The opinion of the court was delivered by: JOHN H. PRATT
This case is before our Court again on remand from the Court of Appeals. See Daingerfield Island Protective Society v. Lujan, 920 F.2d 32 (D.C. Cir. 1990). Now pending are plaintiffs' motion for partial summary judgment and defendants' and intervenors' motions to dismiss or in the alternative for summary judgment. For the reasons stated herein, defendants' and intervenors' motions to dismiss will be granted in part and denied in part. We will defer on the merits of plaintiffs' remaining claims pending a hearing.
The facts of this case were laid out in Daingerfield Island Protective Society v. Hodel, 710 F. Supp. 368 (D.D.C. 1989), and will only be briefly summarized here. In 1970, the Secretary of the Interior signed an Exchange Agreement under which the National Park Service ("NPS") would receive title to Dyke Marsh, a wetland on the Potomac River, in exchange for granting developer Charles Fairchild & Co. ("Fairchild") an easement over the George Washington Memorial Parkway to construct an interchange which would provide access to and from Potomac Greens, where Fairchild planned to build a large office, hotel, and residential complex on land he leased from intervenor Richmond, Fredericksburg & Potomac Railroad Co. ("RF&P"). Fairchild waited until 1971 to sign the Exchange Agreement, at which time the United States obtained the deed to Dyke Marsh. After a decade of disagreement over the interchange design, NPS approved a design in 1981 while reserving its right to make changes when a more detailed proposal was made. In 1984, the United States conveyed the easement to RF&P, Fairchild's successor. In 1986, RF&P entered a joint venture and announced plans to build a somewhat smaller Potomac Greens complex. Plaintiffs then commenced this action, alleging that the Exchange Agreement violated numerous statutes,
that NPS' approval of the interchange violated numerous statutes and an Executive Order,
and that the National capital Planning Commission's ("NCPC") approval of the interchange violated the National Capital planning Act (Count VII).
This Court dismissed the case on April 11, 1989, holding that (1) the claims challenging the validity of the Exchange Agreement were barred by laches, and (2) the claims challenging the interchange design were mooted by the Continuing Appropriations Act of 1987. 710 F. Supp. at 377. Plaintiffs appealed. The Court of Appeals summarily affirmed dismissal of the NEPA claim (Count I), but vacated, reversed, and remanded as to all other counts.
920 F.2d at 36, 40. Intervenors petitioned the Supreme Court for review on the applicability of the laches doctrine, but certiorari was denied on October 7, 1991. Richmond, Fredericksburg & Potomac Railroad Co. v. Daingerfield Island Protective Society, 116 L. Ed. 2d 31, 112 S. Ct. 54 (1991).
Defendants interpose two defenses which, if successful, would dispose of plaintiffs' claims. First, defendants allege that this suit was filed after the applicable statute of limitations had run and is thus time barred. Second, they assert that most of the statutes and other authorities invoked by plaintiffs do not authorize a private cause of action. These will be addressed in turn.
Plaintiffs argue that § 2401(a) does not apply to claims raised pursuant to the Administrative Procedure Act ("APA") because the two statutory schemes are mutually exclusive
and the APA contains an independent waiver of sovereign immunity which effectively supersedes the more limited waiver of § 2401(a). Memorandum in Support of Plaintiffs' Motion for Partial Summary Judgment and in Opposition to Defendants' and Intervenors' Motions to Dismiss or for Summary Judgment ("Plaintiffs' Motion") at 5-10. This argument is not compelling. While it is true that the APA constitutes an independent waiver of sovereign immunity, this does not imply that the grant is limitless. The broad language of § 2401(a) (it covers "every civil action" against the United States) read literally circumscribes this waiver.
More importantly, the law of this Circuit could not be clearer with respect to the applicability of § 2401(a) to claims raised pursuant to the APA (or any claim, for that matter). The Court of Appeals for the District of Columbia Circuit has stated that "the words 'every civil action' mean what they say. . . . This court's . . . opinions clarify beyond dispute that § 2401(a) applies to all civil actions whether legal, equitable or mixed." Spannaus v. United States Department of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987) (citations omitted). Section 2401(a) has been applied to a wide variety of claims asserted under numerous statutes. See, e.g., Mason v. Judges of the United States Court of Appeals, 952 F.2d 423, 424-25 (D.C. Cir. 1991) (challenging court's decision not to publish opinion); Walters v. Secretary of Defense, 725 F.2d 107, 111-14 (D.C. Cir. 1983) (upgrade of military discharge); Impro Products, Inc. v. Block, 722 F.2d 845, 849-51 & n.8 (D.C. Cir. 1983) (APA challenge to agency's distribution of an article relating to plaintiff's product), cert. denied, 469 U.S. 931, 83 L. Ed. 2d 264 , 105 S. Ct. 327 (1984); White v. United States Civil Service Commission, 589 F.2d 713, 715 (D.C. Cir. 1978) (APA challenge to denial of request to remove evaluations from personnel file), cert. denied, 444 U.S. 830 (1979); Oppenheim v. Campbell, 571 F.2d 660, 662-63 (D.C. Cir. 1978) (claim for retirement credits).
Thus, the six-year limitation period specified in § 2401(a) has been construed as applying to virtually every type of civil claim (other than tort or contract actions, for which separate periods have been enacted, see 28 U.S.C. § 2401(b); 41 U.S.C. § 609(a)(3)) which could be asserted against agencies of the United States. It shall similarly be applied here.
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 ...