Linda Vaizburd and Arkady Vaizburd v. United States

FRIEDMAN, Senior Circuit Judge,

dissenting in part.

I agree with and join the Background section and Parts I and II.A of the court’s opinion, which uphold the Court of Federal Claims’ “conclusion that the sand accretion did not diminish the market value of the Vaizburds’ property [as] not clearly erroneous.” See Vaizburd v. United States, 57 Fed.Cl. 221, 233 (2003). I disagree, however, with the ruling in Part II.B that remands the case to that court to determine whether the Vaizburds can recover just compensation based on the cost of removing the sand from lot 3. I would affirm the judgment of the Court of Federal Claims in its entirety.

As far as I can tell, the Vaizburds never sought recovery on that theory in the Court of Federal Claims. During the lengthy and extensive proceedings in that court, their sole claim to recovery was based on the alleged lower value of their property after the taking of the easement. Based on the sale price of other properties in Brooklyn, which they asserted were, but the trial court held were not, comparable to their property, they contended that before the taking their property was worth more than $ 16 million, but that after the taking its value was reduced to the low $300,000’s. See 57 Fed.Cl. at 231-33.

In neither their pre-trial Memorandum of Contentions of Fact and Law nor their sixty-one page Motion for Reconsideration and Relief from Judgment (filed after the trial court had issued its opinion) did the Vaizburds even suggest, let alone argue, that the just compensation could be based on the alternative theory that they were entitled at least to the cost of removing the sand from their lot. They did not even contend that the removal cost could be an element in the before-and-after value method. In their briefs to this court, the Vaizburds cite only the government’s appraisal report for record evidence concerning the cost of previous efforts to remove sand from the subject properties. See Reply Br. at 2 (citing JA 1408, 1428-30).

The Court of Federal Claims’ sole discussion of the cost of removing sand in its twenty-page opinion was the following footnote:

We do not have sufficient evidence from which to fashion a remedy from the costs related to sand removal: “[C]osts to cure and other elements resultant from the taking are only admissible on the issue of just compensation if they are tied to their effect upon fair market value.” Nichols on Eminent Domain, 4A § 14.A.04[2][a], Normally they would not be independent elements of compensation, in other words, unless it can be shown that the reduced after value assumes some continuing mitigation cost.

57 Fed.Cl. at 233 n. 9.

Since the Vaizburds never sought recovery on this theory in the Court of Federal Claims, that court’s statements on the point are dicta. The court’s remand seemingly is designed to correct what it views as a possible legal error by the trial court in “refusing] to consider cost of cure as a viable measure of compensation for the taking of an easement because there was no effect on market value.” Whatever may be the merits of that issue, in the circumstances here I see no reason for the *1288remand the court orders for the trial court to reconsider that theory of recovery.

To be sure, the Vaizburds represented themselves in the Court of Federal Claims. This, however, is not the typical pro se case in which a court condones a litigant’s failure to meet certain procedural or technical requirements. As the Court of Federal Claims explained:

Despite lack of counsel, plaintiffs’ legal argument and presentation did not suffer. They understood the relevant principles and Arkady Vaizburd, who handled the courtroom presentation, was very skilled at presenting evidence and making relevant objections.

57 Fed.Cl. at 222 n. 1.

The Vaizburds’ failure to raise the cost-of-removal issue before the Court of Federal Claims was not a forgiveable oversight or inadvertence but appears to have been a deliberate choice. I would hold them to that choice, and not give them a further opportunity to correct what they may now view as a mistaken strategy in the trial court.