State of Mississippi, Ex Rel. Lynn Fitch v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STATE OF MISSISSIPPI, EX REL. LYNN FITCH, ET
AL.
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2025-1376
______________________
Appeal from the United States Court of Federal Claims
in Nos. 1:19-cv-00231-EDK, 1:19-cv-00258-EDK, 1:19-cv-
01812-EDK, 1:19-cv-01968-EDK, 1:20-cv-00030-EDK,
1:21-cv-00820-EDK, 1:23-cv-01729-EDK, Judge Elaine
Kaplan.
______________________
Decided: June 9, 2026
______________________
ROBERT J. CYNKAR, McSweeney Cynkar & Kachouroff
PLLC, Oakton, VA, argued for plaintiffs-appellants. Also
represented by J OHN W. BARRETT , Barrett Law Group, PA,
Lexington, MS; MARK D UBESTER , J ENNIFER E. K ELLY ,
CHARLES L AD UCA, Cuneo Gilbert & LaDuca, LLP, Wash-
ington, DC.
Case: 25-1376 Document: 57 Page: 1 Filed: 06/09/2026

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STATE OF MISSISSIPPI v. US 2
T RICIA BEALE , Mississippi Attorney General's Office,
Biloxi, MS, for plaintiffs-appellants State of Mississippi,
Claiborne County School District, Natchez-Adams School
District, Wilkinson County School District. Also repre-
sented by L AKEN HANNA RYALS , Jackson, MS.
J OHN L UTHER SMELTZER, Appellate Section, Environ-
ment and Natural Resources Division, United States De-
partment of Justice, Washington, DC, argued for
defendant-appellee. Also represented by ADAM R.F.
G USTAFSON.
______________________
Before M OORE, Chief Judge, STOLL and STARK, Circuit
Judges.
STOLL , Circuit Judge.
Nine bellwether plaintiffs, including the State of Mis-
sissippi, appeal the decision of the Court of Federal Claims
dismissing their complaints for a taking of a permanent
flowage easement on their properties via the Government’s
operation of the Old River Control Complex on the Missis-
sippi River.1 The State of Mississippi also appeals certain
discovery decisions by the Court of Federal Claims denying
motions to compel discovery based on the deliberative
1 The bellwether plaintiffs are (1) Heirs of Andrew
Jackson Estate; (2) Davis Island Land Company; (3) Ge-
ronimo Hardwood Timber, LLC and Robert W. Manning,
III; (4) State of Mississippi/Adams County School District;
(5) State of Mississippi/Claiborne County School District;
(6) State of Mississippi/Wilkinson County School District;
(7) Oakwood Plantation; (8) Dorothy Wallace Woodside,
George J. Woodside, III, Henry Wallace Woodside, and
Chaille Marie Mount; and (9) J. Kelley Williams, Sr., and
the James Kelley Williams Revocable Trust UAD 1991 (col-
lectively, the “State of Mississippi”).
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STATE OF MISSISSIPPI v. US 3
process privilege. For the reasons discussed below, we va-
cate and remand the Court of Federal Claims’ dismissal of
the State of Mississippi’s complaint and affirm the Court of
Federal Claims’ discovery decisions.
I
In 2019, the State of Mississippi filed suit alleging a
taking of its property by means of a flowage easement cre-
ated by the design, construction, and operation of the Old
River Control Complex, which the Army Corps of Engi-
neers started to build in the 1950s to maintain the distri-
bution of water flow and sediment between the Mississippi
River and Atchafalaya River. Discovery commenced on
both liability and compensation. During discovery, the
Government asserted deliberative process privilege and
withheld or redacted certain emails and documents, which
the State of Mississippi moved to compel the production of.
The Court of Federal Claims ultimately denied the State of
Mississippi’s motions to compel certain documents over a
series of orders.
After the completion of discovery, the State of Missis-
sippi moved for partial summary judgment on the Govern-
ment’s affirmative navigational servitude and relative
benefits defenses, and the Government cross-moved for
summary judgment based on either statute of limitations
or no causation. The Court of Federal Claims held a hear-
ing on only the Government’s motion for summary judg-
ment based on statute of limitations.
Without notice to the parties, the Court of Federal
Claims subsequently issued an order that converted the
Government’s motion for summary judgment on statute of
limitations into a motion to dismiss for lack of subject mat-
ter jurisdiction under Court of Federal Claims
Rule 12(b)(1). See J.A. 21–22. After weighing the various
facts relevant to the statute of limitations, the Court of
Federal Claims dismissed the State of Mississippi’s takings
claims because “the permanent nature of the alleged taking
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STATE OF MISSISSIPPI v. US 4
was evident—and thus, the six-year limitations period be-
gan to run—well before February 2013. As a result, the
timeframe for filing suit under the Tucker Act[] . . . had al-
ready expired by the time [the State of Mississippi] filed
the lead case” in this action in February 2019. J.A. 24.
The State of Mississippi appeals. We have jurisdiction
under 28 U.S.C. § 1295(a)(3).
II
On appeal, the State of Mississippi first challenges the
Court of Federal Claims’ dismissal of its complaint based
on procedural error, arguing that it was improper for the
trial court to convert the Government’s motion for sum-
mary judgment into a motion to dismiss without providing
notice to the parties. We agree.
We review the Court of Federal Claims’ dismissal of a
complaint for lack of subject matter jurisdiction de novo.
Diversified Grp. Inc. v. United States, 841 F.3d 975, 980
(Fed. Cir. 2016). The Rules of the Court of Federal Claims
are silent on converting a motion for summary judgment
into a motion to dismiss. The rules neither sanction doing
so nor specify any procedures that should be followed. The
rules do, however, create a specific procedure for when a
court converts certain types of motions to dismiss into a
motion for summary judgment and require the court to pro-
vide notice and an opportunity to respond:
If, on a motion under RCFC 12(b)(6) or 12(c), mat-
ters outside the pleadings are presented to and not
excluded by the court, the motion must be treated
as one for summary judgment under RCFC 56. All
parties must be given a reasonable opportunity to
present all the material that is pertinent to the mo-
tion.
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STATE OF MISSISSIPPI v. US 5
RCFC 12(d).2 Failure to give notice and an opportunity to
respond raises “due process and fairness concerns.” Jones
v. L.A. Cent. Plaza LLC, 74 F.4th 1053, 1060 (9th Cir.
2023). Accordingly, our sister circuits have held that “a
district court generally must provide the parties with ade-
quate notice that it is contemplating invoking a particular
procedural device sua sponte.” Id.
Here, it is undisputed that the parties were not given
notice that the Court of Federal Claims would convert the
Government’s motion for summary judgment into a motion
to dismiss. See Oral Arg. at 14:28–15:22,
https://www.cafc.uscourts.gov/oral-arguments/25-1376_05
062026.mp3. Nor were they given an opportunity to pre-
sent material that might be pertinent to a motion to dis-
miss under Rule 12(b)(1). In this case, that meant that the
State of Mississippi had no notice that it needed to argue
that the statute of limitations had not been met under the
standard of Rule 12(b)(1)—which would allow the trial
court to draw inferences and weigh facts against the State
of Mississippi as the non-movant—instead of under the
summary judgment standard—which would allow the
State of Mississippi to prevail on the motion by merely
showing there was a genuine issue of material fact with all
inferences drawn in its favor. Such a difference in the legal
standard is not immaterial, and this prejudiced the State
of Mississippi.
The Court of Federal Claims’ sua sponte conversion of
the Government’s summary judgment motion into a motion
to dismiss under Rule 12(b)(1) in this case required notice
2 Rules 12 and 56 of the Rules of the Court of Federal
Claims are substantively similar to Rules 12 and 56 of the
Federal Rules of Civil Procedure. See Adair v. United
States, 497 F.3d 1244, 1249 n.1 (Fed. Cir. 2007); Simanski
v. Sec’y of Health & Hum. Servs., 671 F.3d 1368, 1379
(Fed. Cir. 2012).
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STATE OF MISSISSIPPI v. US 6
to the parties and the opportunity to respond. We therefore
vacate the Court of Federal Claims’ dismissal of the State
of Mississippi’s complaint for lack of subject matter juris-
diction and remand to the trial court for further proceed-
ings consistent with this opinion, which may or may not
include a trial.3
III
We now turn to the State of Mississippi’s challenges to
various discovery orders. The State of Mississippi argues
the Court of Federal Claims abused its discretion by
providing no support for either (1) its framework for ana-
lyzing the deliberative process privilege; or (2) its factual
conclusions. We are not persuaded.
We review the Court of Federal Claims’ discovery deci-
sions for an abuse of discretion. Adkins v. United States,
856 F.3d 914, 916 n.2 (Fed. Cir. 2017) (“[T]he disposition of
a [m]otion to [c]ompel is a matter ‘committed to the discre-
tion of the trial court.’” (quoting Florsheim Shoe Co.
v. United States, 744 F.2d 787, 797 (Fed. Cir. 1984))). The
Court of Federal Claims “abuses its discretion when (1) its
decision is clearly unreasonable, arbitrary or fanciful;
(2) the decision is based upon an erroneous construction of
the law; (3) its factual findings are clearly erroneous; or
(4) the record contains no evidence upon which the trial
court could have rationally based its decision.” Shell Oil
Co. v. United States, 896 F.3d 1299, 1307 (Fed. Cir. 2018)
(cleaned up) (citation omitted).
Here, the State of Mississippi first and foremost chal-
lenges an order that did not deny the compulsion of docu-
ments. Instead, the Court of Federal Claims’ July 2022
3 We do not hold that a trial court may never
properly convert a summary judgment motion to a Rule 12
motion to dismiss, provided adequate notice and an oppor-
tunity to be heard is given.
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STATE OF MISSISSIPPI v. US 7
order merely instructed the Government to update its priv-
ilege log and set up the framework the trial court would use
for addressing privilege claims. See J.A. 1–2. We see no
error in this framework. The State of Mississippi faults the
Court of Federal Claims for “permitt[ing] [the Government]
to withhold information” and for not “weigh[ing] [the State
of Mississippi’s] evidentiary need for the materials against
the harm that could result from disclosure.” Appellants’
Br. 59–60. But the Court of Federal Claims’ July 2022 or-
der did not rule on the request to compel any specific docu-
ments and recognized that any privilege asserted by the
Government was conditional. See J.A. 2 (“The deliberative
process privilege is a qualified one that may be overcome
by a showing of compelling need.”). And when actually con-
sidering disputed documents in other, later orders, the
Court of Federal Claims did balance the State of Missis-
sippi’s need for the documents with the Government’s as-
sertion of privilege. See J.A. 7–8. In its opening appeal
brief, the State of Mississippi did not address, let alone
show error in, the Court of Federal Claims’ rationale in
these later orders: denial of its motion due to its failure to
make individualized arguments about the need for specific
documents. See J.A. 8 (“Crucially, [the State of Missis-
sippi] ha[s] not engaged in any document-by-document
analysis, nor ha[s] [it] attempted to show a particularized
need for any specific document. Courts cannot override the
deliberative process privilege in the aggregate; parties
must challenge documents individually and explain why
their need for each document outweighs the [G]overn-
ment’s interest in maintaining its secrecy.” (citation omit-
ted)).
On the record before us, we see no “erroneous construc-
tion of the law” or “factual findings [that] are clearly erro-
neous” in the Court of Federal Claims’ discovery orders,
which were well within the trial court’s discretion.
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STATE OF MISSISSIPPI v. US 8
IV
We have considered the parties’ remaining arguments
and find them unpersuasive. For the foregoing reasons, we
vacate and remand the Court of Federal Claims’ dismissal
of the bellwether plaintiffs’ complaints and affirm the
Court of Federal Claims’ discovery decisions on the delib-
erative process privilege.
AFFIRMED-IN-PART, VACATED-AND-REMANDED-
IN-PART
COSTS
Costs to Appellants.
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