United States of America v. 1.647 Acres (0.826 +/- Acres - E Street Corridor and 0.821 +/- Acres - F Street Corridor) of Land et al

Filing 59

ORDER granting in part and denying in part 33 Motion to Strike ; denying without Prejudice 33 Motion for Judgment on the Pleadings. Signed by Judge M. James Lorenz on 3/22/2017. (sjt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Plaintiff,

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v.

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1.647 ACRES (0.826 +/- ACRES – E
STREET CORRIDOR AND 0.821+/ACRES – F STREET CORRIDOR) OF
LAND, MORE OR LESS, LOCATED IN
SAN DIEGO COUNTY, STATE OF
CALIFORNIA; SAN DIEGO UNIFIED
PORT DISTRICT; STATE OF
CALIFORNIA; AND UNKNOWN
OWNERS,

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Case No.: 3:15-cv-01859-L-DHB
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
MOTION TO STRIKE
INSUFFICIENT DEFENSES, AND
DENYING MOTION FOR
JUDGMENT ON THE PLEADINGS

Defendants.

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Pending before the Court in this condemnation action is the Government's motion

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to strike defenses pursuant to Federal Rule of Civil Procedure 12(f), or in the alternative

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for judgment on the pleadings under Rule 12(c). The motion is fully briefed and decided

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on the briefs without oral argument. See Civ. Loc. R. 7.1.d.1. For the reasons which

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follow, the Government's motion for judgment on the pleadings is DENIED. Its motion

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to strike is GRANTED in part and DENIED in part.

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3:15-cv-01859-L-DHB

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I.

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The Government filed this eminent domain action on behalf of the United States

BACKGROUND

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Navy as a part of the Navy Broadway Complex redevelopment project in order to acquire

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a fee interest in one-block segments of E and F streets in San Diego, California. (Compl.

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at 2, ¶ 1, 3; Decl. of Taking, Schedule B). The action is based on 10 U.S.C.

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§ 2663(c)(1), which provides in relevant part,

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The Secretary of a military department may acquire any interest in land that-[¶] (A) the Secretary determines is needed in the interest of national
defense; and [¶] (B) does not cost more than $750,000, exclusive of
administrative costs and the amounts of any deficiency judgments.

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The street segments the Navy wants to condemn will be used to

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ensure the security of Naval personnel and property located on abutting
lands of the United States; to provide public and Naval access, including but
not limited to subterranean, surface, and aerial vehicular, pedestrian, and
utility access, to abutting lands of the United States; for use as public streets;
and for such other uses as may be authorized by Congress or by Executive
Order.

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(Decl. of Taking, Schedule B).
The land in question, along with the Navy’s adjoining property, was the subject of

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a similar eminent domain dispute between the same parties in 1990. In United States v.

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15.320 Acres of Land, More or Less, in San Diego County, No. 90-1562 (S.D. Cal. 1990)

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("15.320 Acres"), the Government filed a complaint-only condemnation action. In July

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1991, Judge William B. Enright granted the Government's first motion for partial

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summary judgment to quiet title to the land abutting the street segments. (Gov't Ex. 1 at

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14:9-18).1 In September 1991, Judge Enright denied the second motion for partial

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The Court takes judicial notice of the exhibits filed in support of and in opposition
to the instant motion, all of which either were filed in this District in a related action, or
are recorded real estate documents. Courts may consider material properly subject to
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summary judgement and rejected the contention that the Government already owned the

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street segments, and could condemn a fee interest in the street segments solely to

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incorporate the land into the Navy Broadway Complex. (Gov't Ex. 2 at 7:5-8, 11:24-

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12:4). The Court noted, “[T]he United States dictated the framework within which its

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motion was viewed by asserting that it had the authority to take the property at issue

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regardless of whether it was reopened as a public street or integrated in the complex

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itself.” (Id. at 11:5-9).

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Following the September 1991 ruling, the Government amended its complaint to

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take a perpetual assignable easement of the street segments, and updated its proposed

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public uses so that the street segments would “provide public access, including but not

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limited to subterranean and surface vehicular, pedestrian and utility access, to abutting

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lands of the United States.” (Gov't Ex. 4 at 2:16-20). The Government's third motion for

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partial summary judgment was granted in December 1991, because the Government

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committed to keeping the streets open to the public. (Gov't Ex. 3 at 6).

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Subsequently, the parties entered into a Stipulation for Judgment in which the

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Government waived its claim to the fee interest in the street segments, recognized fee

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ownership in the San Diego Unified Port District, and in which, upon payment of $1.00

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to the Port District, an easement covering the street segments would be condemned to the

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Government for use in perpetuity for public street purposes. (Gov't Ex. 5 at 2:4-27).

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Judge Enright incorporated the stipulation into the final judgement issued in December

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1992. (Gov't Ex. 6 at 6:9-28).

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judicial notice without converting the motion into one for summary judgment. See
Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). "[A] court may take judicial notice
of matters of public record." Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d
1048, 1052 (9th Cir. 2007); see also Fed. R. Evid. 201(b)(2).
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3:15-cv-01859-L-DHB

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In the pending action, Defendants object that the taking is: (1) not statutorily

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authorized (Cal. Answer at 3, ¶5; Port Answer at 2, Third Separate Defense); (2) not for a

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valid public use and that the United States is precluded from relitigating that it is (Cal.

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Answer at 2, ¶¶ 1, 2; Port Answer at 2, First and Second Separate Defenses); and (3)

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barred by waiver and res judicata principles which Defendants assert are supported by

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judicial estoppel (Cal. Answer at 2, ¶ 1; Port Answer at 3, Fourth Separate Defense). The

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Government moves to strike these defenses pursuant to Federal Rule of Civil Procedure

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12(f), or in the alternative, seeks a judgment on the pleadings pursuant to Rule 12(c).

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Defendants’ objections regarding valuation (Cal. Answer at 2, ¶¶ 3, 4; Port Answer at 3,

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Fifth Separate Defense), are not challenged in the pending motion.

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II.

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The Government filed a motion to strike under Rule 12(c), seeking judgment on

DISCUSSION

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the pleadings as to certain defenses asserted in Defendants' answers, or in the alternative

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to strike certain defenses.

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Judgment on the pleadings is proper when there are no issues of material
fact, and the moving party is entitled to judgment as a matter of law. All
allegations of fact by the party opposing the motion are accepted as true, and
are construed in the light most favorable to that party. As a result, a plaintiff
is not entitled to judgment on the pleadings when the answer raises issues of
fact that, if proved, would defeat recovery.

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Gen. Conf. Corp. of Seventh-Day Adventists v. Seventh Day Adventist Congregational

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Church, 887 F.2d 228, 230 (9th Cir. 1989) (citations omitted).

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The Government at most requests a partial judgment as to some, but not all

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defenses. Even if the Government prevailed on all defenses, it would still have to prove

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its case. Accordingly, by completely prevailing on its motion, the Government would at

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best obtain a partial judgment. Partial judgments are disfavored. See Fed. R. Civ. Proc.

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54(b); Reiter v. Cooper, 507 U.S. 258, 265 (1993) (In light of the "historic federal policy

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against piecemeal appeals," partial judgments are disfavored.); Wood v. GCC Bend, LLC,

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422 F.3d 873, 878 (9th Cir. 2005). To the extent the Government moves for a judgment

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on the pleadings, its motion is DENIED WITHOUT PREJUDICE.

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In the alternative, the Government moves to strike under Rule 12(f), which gives

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the court authority to “strike from a pleading an insufficient defense.” “The function of a

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12(f) motion to strike is to avoid the expenditure of time and money that must arise from

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litigating spurious issues by dispensing with those issues prior to trial.” Fantasy, Inc. v.

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Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517

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(1994) (internal quotation marks, brackets, and citation omitted). While Rule 12(f)

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motions are generally disfavored when filed as a dilatory tactic, "they serve to expedite,

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not delay" when filed to “remove unnecessary clutter from the case." Heller Fin., Inc. v.

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Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989). The relevant issue on a Rule

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12(f) motion to strike an insufficient defense is whether the defense is insufficient as a

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matter of law. See id.

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A.

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Defendants challenge Plaintiff’s statutory authority for the taking on three grounds:

Statutory Authority

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(1) that the Navy improperly relies on 10 U.S.C. § 2663(c) as authority to acquire the

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land at issue; (2) that the Navy did not deposit estimated just compensation in good faith;

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and (3) that the Navy failed to follow procedures set forth in the Uniform Relocation

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Assistance and Real Property Acquisition Policies Act of 1970 (the "Acquisition Policies

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Act"). None of Defendants' arguments is availing because (1) the plain language of 10

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U.S.C. § 2663(c) authorizes the Navy to acquire the land at issue; (2) the Government's

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estimated just compensation is not reviewable by courts for good faith; and (3) the

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guidance set forth in the Acquisition Policies Act does not confer a private right of action.

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Defendants’ statutory authorization defense is therefore insufficient as a matter of law.

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The Government's motion to strike this defense is therefore GRANTED.

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Title 10 U.S.C. § 2663(c) authorizes the Secretary of a military department to
acquire any interest in land that “does not cost more than $750,000, exclusive of
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administrative costs and the amounts of any deficiency judgments,” when the Secretary

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determines doing so is in the interest of national defense. (Emphasis added). To make

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the acquisition, the department may file a declaration of taking containing, inter alia, “a

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statement of the amount of money estimated by the acquiring authority to be just

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compensation for the land taken.” 40 U.S.C. § 3114(a)(5). If the compensation finally

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awarded in the proceedings exceeds the estimated amount, the court enters judgment

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against the Government for the amount of the deficiency. Id. The judgment includes

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interest on the difference between the amount finally awarded and the estimated

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compensation already deposited. Id. §3114(c)(1).

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Relying on statutory interpretation principles, the State of California first argues

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that the Government lacks authority under § 2663(c) because, if authority exists, it could

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take advantage of the $750,000 cost limitation by making a bad faith estimate of just

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compensation, and paying any additional compensation owed in the form of a deficiency

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judgment. This argument is unavailing because it is contrary to the plain meaning of the

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statute.

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If the language of a statute is clear, courts look no further than that language to

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determine the statute’s meaning. Seattle-First Nat. Bank v. Conaway, 98 F.3d 1195,

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1197 (9th Cir. 1996). Section 2663(c) unambiguously provides that the $750,000

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limitation on low-cost acquisitions does not include the amount of deficiency judgements.

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Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., cited by Defendants, is

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distinguishable because the meaning of the relevant statute was unclear. 467 U.S. 837

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(1984) (analyzing whether EPA's regulation of devices within the same “bubble” was a

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reasonable construction of the statutory term “stationary source”).

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Here, §2663(c) expressly provides that if the judgement ultimately awarded is

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greater than the estimated value, the owner shall recover the excess with interest. United

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States v. Miller, 317 U.S. 369, 381 (1943); see also United States v. 32.42 Acres of Land,

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683 F.3d 1030, 1034 (9th Cir. 2012) (finding § 2663(c) duly authorized the Government

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in taking where the estimated compensation was below the low-cost acquisition limit

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despite a final judgment of $2,910,000) .2 The purpose of the estimated deposit is to

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allow the Government to take immediate possession of the property, and relieve it of the

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burden of interest accruing on the deposited sum. Miller, 317 U.S. at 381.

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Defendants also contend that the Navy’s authority is questionable because

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Congress did not expressly authorize the condemnation of property in connection with

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the Navy Broadway Complex redevelopment project. The Court disagrees. Where the

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Congress gives general authority to acquire real property, no additional authority to

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acquire a specific piece of property or property for a specific purpose is necessary. See

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United States v. Kennedy, 278 F.2d 121 (9th Cir. 1960). Defendants' challenge to the

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Government's authority under §2663(c) is therefore rejected.

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Next, the Port questions whether the Government's estimated deposit is a valid

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exercise of good faith, and argues the Court should determine whether the amount is

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reasonable. A district court has no authority to evaluate the good faith of the

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Government's deposit. United States v. Cobb, 328 F.2d 115 (1964).

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Although the Port concedes that the reasonableness of a deposit is not normally

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subject to judicial review, it relies on Catlin v. United States, 324 U.S. 229 (1946), to

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argue that an exception exists to allow a landowner to challenge the validity of a taking

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for departure from statutory limitations. The petitioners in Catlin attempted an

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interlocutory appeal to review the denial of their motions challenging—as here—

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statutory authority for the taking. Id. at 232. The Court held that the ordinary rule, which

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Defendants attempt to distinguish these precedents by pointing to an appraised,
non-nominal estimate made by the Government. This appears to be a distinction without
a difference, because the Ninth Circuit focuses on following the statutory procedure. See
32.42 Acres of Land, 683 F.3d at 1034 (“The United States has followed the procedure
outlined in 40 U.S.C. § 3114, and its action was duly authorized by 10 U.S.C
[§ 2663(c)].”).
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only allows appeals upon an order or judgment disposing of the condemnation action,

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also applied to condemnation proceedings under the War Purposes Act of 1917. Id. at

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233-34. Although Defendants’ contention that Catlin allows landowners to challenge a

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taking for departure from statutory limits is correct, the challenge is possible only on

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appellate review. See id. at 240-41.

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Finally, Defendants contend that the Acquisition Policies Act, 42 U.S.C.

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§ 4651(4), requires that the Government's estimated deposit be no less than an

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approved appraisal value of the property. The Act expressly provides that § 4651

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"shall not affect the validity of any property acquisitions ... by condemnation."

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42 U.S.C. § 4602(a). Defendants’ argument is therefore rejected.
Alternatively, the argument is rejected because the Acquisition Policies Act

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at best provides guidance to the Government, and does not provide a basis for a

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private right of action. In pertinent part, the Act provides, “In order to encourage

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the acquisition of real property by agreement with owners, to avoid litigation . . .

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Federal agencies shall, to the greatest extent practicable, be guided by the

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following polices.” 42 U.S.C. § 4651 (emphasis added). Although this issue has

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not yet been decided by the Ninth Circuit, other Circuits have found that “the

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guidelines presented in §4651 are only that.” United States v. 131.68 Acres of

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Land, 695 F.2d 872, 876 (5th Cir. 1983). In Paramount Farms, Inc. v. Morton, the

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Seventh Circuit reviewed allegations that the National Park Service failed to

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appraise the relevant property as suggested by the Act. 527 F.2d 1301, 1303 (7th

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Cir. 1975). Finding that the statute precluded judicial review, the court held that

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condemnation actions may not be affected by alleged noncompliance with the Act.

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Id. at 1302, 1305 (internal citation omitted). “In short, the Policy Act’s language,

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legislative history, judicial decisions and policy consideration all compel the

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conclusion that Congress never intended to permit judicial review of agency action

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taken or omitted pursuant to guidelines in section 4651.” Id. at 1306. See also

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Consumers Power Co. v. Costle, 468 F. Supp. 375, 377 (E.D. Mich. 1979) aff'd,

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615 F.2d 1147 (6th Cir. 1980) (finding the Act is intended to set forth guidelines

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rather than to create rights giving rise to a legal cause of action); Nall Motors, Inc.

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v. Iowa City, Iowa, 410 F. Supp. 111 (S.D. Iowa 1975) aff'd 533 F.2d 381 (8th Cir.

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1976) (finding landowners entitled to no relief for alleged violations of the Act by

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virtue of 42 U.S.C. § 4602).

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For the foregoing reasons, the plain language of §2663(c) authorizes

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acquisition of land in a manner consistent with the Government’s actions in this

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case. The Court is precluded from reviewing the Government's estimated just

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compensation for either lack of good faith or for the absence of an appraisal in

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accordance with the Acquisition Policy Act. Defendants’ lack of statutory

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authorization defense is therefore insufficient as a matter of law. The

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Government's motion to strike this defense is GRANTED.

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B.

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Defendants also argue that the taking is not for a valid public purpose, and

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that issue preclusion bars the Government from attempting to argue that it is. On

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the other hand, the Government contends that issue preclusion bars Defendants

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from relitigating whether the stated public use is valid. Because the parties have

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already fully litigated the public purpose issue in 15.320 Acres, and the prior court

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found they were valid public uses, the Government's motion to strike Defendants’

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public use and issue preclusion defenses is GRANTED.

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Public Purpose and Issue Preclusion

Issue preclusion bars successive litigation of an issue of fact or law actually

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litigated and resolved in a valid court determination essential to the prior

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judgement. Taylor v. Sturgell, 553 U.S. 880, 892 n.5 (2008). Issue preclusion

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applies when

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(1) the issue necessarily decided at the previous proceeding is identical
to the one which is sought to be relitigated; (2) the first proceeding
ended with a final judgment on the merits; and (3) the party against
whom issue preclusion is asserted was a party or in privity with a party
at the first proceeding.

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Paulo v. Holder, 669 F.3d 911, 917 (9th Cir. 2011) (internal quotation marks,

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citation and brackets omitted).

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In prior litigation, Judge Enright found in December 1991 that the public

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access proposed by the Government constituted public purpose and therefore "the

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proper subject of an exercise of eminent domain." (Gov't Ex. 3 at 6:6-10). Based

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on this finding, the court granted partial summary judgment in the Government's

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"favor as to its right to take" the property at issue. (Id. at 6:27-7:1.) The order was

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explicitly based on the Government's commitment to public access. (Id. at 7:1- 4.)

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Subsequently, the parties entered into a Stipulation for Judgment, which relied on

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this ruling. (Exhibit 5 at 2:4-5). Judge Enright incorporated the terms of the

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stipulation into the Final Judgment in Condemnation, which condemned the

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property for “use in perpetuity for public street purposes.” (Exhibit 6 at 2:28-3:1).

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Defendants now wish again to challenge the same public use of the same property.

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(See Decl. of Taking, Schedule A (description of public uses)). They argue that because

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the Government is seeking to condemn a fee interest instead of an easement, as was the

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case in prior litigation, the issue is different and therefore open to litigating again. This is

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a distinction without a difference. “Once the question of the public purpose has been

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decided, the amount and character of land to be taken” is not the proper subject of

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judicial review. United States v. 80.5 Acres of Land, 448 F.2d 980, 983 (9th Cir. 1971).

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Furthermore, the first proceeding ended with a judgment on the merits. The public

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purpose issue was decided in an interlocutory ruling, but the decision was referenced as

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the basis for settlement, which was then incorporated into the final judgment.

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Although interlocutory opinions are generally subject to revision by the issuing court,

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where the parties were heard, the court supported its decision with reasoned opinion, and

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the decision was subject to appeal, the issue may be precluded from future relitigation.

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Luben Industries, Inc. v. United States, 707 F.2d 1037, 1040 (9th Cir. 1983). Issue

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preclusion applies to interlocutory rulings, if the prior adjudication was sufficiently firm

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to be given a conclusive effect, id., and is consistent with the subsequent judgment

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entered in the case. Hartley v. Mentor Corp., 869 F.2d 1469, 1472 (Fed Cir. 1989);

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Employees Own Fed. Credit Union v. City Of Defiance, 752 F.2d 243, 245 (6th

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Cir.1985); Swift Chem. Co. v. Usamex Fertilizers, Inc., 646 F.2d 1121 (5th Cir.1981).

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Unlike in Luben, where the court declined to give preclusive effect to an

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unappealable interlocutory memorandum, Defendants could have proceeded to judgment

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instead of settling, and they could have challenged Judge Enright’s decision regarding

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public purpose. See Catlin, 324 U.S. at 233-34. The decision was rendered after the

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parties were fully heard, it was a firm decision, sufficiently supported to give conclusive

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effect, and consistent with the ultimate final judgment.

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The settlement does not bar issue preclusion. A party wishing to assure that it will

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not be precluded from relitigating after settlement an issue that had been previously

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decided, must have the earlier order vacated prior to final judgment. Ringsby Truck

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Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720, 721-22 (9th Cir. 1982).

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Defendants did not request that the summary judgment ruling be vacated, but agreed to

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expressly incorporate it in the Stipulation for Judgment. Defendants' argument that Judge

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Enright's public purpose determination was open to relitigation is rejected.

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Alternatively, Defendants contend that in prior litigation Judge Enright had found

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that the taking of a fee interest in the same property was not for a valid public purpose,

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and that this ruling should be given issue preclusive effect to defeat the pending action.

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Defendants rest their argument on a faulty premise. In his September 1991 order, Judge

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Enright made a finding that the Government's lack of commitment to opening the

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property to public access precluded a finding of public use. (Gov't Ex. 2 at 8-9; see also

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id. at 11:5-9; Ex. 3 at 3). When the Government later committed to opening the property

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to public access, Judge Enright ruled in his December 1991 order, it was "the proper

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subject of an exercise of eminent domain." (Gov't Ex. 3 at 6). This was consistent with

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his reasoning in September, where he stated that “use by the public would clearly fall

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within the outlines of traditional eminent domain case law.” (Ex. 2 at 8:24-9:3).

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In conclusion, the parties already had a full and fair opportunity to litigate the

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public purpose issue. Judge Enright found that the Government's proposed use is a public

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use for purposes of eminent domain. This finding was the basis for the parties' settlement

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and ultimately judgment. Accordingly, issue preclusion bars Defendants from relitigating

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the same issue. The Government's motion to strike the public use and issue preclusion

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defenses is GRANTED. The Court therefore need not address Defendants' arguments

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regarding pretext for the uses stated in the Declaration of Taking.

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C.

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The Port also alleges that the Government waived its claim for the fee interest

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when it signed the settlement agreement, thus barring it from condemning a fee interest in

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the same property by filing this action. The Government counters that an executive

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agency lacks the power to waive the sovereign right of eminent domain by contract. The

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power of eminent domain “cannot be surrendered, and, if attempted to be contracted

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away, it may be resumed at will." Georgia v. City of Chattanooga, 264 U.S. 472, 480

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(1924); see also Pennsylvania Hospital v. City of Philadelphia, 245 U.S. 20, 23 (finding

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the ability to contract away the power of eminent domain “would be a renunciation of

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power to legislate for the preservation of society”) (citation omitted). The Government's

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motion to strike the defense of waiver is therefore GRANTED.

Waiver

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D.

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Finally, Defendants contend that the pending action constitutes the same claim or

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Res Judicata

cause of action as the prior litigation in 15.320 Acres, and is therefore barred by res
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judicata. They argue that the two actions stem from the same transactional nucleus of

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facts, the instant case implicates potential infringement of rights or interests established

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in the prior litigation, and the two cases are based on essentially the same evidence.

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The Government counters that res judicata at most applies to bar certain issues

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arising in eminent domain cases because eminent domain is an essential sovereign

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authority which renders res judicata inapplicable to prevent “successive condemnations”

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of the same property. Although the Government raises compelling policy considerations

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regarding sovereign authority, the cases cited by the Government in support of its

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argument are unpersuasive. They relate to condemnations of different leasehold interests

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in the same parcel of land over time. The cases focus on the exclusion of prior just

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compensations amounts as evidence of just compensation for the same leasehold in a

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subsequent proceeding. See, e.g., United States v. Johnson, 420 F.2d 955, 956 (“the

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doctrine of res judicata is inapplicable in a situation involving successive condemnation

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proceedings, each taking the property for a term of years”). None of the cases implicates

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successive eminent domain proceedings involving a fee simple interest.

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Alternatively, the Government argues that the passage of twenty years since the

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prior action, the different methods of condemnation used, the different interests sought,

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and a property valuation create a sufficiently distinct set of facts to create a separate

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cause of action, and preclude the application of res judicata. Defendants counter that the

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Government should be judicially estopped from asserting change in circumstances

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because of an inconsistent position it took in California Coastal Commission v. United

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States Navy et al., 22 F. Supp. 3d 1081 (S.D. Cal. 2014), where it argued no significant

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changes to the same property for purposes of the Coastal Zone Management Act.

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“Judicial estoppel ... precludes a party from gaining an advantage by taking one

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position, and then seeking a second advantage by taking an incompatible position. It is an

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equitable doctrine intended to protect the integrity of the judicial process by preventing a

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litigant from playing fast and loose with the courts.” Helfand v. Gerson, 105 F.3d 530,

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534 (9th Cir. 1997) (internal quotation marks and citations omitted); see also New

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Hampshire v. Maine, 532 U.S. 742, 750-51 (2001).

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The Government's position in California Coastal Commission related to changes in

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circumstances that implicate “substantially different coastal effects” within the meaning

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of 15 C.F.R. § 930.46(a), rather than to the passage of time or property value, and it

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involved a different property interest than the fee interest sought in the instant case. See

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California Coastal Commission, 22 F. Supp. 3d at 1088, 1096. The position the

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Government took in California Coastal Commission is not incompatible with its position

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here. Furthermore, Defendants have not demonstrated the Government's intention to

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manipulate the judicial system. The Court therefore declines to apply judicial estoppel

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against the Government.

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Accordingly, the Government has not shown that res judicata is inapplicable in bar

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the pending action. Its motion to strike the res judicata defense is therefore DENIED

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WITHOUT PREJUDICE to renewing the argument. At the same time, the Government

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is not estopped from asserting a change in circumstances to counter res judicata in further

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proceedings in this case.

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III.

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For the foregoing reasons, the Government's motion for judgment on the pleadings

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pursuant to Federal Rule of Civil Procedure 12(c) is DENIED WITHOUT PREJUDICE.

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Its motion to strike under Rule 12(f) is GRANTED IN PART AND DENIED IN PART.

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The motion is granted as to the statutory authorization, public use, issue preclusion, and

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waiver defenses. It is denied as to the res judicata defense. Because the insufficient

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defenses fail as a matter of law, leave to amend is denied as futile.

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CONCLUSION

IT IS SO ORDERED.
Date: March 22, 2017

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