St. Bernard Parish Government v. United States

In the United States Court of Federal Claims

No. 15-1072C

Filed: April 4, 2019

* * * * * * * * * * * * * * *

ST. BERNARD PARISH *

GOVERNMENT, * Motion to Dismiss; Breach of

* Contract; Monetary Damages;

Plaintiff, * Equitable Relief; Indemnification;

v. * Standing; Equal Access to Justice

* Act.

UNITED STATES, *

*

Defendant. *

*

* * * * * * * * * * * * * * *

Robert E. Couhig, Couhig Partners, LLC, New Orleans, LA, for plaintiff. Of

counsel were Jason A. Cavignac and Cory S. Grant, Couhig Partners, LLC, New

Orleans, LA, and William M. McGoey, St. Bernard Parish Government, New Orleans,

LA.

Steven C. Hough, Trial Attorney, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, D.C., for defendant. With him were

Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Robert E.

Kirschman, Jr., Director, Commercial Litigation Branch, and Joseph H. Hunt, Assistant

Attorney General, Civil Division, Department of Justice.

OPINION

HORN, J.

The above-captioned case was filed in the United States Court of Federal Claims

on September 25, 2015. Relevant federal district court proceedings concluded in March

2018 and relevant State court proceedings concluded in February 2017. In this court,

plaintiff St. Bernard Parish Government (St. Bernard Parish), a political subdivision

located in the State of Louisiana, asserts that the United States, acting through the United

States Army Corps of Engineering (Army Corps), breached a contract between St.

Bernard Parish and the Army Corps related to the repair of levees in Louisiana following

Hurricane Katrina.

FINDINGS OF FACT

On September 1, 2005, the President of St. Bernard Parish, Henry Rodriguez, Jr.,

issued an Executive Order under the Louisiana Homeland Security and Emergency

Assistance and Disaster Act. See LA. STAT. ANN. § 29:721, et seq. (2005). In the

September 1, 2005 Executive Order, Mr. Rodriguez stated that Hurricane Katrina had

“struck” the State of Louisiana and caused severe flooding and damage to southeastern

Louisiana, including St. Bernard Parish. After noting in the Executive Order that the

Governor of the State of Louisiana had declared a state of emergency for the entire State

of Louisiana, Mr. Rodriguez declared a state of emergency “for the entire Parish.” Mr.

Rodriguez also stated in his Executive Order:

I am hereby authorized to commandeer or utilize private property during this

local disaster pursuant to the authority of the Parish President under La.

[Louisiana Revised Statute] R.S. 29:727 and grant rights of entry for usage

for this purpose: emergency hurricane protection work, including access,

borrow, disposal, construction and any other required work.

The Louisiana Homeland Security and Emergency Assistance and Disaster Act, cited by

Mr. Rodriguez in the September 1, 2005 Executive Order, provides that, “[i]n addition to

any other powers conferred upon the parish president by the constitution, laws, or by a

home rule charter or plan of government, such authority may,” “[s]ubject to any applicable

requirements for compensation, commandeer or utilize any private property if he finds

this necessary to cope with the local disaster.” See LA. STAT. ANN. § 29:727(f)(4) (2005).1

According to an October 10, 2005 memorandum authored by Steven Stockton, a

Deputy Director of Civil Works at the Army Corps, Mr. Stockton met with John Paul

Woodley, who plaintiff states was an “Assistant Secretary of the Army (Civil Works),” on

October 3, 2005. The October 10, 2005 memorandum indicates that the purpose of the

October 3, 2005 meeting was to provide John Paul Woodley with “information regarding

options for recommended policy deviations to the Corps policy regarding local sponsor

requirements to provide all lands, easements, rights-of-way, and disposal or borrow areas

(LERRD)[2] associated with rehabilitation of damaged federal and non-federal hurricane

protection and flood control projects at no cost to the federal government.” Steven

Stockton’s October 10, 2005 memorandum states that John Paul Woodley verbally

approved two “potential deviations to policy” during the October 3, 2005 meeting.

Specifically, the October 10, 2005 memorandum indicates that John Paul Woodley

verbally approved a “[w]aiver for the LERRDs on the federal Chalmette levee in St.

Bernard Parish” and a “[w]aiver for the LERRDs on the non-federal St. Bernard levee

interim level of protection to 10 feet.” According to the October 10, 2005 memorandum,

1 The Louisiana Homeland Security and Emergency Assistance and Disaster Act has

been amended several times since 2005. See LA. STAT. ANN. § 29:727 (2019). The

language in subsection (f)(4), quoted above, however, remains unchanged. See id.

2 Documents in the record before the court and quoted by the court in this Opinion refer

to lands, easements, rights-of-way, and disposal or borrow areas as both “LERRD” and

“LERD.” When referring to lands, easements, rights-of-way, disposal or borrow areas, the

court will use the term “LERD,” but the court will quote the term as it is used in the original

document.

2

Mr. Woodley also requested information “regarding the project sponsors ability to pay the

required LERRD costs and the estimated cost to federal government for the

recommended policy deviations.”

On October 17, 2005, the Army Corps sent a letter to George Lopez, the President

of the Lake Borgne Basin Levee District (Lake Borgne). According to plaintiff, Lake

Borgne “is a statutorily created political subdivision of the State of Louisiana charged with

the duty of overseeing and maintaining flood protection levees in the Parish of St.

Bernard.” In the October 17, 2005 letter, the Army Corps requested that Lake Borgne

provide the Army Corps with a right of entry to a 6.51-acre area of land located in St.

Bernard Parish in order for the Army Corps “to perform surveys, soil borings,

environmental clearances on, and obtain borrow material.” The Army Corps’ letter stated

that:

Should the investigations conclude that the material in the proposed area

be suitable for use as borrow material, the material will be excavated and

used in association with restoring the Verret to Caernarvon Levee located

in St. Bernard Parish, Louisiana. The property proposed for this work

consists of 6.51 acres and is located in Section 31, Township 13 South,

Range 13 East, St. Bernard Parish Louisiana . . . .

The Army Corps’ October 17, 2005 letter stated that the Army Corps’ work would consist

of surveys, soil borings, and cultural resource investigations. The October 17, 2005 letter

indicated that the Army Corps would “[a]ccess, obtain borrow, and construct (repair and

rehabilitate) the Verret to Caernarvon Levee in St. Bernard Parish to design grade prior

to Hurricane Katrina.” The Army Corps’ letter also stated that “[t]his right of entry is

required immediately in order to complete the emergency work before next hurricane

season. The right of entry will remain valid until completion of construction.”

On October 19, 2005, George Lopez, the President of Lake Borgne, issued a

document titled “AUTHORIZATION FOR ENTRY FOR ACCESS, SURVEYS, SOIL

BORINGS, ENVIRONMENTAL CLEARANCES, BORROW, and CONSTRUCTION

(Repair and Rehabilitation).” (capitalization in original). The October 19, 2005 document

stated that Lake Borgne “has acquired the real property interests required by the

Department of the Army as requested via letter dated October 17, 2005, from Linda C.

Labure, Chief, Real Estate Division.” The October 19, 2005 document stated:

The property interests in part are via Henry Rodriguez, Jr.’s Parish

President of St. Bernard Parish, invoking emergency powers of the

Louisiana Homeland Security and Emergency Assistance and Disaster Act,

R.S. 29:721 et. Seq. and commandeering of certain private property which

private owners of real property shall be identified and compensated by

LBBLD [Lake Borgne Basin Levee District] in accordance with Louisiana

State law and which compensation to private landowners should be via

agreement or settlement that shall not exceed the fair market value of the

interest in real property commandeered or utilized at the time of the use.

3

Should such an agreement or settlement not be reached within twelve

months of the use of the property then the LBBLD will file appropriate

judicial proceedings. The LBBLD is otherwise vested with sufficient title and

interest in lands, to support repair and rehabilitation of the Lake

Pontchartrain Louisiana and Vicinity, Hurricane Protection Levee in its

jurisdiction and is described as follows and shown on attached maps.

Additionally, George Lopez authorized the Army Corps to enter the above-described 6.51

acres of land “for access, surveys, soil borings, environmental clearances, borrow, and

construction as set forth” in the Army Corps’ plans and specifications.

Five days later, on October 24, 2005, Henry Rodriguez, Jr., issued a document

titled “Commandeering Property and Granting Right of Entry for Access, Surveys, Soil

Borings, Environmental Clearances, Borrow, and Construction in Connection with the

Emergency Repairs of the Lake Pontchartrain Louisiana and Vicinity Hurricane Protection

Levee, St. Bernard Parish.”3 The October 24, 2005 document issued by Henry Rodriguez,

Jr., stated that Mr. Rodriguez was taking certain actions in accordance with St. Bernard

Parish’s September 1, 2005 Executive Order. Henry Rodriguez, Jr., stated in the October

24, 2005 document that he was “commandeer[ing] the use of certain private immovable

property generally located in Section 31, Township 13 South, Range 13 East, St. Bernard

Parish, Louisiana . . . . Said private property consists of approximately 6.51 acres.” Henry

Rodriguez, Jr., then stated:

Said immovable property shall be used to gain access, obtain surveys, soil

borings, cultural resources investigations, HTRW [hazardous, toxic, and

radioactive waste] assessments, borrow, and construct (Repair and

Rehabilitate) for the potential use in emergency levee restoration work. The

work associated with the potential use of this site consists of obtaining

borrow materials, gaining access, and constructing (repair and

rehabilitating) the Verret to Caernarvon Levee in St. Bernard. As such, the

Parish hereby obtains an assignable right and easement to gain access and

obtain surveys, soil borings, cultural resources investigations, and HTRW

assessments from said private immovable property, reserving however to

the landowners, their heirs and assigns, all such rights and privileges in said

land as may be used without interfering with or abridging the rights hereby

acquired.

Second, I hereby tender and grant an irrevocable right of entry to these

lands to the Lake Borgne Basin Levee District for its use in obtaining

access, surveys, soil borings, cultural resources investigations, HTRW

assessments, borrow, and construction. I further understand that the Levee

District will tender an Authorization for Entry for Access, Surveys, Soil

3According to defendant, because Henry Rodriguez, Jr.’s “Commandeering Order was

not signed until October 24, 2005,” George Lopez’s October 19, 2005 “Authorization for

Entry” was not effective until October 24, 2005.

4

Borings, Environmental Clearances, Borrow, and Construction to the United

States Army Corps of Engineers, the Department of the Army, its agents,

employees, and contractors to enter upon these lands to perform said

surveys and investigations as set forth in the plans and specifications held

in the U.S. Army Corps of Engineers’ District Office, New Orleans,

Louisiana.

In granting this irrevocable right of entry for access, surveys, soil borings,

environmental clearances, borrow, and construction, the St. Bernard Parish

agrees to hold and save the United States of America, its officers, agents,

and assigns free from all damages arising from the construction, operation,

maintenance, repair, replacement, and rehabilitation of the Project, except

for damages due to the fault or negligence of the Government or its

contractors.

On November 3, 2005, the Army Corps, St. Bernard Parish, and Lake Borgne

entered into a Cooperation Agreement for post-flood response assistance (the

Cooperation Agreement). On December 1, 2005, the Army Corps, St. Bernard Parish,

and Lake Borgne entered into an Amended Cooperation Agreement for post-flood

response assistance (the Amended Cooperation Agreement), which rescinded and

replaced the parties’ November 3, 2005 Cooperation Agreement. Under the Amended

Cooperation Agreement, the “Government,” which was defined as the United States

Department of the Army “represented by the District Engineer, New Orleans District, U.S.

Army Corps of Engineers,” was to “expeditiously construct the Construction Effort,[4]

applying those procedures usually followed or applied in Federal projects, pursuant to

Federal laws, regulations, and policies.” The “Public Sponsors,” which the Amended

Cooperation Agreement defined as St. Bernard Parish and Lake Borgne, were “afforded

the opportunity to review and comment” on the Army Corps’ solicitations for contracts

involving performance of the “Construction Effort,” but the “award of contracts,

modifications or change orders, and performance of all work on the Construction Effort

(whether the work is performed under contract or by Government personnel or by non-

Federal Government personnel), shall be exclusively within the control of the [Army

Corps] District Engineer.” Pursuant to Article II.B of the Amended Cooperation

Agreement, the Public Sponsors were required to provide “right of entry to all lands,

easements, and rights-of-way, including suitable borrow and dredged or excavated

material disposal areas, determined by the Government to be necessary for construction,

operation, and maintenance of the Construction Effort and the non-federal levee.” Article

II.D of the Amended Cooperation Agreement stated that the “Public Sponsors shall hold

4 Article I.A of the Amended Cooperation Agreement stated that:

The term “Construction Effort” shall mean repair consisting of enlargement

(lift) of an existing levee section of non-Federal levee that lies within St.

Bernard Parish, Louisiana with varying crown elevations ranging from

approximately +6 to +10 North American Vertical Datum (NGVD), and will

be constructed within the existing levee rights of way.

5

and save the Government free from all damages arising from the construction, operation,

and maintenance of the Construction Effort, the non-Federal levee, and any related

betterments, except for damages due to the fault or negligence of the Government or the

Government’s contractors.”

Article III of the Amended Cooperation Agreement was titled “LANDS AND

PUBLIC LAW 91-646.” (capitalization in original). Article III.A of the Amended

Cooperation Agreement stated that the government was to provide the Public Sponsors

with a description of its real estate requirements, and that the Public Sponsors, “at no

cost to the Government,” were to “provide right of entry, to all lands, easements, and

rights-of-way, including suitable borrow and dredged or excavated material disposal

areas, (hereinafter LERD) as may be determined by the Government in that description.”

Article III.A of the Amended Cooperation Agreement defined three-types of LERD: “Public

Sponsor LERD;” “Other Non-Federal Governmental LERD;” and “Private LERD.”

Regarding the first type of LERD, Public Sponsor LERD, Article III.A.1 stated that Public

Sponsor LERD was LERD that the Public Sponsors owned, claimed, or controlled “in a

manner that is free and clear of any liens, defects of title, or encumbrances, including the

release or subordination to the Construction Effort of any third party interests, as

determined by the Government to be necessary for the construction, operation and

maintenance of the Construction Effort.” Regarding the second type of LERD, Other Non-

Federal Government LERD, Article III.A.2 stated:

The Public Sponsors shall use their best efforts to provide right of entry to

LERD that any other non-Federal governmental entity owns, claims, or

controls (hereinafter Other Non-Federal Governmental LERD) in a manner

that is free and clear of any liens, defects of title, or encumbrances,

including the release or subordination to the Construction Effort of any third

party interests within such LERD, as determined by the Government to be

necessary for the construction, operation and maintenance of the

Construction Effort.

Article III.A.3 defined Private LERD, which was the third type of LERD identified in

Article III, as “all other LERD not owned, claimed, or controlled by the Public Sponsors or

Other Non-Federal Governmental Entities.” Article III.A.3 further stated:

a. The Public Sponsors shall secure or cause to be secured an executive

commandeering order or orders from the President of St. Bernard Parish,

Louisiana, which said order or orders shall commandeer Private LERD, in

accordance with powers set forth in La. R.S. 29:721,[5] et seq., including all

5 The Louisiana statute cited in the Amended Cooperation Agreement provides “[t]his

Chapter shall be cited as the ‘Louisiana Homeland Security and Emergency Assistance

and Disaster Act,’” which, as discussed above, is the Louisiana statute cited by Henry

Rodriguez, Jr., the President of St. Bernard, in his September 1, 2005 Executive Order

stating that Henry Rodriquez, Jr., was authorized to commandeer private property and

grants of rights of entry for emergency worked related to damage caused by Hurricane

6

privately owned third party interests, as determined by the Government to

be necessary for the construction, operation and maintenance of the

Construction Effort;

b. In the event that the commandeering official is not the presiding official

of the Public Sponsors, the Public Sponsors must secure a right of entry

from the commandeering official to the Private LERD described in the

Commandeering Order or Orders; and

c. The Public Sponsors shall tender a right of entry to the Government for

the Private LERD.

According to Article II.B.1:

As further specified in Article Ill, after receiving the Public Sponsors’ right

of entry to the lands, easements, and rights of way, including suitable

borrow and dredged or excavated material disposal areas (LERD) that

are described in Article III.A.2 [discussing Other Non-Federal

Governmental LERD], and III.A.3. [discussing Private LERD] of this

Amendment, the Government, subject to the availability of

appropriations, shall identify and pay just compensation to the owners

of a compensable interest in the LERD described in Article III.A.3 of this

Amendment. Additionally, the Government, subject to the availability of

appropriations, shall acquire interests in those LERD described in Article

llI.A.2 of this Amendment to which the Public Sponsors were unable to

obtain right of entry despite their best efforts.

Article III.B of the Amended Cooperation Agreement also discussed the Army

Corps’ requirement to acquire interests in those lands which the Public Sponsors were

unable to obtain to a right of entry. Article III.B stated:

[T]he Government in the name of the Public Sponsors, shall identify and

provide just compensation to the owners of a compensable interest in the

Private LERD and shall acquire the requisite interests in the non-Federal

Governmental LERD to which the Public Sponsors, despite their its [sic]

best efforts, was unable to obtain a free and unencumbered right of entry,

all in accordance with the applicable provisions of the Uniform Relocation

Assistance and Real Property Acquisitions Policy Act of 1970, Public Law

91-646, as amended by Title IV of the Surface Transportation and Uniform

Relocation Assistance Act of 1987 (Public Law 100-17), and the Uniform

Regulations contained in 49 CFR Part 24, in acquiring lands, easements,

and rights of way, required for construction, operation, and maintenance of

the non-Federal levee and the Construction Effort, including those

Katrina. See LA. STAT. ANN. § 29:721.

7

necessary for relocations, borrow materials, and dredged or excavated

material disposal, and shall inform all affected persons of applicable

benefits, policies, and procedures in connection with said Act.

Article III.B of the Amended Cooperation Agreement further stated:

1. The Government shall obtain a deed or servitude agreement, as

appropriate, in the name of the Public Sponsors, for those interests

described in the Commandeering Order or Orders referenced in Paragraph

A.3.a. [discussing Private LERD] of this Article. In like manner, the

Government shall obtain a deed or servitude agreement, as appropriate, in

the name of the appropriate Public Sponsor, for those interests in the non-

Federal Governmental LERD to which the Public Sponsors, despite their

best efforts, was unable to obtain a free and unencumbered right of entry.

2. Where the Government is unable to obtain free and unencumbered title on

the behalf of the Public Sponsors or to reach an agreement with the interest

owners in the Private and Other Non-Federal Governmental LERD, the

Government shall obtain such interests, in the name of the United States of

America, through the exercise of its eminent domain authority.

After “the Construction Effort is complete and the acquisition and eminent domain

proceedings finalized,” Article III.B.3 of the Amended Cooperation Agreement stated that

the Army Corps would transfer all of the Other Non-Governmental LERD and Private

LERD acquired “pursuant to paragraph B.2.of [sic] this Article,” which is quoted above, to

the Public Sponsors through quitclaim deed, which the “Public Sponsors hereby agree to

accept.” Article IV.A indicated that “Construction Effort costs are currently estimated to be

$8,155,000. In order to meet the Public Sponsors’ cash payment requirements, the Public

Sponsors must provide a cash contribution estimated to be $0.0.”

According to plaintiff’s supplemental complaint,6 from the land commandeered by

St. Bernard Parish, the Army Corps identified land that belonged to Avis Melerine Juan

and Alfreda Melerine Pizani, who appear to be sisters, “as being necessary for the repair

and rehabilitation of the levees breached in the aftermath of Hurricane Katrina.” Plaintiff

states in its supplemental complaint that the Army Corps, through the Army Corps’

contractors, excavated borrow material from the land owned by Ms. Juan and Ms. Pizani

in 2005 and 2006. According to plaintiff’s supplemental complaint, the Army Corps “solely

determined the borrow areas required to repair the levees and requested a right of entry

to this specific property,” and neither St. Bernard Parish nor Lake Borgne were involved

with drafting the plans and specifications related to excavating borrow material from Ms.

Pizani’s and Ms. Juan’s land. Plaintiff asserts that the Army Corps “returned” Ms. Pizani’s

6 On April 28, 2017, plaintiff filed its “FIRST SUPPLEMENTAL AND AMENDING

COMPLAINT.” (capitalization in original). As discussed below, plaintiff’s “FIRST

SUPPLEMENTAL AND AMENDING COMPLAINT” is properly classified as a

supplemental complaint, rather than an amended complaint. (capitalization in original).

8

and Ms. Juan’s land “with a certification by the Corps that their use had been completed”

on July 13, 2006. Defendant states that “the Government negotiated to purchase

temporary easements” from Ms. Juan and Ms. Pizani in 2006 and 2007, but that

negotiations between the government and Ms. Juan and Ms. Pizani “proved

unsuccessful.”

Louisiana State Trial Court Proceedings

On July 10, 2007, Ms. Juan and Ms. Pizani filed a lawsuit against St. Bernard

Parish and Lake Borgne in the Thirty Fourth Judicial District Court of the Louisiana District

Courts (the Louisiana State Trial court). See Complaint, Pizani v. St. Bernard Parish, No.

109-548 (34th Jud. Dist. Ct. July 10, 2007). Ms. Juan and Ms. Pizani alleged in the

Louisiana State Trial court that, “[o]n or about October 24, 2005, Defendants [St. Bernard

Parish and Lake Borgne] commandeered Petitioners’ property, continuing their adverse

possession until July 13, 2006.” Id. at 1. According to Ms. Juan’s and Ms. Pizani’s

complaint in Pizani v. St. Bernard Parish in the Louisiana State Trial court, when Ms.

Juan’s and Ms. Pizani’s “property was returned to them on July 13, 2006, Petitioners [Ms.

Juan and Ms. Pizani] learned that Defendants had participated in the extraction of at least

97,931 cubic yards of soil from their property.” Id. In Ms. Juan’s and Ms. Pizani’s complaint

in the Louisiana State Trial court, Ms. Juan and Ms. Pizani sought damages equal to

the unit value of no less than the 97,931 cubic yards of soil extracted and/or

converted from their property at the fair market value at the time of

extraction, which Petitioners aver is $25.00 per cubic yard, together with

legal interests from the date of extraction, attorney fees, and all costs of

these proceedings pursuant to R.S. 13:5111.

Complaint at 2, Pizani v. St. Bernard Parish, No. 109-548. In defendant’s motion to

dismiss in this court, defendant states that “[t]he Pizanis [Ms. Juan and Ms. Pizani] also

named the [Lake Borgne Basin] Levee District as a defendant, but subsequently

voluntarily dismissed the Levee District from the state court action.”

On December 20, 2016, the Louisiana State Trial court issued a judgment against

St. Bernard Parish7 in Pizani v. St. Bernard Parish. See Judgment at 1-2, Pizani v. St.

Bernard Parish, No. 109-548 (34th Jud. Dist. Ct. Dec. 20, 2016). According to the

Louisiana State Trial court’s December 20, 2016 judgment, Ms. Juan and Ms. Pizani were

“the owners in indivision [sic] of real property in St. Bernard Parish which was

commandeered by Defendant St. Bernard Parish Government on October 24, 2005 and

returned to Plaintiffs on July 13, 2006.” Id. at 1. The Louisiana State Trial court stated that

it was “mak[ing] the following awards, individually and collectively, to the Plaintiffs for

compensation and damages sustained as. [sic] a result of the commandeer, and for

statutory attorney fees, expert fees, and the court costs.” Id. The Louisiana State Trial

court entered judgment in favor of Ms. Pizani “and against Defendant St. Bernard Parish

7 The Louisiana State Trial court’s December 20, 2016 judgment does not indicate that

the Louisiana State Trial court entered judgment against Lake Borgne.

9

Government in the full sum of $989,000.00, together with legal interest thereon from the

date of commandeer of October 24, 2005, until paid.” Id. The Louisiana State Trial court

also entered a separate judgment amount in favor of Ms. Juan “against Defendant St.

Bernard Parish Government in the full sum of $989,000.00, together with legal interest

thereon from the date of commandeer of October 24, 2005, until paid.” Id. Additionally,

the Louisiana State Trial court ordered that:

[J]udgment herein in favor of Plaintiffs Alfreda Melerine Pizani and Avis

Melerine Juan against Defendant St. Bernard Parish Government for

attorney fees pursuant to R.S. 13:5111 in the amount of forty percent (40%)

of the combined total (awarded sums plus interest, expert fees, and costs)

of all sums awarded Plaintiffs herein less $59,400.00.

See Judgment at 1, Pizani v. St. Bernard Parish, No. 109-548. Ms. Juan and Ms. Pizani

also were awarded “expert fees” and court costs “in the sum of $14,200.03, together with

legal interest thereon from date of judgment until paid.” See id. at 2. On January 18, 2017,

the Louisiana State Trial court issued an amended judgment of its December 20, 2016

judgment by awarding “legal interest on the attorney fees awarded herein from the date

of the signing of the Court’s final Judgement on December 20, 2016 until paid.” See

Amended Judgment at 1, Pizani v. St. Bernard Parish, No. 109-548 (34th Jud. Dist. Ct.

Jan. 12, 2017).

On February 21, 2017, the Louisiana State Trial court that had issued the two

judgments against St. Bernard Parish issued a written findings of fact and reasons for

judgment. See Written Findings of Fact and Reasons for Judgment, Pizani v. St. Bernard

Parish, No. 109-548 (34th Jud. Dist. Ct. Feb. 21, 2017). In its written findings of fact and

reasons for judgment, the Louisiana State Trial court noted that Ms. Pizani’s and Ms.

Juan’s property was commandeered by order of St. Bernard Parish pursuant to the

Louisiana Homeland Security and Emergency Assistance and Disaster Act, and that the

Louisiana Homeland Security and Emergency Assistance and Disaster Act requires that

“‘amount of compensation shall be calculated in the same manner as compensation due

for a taking of property pursuant to the condemnation laws of this state.’” Id. at 1 (quoting

LA. STAT. ANN. § 29:730(G)). According to the Louisiana State Trial court, the Louisiana

State Constitution “has been interpreted to mean that a landowner whose property is

taken is entitled to be placed in the same pecuniary position in which he would have been

if the property had not been taken.” Id. The Louisiana State Trial court began its damages

computation by taking 384,000 cubic yards of clay,8 which the Louisiana State Trial court

8 The Louisiana State Trial court’s written findings of fact and reasons for judgment does

not indicate why the Louisiana State Trial court used 384,000 cubic yards of clay to

determine damages, notwithstanding that the complaint before the Louisiana State Trial

court only sought damages for “the unit value of no less than the 97,931 cubic yards of

soil extracted and/or converted from their property.” Defendant states, however, that the

Louisiana State Trial court’s written findings of fact and reason is “[b]ased upon the

384,000 cubic yards of clay that theoretically could have been extracted rather than the

fair market value of” Ms. Juan’s and Ms. Pizani’s property.

10

valued at $5.00 per cubic yard of clay, and multiplied the 384,000 cubic yards of clay by

$5.00 per cubic yard of clay, which produced damages of $1,920,000.00. See id. at 2.

The Louisiana State Trial court then added $58,000.00, which compensated Ms. Juan

and Ms. Pizani for “[s]everance damages to the remainder of Plaintiffs’ property along

Bayou Road consisting of reasonable and necessary costs to engineer and rectify

drainage issues caused by construction of the adjacent dirt pit,” to the $1,920,000.00 of

damages related to the removal of clay, thereby producing damages of $1,978,000.00.

See id. The Louisiana State Trial court stated, “[s]ince Plaintiffs were undivided owners

of the property commandeered in October of 2005, each is entitled to one-half of the total

compensation award of $1,978,000.00,” which is equal to $989,000.00, plus interest “from

the date of commandeer of October 24, 2005,” as well as costs, expert fees, and

reasonable attorneys’ fees.9 See id. The Louisiana State Trial court concluded its written

findings of fact and reasons for judgment by stating:

This Court notes that this is one of several post-Katrina commandeer cases,

which are very familiar to this Court from its prior decision in the case of

Borgnemouth Realty Co., Ltd. v. Parish of St. Bernard, No. 112,833 (34th

JDC), 141 So.3d 891, (La. App. 4th Cir. 2014), writs denied, 14-1285 (La.

9/26/14), 149 So.3d 266, which case was nearly identical to the facts in

another takings case decided by Judge Fernandez in Olivier Plantation,

L.L.C. v. Parish of St. Bernard, No. 109,272 (34th JDC), 151 So.3d 965, (La.

App. 4th Cir. 2014), writs denied, 14-2496, (La. 2/27/15), 160 So.3d 173.

This Court is cognizant from the evidence presented in this case and in the

Borgnemouth Realty case that a cooperation agreement existed between

St. Bernard Parish and the United States Army Corps of Engineers

(USACOE) which required the USACOE to compensate property owners

for takings related to the Parish’s commandeer of property under the

cooperation agreement.

Although not called upon to decide this issue under the circumstances of

this case, this Court would note for the benefit of the involved parties that it

is the observation of this Court that the facts of the instant Pizani case are

so nearly identical to those of the Borgnemouth Realty and Olivier

Plantation cases that the same result should obtain here in the Pizani case

as resulted in the Borgnemouth Realty and Olivier Plantation cases

regarding the USACOE’s obligation to indemnify St. Bernard Parish for

liability resulting from the Parish’s commandeer of private property pursuant

to the cooperation agreement.

Written Findings of Fact and Reasons for Judgment at 2, Pizani v. St. Bernard Parish,

No. 109-548.

9As described below, as of the date of the issuance of this Opinion, the record before this

court has no indication that the Louisiana State Trial court’s judgments have been paid to

Ms. Juan or Ms. Pizani.

11

On January 20, 2017, following the Louisiana State Trial court’s issuance of its

January 18, 2017 amended judgment against St. Bernard, but before the Louisiana State

Trial court issued its February 21, 2017 written findings of fact and reasons for judgment,

St. Bernard Parish, Ms. Pizani, and Ms. Juan entered into a “JOINT AND RECIPROCAL

AGREEMENT.” (capitalization in original). The pertinent portion of the Joint and

Reciprocal Agreement provides:

Owing to the risks, benefits, and vicissitudes of further litigation, Plaintiffs

and St. Bernard hereby mutually agree to immediately cease all adverse

action between and against each other in Alfreda Melerine Pizani and Avis

Melerine Juan vs. St. Bernard Parish, et al [sic], 34th Judicial District Court,

# 109-548 Div. E, waiving all appellate rights in Louisiana state courts. It is

the mutual intent of the parties to this Joint and Reciprocal Agreement that

the Judgement signed December 20, 2016 in the above captioned matter

(as amended) become final and executory for purposes of immediate

executory and collection proceedings in the United States Court of Federal

Claims, or other necessary forum, to resolve this very old case for both

parties.

In consideration for the reciprocal agreements set forth herein, Plaintiffs

agree to suspend and forego all collection rights against St. Bernard

regarding the Judgement provided that St. Bernard pursues indemnification

for payment of the Judgement (as amended) in the United States Court of

Federal Claims in Case No. 15-1072C[10] and for a period of 60 days past

termination and finality of all such proceedings, including appeals, and also

further agree to accept such amounts recovered in the United States Court

of Federal Claims in Case No. 15-1072C (or such other proceedings as may

be instituted for collection of the Judgement, as amended) in full satisfaction

of all sums owed to Plaintiffs by St. Bernard in the Judgement (as

amended). Plaintiffs hereby further agree to execute a full Release and

Satisfaction of the Judgement (as amended) in favor of St. Bernard within

30 days of receipt of all sums recovered from the United States in the United

States Court of Federal Claims (or such other proceedings as may be

instituted for collection of the Judgement, as amended), or upon receipt of

all sums received from settlement agreed to by all parties, whichever comes

first. Plaintiffs agree not to execute against St. Bernard unless St. Bernard

collects funds from the United States in payment of the Judgement and fails

to pay the funds to Plaintiffs within 60 days of receipt. Nothing contained

herein shall obligate St. Bernard to pay to Plaintiffs any sums awarded to

St. Bernard and recovered from the United States which are solely and

expressly attributable to attorney’s fees incurred by St. Bernard’s attorneys

in representing St. Bernard Parish.

10As discussed above, St. Bernard filed its initial complaint in the above-captioned case,

Case No. 15-1072C, on September 25, 2015.

12

In consideration for the reciprocal agreements set forth herein, St. Bernard

hereby agrees to immediately cease all actions in 34th Judicial District Court

in the above captioned matter, and shall immediately formally notify the

Court that it waives its prior request for Reasons for Judgement pursuant to

La. C.C.P. art. 1917. St. Bernard further agrees to forthwith institute at its

sole costs all proceedings necessary to obtain indemnification or payment

from the United States for all sums due under the Judgement (as amended)

including, but not limited to, Case No. 15-1072 C in the United States Court

of Federal Claims. St. Bernard shall aggressively pursue all such actions to

finality, including all appeals, unless a settlement satisfactory to both

Plaintiffs is reached before finality of the proceedings.

(emphasis in original).

On August 15, 2018, in Chalmette, Louisiana, Ms. Juan, Ms. Pizani, and St.

Bernard Parish executed a document titled “ADDENDUM TO JOINT AND RECIPROCAL

AGREEMENT.” (capitalization in original). The August 15, 2018 Addendum to the Joint

and Reciprocal Agreement states that the purpose of the Addendum is to “clarify the intent

of the original [Joint and Reciprocal] Agreement,” and that, “[s]hould SBPG [St. Bernard

Parish Government] be unsuccessful in collecting any funds in the Court of Claims [sic],

the Landowners shall be entitled to collect the value of the Judgement from SBPG.”

Proceedings in the United States District Court for the Eastern District of Louisiana

Defendant in the above-captioned case states that, after negotiations “to purchase

temporary easements from” Ms. Juan and Ms. Pizani in 2006 and 2007 “proved

unsuccessful” and after Ms. Juan and Ms. Pizani filed their July 10, 2007 complaint

against St. Bernard Parish in the Louisiana State Trial court, on February 14, 2008, the

United States government filed a complaint in condemnation in the United States District

Court for the Eastern District of Louisiana. The February 14, 2008 complaint in

condemnation in the United States District Court for the Eastern District of Louisiana

states that “[t]his is an action of a civil nature brought by the United States of America for

the taking of property, under its power of eminent domain, and for the ascertainment and

award of just compensation to the parties in interest.” Complaint at 1, United States v.

6.83 Acres of Land, No. 08-999 (E.D. La. Feb. 14, 2008). The February 14, 2008 Eastern

District of Louisiana complaint indicated that the government sought to obtain a

“Temporary Borrow Easement” on Tract No. B100E-1 and a “Temporary Work Area

Easement” on Tract No. B100E-2. Id., Ex. C. The February 14, 2008 complaint described

the Temporary Borrow Easement as:

A temporary and assignable right and easement to clear, borrow, excavate

and remove soil, dirt, and other materials from the land described in

Schedule A as Tract No. B100E-1, for a period not to exceed one year,

beginning with date possession of the land was granted to the United

States; subject, however, to existing easements for public roads and

highways, public utilities, railroads; reserving, however, to the landowners,

13

their heirs and assigns, all such rights and privileges in said land as may be

used without interfering with or abridging the rights and easement hereby

acquired.

Id. The February 14, 2008 complaint described the Temporary Work Area Easement as:

A temporary easement and right-of-way in, on, over and across the land

described in Schedule A as Tract No. B100E-2, for a period not to exceed

one year, beginning with date possession of the land was granted to the

United States, for use by the United States, its representatives, agents, and

contractors as a work area, including the right to move, store and remove

equipment and supplies, and erect and remove temporary structures on the

land and to perform any other work necessary and incident to the

construction of the Emergency Levee Repairs, Non-Federal Chalmette

Back Levee, Creedmore Borrow Area, St. Bernard Parish, Louisiana

Project, together with the right to trim, cut, fell and remove therefrom all

trees, underbrush, obstructions, and any other vegetation, structures, or

obstacles within the limits of the right-of-way; reserving, however, to the

landowners, their heirs and assigns, all such rights and privileges as may

be used without interfering with or abridging the rights and easement hereby

acquired; subject, however, to existing easements for public roads and

highways, public utilities, railroads and pipeline.

Id. The February 14, 2008 complaint indicated that the “Purported Owners” of Tract Nos.

B100E-1 and B100E-2 were Ms. Pizani, Ms. Juan, the “Sheriff & Ex-Officio Tax Collector,”

and the “Department of Taxation and Revenue.” Id., Ex. E.

Also on February 14, 2008, the government filed its declaration of taking in the

same proceeding in the United States District Court for the Eastern District of Louisiana.

See Declaration of Taking, United States v. 6.83 Acres of Land, No. 08-999 (E.D. La.

Feb. 14, 2008). The government’s declaration of taking stated that the government was

depositing a “gross sum estimated” of $59,400.00, which was the estimated “just

compensation for all of said land.” Id. at 2.

In defendant’s motion to dismiss filed in the above-captioned case in this court,

defendant states that, after the government filed the February 14, 2008 complaint and

declaration of taking, the government and Ms. Juan and Ms. Pizani engaged in further

negotiations regarding the government’s action before the United States District Court for

the Eastern District of Louisiana, but the parties still were unable to reach an agreement.

On September 7, 2010, the government filed an amended complaint, as well as an

amended declaration of taking, in the United States District Court for the Eastern District

of Louisiana. The September 7, 2010 amended complaint stated that, “[b]y authority of

the Deputy Assistant Secretary of the Army and the Attorney General of the United States,

and pursuant to Rule 71.1(f) of the F.R.Cv.P. [Federal Rules of Civil Procedure], the

estate being taken herein is hereby being changed from a temporary easement to a taking

in fee.” Amended Complaint at 2, United States v. 6.83 Acres of Land, No. 08-999 (E.D.

14

La. Sept. 7, 2010). The September 7, 2010 amended complaint further stated that the

government was acquiring

fee simple title to Tract No. B100, subject, however, to existing easements

for public roads and highways, public utilities, railroads and pipelines;

excepting and excluding from the taking all oil and gas in and under said

land and all appurtenant rights for the exploration, development, production

and removal of said oil and gas.

Id., Ex. C-1.

In the September 7, 2010 amended declaration of taking, the government stated

that the government was increasing the “gross sum estimated” of “just compensation for

all of said land” to $134,000.00. Amended Declaration of Taking at 2, United States v.

6.83 Acres of Land, No. 08-999 (E.D. La. Sept. 7, 2010). The government’s amended

declaration of taking stated that “[i]t is intended by this amendment that the aforesaid

Declaration of Taking is not to be changed in any way except as expressly set forth.” Id.

On October 19, 2011, the United States District Court for the Eastern District of

Louisiana entered an Order stating that “the Clerk of this Court be and hereby is ordered

to make the following disbursement of principal, together with accrued interest, less the

assessment fee for the administration of funds, out of the funds in the registry of the

Court.” Order to Disburse Funds at 2, United States v. 6.83 Acres of Land, No. 08-999

(E.D. La. Oct. 19, 2011). The Eastern District of Louisiana directed that Ms. Pizani was

to receive $67,000.00 and that Ms. Juan was to receive $67,000.00. See id. The October

19, 2011 Order stated:

[S]aid disbursement be without prejudice to the right of said defendants to

demand and receive additional compensation for the taking of said tracts of

land, and that should the compensation finally determined to be due to said

defendants be less than the amount hereby disbursed, the United States

shall have a right to recover the difference.

Id.

On January 15, 2013, the government filed a motion for a determination of the

appropriate date of valuation, in which the government requested that the United States

District Court for the Eastern District of Louisiana determine “whether its jurisdiction to

award just compensation in this land condemnation proceeding extends to valuing the

interests taken as of the time the property was commandeered both in terms of the extent

of the interests taken and the time it was taken.” Motion for a Determination of the

Appropriate Date of Valuation at 1, United States v. 6.83 Acres of Land, No. 08-999 (E.D.

La. Jan. 15, 2013). In the government’s memorandum in support of its January 15, 2013

motion, the government argued:

In a condemnation case, identifying the date as of which the property taken

15

is to be valued is a necessary prerequisite to determining just

compensation. Ordinarily, where the United States utilizes a Declaration of

Taking under authority of the Declarations of Takings Act (40 U.S.C.

§ 3114), the date of valuation is the date on which the United States fulfills

all of the requirements of the Act, namely, filing of the Declaration of Taking

in federal district court, together with a deposit of estimated just

compensation. However, in the emergency aftermath of Hurricanes Katrina

and Rita, the instant case did not follow the ordinary route. Instead, in order

to allow repair work on the Chalmette Back Levee to proceed as quickly as

possible, St. Bernard Parish utilized state law to commandeer real property

owned by Defendants, Alfreda Melerine Pizani and Avis Melerine Juan

(hereinafter referred to jointly as “Pizani”). St. Bernard Parish

simultaneously granted an irrevocable right of entry to the Lake Borgne

Basin Levee District (“LBBLD”), which in turn provided a right of entry to the

U.S. Army Corps of Engineers (“Corps”), which was charged by Congress

with performing the levee repairs.

***

The United States and Pizani now dispute whether the Court should award

just compensation as of the Corps’ entry onto the Pizani property at the time

of commandeering, or as of the dates of filing of the Declarations of Taking.

In United States v. Dow, 357 U.S. 17 (1958), the Supreme Court held that

where the federal government takes legal possession prior to the filing of a

Declaration of Taking, the date of possession is the proper date on which

to determine value. The United States therefore respectfully requests that,

pursuant to Dow, this Court find that the proper date of valuation of the

Pizani property is the date on which possession was granted to the United

States through the commandeering.

Memorandum in Support at 1-2, United States v. 6.83 Acres of Land, No. 08-999 (E.D.

La. Jan. 15, 2013). The government requested that the District “Court find that the

applicable date of valuation of the property taken herein is October 24, 2005, the date the

property was commandeered and possession granted to the Corps.” Id. at 10.

On February 15, 2013, the United States submitted a filing titled “OFFER OF

JUDGMENT” in the United States District Court for the Eastern District of Louisiana. See

Offer of Judgment at 1, United States v. 6.83 Acres of Land, No. 08-999 (E.D. La. Feb.

15, 2013) (capitalization in original). The February 15, 2013 Offer of Judgment stated that

the United States

offers to have judgment of just compensation taken against it in the total

amount of $475,000 as full payment of just compensation for the taking of:

(1) temporary interests in 6.83 acres of land, as described in the declaration

of taking filed herein; (2) the taking of the fee interest in the same 6.83 acres

16

of land, as described in the amended declaration of taking filed herein; and

(3) the commandeering of 6.51 acres of land by St. Bernard Parish on

October 24, 2005. The offered amount of $475,000 is inclusive of attorney’s

fees, accrued interest upon any deficiency and costs, if any.

Id. (internal references omitted). The February 15, 2013 Offer of Judgment asserted that

the Ms. Juan and Ms. Pizani had fourteen days to accept the United States’ offer of

judgment in writing, and that “this offer is considered withdrawn if not accepted.” Id. at 2.

The docket of the relevant condemnation proceeding before the United States District

Court for the Eastern District of Louisiana does not indicate that Ms. Juan and Ms. Pizani

accepted the government’s February 15, 2013 Offer of Judgment, and the parties also

have not indicated to this court that Ms. Juan and Ms. Pizani accepted the government’s

February 15, 2013 Offer of Judgment.

On February 26, 2013, Ms. Juan and Ms. Pizani filed a motion to stay the

proceedings before the United States District Court for the Eastern District of Louisiana.

See Motion to Stay at 1, United States v. 6.83 Acres of Land, No. 08-999 (E.D. La. Feb.

26, 2013). Also on February 26, 2013, Ms. Juan and Ms. Pizani filed an opposition to

defendant’s January 15, 2013 motion for a determination of the appropriate date of

valuation. See Opposition to Motion for a Determination of the Appropriate Date of

Valuation, United States v. 6.83 Acres of Land, No. 08-999 (E.D. La. Feb. 26, 2013). In

the opposition, Ms. Juan and Ms. Pizani argued that the “date of taking cannot be October

24, 2005,” and that the “date of taking is the filing date of the Declaration of Taking.” Id.

at 2, 5. On March 5, 2013, the government filed an opposition to Ms. Juan’s and Ms.

Pizani’s motion to stay, and, on March 6, 2013, the government filed a reply in support of

its motion for a determination of the valuation date.

On April 5, 2013, the United States District Court for the Eastern District of

Louisiana issued an Order granting Ms. Juan’s and Ms. Pizani’s February 26, 2013

motion to stay and dismissing the government’s January 15, 2013 motion for a

determination of the appropriate date of valuation as moot. See Order and Reasons at 1,

7, 9, United States v. 6.83 Acres of Land, No. 08-999 (E.D. La. Apr. 5, 2013). In the April

5, 2013 Order, the United States District Court for the Eastern District of Louisiana stated:

On filing a declaration of taking and depositing the amount of estimated

compensation stated in the declaration, title to the estate or interest

specified in the declaration vests in the Government; the land is condemned

and taken for the use of the Government; and the right to just compensation

for the land vests in the persons entitled to the compensation. 40 U.S.C.

§ 3114(b)(1)-(3). While the United States argues that it actually took

possession [sic] the property in question at an earlier date, that issue is the

subject of the plaintiff’s Motion for a Determination of the Appropriate Date

of Valuation and will not be resolved at this time. The statute that authorizes

the use of condemnation actions states that title vested in the United States

at the time the Complaint in Condemnation was filed and the deposit of

estimated compensation was made.

17

Id. at 7 (internal reference omitted). Regarding the proceeding before the Louisiana State

Trial court discussed above, which involved Ms. Pizani, Ms. Juan, and St. Bernard Parish,

the United States District Court for the Eastern District of Louisiana stated:

If these cases [in the Eastern District of Louisiana and the Louisiana State

Trial court] proceed simultaneously, this Court will have to determine the

date of the federal taking, to establish the date upon which the property

should be valued. If this Court determines that the date of the Federal taking

was, as the United States argues, the same date as the taking by St.

Bernard, both the state and federal courts will use the same valuation date

to determine just compensation. See, e.g. 40 U.S. [sic] § 1334(c)(1)

(“Compensation shall be determined and awarded in the proceeding and

established by judgment. The judgment shall include interest, in accordance

with section 3116 of this title, on the amount finally awarded as the value of

the property as of the date of taking and shall be awarded from that date to

the date of payment.”). This could lead to a situation in which the same

property, taken on the same date but by different parties, could be valued

differently in state and federal court. To allow these parallel cases to

proceed simultaneously would create the possibility of conflict between

courts of different sovereigns, the specific kind of conflict that the prior-

existing-jurisdiction rule is meant to prevent.

Id. at 9 (internal reference omitted).

On May 22, 2017, the government filed a motion to lift the stay in the case before

the United States District Court of Louisiana because “final judgment has been rendered”

in the Louisiana State Trial court. See Motion to Reopen Case, United States v. 6.83

Acres of Land, No. 08-999 (E.D. La. May 22, 2017). On May 24, 2017, Ms. Juan and Ms.

Pizani filed a motion to continue the stay in the United States District Court for the Eastern

District of Louisiana. See Motion to Continue Stay, United States v. 6.83 Acres of Land,

No. 08-999 (E.D. La. May 24, 2017). In the May 24, 2017 motion, Ms. Juan and Ms. Pizani

argued:

Judge Marian Blank Horn of the U.S. Court of Federal Claims rendered

summary judgment against the United States for $1,428,335.00[11] [sic] and

11 As discussed below, on July 12, 2016, the undersigned issued an unreported Order

granting Lake Borgne’s and St. Bernard Parish’s motion for summary judgment against

the United States in Lake Borgne Basin Levee District, et al. v. United States, Case No.

15-103C, and St. Bernard Parish Government, et al. v. United States, Case No. 15-518C.

Ms. Juan’s and Ms. Pizani’s May 24, 2017 motion, however, misstated the amounts

awarded in those two related cases. The court’s July 12, 2016 Order awarded damages

of $1,655.380.03 in Lake Borgne Basin Levee District, et al. v. United States, Case No.

15-103C, and damages of $2,768,373.04 in St. Bernard Parish Government, et al. v.

United States, Case No. 15-518C. The parties in Lake Borgne Basin Levee District, et al.

18

$2,768,373.04 in St. Bernard Parish’s two Court of Claims [sic] complaints.

(Ct. Cl. Nos. 15-103C and 15-518C, Doc. 37). The United States conceded

in those proceedings that the Plaintiffs (including St. Bernard Parish) were

entitled to summary judgment.

***

Defendants [Ms. Juan and Ms. Pizani] submit that if the related Court of

Federal Claims complaint [in the above-captioned case in this court] is

resolved by summary judgment, as were the related Olivier Plantation and

Borgnemouth Realty Cases (Ct. Cl. Nos. 15-103C and 15-518C), there

would be no necessity to pursue the instant condemnation case since

Defendants do not contest the taking or the compensation received for the

taking.

In sum, this condemnation proceeding may be closed and dismissed if the

related Court of Federal Claims complaint (Ct. Cl. No. 15-1072C) is resolved

by summary judgment, which occurred in the related Olivier Plantation and

Borgnemouth Realty Cases (Ct. Cl. Nos. 15-103C and 15-518C).

Id. at 3-4.

On July 17, 2017, the United States District Court for the Eastern District of

Louisiana issued an Order granting the government’s motion to lift the stay of the case

before the Eastern District of Louisiana and stated that the “parties have failed to

persuade the Court that any proceedings in the Court of Federal Claims has a direct

bearing on this Court’s jurisdiction, such that this Court should relinquish its jurisdiction

until that proceeding is finalized.” Order at 1, United States v. 6.83 Acres of Land, No. 08-

999 (E.D. La. July 17, 2017). On August 18, 2017, the United States District Court for the

Eastern District of Louisiana issued an Order scheduling a three-day bench trial to

commence on April 23, 2018. See Scheduling Order at 2, United States v. 6.83 Acres of

Land, No. 08-999 (E.D. La. Aug. 18, 2017). On March 29, 2018, the United States District

Court for the Eastern District of Louisiana issued another Order, which stated:

The Court having been advised by counsel for the parties that all of the

parties to this action have firmly agreed upon a compromise,

IT IS ORDERED that the action be and it is hereby dismissed without costs

and without prejudice to the right, upon good cause shown, to reopen the

action or to seek summary judgment enforcing the compromise if settlement

is not consummated within a reasonable time. The Court retains jurisdiction

v. United States, Case No. 15-103C, and in St. Bernard Parish Government, et al. v.

United States, Case No. 15-518C, had submitted joint status reports to the court reflecting

the above amounts as “full and complete satisfaction of any and all claims that have been

made or could be made in” those two cases.

19

for all purposes, including enforcing the settlement agreement entered into

by the parties.

See Order of Dismissal at 1, United States v. 6.83 Acres of Land, No. 08-999 (E.D. La.

March 29, 2018) (capitalization in original).

Procedural History in the Above-Captioned Case

On September 25, 2015, plaintiff St. Bernard Parish filed a complaint in the above-

captioned case with this court. Also on September 25, 2017, plaintiff filed a notice of

directly related cases, in which plaintiff stated “[t]his case is directly related to Lake Borgne

Basin Levee District v. United States, No. 15-103C (Judge Horn) and St. Bernard Parish

Government and Lake Borgne Basin Levee District v. United States, No. 15-518C (Judge

Horn),” two cases which were assigned to the undersigned and are referenced above and

discussed below. (emphasis in original). Plaintiff asserted in the notice of directly related

cases that “virtually all of the legal issues and the factual issues are the same,” but noted

that “differences between the related cases and the present case is that the present case

involves a different tract of land, a different group of landowners, a different amount of

alleged damages,” and that “the Corps ultimately expropriated the tract of land in this

case, whereas the Corps did not ever expropriate the tract of land in the Borgnemouth

and Olivier cases.”

In the September 25, 2015 complaint in this court, plaintiff alleged that defendant,

the United States, breached its contract with plaintiff when plaintiff “provided access to

private property, and the Corps entered the property and removed borrow material to

repair levees in Louisiana in the aftermath of Hurricane Katrina.” Plaintiff noted in its

September 25, 2015 complaint that Ms. Juan and Ms. Pizani had filed a lawsuit in the

Louisiana State Trial court, which, at the time plaintiff’s September 25, 2015 complaint in

this court was filed, was still pending in the Louisiana State Trial court. On October 14,

2015, the court issued an Order staying the above-captioned case at the request of the

parties “pending resolution of certain related cases in Louisiana state court and the United

States District Court for the Eastern District of Louisiana.”

On April 28, 2017, while the above-captioned case was stayed, plaintiff filed its

“FIRST SUPPLEMENTAL AND AMENDING COMPLAINT” in the current case before the

court. (capitalization in original). In plaintiff’s supplemental complaint, plaintiff alleges that

the defendant, acting through the Army Corps, had entered into the Amended

Cooperative Agreement with plaintiff, which, pursuant to Article III.B of the Amended

Cooperative Agreement, required the Army Corps to assume “the obligation to pay just

compensation to landowners whose property is commandeered, agreeing that it will

‘identify and provide just compensation to the owners of a compensable interest in the

Private LERD.’” (quoting Article III.B of the Amended Cooperation Agreement). According

to plaintiff, the Army Corps excavated borrow material from property owned by Ms. Juan

and Ms. Pizani in 2005 and 2006, but the Army Corps has not compensated Ms. Pizani

or Ms. Juan for the damages they sustained as a result of the Army Corps’ entry “onto

and excavation of material from property owned by Ms. Pizani and Ms. Juan. This refusal

20

to provide just compensation to the property owners under the terms of the Amended

Cooperation Agreement, on behalf [sic] SBPG, constitutes a breach of the express and/or

implied terms of the Amended Cooperation Agreement.” Plaintiff requests

that this Court enforce the terms of the Amended Cooperation

Agreement . . . as well as any principal, interest, attorney’s fees and costs

awarded by the Louisiana state court. The Pizani Judgments are now final

judgments, no longer appealable, and SBPG is entitled to an Order

requiring the United States to pay the judgments under this Court’s

precedent in the Olivier [sic] and Borgnemouth cases (USCFC Nos. 15-

103C and 15-518C).

According to plaintiff, “[d]amages for breach of contract shall place the wronged party in

as good a position as it would have been in had the breaching party fully performed its

obligation,” and defendant is required to compensate plaintiff for the losses it sustained

when defendant allegedly failed to compensate Ms. Juan and Ms. Pizani in violation of

the Amended Cooperation Agreement.

Alternatively, in plaintiff’s supplemental complaint, plaintiff asserts that “the

language in the Amended Cooperation Agreement constitutes an agreement to indemnify

SBPG for those expenses,” and that the “Corps is therefore required to indemnify SBPG

for the entire amount of the Pizani Judgments issued by the Louisiana courts, including

the principal, interest, attorney’s fees, and costs.” In plaintiff’s supplemental complaint,

plaintiff also argues that it is entitled to recover attorneys’ fees under the Equal Access to

Justice Act (EAJA), 28 U.S.C. § 1241 (2018), and that the court has jurisdiction “over this

action against the United States founded upon an express contract, an implied-in-fact

contract, or, in the alternative, an indemnity agreement between SBPG and the United

States, pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1).”

The court subsequently held a status conference and issued an Order stating that,

as discussed with the parties during the status conference, the stay in the above-

captioned case is lifted. Thereafter, defendant filed a motion to dismiss pursuant to Rule

12(b)(1) (2018) of the Rules of the United States Court of Federal Claims (RCFC), or, in

the alternative, motion to dismiss pursuant to RCFC 12(b)(6). Defendant argues that the

court should dismiss plaintiff’s complaint for lack of subject matter jurisdiction under

RCFC 12(b)(1) because plaintiff lacks standing, as plaintiff allegedly has not suffered a

cognizable injury. According to defendant, plaintiff has not yet paid the Louisiana State

Trial court’s December 20, 2016 judgment or the January 18, 2017 amended judgment,

and, that, in the Joint and Reciprocal Agreement, Ms. Juan and Ms. Pizani agreed not to

execute the judgment and amended judgment against St. Bernard Parish and to suspend

and forgo all collection rights. Additionally, defendant contends that plaintiff’s request for

an order directing defendant “to pay the judgment(s) issued in the Louisiana Court in favor

of Ms. Pizani and Ms. Juan” is a request for specific performance of the Amended

Cooperation Agreement, and “there is no jurisdiction over St. Bernard’s claim for equitable

relief.” Defendant also argues that the court should dismiss St. Bernard Parish’s

indemnification claim for lack of subject-matter jurisdiction “because the Tucker Act

21

extends only to express contracts or implied-in-fact contracts covering different subject

matter, St. Bernard has not plausibly alleged a Government representative with actual

authority to bind the United States to an indemnification agreement, and St. Bernard does

not claim actual, presently due money damages.”

Alternatively, defendant asserts that this court should dismiss plaintiff’s complaint

for failure to state a claim because plaintiff has not sufficiently alleged a duty, a breach of

duty, or damages because “[t]he Government did not make an open-ended commitment

to pay any judgment that might be rendered in favor of landowners like the Pizanis or

against St. Bernard in the future.” (emphasis in original). According to defendant, “[t]he

Government has complied with its obligation by depositing the estimate of fair market

value as just compensation in the condemnation action pending before the United States

District Court for the Eastern District of Louisiana.” Defendant also asserts in its motion

to dismiss that the court should dismiss plaintiff’s claim for costs and attorneys’ fees under

EAJA.

Plaintiff filed an opposition to defendant’s motion to dismiss, in which plaintiff

asserts it has standing in the above-captioned case because plaintiff “has been injured

because the Government failed to make a payment to a third party it contractually agreed

to make.” Plaintiff argues that this court has jurisdiction over its claim that defendant

asserts is a “claim for equitable relief,” as well as plaintiff’s alternative indemnification

claim. Plaintiff also contends that it has sufficiently alleged a claim for breach of contract.

In plaintiff’s response, plaintiff did not address defendant’s argument that this court should

dismiss plaintiff’s claims for attorneys’ fees and costs under EAJA. Subsequently,

defendant filed a reply in support of defendant’s motion to dismiss.

Thereafter, the court heard oral argument in the above-captioned case. At the oral

argument, counsel of record for plaintiff suggested that the parties submit supplemental

briefs addressing whether the United States’ condemnation action in the United States

District Court for the Eastern District of Louisiana fully compensated Ms. Juan and Ms.

Pizani for the government’s taking of Ms. Juan’s and Ms. Pizani’s land, including the

borrow material excavated by the United States Army Corps of Engineers in 2005. The

court subsequently issued an Order directing the parties to file supplemental briefs. The

court also issued an Order instructing the parties to submit supplemental briefs

addressing whether, under the terms of the Joint and Reciprocal Agreement, St. Bernard

Parish is liable to Ms. Juan and Ms. Pizani for the December 20, 2016 judgment and

January 18, 2017 amended judgment issued by the Louisiana State Trial court.

In plaintiff’s supplemental brief addressing whether the condemnation action in the

United States District Court for the Eastern District of Louisiana had fully compensated

Alfreda Melerine Pizani and Avis Melerine Juan, plaintiff argued that the condemnation

action did not compensate Ms. Juan or Ms. Pizani for the Army Corps’ excavation of the

borrow material taken. In defendant’s supplement brief, addressing the same topic,

defendant asserts that Ms. Juan and Ms. Pizani have been fully compensated through

the condemnation action in the United States District Court for the Eastern District of

Louisiana, or, alternatively, that the United States District Court for the Eastern District

22

will award Ms. Juan and Ms. Pizani just compensation for the borrow material.

In plaintiff’s supplemental brief addressing St. Bernard Parish’s liability under the

Joint and Reciprocal Agreement, plaintiff argues that St. Bernard Parish is liable for the

December 20, 2016 judgment and January 18, 2017 amended judgment. Plaintiff stated

that, “[i]n order to make that intent crystal clear, the parties to the Agreement have drafted

and executed an Addendum, which specifically sets forth their intent in entering into the

Agreement” and was attached to plaintiff’s supplemental brief addressing the Joint and

Reciprocal Agreement. In defendant’s supplemental brief, defendant argues that St.

Bernard Parish is not liable to Ms. Juan and Ms. Pizani for the December 20, 2016

judgment and January 18, 2017 amended judgment. With respect to the August 15, 2018

Addendum to the Joint and Reciprocal Agreement, defendant argued that the court

should not consider the Addendum because the Addendum is untimely and that the

Addendum “does not change the meaning of the Joint and Reciprocal Agreement.”

Previous Proceedings in Lake Borgne Basin Levee District, et al. v. United States, Case

No. 15-103C, and St. Bernard Parish Government, et al. v. United States, Case No. 15-

518C

In addition to the complaint filed in the above-captioned case, plaintiff St. Bernard

Parish previously had filed complaints in two additional cases, Lake Borgne Basin Levee

District, et al. v. United States, Case No. 15-103C, and St. Bernard Parish Government,

et al. v. United States, Case No. 15-518C, in this court, both of which were assigned to

the undersigned and were consolidated for case management purposes.12

St. Bernard Parish and Lake Borgne were the plaintiffs in both Lake Borgne Basin

Levee District, et al. v. United States, Case No. 15-103C, and St. Bernard Parish

Government, et al. v. United States, Case No. 15-518C. On March 15, 2016, the

undersigned issued an Opinion denying defendant’s motions to dismiss the complaints in

Lake Borgne Basin Levee District, et al. v. United States, Case No. 15-103C, and St.

Bernard Parish Government, et al. v. United States, Case No. 15-518C. See Lake Borgne

Basin Levee Dist., et al. v. United States, 127 Fed. Cl. 321, appeal dismissed, No. 16-

2624, 2016 WL 9665571 (Fed. Cir. Oct. 14, 2016). As noted in the court’s discussion of

the facts of those two cases in the court’s March 15, 2016 Opinion, Lake Borgne, St.

Bernard Parish, and the Army Corps had entered into an October 17, 2005 amended

cooperation agreement (the Lake Borgne Amended Agreement) concerning the Army

Corps’ repair of certain levees in St. Bernard Parish, which were part of the

Hurricane/Shore Protection Project for Lake Pontchartrain, Louisiana and Vicinity.13 See

12 Lake Borgne Basin Levee District, et al. v. United States, Case No. 15-103C, was

initially assigned to the undersigned on February 3, 2015. St. Bernard Parish

Government, et al. v. United States, Case No. 15-518C, initially was assigned to Judge

Block, before being reassigned to the undersigned May 29, 2015.

13In defendant’s reply in support of its motion to dismiss in the above-captioned case,

defendant states that the court’s Opinion in Lake Borgne Basin Levee District, et al. v.

United States, Case No. 15-103C, and St. Bernard Parish Government, et al. v. United

23

id. at 323-24, 326. On September 29, 2005, St. Bernard Parish had commandeered

property interests in land owned by Borgnemouth Realty Company, Ltd. (Borgnemouth)

and Olivier Plantation, LLC, Park Investments, Ltd., and Morning Park, Inc. (the Olivier

Plantation landowners). See id. at 328.

As noted in the undersigned’s discussion of the facts of Lake Borgne Basin Levee

District, et al. v. United States, Case No. 15-103C, and St. Bernard Parish Government,

et al. v. United States, Case No. 15-518C, the Olivier Plantation landowners filed a

complaint against St. Bernard Parish and Lake Borgne demanding compensation for the

removal of borrow material in Louisiana State court on May 18, 2007. See Lake Borgne

Basin Levee Dist., et al. v. United States, 127 Fed. Cl. at 328. Thereafter, the Louisiana

State court awarded the Olivier Plantation landowners $2,449,930.00 in damages and

$832,318.65 in attorneys’ fees and costs. See id. at 329. On November 13, 2008,

Borgnemouth filed a complaint in Louisiana State court against St. Bernard Parish and

Lake Borgne, which requested compensation for borrow material allegedly removed by

the Army Corps. See id. On June 20, 2013, the Louisiana State court entered judgment

in favor of Borgnemouth, holding St. Bernard and Lake Borgne liable, jointly and severally,

for compensation in the amount of $1,241,480.00, as well as for attorneys’ fees and costs

in the amount of $335,370.00. See id.

Subsequently, St. Bernard Parish and Lake Borgne filed complaints in this court

concerning the judgments the Louisiana State court had awarded both to the Olivier

Plantation landowners and Borgnemouth. See id. at 329-30. As noted in this court’s

March 15, 2016 Opinion:

St. Bernard and Lake Borgne filed an additional complaint in case number

15-518C on May 20, 2015 and filed an amended complaint in case number

15-518C on June 19, 2015. The amended complaint is almost identical to

the ones filed by St. Bernard and Lake Borgne in case number 15-103C,

but concerns the property allegedly taken from the Olivier Plantation

landowners and the state court judgment subsequently awarded against St.

Bernard and Lake Borgne in the Olivier Plantation case [in Case No.

109,272].

States, Case No. 15-518C, involved a different contract and that the plaintiffs had “alleged

that the Government had breached an October 17, 2005 contract to repair the Federal

levee. See Lake Borgne [Basin Levee Dist., et al. v. United States], 127 Fed. Cl. at 326.

This action alleges that the Government has breached the December 1, 2005

Cooperation Agreement to repair a non-Federal levee.” (emphasis and capitalization in

original). At the oral argument in the above-captioned case, counsel of record for

defendant asserted that, “[c]ritically, as a legal matter, our motion presents entirely

different issues than those Your Honor decided in Lake Borgne [Basin Levee Dist., et al.

v. United States, 127 Fed. Cl. 321],” and that, “in that case, for whatever reason -- prior

counsel was involved, I was not -- the United States did not decide to dispute breach or

damages once private LERD was determined -- once the land was determined to be

private LERD.”

24

Id. at 330. In the complaints filed in this court, St. Bernard Parish and Lake Borgne alleged

that the United States had breached the Lake Borgne Amended Agreement by failing to

compensate the Olivier Plantation landowners and Borgnemouth for the borrow material

allegedly removed by the Army Corps. See id. Alternatively, St. Bernard Parish and Lake

Borgne contended that the language in the Lake Borgne Amended Agreement between

Lake Borgne, St. Bernard Parish, and the Army Corps constituted an indemnification

agreement. See id. The United States moved to dismiss the complaints in both Lake

Borgne Basin Levee District, et al. v. United States, Case No. 15-103C, and St. Bernard

Parish Government, et al. v. United States, Case No. 15-518C. See Lake Borgne Basin

Levee Dist., et al. v. United States, 127 Fed. Cl. at 330.

In the court’s March 15, 2016 Opinion in Lake Borgne Basin Levee District, the

court rejected the United States’ argument that Lake Borgne’s and St. Bernard Parish’s

claims were barred by the statute of limitations. See Lake Borgne Basin Levee Dist., 127

Fed. Cl. at 335-36. The court in Lake Borgne Basin Levee District also determined that

the court had jurisdiction to consider the attorneys’ fees sought by Lake Borgne and St.

Bernard Parish, which had been awarded against Lake Borgne and St. Bernard Parish

as part of the judgments issued by the Louisiana State courts. See id. at 338-39. This

court in Lake Borgne Basin Levee District also found that Lake Borgne and St. Bernard

Parish had sufficiently alleged a breach of the Lake Borgne Amended Agreement. See

id. at 343. In Lake Borgne Basin Levee District, this court stated:

The Amended [Lake Borgne] Cooperation Agreement thus envisioned a two

step process: 1) the Army Corps would provide plaintiffs with a description

of the LERD it needed; and 2) the plaintiffs would provide the Army Corps

with right of entry to this LERD. The parties’ obligations under the Amended

Cooperation Agreement, therefore, attached to the LERD included in the

Army Corps’ description.

Id. at 340. This court in Lake Borgne Basin Levee District concluded:

Because there is no evidence in the record at this time that demonstrates

that either of the plaintiffs [Lake Borgne and St. Bernard Parish] ever owned,

claimed or controlled the LERD at issue prior to commencement of the state

court Borgnemouth and Olivier Plantation cases, the court finds that

plaintiffs have sufficiently alleged that the LERD at issue was Private, rather

than Public Sponsor LERD.

Lake Borgne Basin Levee Dist., et al. v. United States, 127 Fed. Cl. at 344.

This court in Lake Borgne Basin Levee District deferred ruling on the United States’

motion to dismiss the Lake Borgne’s and St. Bernard Parish’s claim that the Lake Borgne

Amended Agreement constituted an indemnity agreement. See id. at 345. Specifically,

the court stated:

25

Although plaintiffs allege in their complaints that “the language in the

Amended Cooperation Agreement” constituted an indemnification

agreement, they did not specify, either in their complaints or in their

oppositions to defendant’s motion to dismiss, which language in the

Amended Cooperation Agreement allegedly did so. Instead, plaintiffs

waited until the very end of oral argument to even remotely discuss for the

first time their argument that their alleged indemnification agreement was

created by the statement in Article III.B of the Amended Cooperation

Agreement that “the Government in the name of the Public Sponsors,

identify [sic] and provide [sic] just compensation to the owners of a

compensable interest in the Private LERD.”

Id. (alterations and capitalization in original).

Subsequently, on May 24, 2016, Lake Borgne and St. Bernard Parish moved for

summary judgment against the United States in both Lake Borgne Basin Levee District,

et al. v. United States, Case No. 15-103C, and St. Bernard Parish Government, et al. v.

United States, Case No. 15-518C. On June 24, 2016, the United States filed responses

to the plaintiffs’ motions for summary judgment, agreeing that “[t]here are no remaining

issues precluding entry of judgment in favor of plaintiffs on their breach of contract claim

following this Court’s decision on our motion to dismiss.” (internal references omitted). On

July 8, 2016, the parties in both cases filed joint status reports agreeing that Lake Borgne

and St. Bernard Parish were “entitled to receive $4,423,753.87 as full and complete

satisfaction of any and all claims that have been made or could be made in the captioned

cases.”

On July 12, 2016, the court issued an unreported Order granting Lake Borgne’s

and St. Bernard Parish’s motions for summary judgment in both Lake Borgne Basin Levee

District, et al. v. United States, Case No. 15-103C, and St. Bernard Parish Government,

et al. v. United States, Case No. 15-518C. In the July 12, 2016 Order, the court stated:

It is undisputed that defendant has failed to provide just compensation to

the owners of the Private LERD at issue in the above-captioned cases,

resulting in outstanding judgements [issued by the Louisiana State courts]

against Lake Borgne and St. Bernard for takings in the Louisiana state court

Borgnemouth and Olivier Plantation cases. By failing to compensate the

landowners involved in the state court Olivier Plantation and Borgnemouth

cases, defendant breached its obligations under Article III.B of the Amended

[Lake Borgne] Cooperation agreement. Plaintiffs, therefore, are entitled to

summary judgment with regard to their breach of contract claims in both of

the above-captioned cases.

(internal reference omitted). On July 13, 2016, the Clerk of the Court of the United States

Court of Federal Claims entered judgment in favor of Lake Borgne and St. Bernard Parish,

which stated that Lake Borgne and St. Bernard Parish were to “recover of and from the

United States the amount of $1,655,380.83 as to Case No. 15-103C and $2,768,373.04

26

as to Case No. 15-518C.”

On September 12, 2016, the United States filed a notice of appeal in both Lake

Borgne Basin Levee District, et al. v. United States, Case No. 15-103C, and St. Bernard

Parish Government, et al. v. United States, Case No. 15-518C. On October 11, 2016, the

United States filed an unopposed motion to dismiss the appeals, which the United States

Court of Appeals for the Federal Circuit granted.

DISCUSSION

Standing

In the case currently before the court, defendant argues that plaintiff lacks standing

because St. Bernard Parish has not pled that it paid the Louisiana State Trial court

judgments and, in the January 20, 2017 Joint and Reciprocal Agreement, Ms. Juan and

Ms. Pizani “expressly ‘agree[d] not to execute against St. Bernard’ and ‘to suspend and

forego all collection rights.’” (alteration in original) (quoting the Joint and Reciprocal

Agreement). Defendant asserts that “St. Bernard had not suffered an injury in fact as of

its commencement of this action and is without the standing required to bring this action.”

According to defendant:

The problem is not that St. Bernard has agreed to pay any recovery from

this action to the Pizanis pursuant to the Joint and Reciprocal Agreement—

it is that St. Bernard has not suffered an injury in fact because it had not

paid the state court judgment when it filed this action and will not pay the

state court judgment under the Joint and Reciprocal Agreement.

Quoting Paradise Creations, Inc. v. UV Sales, Inc., 315 F.3d 1304, 1310 (Fed. Cir. 2003),

defendant argues that “the lack of a cognizable injury is ‘a defect in standing [that] cannot

be cured after the inception of the lawsuit.’” (alteration in original).

Plaintiff contends that “[t]his court has found constitutional standing in several

cases similar to this one, in which the Plaintiff brought an action against the Government

seeking a sum of money that would be passed on to a third party.” Plaintiff also argues

that it has standing and “has been injured because the Government failed to make a

payment to a third party it contractually agreed to make.” Plaintiff alleges that “it has been

cast in judgment for an amount the Government agreed to pay by virtue of the Amended

Cooperation Agreement.” In plaintiff’s opposition to defendant’s motion to dismiss, plaintiff

did not address whether standing must be determined at the time of the original complaint

or whether a defect in standing subsequently can be “cured.” At the oral argument,

however, plaintiff argued that “I have never heard of that [standing] as something that

could not be cured even if it was a problem through amendment.”

Additionally, in plaintiff’s opposition to defendant’s motion to dismiss, plaintiff

asserts that “the Landowners have recorded their judgments in the St. Bernard Parish

Mortgage Office,” which plaintiff asserts “could have a negative impact on St. Bernard’s

27

credit rating, its ability to borrow money, and the interest rate it has to pay to take out a

loan.” Defendant, however, notes that Ms. Juan and Ms. Pizani did not record the

judgments until May 8, 2017, which occurred after plaintiff’s supplemental complaint was

filed on April 28, 2017, and defendant argues that the recordation of the judgments is

“neither concrete and particularized nor actual and imminent, and therefore cannot

support standing.”

“Standing is ‘a threshold inquiry that in no way depends on the merits of the case.’”

Reoforce, Inc. v. United States, 853 F.3d 1249, 1264 (Fed. Cir.) (quoting Izumi Seimitsu

Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 31 (1993) (per curiam)), cert.

denied, 138 S. Ct. 517 (2017); see also Starr Int’l Co., Inc. v. United States, 856 F.3d 953,

963 (Fed. Cir. 2017) (citation omitted), cert. denied, 138 S. Ct. 1324 (2018); Phigenix, Inc.

v. Immunogen, Inc., 845 F.3d 1168, 1173 (Fed. Cir. 2017) (citing Massachusetts v. Envtl.

Prot. Agency, 549 U.S. 497, 505 (2007)); Canadian Lumber Trade All. v. United States,

517 F.3d 1319, 1330 (Fed. Cir.), cert. denied, 555 U.S. 819 (2008); Sicom Sys., Ltd. v.

Agilent Techs., Inc., 427 F.3d 971, 975 (Fed. Cir. 2005) (“Standing to sue is a threshold

requirement in every federal action.”); Myers Investigative and Sec. Servs., Inc. v. United

States, 275 F.3d 1366, 1369 (Fed. Cir. 2002) (citing Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 102-04 (1998)). The United States Court of Federal Claims, an Article

I tribunal, applies the same standing requirements as other federal tribunals created

under Article III of the United States Constitution. See Weeks Marine, Inc. v. United

States, 575 F.3d 1352, 1359 (Fed. Cir. 2009) (quoting Anderson v. United States, 344

F.3d 1343, 1350 n.1 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2003)); see

also Starr Int’l Co., Inc. v. United States, 856 F.3d at 964 (citation omitted); Tinton Falls

Lodging Realty, LLC v. United States, 800 F.3d 1353, 1364 n.4 (Fed. Cir. 2015) (citation

omitted); Abou-el-Seoud v. United States, 136 Fed. Cl. 537, 555 (2018) (“The standing

requirements, derived from Article III of the United States Constitution, also apply to the

United States Court of Federal Claims.” (citing Anderson v. United States, 344 F.3d at

1350 n.1)); Square One Armoring Serv., Inc. v. United States, 123 Fed. Cl. 309, 321

(2015) (“Although the Court of Federal Claims is not an Article III court, it is well-

established that various justiciability doctrines of Article III apply to this court.” (citations

omitted)).

The United States Supreme Court has stated that, in order to establish standing,

a plaintiff

must show (1) it has suffered an “injury in fact” that is (a) concrete and

particularized and (b) actual or imminent, not conjectural or hypothetical; (2)

the injury is fairly traceable to the challenged action of the defendant; and

3) it is likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)

(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-561 (1992)); see also Lexmark Int’l,

Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (“The plaintiff must

have suffered or be imminently threatened with a concrete and particularized ‘injury in

28

fact’ that is fairly traceable to the challenged action of the defendant and likely to be

redressed by a favorable judicial decision.” (quoting Lujan v. Defs. of Wildlife, 504 U.S. at

560)); Reoforce, Inc. v. United States, 853 F.3d at 1263 (quoting Steel Co. v. Citizens for

a Better Env’t, 523 U.S. at 103); Apotex, Inc. v. Daiichi Sankyo, Inc., 781 F.3d 1356, 1362

(Fed. Cir.) (citation omitted), cert. denied, 136 S. Ct. 481 (2015); Consumer Watchdog v.

Wis. Alumni Research Found., 753 F.3d 1258, 1260-61 (Fed. Cir. 2014) (citations

omitted), cert. denied, 135 S. Ct. 1401 (2015). “The party invoking federal jurisdiction

bears the burden of establishing these elements.” Lujan v. Defs. of Wildlife, 504 U.S. at

561 (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990); and Warth v. Seldin, 422

U.S. 490, 508 (1975)); see also Madstad Eng’g, Inc. v. U.S. Patent & Trademark Office,

756 F.3d 1366, 1371 (Fed. Cir. 2014) (citing Lujan v. Defs. of Wildlife, 504 U.S. at 561),

cert. denied, 135 S. Ct. 1398 (2015); Sicom Sys., Ltd. v. Agilent Techs., Inc., 427 F.3d

971, 976 (Fed. Cir. 2005) (“The party bringing the action bears the burden of establishing

that it has standing.” (citation omitted)).

Regarding defendant’s argument that standing “cannot be cured after the inception

of the lawsuit,” defendant notes that, in Paradise Creations, Inc. v. UV Sales, Inc., which

the court notes involved a patent infringement claim, the United States Court of Appeals

for the Federal Circuit stated that “a defect in standing cannot be cured after the inception

of the lawsuit.” See Paradise Creations, Inc. v. UV Sales, Inc., 315 F.3d at 1310. The

United States Court of Appeals for the Federal Circuit, however, specifically had stated

earlier in the Opinion in Paradise Creations, Inc. v. UV Sales, Inc. that “this court has

determined that in order to assert standing for patent infringement, the plaintiff must

demonstrate that it held enforceable title to the patent at the inception of the lawsuit.” Id.

at 1309 (emphasis in original) (citing Lans v. Digital Equip. Corp., 252 F.3d 1320, 1328

(Fed. Cir. 2001); Enzo APA & Son, Inc. v. Geapag A.G., 134 F.3d 1090, 1092 (Fed. Cir.

1998); Jim Arnold Corp. v. Hydrotech Sys., Inc., 109 F.3d 1567, 1572 (Fed. Cir. 1997);

and Gaia Techs., Inc. v. Reconversion Techs., Inc., 93 F.3d 774, 778 (Fed. Cir. 1996),

amended on other grounds, 104 F.3d 1296 (Fed. Cir. 1996), withdrawing mandate in part,

104 F.3d 1298 (Fed. Cir.), reh’g denied and suggestion for reh’g en banc declined (Fed.

Cir. 1997)). Indeed, regarding its patent jurisdiction, the United States Court of Appeals

for the Federal Circuit has indicated that:

In the area of patent infringement, this court has held that if the original

plaintiff lacked Article III initial standing, the suit must be dismissed, and the

jurisdictional defect cannot be cured by the addition of a party with standing,

nor by the subsequent purchase of an interest in the patent in suit.

Schreiber Foods, Inc. v. Beatrice Cheese, Inc., 402 F.3d 1198, 1203 (Fed. Cir. 2005)

(citations omitted); see also Alps S., LLC v. Ohio Willow Wood Co., 787 F.3d 1379, 1385

(Fed. Cir. 2015) (“The party asserting patent infringement is ‘required to have legal title

to the patents on the day it filed the complaint and that requirement can not be met

retroactively.’” (quoting Abraxis Bioscience, Inc. v. Navinta LLC, 625 F.3d 1359, 1366

(Fed. Cir. 2010), reh’g and reh’g en banc denied, 672 F.3d 1239 (Fed. Cir.), cert. denied,

565 U.S. 825 (2011))), cert. denied, 136 S. Ct. 897 (2016).

29

In Gaia Technologies, Inc. v. Reconversion Technologies, Inc., which also involved

patent and trademark claims, the United States Court of Appeals for the Federal Circuit

stated:

If Gaia [which was the plaintiff in the District Court] can prove that it was the

assignee of the Intellectual Property at the time the suit was filed, Gaia has

standing to sue for patent infringement under 35 U.S.C. § 281 (1994) as a

patentee, see 35 U.S.C. § 100(d) (1994) (noting that “patentee” includes

those who are successors in title to the patentee), and for trademark

infringement under 15 U.S.C. § 1114 as a registrant, see 15 U.S.C. § 1127

(1994) (noting that “registrant” embraces the legal assigns of the registrant).

Absent ownership of the Intellectual Property, Gaia lacked standing to sue

on the patent and trademark infringement claims.

Gaia Techs., Inc. v. Reconversion Techs., Inc., 93 F.3d at 777 (capitalization in original).

The Federal Circuit further stated:

“As a general matter, parties should possess rights before seeking to have

them vindicated in court. Allowing a subsequent assignment to

automatically cure a standing defect would unjustifiably expand the number

of people who are statutorily authorized to sue. Parties could justify the

premature initiation of an action by averring to the court that their standing

through assignment is imminent. Permitting non-owners and licensees the

right to sue, so long as they eventually obtain the rights they seek to have

redressed, would enmesh the judiciary in abstract disputes, risk multiple

litigation, and provide incentives for parties to obtain assignments in order

to expand their arsenal and the scope of litigation. Inevitably, delay and

expense would be the order of the day.”

Id. at 780 (quoting Procter & Gamble Co. v. Paragon Trade Brands, Inc., 917 F. Supp.

305, 310 (D. Del. 1995)). The Federal Circuit, therefore, articulated a reason for requiring

standing at the inception of patent infringement and trademark infringement claims. See

id.

Commentators have noted that “a special rule appears to exist in patent cases on

the issue of standing. Namely, filing suit prior to obtaining sufficient rights in the patent to

have standing results in dismissal . . . .” Timothy R. DeWitt & Tamara S. Klein, A Fatal

Mistake: Lack of Standing at the Time of Filing A Patent Infringement Complaint Results

in Dismissal with Prejudice, 27 AIPLA Q.J. 189, 216-17 (1999); see also Paul R.

Gugliuzza, The Federal Circuit As A Federal Court, 54 W M. & MARY L. REV. 1791, 1844

(2013) (stating that the United States Court of Appeals for the Federal Circuit “gradually

expanded the category of procedural issues ‘unique’ to patent law, applying its own law

to the due process component of personal jurisdiction, the standard for injunctive relief,

standing, and the meaning of ‘prevailing party’ under the Federal Rules of Civil

Procedure” (footnotes omitted)). Moreover, the United States Court of Appeals for the

Federal Circuit has stated that, “[b]efore a court may exercise jurisdiction over a patent

30

infringement action, it must be satisfied that, ‘in addition to Article III standing, the plaintiff

also possesse[s] standing as defined by § 281 of the Patent Act.’” Drone Techs., Inc. v.

Parrot S.A., 838 F.3d 1283, 1292 (Fed. Cir. 2016) (second alteration in original) (quoting

Alps S., LLC v. Ohio Willow Wood Co., 787 F.3d at 1382). Defendant, however, has not

put forth any justification for extending the requirements articulated for standing in a

patent infringement case to a non-patent case such as the above-captioned case.

Moreover, the United States Court of Appeals for the Federal Circuit has permitted

parties to remedy jurisdictional defects with supplemental complaints in other situations

not involving standing in a patent case. In Prasco, LLC v. Medicis Pharmaceutical Corp.,

which involved an appeal of a decision by the United States District Court for the Southern

District of Ohio, the United States Court of Appeals for the Federal Circuit stated that

“[t]his is a patent case concerning the scope of our jurisdiction over declaratory judgment

actions.” Prasco, LLC v. Medicis Pharm. Corp., 537 F.3d 1329, 1333 (Fed. Cir. 2008).

Specifically, the Federal Circuit in Prasco, LLC v. Medicis Pharmaceutical Corp. stated

that “[t]he only issue on appeal is whether the facts alleged in this case establish that

there is a justiciable case or controversy within the meaning of the Declaratory Judgment

Act and Article III of the Constitution.” Id. at 1335. The United States Court of Appeals for

the Federal Circuit stated that, “[a]s an initial matter,” the parties disputed whether

allegations in the appellant’s “Amended Complaint that concern actions taken after the

filing of the initial complaint can be used to establish subject matter jurisdiction.” Id. at

1337. In Prasco, LLC, the United States Court of Appeals for the Federal Circuit stated:

Because the Amended Complaint included allegations regarding events

that happened after the first complaint, technically it is a supplemental

complaint, not an “amended complaint.” See Fed.R.Civ.P. 15(d)[14]

(allowing a party to “serve a supplemental pleading setting forth

transactions or occurrences or events which have happened since the date

of the pleading sought to be supplemented”); 6A Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1504,

at 184 (“Parties and courts occasionally confuse supplemental pleadings

with amended pleadings and mislabeling is common. However, these

misnomers are not of any significance and do not prevent the court from

considering a motion to amend or supplement under the proper portion of

Rule 15.”).

Rule 15(d) expressly allows for supplemental complaints to “cure” defects

in the initial complaint. Fed.R.Civ.P. 15(d) (“Permission [to serve a

supplemental pleading] may be granted even though the original pleading

is defective in its statement of a claim for relief or defense.”). The Supreme

Court has confirmed that supplemental pleadings can be used to cure

subject matter jurisdiction deficiencies. See Mathews v. Diaz, 426 U.S. 67,

75, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (explaining that there was “little

14 The language in Rule 15(d) of the Federal Rules of Civil Procedure is identical to the

language in RCFC 15(d) (2018).

31

difficulty” in a party’s failure to file an application that was a “nonwaivable

condition of jurisdiction” until after he was joined in the action because “[a]

supplemental complaint in the District Court would have eliminated this

jurisdictional issue”); see also 6A Charles Alan Wright, Arthur R. Miller &

Mary Kay Kane, Federal Practice and Procedure § 1505, at 191 (explaining

that, prior to the 1963 amendment to Rule 15(d), some courts had not

allowed curing of defects through supplemental complaints, but that the

addition of the second sentence to 15(d) in 1963 removed “any uncertainty

on the point”).

Thus, while “[l]ater events may not create jurisdiction where none existed at

the time of filing,” the proper focus in determining jurisdiction are “the facts

existing at the time the complaint under consideration was filed.” GAF Bldg.

Materials Corp. v. Elk Corp., 90 F.3d 479, 483 (Fed. Cir. 1996) (emphasis

added) (quoting Arrowhead Indus. Water, Inc. v. Ecolochem Inc., 846 F.2d

731, 734 n.2 (Fed. Cir. 1988)); see also Rockwell Int’l Corp. v. United

States, 549 U.S. 457, 127 S.Ct. 1397, 1409, 167 L.Ed.2d 190 (2007)

(“[W]hen a plaintiff files a complaint in federal court and then voluntarily

amends the complaint, courts look to the amended complaint to determine

jurisdiction.”); Connectu LLC v. Zuckerberg, 522 F.3d 82 (1st Cir. 2008). As

the district court accepted Prasco’s Amended Complaint, it is the Amended

Complaint that is currently under consideration, and it is the facts alleged in

this complaint that form the basis for our review.

Id. (alterations, except for the first alteration, and emphasis in original); see also Rockwell

Int’l Corp. v. United States, 549 U.S. at 473-74; Black v. Sec’y of Health & Human Servs.,

93 F.3d 781, 790 (Fed. Cir. 1996) (“[D]efects in a plaintiff’s case—even jurisdictional

defects—can be cured while the case is pending if the plaintiff obtains leave to file a

supplemental pleading under Rule 15(d) reciting post-filing events that have remedied the

defect.” (citations omitted)).

In a footnote in Prasco, LLC, the United States Court of Appeals for the Federal

Circuit stated that “[i]t is Rule 15(d), not Rule 15(a), that governs supplemental

complaints, even if the complaint is mislabeled as an amended complaint.” Prasco, LLC

v. Medicis Pharm. Corp., 537 F.3d at 1337 n.5; see also Idaho Power Co. v. United States,

105 Fed. Cl. 141, 146 n.4 (2012) (citation omitted); Petro-Hunt, L.L.C. v. United States,

105 Fed. Cl. 37, 44 (2012) (Allegra, J.) (“Because these events occurred after the filing

of plaintiff’s original complaint . . . it must be viewed not as an amended complaint under

RCFC 15(c), but rather as a supplemental complaint under RCFC 15(d).”), aff’d, 862 F.3d

1370 (Fed. Cir. 2017), cert. denied, 138 S. Ct. 1989 (2018); Cent. Pines Land Co. v.

United States, 99 Fed. Cl. 394, 403 (2011) (“[T]he court finds that although the plaintiffs

styled the January 6, 2003 as a “First Amended and Restated Complaint,” because this

complaint contains additional allegations concerning events that occurred after the

plaintiffs filed their initial complaint . . . the 2003 complaint is a de facto supplemental

complaint.” (citing RCFC 15(d)), aff’d, 697 F.3d 1360 (Fed. Cir. 2012).

32

In Northstar Financial Advisors Inc. v. Schwab Investments, in an appeal from the

United States District Court for the Northern District of California, the United States Court

of Appeals for the Ninth Circuit considered whether standing could be established after

the original complaint was filed. See Northstar Fin. Advisors Inc. v. Schwab Invs., 779

F.3d 1036, 1043 (9th Cir.), amended on denial of reh’g and reh’g en banc (9th Cir. 2015).

The plaintiff, Northstar Financial Advisors, Inc. (Northstar), filed a class action complaint

on behalf of a Schwab Total Bond Market Fund (the Fund). See id. At the time Northstar

filed its complaint, Northstar did not own any shares in the Fund. See id. The United

States Court of Appeals for the Ninth Circuit stated that the District Court judge “dismissed

Northstar’s complaint for lack of standing with a suggestion that this defect could be cured

by filing an amended complaint.” Id. (emphasis in original) (citation omitted).

Subsequently, Northstar obtained an assignment of a claim from a client-

shareholder of the Fund and filed an “amended complaint,” which the United States

District Court for the Northern District of California treated as a supplemental complaint.

See id. The United States Court of Appeals for the Ninth Circuit stated:

Rule 15(d) permits a supplemental pleading to correct a defective complaint

and circumvents “the needless formality and expense of instituting a new

action when events occurring after the original filing indicated a right to

relief.” Wright, Miller, & Kane, Federal Practice and Procedure: Civil 3d

§ 1505, pgs. 262-63. Moreover, “[e]ven though [Rule 15(d) ] [sic] is phrased

in terms of correcting a deficient statement of ‘claim’ or a ‘defense,’ a lack

of subject-matter jurisdiction should be treated like any other defect for

purposes of defining the proper scope of supplemental pleading.” Id. at

§ 1507, pg. 273.

Northstar Fin. Advisors Inc. v. Schwab Invs., 779 F.3d at 1044 (first and second alteration

in original). The United States Court of Appeals for the Ninth Circuit determined that the

Judge in United States District Court for the Northern District of California “did not abuse

her discretion in permitting Northstar to file a supplemental pleading after a post-complaint

assignment from a party that clearly had standing,” and that, “by filing a supplemental

pleading alleging a post-complaint assignment from a party that clearly had standing,

Northstar has standing to prosecute this case.” Id. at 1048, 1065. Moreover, other courts

have determined that the court should look to the complaint currently under consideration

when determining jurisdictional standing. See G&E Real Estate, Inc. v. Avison Young-

Washington, D.C., LLC, 168 F. Supp. 3d 147, 160 (D.D.C.) (“[S]tanding may be assessed

by the timing of the filing of the operative complaint in an action—whether the original

complaint or a supplemental or amended complaint.”), recons. denied, 201 F. Supp. 3d

50 (D.D.C. 2016); see also Travelers Ins. Co. v. 633 Third Assocs., 973 F.2d 82, 88 (2d

Cir. 1992) (permitting a plaintiff to file a supplemental complaint and stating that “[i]f the

complaint as amended alleges sufficient facts to support the requisite injury . . . plaintiff

will have established standing to sue”); Perry v. Vill. of Arlington Heights, 180 F.R.D. 334,

337 (N.D. Ill. 1998) (“Among other things, a supplemental complaint may correct

deficiencies such as lack of standing.” (citing West v. Sullivan, 1990 WL 107862, at *3

33

(E.D. Pa. July 26, 1990))), aff’d, 186 F.3d 826 (7th Cir. 1999).15

In the above-captioned case currently under consideration, on September 25,

2015, plaintiff St. Bernard Parish filed its initial complaint, in which plaintiff stated that Ms.

Pizani’s and Ms. Juan’s lawsuit was pending before the Louisiana State Trial court. On

April 28, 2017, plaintiff filed a “MOTION FOR LEAVE TO FILE FIRST SUPPLEMENTAL

AND AMENDING COMPLAINT” pursuant to RCFC 15, which the court granted, and filed

its “FIRST SUPPLEMENTAL AND AMENDING COMPLAINT.” (capitalization in original).

In plaintiff’s filing identified as its First Supplemental and Amending Complaint, plaintiff

stated that the Louisiana State Trial court had issued a judgment against plaintiff in

December 2016 and an amended judgment against plaintiff in January 2017, both of

which occurred after plaintiff had filed its original complaint in this court on September 25,

2015. Although plaintiff did not indicate under which subsection of RCFC 15 plaintiff was

filing its April 28, 2017 submission, because plaintiff labeled its April 28, 2017 filing as a

“FIRST SUPPLEMENTAL AND AMENDING COMPLAINT” and because the filing set out

a “transaction, occurrence, or event that happened after the date of the pleading to be

supplemented,” plaintiff’s April 28, 2017 filing will be treated by this court as a

supplemental complaint under RCFC 15(d).16 (capitalization in original).

15 In defendant’s motion to dismiss, defendant cites to Rothe Development Corp. v.

Department of Defense, 413 F.3d 1327 (Fed. Cir. 2005), in which the United States Court

of Appeals for the Federal Circuit stated that “‘standing is to be determined as of the

commencement of suit.’” See id. at 1334 (quoting Lujan v. Defs. of Wildlife, 504 U.S. at

570 n.5) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. at

189-93; Paradise Creations, Inc. v. UV Sales, Inc., 315 F.3d at 1309; and Becker v. Fed.

Election Comm’n, 230 F.3d 381, 386 n.3 (1st Cir. 2000)). In Rothe Development Corp. v.

Department of Defense, however, the plaintiff had not filed a supplemental complaint.

See Rothe Dev. Corp. v. Dep’t of Def., 413 F.3d at 1334. In that case, the United States

Court of Appeals for the Federal Circuit did not analyze whether a court should analyze

a plaintiff’s standing by examining the original complaint or a supplemental complaint

under RCFC 15(d), and none of the cases cited by the Federal Circuit address whether

a supplemental complaint could cure a defect in standing, if such a standing defect existed

at the time the original complaint was filed. See Rothe Dev. Corp. v. Dep’t of Def., 413

F.3d at 1334.

16 The relevant portion of RCFC 15(d) states:

On motion and reasonable notice, the court may, on just terms, permit a

party to serve a supplemental pleading setting out any transaction,

occurrence, or event that happened after the date of the pleading to be

supplemented. The court may permit supplementation even though the

original pleading is defective in stating a claim or defense.

RCFC 15(d).

34

Liability under the Joint and Reciprocal Agreement

In plaintiff’s supplemental complaint in this court, plaintiff states that the Louisiana

State Trial court entered judgment and entered an amended judgment against plaintiff in

favor of Ms. Juan and Ms. Pizani. Defendant, however, asserts that, under the terms of

the January 20, 2017 Joint and Reciprocal Agreement, Ms. Juan and Ms. Pizani cannot

enforce the December 20, 2016 judgment and January 18, 2017 amended judgment

against St. Bernard Parish even if St. Bernard Parish is “unsuccessful” in the above-

captioned case. According to defendant, in the Joint and Reciprocal Agreement, Ms. Juan

and Ms. Pizani “agreed that they would take action against St. Bernard if and only if ‘St.

Bernard collects funds from the United States in payment of the Judgement and fails to

pay the funds to Plaintiffs within 60 days of receipt.’” (quoting the Joint and Reciprocal

Agreement). According to defendant, this court should not consider the August 15, 2018

Addendum to the Joint and Reciprocal Agreement because the Addendum was not timely

presented and is extrinsic evidence that may not be used to interpret the terms of an

unambiguous contract. Defendant argues that the Addendum “flatly contradicts the plain

text of the Joint and Reciprocal Agreement by providing that the Pizanis’ recovery from

St. Bernard would not be limited to what St. Bernard recovers from the United States in

this action.” (emphasis in original).

Plaintiff, however, asserts that St. Bernard Parish would remain liable to Ms. Juan

and Ms. Pizani for the December 20, 2016 judgment and January 18, 2017 amended

judgment “in the event SBPG was unsuccessful in recovering the compensation owed by

the United States.” According to plaintiff:

While the parties believed that this was clear from the Agreement, out of an

abundance of caution and to confirm their intent they have drafted and

executed the attached Addendum [signed by Ms. Juan, Ms. Pizani, and St.

Bernard Parish Government] so as to avoid any ambiguity.

The United States will likely attempt to ascribe ambiguity to the third

sentence of the third full paragraph of the Agreement, which states:

“Plaintiffs agree not to execute against St. Bernard unless St. Bernard

collects funds from the United States in payment of the Judgement and fails

to pay the funds to Plaintiffs within 60 days of receipt.” However, this attempt

would be misplaced. The language of the third full paragraph is intended to

be read sequentially, such that each sentence makes reference to the

preceding sentence(s) and should be read in that context. Accordingly, the

intent of this sentence was to cover the post-settlement or post-final

judgment period of the collection proceedings against the United States.

This sentence was a necessary compromise between the parties as St.

Bernard was concerned about delays in appropriations from the United

States to fund a final judgment after finality of the collection proceedings,

while Plaintiffs wanted a definitive and fixed period of time for St. Bernard

to pay Plaintiffs’ Judgement once St. Bernard received sums from the

United States --- whether by settlement or payment of a final judgment.

35

Under Louisiana State law,17 Louisiana State courts apply the general contract

interpretation rules contained in the articles of the Louisiana Civil Code. See Landis

Constr. Co. v. St. Bernard Par., 151 So. 3d 959, 962 (La. Ct. App. 2014), writ denied, 159

So. 3d 467 (La. 2015); see also Bartlett Constr. Co. v. St. Bernard Par. Council, 763 So.

2d 94, 98 (La. Ct. App.), writ denied, 773 So. 2d 142 (La. 2000). Under article 2045 of the

Louisiana Civil Code, a court must attempt to ascertain the common intention of the

parties executing the contract at issue. See La. Civ. Code art. 2045 (2019); see also

Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 112 So. 3d 187, 192 (La. 2013)

(“‘Contracts have the effect of law for the parties’ and the ‘[i]nterpretation of a contract is

the determination of the common intent of the parties.’” (alteration in original) (quoting

Marin v. Exxon Mobil Corp., 48 So. 3d 234, 258 (La. 2010))). The common intent of the

parties is to be determined “in accordance with the general, ordinary, plain and popular

meaning of the words used in the contract.” Clovelly Oil Co., LLC v. Midstates Petroleum

Co., LLC, 112 So. 3d at 192 (citing Prejean v. Guillory, 38 So. 3d 274, 279 (La.), reh’g

denied, 45 So. 3d 1035 (La. 2010)). “When the words of a contract are clear and explicit

and lead to no absurd consequences, no further interpretation may be made in search of

the parties’ intent.” La. Civ. Code art. 2046 (2019); see also Prejean v. Guillory, 38 So.

3d at 279 (quoting La. Civ. Code art. 2046); Hoffman v. Travelers Indem. Co. of Am., 144

So. 3d 993, 998 (La. Ct. App. 2014). As such, under Louisiana State law, contracts “are

17 The United States Court of Appeals for the Federal Circuit has looked to State contract

law when analyzing a contract between parties other than the United States. See Grav v.

United States, 886 F.2d 1305, 1308 (Fed. Cir.) (analyzing a contract between two private

parties for the sale of seven milk cows under South Dakota State contract law), reh’g

denied and suggestion for reh’g en banc declined (Fed. Cir. 1989); see also Verinata

Health, Inc. v. Ariosa Diagnostics, Inc., 830 F.3d 1335, 1338 (Fed. Cir. 2016) (stating that

arbitration agreements between private parties are “governed by state contract law,

except to the extent state law is displaced by federal substantive law regarding arbitration”

(internal quotation marks and citation omitted)). Plaintiff has not indicated under which

State law it believes the court should analyze the Joint and Reciprocal Agreement and

the Addendum, but defendant has argued that, “[w]hile Federal law governs the

Cooperation Agreement between the Government and St. Bernard, the Joint and

Reciprocal Agreement between St. Bernard and the Pizanis is presumably governed by

Louisiana state law.” (citation and internal references omitted).

The Joint and Reciprocal Agreement and the Addendum were executed in Chalmette,

Louisiana. Under Louisiana State law, a contract “is governed by the law of the state

whose policies would be most seriously impaired if its law were not applied to that issue.”

La. Civ. Code art. 3537 (2018). Because both documents were executed in Chalmette,

Louisiana, by Ms. Juan and Ms. Pizani as the owners of the impacted land located in

Louisiana, and St. Bernard Parish, Louisiana; the documents involve LERD taken in

Louisiana; and that previous relevant judicial proceedings have taken place in the

Louisiana State Trial court and the Eastern District of Louisiana federal court, Louisiana

law seems to be the appropriate law to reference as the applicable law in this Opinion

despite plaintiff’s silence on the issue.

36

to be interpreted as a matter of law, and the use of extrinsic evidence is proper only where

a contract is ambiguous after examination of the four corners of the agreement.” See

Bartlett Constr. Co. v. St. Bernard Par. Council, 763 So. 2d at 98; see also BRP LLC

(Del.) v. MC La. Minerals LLC, 196 So. 3d 37, 48 (La. Ct. App. 2016) (“Parol or extrinsic

evidence is generally inadmissible to vary the terms of a written contract, unless the

written expression of the common intention of the parties is ambiguous.” (citing Miller v.

Miller, 1 So. 3d 815 (La. Ct. App. 2009))).

Under Louisiana State law, a contract is ambiguous when “its written terms are

susceptible to more than one interpretation, there is uncertainty as to its provisions, or the

parties’ intent cannot be ascertained from the language used.” Leftwich v. New Orleans

Weddings Magazine, 165 So. 3d 916, 921 (La. Ct. App. 2014) (citing First Bank and Trust

v. Redman Gaming of La., Inc., 131 So. 3d 224, 228-29 (La. Ct. App. 2013)). A contract

also is considered to be ambiguous on the issue of intent when the contract “‘lacks a

provision bearing on that issue.’” See Landis Constr. Co. v. St. Bernard Par., 151 So. 3d

at 963 (quoting Campbell v. Mellon, 817 So. 2d 69, 75 (La. 2002)); see also Kennedy v.

Saheid, 209 So. 3d 985, 991 (La. Ct. App. 2016) (“A contract is deemed ambiguous on

the issue of intent when either it lacks a provision bearing on that issue, the terms of the

contract are susceptible to more than one interpretation, there is uncertainty or ambiguity

as to its provisions, or the intent of the parties cannot be ascertained from the language

used.” (citations omitted)), writ denied, 215 So. 3d 681 (La. 2017).

In the above-captioned case, the pertinent portion of the Joint and Reciprocal

Agreement provides:

Owing to the risks, benefits, and vicissitudes of further litigation, Plaintiffs

and St. Bernard hereby mutually agree to immediately cease all adverse

action between and against each other in Alfreda Melerine Pizani and Avis

Melerine Juan vs. St. Bernard Parish, et al [sic], 34th Judicial District Court,

# 109-548 Div. E, waiving all appellate rights in Louisiana state courts. It is

the mutual intent of the parties to this Joint and Reciprocal Agreement that

the Judgement signed December 20, 2016 in the above captioned matter

(as amended) become final and executory for purposes of immediate

executory and collection proceedings in the United States Court of Federal

Claims, or other necessary forum, to resolve this very old case for both

parties.

In consideration for the reciprocal agreements set forth herein, Plaintiffs

agree to suspend and forego all collection rights against St. Bernard

regarding the Judgement provided that St. Bernard pursues indemnification

for payment of the Judgement (as amended) in the United States Court of

Federal Claims in Case No. 15-1072C and for a period of 60 days past

termination and finality of all such proceedings, including appeals, and also

further agree to accept such amounts recovered in the United States Court

of Federal Claims in Case No. 15-1072C (or such other proceedings as may

be instituted for collection of the Judgement, as amended) in full satisfaction

37

of all sums owed to Plaintiffs by St. Bernard in the Judgement (as

amended). Plaintiffs hereby further agree to execute a full Release and

Satisfaction of the Judgement (as amended) in favor of St. Bernard within

30 days of receipt of all sums recovered from the United States in the United

States Court of Federal Claims (or such other proceedings as may be

instituted for collection of the Judgement, as amended), or upon receipt of

all sums received from settlement agreed to by all parties, whichever comes

first. Plaintiffs agree not to execute against St. Bernard unless St. Bernard

collects funds from the United States in payment of the Judgement and fails

to pay the funds to Plaintiffs within 60 days of receipt. Nothing contained

herein shall obligate St. Bernard to pay to Plaintiffs any sums awarded to

St. Bernard and recovered from the United States which are solely and

expressly attributable to attorney’s fees incurred by St. Bernard’s attorneys

in representing St. Bernard Parish.

In consideration for the reciprocal agreements set forth herein, St. Bernard

hereby agrees to immediately cease all actions in 34th Judicial District Court

in the above captioned matter, and shall immediately formally notify the

Court that it waives its prior request for Reasons for Judgement pursuant to

La. C.C.P. art. 1917. St. Bernard further agrees to forthwith institute at its

sole costs all proceedings necessary to obtain indemnification or payment

from the United States for all sums due under the Judgement (as amended)

including, but not limited to, Case No. 15-1072 C in the United States Court

of Federal Claims. St. Bernard shall aggressively pursue all such actions to

finality, including all appeals, unless a settlement satisfactory to both

Plaintiffs is reached before finality of the proceedings.

(emphasis in original).

Under the terms of the Joint and Reciprocal Agreement, Ms. Juan and Ms. Pizani

indicated that the Louisiana State court proceedings between St. Bernard Parish, Ms.

Juan, and Ms. Pizani would cease so that December 20, 2016 judgment and January 18,

2017 amended judgment would become final so that St. Bernard Parish could pursue

collection proceeding against the United States in the United States Court of Federal

Claims to be paid to Ms. Juan and Ms. Pizani “within 60 days of receipt.” Although the

terms of the Joint and Reciprocal Agreement is explicit regarding the rights of Ms. Juan

and Ms. Pizani if St. Bernard Parish recovers funds from the United States, the Joint and

Reciprocal Agreement is less than clear as to the parties’ obligations and relationship in

the event that St. Bernard Parish does not recover funds from the United States partial or

full funds related to the December 20, 2016 judgment and January 18, 2017 amended

judgment in the case in this court, or in another possible court proceeding. The Joint and

Reciprocal Agreement primarily addresses cessation of the Louisiana State Trial court

proceedings between St. Bernard Parish and Ms. Juan and Ms. Pizani in order for St.

Bernard to pursue “immediate executory and collection proceedings in the United States

Court of Federal Claims, or other necessary forum.” Ms. Juan and Ms. Pizani also

indicated they will “agree to execute a full Release and Satisfaction of the Judgement (as

38

amended) in favor of St. Bernard within 30 days of receipt of all sums recovered from the

United States in the United States Court of Federal Claims (or such other proceedings as

may be instituted for collection of the Judgement, as amended).” The Joint and Reciprocal

Agreement does not contain a provision indicating that Ms. Juan and Ms. Pizani will

execute a “full Release and Satisfaction” in exchange for St. Bernard Parish filing a

complaint in the United States Court of Federal Claims seeking damages equal to the

December 20, 2016 judgment and the January 18, 2017 amended judgment issued by

the Louisiana State Trial court against St. Bernard Parish, regardless of whether St.

Bernard Parish recovers funds from the United States in the United States Court of

Federal Claims. (capitalization in original). The Joint and Reciprocal Agreement also

indicates that, if St. Bernard Parish does not recover funds from the United States in the

United States Court of Federal Claims, St. Bernard Parish may institute proceeding in an

“other necessary forum” in an attempt to recover funds from the United States related to

the December 20, 2016 judgment and January 18, 2017 amended judgment issued by

the Louisiana State Trial court. The lack of a provision addressing a possible situation in

which St. Bernard Parish does not recover funds from the United States creates an

ambiguity as to whether Ms. Juan and Ms. Pizani may then enforce the December 20,

2016 judgment and January 18, 2017 amended judgment against St. Bernard Parish.

Moreover, based on the language of the Joint and Reciprocal Agreement, it

appears that Ms. Juan, Ms. Pizani, and St. Bernard Parish entered into the Joint and

Reciprocal Agreement under the shared anticipation that St. Bernard should be able to

recover monies in the above-captioned case. The Joint and Reciprocal Agreement states

that “[i]t is the mutual intent of the parties” that the parties to the Agreement cease

litigation before the Louisiana State Trial court in order for the December 20, 2016

judgment and January 18, 2017 amended judgment to “become final and executory for

purposes of immediate executory and collection proceedings in the United States Court

of Federal Claims,” but left it more vague, unclear, and open-ended as to the outcome if

no such recovery occurred. St. Bernard Parish agreed to pursue “indemnification for

payment of the Judgement (as amended) in the United States Court of Federal Claims in

Case No. 15-1072C” and to “forthwith institute at its sole costs all proceedings necessary

to obtain indemnification or payment from the United States for all sums due under the

Judgement (as amended) including, but not limited to, Case No. 15-1072 C in the United

States Court of Federal Claims.” In exchange for St. Bernard Parish’s pursuit of “all sums

due under the Judgement (as amended),” Ms. Juan and Ms. Pizani agreed to accept

“such amounts recovered” and “all sums recovered,” or, alternatively, “all sums received

from settlement agreed to by all parties.” That the parties entered into the Joint and

Reciprocal Agreement under the shared belief that St. Bernard Parish could prevail in the

above-captioned case is further reinforced by the statement in the Joint and Reciprocal

Agreement that St. Bernard Parish was not obligated to pay Ms. Juan and Ms. Pizani any

“attorney’s fees incurred by St. Bernard’s attorneys in representing St. Bernard Parish” in

the the above-captioned case.18

18St. Bernard Parish’s recovery of funds in Lake Borgne Basin Levee District, et al. v.

United States, Case No. 15-103C, and St. Bernard Parish Government, et al. v. United

States, Case No. 15-518C, in which St. Bernard Parish and Lake Borgne had recovered

39

At the oral argument in the above-captioned case in this court, counsel of record

for plaintiff stated that it was the mutual intent of counsel for Ms. Juan and Ms. Pizani and

an attorney representing St. Bernard Parish, who signed the Joint and Reciprocal

Agreement, that the Joint and Reciprocal Agreement be “a holding position. The Pizanis’

counsel agreed not to go after the parish and try and collect against them while this [the

above-captioned case] was pending.” According to counsel of record for plaintiff at the

oral argument, if the court “were to order zero [recovery], we’re [St. Bernard Parish] going

to be turned around and faced with a $4 1/2 million judgment. We don’t get to walk away.”

Beyond citing to the Joint and Reciprocal Agreement and Addendum thereto, neither

plaintiff nor defendant has submitted any other extrinsic evidence that is relevant to the

issue of the parties’ intent if St. Bernard Parish was unable to recover funds from the

United States in the above-captioned case.

The Addendum to the Joint and Reciprocal Agreement states that “[i]t is the mutual

intent of the parties that this Addendum serve to clarify the intent of the original” Joint and

Reciprocal Agreement. The Addendum states:

On January 20, 2017, Alfreda Melerine Pizani and Avis Merlerine Juan (the

“Landowners”) and St. Bernard Parish Government (“SBPG”) executed a

Joint and Reciprocal Agreement regarding the judgement and amended

judgement rendered by the 34th Judicial District Court for the Parish of St.

Bernard in civil case number 109-548 entitled Alfreda Melerine Pizani and

Avis Melerine Juan vs. St. Bernard Parish, et al [sic] (the “Judgement”). It is

the

mutual intent of the parties that this Addendum serve to clarify the intent of

the original Agreement regarding the following particulars:

1. The Landowners agree to suspend and forego all collection rights and

efforts against SBPG for the Judgement while SBPG pursues collection

of the funds owed by the United States for the removal of borrow

material on the Landowners’ property, and for a period of sixty (60) days

subsequent to the termination of all proceedings instituted by SBPG; and

2. SBPG agrees to pursue payment of the funds owed by the United States

for the removal of borrow material on the Landowners’ property, in any

and all available forums, including the Federal Court of Claims [sic]; and

3. The Landowners agree to accept such amounts recovered by SBPG

from the United States in full satisfaction of the Judgement; and

4. Should SBPG be unsuccessful in collecting any funds in the Court of

damages of $1,655.380.03 and $2,768,373.04, respectively, also has been cited by the

plaintiff in the current proceeding as distinctly similar to the above-captioned case

currently under review.

40

Claims [sic], the Landowners shall be entitled to collect the value of the

Judgement from SBPG; and

5. SBPG shall not be required to pay Landowners any amounts recovered

for attorneys [sic] fees awarded to SBPG for prosecuting any action in

pursuit of the funds owed by the United States for the removal of borrow

material on the Landowners’ property.

6. The parties hereby stipulate that the contents of this Addendum

represent the mutual intent of the parties in executing the Joint and

Reciprocal Agreement dated January 20, 2017, and hereby desire this

language be construed as though originally contained in the Joint and

Reciprocal Agreement.[19]

For purposes of standing, regarding the issue of whether St. Bernard Parish

potentially remains liable to Ms. Juan and Ms. Pizani even after the litigation in this court,

the Addendum to the Joint and Reciprocal Agreement confirms the language in the Joint

and Reciprocal Agreement. Regarding any potential ambiguity in the January 20, 2017

Joint and Reciprocal Agreement as to whether Ms. Juan and Ms. Pizani can enforce the

December 20, 2016 judgment and January 18, 2017 amended judgment against St.

Bernard Parish if St. Bernard Parish does not recover funds to cover the State court

judgments, under Louisiana State law, the court may consider extrinsic evidence, such

as the proffered Addendum. See Hulshoff v. Hulshoff, 81 So. 3d 57, 62 (La. Ct. App.

2011) (“[W]here the terms of the agreement are unclear, the court may consider extrinsic

evidence to explain the terms of the agreement and to determine the parties’ intent.”

(citation omitted)); see also Trent v. PPG Indus., Inc., 865 So. 2d 1041, 1048 (La. Ct. App.

2004) (analyzing an addendum to a contract when there was evidence in the record

indicating that “the addendum adding the statutory employer provisions to the contract

between the parties was meant to be part of the contract and reflected the true intent of

the parties”). The Addendum to the Joint and Reciprocal Agreement indicates that Ms.

19 Defendant argues that the court should not consider the Addendum because it was

submitted after oral argument. The Addendum, however, was produced as part of a

response to a court Order instructing the parties to submit supplemental briefs addressing

“whether, under the terms of the Joint and Reciprocal Agreement, St. Bernard is liable to

Ms. Pizani and Ms. Juan for the December 20, 2016 judgment and January 18, 2017

amended judgment” and “whether the December 20, 2016 judgment and January 18,

2017 amended judgment are enforceable against St. Bernard if St. Bernard’s lawsuit in

this court is unsuccessful.” The Addendum is the only extrinsic evidence related to the

intent of Ms. Juan, Ms. Pizani, and St. Bernard Parish when executing the Joint and

Reciprocal Agreement currently before the court and is not contradicted by anything else

in the record before the court. The court also notes that, if the above-captioned case were

to proceed to trial or further motions for partial summary judgment, the court would be

able to receive additional testimony and evidence concerning the intent of Ms. Juan, Ms.

Pizani, and St. Bernard Parish when executing the Joint and Reciprocal Agreement.

41

Juan, Ms. Pizani, and St. Bernard Parish, when executing the Joint and Reciprocal

Agreement, always intended for St. Bernard Parish to remain liable to Ms. Juan and Ms.

Pizani in the event that St. Bernard Parish is unsuccessful in obtaining a recovery in this

court in the above-captioned case. The Addendum is the only extrinsic evidence provided

to the court on the issue of the intent of Ms. Juan, Ms. Pizani, and St. Bernard Parish

when the parties entered the Joint and Reciprocal Agreement. The intent of Ms. Juan,

Ms. Pizani, and St. Bernard Parish when entering the Joint and Reciprocal Agreement

appears to have been that Ms. Juan and Ms. Pizani would be able to collect from St.

Bernard Parish if plaintiff does not recover funds from the United States in the above-

captioned case.

The Addendum does not change the words of the Joint and Reciprocal Agreement,

alter the Agreement’s “fundamental nature,” or “make[] its terms nonsensical,” as

defendant contends. Under the terms of the Joint and Reciprocal Agreement, as well as

the terms of the Addendum, if St. Bernard Parish recovers funds from the United States

in the above-captioned case, Ms. Juan and Ms. Pizani will accept whatever funds are

collected, not necessarily in the full amount of the Louisiana State court judgments, as a

“full Release and Satisfaction of the” December 20, 2016 judgment and the January 18,

2017 amended judgment issued by the Louisiana State Trial court. If St. Bernard Parish

does not recover funds from the United States in the above-captioned case, Ms. Juan

and Ms. Pizani will retain the right to enforce the December 20, 2016 judgment and the

January 18, 2017 amended judgment issued by the Louisiana State Trial court against

St. Bernard Parish. Moreover, defendant has not submitted any evidence, extrinsic or

otherwise, indicating that Ms. Juan, Ms. Pizani, and St. Bernard Parish intended that Ms.

Juan and Ms. Pizani could not enforce or execute the December 20, 2016 Louisiana State

Trial court judgment and January 18, 2017 Louisiana State Trial court amended judgment

against St. Bernard Parish if St. Bernard Parish is unsuccessful in the above-captioned

case in this court, or submitted any evidence which contradicts the statements in the Joint

and Reciprocal Agreement or the Addendum.

The Joint and Reciprocal Agreement also does not constitute an accord and

satisfaction, as defendant argues. In an accord and satisfaction, “a claim is discharged

because some performance other than that which was claimed to be due is accepted as

full satisfaction of the claim.” Holland v. United States, 621 F.3d 1366, 1377 (Fed. Cir.

2010) (citing O’Connor v. United States, 308 F.3d 1233, 1240 (Fed. Cir. 2002)), reh’g and

reh’g en banc denied, (Fed. Cir.), cert. denied, 565 U.S. 928 (2011). Louisiana State

courts have stated that, under Louisiana State law, “the doctrine of accord and

satisfaction is very much like the doctrine of compromise.” See Hawthorne v. Barbier, 841

So. 2d 28, 29 (La. Ct. App. 2003) (citing McClelland v. Sec. Indus. Ins. Co., 426 So.2d

665 (La. Ct. App. 1982)). “A compromise is a contract whereby the parties, through

concessions made by one or more of them, settle a dispute or an uncertainty concerning

an obligation or other legal relationship.” La. Civ. Code art. 3071 (2019); see also Maggio

v. Parker, 250 So. 3d 874, 878 (La. 2018) (quoting La. Civ. Code art. 3071). In the Joint

and Reciprocal Agreement, Ms. Juan and Ms. Pizani did not settle the dispute with St.

Bernard Parish. The Joint and Reciprocal Agreement provides a mechanism to potentially

resolve the dispute between Ms. Juan and Ms. Pizani and St. Bernard Parish if St.

42

Bernard Parish is successful in this court in the above-captioned case. The Joint and

Reciprocal Agreement, at this time, however, has not settled the parties’ dispute and St.

Bernard Parish’s potential remaining liability for the judgments entered by the Louisiana

State Trial court, given the unresolved nature of the relationship between Ms. Juan, Ms.

Pizani, and St. Bernard Parish if St. Bernard Parish does not recover funds from the

United States in the above-captioned case.

Regarding plaintiff’s standing in the above-captioned case, both counsel of record

for plaintiff and counsel of record for defendant estimated the amount of the two

judgments entered by the Louisiana State Trial court against St. Bernard Parish to be

approximately $4,500,000.00 as of the date of the oral argument, with interest continuing

to accrue thereafter. Under the terms of the Joint and Reciprocal Agreement, with the

explanation of what originally was intended in the Joint and Reciprocal Agreement in the

Addendum, St. Bernard Parish, Ms. Juan, and Ms. Pizani made clear that they may

enforce the judgments against St. Bernard Parish if St. Bernard Parish is unsuccessful in

the above-captioned case in this court. The judgments issued by the Louisiana State Trial

court against St. Bernard Parish are based on defendant’s alleged breach of the

Amended Cooperation Agreement, as borrow material from Ms. Juan’s and Ms. Pizani’s

land was removed in connection with performance under the Amended Cooperation

Agreement. A decision favorable to plaintiff could, if successful, address the injury

suffered by plaintiff, as plaintiff would no longer be liable to Ms. Juan and Ms. Pizani under

the Joint and Reciprocal Agreement, provided plaintiff pays the funds to Ms. Juan and

Ms. Pizani within sixty days of receipt of funds. Plaintiff has established an injury

potentially traceable to defendant’s alleged conduct that could be redressed with a

favorable decision by this court and, therefore, has met its burden to establish standing

in the above-captioned case.

Defendant’s Motion to Dismiss for Lack of Jurisdiction

Defendant also has moved to dismiss plaintiff’s complaint under RCFC 12(b)(1)

for lack of subject matter jurisdiction. “Subject-matter jurisdiction may be challenged at

any time by the parties or by the court sua sponte.” Folden v. United States, 379 F.3d

1344, 1354 (Fed. Cir. 2004) (citing Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720

(Fed. Cir. 1998)); see also Int’l Elec. Tech. Corp. v. Hughes Aircraft Co., 476 F.3d 1329,

1330 (Fed. Cir. 2007). The Tucker Act, 28 U.S.C. § 1491 (2018), grants jurisdiction to this

court as follows:

The United States Court of Federal Claims shall have jurisdiction to render

judgment upon any claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive

department, or upon any express or implied contract with the United States,

or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker

Act waives sovereign immunity to allow jurisdiction over claims against the United States

(1) founded on an express or implied contract with the United States, (2) seeking a refund

43

from a prior payment made to the government, or (3) based on federal constitutional,

statutory, or regulatory law mandating compensation by the federal government for

damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009);

see also United States v. Mitchell, 463 U.S. 206, 216 (1983); Alvarado Hosp., LLC v.

Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cnty., Ariz. v. United States, 487

F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied,

552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).

“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable

under the Tucker Act. The claim must be one for money damages against the United

States . . . .” United States v. Mitchell, 463 U.S. at 216; see also United States v. White

Mountain Apache Tribe, 537 U.S. 465, 472 (2003); N.Y. & Presbyterian Hosp. v. United

States, 881 F.3d 877, 881 (Fed. Cir. 2018); Smith v. United States, 709 F.3d 1114, 1116

(Fed. Cir.), cert. denied, 571 U.S. 945 (2013); RadioShack Corp. v. United States, 566

F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d

1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law that

creates the right to recovery of money damages against the United States.”); Golden v.

United States, 118 Fed. Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v. United

States, the United States Court of Appeals for the Federal Circuit identified three types of

monetary claims for which jurisdiction is lodged in the United States Court of Federal

Claims. The Ontario Power Generation, Inc. court wrote:

The underlying monetary claims are of three types. . . . First, claims alleging

the existence of a contract between the plaintiff and the government fall

within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver

encompasses claims where “the plaintiff has paid money over to the

Government, directly or in effect, and seeks return of all or part of that sum.”

Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d

[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in

which ‘the Government has the citizen’s money in its pocket’” (quoting

Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) . . . .

Third, the Court of Federal Claims has jurisdiction over those claims where

“money has not been paid but the plaintiff asserts that he is nevertheless

entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007.

Claims in this third category, where no payment has been made to the

government, either directly or in effect, require that the “particular provision

of law relied upon grants the claimant, expressly or by implication, a right to

be paid a certain sum.” Id.; see also [United States v. ]Testan, 424 U.S.

[392,] 401-02 [1976] (“Where the United States is the defendant and the

plaintiff is not suing for money improperly exacted or retained, the basis of

the federal claim-whether it be the Constitution, a statute, or a regulation-

does not create a cause of action for money damages unless, as the Court

of Claims has stated, that basis ‘in itself . . . can fairly be interpreted as

mandating compensation by the Federal Government for the damage

sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is

commonly referred to as claims brought under a “money-mandating”

statute.

44

Ont. Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see

also Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); Twp.

of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money-mandating, a plaintiff must

demonstrate that an independent source of substantive law relied upon “‘can fairly be

interpreted as mandating compensation by the Federal Government.’” United States v.

Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. at 400); see

also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United States v.

Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed.

Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting monetary relief

must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S.

at 290 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional

provision[] that operate[s] to waive sovereign immunity for claims premised on other

sources of law (e.g., statutes or contracts).”). “‘If the statute is not money-mandating, the

Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject

matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299,

1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876);

see also N.Y. & Presbyterian Hosp. v. United States, 881 F.3d at 881; Fisher v. United

States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (noting that the absence of a money-

mandating source is “fatal to the court’s jurisdiction under the Tucker Act”); Price v. United

States, 133 Fed. Cl. 128, 130 (2017); Peoples v. United States, 87 Fed. Cl. 553, 565-66

(2009).

When deciding a case based on a lack of subject matter jurisdiction or for failure

to state a claim, this court must assume that all undisputed facts alleged in the complaint

are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson

v. Pardus, 551 U.S. 87, 94 (2007) (“[W]hen ruling on a defendant’s motion to dismiss, a

judge must accept as true all of the factual allegations contained in the complaint.” (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema

N. A., 534 U.S. 506, 508 n.1 (2002)))); see also Frankel v. United States, 842 F.3d 1246,

1249 (Fed. Cir. 2016) (“In deciding a motion to dismiss, a court is required to accept as

true all factual allegations pleaded.” (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)));

Fid. & Guar. Ins. Underwriters, Inc. v. United States, 805 F.3d 1082, 1084 (Fed. Cir.

2015); Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).

“Determination of jurisdiction starts with the complaint, which must be well-pleaded

in that it must state the necessary elements of the plaintiff’s claim, independent of any

defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)

(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh’g

denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.

Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710,

713 (2010). A plaintiff need only state in the complaint “a short and plain statement of the

grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing

that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2018); Fed. R. Civ. P. 8(a)(1), (2)

45

(2019); see also Ashcroft v. Iqbal, 556 U.S. at 677-78 (citing Bell Atl. Corp. v. Twombly,

550 U.S. at 555-57, 570). To properly state a claim for relief, “[c]onclusory allegations of

law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v.

Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel

Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in

part) (quoting C. W RIGHT AND A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1286 (3d

ed. 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (“[C]onclusory allegations

unsupported by any factual assertions will not withstand a motion to dismiss.”), aff’d, 460

U.S. 325 (1983). “A plaintiff’s factual allegations must ‘raise a right to relief above the

speculative level’ and cross ‘the line from conceivable to plausible.’” Three S Consulting

v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. at 555), aff’d, 562 F. App’x 964 (Fed. Cir.), reh’g denied (Fed. Cir. 2014). As stated

in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’ 550 U.S. at 555. Nor does a

complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555).

Equitable Relief or Monetary Damages

Defendant asserts that this court “lacks jurisdiction to grant the equitable relief

sought by St. Bernard: an order directing specific performance of the Cooperation

Agreement by the Government.” Defendant argues that “St. Bernard asks the Court to

‘[o]rder[] the United States to pay the judgment(s) issued in the Louisiana Court in favor

of Ms. Pizani and Ms. Juan,’” which defendant contends is equitable relief that this court

may not grant because St. Bernard is requesting “specific performance of the [Amended]

Cooperation Agreement, not the recovery of money damages.” (first and second

alteration in original). Defendant asserts that plaintiff cannot “recast” its request for

equitable relief as a request for money damages, and that plaintiff’ supplemental

“complaint makes clear that St. Bernard is asking the Court to order the Government to

perform under the terms of the Cooperation Agreement by making payment directly to the

Pizanis.”

Plaintiff argues that, “[i]n reality, the nature of this action is St. Bernard seeking

damages from the Government in an amount sufficient to provide and pass through to the

landowners just compensation pursuant to the Amended Cooperation Agreement, just as

this Court found in Olivier and Borgnemouth.” Plaintiff asserts that it is seeking damages

as a result of defendant’s alleged breach of the Amended Cooperation Agreement.

Plaintiff also asserts that, “had the Government fulfilled its obligations under the Amended

Cooperation Agreement, St. Bernard would not have had to file this action.” Furthermore,

plaintiff contends that, “to the extent St. Bernard’s petition seeks equitable relief, this

Court has jurisdiction under the Tucker Act.”

Subject to certain exceptions not present in the above-captioned case, the

“jurisdiction of the Court of Federal Claims under the Tucker Act is ‘limited to actual,

presently due money damages from the United States.’” See Todd v. United States, 386

F.3d 1091, 1093 (Fed. Cir. 2004) (quoting United States v. Testan, 424 U.S. at 398); see

46

also Johnson v. United States, 105 Fed. Cl. 85, 94 (2012) (“Under the Tucker Act, the

court’s jurisdiction extends only to cases concerning actual, presently due money

damages from the United States.” (internal quotation marks and citation omitted)). “In

addition, the Tucker Act gives this court limited jurisdiction to grant equitable and

declaratory relief, but only when such relief is ‘an incident of and collateral to’ a money

judgment.” Estes v. United States, 123 Fed. Cl. 74, 81 (2015) (quoting 28 U.S.C.

§ 1491(a)(2)) (citing Bobula v. U.S. Dep’t of Justice, 970 F.2d 854, 859 (Fed. Cir. 1992));

see also Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. Dep’t of Homeland Sec., 490

F.3d 940, 943 n.3 (Fed. Cir. 2007) (quoting Bobula v. U.S. Dep’t of Justice, 970 F.2d at

859);20 Bobula v. U.S. Dep’t of Justice, 970 F.2d at 859 (“While limited equitable relief is

sometimes available in Tucker Act suits, the equitable relief must be incidental to and

collateral to a claim for money damages.” (citing 28 U.S.C. § 1491(a)(2))); Martinez v.

United States, 77 Fed. Cl. 318, 322 (2007) (quoting 28 U.S.C. § 1491(a)(2)), aff’d, 260 F.

App’x 298 (Fed. Cir. 2008). When determining the nature of the requested relief, “[w]hat

matters is whether the request for relief is, on its face or in substance, a request for money

damages as opposed to equitable relief.” See Doe v. United States, 372 F.3d 1308, 1314

(Fed. Cir. 2004); see also Kanemoto v. Reno, 41 F.3d 641, 646 (Fed. Cir. 1994) (“‘A party

may not avoid the [Court of Federal Claims’] jurisdiction by framing an action against the

federal government that appears to seek only equitable relief when the party’s real effort

is to obtain damages in excess of $10,000.’” (alteration in original) (quoting Marshall

Leasing, Inc. v. United States, 893 F.2d 1096, 1099 (9th Cir. 1990))); Bevevino v. United

States, 87 Fed. Cl. 397, 407 (2009) (“Although plaintiffs’ prayer for relief may have been

awkwardly phrased, their back pay claims are clearly within this court’s jurisdiction.”

(citations omitted)). The court must determine “whether the true character of the plaintiffs’

action” is for equitable relief or for money damages. See Doko Farms v. United States,

13 Cl. Ct. 48, 56 (1987); see also Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994)

(stating that the court is to examine the “true nature of the action in determining the

existence or not of jurisdiction” (citing Livingston v. Derwinski, 959 F.2d 224, 225 (Fed.

Cir. 1992))); Acetris Health, LLC v. United States, 138 Fed. Cl. 43, 57 (“[T]he court is

mindful that ‘in determining the existence or not of jurisdiction,’ it must look beyond

plaintiff’s characterization of its claims and ascertain ‘the true nature’ of plaintiff’s suit.”

(quoting Katz v. Cisneros, 16 F.3d at 1207)), appeal docketed, No. 18-2399 (Fed. Cir.

Sept. 20, 2018).

In plaintiff’s supplemental complaint, plaintiff:

[R]equests that this Court enforce the terms of the Amended Cooperation

Agreement, by ordering the Corps to compensate Ms. Pizani and Ms. Juan

for the losses, in the amounts set out by the Pizani Judgments, which are

20 Gonzales & Gonzales Bonds & Insurance Agency, Inc. v. Department of Homeland

Security involved the decision of a United States District Court to transfer a case to the

United States Court of Federal Claims. See Gonzales & Gonzales Bonds & Ins. Agency,

Inc. v. Dep’t of Homeland Sec., 490 F.3d at 945. Bobula v. United States Department of

Justice involved a case arising under the Little Tucker Act, 28 U.S.C. § 1346(a)(2), in a

United States District Court. See Bobula v. U.S. Dep’t of Justice, 970 F.2d at 859.

47

attached as Exhibits A &B [sic] “in the name of the Public Sponsors,” as

provided in Article III.B and/or Article II.B.1 of the Amended Cooperation

Agreement, as well as any principal, interest, attorney’s fees and costs

awarded by the Louisiana state court.

Plaintiff also alleges that defendant’s “refusal to provide just compensation to the property

owners under the terms of the Amended Cooperation Agreement [to which the Army

Corps was a party], on behalf SBPG, constitutes a breach of the express and/or implied

terms of the Amended Cooperation Agreement.” Plaintiff asserts:

Damages for breach of contract shall place the wronged party in as good a

position as it would have been in had the breaching party fully performed its

obligation. The Corps is required to compensate SBPG for all losses it has

sustained as a result of the Corps’s failure to meet its contractual obligation

to compensate the affected landowner, including all attorney’s fees, and

costs SBPG expended in defending the Pizani Lawsuit brought by Ms.

Pizani and Ms. Juan in Louisiana state court and in prosecuting this action.

In its prayer for relief, plaintiff requests that this court enter an order

awarding damages as follows: (1) Ordering the United States to pay the

judgment(s) issued in the Louisiana Court in favor of Ms. Pizani and Ms.

Juan in satisfaction of any said judgments costs, and accumulating legal

interest on the foregoing up to the date of payment, “in the name of the

Public Sponsors” . . . .

Although plaintiff’s supplemental complaint contains an awkward statement of the

case, when it states that St. Bernard Parish is requesting “that this Court enforce the

terms of the Amended Cooperation Agreement,” the substance of plaintiff’s supplemental

complaint is a breach of

This text is long and has been trimmed here. Open the source document for the complete record.