OPINION AND ORDER
CHARLES F. LETTOW, Judge.
This rails-to-trails takings class action is in a very unusual, perhaps even unique, procedural posture. A total of 520 class members brought claims. After resolution of a number of motions for partial summary judgment,
One class member, a married couple, Mr. and Mrs. Woodley, owning property that would receive just compensation under the settlement, appealed the court's approval of the settlement and award of common-fund attorneys' fees on the ground that class counsel had not provided sufficient information in written form (oral explanations had been provided) to class members that would enable cross-checking calculations of the settlement amount to be received by them.
Both in the court of appeals and initially before this court on remand, the parties considered that the settlement was in place, excepting potentially the allocation of individual amounts.
Previously, after examining the scope of this court's 2014 judgment and the Federal Circuit's subsequent mandate, this court determined that its earlier "liability decisions for Subclasses Two and Four, both for and against the government, as well as its dismissal of claims excluded from the Settlement Agreement, are subject to the mandate rule," and "[t]he specific decisions made by the court in determining liability for Subclasses Two and Four are the law of the case."
The government has moved for reconsideration of this court's decision, and class counsel and the Woodleys have opposed that motion.
STANDARDS FOR DECISION
Because on remand this case is in an interlocutory posture, the government's motion for reconsideration falls under Rules 54(b) and 59(a) of the Rules of the Court of Federal Claims ("RCFC"). RCFC 54(b) provides that a non-final order "may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Under RCFC 59(a)(1), the court may grant a motion for reconsideration under the following circumstances:
The determination of whether to grant a motion for reconsideration generally falls within the discretion of the court. Yuba Nat. Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990) (citations omitted). The court may grant such a motion pursuant to RCFC 54(b) and 59(a)(1) "as justice requires," which is "less rigorous" than the standard for reconsideration of a final judgment under RCFC 59(e). Martin v. United States, 101 Fed. Cl. 664, 670-71 (2011) (internal quotation marks and citations omitted), aff'd sub nom. Fournier v. United States, No. 2012-5056, 2012 WL 6839784 (Fed. Cir. Nov. 27, 2012). This standard may be satisfied where the court "has patently misunderstood a party, has made a decision outside the adversarial issues presented to the [c]ourt by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court." L-3 Commc'ns Integrated Sys., L.P. v. United States, 98 Fed. Cl. 45, 49 (2011) (quoting Potts v. Howard Univ. Hosp., 623 F.Supp.2d 68, 71 (D.D.C. 2009) (in turn quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)) (modification in original). Reconsideration is "not intended, however, to give an `unhappy litigant an additional chance to sway the court." Martin, 101 Fed. Cl. at 671 (quoting Matthews v. United States, 73 Fed. Cl. 524, 525 (2006) (in turn quoting Froudi v. United States, 22 Cl. Ct. 290, 300 (1991))); see also Whispell Foreign Cars, Inc. v. United States, 106 Fed. Cl. 777, 782 (2012) (noting that a party moving for reconsideration may not merely reassert arguments that "were previously made and were carefully considered by the court") (citing Principal Mut. Life Ins. Co. v. United States, 29 Fed. Cl. 157, 164 (1993), aff'd, 50 F.3d 1021 (Fed. Cir. 1995)); Bannum, Inc. v. United States, 59 Fed. Cl. 241, 243 (2003). Additionally, a motion for reconsideration is unavailing where the moving party "raise[s] an issue for the first time that was available to be litigated earlier in the case." Martin, 101 Fed. Cl. at 671 (citing Matthews, 73 Fed. Cl. at 526; Gelco Builders & Burjay Constr. Corp. v. United States, 369 F.2d 992, 1000 n.7 (Ct. Cl. 1966)); see also Bannum, 59 Fed. Cl. at 243.
A. Effect of the Federal Circuit's Mandate
With respect to this court's approval of the Settlement Agreement, the Federal Circuit articulated the "precise issue" presented on appeal by the Woodleys:
Haggart V, 809 F.3d at 1348 (quoting RCFC 23(e)(2)). The Woodleys' appeal was accordingly based upon their request for written information, apart from the verbal explanation they had received, "concerning the methodology class counsel employed in calculating the fair market value of unappraised properties." Id. Significantly, the government did not file an appeal or expand the grounds raised by the Woodleys. Id. at 1343. After holding that the Woodleys did not receive adequate documentation to allow a comparison of class members' property valuations, see id. at 1349-50, the court of appeals "reverse[d] the Claims Court's approval of the settlement agreement," as well as the award of common-fund attorneys' fees, and remanded the case for further proceedings, id. at 1359. "The Federal Circuit's reversal and remand did not extend beyond the scope of the Woodleys' appeal." Haggart VI, 131 Fed. Cl. at 638 (citing Haggart V, 809 F.3d 1336).
The government contends that the Federal Circuit vacated this court's prior judgment in its entirety to encompass the Settlement Agreement itself, Def.'s Mot. at 37, but that position is inconsistent with the Federal Circuit's decision. Given the scope of the Woodleys' appeal, the court of appeals addressed whether class counsel's explanations sufficiently permitted class members to evaluate their respective property valuations and compare those values across the class. See Haggart V, 809 F.3d at 1349-51 (discussing the methodology for valuing class members' properties, determining that "class members c[ould]not assess whether the fair market value of their property was fair, reasonable, and adequate," and finding that class counsel failed to provide documents "detailing the precise methodology used to calculate the fair market value" of specific properties); see also Haggart VI, 131 Fed. Cl. at 641 ("The amount of the settlement, interest rate, plaintiffs entitled to compensation, and plaintiffs subject to dismissal were not disturbed on appeal."). The government represented to the Federal Circuit that the Woodleys' appeal concerned only documentary disclosure and not the Settlement Agreement itself, stating that "[w]hile the [government] continues to believe that the total principal amount of $110 million is fair to the class as a whole, the approval of the settlement without requiring proper disclosure constituted an abuse of discretion and this case should be remanded to the [Claims Court] for proper disclosure to all class members." Haggart V, 809 F.3d at 1346 n.11 (quoting Corrected Resp. Br. for the United States Supporting Appellants' Req. to Vacate the Judgment of the Court of Federal Claims that Approved the Settlement and Awarded Additional Att'ys' Fees ("Def.'s Appellate Br.") at 28, Haggart v. Woodley, No. 14-5106 (Fed. Cir. Dec. 19, 2014)). The Federal Circuit therefore explained that the government's "acquiescence that the settlement agreement in total was fair, reasonable, and adequate is not inconsistent with the [g]overnment's current assertion that class counsel failed to provide adequate disclosure of how the settlement agreement was distributed among every individual class member." Id. at 1346 (emphasis in original). Although the government now focuses on the Federal Circuit's use of the term "vacated" to apply to the prior judgment, see Haggart V, 809 F.3d at 1359; Def.'s Mot. at 37-38, the "[i]nterpretation of an appellate mandate entails more than examining the language of the court's judgment in a vacuum. . . . [T]he nature of the [court's] remaining tasks is discerned not simply from the language of the judgment, but from the judgment in combination with the accompanying opinion." Exxon Chem. Patents, Inc. v. Lubrizol Corp., 137 F.3d 1475, 1483 (Fed. Cir. 1998) (citing Fed. R. App. P. 41(a); In re Sanford Fork & Tool Co., 160 U.S. 247, 256 (1895); Laitram Corp. v. NEC Corp., 115 F.3d 947, 952 (Fed. Cir. 1997)). In the context of the Federal Circuit's opinion, the court of appeals only vacated this court's approval of the Settlement Agreement and award of common-fund attorneys' fees.
The court's prior liability determinations for Subclasses Two and Four and dismissal of certain claims, all of which were encompassed within the court's 2014 judgment,
B. Compliance with the Federal Circuit's Mandate
In accord with the Federal Circuit's mandate, this court "initially sought to ensure that all information pertinent to the appraisal process was made available to class members in written form." Haggart VI, 131 Fed. Cl. at 632. After discussing the information available to the parties at a hearing held before the court on August 15, 2016, specifically focusing on the availability of three spreadsheets used in the settlement negotiations, class counsel filed four notices of compliance with the mandate from the court of appeals. See id.; Class Counsel's Notices of Compliance (Aug. 15, 2016, Aug. 17, 2016, Sept. 14, 2016, and Aug. 4, 2017), ECF Nos. 218, 219, 223, and 295. Nonetheless, the government argues that class counsel has failed to disclose two of those three spreadsheets. Def.'s Mot. at 24. The availability of the spreadsheets, however, was addressed again at a hearing held on June 2, 2017, and the court reopened discovery to ensure that the parties could obtain access to the spreadsheets and any other relevant documents. See Hr'g Tr. 36:4-16 (June 2, 2017); Scheduling Order of June 6, 2017, ECF No. 278. Class counsel, counsel for the Woodleys, and the government have thus had the opportunity to seek any and all relevant documents through discovery. Indeed, the government manifestly has had the three spreadsheets throughout the course of the remand proceedings, and notably it attached the three disputed spreadsheets to its motion for reconsideration, making them a matter of public record. See Def.'s Mot., Exs. F, G, and H. Additionally, those spreadsheets are available on class counsel's website for any class member to review. Pls.' Opp'n at 29-30. Issues with respect to the spreadsheets thus have no bearing on this court's most recent decision or the government's pending motion for reconsideration.
The government also notes that class counsel, following the court of appeals' mandate, informed class members that the members' allocations for the settlement amount could be subject to change and moved for further proceedings in this court. See Def.'s Mot. at 29-34. The government avers that class counsel's conduct, viewed in combination with the government's present position that the Settlement Agreement is not binding, indicates that the Settlement Agreement has been abandoned. See id. Such an argument, which was already raised by the government and considered by this court, see Haggart VI, 131 Fed. Cl. at 641 n.11 (citing the United States' Resp. to Pls.' Mot. to Enforce the Settlement Agreement at 11-13, ECF No. 274), is unavailing.
A contract may be abandoned as the result of a written or verbal agreement, or by the acts and conduct of the parties. Montana Bank of Circle, N.A. v. United States, 7 Cl. Ct. 601, 610 (1985). With respect to conduct, "[t]he acts of the parties must be positive, unequivocal and inconsistent with an intent to be further bound by the contract." Nebco & Assocs. v. United States, 23 Cl. Ct. 635, 642 (1991) (quoting Armour & Co. v. Celic, 294 F.2d 432, 436 (2d Cir. 1961)). The party asserting abandonment has the burden of proving that the contract has been rescinded. See Klamath Irrigation Dist. v. United States, 635 F.3d 505, 519 n.12 (Fed. Cir. 2011) ("The general rule is that the party that asserts the affirmative of an issue has the burden of proving the facts essential to its claim.") (quoting National Commc'ns Ass'n Inc. v. AT&T Corp., 238 F.3d 124, 129-31 (2d Cir. 2001) (in turn quoting Auburndale State Bank v. Dairy Farm Leasing Corp., 890 F.2d 888, 893 (7th Cir. 1989))); International Indus. Park, Inc. v. United States, 100 Fed. Cl. 638, 653 (2011) ("Since [d]efendant asserts rescission, [d]efendant has the burden of proving that rescission.") (citing Klamath Irrigation Dist., 635 F.3d at 519 n.12; Armour & Co., 294 F.2d at 436), modified on recons. in part on other grounds, 102 Fed. Cl. 111 (2011), aff'd, 496 Fed. Appx. 85 (Fed. Cir. 2013).
Here, the government's reliance on class counsel's conduct is misplaced. Class counsel's exchanges with class members reflect his effort to comply with the Federal Circuit's mandate and provide class members with sufficient information and documentation, not an intent to abandon the Settlement Agreement. See Pls.' Opp'n at 23. The government also relies on the fact that class counsel moved for a trial and filed the first dispositive motion after the Federal Circuit's decision, see Def.'s Mot. at 32-33, but, at that point, the effect of the Federal Circuit's mandate was not yet fully apparent to plaintiffs or the court. Class counsel subsequently moved to enforce the Settlement Agreement, and the Woodleys currently support the enforcement of that Agreement as well. See generally Pls.' Mot. to Enforce the Settlement Agreement, ECF No. 272; Woodleys' Opp'n to Recons. The government also stated previously that it considered the Agreement to be binding before the Federal Circuit and this court, and it only changed its position very recently. See Haggart VI, 131 Fed. Cl. at 641; supra, at 3, 6-7. Thus, the government has not met its burden of demonstrating that the parties unequivocally intended to abandon the Settlement Agreement.
C. Enforceability of the Settlement Agreement
The Settlement Agreement "comprehensively encompasses all existing claims without any limitations or exceptions." Haggart VI, 131 Fed. Cl. at 640 (citing Settlement Agreement ¶ 2). It specifies the total amount of compensation and interest, and includes an attachment that allocates the specific amount provided to each class member. See Settlement Agreement ¶¶ 4-5, Attach. B. The Agreement also contemplated a reduction in the amount allocated to each class member to account for common-fund attorneys' fees, Haggart IV, 116 Fed. Cl. at 148-49, but that reduction can no longer occur in light of the Federal Circuit's decision, see Haggart VI, 131 Fed. Cl. at 643 (explaining that "the only aspect of the Settlement Agreement remaining at issue in this case is the allocation of the agreed settlement amount and interest among the Settling Plaintiffs"). The attachment to the Settlement Agreement presented to the court in 2014, however, specifies the amount allocated to each class member before consideration of attorneys' fees. Settlement Agreement, Attach. B. That attachment can therefore stand on its own and allocate the full $110 million settlement amount, plus interest, to class members.
At this juncture, class counsel and the Woodleys have proposed allocating the $110 million to class members in accord with the allocations set forth in the Settlement Agreement presented to the court in 2014, but without the possibility of any reduction for common fund-attorneys' fees. See Class Counsel's Mot. for Approval of the Settlement and of Notice to Class Members and Request to Set a Date for Public Hearing ("Pls.' Mot. for Approval") at 3-5, ECF No. 299; Pls.' Opp'n at 31.
The government finally argues that the court lacks the authority to bind the government to the Settlement Agreement, Def.'s Mot. at 35-36, but such a contention is misguided. The court is instead enforcing a contractually binding Settlement Agreement that the parties agreed to in 2014. See Haggart VI, 131 Fed. Cl. at 639-41. The Federal Circuit's reversal of this court's approval of the Settlement Agreement does not affect the binding nature of that Agreement with respect to the government:
Ehrheart v. Verizon Wireless, 609 F.3d 590, 593 (3d Cir. 2010) (citing In re Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th Cir. 2008); Collins v. Thompson, 679 F.2d 168, 172 (9th Cir. 1982)). The court's primary role in reviewing and approving a class action settlement is to "protect absent class members and other non-parties to the litigation, not the defendants who . . . agreed to an unfavorable settlement offer." Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084, 1095 (6th Cir. 2016) (Boggs, J.).
The government attempts to distinguish Ehrheart and Whitlock from the facts presented in this case by again contending that the Federal Circuit vacated the court's judgment in its entirety and purportedly rendered the Settlement Agreement unenforceable. See Def.'s Mot. at 21-23. The government's argument is unpersuasive because, as discussed supra, the court of appeals only addressed the documentary disclosure provided to class members with respect to individual allocations, not the Settlement Agreement itself or any other aspect of that Agreement. The government even agreed that the Settlement Agreement was undisturbed until the recent district court decision in Washington. Haggart VI, 131 Fed. Cl. at 641. Where a defendant changes its position regarding a settlement in light of a new legal development, courts have uniformly concluded that "a change in law will not affect the binding nature of a settlement agreement." Haggart VI, 131 Fed. Cl. at 640 (citing Anita Founds., Inc. v. ILGWU Nat. Ret. Fund, 902 F.2d 185, 189 (2d Cir. 1990); Ehrheart, 609 F.3d at 595-97; Whitlock, 843 F.3d at 1088, 1093-94; In re Syncor ERISA Litig., 516 F.3d at 1100-02). The Settlement Agreement therefore remains a binding and enforceable contract.
For the reasons stated, the government's motion for reconsideration is DENIED.
It is so
Further, the government's argument that any reallocation would "alter the essential terms of the Settlement Agreement" and vitiate "mutuality of consent" is unavailing. See Def.'s Mot. at 36. As the government stated before the Federal Circuit and this court, the government agreed to a total amount of compensation with class counsel through the Settlement Agreement but provided class counsel with a measure of discretion regarding allocation of the total amount among class members. See Def.'s Appellate Br. at 15; Def.'s Mot. at 24 n.8 (quoting Joint Status Report at 3, ECF No. 145 (Aug. 12, 2013)); see also Woodleys' Opp'n at 8. The government cannot now argue that class counsel's exercise of that discretion, which leaves the total settlement amount intact and the individual class members' allocation in Attachment B unchanged, undermines the parties' "mutuality of consent."