Haggart v. United States

In the United States Court of Federal Claims
No. 09-103L

(Filed: May 4, 2017)

************************************
Daniel and Kathy HAGGART, et al., For ) Rails-to-trails class action; settlement;
Themselves and As Representatives of a ) appeal of approval of settlement
Class of Similarly Situated Persons, ) agreement; remand; application of the
) mandate rule to remanded case;
Plaintiffs, ) enforceability of settlement agreement
) as binding contract
v. )
)
UNITED STATES, )
)
Defendant. )
)
************************************

Thomas S. Stewart, Stewart Wald & McCulley LLC, Kansas City, Missouri, for plaintiffs
Daniel Haggart and Kathy Haggart, et al. With him on the briefs were Elizabeth G. McCulley,
Stewart Wald & McCulley LLC, Kansas City, Missouri, Steven M. Wald and Michael J. Smith,
Stewart Wald & McCulley LLC, St. Louis, Missouri, and J. Robert Sears, Baker Sterchi Cowden
& Rice, LLC, St. Louis, Missouri.

David C. Frederick, Kellogg, Hansen, Todd, Figel & Frederick, PLLC, Washington,
D.C., for plaintiffs Gordon A. Woodley and Denise L. Woodley. With him on the briefs were
Joanna T. Zhang, Kellogg, Hansen, Todd, Figel & Frederick, PLLC, Washington, D.C., and
Gordon A. Woodley, Woodley Law, Kirkland, Washington.

Lucinda J. Bach, Trial Attorney, Natural Resources Section, Environment & Natural
Resources Division, United States Department of Justice, Washington, D.C., for defendant.
With her on the briefs were Jeffrey H. Wood, Acting Assistant Attorney General, Environment
& Natural Resources Division, and Tyler L. Burgess and Sarah Izfar, Trial Attorneys, Natural
Resources Section, Environment & Natural Resources Division, United States Department of
Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Judge.

This rails-to-trails class action concerns land previously held as a right-of-way by
Burlington Northern and Santa Fe Railway Company (“Burlington Northern”) in King County,
Washington, and converted into a recreational trail under Section 208 of the National Trails
System Act Amendments of 1983, Pub. L. No. 98-11, § 208, 97 Stat. 42, 48 (codified at 16
U.S.C. § 1247(d)) (“Trails Act”). Plaintiffs have alleged that this conversion resulted in a taking
of their land without just compensation in contravention of the Fifth Amendment. Plaintiffs’
takings claim has been the subject of four reported decisions from this court and another from the
court of appeals. See Haggart v. United States, 89 Fed. Cl. 523 (2009) (“Haggart I”); Haggart v.
United States, 104 Fed. Cl. 484 (2012) (“Haggart II”); Haggart v. United States, 108 Fed. Cl. 70
(2012) (“Haggart III”); Haggart v. United States, 116 Fed. Cl. 131 (2014) (“Haggart IV”),
vacated and remanded sub nom. Haggart v. Woodley, 809 F.3d 1336 (Fed. Cir. 2016) (“Haggart
V”). After certifying a relatively large class, see Haggart I, 89 Fed. Cl. 523, and splitting the 522
class members into six subclasses, see Haggart II, 104 Fed. Cl. 484, in 2012, the court
considered cross-motions for partial summary judgment and found the government liable to
certain class members within Subclass Two and Categories A through D of Subclass Four, and
granted the government summary judgment as to class claimants in Subclass Four, Category E.
See generally Haggart III, 108 Fed. Cl. 70. The court otherwise denied summary judgment,
reserving for trial ownership issues for particular parcels within Subclasses Two and Four and
not addressing liability for Subclasses One, Three, Five, or Six. Id. No valuation issues were
addressed on summary judgment. Id.

The parties thereafter reached a settlement after an extensive mediation before Senior
Judge John Weise, and the court subsequently approved the parties’ settlement agreement and an
award of attorneys’ fees under a common fund. Haggart IV, 116 Fed. Cl. at 149. “Of the 253
prevailing class members, class counsel received two objections to the settlement and requests to
participate in the fairness hearing and one additional request to participate in the fairness
hearing.” Id. at 138. The two objectors challenged the contingent attorneys’ fees being sought
by class counsel and contended that they were “denied the details as to how individual claimants’
properties were valued and, in turn, assigned a compensation amount.” Id. In the ensuing
fairness hearing, the court addressed the disclosures made by class counsel to individual class
claimants, particularly those made to the objectors, and concluded that the disclosures were
sufficient even though they were made on an oral basis. Id. at 142-43. Given the large number
of properties at issue, the parties’ appraisers had classified the parcels into unique properties,
each of which was individually appraised, and 22 sets of properties that shared common
characteristics. Id. at 136. The latter properties were not all individually appraised, but rather at
least one representative property in a grouping was appraised and the other properties in the
pertinent grouping were valued from the assessment of the representative property. Id.
The objectors’ properties were valued based on an appraisal of a representative property. In
acting to approve the settlement, the court also dismissed the “claims of those class members
respecting which the government ha[d] previously been granted summary judgment on liability,”
as well as the claims of class members who were not included among the compensation awards
in the settlement agreement. Id. at 149.

Mr. and Mrs. Woodley, who were objecting class claimants, appealed “the settlement
approval and award of attorney fees.” Haggart V, 809 F.3d at 1343. The government supported
the Woodleys on their appeal, changing its positions from those it had taken in the fairness
hearing, but it did not file an appeal and did not expand or supplement the grounds raised by the
Woodleys in their appeal. See id. The Federal Circuit reversed the court’s approval of the

2
settlement agreement and the award of attorneys’ fees under the common fund doctrine, and
remanded the case for further proceedings. Id. at 1359. In overturning the settlement, the court
of appeals ruled that “[f]ull disclosure of the precise methodology employed in arriving at the
value of non-representative properties is especially important in this context because of the
various inputs used in calculating the fair market value of unappraised properties and the
significant discrepancy in the allocation of the final property values.” Id. at 1349.

Following the remand from the court of appeals, the court initially sought to ensure that
all information pertinent to the appraisal process was made available to class members in written
form. As counsel for the objecting Woodleys stated at a hearing held after the remand:

The Woodleys have not received – the electronic website [posted by class
counsel] does not provide access to the kinds of spreadsheets that I’m talking
about here. Our reading of the Federal Circuit’s order is that it required
enough information so that a class member, including the Woodleys, could go
on and essentially re-engineer the way the valuations were done. The
information on the [class] website, as it is being done, does not allow that to
happen.

Hr’g Tr. 9:11-19 (Aug. 15, 2016). At that point, counsel for the government advised that the
settlement amount for the class, $110 million plus interest, remained in effect but a reallocation
of that amount among class members was possible:

The Court: You want to reopen settlement negotiations?

[Counsel]: . . . I wouldn’t call it reopening settlement negotiations. I think we
have a settlement number. I think that class counsel needs to
provide the information that will enable the individual class
members to determine whether the split of that money is fair, and
we need to go from there.

Hr’g Tr. 17:20 to 18:5 (Aug. 15, 2016).

Counsel for the class and for the government had previously advised that there were 22
representative valuation categories and that the appraisers for the class and for the government
had appraised representative parcels within each category. Haggart V, 809 F.3d at 1342 n.5;
Haggart IV, 116 Fed. Cl. at 136. Post-remand, class counsel indicated that the appraisals had
been made available physically to any class member who wanted them, but the appraisals had
not been posted electronically. Hr’g Tr. 38:8-10, 13-25 (Aug. 15, 2016). A summary
spreadsheet that showed the appraisals side-by-side had also been made available. Id. The
discourse between the court and the several counsel then focused on the availability of two other
spreadsheets that had been used in the mediation process. See Hr’g Tr. 42:14-22 (Aug. 15,
2016). Counsel for the Woodleys wanted all three spreadsheets to aid in developing a
reallocation of the overall settlement amount of $110 million plus interest among the 253 class
participants. Hr’g Tr. 43:19 to 44:21 (Aug. 15, 2016). At that juncture, the court advised
counsel for the Woodleys that “[y]ou will have all the discovery you possibly will want,” Hr’g

3
Tr. 51:23-24 (Aug. 15, 2016), and specifically that counsel for the Woodleys would get access to
the spreadsheets that provided the formulas for the entire array of parcels, Hr’g Tr. 52:17-19
(Aug. 15, 2016).

Although the requisite materials were provided, see Class Counsel’s Notices of
Compliance (Aug. 15, 2016, Aug. 17, 2016, and Sept. 14, 2016), ECF Nos. 218, 219, and 223,
no reallocation of the settlement amount was developed and no new settlement was reached.
Instead, because of decisions rendered in indirectly related litigation in the United States District
Court for the Western District of Washington, Kaseburg v. Port of Seattle, No. C14-0784 JCC
(W.D. Wash.),1 the government changed position again and sought to litigate the property
interests of the class members who would have benefitted from the earlier class settlement, see
Hr’g Tr. 7:22 to 9:24 (Dec. 19, 2016). To address the new issues, the government requested that
the court establish a briefing schedule for dispositive motions:

[Counsel]: [W]hat the [g]overnment wishes to do is file two dispositive
motions. I mean, these are very, very important issues that raise
fundamental questions about this [c]ourt’s subject matter
jurisdiction and all of the class members’ entitlement to
compensation here, and the [g]overnment has a fiduciary
obligation to the United States taxpayers to raise those issues and
to raise them in a thorough and thoughtful manner.

And so we have requested that a briefing schedule, which I’m –

The Court: Well, you haven’t requested [a briefing schedule] up to now, so
your use of the past perfect tense is inappropriate. If you want to
request one, I would like to hear it.

[Counsel]: Okay, Your Honor. I would like to request a briefing schedule.

Hr’g Tr. 10:25 to 11:15 (Dec. 19, 2016). Notwithstanding the nature and extent of the prior
proceedings in the case and the length of time it had been pending, the court acceded to the
government’s request and set a schedule for filing and briefing the motions by the government
that are now pending before the court. See Scheduling Order of Dec. 19, 2016, ECF No. 235.

The government requests that the court reconsider determinations made by the court in
Haggart III, its previous decision on liability regarding Subclasses Two and Four. The
government also filed three motions for summary judgment that address varying members
among the subclasses. The motions relate to (1) class members with parcels that are adjacent to
portions of the railroad right-of-way owned by the railroad in fee simple, (2) class members who
were plaintiffs in Kaseburg before the District Court for the Western District of Washington

1
See Kaseburg v. Port of Seattle, No. C14-0784 JCC, 2015 WL 6449305 (W.D. Wash.
Oct. 23, 2015) (“Kaseburg I”); Kaseburg v. Port of Seattle, No. C14-0784 JCC, 2016 WL
4440959 (W.D. Wash. Aug. 23, 2016) (“Kaseburg II”), appeal filed, No. 16-35768 (9th Cir.
Sept. 23, 2016).

4
relating to the same railroad corridor, and (3) class members with deeds or plats that allegedly
exclude the railroad corridor. Additionally, counsel for the Woodleys filed a motion for partial
summary judgment on liability with respect to the Woodleys, who are members of Subclass
Three, and the government filed a corresponding cross-motion for summary judgment for
Subclasses One and Three.2

In diametric opposition to these motions, class counsel has submitted a motion to enforce
the settlement agreement signed by class counsel and the government in 2014.

For the reasons stated, the government’s motion for reconsideration is denied, the
government’s three motions for summary judgment stretching across subclasses are denied, the
Woodleys’ and plaintiffs’ motions for partial summary judgment on liability for Subclasses One
and Three are denied as moot, and the government’s cross-motion for partial summary judgment
respecting Subclasses One and Three is denied. The class plaintiffs’ motion for enforcement of
the settlement agreement is granted.

BACKGROUND

A. The Takings Claim

Eight years ago, on February 19, 2009, Daniel and Kathy Haggart filed suit in this court
on behalf of themselves and as representatives of a proposed class of similarly situated persons.
See generally Compl. Plaintiffs allege that a taking occurred when the Surface Transportation
Board (“STB”) issued Notices of Interim Trail Use (“NITUs”) pursuant to the Trails Act
regarding three railroad rights-of-way in King County, Washington. See Haggart III, 108 Fed.
Cl. at 75-76. The three segments, totaling approximately 25.45 miles, constitute the railroad
corridor at issue in this case. Id. at 75. The railroad’s right-of-way was first established in the
late 1800s and early 1900s and was later acquired by Burlington Northern. Id. In 2008,
Burlington Northern filed with the STB a “petition for exemption to abandon” the railroad
corridor. Id. Shortly thereafter, King County requested a NITU from the STB and represented
that it would take financial responsibility for the trail use. Id. The STB then issued two NITUs
on October 27, 2008 and a third on November 28, 2008 for the railroad corridor at issue, and
plaintiffs subsequently filed suit, alleging a taking by the federal government without just
compensation in contravention of the Fifth Amendment. Id. at 75-76. In 2009, King County and
Burlington Northern reached a Trail Use Agreement to allow public recreational trail use,

2
The class plaintiffs also filed motions for partial summary judgment on Subclasses One
and Three and for reconsideration of the court’s earlier decision dismissing the claims of
Subclass Four, Category E, see Pls.’ Mot. For Partial Summary Judgment on Liability for
Subclasses I & III, ECF No. 231; Pls.’ Mot for Recons. Regarding the Subclass Four, Category E
Deeds, ECF No. 241, but class counsel subsequently withdrew the motion for reconsideration,
see Hr’g Tr. 32:1-2 (Mar. 31, 2017); Notice of Pls.’ Withdrawal, ECF No. 269. The motion by
plaintiffs regarding Subclasses One and Three essentially duplicates a motion filed by the
Woodleys, and both will be treated in pari materia.

5
“stipulat[ing] that the railroad line would be ‘rail-banked’ for potential railroad use in the
future.” Id.3

B. Pre-Settlement Grants of Partial Summary Judgment on Liability

The court certified the class on September 28, 2009, Haggart I, 89 Fed. Cl. at 537, and
subsequently approved the parties’ motion to divide the large class into six subclasses based
upon the nature of the property interests involved, see Haggart II, 104 Fed. Cl. at 487-88, 492.
Plaintiffs in Subclasses Two and Four then moved for partial summary judgment on liability and
the government filed a cross-motion with respect to the same two subclasses. Haggart III, 108
Fed. Cl. at 74-75. The court determined that the government was liable for a taking of the
property held by plaintiffs in Subclass Two and Categories A through D of Subclass Four, but
not Category E of Subclass Four. Id. at 98. For Subclass Two, the parties “stipulated that the
predecessor railroad acquired an easement, not a fee interest, in the corridor attendant to the
Subclass Two plaintiffs’ property,” and the court accordingly held that “the source deeds at issue
granted an easement for railroad purposes only.” Id. at 78-80.4 The court also concluded that the
scope of the easements was exceeded by the recreational trail use. Id. at 81-82.

Even so, the court was not able to determine liability for all easements at issue in
Subclass Two. First, the court reserved for trial “the nature of the easement granted by the
Delfel property condemnation” and the government’s liability for parcels obtained by adverse
possession. Haggart III, 108 Fed. Cl. at 80-81. Second, the court reserved for trial other parcels
that were subject to material issues of disputed fact regarding application of the “centerline”
presumption. Id. at 83-86. Although none of the deeds in Subclass Two made “express use of
metes and bounds,” the government asserted that two deeds referred to other documents that did
use metes and bounds. See id. at 84-85. The court held that “[b]ecause the centerline
presumption for these two parcels is potentially subject to rebuttal, the ownership issue of the
two tracts is reserved for trial.” Id. at 85. Third, the government noted that particular parcels
were not adjacent to the railroad corridor due to an intervening road or parcel. Id. The court
nonetheless granted summary judgment in favor of plaintiffs for some of these parcels after
determining that “these plaintiffs also own to the center of the railroad right-of-way,” but found
evidence lacking for the remainder of the plaintiffs in that grouping and accordingly stated that
“[t]he ownership issue for the remaining contested parcels is reserved for trial.” Id. Finally, the
court reserved for trial ownership issues related to particular plaintiffs because the government
had challenged whether such plaintiffs owned their parcels on the date the pertinent NITU was
issued. Id. at 85-86.

3
As the court previously explained, “[r]ail-banking under the Trails Act preserves
railroad-purpose easements which otherwise would terminate by operation of law, thus retaining
the easements for potential later reactivation of railroad use.” Haggart III, 108 Fed. Cl. at 76
n.3.
4
The Lake Washington Belt Line Company deed was “the source deed for most of the
parcels in Subclass Two.” Haggart III, 108 Fed. Cl. at 79.

6
 In addressing ownership and the centerline presumption set forth in Roeder Co. v.
Burlington N. Inc., 716 P.2d 855 (Wash. 1986) (en banc), the court rejected the government’s
contention that plaintiffs be required “to provide a complete record of chain of title dating back
to the original fee owner of the right-of-way property,” instead stating that “plaintiffs must only
present the original deeds granting a right-of-way to the predecessor railroad and the deeds that
show plaintiffs owned the property abutting the right of way at the time the NITU was issued.”
Haggart III, 108 Fed. Cl. at 83-84. The court accordingly held:

Subclass Two plaintiffs who have shown . . . that they owned their properties at
the time the NITU was issued—and whose deeds do not reference a document
that contains metes and bounds and whose lands are not separated from the
railroad by a highway—are thus granted summary judgment as to their ownership
of the land to the center line of the railroad’s easement.

Id. at 84.

For Subclass Four, the court first addressed “whether the fifty-three source deeds
[involved] granted an easement or a fee to Burlington Northern’s predecessor railroad.” Haggart
III, 108 Fed. Cl. at 86. The deeds were separated into five categories. Id. The court determined
that the deeds in Categories A through D, including the “Kittinger Deed,” conveyed an easement
to the railroad. Id. at 86-94. Similar to Subclass Two, the court also concluded that the
recreational trail use exceeded the scope of the easements and thus granted summary judgment
“for plaintiffs to whom the centerline presumption applies and whose ownership the government
does not otherwise contest.” Id. at 94-96. The deeds in Category E, however, were captioned
“Right of Way Deed” and made no “further mention of a right of way or the purposes of the
grant.” Id. at 94. The court granted summary judgment in favor of the government for Category
E, holding that “[t]he use of the words ‘Right of Way Deeds’ in the caption is not sufficient,
without more, to indicate that an easement, not a fee, was being conveyed.” Id.5

C. The Settlement Agreement

After the court rendered its decision on the motions for partial summary judgment, the
parties undertook settlement discussions with the aid of Senior Judge John Wiese as the
mediator. Those proceedings extended over a period of ten and one-half months and ultimately
produced a settlement. See Joint Mot. for Approval of S[e]ttlement and of Notice to Class
Members and Request to Set Date for Public Hearing, ECF No. 161. The settlement was
comprehensive and categorical, addressing the claims of all class claimants, some of whom were
to receive agreed compensation and others of whom were not:

2. This Joint Compromise Settlement Agreement encompasses all existing
claims, disputed issues and/or demands for money damages or other relief
(inclusive of all interest, attorneys[’] fees, and other litigation expenses that

5
In anticipation of multiple trials on damages, the court provided that “[d]amages shall be
determined by measuring the decrease in value of plaintiffs’ property due to the burden of the
trail easement, using the unencumbered fee as the baseline.” Haggart III, 108 Fed. Cl. at 98.

7
 have been or could be incurred), that were asserted or could have been
asserted in this action, or in any other judicial proceeding, against the United
States or any department, agency, or officer thereof, by [p]laintiffs relating to
the parcels of land for which compensation was sought in the [c]omplaint as
amended.

3. The [p]laintiffs identified in Attachment A (the “Dismissed Plaintiffs”) are or
were owners of certain parcels of property situated in King County,
Washington, whose claims have been or will be dismissed without
compensation.

4. The [p]laintiffs identified in Attachment B (the “Settling Plaintiffs”) are or
were owners of certain parcels of property situated in King County,
Washington, who will receive compensation in settlement of their claims.

5. The United States hereby agrees, by way of compromise and settlement, to
pay to the Settling Plaintiffs the total sum of $140,541[,]218.69. This amount
consists of $110,000,000.00 in principal, and $27,961,218.69 in interest. The
United States further agrees to pay statutory attorneys’ fees and costs of
$2,580,000.00 pursuant to the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970, 42 U.S.C. § 4654(c). The amount
to be paid for each individual claim of the Settling Plaintiffs is specified in
Attachment B.

6. In consideration of the settlement amount set forth in paragraph 5, the
[p]laintiffs agree to dismiss this case with prejudice within 14 days of receipt
of payment from the United States pursuant to Court of Federal Claims Rule
41(a)(1)(A)(ii).

Joint Compromise Settlement Agreement between Plaintiffs and the United States (“Settlement
Agreement” or “Agreement”) at 2-3, ECF No. 161-2. The Agreement also made provision for
interest to be paid if the settlement was not effectuated by the estimated payment date of May 31,
2014:

7. The calculated interest stated in paragraph 5 is based upon an estimated date
of payment of May 31, 2014. The parties agree that interest may be
recalculated based upon the U.S. Department of the Treasury’s estimated date
of actual payment, using the same method of interest computation employed
for the estimated interest amount stated in paragraph 5, and an annual interest
rate of 4.2%. If, however, the United States pays more in interest than has
accrued as of the date of actual payment, the Settling Plaintiffs agree to refund
to the United States Treasury the amount over-paid.

Id. at 3. The Agreement set out no limitations, conditions precedent, or caveats to its
effectiveness or enforceability. The Settlement Agreement as signed on June 18, 2014 is set out
in the record at ECF No. 272-2.

8
D. Approval of the Settlement Agreement and the Ensuing Disposition by the Federal Circuit on
Appeal

The court issued notice to class members of the settlement in accord with Rule 23(e) of
the Rules of the Court of Federal Claims (“RCFC”) and provided class members with an
opportunity to submit comments and objections to the Agreement, both in written form and at a
fairness hearing. Haggart IV, 116 Fed. Cl. at 138. As noted previously, two objectors to the
Agreement stated their opposition. Id. The objectors believed their properties were undervalued
and contended that they had not been provided sufficient information in written form to be able
to reconstruct the values assigned to their properties from the pertinent appraisals of a
representative parcel, or, on a comparative basis, to parcels in other representative groupings.
See id. at 142. The objectors had received an oral explanation of the methodology and of data
regarding their representative grouping, but had not received documentary materials that would
have enabled them independently to derive the value assigned to all 253 parcels that were to
receive compensation. Id. After the fairness hearing, the court concluded that the methodology
for the valuations was reasonable and logical in the circumstances, and had achieved fair results.
Id. at 142-43.

On appeal by the Woodleys, the Federal Circuit disagreed. Noting the “significant
discrepancy in the allocation of the final property values,” which “ranged from $444.45 to more
than $2.4 million,” the court of appeals considered that “[f]ull disclosure of the precise
methodology employed . . . [wa]s especially important.” Haggart V, 809 F.3d at 1349. The
court recognized that the limited “objections from a class of 253 members militate[d] in favor of
approval of the settlement agreement,” but gave greater weight to the ability of the several
objectors to “verify . . . their individual settlement awards.” Id. at 1350. The court of appeals
accordingly reversed the approval of the settlement agreement and “remand[ed] for further
consideration consistent with the foregoing.” Id. at 1359.

STANDARD FOR DECISION

Pursuant to RCFC 56(a), a grant of summary judgment is warranted when the pleadings,
affidavits, and evidentiary materials in the case demonstrate that “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). A genuine dispute exists when an issue “may
reasonably be resolved in favor of either party,” id. at 250, and a fact is material when it “might
affect the outcome of the suit under the governing law,” id. at 248. The moving party has the
burden of establishing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). The court therefore must draw all factual inferences “in the light most
favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)). Summary judgment will be appropriate if “the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.” Id. at 587.

ANALYSIS

9
 A. The Mandate Rule and the Law of the Case Doctrine

1. Delineation of the rule and the doctrine.

The mandate rule provides that “[o]nly the issues actually decided—those within the
scope of the judgment appealed from, minus those explicitly reserved or remanded by the
court—are foreclosed from further consideration.” Engel Indus., Inc. v. Lockformer Co., 166
F.3d 1379, 1383 (Fed. Cir. 1999) (citing Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 170
(1939)). Under the rule, “[a]n issue that falls within the scope of the judgment appealed from but
is not raised by the appellant in its opening brief on appeal is necessarily waived.” Id.; see also
Retractable Techs., Inc. v. Becton Dickinson & Co., 757 F.3d 1366, 1371 (Fed. Cir. 2014)
(applying the mandate rule and holding that “[a] $5 million award was within the scope of the
judgment, was incorporated into the mandate without argument, and was precluded from further
consideration by the district court”); Amado v. Microsoft Corp., 517 F.3d 1353, 1360 (Fed. Cir.
2008) (“[T]he mandate rule precludes reconsideration of any issue within the scope of the
judgment appealed from—not merely those issues actually raised.”); Doe v. United States, 463
F.3d 1314, 1327 (Fed. Cir. 2006) (“[T]he mandate rule ‘forecloses litigation of issues decided by
the district court but foregone on appeal or otherwise waived.’”) (quoting United States v. Bell, 5
F.3d 64, 66 (4th Cir. 1993)).6 This principle is recognized in all the other circuits as well, though
not always by the same name.7

6
The government incorrectly asserts that “[t]he mandate rule only precludes a lower court
from deviating from the appellate court’s mandate.” United States’ Reply Mem. in Support of
Mot. for Summary Judgment as to Class Members Who Are Pls. in Kaseburg v. Port of Seattle
(“Def.’s Reply in Support of Mot. Regarding Kaseburg”) at 8, ECF No. 267 (emphasis added).
Notably, although “a mandate is controlling as to matters within its compass” and on remand “a
lower court is free as to other issues,” Engel Indus., 166 F.3d at 1382 (quoting Sprague, 307 U.S.
at 168), issues addressed by the court’s prior judgment, but not appealed, are encompassed
within the mandate rule, see, e.g., id. at 1383; Tronzo v. Biomet, Inc., 236 F.3d 1342, 1348 & n.1
(Fed. Cir. 2001).
7
See, e.g., United States v. Philip Morris USA Inc., 801 F.3d 250, 257-58 (D.C. Cir.
2015) (referring to waiver); United States v. Wallace, 573 F.3d 82, 88 (1st Cir. 2009) (referring
to the mandate rule); United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001) (referring to the
mandate rule); Cowgill v. Raymark Indus., Inc., 832 F.2d 798, 802 (3d Cir. 1987) (referring to
estoppel); South Atl. Ltd. P’ship of Tenn., LP v. Riese, 356 F.3d 576, 584 (4th Cir. 2004)
(referring to the mandate rule); General Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th
Cir. 2007) (referring to mandate rule); United States v. O’Dell, 320 F.3d 674, 679 (6th Cir. 2003)
(same); United States v. Adams, 746 F.3d 734, 744 (7th Cir. 2014) (referring to the mandate rule
and law of the case); Bethea v. Levi Strauss & Co., 916 F.2d 453, 456-57 (8th Cir. 1990)
(referring to the law of the case); In re Cellular 101, Inc., 539 F.3d 1150, 1155 (9th Cir. 2008)
(referring to waiver); Concrete Works of Colo., Inc. v. City & Cty. of Denver, 321 F.3d 950, 992-
93 (10th Cir. 2003) (referring to the law of the case); Silverberg v. Paine, Webber, Jackson &
Curtis, Inc., 724 F.2d 1456, 1457 (11th Cir. 1983) (referring to the law of the case).

10
 The law of the case doctrine “is a corollary to the mandate rule.” Tronzo, 236 F.3d at
1348 n.1 (citing United States v. Pollard, 56 F.3d 776, 779 (7th Cir 1995)). Under this doctrine,
“a court will generally refuse to reopen or reconsider what has already been decided at an earlier
stage of the litigation.” Suel v. Sec’y of Health & Human Servs., 192 F.3d 981, 985 (Fed. Cir.
1999) (citing Kori Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 657 (Fed. Cir.
1985)). The doctrine “encourages both finality and efficiency in the judicial process by
preventing relitigation of already-settled issues.” Banks v. United States, 741 F.3d 1268, 1276
(Fed. Cir. 2014) (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988)).
It also “protect[s] the settled expectations of the parties and promote[s] orderly development of
the case.” Suel, 192 F.3d at 984 (citations omitted). Additionally, the Federal Circuit has
“emphasized the importance of applying [the] law of the case doctrine in protracted litigation.”
Id. at 985 (citing Hughes Aircraft Co. v. United States, 86 F.3d 1566, 1577 (Fed. Cir. 1996),
vacated on other grounds, United States v. Hughes Aircraft Co., 520 U.S. 1183 (1997)).

Nonetheless, the mandate rule and law of the case are “prudential doctrines that direct a
court’s discretion, but do not necessarily limit a court’s power.” Tronzo, 236 F.3d at 1349 (citing
cases). For a court to reevaluate an issue otherwise foreclosed by either or both of these
doctrines, however, the circumstances “must be exceptional.” Id. Exceptional circumstances
include a substantial change in evidence, a change in controlling legal authority, or a showing
that the prior decision was “clearly” incorrect and would result in a “manifest injustice.” See
Banks, 741 F.3d at 1276 (citing Gindes v. United States, 740 F.2d 947, 950 (Fed. Cir. 1984));
Toro Co. v. White Consol. Indus., Inc., 383 F.3d 1326, 1336 (Fed. Cir. 2004) (citing Intergraph
Corp. v. Intel Corp., 253 F.3d 695, 698 (Fed. Cir. 2001) (in turn citing Smith Int’l Inc. v. Hughes
Tool Co., 759 F.2d 1572, 1576 (Fed. Cir. 1985))). The party arguing in favor of such a
circumstance has a “heavy burden.” Branning v. United States, 784 F.2d 361, 363 (Fed. Cir.
1986) (citing White v. Murtha, 377 F.2d 428, 431 (5th Cir. 1967)).

2. Application of the mandate rule and law of the case in these proceedings.

To determine how the mandate rule and law of the case apply here, the court begins by
examining the scope of its prior final judgment. See Tronzo, 236 F.3d at 1348 & n.1
(considering whether an issue, which was not appealed, fell within the scope of the prior
judgment because such a finding would “foreclose[ the issue] from further review on remand”
pursuant to the mandate rule); Exxon Corp. v. United States, 931 F.2d 874, 877 (Fed. Cir. 1991)
(“Orderly and efficient case administration suggests that questions once decided not be subject to
continued argument [pursuant to the law of the case doctrine], but the court has the power to
reconsider its decisions until a judgment is entered.”) (quoting Jamesbury Corp. v. Litton Indus.
Prods., Inc., 839 F.2d 1544, 1550 (Fed. Cir. 1988), overruled on other grounds by A.C.
Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020 (Fed. Cir. 1992)). In entering final
judgment in 2014, the court approved the parties’ Settlement Agreement and awarded attorneys’
fees. Haggart IV, 116 Fed. Cl. at 149. Significantly, the court also held that “[t]he claims of
those class members respecting which the government has previously been granted summary
judgment on liability are dismissed, as are those whose claims are not listed for an award in the
settlement agreement.” Id. This statement indicated that the court’s judgment encompassed the
court’s liability determinations for Subclasses Two and Four and the dismissal of claims
excluded from the Agreement. Moreover, the settlement encompassed agreed compensation for

11
those parcel owners who had been granted partial summary judgment on liability as well as those
whose claims had been reserved for trial. See Hr’g Tr. 30:21 to 31:7 (Mar. 31, 2017). Further,
the court’s liability determinations and dismissal of particular claims were not appealed. The
Woodleys appealed the court’s approval of the Settlement Agreement, specifically challenging
the failure of class counsel to provide in documentary form all of the appraisal information
underpinning their proposed award and the awards of the hundreds of other class members, and
the court’s award of attorneys’ fees under a common fund. Haggart V, 809 F.3d at 1342-43.
The government neither appealed nor raised any additional issues on appeal. See id. at 1343.
The Federal Circuit’s reversal and remand did not extend beyond the scope of the Woodleys’
appeal. See generally id.

The government contends that the mandate rule and law of the case do not apply because
the court’s liability decision for Subclasses Two and Four was an interlocutory decision that the
court can now revisit. See The United States’ Reply Mem. in Support of Mot. for Recons. of
Certain Rulings on the Parties’ Cross-Mots. for Summary Judgment (“Def.’s Reply in Support of
Mot. for Recons.”) at 1-3, ECF No. 264; Hr’g Tr. 14:14 to 15:5 (Mar. 31, 2017). The
government is mistaken. Although the court’s liability decision was interlocutory when issued in
2012, it became embedded in and encompassed by the final judgment entered in 2014. This
conclusion is not altered by the fact that the judgment resulted from the court’s approval of a
settlement agreement that followed the liability determination. See Ford-Clifton v. Department
of Veterans Affairs, 661 F.3d 655, 660 (Fed. Cir. 2011) (“It is widely agreed that an earlier
dismissal based on a settlement agreement constitutes a final judgment on the merits in a res
judicata analysis.”) (citing cases).8 Additionally, the government’s actions in other proceedings
demonstrate that the government could have preserved the opportunity to appeal summary
judgment issues after the Settlement Agreement was executed. For example, in another rails-to-
trails case, Caquelin v. United States, 121 Fed. Cl. 658 (2015), appeal filed, No. 16-1663 (Fed.
Cir. Mar. 8, 2016), the court granted plaintiffs’ motion for partial summary judgment and held
that a taking had occurred. The parties thereafter reached a settlement agreement, and the
government subsequently appealed the court’s liability determinations. See Corrected Opening
Br. and Federal Circuit Rule 35(a) Request for En Banc Review of Appellant United States at 1-
3, 15-16, Caquelin v. United States, No. 16-1663 (Fed. Cir. Aug. 9, 2016); see also Notice at 1
n.1, Memmer v. United States, No. 14-135L, ECF No. 56 (Fed. Cl. Dec. 9, 2016) (“The proposed
settlement . . . preserve[s] the United States’ right to appeal from the Court’s [previous] liability
ruling.”).

Therefore, the court’s 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. See, e.g., Doe, 463 F.3d at 1327 (“The Doe
plaintiffs should have raised the issue of the distinction between their holiday pay claim and their

8
The court of appeals in Ford-Clifton applied res judicata, rather than the law of the case
doctrine, because the appealed decision came from the Merit Systems Protection Board and the
court “look[s] with disfavor on the use of the law of the case doctrine by administrative agencies
when a final order dismissing a case was earlier made on the basis of a settlement agreement.”
Ford-Clifton, 661 F.3d at 660 (footnote omitted).

12
overtime pay claim before [liability was reversed on appeal], however. Because they did not, the
issue was waived.”). The specific decisions made by the court in determining liability for
Subclasses Two and Four are the law of the case. See Suel, 192 F.3d at 984-85. Accordingly, in
addressing the government’s requests to revisit issues already decided, the court ordinarily would
have to determine whether exceptional circumstances exist that would warrant departure from
these two doctrines. That exercise may be of limited utility in this case, however, because the
court must first consider the enforceability of the Settlement Agreement previously reached by
the parties and the effect of that Agreement on further proceedings.

B. Enforceability of the Settlement Agreement as a Binding Contract

1. Applicable law.

A settlement agreement is a contract that is governed by contract principles. Slattery v.
Department of Justice, 590 F.3d 1345, 1349 (Fed. Cir. 2010) (citing Kasarsky v. Merit Sys. Prot.
Bd., 296 F.3d 1331, 1336 (Fed. Cir. 2002); Conant v. Office of Pers. Mgmt., 255 F.3d 1371, 1376
(Fed. Cir. 2001)). In the context of a class action, “[t]he fact that a settlement agreement is
governed by Rule 23 does not diminish its enforceability as a contract.” Ehrheart v. Verizon
Wireless, 609 F.3d 590, 596 (3d Cir. 2010).9 The court’s review and approval of a class action
settlement agreement calling for an award of damages does not affect the legality or binding
nature of that agreement. Id. at 593 (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)). Instead, the court primarily
acts as a fiduciary for the absent class members and protects their interests. Id. (citations
omitted). “[T]his fiduciary protection does not extend to defendants in a class action, who are in
a position to protect their own interests during negotiations.” Id. at 594 (citing Ibarra v. Texas
Emp’t Comm’n, 823 F.2d 873, 878 (5th Cir. 1987)); see also Whitlock v. FSL Mgmt., LLC, 843
F.3d 1084, 1095 (6th Cir. 2016) (Boggs, J.) (“Rule 23(e) is designed to protect absent class
members and other non-parties to the litigation, not the defendants who misread the law and
agreed to an unfavorable settlement offer.”).

Consequently, a change in law will not affect the binding nature of a settlement
agreement. For example, in a recent appeal to the Sixth Circuit, the parties had agreed to a class
action settlement agreement providing for damages, but appellants argued that the district court
erred in approving the agreement because the Kentucky Court of Appeals, in a subsequent and
separate case, had determined that the Kentucky statute relied upon by plaintiffs did not support
a class action claim. Whitlock, 843 F.3d at 1088, 1093. The Sixth Circuit rejected appellants’
contention, holding that “Rule 23(e) does not bar a district court from enforcing a class-action
settlement agreement after a post-settlement change in substantive law.” Id. at 1094. Similarly,
the Third Circuit held that a class action settlement agreement was not mooted or rendered

9
RCFC 23 is in material part similar to Rule 23 of the Federal Rules of Civil Procedure,
and federal decisions applying Fed. R. Civ. P. 23 are persuasive in this court. See Haggart I, 89
Fed. Cl. at 529 (citing Barnes v. United States, 68 Fed. Cl. 492, 494 n.1 (2005)). The most
notable difference between the two rules is that this court’s rule “contemplates only opt-in class
certifications, not opt-out classes.” RCFC 23 Rules Committee Notes (2002 Revision); see also
Haggart IV, 116 Fed. Cl. at 139 n.10.

13
invalid by subsequent legislation, even though that legislation eliminated plaintiffs’ cause of
action. Ehrheart, 609 F.3d at 595-97; see also In re Syncor ERISA Litig., 516 F.3d at 1100-02
(holding that the district court improperly entered summary judgment for defendants after the
parties reached a settlement agreement, noting that “[d]efendants knew they had dispositive
motions pending and chose the certainty of settlement rather than the gamble of a ruling on their
motions”); Anita Founds., Inc. v. ILGWU Nat. Ret. Fund, 902 F.2d 185, 189 (2d Cir. 1990) (“[A]
change in the law does not render an agreement void.”) (citing cases).

Unlike consent decrees, which provide equitable remedies rather than damages and thus
are susceptible to modification if circumstances change, settlement agreements are intended to
“conclude litigable disputes” and are characterized by “[f]inality, not modifiability.” Whitlock,
843 F.3d at 1094; see also Ehrheart, 609 F.3d at 596 (“It is essential that the parties to class
action settlements have complete assurance that a settlement agreement is binding once it is
reached.”) (citing In re Syncor ERISA Litig., 516 F.3d at 1100 (in turn citing Collins, 679 F.2d at
172))).

2. Pertinent settlement terms.

Following the court’s approval of the Settlement Agreement in May 2014, see generally
Haggart IV, 116 Fed. Cl. 131, the parties executed a Joint Settlement Agreement on June 18,
2014, see Joint Compromise Settlement Agreement Between Pls. and the United States
(“Settlement Agreement”), ECF No. 272-2. The terms were identical to those set forth in the
Agreement filed by the parties in February 2014, ECF No. 161-2, as quoted supra. The
Settlement Agreement comprehensively encompasses all existing claims without any limitations
or exceptions. See Settlement Agreement ¶ 2. The total amount of compensation and interest is
stated with specificity, and an attachment to the Agreement provides the amounts allocated to
each plaintiff. Id. ¶¶ 4-5, Attach. B. The Agreement recites that it was binding on both the
plaintiffs and the government, id. ¶ 10, and that it was being executed by the parties’ authorized
legal representatives, id. at 4.

On appeal, the Federal Circuit characterized its review of the approval of the Settlement
Agreement as “rooted in the Woodleys’ request for additional information concerning the
methodology class counsel employed in calculating the fair market value of unappraised
properties.” Haggart V, 809 F.3d at 1348. As the court of appeals stated:

The precise issue before us is whether the Claims Court abused its discretion by
finding class counsel’s act of explaining, as opposed to physically providing
objecting class members with a copy of the final spreadsheet detailing the precise
methodology used to calculate the allocation of their property values, satisfied the
requirement that the settlement agreement be “fair, reasonable and adequate.”

Id. (quoting RCFC 23(e)(2)). The Federal Circuit found that the documentary disclosure
provided to the Woodleys was inadequate because it did not include information such as the
“variables and other inputs from which the fair market value was derived,” id. at 1350, and thus
it did not allow the Woodleys to reconstruct the valuation of their property and compare it to
reconstituted values assigned to other properties, id. at 1349.

14
 Significantly, the Federal Circuit did not consider or address the terms of the Settlement
Agreement itself. The amount of the settlement, interest rate, plaintiffs entitled to compensation,
and plaintiffs subject to dismissal were not disturbed on appeal. On remand, the specific
allocation of the agreed compensation to individual plaintiffs may need to be altered, but the total
amount and all other terms in the agreement remain intact.10 Until very recently, the government
concurred. See 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 Attorneys’ Fees at 28, Haggart v. Woodley, No. 14-5106 (Fed. Cir. Dec. 19, 2014)
(“While the United States 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 CFC for proper
disclosure to all class members.”); Hr’g Tr. 18:1-5 (Aug. 15, 2016) (“I think we have a
settlement number . . . [but] class counsel needs to provide the information that will enable the
individual class members to determine whether the split of that money is fair.”).11

In short, the Settlement Agreement was and remains a binding and enforceable contract.
The government cannot avoid its “independent contractual obligations,” Ehrheart, 609 F.3d at
596, even if it now has had a change of heart and wishes to back out of the Settlement
Agreement, see Whitlock, 843 F.3d at 1095 (“[I]t would be perverse to the aims of Rule 23(e) to
employ it in such a way as to rescue a litigating party from a bargain poorly struck.”).

3. The Kaseburg decision.

Although the government initially agreed that the terms of the Settlement Agreement
remained intact, excepting only the specific apportionment to individual claimants, the
government’s position changed after a district court addressed a claim related to a portion of the
same railroad corridor in King County that is at issue here. See Kaseburg II, 2016 WL 4440959,
at *1. In that case, 78 plaintiffs, all members of this class action, filed suit in Washington state
court, requesting “an order quieting title in the [c]orridor against a number of parties, including

10
A new allocation of the total compensation amount will be necessary in all events to
account for the removal of common-fund attorneys’ fees from the awards. See Haggart V, 809
F.3d at 1351-59.

Given that class counsel made all documents related to the appraisal process and damages
calculations available to all members of the class months ago, see supra, at 3-4, class counsel
now contends that the allocation can be tested by issuing a new notice of the Settlement
Agreement to class members, Pls.’ Mot. to Enforce the Settlement Agreement at 8, ECF No. 272.
11
The government asserts that even if the Settlement Agreement was enforceable, the
parties abandoned that Agreement following the Federal Circuit’s remand. The United States’
Resp. to Pls.’ Mot. to Enforce the Settlement Agreement at 11-13, ECF No. 274. Such an
argument is manifestly inconsistent with the government’s previous positions before the court of
appeals and this court, as noted above, as well as class counsel’s position regarding the
Agreement.

15
King County.” See id. Plaintiffs filed suit in an effort to restrict King County from using “the
railroad’s right-of-way for purposes beyond a hiking and biking trail, including the scope
exceeding transfers of the subsurface and aerial rights under and above the hiking and biking
trail easement, and the imminent use by Puget Sound Regional Transit Authority and Puget
Sound Energy, Inc. for public transportation and energy transmission ventures.” Pls.’ Resp. to
the United States’ Mot. for Summary Judgment as to Class Members Who Were Pls. in
Kaseburg v. Port of Seattle (“Pls.’ Opp’n to Def.’s Mot. Regarding Kaseburg”) at 4, ECF No.
254; see also First Am. Compl., Kaseburg v. Port of Seattle, No. 14-2-03714-5 (Super. Ct.
Snohomish Cty. May 16, 2014) at ¶¶ 109-14 (detailing transactions by the Port of Seattle after
the Port was granted a quit claim deed by Burlington Northern upon issuance of the NITU).
King County “counterclaimed to quiet title against [p]laintiffs.” Kaseburg II, 2016 WL
4440959, at *1.12 The case was removed to federal district court. See United States’ Mot. for
Summary Judgment as to Class Members Who Were Pls. in Kaseburg v. Port of Seattle (“Def.’s
Mot. Regarding Kaseburg”) at 1, ECF No. 243. The district court issued decisions on summary
judgment in favor of the defendants, ultimately dismissing plaintiffs’ claims and quieting title to
King County. See Kaseburg II, 2016 WL 4440959, at *11-12 (summarizing the district court’s
conclusions).

The Kaseburg decision is not binding on this court and cannot and does not affect the
enforceability of the Settlement Agreement.

Wholly apart from the binding contractual effect of the Settlement Agreement, the district
court’s determinations would be problematic for this case because they came years after this
court’s final judgment and indeed after the Federal Circuit’s decision triggering the mandate rule
and law of the case. Among other things as well, (1) significant doubt exists whether the district
court had subject matter jurisdiction under 28 U.S.C. § 1441, the removal statute, over the
plaintiffs’ claim, a quiet title action arising wholly out of state law and filed originally in state
court; (2) in concluding that the Kittinger Deed conveyed a fee simple to the railroad, the district
court seemingly did not consider whether that deed’s reference to the right-of-way was
incorporated into the granting clause, see Kaseburg II, 2016 WL 4440959, at *2-3;13 (3)

12
The Port of Seattle issued a quit claim deed to King County in February 2013. See First
Am. Compl., Kaseburg v. Port of Seattle, No. 14-2-03714-5 (Super. Ct. Snohomish Cty. May 16,
2014) at ¶ 113.
13
This court acknowledged the Kittinger Deed’s bargain-and-sale form, as the parties had
agreed at every stage of the litigation, but found that the deed conveyed an easement because the
deed’s reference to the right-of-way had been incorporated into the granting clause, and the
factors set forth in Brown v. State, 924 P.2d 908 (Wash. 1996) (en banc) supported such a
finding. See Haggart III, 108 Fed. Cl. at 89-91. The government makes two arguments to
support a different result respecting the Kittinger Deed. First, it relies on a 1917 map that
“references the Kittinger Deed as a bargain and sale deed.” The United States’ Mot. for Recons.
of Certain Rulings on the Parties’ Cross[-]Mots. for Summary Judgment at 8, ECF No. 244. The
1917 map makes a point that the court has already accepted, and indeed, the court considered and
rejected a nearly identical “bargain and sale” argument presented by the government in its
briefing for Subclasses Two and Four. See The United States’ Resp. in Opp’n to Subclass Four

16
regarding properties acquired through a 1904 condemnation, the district court did not appear to
take account of the fact that the State of Washington granted that land in 1906 to the Hillman
Investment Company, which then divided and sold the lots adjacent to the railroad corridor;14 (4)
regarding the scope of the easements, the district court applied the incidental uses doctrine to
conclude that the scope of the easements included trail use, Kaseburg I, 2015 WL 6449305, at
*7-9, but that application contravenes established precedent in the State of Washington;15 and (5)
in addressing the centerline presumption set forth in Roeder, 716 P.2d 855, the district court
required plaintiffs to produce full chains of title, see Kaseburg I, 2015 WL 6449305, at *11, but
complete chains of title are not essential to invocation of the centerline presumption under
Roeder at the summary judgment stage because rebuttal of the centerline presumption and the
response to rebuttal can present a triable issue.16

Pls.’ Mot. for Partial Summary Judgment and Cross-Mot. for Partial Summary Judgment at 20-
26, ECF No. 117. Second, the government notes that the record in Kaseburg included a
declaration that opined that the price paid by the railroad supported a fee determination. Def.’s
Reply in Support of Mot. for Recons. at 7. Again, this court explicitly considered the price paid,
noting that the sum was likely “substantial” and stating that this conclusion favored a fee under
the sixth Brown factor. Haggart III, 108 Fed. Cl. at 90. After examining all of the Brown
factors, however, the court ultimately held that the factors taken together favored an easement.
Id.
14
See Pls.’ Resp. to the United States’ Mot. for Recons. of Certain Rulings on the Parties’
Cross[-]Mots. for Summary Judgment (“Pls.’ Opp’n to Def.’s Mot. for Recons.”) at 16 & Ex. A,
ECF No. 255. Although the grant by the State of Washington in 1906 was presented to the
district court, that court struck the evidence. Kaseburg II, 2016 WL 4440959, at *8, *11; Hr’g
Tr. 33:19-22 (Mar. 31, 2017).
15
See, e.g., Lawson v. State, 730 P.2d 1308, 1312 (Wash. 1986) (en banc) (“[C]learly, a
hiking and biking trail is not encompassed within a grant of an easement for railroad purposes
only.”); see also Haggart III, 108 Fed. Cl. at 81 (citing cases in the State of Washington and
Federal Circuit).
16
The government also asserts that the Kaseburg plaintiffs are precluded from litigating
their takings claim because the district court held that they did not have a property interest in the
railroad corridor. Def.’s Reply in Support of Mot. Regarding Kaseburg at 2-4. Plaintiffs first
filed suit in this court in 2009, and this court entered its liability rulings and entered final
judgment before the district court in Washington considered plaintiffs’ claims. The Kaseburg
decision, rendered after the proceedings in this court, does not affect the court’s previous
determinations and thus falls outside the scope of the issue preclusion doctrine. See, e.g., Shell
Petroleum, Inc. v. United States, 319 F.3d 1334, 1338 (Fed. Cir. 2003) (noting that issue
preclusion prevents a litigant from relitigating particular issues brought in a “first suit”) (quoting
In re Freeman, 30 F.3d 1459, 1465 (Fed. Cir. 1994)); Beres v. United States, 92 Fed. Cl. 737,
754 (2010) (applying issue preclusion to a takings claim where plaintiffs first filed suit in
Washington and the state court dismissed plaintiffs’ claims before the Court of Federal Claims
addressed the issue).

17
 In any event, whatever the result in Kaseburg, that decision does not affect the Settlement
Agreement at issue in this case.

C. Further Proceedings

Because 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 most
logical and reasonable means of addressing that allocation would be to return to the mediation
process that was successful earlier. The court and the previously designated mediation judge are
amenable to that mode of further proceedings. If the parties nonetheless are unable to agree to
renewed mediation, the court will institute proceedings to hear and consider adjustments to the
settlement allocation, through an evidentiary hearing or trial, if necessary. The parties are
requested to file a joint status report on or before May 23, 2017, setting out their proposal(s) for
further proceedings.

CONCLUSION

For the reasons stated, plaintiffs’ motion to enforce the Settlement Agreement is
GRANTED. Plaintiffs’ and the government’s motions for reconsideration, the government’s
three motions for summary judgment, and the parties’ motions and cross-motions for partial
summary judgment on liability for Subclasses One and Three are DENIED. The parties are
requested to file a joint status report on or before May 23, 2017.

It is so ORDERED.

s/ Charles F. Lettow
Charles F. Lettow
Judge

18