at 2. Their misplaced reliance on the defense of laches which the Court of Appeals refused to accept speaks eloquently of the defendants' reasons for not previously invoking § 2401(a). In addition, they make several arguments to defeat plaintiffs' claim of waiver, among them that the statute of limitations is not a defense that is subject to waiver under Fed. R. Civ. P. 12(h).
We hold that defendants did not waive their statute of limitations defense. When a party brings a motion to dismiss under Rule 12, it must consolidate all defenses or objections which it could bring under the rule. Fed. R. Civ. P. 12(g). If a defense or objection which the rule permits is omitted, the party generally may not thereafter make a motion based on that defense or objection. Id. One of the exceptions to this rule of consolidation of defenses or objections, however, is the defense of failure to state a claim upon which relief can be granted (i.e., a Rule 12(b)(6) defense). Fed. R. Civ. P. 12(h)(2). If a party fails to raise this defense, it is not waived. Stock 'In S.A. v. Swissco, Inc., 748 F. Supp. 23, 27 (D.D.C. 1990); see also 5A Wright & Miller, Federal Practice and Procedure § 1392 at 759-60 (1990) (citing cases). While it is the general practice to raise a statute of limitations defense by motion under Rule 12(b)(6), it is not an error to fail to do so. Gordon v. National Youth Work Alliance, 675 F.2d 356, 360 (D.C. Cir. 1982); Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484 (9th Cir. 1987). Thus, this defense cannot be waived by the failure to interpose it in a motion under Rule 12. A Rule 12(b)(6) defense cannot be so waived.
Because we find that § 2401(a) applies to plaintiffs' claims regarding the Exchange Agreement and that defendants have not waived this statute of limitations defense, those claims which challenge the validity of the Exchange Agreement shall be dismissed as being time barred.
Thus, Counts II and V (which relate only to the land exchange and not to the interchange design) shall be dismissed in their entirety, and Counts III, IV, VI, and IX shall be dismissed insofar as they challenge the land exchange.
Private Rights of Action
that the remaining counts (not including Count VI, brought pursuant to the APA) should be dismissed because the statutes involved do not grant private rights of action. We need not engage in a detailed analysis of each statute to determine whether the test of Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26 , 95 S. Ct. 2080 (1975), and its progeny is satisfied because the Supreme Court has held that under the APA, it is not necessary to find a private right of action under a particular statute in order to enforce a federal agency's compliance with that statute. Chrysler Corp. v. Brown, 441 U.S. 281, 317-19, 60 L. Ed. 2d 208 , 99 S. Ct. 1705 (1979). In Chrysler, the Court held that, although the Trade Secrets Act, 18 U.S.C. § 1905, does not provide a private right of action, the plaintiff could obtain review of a federal agency's compliance with that statute through APA review of agency action. 441 U.S. 316 at 316-19 .
The principle of judicial review of the substantive validity of agency action, pursuant to the APA, is well established. See, e.g., Worthington Compressors, Inc. v. Costle, 662 F.2d 45, 50 (D.C. Cir. 1981) (while there is no private right of action under the Noise Control Act of 1972, 42 U.S.C. §§ 4901-4918, if agency violates that statute, the action can be struck down under the APA); Sierra Club v. Hodel, 848 F.2d 1068, 1076 (10th Cir. 1988); Oregon Environmental Council v. Kunzman, 714 F.2d 901, 903 (9th Cir. 1983). Indeed, several of the authorities which plaintiffs rely upon have been enforced previously under the APA by this and other federal courts. See, e.g., Sierra Club v. Andrus, 487 F. Supp. 443, 448 (D.D.C. 1980) (enforcing the National Park Service Organic Act), aff'd, 659 F.2d 203 (D.C. Cir. 1981); No Oilport! v. Carter, 520 F. Supp. 334 (W.D. Wash. 1981) (claim under the APA alleging violation of Executive Order 11988 properly before court).
Federal defendants assert that plaintiffs may not invoke the APA to prevent these counts from being dismissed because plaintiffs did not so plead in their Amended Complaint. Defendants' Opposition at 8. Defendants are correct that the judicial review provision of the APA is not mentioned specifically in the Amended Complaint. Plaintiffs' argument, however, surely comes as no surprise to defendants, because plaintiffs, while not citing to the APA by name, invoked its familiar language throughout the Amended Complaint, asking this court to find that the agencies' alleged failure to abide by the statutes and executive order in question was "arbitrary, capricious, an abuse of discretion, and not in accordance with law." See Amended Complaint at PP 70, 71, 78, 116, 137.
This Court has no difficulty rejecting federal defendants' hyper-technical argument. As was said in another context by the late Justice Cardozo when Chief Judge of the New York Court of Appeals, "The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal." Wood v. Lady Duff-Gordon, 222 N.Y. 88, 90, 118 N.E. 214 (1917). The federal rules were designed to avoid basing decisions on the merits on pleading technicalities, In re Credit Industrial Corp., 366 F.2d 402, 411 (2d Cir. 1966), and we are not going to do so here.
In accordance with this Memorandum Opinion, an Order will be entered this date granting in part and denying in part defendants' and intervenors' motions to dismiss. Counts II and V of plaintiffs' Amended Complaint will be dismissed, and Counts III, IV, VI, and IX will be dismissed insofar as they challenge the land exchange.
JOHN H. PRATT
United States District Judge
Date: July 14, 1992
ORDER - July 14, 1992, Filed
Upon consideration of defendants' and intervenors' motions to dismiss and all of the memoranda supporting and opposing them, and the entire record herein, and for the reasons stated in the accompanying Memorandum Opinion, it is by the Court this 14th day of July, 1992
ORDERED that defendants' and intervenors' motions to dismiss are granted in part and denied in part, and it is
ORDERED that Counts II and V of plaintiffs' Amended Complaint relating to the land exchange are dismissed, and it is
ORDERED that Counts III, IV, VI, and IX are dismissed insofar as they challenge the land exchange, and it is
FURTHER ORDERED that a hearing on the parties' motions for summary judgment shall be held on September 21, 1992 at 9:00 a.m.
JOHN H. PRATT
United States District Judge