# St. Bernard Parish Government v. United States

> United States Court of Federal Claims · April 4, 2019

URL: https://www.frixlaw.com/law-library/cases/4384339

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** April 4, 2019
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- noting that the absence of a money- mandating source is “fatal to the court’s jurisdiction under the Tucker Act”

## Opinion text

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. Bern

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4384339. Public record. Not legal advice.