

was, at that time, harmonious with it. In short, at the timing of its recordation, the

spoil easement was not an “adverse interest”. Moreover, the spoil easement itself

recognized the reciprocal beneficial nature of the easement, which in itself

demonstrates that it is not adverse. It was not until 2013 when the government itself

issued the ACOE Permit and recorded the conservation easement, which superseded,

modified, and replaced the spoil easement, that the United States – for the very first

time – had claimed an interest which was adverse to NE 32nd’s ownership claim.

The district court – after aggressive lobbying by the government – was

persuaded to rely upon this Court’s decision in F.E.B., but this reliance was in error.

While the district court recognized, and the government conceded, that the ACOE

Permit (and the accompanying conservation easement) and the spoil easement are in

conflict with one another and cannot co-exist, they both failed to recognize the

distinction that F.E.B. involved competing fee simple claims, which necessarily are

adverse to one another from inception. To endeavor to consider as analogous a case

where two parties claim ownership of the very same fee title to the very same

property to a case, such as this, where one party claims the fee simple ownership

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interest and the other an easement interest is fatally flawed and misapprehends tenets

of basic real property law.

That this is not an easy analysis is evident in the fact that the underlying action

was dismissed by the district court on reconsideration after the government’s Motion

to Dismiss was denied. In its ruling reversing itself, the district court noted that the

court initially got it wrong. As demonstrated herein, it is Appellant’s position that the

district court got it right the first time and the district court’s decision denying the

Motion to Dismiss was far better reasoned.

It would appear from a review of the district court’s order granting the Motion

for Reconsideration that the district court was erroneously persuaded to change its

decision in the context of a broader implication which simply does not pertain, given

the very unique facts of this case. As such, while F.E.B. was properly decided based

upon the facts in that matter, the district court’s application of that decision to the

unique set of facts present in this case was misguided. Appellant contends that this

Court should look to and rely upon the Ninth Circuit Court of Appeals’ holding and

decision in Leisnoi, Inc. v. United States, 267 F.3d 1019 (9th Cir. 2001), to guide it

considering the issues on appeal here, as it is the most closely analogous to this case.

8
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

If this Court does so, it is inescapable that the government’s Motion to Dismiss

should not have been granted by the district court as NE 32nd’s QTS claim was

timely.

9
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

ARGUMENT

I. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN

DISMISSING THE CASE FOR LACK FOR LACK OF SUBJECT-
MATTER JURISDICTION BECAUSE NE 32ND’S CLAIMS ARE NOT
BARRED BY THE QTA STATUTE OF LIMITATIONS

The QTA created an exception to federal sovereign immunity and allows the

United States to be sued without Congressional consent in a civil action “to

adjudicate a disputed title to real property in which the United States claims an

interest . . .” 28 U.S.C. § 2409a(a); Block v. North Dakota, 461 U.S. 273, 286, 103

S.Ct. 1811, 75 L.Ed. 2d 840 (1983). The QTA’s statute of limitations is jurisdictional

– an action must be “commenced within twelve years of the date upon which it

accrued. . .” 28 U.S.C. § 2409a(g); United States v. Mottaz, 476 U.S. 834, 841, 106

S.Ct. 2224, 90 L.Ed. 2d 841 (1986); Block, 461 U.S. at 292. The statute of limitations

in the QTA provides that a cause of action "accrued on the date the plaintiff or his

predecessor in interest knew or should have known of the claim of the United States."

28 U.S.C. § 2409a(g). As previously recognized by this Court, the applicable

standard is a "reasonable awareness that the Government claims some interest adverse

to the plaintiff's." (emphasis added). See, e.g., F.E.B. Corp. v. United States, 818 F.3d

10
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

681, 686 (11th Cir. 2016) (quoting Knapp v. United States, 636 F.2d 279, 283 (10th

Cir. 1980)).

Beyond that, this Court has long recognized that an adverse interest is required

to trigger the statute of limitations. In Werner v. United States, 9 F.3d 1514, 1518-

1519 (11th Cir. 1993), this Court expressly rejected the argument that "the notice that

triggers the statute of limitations need only be that the government claims some

interest - any interest - in the property." In 2016, this Court reiterated that “Werner

stands for the common sense proposition that the statute of limitations is not triggered

by just any government interest in property, but rather only a claimed interest that is

inconsistent with – that is, adverse to – the plaintiff’s asserted interest.” F.E.B. Corp.,

818 F.3d at 692 (citing Werner, 9 F.3d at 1516-1517).

As such, “[f]or statute of limitations purposes, the first inquiry must define the

government's claim and then one must look to the time that the government, acting

adversely to the interests of others, seeks to expand that claim." Werner, 9 F.3d at

1519.

It is in this context that NE 32nd asks this Court to reverse the district court's

dismissal of its case.

11
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

A. The United States Failed to Establish Grounds for Reconsideration

"The purpose of a motion for reconsideration is to correct manifest errors of

law or fact or to present newly discovered evidence." Burger King Corp. v. Ashland

Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D. Fla. 2002) (internal citation omitted).

Typically, the only grounds justifying reconsideration are: (1) an intervening change

in controlling law; (2) the availability of new evidence; and (3) the need to correct

clear error or prevent manifest injustice. See, e.g., Dunavant v. Sirote & Permitt,

P.C., No. 14–13314, 603 Fed.Appx. 737 (11th Cir. February 9, 2015) (citations

omitted); Burger King Corp., 181 F. Supp. 2d at 1369. In order to reconsider a

judgment there must be a reason why the court should reconsider its prior decision,

and the moving party must set forth facts or law of a strongly convincing nature to

induce the court to reverse its prior decision. Burger King Corp., 181 F. Supp. 2d at

1369 (internal citation omitted). "A motion for reconsideration should not be used as

a vehicle to present authorities available at the time of the first decision or to reiterate

arguments previously made." Burger King Corp., 181 F. Supp. 2d at 1369 (internal

citation omitted). "It is an improper use of the motion to reconsider to ask the Court

to rethink what the Court already thought through – rightly or wrongly." Z.K.

12
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

Marine, Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992). Instead,

a motion for reconsideration is appropriate where the "Court has patently

misunderstood a party, or had made a decision outside of the adversarial issues

presented to the Court by the parties, or has made an error not of reasoning, but of

apprehension . . . Such problems rarely arise and the motion to reconsider should be

equally rare." Burger King Corp., 181 F. Supp. 2d at 1369 (citing Z.K. Marine, Inc.,

808 F. Supp. at 1563) (internal citations omitted). "For reasons of policy, courts and

litigants cannot be repeatedly called upon to backtrack through the paths of litigation

which are often laced with close questions." Burger King Corp., 181 F. Supp. 2d at

1370.

While recognizing that a court may raise the question of subject matter

jurisdiction at any time during an action, this does not change the fact that the district

court only reversed itself after an aggressive lobbying effort by the government,

merely based upon a more emphatic reiteration of arguments which were previously

made. (D.E. 40; D.E. 44; D.E. 46). As such, the United States did not establish any

grounds warranting reconsideration of the district court’s Order Denying the United

States’ Motion to Dismiss.

13
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

B. NE 32nd’s QTA cause of action did not begin to accrue until December
5, 2013, when the ACOE Permit was issued

The facts of this case are so unique that it makes it different from every other

QTA decision, tantamount to a case of first impression.2 Given the very unique facts

of this case, the application of existing law to such unique facts necessarily requires

a differential analysis. However, the United States is so tunnel visioned on this

Court’s F.E.B. ruling that it has failed to recognize those pertinent factual

distinctions. In other words, the United States is trying to fit a square peg into a

round hole. While the government has managed to convince the district court to

reverse itself after it initially (and properly) ruled in NE 32nd’s favor, the effort is

entirely misguided.

This case boils to down a simple issue; to wit: was the mere recordation of the

spoil easement in 1938 adverse to NE 32nd’s fee simple ownership claim? If not,

then the statute of limitations could not have accrued until 2013, when the conflicting

ACOE Permit was issued and the conservation easement was recorded by the ACOE

2
While the district court recognized the uniqueness of this case in finding
that “[t]he instant case is unique because the government – not Plaintiff – is the
easement holder”, it failed to properly apply the correct and narrower result which
the unique facts of this case better supports. (D.E. 55-5).

14
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

in direct conflict with the spoil easement.

As set forth below, there was nothing adverse about the existence of the spoil

easement and NE 32nd’s title to the subject property, or NE 32nd’s predecessor in

interest’s title to the subject property, until the ACOE Permit was issued and the

conservation easement was recorded by the ACOE in direct conflict therewith. It is

incontrovertible that the ACOE Permit (and the accompanying conservation

easement) and the spoil easement are in conflict with, and compete with, one another

and cannot co-exist. (D.E. 1-8, ¶ 36; D.E. 39-6, ¶ 24; D.E. 59-10, lines 19-21; 59-26

lines 2-6).

While the district court, in reversing itself, found that adverse interests were

present in 1938 – by the mere recordation of the spoil easement – neither the district

court nor the government has supported this contention with any factual or legal

finding. In fact, quite to the contrary, the district court’s original ruling rejected the

government’s argument that “[i]t should go without saying that a dominant easement

(regardless of how it was granted—permissive or prescriptive) is an interest that is

adverse to a fee simple interest, which is, by definition, servient to the dominant

easement.” (D.E. 34-5-6, quoting D.E. 29-3). The district court properly found in its

15
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

original ruling that easement interests and fee simple ownership interests can

peacefully coexist with one another without adversity, observing that “[i]t is certainly

a property law principle that the estate benefitted by an easement is termed the

dominant estate and that the estate burdened by that same easement is termed the

servient estate. But that terminological observation does not prove Defendant’s

point.” (D.E. 34-6). As such, in denying the government’s Motion to Dismiss, the

district court profoundly concluded:

At oral argument, Defendant took the position that an easement and

fee simple are always adverse interests. This Court disagrees.
(emphasis added). If that were the case, the Eleventh Circuit would not
have presented the hypothetical in F.E.B. as illustrating the absence of
adverse interests. Moreover, as the Eleventh Circuit observed in F.E.B.,
that position would spawn premature, unnecessary lawsuits. Citizens
who chose to give the government access to their land by granting it [an]
easement would be compelled to sue to protect against the possibility
that they might someday desire to restrict government access to their
property. Id. at 692.

(D.E. 34-5).

The government, and the district court’s ruling granting the government’s

Motion for Reconsideration, relies entirely on the rather simplistic and rudimentary

misperception that an easement, ipso facto, constitutes an adverse interest. The

16
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

government believes, and the district court essentially agreed, upon reconsideration,

that the recordation of an easement always and without any exception constitutes an

interest which is adverse to that of the fee simple owner sufficient to trigger the

statute of limitations. (D.E. 59-13, lines 7-15). There simply is no basis in law or fact

supportive of this proposition. The further you progress from this rather puerile

argument, the less and less tenable it becomes.

Indeed, "[e]asements and servient estates can (and usually do) peacefully

coexist." See Kane County, Utah v. United States, 772 F.3d 1205, 1214 (10th Cir.

2014). The government’s position and the district court’s ruling are wholly

inconsistent with general Florida property law. See also Modern, Inc. v. Fla., No.

6:03-cv-718-Orl-31KRS, 2008 WL 239148, * 4 (M.D. Fla. Jan. 28, 2008)

(recognizing that the definition of an easement itself establishes that an easement is

not inherently inconsistent or in conflict with the general property rights of the fee

simple owner of the property). Arguably, when a property owner voluntarily gives

or grants an easement over its property, there is a perceived reciprocal benefit to the

party giving the easement, and a perceptible exchange of mutual benefit and value.

This is readily apparent from the definition of “adverse interest”: “[a]n interest that

17
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

is opposed or contrary to that of someone else.” BLACK’S LAW DICTIONARY (10th

ed. 2014) (emphasis added). The fact that NE 32nd’s predecessor in interest

voluntarily granted the spoil easement to the United States demonstrates that the

easement was not an interest opposed or contrary to the interests of the fee owner, but

rather was at the time and at that moment harmonious with it.3 To the contrary, it was

not until 2013 when the government itself issued the ACOE Permit and recorded the

conservation easement, which superseded, modified, and replaced the spoil easement,

that the United States– for the first time – had claimed an interest which was adverse

to NE 32nd’s ownership claim.

Once again, the uniqueness of the facts of this case cannot be underestimated.

It would appear the district court upon reconsideration has done so, and

consequentially, reached an erroneous conclusion. That this is not an easy analysis

is evident in the fact that this action was dismissed by the district court on

reconsideration after the government’s Motion to Dismiss was denied. In its ruling,

3
In fact, the spoil easement itself recognized the beneficial nature of the
easement, which in itself demonstrates it is not adverse. (D.E. 1-4, p. 2 and D.E. 39-
2, p. 2) (providing that the easement was given by NE 32nd’s predecessor in interest
in consideration of the benefits to the grantor, the added convenience for the use of
the waterway, and the enhanced value that will result to the subject property).

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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

the district court noted that the court got it wrong. (D.E. 55-5). But, for the reasons

articulated herein, Appellant believes the district court got it right the first time and

that the district court's decision denying the Motion to Dismiss was far better

reasoned. As an initial matter, in dismissing the action upon reconsideration, the

district court was clearly preoccupied, to a fault, by the broader ranging implications

of its ruling and, in so doing, misapprehended the narrower result which the unique

facts of this case far better support. The district court was erroneously persuaded to

change its decision in the context of a broader implication – which simply does not

pertain here given the very unique facts of this case.

Indeed, the district court feared a broader implication in “[h]olding that the

statute of limitations did not accrue until the government either knew or should have

known that a particular plaintiff planned to restrict government access to a particular

easement would be inconsistent with the principle that waivers of sovereign immunity

must be strictly construed against waiver.” (D.E. 55-6). However, in this case, there

has been no allegation made, and there certainly are no facts to support the

proposition, that NE 32nd ever endeavored to restrict the government’s access to the

spoil easement, or for that matter, sought to repudiate the spoil easement in any way.

19
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

Rather, it was the government itself, by its own subsequent act and deed, that

restricted its own access and created the conflict with its own spoil easement by

issuing the ACOE Permit and by recording the conservation easement, which

prohibits the placement of spoil on the subject property.4 Simply put, there was and

is no broad implication in finding that NE 32nd’s QTA claim is not time barred on

these very unique facts. Any ruling in favor of NE 32nd would be narrowly drawn to

the facts of this case where the government issued a permit and recorded a conflicting

conservation easement which created the adversity. Rightfully, before being

persuaded to reverse itself by the government, seemingly out of an unfounded fear of

the broader implication, the district court, in recognizing the narrower application of

law to the unique facts of this case, correctly decided as follows:

Here, Plaintiff’s interest and Defendant’s interest were not adverse in

1938. Plaintiff’s predecessors claimed a possessory interest in MSA 686.
But their decision to grant Defendant a spoil easement evidences that

4
The government argued that its claim in 1938 is the same as its claim
now – the right to use the spoil easement; to wit: “[t]he right to use the easement on
MSA 686, that has not changed since 1938.” (D.E. 59-10, lines 3-4). But this simply
is not true. The government cannot escape the fact that “adversity” did not arise until
the recordation of the conservation easement, which expressly prohibits the
placement of spoil on the property such that the government no longer has the right
to use the spoil easement.

20
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

Plaintiff’s predecessors did not claim unencumbered fee. [footnote

omitted] Instead, Plaintiff’s predecessors recognized that their
possessory interest was one qualified by the spoil easement granted to
Defendant. Accordingly, Plaintiff’s predecessors’ possessory interest
was not adverse to Defendant’s nonpossessory spoil easement. The two
could (and did) peacefully coexist.

(D.E. 34-5).

Albeit from another circuit, Leisnoi, Inc. v. United States, 267 F.3d 1019, 1025

(9th Cir. 2001), is the Circuit Court decision closest in proximity to the facts of this

case, and there is no reason for that decision to not be viewed as persuasive and

instructive, and followed here. Leisnoi is squarely on point and deals with the issue

of an undisputed easement held by the government, and flatly rejects the premise that

the mere recording of an easement alone creates adversity. Rather, in Leisnoi the

court established a two-prong test to determine if jurisdiction exists in such instance

under the QTA: (1) the United States must claim an interest in the property at issue;

and (2) there must be a disputed title to real property between interests of the plaintiff

and the United States. Leisnoi, Inc., 267 F.3d at 1023. In Leisnoi, the government

argued that since its "claim" was to undisputed easements, then time began to run on

the plaintiff's QTA claims as soon as the plaintiff knew of the easements in 1985,

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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

which was when the government granted the instrument to the plaintiff. Id. at 1024.

The court "reject[ed] this contention" and held (similar to Werner) that "[i]t makes no

sense to start limitations running because of an event that creates no dispute and is

not involved in the controversy against which a limitations defense is asserted." Id.

at 1025. The court "made it clear that the real property in which the United States

‘claims an interest' can suffice to meet the real property interest requirements of §

2409a(a), without necessarily triggering the 12-year period of limitation of §

2409a(g), which begins when a claim of title in favor of the United States becomes

adverse to the plaintiff." Id. The court in Leisnoi therefore found that the reserved

easements at issue in that case were not adverse to the claim asserted by the plaintiff,

and the mere knowledge of the existence of those easements was insufficient to start

the limitations period running. Id.

Here, just as in Leisnoi, while the spoil easement in favor of the United States

is a "claim of interest" sufficient to meet the requirements of § 2409a(a), the mere

recordation of this easement, in and of itself, did not trigger the statute of limitations

– as it is abundantly clear that the spoil easement did not become adverse to NE 32nd

until the conflicting ACOE Permit was issued in 2013 and the conservation easement

22
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

was recorded by the ACOE in direct conflict therewith.

Similarly, in Valley View Development, Inc. v. United States, 721 F. Supp. 2d

1024 (N.D. OK 2010), a property owner sought to quiet title to the United States,

alleging that the United States' flowage easement did not extend to property lying

above certain elevation. The court expressly noted that many cases under the QTA

simply did not apply where neither party disputed that the United States owned an

easement and the litigated question was the scope and meaning of the easement. Id.

at 1034. The court also noted analogous case law providing that when there is a

dispute over the interpretation of language used in the documents giving rise to the

United States' claim over the disputed property, "the filing or execution of the

relevant documents does not start the clock for every type of dispute." Id. at 1035.

Accordingly, where the dispute – as in this action – is over the meaning of the

language in the easement, not the validity of the original taking or reservation, the

recording of the original documents – in and of itself – was not relevant to the

statute of limitations determination. Id. at 1036.

As demonstrated supra, "[i]t makes no sense to start limitations running

because of an event that creates no dispute", such as the grant of a spoil easement to

23
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

the United States in 1938. See, e.g., Leisnoi, Inc., 267 F.3d at 1025 (finding that the

reserved easements were not adverse to the claim asserted by the plaintiff and

knowledge of those easements did not start the statute of limitations running; rather,

it began to run when the plaintiff's title was clouded by a claim of an adverse interest

on behalf of the United States). In other words, but for the ACOE Permit, and the

recordation of the conservation easement by the ACOE in connection therewith, the

United States would not have any adverse interest to NE 32nd. It is undisputed, and

it is adequately set forth in the Amended Complaint (which must be taken as true),

that the ACOE Permit and the spoil easement, and the conservation easement

recorded by the ACOE, cannot peacefully co-exist. (D.E. 1-8, ¶ 36; D.E. 39-6, ¶ 24;

D.E. 59-10, lines 19-21; 59-26 lines 2-6). The "dispute" arises out of which

document is controlling. If the spoil easement continues in existence, then the ACOE

Permit is frustrated. If the ACOE Permit is found to be the controlling document,

then the spoil easement necessarily must have been superseded, modified and

replaced by the ACOE Permit and the incorporated Conservation Easement.

As such, it is clear that NE 32nd’s cause of action did not begin to accrue until

December 5, 2013, such that its QTA claim is timely.

24
 Case: 17-11908 Date Filed: 10/13/2017 Page: 38 of 43

NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

C. F.E.B. is inapposite

In reversing its initial ruling in favor of NE 32nd, the district court incorrectly

held that NE 32nd’s argument that its interest did not become adverse to the

government’s until the ACOE Permit was issued was “akin to an argument rejected”

in F.E.B. (D.E. 55-6). However, there simply was no similar argument made – or

rejected – in F.E.B. The district court cited to that portion of F.E.B. where this Court

found that “[a]lthough the [Submerged Lands Act] created a new legal claim to the

island for F.E.B.’s predecessors, it did not abolish their pre-existing notice of the

United States’ asserted interest[,]” and found the same to be true here. (D.E. 55-6-7).

The district court’s reliance thereon is flawed, however, inasmuch as it failed to

recognize the distinction that F.E.B.’s predecessors had pre-existing notice of the

United States’ asserted adverse and competing ownership interest.

While the district court recognized, and the government conceded (for purposes

of its motion to dismiss) that the ACOE Permit (and the accompanying conservation

easement) and the spoil easement are in conflict with, and compete with, one another

and cannot co-exist, (D.E. 59-10, lines 19-21; D.E. 59-26, lines 2-6), it failed to

recognize the distinction that F.E.B. involved competing fee simple claims, which

25
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

necessarily are adverse to one another from inception. Clearly, two parties cannot

simultaneously claim that they both own fee simple title to the very same real

property at the same time without those claims necessarily and inherently being

adverse to one another. Furthermore, in F.E.B. the plaintiff's predecessor in interest

had actual knowledge of the government's competing and disputed fee simple claim

going back to 1951. F.E.B. Corp., 818 F.3d at 686. Whatever circumstances took

place between the time these opposing claims were made and when the lawsuit was

filed cannot change the fact that these claims were adverse to one another from their

inception. But, those are not the facts presented in this case. To endeavor to consider

as analogous a case where two parties claim ownership of the very same fee title to

the very same property at the very same time to a case, such as this, where one party

claims the fee simple ownership interest and the other an easement interest (which

was considered to be mutually beneficial on its very face at the time it was executed

and delivered) is fatally flawed and misapprehends essential tenets of basic real

property law.

F.E.B.’s ruling was limited to the factual finding that the statute of limitations

was triggered in 1951 based upon the competing and adverse fee simple title claims,

26
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

but there is no support for an analogous ruling based upon the facts of this case,

which only involves the government’s easement claim. Simply put, there is no

analogy to be made properly between the two.

In sum, while F.E.B. was properly decided based upon the facts present in that

matter, the district court’s application of that decision to the unique set of facts

present in this case was in error. As stated above, this Court should look to and rely

upon the Ninth Circuit Court of Appeals’ holding and decision in Leisnoi to guide it

in considering the issues presenting in this case, as it is the most closely analogous.

If this Court does so, it is inescapable that the government’s Motion to Dismiss

should not have been granted by the district court as NE 32nd’s QTA claim was

timely and not barred by the statute of limitations.

27
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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

CONCLUSION

All of the foregoing supports the conclusion that the government’s interest and

NE 32nd’s were not adverse to one another until the ACOE Permit was issued in

2013, such that NE 32nd’s claims are not barred by the QTA statute of limitations.

As such, the district court erred as a matter of law in finding that it did not have

subject matter jurisdiction and in dismissing NE 32nd’s claims.

For the foregoing reasons, Appellant respectfully requests that this Honorable

Court reverse the district court's final Order Granting Defendant's Motion for

Reconsideration with instructions to vacate said Order and remand to the district

court for further proceedings.

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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

CERTIFICATE OF COMPLIANCE WITH RULE 32(g) (1)

1. This motion complies with the type-volume limitations of Fed. R. App.

P. 32(a)(7)(B) because this motion contains 6,232 words, excluding the

parts of the motion exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This motion complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)

because this motion has been prepared in a proportionately spaced

typeface using WordPerfect X6 in 14-point pitch and Times New

Roman font.

s/ Robin I. Frank
ROBIN I. FRANK, ESQ.
Florida Bar No. 064619
Attorney for Plaintiff/Appellant

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NE 32nd Street, LLC v. USA

Case No. 17-11908-D
_______________________

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Initial Brief

of Appellant was furnished via E-Mail on October 13, 2017, to Emily M. Smachetti,

Esq., and Anthony Erickson-Pogorzelski, Esq., Counsel for Defendant/Appellee, U.S.

Attorney’s Office, 99 NE 4th St., Suite 522, Miami, FL 33132

([email protected] and [email protected]).

SHAPIRO, BLASI, WASSERMAN

& HERMANN, P.A.
Counsel for Plaintiff/Appellant
7777 Glades Rd., Suite 400
Boca Raton, FL 33434
Tel: (561) 477-7800
Fax: (561) 477-7722

By: s/ Robin I. Frank

ANDREW B. BLASI, ESQ.
Florida Bar No. 370983
E-Mail: [email protected]
ROBIN I. FRANK, ESQ.
Florida Bar No. 0649619
E-Mail: [email protected]

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