Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

Document 269

Filed 05/19/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CAROLE AND ROBERT TESTWUIDE, et. al. ) ) ) ) ) ) ) ) ) ) )

Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

No. 01-201L Honorable Victor J. Wolski

DEFENDANT=S MOTION TO ENFORCE THE SETTLEMENT AGREEMENT WITH RESPECT TO PLAINTIFFS FLORA, MATTHEWS, AND WALLER Defendant, United States, hereby moves to enforce the Settlement Agreement & Release ("Settlement Agreement") with respect to certain Plaintiffs who refuse to provide the United States with avigation easements as required by the Settlement Agreement entered into by the parties on May 15, 2007. Exhibit A. Plaintiffs Charles Flora (404 Gregory Lane, Virginia Beach, Virginia 23451), Buddy Matthews (217 68th Street Virginia Beach, Virginia 23451), and Buffy Waller (3340 Ives Road Virginia Beach, Virginia 23456) were included in the Whitley v. United States Complaint, No. 04-1331L (Filed August 16, 2004), alleging a taking of the property by the United States as a result of flight operations of F/A-18 C/D aircraft at Naval Air Station Oceana. Whitley v. United States was consolidated with other related cases under Testwuide v. United States on February 14, 2005. The related cases were included in the Settlement Agreement, which requires, inter alia, Plaintiffs to provide the United States with a permanent avigation easement in exchange for their portion of the settlement proceeds. As discussed below, these Plaintiffs must be ordered to comply with the express terms of the

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Settlement Agreement, which require each of them to provide the United States with an avigation easement. Although federal courts generally have limited jurisdiction, they can enforce settlement agreements concerning causes of actions that remain pending. See Langley v. Jackson State Univ, 14 F.3d 1070, 1075 (5th Cir. 1994); Massachusettes Casualty Ins. Co. v. Forman, 469 F.2d 259 (5th Cir. 1972); Cf. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994) (unless a court retains jurisdiction over a settlement contract in its dismissal order or otherwise has some independent basis for federal jurisdiction, it may not enforce a settlement agreement with respect to an action that has been dismissed). Given that the consolidated cases under Testwuide v. United States, including Whitley v. United States, remain pending, this Court has the power to enforce the Settlement Agreement. Settlement agreements are contracts. Massie v. United States, 40 Fed. Cl. 151, 164-65 (1997). "[C]ontract interpretation principles may be used to determine the[ir] validity." Id. at 165; see also Core-Vent Corp. v. Implant Innovations, Inc., 53 F.2d 1252, 1258 (Fed. Cir. 1995); Link v. Dep't of Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995) (citing Greco v. Dep't of Army, 852 F.2d 558, 560 (Fed. Cir. 1988)); Bloomington Hosp. v. United States, 29 Fed. Cl. 286, 292 (1993). An agreement is binding if the parties agree on all material terms. Seymour v. Hug, 413 F. Supp. 2d 910, 925 (N.D. Ill. 2005). Whether the parties came to agreement is determined not by their subjective intent, but by what they expressed to each other in their writings. Id. see also International Transducer Corp. v. United States, 30 Fed. Cl. 522, 526-27 (1994). In the present case, the parties expressly specified the terms of the settlement in the Settlement Agreement. The plain language of the Settlement Agreement makes it clear that the

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parties intended to be bound by the terms of the agreement, and in consideration for the specified payment from the United States that Plaintiffs would comply with its terms1: In exchange for their share of the payment specified in paragraph 1 and as a condition to receiving any compensation, all Plaintiffs participating in the Settlement as reflected in the list provided by Counsel for Plaintiffs (and attached as Exhibit B), and Plaintiffs' attorneys acting on their behalf, agree to this Settlement Agreement & Release. Exhibit A ¶ 7. Nicholson v. United States, 29 Fed. Cl. 180, 192 (1993) ("courts are loathe to find ambiguity where the terms of the contract can be brought into harmony by a plain meaning interpretation"). Plaintiffs Flora, Matthews, and Waller were included among the Plaintiffs that participated in the settlement and agreed to its terms. Exhibit A ¶ 7. Moreover, Plaintiffs explicitly agreed, inter alia, as a "condition to receiving any compensation ... [to] grant the United States a perpetual and permanent avigation easement." Exhibit A ¶ 8. (emphasis added). Plaintiffs' counsel has informed Defendant's counsel that Plaintiffs Flora, Matthews, and Waller refuse to sign avigation easements over to the United States as expressly required in the Settlement Agreement. Further, despite the plain language of the Settlement Agreement, which mandates that they provide an avigation easement to the United States to be entitled to any compensation, these Plaintiffs are still improperly demanding a portion of the settlement proceeds. In light of the plain meaning of the Settlement Agreement and Plaintiffs Flora, Matthews, and Waller participation thereof, they are required to provide the United States with an avigation easement.

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In accordance with the Settlement Agreement, the settlement payment has been transferred to an escrow account,

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CONCLUSION For the foregoing reasons, Defendant respectfully moves this Court to order Plaintiffs Charles Flora (404 Gregory Lane, Virginia Beach, Virginia 23451), Buddy Matthews (217 68th Street Virginia Beach, Virginia 23451), and Buffy Waller (3340 Ives Road Virginia Beach, Virginia 23456) to provide the United States with signed avigation easements with respect to the listed properties in accordance with the express terms of the Settlement Agreement.

Dated: May 19, 2008

Respectfully submitted,

Ronald J. Tenpas Assistant Attorney General Environmental & Natural Resources Division United States Department of Justice

/s/ Steven D. Bryant Steven D. Bryant Environmental & Natural Resources Division United States Department of Justice 601 D Street, NW, Rm. 3120 Washington, D.C. 20004 Counsel for Defendant [email protected] 202-305-0424 Of Counsel: Robert J. Smith Navy Litigation Office 720 Kennon Street Washington Navy Yard, D.C. 20374

Jet Noise Lawsuit Settlement Trust Account, managed by Plaintiffs' counsel.

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