Lead Opinion
REPORT OF THE REVIEW PANEL
with whom SMITH, Senior Judge, joins in the Report. LETTOW, Judge and Presiding Officer, dissents to the Report.
On September 20, 1993, the United States Senate referred Senate Bill 794, 103d Cong. (1993) entitled, “A bill [f]or the relief of land grantors in Henderson, Union, and Webster Counties, Kentucky, and their heirs,” to the Chief Judge of the United States Court of Federal Claims and instructed the Court to report back to the Senate “giving such findings of fact and conclusions that are sufficient to inform Congress of the amount, if any, legally or equitably due from the United States to the [Claimants individually” in accordance with 28 U.S.C. §§ 1492 and 2509 (2000). S. Res. 98, 103d Cong. (1993). Senate Bill 794 provides for relief to those individuals that were “promised they would be given priority to repurchase land sold by them if sold by the United States Government” and “paid less than reasonable value due in part to the refusal of the United States Government to compensate the owners for mineral, oil and gas rights.” S. 794, 103d Cong. § 2 (1993).
Judge Susan G. Braden, sitting as Hearing Officer in this case, held that “the record provides substantial evidence to support the Claimants’ entitlement to the equitable remedy of restitution, at least in the amount of $34,303,980.42.” Land Grantors v. United States,
DISCUSSION
1. Background
In the summer of 1941, after the onset of World War II, the United States (“Government”) began condemning land pursuant to the War Purposes Act of 1917, 40 Stat. 241 (codified as amended at 50 U.S.C. § 171) (repealed 1956) in order to establish military training corps throughout the United States. Land Grantors v. United States,
After the end of World War II, the United States declared certain facilities on Camp Breckinridge to be surplus property; however, on July 15, 1948, Camp Breckinridge was returned to active status because of the onset of the Korean War. Id. at 592. In December 1962, the Department of Defense (“DOD”) declared Camp Breckinridge inactive and the land was transferred to the General Services Administration (“GSA”) for disposal as surplus property. Land Grantors v. United States,
In 1965, a former landowner, Cyrus Hig-ginson, filed a lawsuit against the United States in the United States District Court for the Western District of Kentucky. Id. at 597-98. That suit was ultimately dismissed by the trial court for lack of jurisdiction: the complaint alleged a violation of the Surplus Property Act of 1944, 58 Stat. 765, which was repealed in 1949. See id. at 598. The United States Court of Appeals for the Sixth Circuit upheld the District Court’s ruling, stating that the “[Gjovemment’s title to the land acquired by negotiated purchases vested some 20-30 years ago” and holding that the fee simple title to the condemned tracts “cannot now be disputed under any accepted property theory.” Higginson v. United States,
The current litigation began in this Court on January 12, 1994 with the filing of the initial complaint by the Claimants. Discovery disputes and settlement negotiations occurred for over a decade. See Land Grantors I,
2. Standard of Review
Congressional reference eases are referred to the United States Court of Federal Claims
[P]roceed in accordance with the applicable rules to determine the facts, including facts relating to delay or laches, facts bearing upon the question whether the bar of any statute of limitation should be removed, or facts claimed to excuse the claimant for not having resorted to any established legal remedy. 28 U.S.C. § 2509(c).
After the hearing officer rules on the case, the officer “shall append to his findings of fact conclusions sufficient to inform Congress whether the demand is a legal or equitable claim or a gratuity, and the amount, if any, legally or equitably due from the United States to the claimant.” Id. The phrase “legal claim” simply requires that the claim be based on the invasion of a legal right and be viable in all respects. J.L. Simmons Co. v. United States,
After the hearing officer makes a determination on whether the demand is a legal or equitable claim or a gratuity, the findings and conclusions of the hearing officer are submitted to a review panel for review. 28 U.S.C. § 2509(d). “The panel, by majority vote, shall adopt or modify the findings or the conclusions of the hearing officer.” Id. In reviewing the hearing officer’s report, the panel “serves in a role analogous to that of an appellate court.” Kanehl v. United States,
3. Conclusions
A. Class Action Certification
Judge James F. Merow, who acted as Hearing Officer in this ease prior to August 15, 2003, issued an order on December 23, 1997 denying plaintiffs’ motion to certify this case as a class action. In a well-reasoned order, Judge Merow stated,
It is concluded that class certification is not feasible in this matter. To the extent that it is necessary to establish the contemporaneous values of the parcels acquired, to compare "with the amounts paid, this must be accomplished on the basis of evidence addressed to the most profitable*40 uses to which the specific land could probably have been put in the reasonably near future.... Individual proof as to a claimant’s status as a covered individual or heir under the reference is also necessary. A report to the Senate must identify any claimant held entitled to relief and the specific amount determined.... Common questions do not predominate to the extent that a class action would be feasible or desirable.
Land Grantors v. United States, No. 93-648X (Cl.Ct. Dec. 23, 1997) Order at 2 (internal citations omitted). Judge Braden, as Hearing Officer, reconsidered this matter and on June 22, 2006, granted plaintiffs’ motion to reconsider class certification. See Land Grantors v. United States,
B. Senate Bill 794, Section 2(1)
Senate Bill 794 limits relief to those former landowners who were: 1) promised they would be given priority to repurchase land sold by them if sold by the United States; and 2) paid less than reasonable value due in part to the refusal of the United States Government to compensate the owners for mineral, oil, and gas rights. S. 794, 103d Cong. § 2. Based on a review of depositions, affidavits, and answers to interrogatories prepared by former landowners and their heirs, the Hearing Officer determined that S. 794, Section 2(1) was satisfied by a preponderance of the evidence. Land Grantors I,
The Government argues: 1) the Hearing Officer improperly admitted, and relied on, hearsay evidence in support of her conclusion that S. 794, Section 2(1) was satisfied; and 2) the Hearing Officer’s conclusion that S. 794, Section 2(1) was satisfied by a preponderance of the evidence is clearly erroneous. According to the Rules of the Court of Federal Claims, a hearing officer’s factual findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the hearing officer to judge the credibility of witnesses. RCFC App. D, ¶8(d). In this case, the Hearing Officer’s findings are not based on any live witnesses; thus, the usual deference given to a hearing officer to judge witness credibility does not apply.
At the outset, the Government argues that the majority of the evidence relied on by the Hearing Officer was inadmissible hearsay evidence. Specifically, the Government alleges that the 49 affidavits cited by the Hearing Officer in support of her conclusion that the Government made repurchase promises should not have been admitted. The affidavits are hearsay statements under Federal Rule of Evidence (“FRE”) 802
[T]he court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of [the Federal Rules of Evidence] and the interests of justice will best be served by admission of the statement into evidence.
Id. The proponent of the evidence must also “make[ ][it] known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to meet it_” Id. Over strong Government objection, the Hearing Officer held that the affidavits satisfied FRE 807. Evi-dentiary rulings such as this are reviewed under an abuse of discretion standard. Shu-Hui Chen v. Bouchard,
The statements that the Hearing Officer admitted into evidence under the residual exception were affidavits written between 1978 and 1994, approximately 36 to 52 years after the first of the contracts were created. Land Grantors I,
[T]he court has determined that the trustworthiness of the affidavits is demonstrated by the totality of the circumstances under which they were executed, ie., not for litigation, but to persuade members of Congress to pass legislation to compensate the former landowners or their heirs for losses arising from the condemnation of their property in 1942-1944.
Id. The Hearing Officer then went on to provide a lengthy list of selected affidavits that the Court considered “credible and reliable.” Id.
Upon examination of the affidavits and the facts surrounding their admission, the Review Panel finds that the affidavits should not have been admitted. As previously mentioned, a court must determine that the statements possess “circumstantial guarantees of trustworthiness” equivalent to that of statements admitted under FRE 803 and 804, prior to admitting hearsay evidence under FRE 807. The following factors are relevant to a court’s determination of whether the statements possess such guarantees of trustworthiness:
[T]he declarant’s disinterest, the declar-ant’s motivation to lie, whether the statement was made under oath, the declarant’s probable motivation in making the state*42 ment, the extent of the declarant’s personal knowledge of the events recounted in the statement, the probable accuracy of the witness’ recounting of the declarant’s statement, a testifying witness’s knowledge of the statement’s contents, the declarant’s age, the declarant’s character for truthfulness and honesty, the frequency with which the declarant made similar statements, whether the declarant recanted the statement, and the statement’s temporal proximity to the event related.
See Amcast Industr. Corp. v. Detrex Corp.,
Furthermore, even if the Review Panel supported the Hearing Officer’s conclusion that the affidavits have circumstantial guarantees of trustworthiness, there are other requirements for admission. Under FRE 807, the statement must be “more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.” Fed. R.Evid. 807(B). In this ease, the written record produced at or near the time of acquisition was the best available evidence regarding the parties’ intentions, and nothing in the written record supports the affiants’ hearsay statements. Additionally, during trial, the Claimants did not present any evidentiary foundation for the affidavits. See Trial Tr. at 422-23. Finally, the affidavits were not provided to the Government until 2004, 10 years after the complaint was filed. By that time, all the affiants were deceased, leaving the Government unable to interview the affiants and assess their statements. While the affidavits were provided in advance of trial, they were not provided “sufficiently in advance ... to provide the adverse party with a fair opportunity to prepare to meet [them]” as FRE 807 requires. See Fed.R.Evid. 807. Thus, the Review Panel finds that the affidavits do not satisfy FRE 807 and that the
2) Repurchase Promises
In the First Interim Report, the Hearing Officer cited 11 depositions, 11 interrogatory responses and 49 affidavits in support of her conclusion that “many” former landowners entered into contracts with the “apparent” understanding that they could repurchase their properties after World War II ended.
For the reasons mentioned with regard to hearsay, the Review Panel finds that the affidavits do not have circumstantial guarantees of trustworthiness and will not place substantial reliance on them. The Hearing Officer also cited 11 interrogatory responses in support of her position that the Government made repurchase promises to the former landowners. The interrogatory responses were signed by heirs in 2004, approximately 63 years after the date of acquisition; none of the interrogatory responses was signed by the actual landowners. The discovery responses are vague, based on hearsay, and merely repeat rumors. See, e.g., DX 675 at 3, 8 (stating that she was a child at the time of purchase and that her parents were told they would have a chance to have first chance to purchase the property once it was sold); DX 679 at 8 (“When I was young my father had mentioned to me that the government had taken the land ... and that they (the families) were supposed to be able to purchase the land back but this did not happen.”); DX 681 at 8 (“I was always told all my life that there was such an arrangement made that the [government] did not live up to, however this all occurred before I was born!”); DX 692 at 8 (Answer to question regarding details of repurchase promise consisted only of: “Through rumor it was a oral promise”); DX 694 at 8 (“In later years I was told by family members ‘that promises that owners would be given priority to repurchase’ were given to owners”). Indeed, the majority of the interrogatories were nonre-sponsive with regard to questions requesting detailed information such as the name of the representative of the United States who made such a promise, how that promise was communicated to the original owner, and the date on which that promise was communicated to the original owner. Upon careful review of the interrogatory responses, the Review Panel finds that they add virtually nothing to the body of evidence regarding whether such repurchase promises were actually made and only serve to repeat rumors.
Finally, the Hearing Officer cited 11 depositions in her First Interim Report. The cited depositions were taken in July 1995 and October 2004. Land Grantors I,
The depositions were properly admitted under FRE 804 and provide the most compelling evidence of repurchase promises; nonetheless, the depositions cannot alone stand for the proposition S. 794, Section 2(1) was satisfied by a preponderance of the evidence. The depositions offer vague statements and provide little conclusive evidence regarding the alleged repurchase promises: most of the deponents could not specify a government employee who allegedly promised the former landowners the right of repurchase; many of the deponents were children at the time that the events to which they testified occurred; many testified that they merely overheard conversations whereby a government agent allegedly made such a promise; and the depositions were taken over 50 years after the relevant events occurred, signifying a strong likelihood of faded memories. See, e.g., CX 270 (Sept. 21, 2004 John E. Johnson Dep. at 11, 13 (stating that when he was 10 years old, he overheard a government representative tell his father that his father would be able to buy the land at a fraction of the cost of what the government paid after World War II ended; Johnson also stated “I think fairly well-known throughout the community that, you know, they were going to get their farm back”)); CX 269 (Oct. 5, 2004 Robert H. Bruce Dep. at 12, 32 (stating that “[t]he understanding was that the land as such could be repurchased by the original owner when it became available” but that he has never seen anything in writing regarding a right to repurchase)); CX 268 (Oct. 4, 2004 Carl Culver Dep. at 37-39 (stating that his aunt told him “the government was going to take their farms” but that “[the government agent] promised that they would be able to buy back their land at the price that the government was going to pay them”; Culver was not able to provide specific details such as the exact date that the interaction occurred or the name of the government agent that made the alleged promise)); CX 274 (July 14, 1995 William Caton Dep. at 12-13 (stating that Pete West was one of several Government agents that told him he could buy his property back after the war, but that “they didn’t put it in writing”)); CX 273 (July 14, 1995 Lottie Lynn Dep. at 10 (stating that a government agent “said we could have [the land] back after the war was over” but providing few other details)); CX 272 (July 13, 1995 William Logan Newman Dep. at 35 (stating that his “impression that [the landowners] would have the first chance to buy [the land] back” was based on “hearsay”)); CX 275 (July 14, 1995 Mary Virginia Dixon Dep. at 14, 31 (stating that “after the war was over and they were through with the land, we had first chance to buy it back if we wanted to” but could not remember the name of the government agent she and her husband spoke to)); CX 276 (July 14, 1995 Kathryn Pullman Dep. at 9 (stating that a government representative told her husband that “we would have first chance to buy the land back when they were finished with ... it” but providing no other details)); CX 271 (Oct. 1, 2004 Peyton Heady at 7-8 (Heady, a Clerk in Mechanical Engineer Department of Camp Breckinridge, stated, “And this land acquisition agent told me ... these farmers will get their land back after this camp is closed” but could not name the agent with whom he had spoken)).
The depositions of 11 individuals cannot stand for the proposition that all of the approximately 1,000 Claimants in this ease have a right to monetary compensation from the Government. Hundreds of tracts of land were purchased by the Government, and only a handful of landowners testified that they were personally promised the right to repurchase their land after World War II ended. Furthermore, none of the alleged repurchase promises were in writing. Indeed, the acquisition documents generated at the time of the
C. Mutual Mistake
The Hearing Officer concluded that the contracts between the Government and the Claimants were void because they 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 at the time of sale” and awarded the Claimants the equitable remedy of restitution. Land Grantors VI,
“To establish a mutual mistake of fact, [the Claimant] must show that: (1) the parties to the contract were mistaken in their belief regarding a fact; (2) that mistaken belief constituted a basic assumption underlying the contract; (3) the mistake had a material effect on the bargain; and (4) the contract did not put the risk of the mistake on the party seeking [relief].” Dairyland Power Co-op. v. United States,
The Hearing Officer cited numerous factual findings in support of her conclusion that the 1942-1944 contracts are void because they were based on a mutual mistake, and the Review Panel gives due regard to these factual determinations.
There is not “clear and convincing” evidence that the contracts were entered into based on an “erroneous belief’ of the parties that there was no coal, gas, oil or other minerals that would support exploration or operations at the time of sale, nor that this was a “basic assumption” of the contracts. In fact, there is undisputed evidence that oil was being produced in and around the Breck-inridge properties at the time that the contracts were entered into, indicating that the parties had or should have had knowledge of the potential for exploration and operations.
Even if we assume that some of the contracts were based on a mistaken assumption by the parties, the Claimants have not proved that “the contract did not put the risk of the mistake on the party seeking [relief].” See Dairyland Power Co-op. v. United States,
D. Laches
28 U.S.C. § 2509(c) directs a Hearing Officer to determine facts relating to delay or laches. See also Kanehl v. United States,
Laches is a element doctrine. It assures that old grievances will some day be laid to rest, that litigation will be decided on the basis of evidence that remains reasonably accessible and that those against whom claims are presented will not be unduly prejudiced by delay in asserting them. Inevitably it means that some potentially meritorious demands will not be entertained. But there is justice too in an end to conflict and in the quiet of peace.
A.C. Aukerman Co.,
The Hearing Officer determined that the doctrine of laches did not apply “[f]or the same reason, relevant to the court’s determination regarding the application of the equitable doctrine of tolling in this case” and found that the Government could not bear its burden of establishing that the delay in bringing suit was unreasonable or that it caused the Government any prejudice. Land Grantors I,
To sustain its burden of proving a laches defense, a defendant must demonstrate: 1) an unreasonable and unexcused delay by the claimant in the assertion of a claim, and 2) prejudice to the party against whom the claim is asserted. See JANA, Inc. v. United States,
The Government sustained its burden of demonstrating an unreasonable and unexcused delay by the Claimants. The Claimants’ claim based on the Government’s alleged repurchase promises accrued immediately after World War II ended in 1945. The Claimants clearly had knowledge of that claim in 1945, making the delay in bringing suit until 1994 an astounding 49 years.
The Claimants appear to argue that this delay in bringing suit against the Government was not “unreasonable and unexcused” and that they diligently pursued their claim. See Claimants’ Resp. Br. at 24-25. The Claimants support their argument based on three principal points: 1) they began requesting the return of their land soon after World War II ended; 2) they continued their campaign through the Higginson litigation; and 3) they formed the Breckinridge Land Committee in 1968 to pursue their congressional reference case.
Taldng the Claimants’ first point that they made “numerous requests” for return of their land immediately after World War II, the Review Panel notes that the Claimants cite only two letters in support of their position. See Claimants’ Resp. Br. at 24 (“On March 15, 1957, two former landowners of this property ... sent a letter of protest to [Department of the Interior].... ”). Moreover, if the Claimants did make numerous requests as they allege, it is unclear why they did not seek any legal redress at that time.
Finally, the formation of the Breckinridge Land Committee by some of the former landowners in 1968
Under the second prong of a lach-es defense, “prejudice to the adverse party” bars a claim whether it is economic prejudice or evidentiary prejudice. See JANA, Inc. v. United States,
In this case, most of the relevant events occurred during World War II when the land was transferred to the Government, making much of the pertinent evidence over 50 years old. The Claimants’ delay in pursuing their claim resulted in key witnesses, such as Government employees who participated in the acquisition negotiations and the original landowners, being unavailable for deposition or trial testimony. Additionally, some of the evidence cited in favor of the Claimants comes from affidavits of former landowners who had died by the time the Government received the affidavits, thereby making it impossible for the Government to interview the affiants. Furthermore, documents that may have supported the Government’s case, such as the original appraisals, were lost. Finally, the memories of those landowners who gave depositions in 1995 and 2004, over 50 years after the relevant events, were faded, thereby undermining the Court’s ability to judge the facts.
In their response brief, the Claimants argue: 1) that the Government possessed the documents regarding the transfer of land, and 2) had been on notice that the Claimants were entitled to repurchase their land since the 1940’s, and could have prepared affidavits at that time.
In light of the decades-long, unreasonable, and unexcused delay by the Claimants and the prejudice that delay caused to the Government, the Hearing Officer’s holding that the doctrine of laches is inapplicable was an abuse of discretion. The Government sustained its burden of proving that the doctrine of laches applies to the facts of this case, barring the Claimants from asserting a claim against the Government.
CONCLUSION
In sum, the Review Panel finds that the Hearing Officer’s determination that Senate Bill 794, Section 2, relating to the Government’s alleged repurchase promises, was proven by a preponderance of the evidence was clearly erroneous. Further, the Claimants did not meet their burden of proving that the doctrine of mutual mistake applies to the facts of this case. Finally, the Government met its burden of proving that the doctrine of laches applies, and the Hearing Officer’s conclusion to the contrary was an abuse of discretion. In light of the foregoing, the Review Panel recommends that the Chief Judge advise the Congress that the Claimants do not have a legal or equitable claim and that any award to the Claimants would constitute a gratuity.
Notes
. The Government asserts that this committee was formed in 1978. Def.’s ODenin Br. 31. The Hearing Officer concluded that it was formed in 1968. Land Grantors VI,
. Under RCFC 23, one or more members of a class may sue as representative parties on behalf of all members if: 1) the class is so numerous that joinder of all members is impracticable; 2) there are questions of law or fact common to the class; 3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 4) the representative parties will fairly and adequately protect the interests of the class. RCFC 23(a). In addition, the United States must have acted or refused to act on grounds generally applicable to the class; questions of law or fact common to class members must predominate over any questions affecting only individual members; and a class action must be superior to other available methods for fairly and efficiently adjudicating the controversy. RCFC 23(b).
. Under the Federal Rules, in the absence of a codified exception, hearsay is inadmissible at trial in the federal courts. Fed.R.Evid. 802. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing. offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). Any oral or written assertion is a statement. Fed.R.Evid. 801(a).
. The Claimants assert that the affidavits are admissible under FRE 803(16). See Claimants’ Resp. Br. at 16. FRE 803(16) is an exclusion from the hearsay rule for ”[s]tatements in a document in existence twenty years or more the authenticity of which is established.” Fed.R.Evid. 803(16). FRE 901(a) states that “the requirement of authenticity or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a). The Hearing Officer did not admit the affidavits under this exception. There is no evidence that the authenticity of the affidavits was, in fact, established, and the Review Panel will not infer authenticity.
. Although the Hearing Officer found that repurchase promises were made to land grantors, she concluded that such promises were unauthorized and therefore not contractually binding on the Government. Land Grantors I,
. The Review Panel notes that the Government asserts that many of the factual findings the Hearing Officer relied on are "clearly erroneous.”
. The Hearing Officer cited: 1) Dr. Jay L. Brig
. The dissent argues that the Claimants’ claims accrued in 1963, after the Government declared Camp Breckinridge as surplus property. Even if the relevant period for laches started in 1963, the doctrine of laches applies to the facts of this case.
. The Hearing Officer’s Report does not state the exact time that the Claimants gained knowledge of a cause of action. The Claimants do not dispute knowledge of their cause of action. See Claimants’ Resp. Br. at 24. The Review Panel therefore assumes that the Claimants had knowledge of their claim by 1967.
. The Review Panel notes that the test of unreasonable delay is "neglect or delay in bringing suit" and not in apprising the opposing party of the claim as the Claimants argue in their response brief. See Claimants’ Resp. Br. at 24; A.C. Aukerman Co.,
. The Government takes exception to the Hearing Officer and the Claimants’ conclusions that "numerous requests/petitions were made by the former landowners to repurchase their land after World War II ended.” Def.’s Opening Br. at 32-33. The Review Panel accepts the Hearing Officer’s determinations.
.The Government claims this Committee was formed in 1978 and not in 1968. Def.’s Opening Br. 31. The Hearing Officer determined that the Committee was formed in 1968, and the Review Panel takes that determination as true. See Land Grantors VI,
. The dissent cites numerous letters -written to U.S. Senators, the GSA, and other prominent individuals by a single landowner, Mrs. Ruby Higginson Au, during the years 1968 and 1978. The Review Panel is not convinced that the sporadic letter writing campaign of one individual is sufficient to preserve a claim against the Government.
. "[0]n April 6, 1979 a Report was forwarded to Senator Wendell Ford, Senator Walter Huddleston, Congressman William H. Natcher, and Congressman Carroll Hubbard.” Land Grantors VI,
. Similar versions of the bill failed to be reported out of the Senate in 1983, 1987, 1989, and 1991. Land Grantors VI,
. In support of this claim, the Claimants claim that this case is “remarkably similar” to Spalding and Son, Inc. v. United States,
. Based on this determination, the Review Panel has not addressed the Claimants’ exceptions to the Hearing Officer’s report.
Dissenting Opinion
dissenting.
I dissent. The congressional reference in this case requested that the court determine whether individuals who sold their land to the government during World War II for use as a military training camp were entitled to either legal or equitable relief.
A majority of the review panel has concluded that any equitable claim the claimants may have is barred by laches. I respectfully disagree. Laches should not be applied to have preclusive effect where the relevant passage of time was taken up by persistent efforts to persuade Congress to pass the resolution making the reference. In effect, the majority’s invocation of laches constitutes
On the merits, the plaintiffs have a valid equitable claim premised upon representations by the government’s purchasing agents that selling landowners would be given a first opportunity to repurchase their land. The majority rejects the hearing officer’s findings in this regard but their decision trenches upon her fact-finding role and impermissibly sidesteps the substantial and persuasive evidence in the trial record that supports the hearing officer’s finding.
To aid Congress’ disposition of this reference, this dissenting opinion analyzes the arguments on review in detail and concludes that an award of restitution should be made to the landowners and their heirs on an individual basis as the reference contemplates.
FACTUAL BACKGROUND
During the early period of World War II, the federal government acquired approximately 35,684.99 acres in Henderson, Union, and Webster Counties in Kentucky, for the purpose of establishing an Army training facility called Camp Breckinridge. Land Grantors v. United States,
The government acquired the land at issue through a series of condemnation proceedings occurring between 1942 and 1944. Land Grantors I,
The Department of the Army’s investigation found that overreaching, threatening, and abusive methods had been used by the government employees and agents charged vrith negotiating the final purchase price with landowners throughout the area. See Land Grantors I,
Camp Breckinridge was supposed to be declared surplus property at the close of World War II. See Land Grantors I,
In 1951, the Department of Defense became aware of the possibility that the condemned properties possessed significant gas and oil reserves. Land Grantors I,
In 1957, upon learning of the government’s plan to lease portions of Camp Breckinridge to private oil and gas companies “to protect the United States against loss by reason of the drainage of the oil and gas deposits,” two former landowners and several local officials filed a protest with the Department of the Interior. Land Grantors I,
In 1962, Camp Breckinridge was declared surplus property and was transferred to the General Services Administration for disposal. Land Grantors I,
Former landowners, upon learning of the government’s sale of the mineral rights, realized that the government had gained substantial profits from selling the right to develop the mineral reserves on their former property even though the government had “paid nothing or a de minimus amount for existing leases when their land was condemned in 1942-1944.” Land Grantors I,
At the time the Higginson lawsuit was initiated, the government had begun to plan for disposal of the parcels of land surface
After failing to find redress through the courts or through GSA, “a group of former landowners and/or their heirs formed the Breckinridge Land Committee.” Land Grantors I,
In 1983, 1987, 1989, and 1991, Senator Wendell A Ford of Kentucky introduced resolutions that would have referred the dispute between the government and former landowners to this court; however, each of the resolutions failed to be reported out of the Senate. See Land Grantors I,
Section 1. Authorization.
The Secretary of the Treasury is authorized and directed to pay, out of money not otherwise appropriated, to the individuals*55 (and in any case in which such individual is deceased, the heirs of such individual) who sold their land in Henderson, Union, and Webster Counties, Kentucky, to the United States Government under threat of condemnation in order to provide the 35,-684.99 acres necessary for the military training camp known as Camp Breckin-ridge, the sum of $_, such sum being in full satisfaction of all claims by such individuals against the United States arising out of such sale.
Section 2. Reason for Relief.
The individuals described in section 1 assert that they were—
(1) promised they would be given priority to repurchase land sold by them if sold by the United States Government; and
(2) paid less than reasonable value due in part to the refusal of the United States Government to compensate the owners for mineral, oil, and gas rights.
S. 794, 103d Cong. (1993).
Claimants filed a complaint in this court on January 12, 1994. Compl. ¶ l.
At long last, in September 2004, over ten years after the congressional reference was made, trial was held before a newly assigned hearing officer. Thereafter, the hearing officer issued an Interim Report and Memorandum Opinion on April 1, 2005. Land Grantors I,
In accordance with the hearing officer’s order, the claimants filed a Second Amended Complaint which included a claim of mutual mistake. Second Am. Compl. ¶¶ 32-40. Additionally, the Second Amended Complaint
Given the claimants’ continued insistence that their case was a class action, the hearing officer requested briefing from the parties on whether class certification was appropriate “in light of the 2002 revision of [the] R[ules] [of the] C[ourt] [of] F[ederal] C[laims] 23, the evidence adduced at the trial and thereafter, and the court’s ruling that the April 15, 1965 filing of the Higginson suit as a class action, even though it was never certified, was sufficient to allow equitable tolling of the statute of limitations.” Land Grantors v. United States,
1. who sold land in Henderson, Union, and/or Webster Counties, Kentucky during 1942-1944 to the Government under the threat of condemnation, pursuant to a contract, in order to provide the 35,684.99 acres necessary to establish the military training camp known as Camp Breckinridge;
2. who executed an Affidavit of Vendor that included the following, or substantially the following, language representing:
That there are no explorations or rentals being paid whatever for the development of coal, oil, gas or other minerals on said lands, that there are no outstanding rights under the terms of any oil, gas, coal or other mineral leases appearing of record for the reason that no rentals under any oil, gas or mineral leases have been paid to those vendors within the past 9 months, nor to any predecessor in title within the past 10 years; that no oil, gas or mineral well was drilled on said premises as provided by the terms of said leases; that oil, gas, or mineral leases are void, and all rights thereunder forfeited for the reason of non-performance on the part of the lessee or his (their) assigns to pay rental, or drill wells according to the terms of said leases, that no exploration for oil, gas or minerals are being conducted on said premises at this time, and that there are no oil wells on said premises; and
3.who were within the prospective class sought to be certified but were not named as a party or in privity to a named party in Higginson v. United States.
Land Grantors II,
In February 2007, the hearing officer issued an Order severing the distinct claims that the claimants had asserted under the jurisdictional grants of the congressional reference and the Tucker Act, respectively. Order of Feb. 28, 2007 at 1. The clerk of the court designated Case No. 93-6481L to encompass the Tucker Act claims. Id. However, while this case was still pending before the hearing officer, the Supreme Court issued its decision in John R. Sand & Gravel Co. v. United States, — U.S. —,
The hearing officer issued her Final Report on April 18, 2008, concluding that the terms of the congressional reference enabled those claimants who had sold their property after the filing of the Declarations of Takings to be compensated by the United States. Land Grantors VI,
The hearing officer reiterated her finding that the contracts between the former landowners and the government were premised upon a mutual mistake, Land Grantors VI,
STANDARDS FOR DECISION
In a congressional reference proceeding, “[t]he hearing officer ... shall append to his [or her] findings of fact conclusions sufficient to inform Congress whether the demand is a legal or equitable claim or a gratuity, and the amount, if any, legally or equitably due from the United States to the claimant.” 28 U.S.C. § 2509(c). The use in the congressional reference statute of “ ‘the words “legal claim” ... imply no special meaning beyond the conventional understanding of that term: a claim based on the invasion of a legal right.’ ” J.L. Simmons Co. v. United States,
A review panel shall “by majority vote, ... adopt or modify the findings or the conclusions of the hearing officer.” 28 U.S.C. § 2509(d). A review panel has the same relationship with the hearing officer as a panel of a court of appeals has with a district court judge. See Land v. United States,
I. LACHES
The government asserts that any equitable claim to relief that the former landowners and their heirs may have is barred by the equitable defense of laches. Def.’s Opening Br. at 27-36. The equitable defense of lach-es requires “a showing of ‘(1) unreasonable and unexcused delay by the claimant, and (2) prejudice to the other party, either economic prejudice or “defense prejudice” — impairment of the ability to mount a defense.’” Cygnus Corp. v. United States,
In a congressional reference case, the hearing officer is instructed “to determine the facts, including facts relating to delay or laches.” RCFC App. D, ¶ 6. The decision of whether the defense of laches applies “is committed to the sound discretion of the [trial] court.” A.C. Aukerman Co. v. R.L. Chaides Constr. Co.,
In Land Grantors I, the hearing officer addressed the government’s contention that laches barred any equitable claims asserted by the former landowners.
The government contends that the hearing officer erred in finding that the doctrine of laches was inapplicable in the present case, pointing to the almost 50 year lapse in time between when the complaint was filed and when “[t]he United States acquired the Breckinridge Properties.” Def.’s Opening Brief at 28. According to the government’s calculations, the “[c]laimants’ delay in filing suit ... was no less than 37 years (1957 to 1994) for some claims and no less than 27 years (1967 to 1994) for other claims.” Id. The government asserts that the claimants have failed to offer an explanation for their long delay or demonstrate that they undertook any meaningful activities which would show a diligent pursuit of their claims against the United States. Id. at 29. As the government would have it, the hearing officer avoided the application of laches only by relying on clearly erroneous factual findings and conclusions that were “irrelevant to the possible application of the doctrine of laches.” Id. at 31, 35.
The government avers that the delay in bringing suit prejudiced it because “original eyewitness testimony of the acquisition events, if available at all, was more than 50 years old” and that the necessary documents to sustain its defenses “are no longer available, in all probability having been destroyed years ago in accordance with standard Army record retention policies.” Id. at 29-30. Additionally, the government claims “[t]he unavailability of witnesses is especially prejudicial to the United States in this case, where the [ojfficer’s findings are based on allegations that were generated decades after the relevant events.” Id. at 29-30.
The government’s argument that the hearing officer erred in finding laches inapplicable in the present case is unavailing. The hearing officer correctly determined that the government is unable to satisfy either of the two requirements necessary to invoke the defense of laches. The government’s reliance on the time period that other cases have found satisfactory to invoke the defense of laches is misguided because “[n]o fixed boundaries define the length of time deemed unreasonable, and the duration should be viewed in light of the circumstances.” Aero Union Corp.,
The government is unable to show that the claimants did not diligently pursue their claims against the United States. The former landowners’ claims against the United States only matured in 1963, after the government had declared Camp Breckinridge surplus property.
In 1964, upon learning that the former land had been declared surplus property by the government, former landowners and their heirs formed the Breckinridge Land Committee. Dep. of Carl Culver (Oct. 4, 2004), Ex. 5 (Significant Events of Camp Breckinridge); see also Dep. of Katherine Pullum (Aug. 14, 1995), Ex. 3 (Letter to the Contributors of Breckinridge Land from Mrs. Byron Tapp). The Breckinridge Land Committee was dedicated to reacquiring the properties that were sold to the government in the 1940s and receiving additional financial compensation for the oil and gas reserves that existed under their former properties. JX 57 (Letter from Ruby Higginson Au to Senator Marlow Cook (Feb. 18, 1974)) at DOJ 1565. The Breckinridge Land Committee was managed by an executive committee that was comprised of Cyrus Higginson, Sam Fellows, A.G. Pritchett, R.W. Roberts, and Byron Tapp. Dep. of Katherine Pullum (Aug. 14, 1995), Ex. 3 (Letter to the Contributors of Breckinridge Land from Mrs. Byron Tapp). Most of the former landowners were actively involved in the Breckinridge Land Committee and in the Higginson lawsuit, which was filed in 1965. Dep. of Mildred Wood Watson (Oct. 1, 2004), 10:5-7.
On April 15, 1965, in response to the government’s failure to honor the repurchase representations made to the former landowners and its unwillingness to follow through on the representations made to Congressman Nateher, a lawsuit was instituted on behalf of Mr. Cyrus Higginson “and all other former landowners, or heirs, successors and assigns thereof, of 36,000 acres, namely Camp Breckinridge, in Union, Henderson and Webster Counties, Kentucky.” DX 64 (Compl. at 2, Higginson v. United States, Civil No.2074 (Apr. 15, 1965)) at DOJ 1069; Land Grantors 1,
In response to the inability to get relief through the judiciary, the Breckinridge Land
The efforts of Mrs. Ruby Higginson Au’s letter writing campaign were rewarded when Senator Walter D. Huddleston agreed that it was appropriate for him to make an “an inquiry to the General Services Administration.” CX 22 (Letter from Senator Walter D. Huddleston to Mrs. Harvin Au (June 6, 1973)) at BLC 1198. Subsequently, Senator Marlow W. Cook also agreed to take up the former landowners’ cause with the General Services Administration. See CX 23 (Letter from Senator Marlow W. Cook to Mrs. Ruby Au (Mar. 29, 1974)) at BLC 1216. Despite the intervention of two senators, GSA responded that the matter had been settled when the Supreme Court failed to exercise jurisdiction over the Higginson lawsuit. See JX 54 (Letter from Allan G. Kaupinen, Assistant Administrator, General Services Administration, to Senator Walter D. Huddleston (June 20,1973)) at DOJ 1543. Notwithstanding the rejection from GSA, Mrs. Higginson Au continued to press the former landowners’ grievances with Kentucky’s senators. See, e.g., JX 56 (Letter from Ruby Higginson Au to Senator Walter D. Huddleston (July 10, 1973)) at DOJ 1559. Finally, in April 1974 Senator Cook committed his “staff to investigate the possibilities of obtaining some kind of congressional commitment” to redress the wrongs committed by the federal government in acquiring and disposing of the property that comprised Camp Breckinridge. CX 24 (Letter from Senator Marlow W. Cook to Ruby H. Au (Apr. 19, 1974)) at BLC 1217.
After receiving the commitment from Senator Cook, Mrs. Higginson Au continued to lobby members of Kentucky’s congressional delegation on behalf of the former landowners and their heirs. See, e.g., CX 34 (Memorandum from Breckinridge Land Committee to Congressman Carroll Hubbard (Apr. 6, 1979)) at BLC 1370; DX 174 (Letter from Paul Goulding, Deputy Administrator, General Services Administration, to Congressman Romano Mazzoli (Oct. 25, 1976)) at DOJ 1574. In 1976, in an effort to further publicize the plight of the former landowners, Mrs. Higginson Au published a book chronicling the government’s actions and how the former occupants of the land had been wronged. CX 8 (Ruby Higginson, Land of Camp Breckinridge: Injustice to the Farmer (1976)). In response to the efforts of Mrs. Higginson Au and Kentucky’s congressional delegation, the Breckinridge Land Committee resumed an active role in seeking to further the former landowners’ interests. See JX 57 (Letter from Ruby Higginson Au to Senator Marlow Cook (Feb. 18, 1974)) at
In 1979, as a result of the efforts of Mrs. Higginson Au, Senators Walter Huddleston and Wendell Ford introduced a resolution referring the instant dispute to this court. 125 Cong. Rec. S33608-10 (Nov. 27, 1979). Although their efforts in 1979 to have the former landowners’ claims against the United States referred to this court failed, Senator Ford continued to introduce the resolution in every Congress until the Senate passed the measure in 1993. 140 Cong. Rec. S15235-04 (Nov. 30, 1994).
The government is unable to establish that the delay in filing suit was unexcused because the former landowners’ only option was to pursue relief through Congress and the political process. It is well established that sovereign immunity bars suits against the United States, unless the federal government has consented to being sued. See United States v. Mitchell,
The government additionally is unable to demonstrate that it has suffered the necessary prejudice to invoke the defense of lach-es. The government makes the specious claim that it was unduly prejudiced by the unavailability of witnesses because the claimants’ allegations are fabrications “that were generated decades after the relevant events.” Def.’s Opening Br. at 29-30. The allegations of governmental wrongdoing in the instant case date to 1942. See Land Grantors I,
The government’s claim of prejudice premised upon the “fad[ing] memories” of those who were firsthand witnesses of the event, Def.’s Opening Br. at 30, suffers from the same flaw as its prior argument in that it conveniently overlooks and ignores the historical record of this case. Notably, the Breckinridge Land Committee and the Kentucky River Coalition sought to memorialize the testimony of former landowners and government officials 16 years before the complaint was filed in this case. Land Grantors I,
Equally unavailing is the government’s claim that the destruction of certain documents and its inability to locate other potentially relevant documents is sufficient to demonstrate the necessary prejudice. The hearing officer concluded that the government was not prejudiced by the loss of documents, but rather that it “benefitted from the destruction of documents through agency retention programs.” Land Grantors I,
In the instant matter, the government is unable to show that the hearing officer’s decision that laches was inapplicable was an abuse of discretion. The government has been unable to demonstrate how the claimants’ delay in this ease was unreasonable or inexcusable. Furthermore, the government failed to demonstrate that the hearing officer’s conclusion that the government was not prejudiced by fading memories, missing documents, and the unavailability of firsthand witnesses was clearly erroneous. In short, the hearing officer’s decision rejecting the government’s claim of laches is fully supportable. It assuredly does not “rest[ ] on an erroneous interpretation of the law or on clearly erroneous factual underpinnings,” A.C. Aukerman Co.,
II. ELIGIBLE CLAIMANTS
The hearing officer’s final opinion and order addressed whether she should grant the claimants’ motion to vacate an order entered by the first hearing officer, which concluded that the terms of congressional reference applied only to “those landowners who ‘sold’ their properties prior to the fifing of declarations of taking.” Pis.’ Mot. to Vacate Nov. 24,1998 Order at 1. The claimants requested that the hearing officer allow “all former landowners of Camp Breckinridge property (or their heirs) ... to participate in any legislative award.” Id. at 2. The hearing officer decided to vacate the November 24, 1998 order because “it improperly foreclose[d] claims of landowners or their heirs who sold their property after the issuance of the Declarations of Taking.” Land Grantors VI,
Both parties contest an aspect of these rulings by the hearing officer. On the one hand, the claimants challenge the hearing officer’s conclusion that not all of the former landowners and their heirs were entitled to be compensated under the terms of the congressional reference. Claimants’ Opening Br. at 14-18. The claimants assert that the hearing officer’s interpretation of the congressional reference “is at odds with the plain language and rationale of Section 2, which demonstrates Congress’ intention to provide compensation for all ... the former owners of all 35,684.99 acres necessary to create the military training camp known as Camp Breckinridge.” Id. at 15. The claimants contend the hearing officer’s interpretation was the result of her “read[ing] out ‘threat of condemnation’ from the reference” and “adopt[ing] a far-too-restricted definition of ‘sold.’ ” Id. at 15, 17.
On the other hand, the government objects to the hearing officer’s conclusion that the congressional reference “does not foreclose [cjlaimants who sold their property subsequent to the fifing of Declarations of Taking” from partaking in any recovery in this case. Land Grantors VI,
When engaging in statutory interpretation, a court’s inquiry “begins with the statutory text, and ends there as well if the text is unambiguous.” BedRoc Ltd., LLC. v. United States,
In fight of these principles of statutory construction, the claimants’ objections are unavailing. The congressional reference
The government’s challenge to the hearing officer’s construction of the congressional reference also must be rejected. The government’s argument rests upon the premise that the filing of a declaration of taking is synonymous with condemnation. See Def.’s Resp. at 9. However, this premise is not always correct. The government’s argument ignores the fact that title to the government vests only upon the government’s paying the former landowners compensation, see Albert Hanson Lumber Co. v. United States,
Furthermore, reading the congressional reference as a whole, it becomes apparent that the government’s construction would inextricably sever the two sections of the congressional reference. The congressional reference was enacted because the former landowners and their heirs asserted that the government “(1) promised they would be given priority to repurchase land sold by them if sold by the United States Government; and (2) paid less than reasonable value due in part to the refusal of the United States Government to compensate the owners for mineral, oil and gas rights.” S. 794, 103d Cong. § 2 (1993). The government’s
The claimants also challenge the hearing officer’s determination that the former landowners and their heirs are required to produce an affidavit of vendor to partake in any recovery. Claimants’ Opening Br. at 18-19. The hearing officer found that such an affidavit was a necessary predicate “for class definition and notice” “[s]inee [c]laimants’ claim arises from a mutual mistake material to the 1942-1944 contracts.” Land Grantors VI,
The claimants should not be required to produce an affidavit of vendor to receive a share of any recovery in this case. As addressed below, the hearing officer’s conclusion that the claimants had a viable basis for recovery via the doctrine of mutual mistake was fatally flawed. Because the claimants’ recovery could not be premised upon a theory of mutual mistake, the hearing officer’s rationale for requiring an affidavit of vendor disappears. Additionally, requiring claimants to produce an affidavit of vendor would impose a significant hardship because many of the vendor affidavits can no longer be located, as they have been destroyed or no longer can be found due to the passage of time and the slipshod manner in which they were stored. Claimants’ Opening Br. at 18-19.
In short, the hearing officer’s conclusion that not all former landowners are entitled to share any recovery under the congressional reference was correct. Similarly, her ruling that those former landowners who sold their property to the government after a declaration of taking had been filed could nonetheless share in the recovery was not erroneous. However, the requirement that claimants necessarily had to produce an affidavit of vendor to join in any recovery was “clearly erroneous” because that requirement had its genesis in the mistaken premise that the claimants’ recovery was based on a claim of mutual mistake.
III. MUTUAL MISTAKE
A mutual mistake as to a material fact can lead to voidance or reformation of a contract. See Restatement (Second) of Contracts, introductory note to ch. 6, at 379 (1981). To succeed on a claim of mutual mistake the claimants must satisfy four factors: “(1) the parties to the contract were mistaken in their belief regarding a fact; (2) that mistaken belief constituted a basic assumption underlying the contract; (3) the mistake had a material effect on the bargain; and (4) the contract did not put the risk of the mistake on the party seeking reformation”. Atlas Corp. v. United States,
The hearing officer concluded that the claimants had a viable claim of mutual mistake, opining that “[t]he ‘basic assumption’ of fact on which the parties entered into contracts in 1942-1944 was that no coal, gas, oil, or other mineral deposits existed under the condemned properties that would support exploration or operation at the time of sale.” Land Grantors VI,
The government asserts that the hearing officer’s conclusion that the doctrine of mutual mistake was applicable to the facts of this case is erroneous “because (l)[c]laimants’ delay in pursuing their rights prevents application of the doctrine; (2) the doctrine is legally inapplicable under these circumstances; and (3) the [o]fficer’s findings with respect to each of the four elements of mutual mistake are based on clearly erroneous inferences, which are not supported by the existing record.” Def.’s Opening Br. at 53-54. The government contends that the hearing officer considered mutual mistake “in terms of whether the parties were aware of the existence of minerals, [but] the only real ‘mistake’ the parties made was in failing to accurately predict that the sales prices in the 1960s would exceed the sales prices in the 1940s.” Id. at 56.
For a party to state a viable claim for mutual mistake, he or she “must show that the parties to the contract held an erroneous belief as to an existing fact.” Dairyland Power Coop. v. United States,
The evidence at trial indicates that the parties were generally aware at the time of sale that oil, gas, or coal might well exist under the properties. Oil and gas leases existed on some of the properties prior to the government’s purchase of the properties, and the presence of commercially viable mineral reserves was known in the surrounding area. Furthermore, the hearing officer’s application of the doctrine of mutual mistake was premised upon facts that arose some years after the government had acquired the property to construct Camp Breckinridge. Land Grantors I,
IV. MISREPRESENTATION
In the hearing officer’s first interim report and memorandum opinion, she determined 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.” Land Grantors I,
A. Evidentiary Issues
The government’s opening brief challenges the reliability of the evidence upon which the hearing officer relied in reaching her conclusion about the existence of a repurchase representation. Def.’s Opening Br. at 43-45. The government asserts that a stringent form of review is applicable to the hearing officer’s factual findings in this context because her “evaluation of this evidence was not informed by live testimony.” Id. at 46. The government contends that “[t]he [o]ffi-cer’s finding that many former owners ... would be entitled to repurchase their property after World War II is based on a handful of hearsay statements generated under largely unknown circumstances decades after the relevant events.” Id. at 45. Additionally, the government claims that the hearing officer erred in relying on the 1979 affidavits because the affiant’s statements are hearsay
The hearing officer had extensive documentary evidence before her, not a mere “handful” of statements, to aid in rendering her decision. She considered a large number of affidavits executed roughly thirty years ago, well before this congressional reference was made, to support her conclusion that the government promised the former landowners a priority in repurchasing their land. Land Grantors I,
The evidentiary rulings of a trial court can be reversed by an appellate court only if they constitute “an abuse of discretion, and ... prejudiced substantial rights.” Applied Med. Res. Corp. v. United States Surgical Corp.,
1. Hearsay.
The Federal Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R.Evid. 801(c). However, an out-of-court statement is not hearsay if it is offered to show effect on the hearer. See 2 Kenneth S. Brown, McCormick on Evidence § 249, at 134 (6th ed.2006). Along these lines, “[i]f the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.” Fed. R.Evid. 801, Advisory Committee Note to Subdivision (c), 1972 Proposed Rules.
Here, some of the statements were made in circumstances where they had the effect of suppressing objections by landowners. A prior federal employee of the engineering staff at Camp Breckinridge testified by deposition that he was physically proximate to, and heard, discussions between government purchasing agents and landowners:
Q. Were you in physical proximity or closeness to employees of the government who were involved in dealing with landowners regarding the acquisition of their real estate?
A. They — it’s a complicated answer. If I was sitting — sitting about there (INDICATING), he was just on the other side of that wall there and there wasn’t any door and I could hear everything he said.
Q. All right. And for how long were you in that proximity?
A. Approximately two weeks.
Q. And can you remember anything you heard the government land officer say?
A. The landowners, a whole bunch of them came in, and the landowners came in and they were irritated, and he, without fail, told them, “We need it; and if on any occasion we no longer need it, you’ll be the first one to have the chance to get it back.”
Q. And—
A. It was the standard line.
*70 Q. All right. And how many — approximately how many times would you have heard that said?
A. Thirty times a day I think.
Q. For how many days?
A. About ten.
Q. So there were lots of landowners coming in and lots of meetings.
A. They were irritated.
Dep. of Herbert F. Hoffman 8:7 to 9:18 (July 21, 2004) (“Hoffman Dep.”). This statement by the deponent “ha[s] an impermissible hearsay aspect as well as a permissible non-hearsay aspect.” 2 McCormick on Evidence § 249, at 135. It is hearsay insofar as the landowners were told by the government’s purchasing agent that “you’ll be the first one to have the chance to get it back.” Hoffman Dep. at 9:1-2. It is not hearsay insofar as it suppressed the landowners’ objections and induced them to sell.
a. Depositions.
As a general matter, the hearing officer found the deposition testimony to be admissible under the “[f]ormer testimony” exception to the hearsay rule. Land Grantors I,
b. Affidavits.
The affidavits pose different issues. Some were given by persons directly involved as sellers. See, e.g., CX 197 at BLC 024 (Aff. of Jewell Duncan (Mar. 6, 1979)) (“The government appraisers told us that after the war when the camp was no longer needed we would have first chance to purchase our farm.”); CX 219 at BLC 022 (Aff. of Henry V. Clements, Jr. (Mar. 7, 1979)) (“We were told by the government land appraisers, when this land was condemned for the camp, that we would get it back when the war was over for the same price we had been paid for it by the government.”). Other affidavits were given by persons present during the discussions between the government’s agents and the pertinent landowners. See, e.g., CX 205 at BLC 146-47 (Aff. of Lloyd H. Woodring (Mar. 2, 1979)) (“My dad, Ul-liss [Woodring], and I sat with Pete West, the government negotiator, at the kitchen table negotiating the acceptance of the appraised value of the farm. Pete West, a friend of [d]ad, said ‘you or your heirs will get the first chance to buy the land back at the same price less the damages. The government will only operate the camp four to six years.’ ”). These statements and numerous other affidavits setting out similar statements are manifestly hearsay.
The claimants offered the affidavits as “evidence of a material fact.” Fed.R.Evid. 807(A). The affidavits were offered to prove that government employees and agents represented to the former landowners that they would have the first opportunity to repurchase their land. See Land Grantors I,
Rule 803(16) of the Federal Rules of Evidence provides that “[statements in a document in existence twenty years or more the authenticity of which is established” are admissible as an exception to the general prohibition on hearsay evidence. Fed.R.Evid. 803(16). Unlike other exceptions to the hearsay rule, the exception for ancient documents “does not require an explicit showing of trustworthiness, nor does it contain a trustworthiness exclusionary clause.” 4 Stephen A. Saltzburg, et al., Federal Rules of Evidence Manual 803.02[17] at 803-72 (9th ed.2006). This hearsay exception only requires a showing that the document containing the statement has been authenticated as
Most of the affidavits were created in 1979, 25 years before they were introduced at trial. The government does not contend that the documents are not affidavits or that they have been altered since their creation.
The government claims that the affidavits are unable to meet one of the underlying justifications for the ancient documents exception because “the affidavits were executed in an effort to recover a monetary award from Congress, [and therefore] there is a clear potential for bias.” Def.’s Opening Br. at 41. However, many of the affiants addressed matters of which they had “participatory knowledge.” See Boston Edison Co. v. United States,
The hearing officer explicitly relied on the residual hearsay exception in finding that the affidavits were admissible. Land Grantors I,
[a] statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B)*72 the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.
Fed.R.Evid. 807. The residual hearsay exception was “not intended to confer ‘a broad license’ on trial judges ‘to admit hearsay statements that do not fall within one of the other exceptions contained in rules 803 and 804(b).’” Conoco Inc. v. Dep’t of Energy,
The government objects to the introduction of the affidavits under the residual hearsay exception because it claims they lack the “equivalent circumstantial guarantees of trustworthiness” required by the Federal Rules. Fed.R.Evid. 807. The government claims that the hearing officer’s conclusion that the affidavits satisfy the trustworthiness requirement is flawed because it overlooked numerous problems with the information contained in the affidavits. Def.’s Opening Br. at 41-43. In determining whether a statement has sufficient “equivalent circumstantial guarantees of trustworthiness” under the residual hearsay exceptions, courts “compare the circumstances surrounding the statement to the closest hearsay exception.” 2 Kenneth S. Broun, McCormick on Evidence § 324 at 405 (6th ed.2006); see Conoco,
In this respect, the affidavits recount similar experiences and corroborate each other, see Land Grantors I,
The government relies on statements from the Supreme Court’s decision in Idaho v. Wright,
The government claims that the affidavits lack the necessary probative value to satisfy the requirements of the residual hearsay exception. A statement is more likely to be admissible under the residual hearsay exception if the court concludes that little or no evidence would be available on the same point. See, e.g., Conoco,
The government also asserts that the hearing officer erred in admitting the affidavits because reliance on “these hearsay statements” would contravene “the general purpose of the rules and the interests of justice.” Def.’s Opening Br. at 40 (citing Fed.R.Evid. 807(C)). The government’s argument is unavailing. The requirement in Federal Rule 807 that the government cites is a restatement of Rule 102. See Robinson v. Shapiro,
The government claims that it received insufficient notice of the claimants’ intention to introduce the affidavits into evidence. Def.’s Opening Br. at 41. The government asserts that it received insufficient notice because “[c]laimants waited 25 years after the affidavits were signed (and 15 years after [claimants filed their complaint) before they provided the documents to the undersigned counsel shortly before trial.” Id. The government’s proposed ground for finding that it received insufficient notice is not supported. See, e.g., United States v. Munoz,
Finally, the government objects to the admission of the affidavits on the ground that they were admitted after the trial had been completed. Def.’s Opening Br. at 37. However, the government’s argument overlooks the fact that the hearing officer did not close the record at the end of trial. Indeed, both the government and the claimants continued to submit exhibits to the hearing officer in the months following the close of trial. See, e.g., Def.’s Submission of Supplement Exhibit List (Dec. 10, 2004), Docket No. 148; Claimants’ Motion Regarding Trial Exhibits (Dec. 10, 2004), Docket No. 149. The hearing officer’s decision not to close the record after the end of the trial did not prejudice the United States because it had a full opportunity to respond and object to the inclusion of the affidavits in the record. See, e.g., Response to the Court’s Proposed Order Regarding Final Evidentiary Exhibits (Mar. 29, 2005), Docket No. 167; Def.’s Post-Trial Br. (Jan. 24, 2005), Docket No. 157; Def.’s Resp. to Claimants’ Mot. Regarding Trial Exs. (Dec. 17, 2004), Docket No. 150. Both RCFC 1
c. Discovery responses.
The government also contends that the hearing officer’s findings regarding misrepresentation cannot be based upon plaintiffs discovery responses. However, the discovery responses do not fall within the definition of hearsay because they are an “[ajdmission by party-opponent.” Fed.R.Evid. 801(d)(2). And, remarkably, here it was the government which introduced the claimants’ responses to the government’s interrogatories into evidence. See DX 670 to DX 701 (Answers to Def.’s First Set of Interrogatories and Responses to Requests for Production of Documents (May 5, 2004)). The government’s contention that the responses were based upon hearsay is simply not available in circumstances where the government itself was the party which sought the admission of the responses as evidence by way of a supplemental submission. See Def.’s Submission of Supplemental Exhibit List (Dec. 10, 2004). The government cannot assign error to action by the hearing officer that adopted a request it had made during the course of the evidentiary proceedings.
B. The Repurchase Representation
The affidavits and depositions submitted by the claimants unequivocally establish that government employees and agents represented to the former landowners that they would be given the first opportunity to re
The depositions of the claimants also support the conclusion that government employees and purchasing agents during negotiations with the former landowners represented that they would be given the first opportunity to repurchase their property. See, e.g., Dep. of Lottie Mae Lynn 10:16-18, 16:9-12 (July 14, 1995) (stating that the government told her family that “we could have [our land] back after the war was over”); Dep. of John Edwin Johnson 13:8-16 (Sept. 21, 2004) (stating that it was “fairly well-known throughout the community that, you know, they [the landowners] were going to get their farm back”); Dep. of Peyton Heady 7:68-70 (Oct. 1, 2004) (stating that while he worked as a clerk at Camp Breckinridge he was informed by a “land acquisition agent [these] farmers will get their land back after this camp is closed”); Hoffman Dep. 8:21 to 9:10 (stating that while working as an employee for Camp Breckinridge the government agents repeatedly told the former landowners that “if on any occasion we no longer need [your land], you’ll be the first one to have the chance to get it back”); Dep. of Kathryn Pullum 9:17-20 (July 14, 1995) (stating that she heard a government representative “tell [her] husband that we would have [the] first chance to buy the land back when they were finished with it”); Dep. of William Caton 73:20 to 74:5 (July 14, 1995) (stating in response to the government’s question about the existence of a repurchase promise “that they [government agents] stressed all the time that just as soon as the war is over and everything is over, why, you’ll get this land back”).
The government has the burden of showing that the hearing officer’s factual conclusion that government employees and agents represented to the plaintiffs that they would be given the first opportunity to repurchase their properties was “clearly erroneous.” RCFC App. D, ¶ 8. The factual conclusions of the hearing officer are not to be disturbed upon appeal simply because the review panel “ ‘might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the [trial judge] apparently deemed innocent.’” Inwood Labs., Inc. v. Ives Labs., Inc.,
In reviewing the record, the extensive evidence indicating that the government made a repurchase representation is sufficient to overcome any shortcomings that may exist in any one particular document that resides within the body of materials. The inconsistencies cited by the government do not relate to the existence of a repurchase promise itself, but instead to surrounding details about the terms of that representation or the circumstances in which it was made in individual instances. Furthermore, evidence showing the widespread knowledge of a repurchase promise made by government employees and agents supports the trustworthiness of the finding. See Advisory Committee Note to Fed.R.Evid. 803 (19-21) (stating that trustworthiness can be “found “when the topic is such that the facts are likely to have been inquired about and that persons having personal knowledge have disclosed facts which have thus been discussed in the community; and thus the community’s conclusion, if any has been formed, is likely to be a trustworthy one’ ”). The government’s contentions are insufficient to sustain its burden of establishing that the hearing officer’s factual findings are “clearly erroneous,” especially in light of the fact that “the [review] panel must take that view of the evidence and the inferences deducible therefrom in a light which is most favorable to plaintiff.” The Merchants Nat’l Bank of Mobile,
The government asserts that the evidence relied upon by the hearing officer cannot support her findings because “many affiants ... [had] no personal knowledge of the relevant events.” Def.’s Opening Br. at 43. However, the government’s challenge on the basis of personal knowledge is unavailing. Many of the individuals that submitted affidavits and depositions to which the government objects had “participatory knowledge” of the events surrounding the government’s acquisition of the properties that comprised Camp Breckinridge, as they were heirs of the former landowners who had heard conversations between their family members and government agents, as well as being informed of the government’s acquisition of Camp Breckinridge from first-hand participants. See Boston Edison,
V. REMEDY
The hearing officer determined that the former landowners and their heirs were entitled to receive $34,303,980.42 from the United States in restitution. Land Grantors VI,
Calculating the amount of recovery the claimants are entitled to receive in this case was made more difficult than usual because “the Government failed to produce or [had] destroyed relevant documents that would verify the correct amount.” Land Grantors VI,
The manner in which the hearing officer calculated the remedy and planned to distribute any award was equivalent to a so-called “fluid recovery.” The possibility of such a recovery in class actions has recently attracted considerable attention in suits brought under the Racketeer Influenced and Corrupt Organizations Act against cigarette manufacturers for their marketing of “light” cigarettes. See McLaughlin v. Am. Tobacco Co.,
Federal courts that have confronted the use of fluid recoveries in class action litigation have found that they are impermissible. See, e.g., McLaughlin,
Determining the appropriate amount of the claimants’ monetary recovery requires a specific identification of the date when an actionable claim against the United States arose. The actionable claim against the United States arises from the misrepresentations made by government agents and employees concerning the former landowners’ ability to have the first option to repurchase their land. However, the misrepresentation engendered only a nascent and inchoate claim. That claim matured against the United States only when the government declared Camp Breckinridge surplus property and sought to dispose of the property at public auction.
During the fall of 1962, in accord with the statutory directives governing the disposal of surplus property, the Department of Defense provided the House and Senate Armed Services Committees with a report indicating its intention to declare Camp Breckinridge to be surplus property and to dispose of it in accordance with the Federal Property and Administrative Services Act of 1949. Land Grantors I,
The claimants’ entitlement to relief in this ease is premised upon an equitable claim, and thus the basis of the claimants’ monetary recovery in this case is restitution. Restitution is appropriate when “[a] person ... has been unjustly enriched at the expense of another.” Restatement of Restitution § 1 (1937); see also Atlantic Coast Line R.R. v. Florida,
The key to determining the appropriate amount of recovery in cases involving restitution is the culpability of the defendant. Restatement of Restitution §§ 150-155, 202-204; Restatement (Third) of Restitution and Unjust Enrichment § 49(3) (Tentative Draft No. 5, 2007). The draft Restatement (Third) of Restitution and Unjust Enrichment provides that “Pliability in restitution is measured differently in cases involving innocent recipients, conscious and unconscious wrongdoers, and nonwrongdoers who nevertheless bear responsibility for their own unjust enrichment.” Restatement (Third) of Restitution and Unjust Enrichment § 49(3) (Tentative Draft No. 5, 2007) (internal citations omitted). The draft Restatement of Restitu
The government’s actions in this instance require that it be classified as a wrongdoer that bears responsibility for its own unjust enrichment. The government’s liability to the claimants arises from the fact that its agents and employees orally represented to the former landowners that they would have the first opportunity to repurchase their property. During the acquisition of the land needed to construct Camp Breckinridge the government became “concerned [that] ... high pressure methods had been used to persuade some owners to sell.” Land Grantors I,
Because a restitutionary remedy in the circumstances focuses on the benefit received by the defendant, it is necessary to value the benefit the government has received. Glendale Federal Bank,
The claimants are entitled to receive a share of the government’s profits from its disposition of the mineral rights and land at issue in this case. The government’s conduct prevents reliance on an alternative measure of recovery, namely the price at which the government acquired the former landowners’ properties, which would not fully compensate the claimants for their losses. The claimants are entitled to receive a portion of the government’s receipts because the government’s inattentiveness to monitoring the activities of its employees and agents, despite knowledge of potential overreaching, adversely affected the acquisition process. See Restatement (Third) of Restitution and Unjust Enrichment § 52(2) (Tentative Draft No. 5, 2007).
The government acquired 29.07% of Camp Breckinridge through judicial condemnation culminating in jury proceedings, and the land that was acquired using that process accounts ed for $10,862,474.04 of the hearing officer’s restitutionary award. See Pis.’ Ex.App. in Response to the Court’s Dee. 15, 2005 Order and Comprehensively Summarizing Mineral Sale Proceeds, Ex. A-3 (listing the amount of revenue attributable to each parcel of land).
As a result, it is unnecessary in this case to rely on a “fluid recovery” or any mode of restitution that bears earmarks of such a recovery. Evidence in the record enables computation of an award that can be allocated among the eligible claimants on an individual basis in full compliance with the requirement in the congressional reference that Congress be informed “of the amount, if any, legally or equitably due from the United States to the claimants individually.” S. Res. 98, 103d Cong. (1993).
The claimants contend that they are entitled to receive interest on any monetary award that they may receive in this case. Claimants’ Opening Br. at 5. The claimants assert that the failure of any monetary award to incorporate an interest component would undermine the purpose of restitution because the government thus would be able to profit from its wrongdoing. Id. at 5-7. The claimants additionally maintain that the applicable amount of interest owed to them should be calculated using a compound interest rate because they aver that any award to them which does not calculate interest using a compound rate “understated the benefit to the [gjovemment.” Id. at 10. In support of their argument that they are entitled to compound interest, the claimants rely on the fact that compound interest is used in other settings to calculate the amount of a monetary award. Id. at 11. Utilizing the compound interest rate proposed by the claimants would result in the government owing the former landowners and their heirs more than $440 million in interest. Id. at 10.
It is well-established that to recover interest against the United States the claimants must invoke a specific waiver of sovereign immunity applicable to interest that is in addition to the waiver that is needed to sue the United States in the first instance. See, e.g., 28 U.S.C. § 2516(a) (providing that “[[Interest on a claim against the United States
In the circumstances of this case, the principles of restitution conflict with the rules governing the liability of the United States for interest. Unfortunately for the claimants, the sovereign immunity of the United States prevails in such a conflict. Thus, for the claimants to receive interest on any potential award against the United States they need to demonstrate that Congress has waived the United States’ sovereign immunity from paying interest on monetary judgments, and they are not able to make such a showing.
In their briefs, the claimants rely heavily on the fact that interest is awardable against the United States in takings cases under the Fifth Amendment. See Claimants’ Opening Br. at 11-13. The claimants’ reliance on the award of interest in takings cases is misplaced because the claimants’ right to receive a monetary award arises from their equitable claim based upon misrepresentation by governmental agents and employees and not on a taking under the Fifth Amendment. The claimants also point to the Ninth Circuit’s decision in United States v. $277,000 U.S. Currency,
In sum, Congress should appropriate $22,970,028.84 to compensate the claimants for their claims stemming from the repurchase representations made by government employees and agents in acquiring the property necessary to construct Camp Breckinridge. The monetary awards to the individual claimants should be distributed in proportion to the revenues attributable to each tract of land that was acquired by the government outside the judicial condemnation process, as set out in Pis.’ Ex.App. in Response to the Court’s Dec. 15, 2005 Order and Comprehensively Summarizing Mineral Sale Proceeds, Ex. A-3. The claimants are not entitled to receive any interest because they are unable to demonstrate that the United States has waived its sovereign immunity in that regard.
CONCLUSION
The claimants have stated a viable equitable claim that entitles them to relief from the United States. That claim rests upon the representations made by government agents and employees that the former landowners would have the first right to reacquire their land. The evidence adduced in the case strongly supports the hearing officer’s finding that government agents and employees in fact made oral representations to former landowners that they would be given the first opportunity to repurchase their property. In addition, the former landowners assiduously pursued their claims through petitions to executive departmental officials, litigation, and petitions to Congress, and there is no valid basis to apply the equitable defense of laches to bar their claim, contrary to the majority’s ruling. For these reasons, I dissent from the majority’s proposed disposition of this case and respectfully recommend that Congress appropriate $22,970,028.84 to compensate the former landowners for their claim against the United States. This is truly a case in which “the government [has] acquire[d] benefits through the overreaching of its agents,” J.L. Simmons Co.,
. For several years, this has been the only remaining congressional reference case pending on the court’s docket. The pendency of such cases provides the rationale for the court’s posture as an Article I court that in all other respects hears cases falling within the case-and-controversy requirement of Article III of the Constitution. As this sole remaining case indicates, congressional references to this court have atrophied to the point where, like the Cheshire cat, they have virtually disappeared for all practical purposes. Cf. Lewis Carroll, Alice’s Adventures in Wonderland, 79 (Sterling Publishing Co.2005) (1865).
. Citations to the transcript of the review panel are to "Tr_" Claimants’ exhibits are denoted as "CX,” defendant’s exhibits are denoted as "DX,” and joint exhibits are denoted as “JX.”
. On February 14, 1942, a petition filed under the War Powers Act of 1917 condemned 10,-427.70 acres in Union County, Kentucky. Land Grantors I,
.The government was able to negotiate agreements with the oil and gas companies who held leases for potential subsurface mineral reserves. Land Grantors I,
. Documentary evidence suggests that the government may have been aware of the potential oil and gas reserves under the condemned properties as early as 1943. See Land Grantors VI,
. The Tennessee Valley Authority purchased the rights to coal deposits on 30,540 acres for $7,410,000 and later leased the rights to mine those reserves for $400 million. Land Grantors I,
. The Surplus Property Act of 1944, 58 Stat 765 (Oct. 3, 1944), was enacted to govern the distribution of the federal government’s surplus property, during and after World War II. 58 Stat. 765, 765. Section 23 of the Act governed the disposition of surplus real property. 58 Stat. 765, 777. The Surplus Property Act provided that when disposing of surplus real property, agencies of the federal government would have the first opportunity to acquire the land. Section 12(a), 58 Stat. 765, 770. If federal agencies did not desire to purchase the real property, the opportunity to acquire the property passed to State and local governments and their instrumentalities. Section 23(b), 58 Stat. 765, 777. If the first two priorities to purchase were not exercised, the government had to provide notice to the former owner of the property that the federal government was going to sell the property and that such a former owner was "entitled to purchase such property, in substantially the identical tract as when acquired from such person, at private sale at any time during the period of ninety days following such notice.” Section 23(d)(1)(A), 58 Stat. 765, 777-78. The Surplus Property Act of 1944 contained a sunset provision which provided that the statute would cease to be effective three years after the end of World War II. Section 38, 58 Stat. 765, 784. The relevant portions of the Surplus Property Act of 1944 were repealed effective July 1, 1949, with priorities and preferences for surplus real estate continued until December 31, 1949. See 63 Stat. 399 (June 30, 1949), renumbered, 64 Stat. 583 (Sept. 5, 1950).
. The hearing officer concluded that the Breckin-ridge Land Committee was formed in 1968. Land Grantors I,
Notwithstanding the dispute over the date of the Breckinridge Land Committee was formed, both sides acknowledge that Ms. Ruby Higginson Au and other former landowners had begun taking formal actions no later than 1965, seeking to enforce the government’s promise that they would have priority in repurchasing their land. See, e.g., LX 47 (Letter from Congressman William H. Nateher to Alice Reburn (Apr. 30, 1965)) at DOJ 1534; Tr. 40:21-25.
. The Senate directed the Chief Judge to "proceed ... in accordance with the provisions of sections 1492 and 2509 of title 28, United States Code, and report back to the Senate, at the earliest practicable date, giving such findings of fact and conclusions that are sufficient to inform Congress of the amount, if any, legally or equitably due from the United States to the claimants individually.” S. Res. 98, 103d Cong. (1993).
. For a complete overview of the attenuated procedural history of this case, see the hearing officer’s prior opinions in Land Grantors I,
. The Tucker Act provides this court with "jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a).
. 28 U.S.C. § 2501 provides in relevant part that "[ejvery claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within
. Even if the relevant period to measures laches is from the end of World War II, as suggested at one point during oral argument, Tr. 42:15-18, the hearing officer determined "that numerous requests/petitions were made by former landowners to repurchase their land after World War II ended.” Land Grantors I,
. The relevant provision of the Federal Tort Claims Act states that it “shall not apply to ... (h) [a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights” (emphasis added). 28 U.S.C. § 2680(h).
. It should also be noted that Mr. Higginson asserted "that [the former landowners] were denied the right to prove the value of mineral rights at the time of the condemnation proceedings, and specifically claims that the government’s acquirement of those rights constituted a taking without payment.” Higginson,
. As the Supreme Court observed in Albert Hanson Lumber, "[t]he owner is protected by the rule that title does not pass until compensation has been ascertained and paid, nor a right to the possession until reasonable, certain and adequate provision is made for obtaining just compensation.”
. Amidst the extensive evidence of a repurchase promise, there is support for the proposition that the government authorized their employees and agents to make such representations. Land Grantors I,
The only evidence that the government authorized its employees and agents to promise the former landowners the first option to repurchase their property comes from Mr. Towles' affidavit. Mr. Towles’ affidavit thus stands in contrast to the great weight of the evidence which suggests that the repurchase representations were not authorized by the government. Furthermore, neither of the parties have challenged the hearing officer’s conclusion that the repurchase promises were not authorized by the government. Therefore, the hearing officer’s conclusion that the repurchase promise was unauthorized is accepted by the review panel.
. The misrepresentations by government agents and employees concerning the ability of the former landowners to repurchase their properties give rise to an equitable claim against the government. "A contract with the United States ... requires that the Government representative who entered or ratified the agreement had actual authority to bind the United States.” Trauma Serv. Group v. United States,
To possess a viable equitable claim in a congressional reference case, the claimants must demonstrate “that 'the government committed a negligent or wrongful act' and that 'this act caused damage to the claimant.’ ” J.L. Simmons Co. v. United States, 60 Fed Cl. 388, 394 (2004) (quoting California Canners & Growers Ass'n v. United States,
The unauthorized representation by government employees and purchase agents that the former landowners would have the first option to repurchase their land injured the former landowners by depriving them of a reasonable opportunity to reacquire their land from the government. See Land Grantors I,
. The Hoffman deposition was generally admissible under Fed.R.Evid. 804(a)(4) which provides an exception to the hearsay rule where the de-clarant "is unable to present or to testify at the hearing because of death or then existing physical or mental illness or infirmity”. Fed.R.Evid. 804(a)(4). Mr. Hoffman was "almost 88" when he testified by deposition on July 21, 2004. Hoffman Dep. at 3:15. Mr. Hoffman was cross-examined by counsel for the government. His deposition was also videotaped.
. The majority contends that "there is no evidence that the authenticity of the affidavits was, in fact, established” and thus that Fed.R.Evid. 803(16) cannot be invoked to support admissibility. See majority op., supra, at 51 n. 4. That contention is far off the mark. There is not the slightest hint in the record that the affidavits were other than exactly what they purported to be. They were generated as a result of a cooperative effort between the Breckinridge Land Committee and the Kentucky River Coalition, a nonprofit environmental organization, to preserve testimony of the affiants. See supra, at 54 & n. 8. The circumstances in which the affidavits were given thus has a detailed, unrefuted basis in the record.
. Federal Rule of Evidence 102 provides that judges shall interpret and apply the rules of evidence "to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined." Fed.R.Evid. 102.
. The claimants assert that the affidavits are also admissible because they address "reputation as to events of general history important to the community or State or nation in which located.” Fed.R.Evid. 803(20). The affidavits cannot be admitted under this hearsay exception because they are not reputation evidence, but rather are assertive statements of various individuals. 4 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 803.02[21] at 803-78 (9th ed. 2006) ("[I]f the statement is a personal assertion of a single declarant, it will not be admitted under rule 803(20).”).
. RCFC 1 provides that the rules of this court "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.” RCFC 1.
. For a complete list of all the affidavits and the statements contained in the affidavits that support the finding of a repurchase promise, see Land Grantors I,
. For a complete summary of the deposition testimony that supports the existence of a repurchase promise, see Land Grantors I,
. The leading treatise on class actions notes, however, that “even in circuits that have ruled that cypres or fluid class recovery distributions are not valid in contested adjudications, these distributions have obtained a stamp of approval as part of a class settlement.” 4 Newberg on Class Actions § 11.20 (4th ed.2002).
. In this same vein, the claimants’ contention that the hearing officer erred by not including revenues for tracts 7A and 7B for a 21-year period is misplaced because the government acquired those two tracts entirely by judicial condemnation. See CX 81 (Summary of Cases Tried to Jury).
. As the Federal Circuit has explained, "[n]ominal dollars retain their number over time,” whereas "real dollars retain their value" by accounting for the effects of inflation. Sandstrom,
. The Ninth Circuit's adoption of an asset-forfeiture exception to sovereign immunity has been rejected by other circuit courts that have considered its rationale because "[s]overeign immunity does not depend upon whether the government
. If Congress were to be inclined to award the claimants interest on any recovery it might decide to award, the appropriate rate to calculate the amount of interest owed would be 7.5%. CX 1 (Decl. of Dr. Charles Haywood (July 21, 2004)) at 3. The 43-year delay in receiving compensation coupled with 7.5% simple interest means the claimants would be entitled to receive $74,078,342.04 in simple interest.