William Cwebster; John Cwebster v. United States of America; Us Park Service

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM C WEBSTER; JOHN C
WEBSTER,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA; US
PARK SERVICE,
Defendants - Appellees.
No. 11-35613
D.C. No. 2:10-cv-01678-RSL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted February 6, 2014 **
Before: LEAVY, GRABER, and W. FLETCHER, Circuit Judges.
Plaintiffs appeal the dismissal of their action against the United States, in
which they assert a variety of tort claims and a violation of the Administrative
FILED
MAR 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Procedure Act arising from a purported taking of their property without just
compensation. We affirm.
Claim preclusion bars plaintiffs from asserting their claim for “unlawful
taking and use of property.” The Court of Federal Claims dismissed plaintiffs’
takings claims as untimely because the events giving rise to those claims occurred
more than six years before the filing of plaintiffs’ action. See 28 U.S.C. § 2501. It
denied plaintiffs’ motion for reconsideration and entered Rule 54(b) judgment
against them with respect to their takings claims. Because a dismissal on statute-
of-limitations grounds is a final judgment on the merits, Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 228 (1995), and plaintiffs assert the same claim against the
same party as they did in the Court of Federal Claims, the elements of claim
preclusion have been met. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l
Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003).
In their amended complaint, plaintiffs bring a number of claims that are
styled as tort claims (adverse possession, trespass, nuisance, and negligence) but
that rely on the alleged taking of their property without just compensation. To the
extent that those claims are simply restatements of plaintiffs’ previously dismissed
takings claims, they, too, are barred by claim preclusion.
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Even if plaintiffs’ tort claims are not barred by claim preclusion, they
nonetheless fail because they fall outside the Federal Tort Claims Act’s two-year
statute of limitations. 28 U.S.C. § 2401(b) (“A tort claim against the United States
shall be forever barred unless it is presented in writing to the appropriate Federal
agency within two years after such claim accrues . . . .”). Plaintiffs filed a claim
for damages with the Department of the Interior in September 2010. Claims
accruing before September 2008 are, accordingly, outside the statute of limitations.
Plaintiffs have not asserted any tort claims concerning events that occurred within
the limitations period.
Finally, plaintiffs seek relief under the Administrative Procedure Act, which
provides for judicial review of “[a]gency action made reviewable by statute and
final agency action for which there is no other adequate remedy in a court.”
5 U.S.C. § 704. But nowhere in their amended complaint do plaintiffs identify any
such agency action, much less any actionable conduct falling within the applicable
six-year statute of limitations. See 28 U.S.C. § 2401(a).
AFFIRMED.
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