Free Response to Motion - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) LAND GRANTORS IN HENDERSON, ) UNION, and WEBSTER COUNTIES, ) KENTUCKY and THEIR HEIRS, ) ) Plaintiffs, ) ) No. 93-648 v. ) ) Hon. Susan G. Braden UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________)

PLAINTIFFS' OPPOSITION TO UNITED STATES' MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, MOTION FOR JUDGMENT ON THE RECORD

Nancie G. Marzulla Roger J. Marzulla MARZULLA LAW 1350 Connecticut Avenue, N.W. Suite 410 Washington, DC 20036 (202) 822-6760 (202) 822-6774 (facsimile) December 14, 2007 Counsel for Plaintiffs

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TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................... i TABLE OF AUTHORITIES............................................................................................ iii INTRODUCTION .............................................................................................................1 I. II. Factual Background ..............................................................................................3 Procedural Background .......................................................................................6 A. B. Higginson v. United States .........................................................................6 Congressional Reference/CFC Litigation .............................................7

ARGUMENT....................................................................................................................12 Standard of Review.........................................................................................................12 I. II. Rule 12 Motions Are Pre-Trial, Not Post-Trial Motions................................13 The Filing of an Amended Complaint Under Rule 15(b) Does Not Support the Filing of a Motion to Dismiss Under Rules 12(b)(1) & (6) or (c) ......................................................................................................................16 Rules of Finality (Law of the Case) Also Bar Defendant from Relitigating Issues that Have Already Been Ruled On by this Court ...............................19 This Court Has Jurisdiction to Enter Judgment Under the Tucker Act ......28 A. Congress Has Never Withdrawn Tucker Act Jurisdiction for Congressional Referrals .........................................................................28 Congress Expressed No Intent to Withdraw Tucker Act Jurisdiction Over Any Claims in S. 794 or S. Res. 98...............................................32

III.

IV.

B.

V. VI.

Plaintiffs Have Standing to Bring These Claims Under the Tucker Act.....33 The Statute of Limitations Is Equitably Tolled in this Case..........................39 A. Equitable Tolling Applies to the Tucker Act.......................................39

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B.

Defendant's Argument that Equitable Tolling Does Not Apply to Mutual Mistake Claims Should Be Rejected .......................................41 The Evidence Fully Supports Equitable Tolling.................................43

C. VII.

As This Court Has Already Ruled, Defendant Is Not Prejudiced by Plaintiffs' Claim of Mutual Mistake .................................................................46 As this Court Has Already Determined, the Facts Adduced at Trial Fully Support the Court's Finding of Mutual Mistake ............................................47 The Facts Adduced at Trial Also Support the Court's Proposed Damages Award..................................................................................................49 Plaintiffs Are Entitled to Receive Full Restitution of the Benefit Defendant Acquired by its Wrongful Acquisition of Plaintiffs' Oil and Mineral Rights .....................................................................................................52

VIII.

IX.

X.

CONCLUSION................................................................................................................56

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TABLE OF AUTHORITIES

CASES A.C. Aukerman Co. v. R.L. Chaides Const. Co., 960 F.2d 1020 (Fed. Cir. 1992) ............................................................................46 Advanced Cardiovascular Systems, Inc. v. Scimed Life Systems, Inc., 988 F.2d 1157 (Fed. Cir. 1993) ............................................................................14 American Pipe & Const. Co. v. Utah, 414 U.S. 538 (1974).........................................................................................35, 45 Arbaugh v. Y&H Corp., 546 U.S. 500 (2006)...............................................................................................14 Bald Eagle Ridge Protection Ass'n, Inc. v. Mallory, 119 F.Supp.2d 473 (M.D. Pa. 2000).............................................................. 12-13 Bannum, Inc. v. United States, 59 Fed. Cl. 241 (2003) ..........................................................................................28 Bishop v. United States, 26 Cl. Ct. 281 (1992).............................................................................................28 Blanchette v. United States, 419 U.S. 102 (1974)...............................................................................................33 Bradley v. Chiron Corp., 136 F.3d 1317 (Fed. Cir. 1998) ............................................................................17 Breyer v. Meissner, 214 F.3d 416 (3d Cir. 2000) .................................................................................37 Burnette v. Carothers, 192 F.3d 52 (2d Cir. 1999) ...................................................................................12 Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir. 1990) ................................................................................42 Cedars-Sinai Medical Center v. Watkins, 11 F.3d 1573 (Fed. Cir. 1993) ..............................................................................13

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Chung v. Dep't of Justice, 333 F.3d 273 (D.C. Cir. 2003)..............................................................................40 Circle K Corp. v. United States, 23 Cl. Ct. 659 (1991).............................................................................................28 Craigs, Inc. v. General Elec. Capital Corp., 12 F.3d 686 (7th Cir. 1993) ..................................................................................12 Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286 (3d Cir. 2005) .................................................................................36 Dep't of Army v. Kirkendall, 128 S.Ct. 375 (2007)..................................................................................10, 23, 39 Dole v. Arco Chemical Co., 921 F.2d 484 (3d Cir. 1990) .................................................................................17 Drew v. Dep't of Corrections, 297 F.3d 1278 (11th Cir. 2002) ............................................................................45 Drew v. Dep't of Corrections, 537 U.S. 1237 (2003).............................................................................................45 Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188 (9th Cir. 1989) ..............................................................................12 Feres v. United States, 340 U.S. 135 (1950)...............................................................................................14 First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279 (Fed. Cir. 1999) ............................................................................35 Firestone & Parson Inc. v. Union League of Philadelphia, 672 F. Supp. 819 (E.D. Pa. 1987) ........................................................................43 Foster v. United States, 733 F.2d 88 (Fed. Cir. 1984) .......................................................................... 46-47 Glidden Co. v. Zdanok, 370 U.S. 530 (1962).........................................................................................29, 30

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Henderson City Drainage Dist. No. 3 v. United States, 55 Fed. Cl. 334 (2003) ..........................................................................................28 Higginson v. United States, 384 F.2d 504 (6th Cir. 1967) ..............................................................................6, 7 Higginson v. United States, 390 U.S. 947 (1968).................................................................................................7 Hulsey v. United States, 6 Cl. Ct. 593 (1984)...............................................................................................32 In re Kenneth Allen Knight Trust, 303 F.3d 671 (6th Cir. 2002) ................................................................................21 I.N.S. v. Chadha, 462 U.S. 919 (1983).........................................................................................31, 33 Inslaw, Inc. v. United States, 35 Fed. Cl. 63 (1996) ............................................................................................32 Irwin v. Department of Veteran Affairs, 498 U.S. 89 (1990)...........................................................................................39, 40 J.B. McCrary v. United States, 84 F. Supp. 368 (Ct. Cl. 1949) .............................................................................32 Kirkendall v. Dep't of the Army, 412 F.3d 1273 (Fed. Cir. 2005) ......................................................................10, 39 Kirkendall v. Dep't of Army, 479 F.3d 830 (Fed. Cir. 2007) ..............................................................................23 Krahmer v. Christies, Inc., 903 A.2d 773 (Del. Ch. 2006) ..............................................................................43 Land Grantors v. United States, 64 Fed. Cl. 661 (2005) .................................................................................. passim Land Grantors v. United States, 69 Fed. Cl. 435 (2005) ................................................................................9, 10, 25

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Land Grantors v. United States, 71 Fed. Cl. 614 (2006) ........................................................................ 10, 25, 45-46 Land Grantors v. United States, 74 Fed. Cl. 518 (2006) .................................................................................. passim Land Grantors v. United States, 77 Fed. Cl. 686 (2007) .................................................................................. passim Landmark Land Co. v. United States, 46 Fed. Cl. 261 (2000) .........................................................................................52 Landmark Land Co. v. Federal Deposit Insurance Corp., 256 F.3d 1365 (Fed. Cir. 2001) ............................................................................53 Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003) ............................................................................41 Media Technologies Licensing, LLC. v. The Upper Deck Co., 334 F.3d 1366 (Fed. Cir. 2003) ............................................................................38 Mendenhall v. Barber-Greene Co., 26 F.3d 1573 (Fed. Cir. 1994) ........................................................................20, 21 Mendenhall v. Astec Industries, Inc., 513 U.S. 1018 (1994).............................................................................................20 Menendez v. Perishable Distributors, Inc., 763 F.2d 1374 (11th Cir. 1985) ............................................................................18 Miller v. Albright, 523 U.S. 420 (1998)...............................................................................................38 North American Philips Co. v. United States, 358 F.2d 980 (Ct. Cl. 1966) ..................................................................................32 Paine Webber Real Estate Sec., Inc. v. D.G. Meyer & Co., 835 F. Supp. 116 (S.D.N.Y. 1993) .......................................................................42 Powers v. Ohio, 499 U.S. 400 (1991)...............................................................................................37

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Sommers Oil Co. v. United States, 241 F.3d 1375 (Fed. Cir. 2001) ............................................................................12 Soriano v. United States, 352 U.S. 270 (1957)...............................................................................................39 Sosna v. Iowa, 419 U.S. 393 (1975)......................................................................................... 34-35 Suel v. Secretary of Health and Human Services, 192 F.3d 981 (Fed. Cir. 1999) ..............................................................................20 Texas State Bank v. United States, No. 04-5126, 2005 WL 2293078 (Fed. Cir. Sept. 21, 2005)...............................54 Tommaseo v. United States, 75 Fed. Cl. 799 (2007) ..........................................................................................14 United States v. $277,000 U.S. Currency, 69 F.3d 1491 (9th Cir. 1995) ..........................................................................53, 54 United States v. $515,060.42, 152 F.3d 491 (6th Cir. 1998) ................................................................................53 United States v. Beggerly, 524 U.S. 38 (1998).................................................................................................41 United States v. Brockcamp, 519 U.S. 347 (1997)...............................................................................................40 United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973)...............................................................................................36 Webb v. City of Dallas, Tex., 314 F. 3d 787 (5th Cir. 2002) ...............................................................................36 W.L. Gore & Associates, Inc. v. Garlock, Inc., 842 F.2d 1275 (Fed. Cir. 1988) ............................................................................21

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STATUTES & LAWS 28 U.S.C. § 1492 (West 2007)..........................................................................................31 28 U.S.C. § 2501 (West 2007)..............................................................................39, 40, 41 40 U.S.C. § 258(a) (West 2007) .........................................................................................3 40 U.S.C. § 101 (West 2007).......................................................................................... 6-7 Act of Oct. 15, 1966, Pub. L. 89-691 § 1, 80 Stat. 958 ...................................................28 Federal Courts Improvement Act of 1982, Pub. L. 97-164, tit. I, § 133(b), 96 Stat. 40 (codified as amended at 28 U.S.C. § 1491 (West 2007)) ......................... passim Ky. Rev. Stat. Ann. § 413.170 (West 2007) ...................................................................41 Ky. Rev. Stat. Ann. § 413.190 (West 2007) ...................................................................41 S. Res. 98, 103d Cong. (1993) ................................................................................... 32-33 Surplus Property Act of 194458 Stat. 765 (repealed 1949)...........................................6 War Purposes Act, 40 Stat. 241 (codified as amended at 50 U.S.C. § 171) ................3

RULES RCFC 12(b)(1) ........................................................................................................1, 11, 13 RCFC 12(b)(6) ........................................................................................................1, 11, 13 RCFC 12(c)..............................................................................................................1, 11, 14 RCFC 15(b) .......................................................................................................9, 11, 16, 17 RCFC 58 ............................................................................................................................11 RCFC 59(a)(1)......................................................................................................... 9, 15-16

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MISCELLANEOUS 4 Alba Conte & Herbert Newberg, Newberg on Class Actions §§ 2.5- 2.8 (4th ed. 2002)........................................................................................................35 5C Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. 3d § 1367 (2002).........................................................................................................15 6A Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. 2d § 1494 (2002).........................................................................................................17 18B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 4478 (2002)........................................................................................................21 61A Am. Jur. 2d Pleading § 770......................................................................................18

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PLAINTIFFS' OPPOSITION TO UNITED STATES' MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, MOTION FOR JUDGMENT ON THE RECORD Plaintiffs oppose Defendant's motion to dismiss (under Rules of the United States Court of Federal Claims ("RCFC") 12(b)(1) & (6), and (c)) their claim for relief under the Tucker Act, specifically Count I of the Second Amended Complaint, Mutual Mistake Claims for Restitution, on the grounds that Defendant's motion is untimely, barred by law of the case, and is without merit. In 2005, following an evidentiary hearing, this Court issued its first Interim Report stating that the trial testimony and evidence supported a conclusion that Plaintiffs were entitled to restitution for the Defendant`s unjust enrichment based on the parties' mutual mistake regarding the existence of significant minerals under the land it acquired to build Camp Breckinridge during World War II. In this Interim Report, the court ordered the parties to show cause why it should not enter final judgment under the Tucker Act, 28 U.S.C. Section 1491(a)(1), and stay issuance of a final report under the Congressional Reference statute, 28 U.S.C. Section 2509. In response, the parties fully briefed this jurisdictional issue. Nevertheless, and at every step in this litigation, Defendant continues to object and generate more briefing on what is at bottom the same issue, without regard either to the court's or the parties' resources. For example, when the court granted Plaintiffs' motion to file a second amended complaint to conform to the evidence adduced at trial, Defendant filed an opposition to the Tucker Act claims on the ground that the court should not enter judgment under the Tucker Act.

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When Plaintiffs filed a motion to reconsider Judge Merow's denial of class certification, Defendant opposed that motion arguing that this is a Congressional Reference case, not a case under the Tucker Act claim. And, when the court severed the claims prior to the mediation, assigning the Congressional Reference claims one number (Case No. 93-648-X) and the Tucker Act claims another number (Case No. 93-648-1L), Defendant again objected, asking for yet more briefing on whether the court should enter judgment under the Tucker Act. In short, although there has been an evidentiary hearing, a mediation, and multiple briefs by the parties over the last several years on the same issue, Defendant has filed this motion to dismiss arguing that this Court erred in concluding that the evidence presented at trial supported the finding of mutual mistake regarding the presence of mineral rights on the subject property such that final judgment for restitution should be entered in the Plaintiffs' favor under the Tucker Act. Defendant's present motion to dismiss Count I in the Second Amended Complaint is especially inappropriate because it attempts to misuse the Rule 15(b) housekeeping device as yet another opportunity to re-open every issue and previous ruling in the case related to the Tucker Act claim. Plaintiffs urge this Court to deny Defendant's motion for the reasons set forth herein and to enter final judgment in favor of Plaintiffs under the Tucker Act.

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I.

Factual Background Immediately after the attack on Pearl Harbor in December 1941, the federal

government recognized that it needed to quickly acquire land and establish Army training facilities. To accomplish this objective, it invoked the War Purposes Act, 40 Stat. 241 (codified as amended at 50 U.S.C. § 171), which authorized the government to utilize "quick take" condemnation proceedings, whereby the government could take immediate possession of land and negotiate or litigate a purchase price with the landowner after the property was acquired. Land Grantors v. United States, 64 Fed. Cl. 661, 666­667 (2005) ("Land Grantors I"); see also 40 U.S.C. § 258(a) (West 2007) (stating that title to land obtained by condemnation vests upon the filing of the declaration of taking). Utilizing its quick-take procedures, between February 1942 and May 1944, the government acted to acquire 35,849.28 acres of farmland in Union, Henderson, and Webster Counties in Kentucky for military training purposes and the establishment of Camp Breckinridge. Land Grantors I, 64 Fed. Cl. at 668­73. Pursuant to the War Purposes Act, the local U.S. Attorney filed petitions of condemnation in the local federal district court; the district court then authorized the transfer of title to the land from the owner to the United States, and issued orders to the landowners to vacate their land within days of receiving the order. Id. Agents for the government who acted on behalf of the government in acquiring the land told the landowners that after the war was over, they would get their farms back. Land Grantors I, 64 Fed. Cl. at 701­02 ("The court . . . has 3

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absolutely no doubt that many of the landowners entered into Contracts with the Government in 1942-1944 with the apparent understanding that they could repurchase their properties after World War II was concluded and, in some cases, at the same price that the Government paid for it or at a discount."); see also id. at 670 n.11 (noting that a former negotiator stated that "government negotiators were instructed by their superiors that if the property owners questioned whether or not they would be able to repurchase the property they were to be told that they would have the first option to repurchase the property after the war"). Under enormous (at times even abusive) pressure to immediately vacate their homes and farms, the majority of the Plaintiffs simply accepted the sale price "offered" to them by the federal agents; the remainder requested a jury trial to determine "just compensation." Id. at 664. Notably, one government agent was rated "unsatisfactory" in his dealings with the landowners because "as negotiator he used duress and threatening tactics." Land Grantors I, 64 Fed. Cl. at 670 n.11. Likewise, the government's Chief Negotiator for these land acquisitions received an "unsatisfactory" rating because his conduct "showed partiality in government dealings with public, used threatening & abusive methods of doing business, respectful to those of wealth and education, exceedingly abusive of ignorant & poverty stricken." Id. (citing DX 261 at PER0322-23). At the time, neither Defendant nor the landowners realized that valuable minerals were present in the land in quantities sufficient to "support exploration or operations." Land Grantors I, 64 Fed. Cl. at 703. Thus, the government failed 4

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properly to appraise and to pay any of the landowners in this case for the value of the minerals (e.g., oil, gas, coal) underlying the subject property, regardless of whether the price was negotiated, the initial option price was agreed to after the initial option phase but before trial, or compensation was litigated through trial. Altogether, "[t]he government paid the landowners approximately $3,107,341 for fee simple in all of the condemned properties, whether the price was negotiated or determined by jury." Id. Had Defendant fulfilled its promise to offer the land back to Plaintiffs for repurchase after the war, the parties' mutual mistake in failing to value the mineral rights would have been harmless. Id. at 673­77. Unfortunately, Defendant did not fulfill its promise to resell the land back to the owners. Later, though, when the government discovered oil, gas, and other minerals on the land, Defendant leased the mineral rights, and then sold the land, keeping for itself all the proceeds from the leasing and the sales. Id. at 677­80. Defendant's failure to value the minerals underlying the subject property unjustly enriched the government by at least $32,879,240. Id. at 709. Since the court's First Interim Report was issued, Defendant has identified an additional $157,442 in oil royalties, $441,477 in coal royalties, and Plaintiffs have identified an additional $825,295 in mathematical errors in documents cited by the trial court in its interim opinion. Accordingly, the court's original restitution amount of $32,879,240 should be adjusted upward to $34,303,481. In addition, Plaintiffs have determined that Defendant received $1,398,850 in royalties from mineral tracts 7A and 7B, and 5

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$35,017,116 in coal royalties from a coal lease and coal easement with Peabody Coal Company. In total, Defendant has been unjustly enriched by $70,719,447. 1 See Pls.' Mot. for Leave to Respond to Court's Dec. 15, 2005 Order 11-12 (Docket No. 200). II. Procedural Background A. Higginson v. United States

In response to the government's decision in the 1960s to sell off all the subject property, one of the landowners, Cyrus Higginson, filed a lawsuit in the U.S. District Court for the Western District of Kentucky challenging the validity and constitutionality of the sale of his father's property, and asserting the right to re-purchase it as promised at the time of the condemnation. See Higginson v. United States, 384 F.2d 504 (6th Cir. 1967). The Plaintiff asked the court to certify a class of "all former landowners, or heirs, successors, and assigns thereof, of 36,000 acres, namely Camp Breckinridge, in Union, Webster, and Webster Counties, Kentucky." Land Grantors I, 64 Fed. Cl. at 680. The lawsuit, however, was dismissed on jurisdictional grounds; the district court held that the suit had been improperly filed pursuant to the Surplus Property Act of 1944, 58 Stat. 765, a law that was repealed by the Federal Property and Administrative Services Act of This figure only includes the proceeds from mineral sales and leases that the government has acknowledged; it does not include the total compensation that would fully disgorge the government of the unjust enrichment it has received in the form of avoided interest for not being required to borrow the amount at issue for over 40 years. See Pls.' Mem. on Order to Show Cause (Docket 182) Oct. 3, 2005.
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1949, 40 U.S.C. § 101 (West 2007), before Higginson's suit was filed. Higginson v. United States, No. 2074 (W.D. Ky. Sep. 7, 1965) (unpublished), 384 F.2d 504 (6th Cir. 1967), cert. denied, 390 U.S. 947 (1968). The Higginson Court never ruled on the class certification issue, and the putative class was never given notice of dismissal as required by the Due Process Clause. B. Congressional Reference/CFC Litigation

Following dismissal of the Higginson lawsuit, the landowners, loosely organized as the Tri-County Land Committee -- later renamed the Breckinridge Land Committee -- pursued relief in Congress for twenty-five years. Land Grantors I, 64 Fed. Cl. at 685. In 1993, the United States Senate finally referred the claims in this case to the U.S. Court of Federal Claims for resolution pursuant to 28 U.S.C. Section 2509, and a complaint was filed in 1994. Land Grantors I, 64 Fed. Cl. at 685­86. On November 24, 1998, Judge Merow, the original hearing officer in this case, granted in part Defendant's motion to dismiss certain plaintiffs. Order 9 (Nov. 24, 1998). Judge Merow also denied the Plaintiffs' motion to certify a class, explaining that class actions are disfavored in the Court of Federal Claims. Order 2 (Dec. 23, 1997). Settlement discussions ensued off and on over the next five years. On August 15, 2003, this case was reassigned to the presiding judge. Land Grantors I, 64 Fed. Cl. at 688. On September 8­10, 2004 and November 23, 2004, the court held an evidentiary hearing. As this Court later summarized its findings and conclusions: 7

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[D]espite the unavailability of first-hand witnesses due to death or ill-health and the Government's claim that it no longer possessed a substantial number of relevant documents, the court held that the documents that were introduced at trial or in the public domain, as well as the testimony of the Government's experts, established by a preponderance of the evidence that the 1942-1944 contracts were based on a mutual mistake that no coal, gas, oil, or other mineral deposits existed under the condemned properties that would support exploration or operation. Land Grantors v. United States, 74 Fed. Cl. 518, 521 (2006) ("Land Grantors IV"), citing Land Grantors I, 64 Fed. Cl. at 703-708. After the evidentiary hearing, the court's call for more information from Defendant, and the court's painstaking review of the voluminous document comprising the record, on April 1, 2005, the court issued an Interim Report, finding that the transactions entered into between Defendant and landowners between 1942 and 1944 for land condemned for use as Camp Breckinridge were void because they were based on the mutual mistake that no significant economically recoverable coal, gas, oil, and other mineral deposits existed under the condemned property. Having further concluded that the facts supported a conclusion that the statute of limitations had been equitably tolled, the trial court held that Plaintiffs were entitled to restitution of the value of the mineral rights from Defendant. Land Grantors I, 64 Fed. Cl. at 712­13. Before issuing its Final Report, the court ordered the "parties to show cause why the court should not exercise jurisdiction, pursuant to 28 U.S.C. § 1491(a)(1), to enter a final judgment and stay issuance of a report on S. 794, pursuant to 28 U.S.C. § 2509." Id. at 717.

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On October 3, 2005, in accordance with the court's direction in the April 1, 2005 Interim Report and Memorandum Opinion, Plaintiffs filed the Second Amended Complaint in which a count for restitution based on mutual mistake and an additional basis for jurisdiction were added to conform the complaint to evidence adduced at trial. See Land Grantors I, 64 Fed. Cl. at 708 ("Accordingly, Plaintiffs will be afforded 60 days within which to file a concise Second Amended Complaint to conform to the evidence and issues tried in this case, as specifically discussed herein."); see also RCFC 15(b). In response, Defendant filed an objection styled "Defendant's Opposition to Filing of Plaintiffs' Proposed Second Amended Complaint." Although not formally filed as a motion for reconsideration, Defendant's Opposition sought reconsideration of the court's order that an amended complaint be filed. See RCFC 59(a)(1). On December 29, 2005, the court ordered the parties to submit briefs addressing "whether certification is appropriate in light of the 2002 revision of RCFC 23, the evidence adduced at trial and thereafter, and the court's ruling that the April 15, 1965 filing of the Higginson suit as a class action . . . was sufficient to allow equitable tolling of the statute of limitations." Land Grantors v. United States, 69 Fed. Cl. 435, 436-37 (2005) ("Land Grantors II"). The court additionally requested "a statement of the requirements for class membership and a proposed course of action for meeting the notice requirement." Id. at 437. Accordingly, on January 31, 2006, the parties filed briefs responsive to the court's Order. Defendant, however, moved to strike Plaintiffs' responsive filing. Defendant's 9

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motion to strike centered on the objection at issue here -- Defendant's continuing objection to allowing Plaintiffs' to assert claims under the Tucker Act. Plaintiffs responded to Defendant's motion to strike, arguing among other things that "that the parties have already fully briefed the jurisdictional issues." Pls.' Opp. 7, Mar. 2, 2006. Land Grantors II, 69 Fed. Cl. at 436. On June 22, 2006, the court granted Plaintiffs' motion for class certification over Defendant's objection. Land Grantors v. United States, 71 Fed. Cl. 614, 626­27 (2006) ("Land Grantors III"). On December 14, 2006, the court issued its Second Interim Report identifying two unresolved issues in the case: the date Plaintiffs' mutual mistake accrued and whether the doctrine of equitable tolling applies under the Tucker Act. Land Grantors IV, 74 Fed. Cl. at 523-24. The court deferred issuing a final ruling in this case until the Federal Circuit's en banc decision in Kirkendall v. Dep't of the Army, 412 F.3d 1273, 1275-78 (Fed. Cir. 2005) (en banc) (applying the Irwin presumption of equitable tolling under the Veteran's Employment Opportunity Act), cert. denied, Dep't of Army v. Kirkendall, 128 S.Ct. 375 (2007), was issued and final. The court also asked the parties if they would consent to the appointment of a mediator to attempt resolution of the claims in this case, which they did. Thereafter, the court issued an order severing the claims into two cases, the Congressional Reference claims one number (Case No. 93-648-X) and the Tucker Act claims another number (Case No. 93-648-1L). Defendant objected, asking that the parties again engage in briefing on the issue of whether the claims can be filed under the Tucker Act, which the court denied. Order (Feb. 28, 2007). 10

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Subsequently, the parties entered into mediation, with the Honorable Justice Sandra Day O'Connor serving as the mediator. Unfortunately, Plaintiffs, consistent with the court's Order of February 8, 2007, had no choice but to apprise the court that a settlement could not be achieved. Pl.'s Notice of Withdrawal, May 18, 2007. Accordingly, the court issued an order granting the parties' request that the court stay the Congressional Reference claims, and resolve the Tucker Act claims first. Land Grantors v. United States, 77 Fed. Cl. 686, 687 (2007) ("Land Grantors V"). The court also granted, over Defendant's objection, Plaintiffs' motion to amend the complaint pursuant to RCFC 15(b), a pleading that the court had directed Plaintiffs to file. Id. at 687. The court explained: In this case, the Government introduced at trial the primary evidence on which Plaintiffs based the Amended Complaint's mutual mistake claim. Accordingly, the Government cannot "satisfy the court that the admission of such evidence would prejudice the [Government] in maintaining . . . [the] defense upon the merits." Id. (alterations in original). In addition to granting Plaintiffs' motion to amend, the court also gave Defendant leave to file "a Motion to Dismiss in Case No. 93-648L (Tucker Act claims) and any other dispositive motions on the merits . . . . " Id. On October 1, 2007, Defendant filed its motion to dismiss, under RCFC 12(b)(1) & (6), and (c)), or alternatively that the court enter judgment in its favor under RCFC 58 (Entry of Judgment).

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ARGUMENT Standard of Review "When reviewing a dismissal for failure to state a claim upon which relief can be granted under . . . Rule 12(b)(6) of the Federal Rules of Civil Procedure, we must accept as true all the factual allegations in the complaint[.]" Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001). "A trial court should not dismiss a complaint for failure to state a claim unless it is beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Id. (internal quotation marks omitted). Rule 12(c) motions are analyzed under the same standard as Rule 12(b)(6) motions, with the main difference between the two motions being timing. See, e.g., Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999) ("In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party."); Craigs, Inc. v. General Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir. 1993) ("A motion under Rule 12(c) is subject to the same standard as a motion to dismiss under Rule 12."); Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989) ("The principal difference between motions filed pursuant to Rule 12(b) and Rule 12(c) is the time of filing. Because the motions are functionally identical, the same standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c) analog."); Bald Eagle Ridge Protection Ass'n, Inc. v. Mallory, 119 F.Supp.2d 473, 476 (M.D. Pa. 2000) ("The

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primary difference is that a Rule 12(c) motion is filed after an answer while a Rule 12(b)(6) motion is filed before an answer."). I. Rule 12 Motions Are Pre-Trial, Not Post-Trial Motions In its motion to dismiss, the Defendant repeatedly asserts that Plaintiffs' claims "must be dismissed for failure to state a claim upon which relief can be granted." (Def. Mem. at 7, 45, 60.) The plain language of Rule 12 indicates that such motions are intended as pre-trial, not post-trial motions. RCFC 12(b)(1) & (6) provide: Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter . . . (6) failure to state a claim upon which relief can be granted. . . . A motion making any of these defenses shall be made before pleading if a further pleading is permitted. RCFC 12(b) (emphasis supplied). Rule 12(b) motions, thus, typically must be filed before a responsive pleading because, by their nature, the relief sought by such motions is a preanswer dismissal of the claim. See RCFC 12(b) (motions "must be made before pleading if a responsive pleading is allowed"); Cedars-Sinai Medical Center v. Watkins, 11 F.3d 1573, 1577 n.6 (Fed. Cir. 1993) (stating that the court "correctly refused to entertain" Rule 12(b)(6) motion that was made after opponent had already filed an answer to a complaint). At most, a Rule 12(b)(6) objection

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"endures up to, but not beyond, trial on the merits . . . ." Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) (citations omitted). The policy against entertaining a Rule 12(b)(6) motion at such a late stage in litigation is that such motions "challenge[] the legal theory of the complaint, not the sufficiency of any evidence that might be adduced. The purpose of the rule is to allow the court to eliminate actions that are fatally flawed in their legal premises and destined to fail, and thus to spare litigants the burdens of unnecessary pretrial and trial activity." Advanced Cardiovascular Systems, Inc. v. Scimed Life Systems, Inc., 988 F.2d 1157, 1160 (Fed. Cir. 1993). In the unusual instances where courts have allowed motions to dismiss after a trial, those motions have been tailored to pre-trial identified issues of law. See Tommaseo v. United States, 75 Fed. Cl. 799 (2007) (denying without prejudice Government's pretrial challenge to jurisdiction, but leaving it open to reassertion after discovery either on a motion for summary judgment or after trial); Feres v. United States, 340 U.S. 135 (1950) (affirming judgment where a district court reexamined issue of law that was brought up in pretrial motion and denied without prejudice). RCFC 12(c) ­ Motion for Judgment on the Pleadings--provides: After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in RCFC 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by RCFC 56. 14

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As noted in 5C Wright & Miller, Fed. Prac. & Proc. Civ. 3d § 1367, a motion under Rule 12(c) is unavailing where it raises issues that have been ruled on: It should be stated again, however, that Rule 12(c) cannot be used to assert Rule 12(b) defenses that have not been raised previously in the pleadings or by preliminary motion or are not expressly preserved by Rule 12(h). They quite appropriately will be deemed to have been waived by nonassertion in timely fashion. 5C Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. 3d § 1367 (2002) (footnotes omitted). Here, Defendant's motion to dismiss does not fall within any of the narrow exceptions which would allow for post-trial Rule 12 motion, either in the broad scope of its argument or in its renewed challenges of the court's evidentiary findings and prior rulings. Indeed, far from leaving open pretrial issues for subsequent, post-trial briefing or decision, the court has rejected Defendant's argument at trial and after the trial, without reservation. See, e.g., Land Grantors I, 64 Fed. Cl. at 707-08. To the extent that Defendant raised Rule 12(b) arguments at prior stages of this litigation, the court has rejected them, with prejudice. See Land Grantors I, 64 Fed. Cl. at 709 (addressing application of Government's asserted defense based on statute of limitations); Land Grantors V, 77 Fed. Cl. at 687 (denying Government's Objection, which contained similar arguments to Government's present Motion). Finally, Rule 12(c) is not the appropriate vehicle for challenging this court's prior rulings and Defendant has no authority supporting its use in the posture of this case. Cf. RCFC 59(a)(1)

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("[R]econsideration may be granted to all or any of the parties and on all or part of the issues, for any of the reasons established by the rules of common law or equity applicable as between private parties in the courts of the United States."). Accordingly, Defendant's motion to dismiss Count I of Plaintiffs' Second Amended Complaint should be denied as untimely, contrary to law of the case, and outside the scope of permissible Rule 12 motions. II. The Filing of an Amended Complaint Under Rule 15(b) Does Not Support the Filing of a Motion to Dismiss Under Rules 12(b)(1) & (6) or (c) Under this Court's rules, following an evidentiary hearing, the court may allow a party to amend its pleadings in order to conform the pleading to the evidence presented at trial: Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. RCFC 15(b) (emphasis supplied).

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While Rule 15(b) encourages courts to grant leave to amend a complaint where doing so will facilitate the resolution of cases "on the merits rather than on technicalities," Dole v. Arco Chemical Co., 921 F.2d 484, 487 (3d Cir. 1990) (amendment to conform a pleading to evidence presented at trial not required), RCFC 15(b) states: "[s]uch amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues" (emphasis supplied); see also Bradley v. Chiron Corp., 136 F.3d 1317, 1327 (Fed. Cir. 1998) ("The liberal pleading requirements of the Federal Rules encourage the grant of leave to amend."). As the Rule itself states, the amendment, or the failure to amend, does not the affect the result of the trial on issues. As explained in 6A Wright & Miller, Fed. Prac. & Proc. Civ. 2d § 1494, an amendment of a pleading pursuant to Rule 15(b) leaves the result of a trial undisturbed: Since the rule also provides that a failure to amend will not affect the actual result of the trial as it relates to the adjudication of the unpleaded issues, as long as they are tried with the consent of the parties, the timing of the motion to conform is of little moment. Nor is the timing of a motion to amend under Rule 15(b) affected by the fact that the modification would change the theory of the case or the nature of one or more of the originally pleaded defenses. 6A Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. 2d § 1494 (2002) (footnotes omitted).

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When objecting to Rule 15(b) amendments, therefore, defendants should not raise pre-trial objections that might be proper under Rule 12, but instead must establish unfair prejudice resulting from a RCFC 15(b) amendment, such as might occur when an objecting party is surprised by evidence and has no reasonable opportunity to prepare for it. See Menendez v. Perishable Distributors, Inc., 763 F.2d 1374, 1379 (11th Cir. 1985) ("[T]he district court abused its discretion by permitting the appellees to amend their answer at trial and assert the affirmative defense of release without giving [appellant] a fair opportunity to gather and present rebuttal evidence which, under the applicable state law, he was entitled to introduce."); 61A Am. Jur. 2d Pleading § 770 ("In some jurisdictions, it is within the trial court's discretion to allow the amendment of pleadings until and even after judgment, as long as the amendment does not unfairly deprive the adverse party of the opportunity to contest the issues that it raises."). In this case, on April 1, 2005, the court issued an Order allowing Plaintiffs to file a Second Amended Complaint pursuant to RCFC 15(b), the purpose of which was expressly to allow the complaint to be amended to conform to the evidence presented at trial and thereafter. Land Grantors I, 64 Fed. Cl. at 708. On October 3, 2005, Plaintiffs filed their Second Amended Complaint, adding in Count I for mutual mistake based directly on the evidence supporting the claim introduced at trial. See Second Am. Compl. (Count I quoted in footnote 3). The amendment was limited to issues tried by express or implied consent of the parties. 18

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Thus, not only has Defendant had the opportunity to litigate the very issues it complains of in this motion, it has also already had the opportunity to oppose the filing of the Second Amended Complaint. In ruling against Defendant's objections to the amendment prior to its filing, the court specifically rejected Defendant's argument, which it raises again here, that it will be prejudiced by Count I in the Second Amended Complaint: In this case, the Government introduced at trial the primary evidence on which Plaintiffs based the Amended Complaint's mutual mistake claim. Accordingly, the Government cannot `satisfy the court that the admission of such evidence would prejudice the [Government] in maintaining . . . [the] defense upon the merits. Land Grantors V, 77 Fed. Cl. at 687. Thus, Defendant can show no unfair prejudice based on the amendment, and cites to no authority supporting its effort to reopen issues resolved at trial. Accordingly, the court should deny Defendant's motion to dismiss Count I of the Second Amended Complaint as raising issues already ruled on and failing utterly to show prejudice to Defendant in its defense of this lawsuit or the claims therein. III. Rules of Finality (Law of the Case) Also Bar Defendant from Relitigating Issues that Have Already Been Ruled On by this Court Law of the case is a judicially created doctrine designed to promote judicial efficiency and to prevent endless litigation over issues that already have been decided within a case. Under this doctrine, a court generally will refuse to reopen or reconsider what it has already decided, both expressly and by implication, at an earlier stage of litigation. As the Federal Circuit has stated:

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Law of the case is a judicially created doctrine, the purpose of which is to prevent relitigation of issues that have been decided. The doctrine operates to protect the settled expectations of the parties and promote orderly development of the case. It ensures judicial efficiency and prevents endless litigation. Its elementary logic is matched by elementary fairness - a litigant given one good bite at the apple should not have a second. Under law of the case, then, a court will generally refuse to reopen or reconsider what has already been decided at an earlier stage of the litigation. Suel v. Secretary of Health and Human Services, 192 F.3d 981, 984-85 (Fed. Cir. 1999) (citations and internal quotation marks omitted). Although not binding, courts generally adhere to law of the case unless exceptional circumstances are present: The law of the case does not involve preclusion after final judgment, but rather it regulates judicial affairs before final judgment. 18 Charles A. Wright, et al., Federal Practice and Procedure § 4478 (1981). It is a doctrine resting on the need for judicial economy. A court will not generally revisit an issue once decided in the litigation." Although courts are often eager to avoid reconsideration of questions once decided in the same proceeding, it is clear that all federal courts retain power to reconsider if they wish." Mendenhall v. Barber-Greene Co., 26 F.3d 1573, 1582 (Fed. Cir.) (quoting Charles A. Wright & Arthur R. Miller, 18 Federal Practice and Procedure § 4478 (1981)), cert. denied, Mendenhall v. Astec Industries, Inc., 513 U.S. 1018 (1994). The Federal Circuit has held that intervening changes in applicable authority can serve as a basis for reconsideration of a previous decision. Mendenhall, 26 F.3d at 1582. Other courts have reconsidered their law of the case to avoid clear error or to prevent a manifest injustice:

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In Central Soya, Inc. v. George A. Hormel & Co., 723 F.2d 1573 (Fed. Cir. 1983), this court was asked to reconsider a decision of the Court of Appeals for the Tenth Circuit upholding a district court's judgment of liability, rendered on interlocutory appeal. In accordance with other circuits, we held the law of the case doctrine is a policy not a command even respecting a prior appellate decision in the case, and should be applied as a matter of sound judicial practice, under which a court generally adheres to a decision in a prior appeal in the case unless one of three "exceptional circumstances" exists: the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice. Id. (citations omitted or abbreviated). In W.L. Gore & Associates, Inc. v. Garlock, Inc., 842 F.2d 1275, 1278 (Fed. Cir. 1988), the Federal Circuit affirmed that the trial court's application of the law of the case doctrine extended to issues decided by necessary implication: "[t]he law of the case doctrine was judicially created to ensure judicial efficiency and to prevent the possibility of endless litigation. The doctrine applies not only to issues discussed and decided but also those decided by necessary implication." (citations omitted); see also 18B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 4478 (2002) ("The decision of an issue need not be express to establish the law of the case. Implicit decision suffices . . . ." (quoted in In re Kenneth Allen Knight Trust, 303 F.3d 671, 676 (6th Cir. 2002))). Here, Defendant has shown no exceptional circumstances to overcome application of the law of the case doctrine. Rather, Defendant explicitly challenges numerous issues in its motion to dismiss, most of which have been litigated and decided at an earlier stage of litigation. Thus, although the court granted 21

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Defendant's request to "file a Motion to Dismiss . . . and any other dispositive motion on the merits," Land Grantors V, 77 Fed. Cl. at 687, it is unreasonable to assume that the court thereby authorized Defendant to challenge the court's entire body of prior factual and substantive rulings in the case. To the contrary, the policy embodied in the law of the case doctrine necessarily limits the scope of any dispositive motions at this stage to issues that have not been litigated and decided at an earlier stage. In Land Grantors I, the court ordered the parties to show cause why it should not exercise jurisdiction pursuant to 28 U.S.C. Section 1491(a)(1), enter a final judgment, and stay issuance of a Report on S. 794 -- the Congressional Reference that originally brought this matter before the court. 64 Fed. Cl. at 71718. The show-cause order invited briefing on a jurisdictional question to be resolved "prior to entry of a Report or Memorandum Opinion and Final Judgment." This inquiry was bound up with the court's "concerns for the proper treatment of the former landowners." Id. at 718. Following briefing, the court forecast two outcomes: forwarding its report to the Review Panel, or issuing a final judgment under the Tucker Act -- that Defendant could appeal. Id. ("In the event the court is reversed on appeal, the court would . . . finalize this Interim Report, and forward it to the [Senate] Review Panel."). The court, however, cast no doubt about the substance of the rulings themselves. Indeed, irrespective of the ultimate resolution of the jurisdictional question, the court's three key conclusions remained intact: (1) contracts entered 22

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into between Defendant and landowners were void because they were based on mutual mistake, id. at 703; (2) restitution was the appropriate remedy for the mutual mistake, id. at 708; and (3) the evidence compelled of equitable tolling the statute of limitations on claims of former landowners and their heirs, id. at 711. In light of its prior factual determinations and legal rulings regarding equitable estoppel, mutual mistake, and the Plaintiffs' entitlement to restitution for Defendant's unjust enrichment, in Land Grantors IV, the court posed two other limited jurisdictional questions: Assuming that the court exercises jurisdiction under 28 U.S.C. § 1491 and stays the congressional reference, the court must address two other threshold jurisdictional issues. First when did Plaintiffs' mutual mistake accrue. And, second, whether the doctrine of equitable tolling stays the Tucker Act's six year statute of limitations . . . [and if so] whether the doctrine of equitable estoppel bars the application of the statute of limitations. 74 Fed. Cl. at 523-24 (citation and footnote omitted). The court determined that the interests of justice require deferral of a final disposition in this case until the en banc decision in Kirkendall is issued and final," at which time the parties were requested to "provide their views as to whether the presumption of equitable tolling . . . applies to the Tucker Act; and whether the court's disposition thereof should be certified for interlocutory appeal. Id. The Federal Circuit subsequently held in Kirkendall v. Dep't of Army, 479 F.3d 830 (Fed. Cir.) (en banc), cert. denied, Dep't of Army v. Kirkendall, 128 S.Ct. 375 (2007), that "the presumption of equitable tolling was not rebutted in the Veterans Employment Act of 1998." Because the final ruling in that case is consistent with

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the prior equitable estoppel rulings of this court in its Interim Report, Kirkendall does not qualify as an exceptional circumstance warranting disregard for the law of the case doctrine. Given that Defendant has provided the court with no new reason or argument whatsoever to compel the court to reverse itself on its prior rulings, it would therefore be inappropriate to treat the court's allowance of a motion to dismiss as an open-ended invitation to re-litigate any and all issues decided in this case. Thus, Defendant's motion and arguments must be expected to conform to the law of the case and rejected where they do not. Law of the case bars the following arguments: Part III(A). Defendant argues against the court entering judgment under the Tucker Act, in part by repeating its prior challenges to the court's decision to allow Plaintiffs to file a Second Amended Complaint. It is self-evident; however, a motion for judgment on the pleadings is unpersuasive when it makes no reference to the pleadings actually filed. In any event, the court has spoken: "Accordingly, the court denies the Government's October 21, 2005 Objection to filing of Plaintiffs' Second Amended Complaint. Plaintiff's October 3, 2005 Second Amended Complaint, filed in response to the court's April 1, 2005 Order, comports with the standards of RCFC 15(b)." Land Grantors V, 77 Fed. Cl. at 687.

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Law of the case precludes re-litigating this issue. 2 Part III(B). The court also already has held that Plaintiffs have standing: "Plaintiffs have met both of these standing requirements in this case." Land Grantors I, 64 Fed. Cl. at 696. Law of the case demands that the court deny Part III(B) Defendant's motion. Part III(C)(3). Defendant's argument seeks to re-litigate whether "the facts of this case" warrant application of equitable tolling. This argument is nothing more than a series of challenges either to the evidentiary basis for the court's previous findings and legal conclusions, or a challenge to the findings and conclusions themselves. See, e.g., Def.'s Mem. 33 ("The Court's finding is also not supported by the record."); id. at 35 ("The Court's preliminary finding is also not supported by the record."); id. at 37 ("The Court's apparent conclusion . . . cannot be sustained."); id. at 40 ("[T]he supposedly-missing evidence is irrelevant . . . ."). The court ruled in its Interim Report that the doctrine of equitable tolling applies to Claims under Tucker Act Land Grantors I, 64 Fed. Cl. at 712-13. In addition, the court has emphasized: that the "unique and sui generis circumstances of this case" justifies application of equitable tolling. Land Grantors I, 64 Fed. Cl. at 713; Land Grantors II, 69 Fed. Cl. at 436; Land Grantors III, 71 Fed. Cl. at 620.

The first, fourth, fifth, and sixth (including subparagraphs numbered 1-3) paragraphs of Part III(A) should be rejected because they raise issues that have already been litigated and decided.
2

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Subsequent to its findings and rulings on equitable estoppel, the court indicated that it might revisit the legal issue, depending on the outcome of Kirkendall. Land Grantors IV, 74 Fed. Cl. at 525. Kirkendall is now final and is consistent with the Interim Report. Law of the case precludes revisiting these issues yet again. Defendant also seeks to re-litigate whether Defendant is prejudiced by the application of equitable tolling. The court already has "determined that the Government is not prejudiced by application of the doctrine of equitable tolling." Land Grantors I, 64 Fed. Cl. at 716. Defendant's complaint that equitable tolling was not raised until after trial is specious. The facts giving rise to equitable estoppel are the same facts relevant to and admitted at trial on the laches question, which always has been an issue. Nevertheless, the court has addressed and rejected Defendants' complaints. Part III(D). Defendant argues that Count I of the Second Amended Complaint is barred by the doctrine of laches. The court could not have ruled more clearly on this issue in Land Grantors I -- laches is "inapplicable" and "not relevant" here, and "in any event the Government cannot bear the burden to establish that delay in bringing a complaint in this court was unreasonable and caused the Government any prejudice." 64 Fed. Cl. at 716-717. It is inexplicable how an argument in a motion for judgment on the pleadings could include assertions so contrary to a court's conclusions following trial. Accordingly, this argument should be denied by law of the case. 26

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Part III(E). Defendant argues that Count I must be dismissed for "failure to state a claim upon which relief can be granted," structuring its argument around the elements necessary for reformation of a written agreement on the ground of a mutual mistake. These issues have already been litigated and decided in Plaintiffs' favor. Indeed, in Land Grantors I, the court addressed at length the identical elements listed by Defendant in its Motion and held that the 1942-44 contracts were "based on a mutual mistake." 64 Fed. Cl. at 707. These are further established by the necessary implication of the court's opinion in Land Grantors IV, leaving open only the question of "when did Plaintiffs' mutual mistake claim accrue." 74 Fed. Cl. at 524. But since Defendant acknowledges that Plaintiffs' mutual mistake claim accrued "no later than September 1967," Def.'s Mem. 17, 44, accrual is not at issue. The remaining portions of Defendant's arguments in Part III(E) also contravene the law of the case doctrine. At several points, Defendant disagrees with what it characterizes as the court's preliminary determination, finding, or application of legal authority. Def.'s Mem. 45 ("the evidence does not support this [Court's] finding"); id. at 46 ("The Court's decision conflicts with these principles."); id. at 48 ("The United States respectfully disagrees [with what the Court `preliminarily determined']."); id. at 50 ("The United States disagrees [with the Court's finding]."). Defendant's arguments plainly are aimed at what the court already has ruled, determined, or found, not at Plaintiffs' "failure to state a claim upon which relief can be granted." Such arguments are suited for an appeal 27

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or motion for reconsideration, not a motion for judgment on the pleadings. 3 Certainly, they should be rejected under the law of the case. IV. This Court Has Jurisdiction to Enter Judgment Under the Tucker Act Defendant's motion also