Marzulla Law, LLC is the nation's leading law firm for takings claims against the federal government. ML represents landowners, developers, water districts, Indian tribes, business, and corporate interests in litigation of property rights and contract claims. ML also represents clients in environmental enforcement actions, and litigation involving natural resources and permitting issues, in federal district courts and courts of appeal.

 

We hope that this Newsletter will serve as a resource for you.

 

 

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Nancie and Roger Marzulla      

Marzulla Law, LLC  

Tel.: 202.822.6760      

www.marzulla.com    

    

 

 

Federal Circuit Affirms Government's Breach of Contract to Build Road; Awards Damages, Costs and Attorneys' Fees  

 



The Federal Circuit has affirmed per curiam a Court of Federal Claims decision that the Government breached a contract under which the landowners agreed to contribute the land and the Government would build a road they both could use. Rejecting the Government's argument that the document was merely a right-of-entry and not a contract, the Federal Circuit's decision came a mere two weeks after oral argument and affirmed in all respects the trial court's award of damages, attorneys' fees and costs. The trial court's decision was written per curiam, without opinion.

The decision in International Industrial Park v. United States means that the landowners will recover the trial judge's award of $1.7 million in damages, along with attorneys' fees and costs. The amount of attorneys' fees and costs are to be determined on remand.

Per curiam rulings (per curiam is Latin for "by the court") are decisions rendered by the panel or court as a whole, in the name of the court, and affirm that a lower court's decision was correct. Per curiam decisions, which are typically made when a court considers a matter to be non-controversial, do not identify the specific judge who writes the court's opinion, and in many instances no opinion is written at all, as was the case in this affirmance.

According to Federal Rule of Appellate Procedure 36, the Federal Circuit issues affirmances without opinion in cases where, for instance, "a judgment or decision has been entered without an error of law."  In addition, because the affirmance was under Federal Circuit Rule 36, the Federal Circuit further taxed costs against the United States, thus entitling International Industrial Park ("IIP") to recover specific costs of the appeal.

The 2011 decision affirmed by the Federal Circuit in this ruling was rendered by the U.S. Court of Federal Claims in a lawsuit seeking damages against the United States for breaching its contract with the plaintiffs, landowners who own private industrial land located in East Otay Mesa, California along the U.S.-Mexico border. As we discussed in our November 2011 newsletter, IIP and the United States executed a contract in 2008, and provided that IIP transfer an easement to the Government for a road the Government was to construct on IIP's land. The road was to be an improved public road that both the Border Patrol agents and IIP could use on a permanent basis. The Border Patrol was particularly keen to have this road built because it needed to access IIP's land in order to complete a new portion of the border fence under a major federal border control initiative and to allow Border Patrol agents access to the Otay Truck Trail. But as soon as the contract was signed, a disagreement erupted over how the road was to be constructed and how much the Government was willing to spend in constructing it.

One year after the contract had been executed, during which time the Government utilized IIP's land to complete construction of the border fence project, the Government repudiated the agreement, informing IIP that it would not build the road after all.  IIP then filed suit in the Court of Federal Claims for a breach of the contract to construct the road, arguing that the Government had received the benefit of its side of the bargain without fulfilling its promise to build the road for IIP's benefit.

In its appeal, the Government made a number of technical arguments for why the contract was not enforceable, including its primary argument that all the parties executed was a right-of-entry that the Government could unilaterally decide not to use.

But during oral argument, the Federal Circuit panel of three judges hearing the appeal plainly had problems with the Government's arguments.  At the beginning of the oral argument, one of the judges quoted trial testimony unfavorable to the Government, and then inquired: "Do you have anything that counters that?"  Apparently not, since the Federal Circuit affirmed and remanded the case back to the trial court for proceedings in accordance with the per curiam decision.

The case is now back before the trial court for proceedings in accordance with the Federal Circuit's affirmance.

What People Are Saying About Marzulla Law:

 
"I have had a privilege of working with Roger and Nancie and their excellent staff for almost ten years. It is such a pleasure to work with true experts in the field of takings and government contracts. Their knowledge of the Court of Federal Claims and Federal Circuit was invaluable to my client."

Jennifer Spaletta
Spaletta Law PC

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Attorney Spotlight:

Jennifer Spaletta 
    














Jennifer Spaletta is the founding shareholder of Spaletta Law PC in Lodi, California, where she focuses on litigating commercial contract disputes, water and environmental law issues, and California Proposition 218 cases in state and federal courts.  

 

Receiving her JD from the University of California, and her M.S. in Agricultural and Resource Economics from University of California, Davis, Spaletta's expertise in agricultural and water industry matters has proven valuable in her role as general counsel to several public agencies including a number of local reclamation and irrigation districts, and to local businesses such as farming operations, industrial manufacturing companies, food processing companies, material supply companies, and non-profit corporations.

 

For over 15 years Spaletta has studied and worked in the California water industry on issues surrounding implementation of the Central Valley Project Improvement Act, regional groundwater recharge programs, water quality regulation and implementation of new irrigation technologies in the agricultural and urban markets.

 

Spaletta worked with Marzulla as co-plaintiff in Stockton East Water District and Central San Joaquin Water Conservation District v. U.S., with Spaletta representing Stockton East Water District.

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Meet Elizabeth Heffernan 

 

Elizabeth is our newest intern who is working with us during the Winter/Spring 2013 term. A third year English and Political Science student at Buena Vista University in Storm Lake, Iowa, Elizabeth comes to us via the Washington Center's prestigious Law and Criminal Justice internship program.

Among her many interesting accomplishments, Elizabeth worked as a volunteer with S.T.A.R.S, or Special Troopers Adaptive Riding School, an organization in Iowa that provides animal connection therapy for children with physical, cognitive, emotional, behavioral, or social challenges. As a volunteer, Elizabeth assisted children and teenagers in developing memory and motor skills. At college, she was a volunteer with A.W.O.L, or Alternative Week of Off-site Learning, which sent her to the Dominican Republic for one week during her freshman year Spring break where she worked at an orphanage teaching English to 3rd graders and 6th graders. During her sophomore year she traveled to Rome, Italy on a pilgrimage where she visited numerous religious sites in Italy to learn more about the history of the Catholic religion.

 

"I am very excited about being able to live in and explore Washington D.C.," says Elizabeth. "Even though it's only the first week of my internship, I have already learned a lot and met many wonderful people. I am looking forward to a great semester here at Marzulla and D.C."

 

At home, Elizabeth is the co-captain of the women's tennis team at Buena Vista University, and is also the captain of the mock trial team. An avid fiction writer, she has written a number of her own short stories and aspires one day to publish a fiction novel.

 

Before she writes her novel, however, we suspect that law school will keep her pretty busy.  Elizabeth hopes to attend law school after graduation.

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About Marzulla Law 

 

Marzulla Law, LLC is a Washington D.C.-based law firm. Nancie G. Marzulla and Roger J. Marzulla help property owners get paid just compensation when the Government takes their property through inverse condemnation.

 

ML lawyers practice in the federal courts, especially the U.S. Court of Federal Claims, the Federal Circuit Court of Appeals, and the U.S. District Court for District of Columbia, as well as other federal district courts, appellate courts, and the U.S. Supreme Court. ML also represents clients in administrative agencies, such as the District of Columbia Office of Administrative Hearings or the Interior Board of Indian Appeals.   

 

Chambers has recognized Marzulla Law as one of the top ten water rights litigation firms in the country. Nancie Marzulla and Roger Marzulla have been selected by their peers to be included on the list of Best Lawyers in America, and their firm has the highest AV-rating from Martindale-Hubble.  Nancie and Roger Marzulla have been recognized by Best Lawyers as a Top Tier law firm by U.S. News & World Report for environmental law, and Marzulla Law is a proud member of the International Network of Boutique Law Firms.