          In the United States Court of Federal Claims
                                         No. 19-688C

                                     (Filed: May 6, 2020)


 ********************************************** )
 SILVER STATE LAND LLC,                         )   Breach of land sale contract; Federal
                                                )   Land Policy and Management Act;
                        Plaintiff,              )   Bureau of Land Management;
                                                )   43 U.S.C. § 1713; 43 C.F.R. Subparts
            v.                                  )   2710 - 2711; invitation for bids; auction;
                                                )   land patent; incorporation by reference;
 THE UNITED STATES,                             )   RCFC 12(b)(6); issue preclusion;
                                                )   collateral estoppel; damages election.
                        Defendant.              )
                                                )
 ****************************************


Seth H. Locke, Perkins Coie, LLP, Washington, DC, for plaintiff.

Isaac B. Rosenberg, United States Department of Justice, Civil Division, Washington, DC,
for defendant. With him on the briefs were Joseph H. Hunt, Assistant Attorney General,
Civil Division, Robert E. Kirschman, Jr., Director, and Allison Kidd-Miller, Assistant
Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice, Washington, DC.

                                  OPINION AND ORDER

SOLOMSON, Judge.
       As frequently occurs in this Court, we once again are called upon to address an
alleged breach of a government contract “entered into and performed pursuant to a
complex statutory and regulatory scheme[,]” as well as the nature of the relationship
between that scheme and the contract at issue. Alder Terrace, Inc. v. United States, 161
F.3d 1372, 1373 (Fed. Cir. 1998). The complexity of this matter is compounded by prior
Administrative Procedure Act (“APA”) litigation between the Plaintiff, Silver State
Land, LLC (“Silver State”), and the government before the United States District Court
for the District of Columbia, as well as a subsequent appeal from the district court to the
United States Court of Appeals for the District of Columbia Circuit. 1

        Before this Court, the central issue is whether the government must pay damages
for its alleged breach of a contract to convey a tract of public land to Silver State. The
government, in its motion to dismiss Silver State’s first amended complaint
(“Complaint”) pursuant to Rule 12(b)(6) of the Rules of the Court of Federal Claims
(“RCFC”), maintains that Silver State’s breach claim is precluded as a matter of law. In
the government’s view, the Bureau of Land Management (“BLM” or the “Agency”) 2
properly declined to transfer the land in question pursuant to statutory provisions that,
according to the government, were incorporated into the parties’ contract. The
government further argues that Silver State’s contract claim is barred under the doctrine
of issue preclusion (also known as collateral estoppel) due to the parties’ prior APA
litigation, which centered on BLM’s alleged statutory and regulatory duty to transfer
the land at issue. The government also moves for dismissal on the grounds that Silver
State seeks damages of a type that it may not recover as a matter of law, even assuming
the government had breached the contract at issue.

       The government concedes that it entered into the land sale contract, as Silver
State alleges. Because the Court rejects the government’s interpretation of the contract
at issue and the application of issue preclusion to plaintiff’s claims here, as well as the
government’s damages argument – among other subsidiary and miscellaneous
arguments – the Court DENIES the government’s motion to dismiss Count I of the
Complaint. Because the Court finds that the parties had an express land sale contract,
however, the Court GRANTS the government’s motion to dismiss Count II of the
Complaint, which alleges breach of an implied-in-fact contract.

I.      Factual Background 3

       This case involves a land sale contract – formed pursuant to a process prescribed
by statute and regulation – that the Agency allegedly breached when it refused to


1Silver State Land, LLC v. Schneider, 145 F. Supp. 3d 113, 117 (D.D.C. 2015) [hereinafter Silver
State I] (citing Administrative Procedure Act, 5 U.S.C. § 706(1), (2)), aff’d, Silver State Land, LLC v.
Schneider, 843 F.3d 982 (D.C. Cir. 2016) [hereinafter Silver State II].
2The BLM is an executive agency within the United States Department of the Interior. See
43 U.S.C. § 1731; Bureau of Land Management, https://www.blm.gov/ (last visited Apr. 28,
2020).
3The facts in this Opinion do not constitute factual findings by the Court. Rather, this Court
assumes, as it must, that the factual allegations contained in Silver State’s Complaint are true for
the purposes of resolving the pending motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678
deliver title to Silver State via a land patent, a document formally transferring public
land to a purchaser. 4

       Silver State first filed a lawsuit in the United States District Court for the District
of Columbia challenging, pursuant to the APA, the Agency’s “decision not to issue the
patent for the Property.” Silver State I, 145 F. Supp. 3d at 125. After the district court
denied Silver State’s motion for summary judgement and entered judgment for the
Agency, Silver State appealed. The United States Court of Appeals for the District of
Columbia Circuit affirmed the district court’s decision. Silver State II, 843 F.3d at 993.
Silver State then filed its breach of contract claim in this Court.

      The following background section first provides an overview of the statutory
and regulatory process that governed the formation of the disputed land sale contract,




(2009) (“[F]or the purposes of a motion to dismiss we must take all of the factual allegations in
the complaint as true.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court
also has considered “matters incorporated by reference or integral to the claim, items subject to
judicial notice, [and] matters of public record.” Dimare Fresh, Inc. v. United States, 808 F.3d 1301,
1306 (Fed. Cir. 2015) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357 (3d ed. 2004)). RCFC 9(k) provides: “In pleading a claim founded on a contract
or treaty, a party must identify the substantive provisions of the contract or treaty on which the
party relies. In lieu of a description, the party may annex to the complaint a copy of the contract
or treaty, indicating the relevant provisions.” The Court may rely on an annexed copy of the
contract in deciding a motion to dismiss. See, e.g., Terry v. United States, 103 Fed. Cl. 645, 647 n.1
(2012) (relying on “an exhibit appended to defendant's motion containing plaintiff's concession
contract,” which plaintiff referenced in complaint in deciding motion to dismiss).
4 “A ‘patent’ is a grant made by the government that confers on an individual fee simple title to
public lands.” 63C Am. Jur. 2d Public Lands § 48 (2020); see also Bureau of Land Management,
Department of the Interior, Understanding Land Patents, General Land Office Records,
https://glorecords.blm.gov/reference/default.aspx#id=02_About_Our_Documents|01_Patent
s (last visited Apr. 24, 2020) (“Land Patents are Federal Conveyance Documents created on the
initial transfer of land titles from the Federal government to individuals.”); Beard v. Federy, 70
U.S. 478, 491 (1865) (explaining that a land patent “is a deed of the United States” which
operates as “a quit-claim, or rather of a conveyance of such interest as the United States
possessed in the land”); Exxon Chem. Patents, Inc. v. Lubrizol Corp., 935 F.2d 1263, 1267 (Fed. Cir.
1991) (Newman, C.J., concurring) (“a land patent is a grant of real property from the nation”), as
modified, 64 F.3d 1553 (Fed. Cir. 1995); Cavin v. United States, 956 F.2d 1131, 1134 (Fed. Cir. 1992)
(noting that a land patent can “convey[] title to the land from the United States to a private
party”); Thompkins-El v. Wells Fargo Bank Minnesota, 2006 WL 2433438, at *3 (E.D. Mich. Aug. 22,
2006) (“Land patents are essentially deeds that document a transfer in ownership from the
Federal Government to individuals that purchase public land.”).
then discusses the Complaint’s factual allegations relevant to the government’s motion
dismiss, and finally summarizes Silver State’s prior APA litigation.

       A.     Statutory And Regulatory Background

       The Federal Land Policy and Management Act of 1976 (“FLPMA”) is a complex
statute that provides for a nevertheless straightforward process by which BLM may
enter into contracts to sell tracts of federally-owned public land. In particular, the
FLPMA and its implementing regulations govern the process for the offer, acceptance,
consideration, and authority for land sale contracts executed pursuant to that statute.

              1.      The Federal Land Policy And Management Act Of 1976

       Prior to 1976, “[i]n various enactments, Congress empowered United States
citizens to acquire title to, and rights in, vast portions of federally owned land” by
purchasing land from the federal government. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
875 (1990). Congress recognized, however, that the government’s “[m]anagement of the
public lands under these various laws [was] chaotic.” Id. at 876. As a result, and due to
“the need to provide guidance and a comprehensive statement of congressional policies
concerning the management of the public lands, Congress enacted the [FLPMA].”
Rocky Mountain Oil & Gas Ass’n v. Watt, 696 F.2d 734, 737–38 (10th Cir. 1982).

        The FLPMA — which BLM today considers its organic statute 5 — “contain[s]
many interdependent sections in order to provide the BLM with a versatile framework
for its management efforts.” Id. at 738. Section 203 of the FLPMA, codified at
43 U.S.C. § 1713, is the primary statute at issue in this case and governs BLM’s sales of
tracts of public land. Pub. L. 94–579, October 21, 1976, 90 Stat. 2743 (codified at 43
U.S.C. § 1713) [hereinafter “Section 1713” or “§ 1713”].

       Section 1713 of Title 43 of the United States Code — governing “Sales of public
land tracts” — begins by defining the types of tracts of public land BLM may sell. In
particular, the FLPMA provides that BLM may sell tracts of public land “where, as a
result of land use planning . . . the Secretary determines that the sale of such tract

5While the Truman administration created BLM in 1946 by combining the General Land Office
and the U.S. Grazing Service, BLM considers the FLPMA its “organic statute” because the
FLPMA is the “principal law defining [BLM’s] mission.” Bureau of Land Management, Dep’t of
the Interior, National History, History of the BLM,
https://www.blm.gov/about/history/timeline (last visited Apr. 10, 2020). “The Federal Land
Policy and Management Act of 1976, as amended, is the Bureau of Land Management’s ‘organic
act’ that establishes the agency’s multiple-use and sustained yield mandate to serve present and
future generations.” Bureau of Land Management, Dep’t of the Interior, The Federal Land Policy
and Management Act of 1976, (2016), https://www.blm.gov/about/laws-and-regulations.
meets” one of three “disposal criteria.” 6 43 U.S.C. § 1713(a). After imposing certain
additional requirements on BLM’s sales of “land of agricultural value and desert in
character” 7 and “tracts in excess of two thousand five hundred acres,” 8 neither of which
considerations is applicable in this case, the FLPMA mandates that BLM cannot sell
tracts of public land for “less than their fair market value as determined by the
Secretary.” Id. § 1713(d). The FLPMA further directs BLM to “determine . . . tracts of
public lands to be sold on the basis of the land use capabilities and development
requirements of the land.” Id. § 1713(e).

       After BLM identifies a tract of public land for a proposed sale, the FLPMA
delineates the procedures that BLM must follow to invite and consider offers to
purchase that land. In general, BLM must conduct sales of — and receive offers to
purchase — tracts of public land pursuant to “competitive bidding procedures to be
established by the Secretary.” Id. § 1713(f) (emphasis added). BLM also may employ
“modified competitive bidding” procedures — or the Agency may even sell land
“without competitive bidding” (called a “direct sale”) — when the “Secretary
determines it necessary and proper in order (1) to assure equitable distribution among
purchasers of lands, or (2) to recognize equitable considerations or public policies,
including but not limited to, a preference to users[.]” Id.

      In addition to detailing BLM’s procedures for seeking and receiving offers to
purchase tracts of public land identified for sale, the FLPMA governs the process for
BLM’s acceptance of an offer. Id. § 1713(g) (“Acceptance or rejection of offers to
purchase”). In particular, the FLPMA provides BLM with only three, discrete options

6   Specifically, the FLPMA authorizes land sales where the Secretary determines that:
          (1) such tract because of its location or other characteristics is difficult and
          uneconomic to manage as part of the public lands, and is not suitable for
          management by another Federal department or agency; or
          (2) such tract was acquired for a specific purpose and the tract is no longer required
          for that or any other Federal purpose; or
          (3) disposal of such tract will serve important public objectives, including but not
          limited to, expansion of communities and economic development, which cannot
          be achieved prudently or feasibly on land other than public land and which
          outweigh other public objectives and values, including, but not limited to,
          recreation and scenic values, which would be served by maintaining such tract in
          Federal ownership.
43 U.S.C. § 1713(a)(1)–(3).
7   Id. § 1713(b).
8   Id. § 1713(c) (congressional approval procedures applicable to tracts exceeding 2500 acres).
upon receipt of offers from prospective, qualified land purchasers; BLM: (1) “shall”
accept the offer; (2) “shall” reject the offer; or (3) “may refuse to accept any offer or
may withdraw any land or interest in land from sale under this section [after]
determin[ing] that consummation of the sale would not be consistent with this Act or
other applicable law.” 9 Id. Thus, BLM may decline to accept any particular offer to
purchase the land being sold, or it may reverse course and decide not to subject the
identified parcel of land to sale at all, but the agency must elect one of those choices “no
later than thirty days after the receipt of” a purchase offer. Id. 10

               2.      BLM’s Land Sale Regulations

        In addition to governing BLM land sales, the FLPMA vests the Secretary of the
Interior with authority to “promulgate rules and regulations to carry out the purposes
of this Act and of other laws applicable to the public lands.” 43 U.S.C. § 1740.
Consistent with that provision, the Secretary promulgated regulations to “implement
the sale authority of [Section 1713].” 43 C.F.R. § 2710.0-1. Those regulations are
contained in 43 C.F.R. Subparts 2710 and 2711.

       Subpart 2710 specifies “General Provisions” that apply to BLM’s public land
sales. Those “General Provisions” address, among other topics, the purpose,
authority, 11 and policy underlying the regulations. In that regard, the regulations’
objective – consistent with the FLPMA’s terms – is to “provide for the orderly

9 The FLPMA defines “withdrawal” – a term of art – to mean “withholding an area of Federal
land from settlement, sale, location, or entry, under some or all of the general land laws, for the
purpose of limiting activities under those laws in order to maintain other public values in the
area or reserving the area for a particular public purpose or program; or transferring
jurisdiction over an area of Federal land, other than ‘property‘ governed by the Federal
Property and Administrative Services Act, as amended from one department, bureau or agency
to another department, bureau or agency.” 43 U.S.C. § 1702(j). “To withdraw, then, means to
withhold the parcel of land from sale entirely, not to cancel a specific sale to a specific buyer.”
Silver State II, 843 F.3d at 991. Consistent with the D.C. Circuit’s conclusion in Silver State II,
neither party contends before this Court that “withdrawal” occurred here.
10Alternatively, BLM has until “the end of thirty days after the end of the ninety-day
[congressional notification] period” applicable to land tracts in excess of 2500 acres,
43 U.S.C. § 1713(g), but that time period is inapplicable to the alleged sale at issue in this case.
11Although the FLPMA and implementing regulations identify the Secretary of the Interior as
the government official with authority to sell tracts of public land, see 43 U.S.C. § 1713,
43 C.F.R. § 2710.0-3, the Secretary has “delegated the authority” to certain “authorized
officer[s]” within BLM. 43 C.F.R. § 2710.0-5(c). Those authorized officers possess the authority
to contract for land sales on behalf of the United States. The requirements for a valid contract
with the United States include “a Government representative who had actual authority to bind
the Government.” Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1326 (Fed. Cir. 1997).
disposition at not less than fair market value of public lands identified for sale as part of
the land use planning process.” 43 C.F.R. § 2710.0-2.

       Subpart 2711 provides more detailed “Procedures” implementing the FLPMA
and governing the offer, acceptance, consideration, and authority for land sale
contracts. BLM‘s regulatory “Procedures” are divided into five sections: (1) Initiation
of Sale; (2) Qualified Conveyees; (3) Procedures for Sale; (4) Compensation for
Authorized Improvements; and (5) Conveyance Documents. See 43 C.F.R. §§ 2711.1–.5.

       Echoing the FLPMA itself, the regulations provide that BLM’s sales of tracts of
public land begin with the “[i]dentification of tracts by land use planning.”
43 C.F.R. § 2711.1-1. Additionally, the regulations permit the public to make
“nominations” – or “requests for sales of [government-owned] public lands” – by
submitting such requests “to the District office of the [BLM] for the District in which the
public lands are located” and “specifically identify[ing] the tract being nominated or
requested and the reason for proposing sale of the specific tract.” Id. § 2711.1-1(c).

         If BLM decides to sell a tract of land, FLPMA regulations require BLM to issue,
publish in the Federal Register, and send to interested parties a Notice of Realty Action
(“NORA”). 43 C.F.R. § 2711.1-2(a), (d). The NORA constitutes an “offering for sale [of]
a tract or tracts of public lands identified for disposal.” 12 Id. § 2711.1-2(a). A BLM
“authorized officer” must publish the NORA “not less than 60 days prior to the sale.”
Id. Additionally, the regulations require the NORA to “include the terms, covenants,
conditions and reservations which are to be included in the conveyance document.” Id.
Finally, the NORA must include a description of the “method of sale.” Id. The
regulations and the resulting NORA thus distinguish between sale procedures, the sale
itself, and the conveyance that occurs after, and results from, the sale.

       The regulations further limit who may purchase public lands. In particular, and
as relevant here, the regulations provide that BLM may convey a tract of public land to
a “corporation subject to the laws of any State or of the United States,” among others.
43 C.F.R. § 2711.2 (identifying four categories of qualified purchasers).

       Next, the regulations identify and describe the three types of “Procedures for
Sale” that BLM may utilize to seek and receive offers to purchase a tract of public land:
(1) competitive bidding; (2) modified bidding; and (3) direct sales. Id. §§ 2711.3-1–3.


12While the regulation’s use of the word “offering” suggests that a NORA may itself constitute
an offer, the NORA – as demonstrated below – cannot be interpreted as anything more than an
invitation for bids (or, possibly, as the defendant contends, the advertisement governing an
auction).
These categories mirror the ones created by the FLPMA itself. See 43 U.S.C. § 1713(f)
(addressing “competitive bidding,” “modified competitive bidding,” and sales
“without competitive bidding”).

      In this case, the parties do not dispute that BLM employed the modified
competitive bidding procedures delineated in 43 C.F.R. § 2711.3-2. Accordingly, the
Court here focuses on those procedures.

        First, 43 C.F.R. § 2711.3-2 provides that BLM “may . . . offer[]” a tract of public
land for sale “utilizing modified competitive bidding procedures when the authorized
officer determines it is necessary in order to assure equitable distribution of land among
purchasers or to recognize equitable considerations or public policies.”
43 C.F.R. § 2711.3-2(a). Second, the regulation operationally defines modified bidding
to permit BLM to select a “designated bidder” that has “the right to meet the highest
bid” the Agency receives pursuant to the NORA’s bidding process. Id. § 2711.3-
2(a)(1)(i). If the “designated bidder[] fail[s] to exercise the preference consideration
offered by the authorized officer in the allowed time, the sale shall proceed,” with the
high bidder as the successful offeror. Id. § 2711.3-2(c).

        Once BLM decides to utilize modified competitive bidding, the regulations
require BLM to publish in the Federal Register a NORA that includes a “description of
the method of modified competitive bidding to be used and a statement indicating the
purpose or objective of the bidding procedure selected.” Id. § 2711.3-2(a)(2), (d). As
noted above, the NORA thus serves as an invitation for bids (“IFB”), specifying the tract
of public land for sale, along with its appraised fair market value. Id. § 2711.1-2(a).
Prospective purchasers then must submit bids in accordance with the NORA, just like
participants in any sealed-bid procurement process must comply with the governing
IFB. 13 “Once the method of modified competitive or noncompetitive sale is determined
and such determination has been issued, published and sent in accordance with




13Cf. Federal Acquisition Regulation (“FAR”) 14.301(a) (“To be considered for award, a bid
must comply in all material respects with the invitation for bids.”). Although the FAR does not
apply to the formation of the contract at issue because it was for a government sale of property
and not an acquisition, see FAR 1.104, the FAR nevertheless is instructive regarding background
federal contracting principles. See Huntsville Times Co. v. United States, 98 Fed. Cl. 100, 106 n.6
(2011) (consulting the FAR in a non-FAR procurement “[t]o the extent that basic procurement
fairness principles are elucidated” therein); see also SUFI Network Servs., Inc. v. United States, 105
Fed. Cl. 184, 195 (2012) (“[T]he FAR is highly relevant as a guide in the absence of other
guidance.” (internal quotations omitted)).
procedures of this part, payment shall be by the same instruments as authorized in
§ 2711.3–1(c) of this subpart.” Id. § 2711.3-2(d). 14

        The FLPMA’s land sale regulations — again, mirroring the statute itself — also
govern BLM’s acceptance of a purchase offer and provide that BLM’s “[a]cceptance or
rejection of any offer to purchase shall be in accordance with the procedures set forth in
§ 2711.3–1 (f) and (g) of this subpart.” 43 C.F.R. § 2711.3-2(e). In turn, 43 C.F.R.
§ 2711.3-1(f) requires the authorized BLM officer: (1) to accept an offer; (2) to reject an
offer; or (3) to withdraw the tract of public land from sale. In particular, the regulation
provides that BLM must accept or reject an offer “in writing no later than 30 days after
receipt of such offer.” Id. § 2711.3-1(f). Additionally, prior to the expiration of the 30
day period, BLM may “refuse to accept any offer or . . . withdraw any tract from sale” 15
after determining that:

               (1) Consummation of the sale would be inconsistent with the
               provisions of any existing law; or

               (2) Collusive or other activities have hindered or restrained
               free and open bidding; or

               (3) Consummation of the sale would encourage or promote
               speculation in public lands.

Id.; see Sales—Federal Land Policy and Management Act; Sale of Public Lands, 45 Fed.
Reg. 39,416, 39,420 (June 10, 1980) (listing the foregoing criteria as clearly applying not
only to a decision to “withdraw any tract from sale,” but also to a decision to “refuse to
accept any offer”).

       Of significance for this case, 43 C.F.R. § 2711.3–1(g) conditions the selected,
successful offeror’s contract rights only upon its tendering consideration in the form of
the actual payment of the total promised purchase price:

               Until the acceptance of the offer and payment of the purchase price,
               the bidder has no contractual or other rights against the


1443 C.F.R. § 2711.3-1(c) provides, in pertinent part, that “[e]ach bid shall be accompanied by
certified check, postal money order, bank draft or cashier's check made payable to the
[BLM] . . . .”
15Although not applicable in this case, the Agency also may take one of these actions prior to
the “expiration of 30 days after the end of the [congressional] notice” period. 43 C.F.R. § 2711.3-
1(f).
               United States, and no action taken shall create any contractual
               or other obligations of the United States.

43 C.F.R. § 2711.3-1(g) (emphasis added).

       The FLPMA and its implementing regulations thus provided the framework for
the formation of the contract at issue in this case. With that framework in mind, the
Court next turns to the Complaint’s factual allegations relevant to the government’s
motion to dismiss.

       B.      Factual Allegations

        The City of Henderson, Nevada (“Henderson”) is adjacent to the City of Las
Vegas and contains, within its boundaries, certain tracts of public land. 16 In early
September 2011, Henderson and Las Vegas National Sports Center LLC (“LVNSC”)
entered into a master project agreement (“MPA”) concerning one of those tracts of
public land. 17 Appx. A1-21. 18 The MPA contemplated that Henderson would nominate
a tract of public land for sale by BLM to LVNSC, which would “plan, design, develop,
construct, complete, and operate” up to four sporting-event venues capable of hosting
various professional sports leagues. Appx. A2.

       On September 7, 2011, Henderson requested that BLM utilize the direct sale
procedures pursuant to 43 C.F.R. § 2711.3-3 to sell an approximately 480-acre tract of
public land within Henderson’s boundaries (the “Property”) to LVNSC. Compl. ¶ 7;
Appx. A22. On October 4, 2011, BLM notified Henderson that the Agency could not
appropriately utilize the direct sale procedures pursuant 43 C.F.R. § 2711.3-3. Compl.
¶ 10; Appx. A26-27. Instead, BLM suggested that the use of modified competitive


 See generally City of Henderson, Nevada, https://www.cityofhenderson.com/ (last visited
16

Apr. 28, 2020).
17See Silver State I, 145 F. Supp. 3d at 117 n.3. Silver State’s Complaint alleges that Henderson
and LVNSC entered into the MPA on October 18, 2011. Compl. ¶ 9. Silver State I and the
appendix to the government’s motion to dismiss indicate, however, that Henderson and
LVNSC entered into an initial MPA in early September 2011, but then subsequently “amended
and restated” the MPA on October 18, 2011. In any event, the date on which Henderson and
LVNSC entered into the MPA is immaterial to this decision.
 The government attached an appendix to its motion to dismiss, containing certain documents,
18

many of which Silver State’s complaint incorporates by reference. This Court may consider
“matters incorporated by reference or integral to the claim” in ruling on a motion to dismiss
pursuant to RCFC 12(b)(6). Dimare Fresh, Inc., 808 F.3d at 1306 (internal quotation omitted). The
Court cites to those documents using the abbreviation “Appx. A_,” with the relevant page
number inserted.
bidding procedures pursuant to 43 C.F.R. § 2711.3-2; BLM sought Henderson’s
concurrence in that approach. Compl. ¶ 10; Appx. A26-27. On October 10, 2011,
Henderson notified BLM that Henderson concurred with the Agency’s plan to offer the
Property via the modified competitive bidding procedures at 43 C.F.R. § 2711.3-2 and to
identify LVNSC as the designated bidder with the right to match the highest offer.
Appx. A28.

        On October 18, 2011, Henderson and LVNSC entered into an amended and
restated MPA. Appx. A31. In early 2012, BLM agreed to substitute Silver State, an
affiliate of LVNSC, as the designated bidder in the planned sale of the Property.
Compl. ¶ 11.

       On April 4, 2012, BLM published a NORA in the Federal Register for the
“Modified Competitive, Sealed-Bid Sale” of the Property. Compl. ¶ 12; Notice of Realty
Action: Modified Competitive, Sealed-Bid Sale of Public Land in Clark County, NV,
77 Fed. Reg. 20,413 (Apr. 4, 2012) (Appx. A73). The NORA began with a “Summary”
section, which provided that BLM “proposes to offer [the Property] by modified
competitive, sealed-bid sale . . . at not less than the appraised fair market value (FMV)
of $10,560,000.” 77 Fed. Reg. at 20,413 (Appx. A73). The “Summary” section further
provided that “[t]he sale will be subject to the applicable provisions of Section[] 203 of
the [FLPMA] . . . and BLM land sale regulations at 43 CFR 2710.” Id. Section 203 of the
FLPMA is codified at 43 U.S.C. § 1713. The NORA then included a “Dates” section,
which specified that BLM must receive all sealed-bid offers to purchase the Property by
June 4, 2012, the date upon which BLM indicated it would open the sealed bids. Id.

      After several short sections regarding how to contact the Agency with questions
or comments, the NORA contained a “Supplementary Information” section. Id. The
“Supplementary Information” section described the Property, id. at 20,413-14 (Appx.
A73-74), and provided that “[t]he use of the modified competitive, sealed-bid sale
method is consistent with the regulations at 43 CFR 2711.3-2(a).” Id. at 20,414 (Appx.
A74). The section further notified potential offerors that Silver State was the
“designated bidder.” Id.

       Following the “Supplementary Information” section, the NORA included a “Sale
procedures” section. 77 Fed. Reg. at 20,414 (Appx. A74). That section of the NORA
informed all offerors that any bid must include a “bid guarantee deposit” and a check
for twenty percent of the total bid amount. Id. Because Silver State was the designated
bidder, the NORA’s “Sale procedures” section required Silver State’s authorized
representative to “be present at the bid opening.” Id. The “Sale procedures” section
then provided that “[a]cceptance or rejection of any offer to purchase will be in
accordance with the regulations at 43 CFR 2711.3-1(f) and (g).” Id. Finally, the “Sale
procedures” section provided:

              Within 30 days of the sale, the BLM will, in writing, either
              accept or reject all bids received. No contractual or other rights
              against the United States may accrue until the BLM authorized
              officer officially accepts the high bid offer to purchase and the
              full bid price is paid.

Id. This provision in the NORA reflects the requirements of the FLPMA and its
implementing regulations, as described above.

       Finally, the NORA included a specific “Terms and Conditions” section. 77 Fed.
Reg. at 20,415 (Appx. A75) (italics in original). That section provided terms and
conditions for a contract resulting from the “Sale procedures,” in addition to certain
“numbered terms, conditions, and reservations [that would] appear on the conveyance
document.” Id. 19 Thus, the NORA’s “Terms and Conditions” section contained
contractual terms, including the repeated condition that “[n]o contractual or other
rights against the United States may accrue until the BLM officially accepts the offer to
purchase, and the full bid price is submitted by the 180th day following the sale.” Id.
The section further provided:

               In accordance with 43 CFR 2711.3-1(f), the BLM may accept or
               reject any or all offers to purchase, or withdraw any parcel of
               land or interest therein from sale, if, in the opinion of a BLM
               authorized officer, consummation of the sale would be
               inconsistent with any law, or for other reasons as may be
               provided by applicable law or regulations.

Id. at 20,416 (Appx. A76) (emphasis added). As this Court explains below, and
pursuant to the plain language of 43 C.F.R. § 2711.3-1(f) and the NORA, 20 BLM was
required to make any such decision “no later than 30 days after receipt of” offers. This
“Terms and Conditions” section did not include any requirement that Silver State adhere
to the MPA, nor would it have made sense to include such a requirement because the



19As explained above, the conveyance document is known as a land patent and is the document
the United States uses to convey title of public land to purchasers. See 43 C.F.R. § 2711.5 (noting
that a patent is a conveyance document).
20Appx. A74 (“Within 30 days of the sale, the BLM will, in writing, either accept or reject all
bids received.”).
NORA also permitted – and would have governed – potential competing offers, while
the MPA was solely between Silver State’s affiliate and Henderson.

        On June 4, 2012, Silver State submitted a bid – consistent with the NORA’s terms
– in the amount of $10,560,000, matching the NORA’s appraised fair market value of the
Property. Compl. ¶ 14; Appx. A84. Per the NORA’s requirement, Silver State included
certified checks totaling $2,132,000 with its bid and otherwise met all the NORA’s
requirements. Compl. ¶ 14; Appx. A92. Because BLM did not receive any other offers
to purchase the Property, Silver State had no need to exercise its preference right as the
“designated bidder” to match another prospective purchaser’s high bid.

        On June 12, 2012, BLM issued a written acceptance of Silver State’s offer. Compl.
¶ 15; Appx. A94-95. BLM’s “Acceptance of Bid” letter (“Acceptance Letter”) to Silver
State instructed that Silver State had “180 days from the sale date . . . to pay the
[remaining] balance of $8,428,000,” i.e., the bid price after deducting the down payment
that Silver State had included with its bid. Appx. A95 (emphasis added). BLM’s
Acceptance Letter further warned Silver State that “[f]ailure to submit the balance by
December 3, 2012, [would] result in cancellation of the sale.” Id. The Acceptance Letter
required Silver State to provide evidence that it was a U.S. corporation “authorized to
hold property or an entity legally capable of conveying lands or interests there in [sic]
under the laws of the State of Nevada,” and cautioned that failure to submit such
evidence “within 30 days from the sale date of June 4, 2012, shall result in the
cancellation of the sale.” Id. (emphasis added). The Agency specified no other potential
grounds of cancellation in the Acceptance Letter.

        On or about August 16, 2012, BLM issued to Silver State escrow instructions,
which both parties executed. Compl. ¶ 16; Appx. A96-97. The instructions were “for
use in processing a land patent through escrow to Silver State Land LLC pursuant to
Section 203 [of the FLPMA]” and “pursuant to Section 4(a) of the Southern Nevada
Public Land Management Act of 1998, P.L. 105-263, 111 Stat. 2343, et seq.,” by BLM “on
behalf of the United States of America.” Appx. A96. The escrow instructions to which
the parties agreed provided that “[t]he transaction is found to be in the public interest
and otherwise in conformance with the laws and regulations.” Id. The instructions
further provided that “failure to pay the full price on or before the [sic] December 3,
2012, to either BLM or the escrow company, disqualifies the bid and the bidder will
forfeit their [sic] entire bid deposit to BLM.” Id. Upon such timely payment (or, more
precisely, “[e]vidence of payment”), “BLM will then provide the patent and
Acknowledgment of Delivery to Nevada Title [— the escrow agent —] within 30 days.” Id.
(bold added, italicized text in original). No other conditions for delivery of the patent
were specified, and the escrow instructions further caveated that “[c]hanges may be
made by mutual agreement of the parties” and “must be in writing and signed by the
[sic] all parties named below.” Id. The document was executed by a BLM official and a
representative of the “Patentees(s)” – a reference to Silver State. Id. at A97.

       Subsequent bilateral, written amendments to the initial, executed escrow
instructions extended BLM’s contractual deadline for patent delivery, but no such
amendment ever deleted either (1) BLM’s commitment that it “will . . . provide the
patent[,]” or (2) the parties’ agreement that the “transaction is found to be in the public
interest and otherwise in conformance with the laws and regulations.” Appx. A96
(emphasis added).

      Several days before the payment due date, on November 28, 2012, Silver State
tendered $8,428,000 — the balance of the purchase price — into escrow. Compl. ¶ 17;
Appx. A98-101. The escrow officer notified BLM that Silver State had tendered the
balance into escrow at approximately 3:44 p.m. that day. Appx. A100. After Silver State
had tendered the balance of the purchase price into escrow, LVNSC terminated its MPA
with Henderson. 21 Compl. ¶ 19.

       On November 29, 2012, Henderson notified BLM that LVNSC had terminated the
MPA; Henderson requested that BLM postpone conveying the land patent for the
Property to Silver State. Compl. ¶ 20; Appx. A102-04. On December 20, 2012, Silver
State and BLM agreed to extend the date by which the Agency had to convey the land
patent to Silver State, amending the escrow agreement in writing. Compl. ¶ 21; Appx.
A106-07. The amended escrow instructions provided that the purpose of the extension
was to “facilitate settlement discussions between [LVNSC] and the City of Henderson
regarding the uses of the land following patenting of the land by the United States.”
Appx. A106 (“Modifications for Escrow Instructions for N-90450”).

       On January 28, 2013, Henderson filed suit against LVNSC, Silver State, and other
associated entities and individuals in Nevada state court, alleging various breach of
contract and fraud claims arising from LVNSC’s termination of the MPA. Compl. ¶ 22.
On February 5, 2013, Silver State and BLM agreed to a second extension of time for the
Agency to convey the land, via a patent, to Silver State. Compl. ¶ 23; Appx. A162-64.

       On March 7, 2013, the Nevada state court dismissed all of Henderson’s non-
contract claims, and, on March 14, 2013, Silver State and Henderson executed a
settlement agreement, resolving the remaining contract claims. Compl. ¶ 24. At that



21As noted above, Henderson requested that BLM substitute Silver State, an affiliate of LVNSC,
as the designated bidder. Appx. A66. In early 2012, BLM agreed to substitute Silver State as the
designated bidder in the forthcoming sale of the Property. Compl. ¶ 11.
point, Silver State and BLM once again agreed to extend the time for BLM to convey the
land patent to Silver State, this time until May 13, 2013. Compl. ¶ 28; Appx. A183.

        None of the escrow modifications extending the time for the Agency to deliver
the land patent for the subject Property – there were three extensions in total – ever
deleted or otherwise altered the parties’ finding in the original escrow instructions that
“[t]he transaction is . . . in the public interest and otherwise in conformance with the
laws and regulations.” Appx. A96; see also, e.g., Appx. A183 (March 14, 2013
Modifications for Escrow Instructions for N-90450) (agreement that “[a]ll other
instructions remain the same from the original August 2012 escrow instructions, as
amended on December 20, 2012 and February 5, 2013”). Nor, as noted above, did Silver
State ever agree to excuse BLM’s commitment that it “will . . . provide the patent” to
Silver State. Appx. A96 (emphasis added). On April 5, 2013, Henderson informed BLM
that Henderson no longer opposed BLM conveying the subject Property to Silver State.
Compl. ¶ 27; Appx. A187-88. On May 9, 2013, BLM sent Silver State a draft land patent
to review. Compl. ¶ 29.

        On May 10, 2013, however, two BLM officials – the Acting Deputy Director for
Operations and BLM’s Nevada State Director – sent a memorandum to the Acting
Assistant Secretary for Land and Minerals Management (the “Assistant Secretary”),
entitled “Termination of Patent Issuance to Silver State Land, LLC, for Land Nominated
for Sale by the City of Henderson, Nevada for Arena Development Project.” Appx.
A189. As indicated in the title of that document, the BLM officials focused – as did the
parties’ subsequent APA litigation – on the Agency’s asserted power not to transfer the
land patent. Thus, in the memorandum, the BLM officials recommended that the
Assistant Secretary “take jurisdiction over this matter, pursuant to the authority
reflected in 43 C.F.R. § 4.5(a), and render a final decision on whether a land patent should
be issued to Silver State.” Appx. A192 (emphasis added). The BLM officials further
recommended that the Assistant Secretary direct BLM to “(i) not issue the patent to
Silver State, (ii) terminate the sale process, and (iii) take the steps necessary to return the
purchase deposit and bid guarantee to Silver State.” Appx. A192-93. This
recommendation was premised, at least in-part, on the Secretary of the Interior’s “broad
authority over the disposition of the public lands up to the point of patent issuance,
including the authority to make an independent evaluation as to whether the patent
should issue.”22



22Appx. A193 (emphasis added) (citing 209 DM 7; 98 I.D. 248, 250 (1991) [a Department of
Interior Manual]; Cameron v. United States, 252 U.S. 450, 459-64 (1920); Knight v. United States
Land Association, 142 U.S. 161, 177 (1891); United States v. Willamson, 75 I.D. 338, 342 (1968);
United States v. United States Borax Co., 58 I.D. 426, 430 (1943); Ideal Basic Industries, Inc. v. Morton,
       On May 10, 2013, the Assistant Secretary issued a decision memorandum,
entitled “Termination of Patent Issuance to Silver State Land LLC, for Land Nominated
for Sale by the City of Henderson, Nevada for Arena Development Project.”
Compl. ¶ 30. The Assistant Secretary took “jurisdiction over this matter, pursuant to
the authority reflected in 43 C.F.R. § 4.5(a)” and issued a written decision, directing
BLM to:

               (i) not issue the patent to Silver State, LLC, (ii) terminate the
               sale process, and (iii) take the steps necessary to return the
               purchase deposit and bid guarantee to Silver State, LLC,
               ($2,132,000) as expeditiously as practicable.

Compl. ¶ 31; Appx. A195. 23 No documents currently before the Court show that, before
issuing this written decision: (1) the Agency advised Silver State in writing in advance
of such action, (2) the Assistant Secretary requested the administrative record, or (3) the
Agency otherwise provided Silver State with an opportunity to respond to BLM’s
recommendation memorandum.

       On May 13, 2013 — more than five months after Silver State terminated its MPA
with Henderson, but just four days after BLM transmitted a draft land patent to Silver
State for review — BLM declined to convey the land patent to Silver State, allegedly
contrary to the terms of the NORA, BLM’s acceptance of Silver State’s bid, and the
agreed-upon escrow instructions. Compl. ¶ 33.

       C.      Procedural History

        On May 15, 2013, Silver State filed a complaint in the United States District Court
for the District of Columbia, “claiming that ‘the decision to withdraw the sale was
contrary to statutory limitations regarding the ability to withdraw the sale, and was
arbitrary and capricious,’ in violation of the Administrative Procedure Act.”
Silver State I, 145 F. Supp. 3d at 117. Silver State moved for summary judgment “to set


542 F.2d 1364, 1367-68 (9th Cir. 1976); West v. Standard Oil Co., 278 U.S. 200 (1927); Gabbs
Exploration Co. v. Udall, 315 F.2d 37, 40-41 (D.C. Cir.), cert. denied, 375 U.S. 822 (1963); United
States v. State of California (On Rehearing), 55 I.D. 532, 542-46 (1936)). None of those cited
decisions concerned a claim under the Tucker Act for the government’s breach of contract. See
Tr. at 80:13-20 (government conceding cited cases did not involve contracts for sale of property).
23The government characterizes the Assistant Secretary’s decision as an order to BLM to not
perform its contractual duty rather than an order terminating the contract. See Tr. at 95:13-14
(“There was no termination of the contract. There was an order not to perform.”). The Court
considers this characterization to be, at best, a distinction without a difference; taken literally,
however, the government appears to concede breach.
aside the [BLM] determination and order immediate delivery of the land patent to
[Silver State].” Id. Silver State challenged the:

                  decision not to issue the patent for the Property to [Silver
                  State] and to terminate the sale process on three principle
                  grounds: (1) the agency lacked authority to terminate the sale;
                  (2) the agency’s decision was arbitrary and capricious; and (3)
                  the agency violated the plaintiff’s due process rights by
                  terminating the sale without providing the plaintiff an
                  opportunity or reason to submit additional information.

Id. at 125 (internal citations and quotations omitted) (emphasis added). 24 The district
court “conclude[d] that the agency interpreted applicable statutory provisions and its
own regulations reasonably to provide authority to terminate the sale and,
consequently, the challenged decision was not arbitrary and capricious but supported
by substantial evidence, and that the plaintiff’s due process rights were not violated.”
Id. The district court further held – and this is particularly relevant here – that the
Secretary has “plenary power . . . to determine the lawfulness of the issuance of a patent”
and that the FLPMA does not constrain that power. Id. at 128 (emphasis added).
Consequently, the district court denied Silver State’s motion for summary judgment. Id.

       Silver State appealed that decision to the United States Court of Appeals for the
District of Columbia Circuit. Silver State II, 843 F.3d at 985. The D.C. Circuit reviewed
the Agency action de novo to determine whether the action was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” Id. at 989 (quoting
5 U.S.C. § 706(2)(A)). The D.C. Circuit affirmed the district court’s judgment, holding
“that the Secretary had plenary power to terminate the land sale, and that the [FLPMA]
did not constrain the Secretary’s power” to refuse to provide the land patent. Id. at 985.
The D.C. Circuit concluded, in particular, that 43 U.S.C. § 2 “includes the authority to
terminate a land sale using a modified competitive auction where the basis for the
modified auction dissipates.” Id. at 989. 25 The D.C. Circuit further held that the FLPMA
“does not limit the Secretary’s plenary power [under 43 U.S.C. § 2].” Id. at 992.



 The district court does not appear to have addressed the latter ground in terms of the
24

Agency’s compliance (or lack thereof) with 43 C.F.R. § 4.5(c). See, infra, Section III.B.5.
25   43 U.S.C. § 2 provides:
                  The Secretary of the Interior or such officer as he may designate
                  shall perform all executive duties appertaining to the surveying
                  and sale of the public lands of the United States, or in anywise
                  respecting such public lands, and, also, such as relate to private
        Neither the district court nor the D.C. Circuit ruled on the contract issues central
to this case. 26 Instead, the D.C. Circuit agreed that “the District Court correctly noted”
as follows:

                This regulation [43 C.F.R. § 2711.3-1(g)] merely delineates
                when an offeror has no contractual rights, and not when
                contractual rights do attach. Furthermore, to the extent this
                regulation may confer any contractual right upon an offeror
                whose offer has been accepted, the regulation is silent as to
                what those rights may be.

Silver State II, 843 F.3d at 992 (quoting Silver State I, 145 F. Supp. 3d at 131 n.14) (italics in
original).

       On May 9, 2019, Silver State filed its original complaint in this Court. On
October 24, 2019, Silver State filed its amended Complaint. On November 7, 2019, the
government filed a motion to dismiss Silver State’s Complaint pursuant to RCFC
12(b)(6). The parties fully briefed the motion, the Court held oral argument on
February 26, 2020, and the parties filed post-argument supplemental briefs on March 11,
2020.

II.     Standard Of Review

        The government moves to dismiss Silver State’s Complaint pursuant to
RCFC 12(b)(6). When considering a motion to dismiss a complaint for failure to state a
claim upon which relief may be granted pursuant to RCFC 12(b)(6), the Court accepts as
true all factual allegations — but not legal conclusions — contained in a plaintiff’s
complaint. See Twombly, 550 U.S. at 555. For a plaintiff’s complaint to survive a motion
to dismiss, the Court — viewing the facts in the light most favorable to the plaintiff —
must conclude that “the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[O]f course, a well-pleaded complaint
may proceed even if it strikes a savvy judge that actual proof of [the facts alleged] is
improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556
(citations and internal quotation marks omitted); Chapman Law Firm Co. v. Greenleaf


                claims of land, and the issuing of patents for all grants of land under
                the authority of the Government.
26See, infra, Section IV; see also Def. Reply at 10 (“Silver State shuns any preclusive effects of its
prior APA suit here because ‘no contractual rights or liabilities’ were decided by the district
court and D.C. Circuit…We have never contended otherwise.” (internal citations omitted)).
Constr. Co., 490 F.3d 934, 938 (Fed. Cir. 2007) (noting that the Court’s duty is not to
determine “whether the claimant will ultimately prevail” when ruling on a 12(b)(6)
motion to dismiss). A plaintiff may not simply plead “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555
(citations omitted).

III.   Silver State’s Amended Complaint States A Claim For Breach Of Contract 27

      The Tucker Act, 28 U.S.C. § 1491, establishes this Court’s jurisdiction and
provides:

               The United States Court of Federal Claims shall have
               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).

        In addition to conferring jurisdiction on the Court, the Tucker Act waives the
sovereign immunity of the United States “[f]or actions pursuant to contracts with the
United States[.]” Roth v. United States, 378 F.3d 1371, 1384 (Fed. Cir. 2004); see United
States v. Mitchell, 463 U.S. 206, 212-16 (1983). “To recover for breach of contract, a party
must allege and [ultimately] establish: (1) a valid contract between the parties, (2) an
obligation or duty arising out of the contract, (3) a breach of that duty, and (4) damages
caused by the breach.” San Carlos Irr. & Drainage Dist. v. United States, 877 F.2d 957, 959
(Fed. Cir. 1989). Silver State’s Complaint adequately alleges each of these elements.
Indeed, the documents that the government attached to its motion to dismiss all but
prove the Agency’s breach, although the Court does not definitively so decide that
issue, at this stage of the case. 28



27For the purposes of this section of the Court’s decision, the Court entirely puts to one side the
government’s issue preclusion and other defenses as grounds for dismissal, which are
addressed in subsequent sections of this decision.
28“Pursuant to RCFC 12(c), the trial court may convert a motion to dismiss into a motion for
summary judgment under RCFC 56 if it relies on evidence outside the pleadings.” Brubaker
Amusement Co. v. United States, 304 F.3d 1349, 1355 (Fed. Cir. 2002). “Whether to accept extra-
pleading matter on a motion for judgment on the pleadings and to treat the motion as one for
summary judgment is within the trial court’s discretion.” Easter v. United States, 575 F.3d 1332,
          A.     Silver State’s Complaint Alleges The Parties Had An Express Contract
                 That The Government Breached

       To recover for breach of contract, a plaintiff must allege (and ultimately
establish) that the parties had a valid contract. The requirements for a valid contract
with the United States are: “mutual intent to contract including an offer and acceptance,
consideration, and a Government representative who had actual authority to bind the
Government.” Trauma Serv. Grp., 104 F.3d at 1326. Silver State’s Complaint adequately
alleges the existence of a valid, express contract between Silver State and BLM.

       According to the Complaint, Silver State and BLM had a mutual intent to
contract for the conveyance of the Property and the Agency representative who entered
the agreement had authority to bind the United States in contract. Compl. ¶¶ 1, 14, 15,
17; Appx. A73-76, A84-101, A106-08, A162-64, 183-85. Specifically, on April 4, 2012,
BLM issued the NORA, 29 which invited both Silver State – as the designated bidder –
and the (qualified) public at large, to submit offers to BLM to purchase the Property on
certain terms and conditions. Compl. ¶ 12-13; Appx. A73-76.

         Similar to an IFB in a procurement conducted pursuant to the FAR, the NORA at
issue here specifically invited prospective purchasers of the identified Property to
submit bids pursuant to the NORA’s terms governing the sale mechanics. This
included procedural requirements for the submission and acceptance of offers, 30 bidder
qualifications, 31 and the actual terms and conditions of the resulting land sale contract
itself (including provisions that ultimately would be inserted into a final conveyance
document, known as a land patent). 32

       With regard to the sale process, the NORA required that “[s]ealed bids may be
mailed or delivered to the BLM Las Vegas Field Office, at the address below, beginning
May 21, 2012[,]” but “must be received by the BLM Las Vegas Field Office no later than
4:30 p.m. Pacific Time, June 4, 2012 in accordance with the sale procedures.”

1335 (Fed. Cir. 2009) (discussing RCFC 12(b)(6)). Silver State does not challenge the Court’s
consideration of the documents the government filed along with its motion to dismiss, and
neither party suggests the dismissal motion should be treated as one for summary judgment.
29The government does not dispute either (1) that the NORA was lawful when issued, or
(2) that the NORA was issued by an agency official with authority to do so.
30Appx. A74 (explaining how offerors must submit bids and how BLM will accept or reject bids
in the “Sale procedures” section).
31   Appx. A74 (specifying “qualified bidder[]” requirements pursuant to “Federal law”).
32Appx. A75 (“Terms and Conditions”) (“The following numbered terms, conditions, and
reservations will appear on the conveyance document for this parcel.”).
Appx. A73. The NORA also contained a section entitled “Sale procedures[,]” which
included detailed instructions for “sealed-bid” submissions, and further provided that
“sealed bids will be opened and recorded to determine the high bidder on June 4, 2012.
The high bid among the qualified bids received will be declared.” Id. at A74.

       The NORA identified Silver State as the “designated bidder,” id., essentially
giving Silver State the right of first refusal by providing that Silver State would “have
the opportunity at the bid opening to meet and accept the high bid as the purchase
price.” Id. Only if Silver State declined the opportunity to match the “declared high
bid” would some other potential purchaser “be declared the successful bidder.” Id.

       On June 4, 2012, and allegedly in compliance with the NORA’s terms, Silver State
submitted a valid offer to purchase the Property for the appraised fair market value of
$10,560,000, tendering $2,132,000 along with its offer, the latter sum representing the
required bid deposit and guarantee. Compl. ¶ 14; Appx. A84-92.

       Whether the NORA is viewed as essentially an IFB (similar to those in the
procurement context, as per the FAR) or as effectuating an auction, 33 the result is the
same: the NORA invited bids in compliance with the NORA’s instructions, but BLM
had to accept a bid to form a contract. Lockheed Martin IR Imaging Sys., Inc. v. West, 108
F.3d 319, 320 (Fed. Cir. 1997) (“In sealed bid procurements the government solicits bids
by issuing an [IFB]. The IFB is not an offer by the government to purchase goods or
services: the prospective contractor’s bid is the offer, and the government’s award of the
contract is the acceptance. J. Cibinic & R. Nash, Formation of Government Contracts 153
(2d ed. 1986). In sealed bid procurements, acceptance by the government is made
without negotiation or material variation from the terms of the contractor’s offer.”).

       Ordinarily, “case law makes clear that an invitation for bids issued by the
government constitutes a solicitation for an offer; the bid invitation is not an offer itself
from which plaintiff can create a binding agreement by accepting[.]” Essen Mall
Properties v. United States, 21 Cl. Ct. 430, 439–40 (1990). In this case, the Court holds that
there is no practical distinction between viewing the transaction at issue as having
arisen from an IFB or, as the government contends, an auction. Viewed under either
construct, offerors had to submit bids in compliance with the NORA’s instructions, the
terms of the NORA were binding upon both parties, and compliant bids by definition
offered the “Terms and Conditions” specified in the NORA. Erie Coal & Coke Corp. v.
United States, 266 U.S. 518, 520 (1925) (“The terms and conditions of the sale as set forth



33The government characterizes the land sale process described in the NORA as a “restricted
auction.” Def. Reply at 1.
in the advertisement were binding alike upon the United States and the bidders.”). 34 In
that regard, the NORA quite clearly restricted the Agency’s options upon the receipt of
bid submissions, informing prospective bidders that “[a]cceptance or rejection of any
offer to purchase will be in accordance with the regulations at 43 CFR 2711.3-1(f) and
(g).” Appx. A74 (emphasis added). Moreover, the NORA required that, “[w]ithin 30
days of the sale, the BLM will, in writing, either accept or reject all bids received.” Id.
(emphasis added). 35

       On June 12, 2012, and consistent with the NORA, an authorized officer of BLM
issued an unequivocal and unambiguous 36 written acceptance of Silver State’s offer 37 to



34See also United States v. Purcell Envelope Co., 249 U.S. 313, 318 (1919) (“The procedure for the
advertising for bids” gives the government “the benefit of the competition of the market and
each bidder is given the chance for a bargain. It is a provision, therefore, in the interest of both
government and bidder, necessarily giving rights to both and placing obligations on both.”);
Particular types of offers—Requests for bids, 1 Williston on Contracts § 4:13 (4th ed.) (“Often
tenders or bids are advertised for by public corporations, municipalities, counties or states, or
private corporations. The rules governing such bidding are analogous to the rules governing
auction sales. Thus, an ordinary advertisement for bids or tenders is not itself an offer, but the
bid or tender is an offer which creates no right until accepted.”); Restatement (Second) of
Contracts § 28 (1981) (“Unless a contrary intention is manifested, bids at an auction embody
terms made known by advertisement, posting or other publication of which bidders are or
should be aware. . . .”); YRT Servs. Corp. v. United States, 28 Fed. Cl. 366, 398 (1993) (“Had the
instant selection process been conducted as a sealed bid, which it was not, failure to comply in
all material respects with the invitation for bids would have been fatal to the bidder's chances
for award.”); Commodities Recovery Corp. v. United States, 34 Fed. Cl. 282, 289 (1995) (“Auction
sales are viewed under the same rules pertaining to the formation of contracts generally. See, 1
Samuel Williston, Williston on Contracts § 29, (3rd ed. 1957). In auctions, the potential
purchaser’s bid is the equivalent of an offer to buy the merchandise. This offer is accepted by
the auctioneer upon the fall of the hammer.”). In this case, of course, there was no auctioneer’s
“hammer,” but rather BLM issued a formal Acceptance Letter to Silver State. But see Frankel v.
United States, 842 F.3d 1246, 1250 (Fed. Cir. 2016) (“the majority of courts have long interpreted
announcement of a contest as a contractual offer by a sponsor and entry into the contest by a
contestant as acceptance of that offer”).
35See Prineville Sawmill Co. v. United States, 859 F.2d 905, 912 (Fed. Cir. 1988) (“Nor do we believe
that the express reservation contained in the advertisement in which the Forest Service reserved
the right to reject all bids allows the Service the discretion to be arbitrary or capricious in
rejecting all bids.”).
36The Acceptance Letter is subtitled “Acceptance of Bid,” and characterized the government as
having “offered” a “parcel of public land” – clearly via the NORA – to Silver State in “a
modified competitive sealed bid sale” process. Appx. A94.
37Again, although not applicable to the land sale at issue, the FAR nevertheless supplies an
instructive definition of the term “offer.” “Offer means a response to a solicitation that, if
purchase the Property, conditioned only upon Silver State’s fulfilling its promise to pay
into escrow $8,428,000 – the remaining balance of the purchase price – prior to
December 3, 2012. Compl. ¶ 15; Appx. A94-95. The Acceptance Letter indicated that
Silver State “must now submit the remaining balance in the amount of $8,428,000.00, by
December 3, 2012.” Appx. A94. 38 Finally, the Acceptance Letter provided that
“[f]ailure to submit the balance by December 3, 2012, shall result in cancellation of the
sale and forfeiture of [Silver State’s] 20 percent deposit.” Id.

        The government does not assert that BLM’s acceptance of Silver State’s offer was
somehow unauthorized or otherwise improper or contrary to law at the time of
acceptance; nor does the government deny that the parties formed a contract once Silver
State paid the full purchase price for the Property. Transcript of Oral Argument (“Tr.”)
at 13:10-15 (“THE COURT: Does the government agree that upon payment – the final
payment of the full purchase price, that at that point in time, there was a contract by
Silver State with the United States for the purchase of the land in question? MR.
ROSENBERG: Yes.”); id. at 40:1-3 (“MR. ROSENBERG: [The contract] was not void [ab
initio]. It was only the intervening change of the events that rendered it to be out of
compliance with the law.”).

       Ordinarily, BLM’s mere written acceptance of Silver State’s offer to purchase the
subject Property would have resulted in an enforceable contract. 39 In this case,

accepted, would bind the offeror to perform the resultant contract. Responses to invitations for
bids (sealed bidding) are offers called ‘bids’ or ‘sealed bids[.]’” FAR 2.101.
38 The Acceptance Letter also reiterated the qualified bidder requirements first specified in the
NORA, and instructed Silver State to submit certain documentation demonstrating its
qualification to purchase the Property “within 30 days from the sale date of June 4, 2012,” and
that failure to submit to submit such documentation “shall result in the cancellation of the sale.”
Appx. A95 (emphasis added). The Acceptance Letter itself thus demonstrates that BLM viewed
its written acceptance of Silver State’s offer to constitute “the sale.” Silver State already had
submitted the required documentation with its bid. Appx. A85-92.
39 A-Transp. Northwest Co. v. United States, 36 F.3d 1576, 1581 (Fed. Cir. 1994) (“[T]he
Government was empowered to create a contract by accepting A–Transport's offer. This it did
in November 1986, when it notified those carriers whose tenders had been accepted.”);
Restatement (Second) of Contracts § 50 (1981) (“The typical contract consists of mutual promises
and is formed by an acceptance constituting a return promise by the offeree. A promissory
acceptance may be explicitly required by the offer, or may be the only type of acceptance which
is reasonable under the circumstances….”); McMaster Const., Inc. v. United States, 23 Cl. Ct. 679,
684 (1991) (“sealed bid procurements result in contracts upon acceptance or award by the
[contracting officer]”), declined to follow on other grounds by Southfork Sys., Inc. v. United States, 141
F.3d 1124, 1133 (Fed. Cir. 1998). Although the Acceptance Letter appears to have been
completely consistent with the NORA, even if the acceptance were treated as a BLM
counteroffer to Silver State, the latter accepted the terms of the Acceptance Letter when Silver
however, the NORA’s terms made clear that “[n]o contractual or other rights against
the United States may accrue until [1] the BLM authorized officer officially accepts the
high bid offer to purchase and [2] the full bid price is paid.” Appx. A74; see also id. at
A75 (“No contractual or other rights against the United States may accrue until the BLM
officially accepts the offer to purchase, and the full bid price is submitted by the 180th
day following the sale.”). 40

      On November 28, 2012, in compliance with the NORA, the terms of the
Acceptance Letter, and the escrow agreement that the parties executed on or about
August 17, 2012, see Appx. A96-97, Silver State tendered $8,428,000 into escrow, thereby
paying for the Property on time and in full. Compl. ¶ 17; see also Appx. A98-101
(evidence of timely payment).

       Accordingly, as of November 28, 2012, when Silver State transmitted its final,
total payment for the Property, Silver State and BLM unequivocally formed a valid,
express, written contract 41 that consisted of: (1) the NORA (or at least certain provisions


State tendered the balance due by the specified date. See First Commerce Corp. v. United States,
335 F.3d 1373, 1381 (Fed. Cir. 2003) (“’A reply to an offer which purports to accept it but is
conditional on the offeror’s assent to terms additional to or different from those offered is not an
acceptance but is a counter-offer.’” (quoting Restatement (Second) of Contracts § 59 (1979)).
40The Court holds, accordingly, that, absent this language in the NORA, Silver State’s contract
rights would have arisen upon the government’s acceptance of Silver State’s bid. As explained
in more detail below, the effect of the NORA and the payment terms contained in BLM’s
Acceptance Letter served to delay Silver State’s contract rights, at most, only until Silver State
tendered the full bid price to the Agency.
41Pollock v. United States, 91 Ct. Cl. 257, 259 (1940) (“The contract between the parties is
comprised in an invitation for sealed bids for the purchase of certain condemned material
belonging to the United States Navy . . ., described in said invitation, and upon the terms and
conditions set out at length therein, and in plaintiffs’ written offer in response to certain
invitations for bids, and in the acceptance of such offer on behalf of the defendant by the supply
officer at the U. S. Naval Fuel Depot.”); see Levinson v. United States, 258 U.S. 198, 199-200 (1922)
(bid was offer and acceptance of second highest bid formed binding contract in spite of offeree’s
later attempt to rescind after discovering misplaced highest bid); Contracts-Auctions-Bid Received
at Public Sale Operates As Offer, 31 Yale L.J. 887, 888 (1922) (discussing Levinson and explaining
that “[a]n advertisement that the property will be sold at a public sale to the highest bidder is no
more than an invitation to submit bids or offers. . . . Hence a bid may be withdrawn at any time
before its acceptance, but when it is accepted a valid contract is created. . . . [,]” but noting that
“[a]n advertisement may be sufficiently explicit to constitute an offer”); United States v. Sabin
Metal Corp., 151 F. Supp. 683, 687 (S.D.N.Y. 1957) (citing Levinson for the proposition that “[t]he
defendant’s bid constituted the offer and the government’s acceptance completed the contract”
and holding that “[t]he fact that the government reserved the right to reject any or all offers did
within the NORA), Appx. A73-76; (2) Silver State’s offer submitted in compliance with
the NORA, Appx. A84-92; (3) BLM’s Acceptance Letter, Appx. A94-95; and (4) the
August 17, 2012 bilateral escrow instructions agreement and various written
amendments to those instructions, Appx. A96-97, A106-08, A162-64, A183-85. 42

         Critically, neither party disputes that, as of November 28, 2012, the parties had a
valid land sale contract, with the only remaining contractual duty (of either party) being
BLM’s obligation to transfer the Property in question – via a land patent – to Silver
State. 43 Indeed, the government repeatedly concedes that the parties formed a valid
contract. See Mot. to Dismiss at 26 (“The Parties Had An Express Auction-Sale
Contract”); Def. Reply at 1 (“Silver State won the restricted auction, and the BLM and
Silver State ultimately agreed on a closing date…”); Tr. at 13:10-15 (“THE COURT:
Does the government agree that upon payment – the final payment of the full purchase
price, that at that point in time, there was a contract by Silver State with the United
States for the purchase of the land in question? MR. ROSENBERG: Yes.”). 44

       Moreover, the government further agrees that, up until the Assistant Secretary
made the decision to refuse to transfer the Property, BLM had a contractual obligation
to convey the Property, via land patent, to Silver State. Tr. at 18:14-19 (“THE COURT: If

not prevent the creation of mutual obligations after it accepted the defendant’s offer.”), aff'd, 253
F.2d 956 (2d Cir. 1958); see also Wells Fargo Bank, N.A. v. United States, 88 F.3d 1012, 1019 (Fed.
Cir. 1996) (“That the government’s promise to issue the loan guarantee was contingent upon
High Plains and Wells Fargo’s performance of numerous conditions does not make the promise
any less binding. Indeed, the essence of a unilateral contract is that one party’s promise is
conditional upon the other party’s performance of certain acts and when the other party
performs, the first party is bound.”).
42See Def. Reply at 5-6 (“[T]he [NORA], Silver State’s sealed written bid, the BLM’s acceptance
decision, and the escrow instructions are contract documents that ‘supply’ relevant terms of the
agreement.”). Although the Court assumes for the purposes of resolving the government’s
motion that the entire NORA was included in the parties’ contract, the Court’s view is that the
NORA’s Terms and Conditions section was the only section of that document governing the
parties’ contractual obligations following Silver State’s tendering full payment of its promised
purchase price.
43See Def. Mot. at 1 (“Silver State performed its end of the transaction by timely making final
payment of the purchase price.”).
44 “’[A] lawyer's statements may constitute a binding admission of a party[ ]’ if the statements
are ‘deliberate, clear, and unambiguous[.]’” Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 347
(4th Cir. 2014) (quoting Fraternal Order of Police Lodge No. 89 v. Prince George's Cty., Md., 608 F.3d
183, 190 (4th Cir. 2010)); see Checo v. Shinseki, 748 F.3d 1373, 1378 n.5 (Fed. Cir. 2014)
(questioning the Veterans Court’s “reluctance to accept [a] concession” made at oral argument
and citing case law for the proposition that admissions are generally binding on the parties).
you had asked an official at BLM what is left to do under this now formed contract, the
answer is, the government’s duty under the contract . . . [i]s to convey the property.
MR. ROSENBERG: Correct.”). Nor could the government plausibly contend otherwise,
given that the Agency memorandum recommending that the Assistant Secretary
terminate the parties’ contract admitted that Silver State’s payment of the purchase
price balance into escrow “triggered the requirement that the BLM issue the patent
within 30 days, by December 28, 2012.” Appx. A190 (emphasis added).

       As noted above, although the parties executed multiple written agreements to
extend the government’s deadline to issue the patent, not one of those bilateral
agreements ever rescinded the initial escrow term obligating the Agency to transmit the
land patent, or even suggested that the Agency had the power to terminate – or
otherwise was considering terminating – the contract. See Appx. A96 (agreement that,
upon timely payment, “BLM will then provide the patent . . .”); id. at A106-07, 162-63,
183-85.

        “[A] breach of contract is a failure to perform a contractual duty when it is due.”
Trauma Serv. Grp., 104 F.3d at 1325. Silver State alleges that the parties’ contract
required the Agency to deliver the patent for the Property to Silver State by May 13,
2013 and that the Agency failed to perform this contractual duty. Compl. ¶¶ 43-44; see
Tr. at 95:13-14 (government asserting that “[t]here was no termination of the contract[,]”
but conceding that “[t]here was an order not to perform”).

       Thus, the only questions that remain are whether, as the government argues, it
nevertheless may avoid Silver State’s claim for breach of contract, as a matter of law,
because: (1) the contract between the parties incorporated statutory or regulatory
provisions (or contained some other term) that permitted the Agency to decline to
convey the Property (or to otherwise cancel the parties’ land sale contract),
notwithstanding that Silver State fulfilled all of its contractual obligations; (2) judicial
findings in the prior APA litigation between the parties foreclose Silver State’s breach of
contract claim here; or (3) Silver State already has received a full refund of its bid price
paid to the government and cannot demonstrate entitlement to any further damages.
The Court rejects each of these arguments, as well as the other grounds for dismissal
that the government presents in its motion.

       B.     The Government Has Not Identified Any Contract Term Excusing The
              Agency’s Performance Or Otherwise Permitting The Agency To Avoid
              Liability For Breach Of Contract

       The government’s primary contention in support of its motion to dismiss is that
“Silver State’s claims hinge on the [sic] whether the modified competitive sale . . . was
lawful on the sale’s closing date” – i.e., the date on which BLM was required to convey
the land patent for the Property to Silver State. Def. Reply at 9. In particular, the
government maintains that the contract at issue incorporated 43 U.S.C. § 1713(f).
According to the government, that statutory provision, when amalgamated with the
Secretary’s power in 43 U.S.C. § 1457 (and 43 U.S.C. § 2), gave the Agency the
contractual power (1) to reassess its decision to solicit offers utilizing modified
competitive bidding procedures at any point in time prior to conveying the patent for
the Property, and (2) to withhold the land patent from Silver State without breaching
the contract, even after Silver State completed payment, if the Agency determined that
modified competitive bidding procedures should not have been employed. Def. Reply
at 1, 12 (arguing that, “by making section [1713] a term of the auction sale contract, the
parties conditioned the BLM’s duty to deliver the patent on the Secretary’s final
judgment that the sale met the statute’s requirements”); Def. Mot. at 30 (“The Secretary
(acting through the Assistant Secretary) relied on [43 U.S.C. § 1457(4), (13)] to order the
cancellation of the unlawful sale to Silver State”); Tr. at 37:1-38:5 (referencing “Section 2
and Section 1457 of Title 43”). 45 The government’s argument all but completely hinges
on whether the parties incorporated 43 U.S.C. § 1713(f) into their contract. Tr. 37:12-15;
39:10-11; 90:2-12; 91:4-8.

       The Court need not resolve the full metes-and-bounds of the parties’ contractual
undertakings or decide with surgical precision which sentences in the NORA or other
documents are included (or not) in the parties’ contract. Rather, as noted above, the
Court assumes here – for the purposes of resolving the government’s motion – that all
of the above-referenced documents constitute the contractual documents binding upon
the parties, and holds only that: (1) 43 U.S.C. § 1713(f) was not incorporated in the
parties’ contract as a contract term; (2) even if that statutory provision or its related
implementing regulations were considered contract terms, they cannot be interpreted to
excuse the government’s failure to transfer the Property; and (3) no other contract term
or other statutory or regulatory authority identified by the government at this stage of
the case permits the government to avoid contractual liability. 46



45Tr. at 18:14-19:10 (arguing that “the only way there’s no breach of contract is if there is a term
of the contract that exempts . . . the Government from conveying the property” and that the
term which so exempted the government here is 43 U.S.C. § 1713(f)).
46“When the performance of a duty under a contract is due, nonperformance of that duty is a
breach of the contract.” Century Expl. New Orleans, LLC v. United States, 110 Fed. Cl. 148, 163
(2013) (citing Restatement (Second) of Contracts § 235 (1981)), aff’d, 745 F.3d 1168 (Fed. Cir.
2014).
              1.     The Parties’ Contract Did Not Incorporate 43 U.S.C. § 1713(f)

       As the government forthrightly concedes, “Silver State performed its end of the
transaction by timely making final payment of the purchase price.” Def. Mot. at 1. At
that point – and, as noted above, the government agrees – the only remaining
contractual duty belonged to the Agency (i.e., to convey the Property’s title to Silver
State via a land patent). Appx. A190; Tr. at 18:14-19 (“THE COURT: If you had asked
an official at BLM what is left to do under this now formed contract, the answer is, the
government’s duty under the contract . . . is to convey the property. MR. ROSENBERG:
Correct.”).

       Nevertheless, the government asserts that it had the contractual power to not
convey the land patent for the Property to Silver State – and otherwise avoid liability for
breach of contract – based on 43 U.S.C. § 1713(f) because it was a term of the parties’
contract. Def. Mot. at 47; Tr. at 37:12-15 (“THE COURT: [D]oes the government’s case
here in terms of no breach hang on 1713(f) alone, or no? MR. ROSENBERG: Yes. It
does depend on 1713(f).”).

       The Court rejects the government’s argument. Northrop Grumman Info. Tech., Inc.
v. United States, 535 F.3d 1339, 1343 (Fed. Cir. 2008) (whether a statute is incorporated
“by reference is a question of law”).

       For a contract to incorporate a document or statutory provision, “the
incorporating contract must use language that is express and clear, so as to leave no
ambiguity about the identity of the document being referenced, nor any reasonable
doubt about the fact that the referenced document is being incorporated into the
contract.” Id. at 1344 (emphasis added); see also St. Christopher Assocs. v. United States,
511 F.3d 1376, 1384 (Fed. Cir. 2008) (holding that a general reference to the agency’s
regulations did not incorporate a specific regulation promulgated by the agency or a
specific section of the agency's handbook); Smithson v. United States, 847 F.2d 791, 794–
95 (Fed. Cir. 1988) (holding that a contract did not incorporate an agency’s regulations,
despite the statement in the contract that it was “subject to the present regulations of the
[agency] and to its future regulations not inconsistent with the express provisions
hereof”).

       In St. Christopher Associates, the Federal Circuit explained that it is “reluctant to
find that statutory or regulatory provisions are incorporated into a contract with the
government unless the contract explicitly provides for their incorporation.” 511 F.3d at
1384 (discussing Smithson, 847 F.2d at 794). The Federal Circuit’s rationale, as
articulated in Smithson, is that wholesale incorporation of regulations into a contract
would allow a contracting party to “choose among a multitude of regulations as to
which he could claim a contract breach—and thus ‘[a] wholly new ground of obligation
would be summarily created by mere implication.’” 847 F.2d at 794 (quoting Eastport
S.S. Corp. v. United States, 372 F.2d 1002, 1010 (Ct. Cl. 1967)). The Federal Circuit’s
interpretive rule, in that respect, thus protects the government, as well as plaintiff
contractors.

       Moreover, even a contract’s reference to a specific statutory provision will not
suffice to incorporate that provision into the contract. In that regard, the Federal Circuit
has made crystal clear that its:

               cases support a principle in our Circuit that the language used
               in a contract to incorporate extrinsic material by reference
               must explicitly, or at least precisely, identify the written
               material being incorporated and must clearly communicate that
               the purpose of the reference is to incorporate the referenced material
               into the contract (rather than merely to acknowledge that the
               referenced material is relevant to the contract, e.g., as
               background law or negotiating history).

Northrop Grumman Info. Tech., Inc., 535 F.3d at 1345 (emphasis added). In Southern
California Edison Co. v. United States, 226 F.3d 1349 (Fed. Cir. 2000), for example, “the
contracts-in-suit did incorporate the terms and conditions of certain regulations by
specifically referring to the regulations (the text of which was attached to the contract as
an exhibit) ‘as fully and completely as though set forth herein [i.e., in the contract] in
length[.]’” Northrop Grumman Info. Tech., Inc., 535 F.3d at 1344 (emphasis added)
(quoting 226 F.3d at 1353). 47

       The Court finds that none of the documents – or provisions within those
documents – that comprise the parties’ contract at issue contains language that come
close to meeting the Federal Circuit’s standard for incorporation of 43 U.S.C. § 1713(f)
by reference.

       The government points to the NORA, but it contains nothing more than a
passing reference to 43 U.S.C. § 1713 generally in the “Summary” section of the Federal
Register entry containing the NORA. Appx. A73 (77 Fed. Reg. at 20,413). In particular,
the “Summary” merely notes that “[t]he sale [not the contract] will be subject to the
applicable provisions of . . . 43 U.S.C. 1713, and BLM land sale regulations at 43 CFR
2710.” Id. Thus, even assuming that BLM intended to incorporate that “Summary”

47The government’s supplemental brief contains a passing reference to Smithson, 847 F.2d at
794, Def. Supp. Br. at 2, but does not otherwise address that case or subsequent Federal Circuit
cases squarely on point.
language into the parties’ resulting contract, the “Summary” recites mere “background
law” (regarding how BLM would invite offers), the very type of language that the
Federal Circuit in Northrop Grumman, 535 F.3d at 1345, held does not constitute
incorporation language. Such language is very far, indeed, from the type of
incorporation language the Federal Circuit approved in Southern California Edison, 226
F.3d at 1353. And, while the Federal Circuit “does not require ‘magic words’ of
reference or of incorporation,” the NORA’s language falls well-short of the “widely-
used and judicially-approved language of incorporation, such as ‘is hereby
incorporated by reference’ or ‘is hereby incorporated as though fully set forth herein,’”
which the Federal Circuit has recommended agencies adopt to “avoid or at least
minimize the risk of having to litigate this issue.” Northrop Grumman Info. Tech., Inc.,
535 F.3d at 1346.

       Moreover, there is no reference – bare or otherwise – to 43 U.S.C. § 1713, let alone
specifically § 1713(f), elsewhere in the NORA. In particular, the NORA does not
reference 43 U.S.C. § 1713 in its “Terms and Conditions” section, which the Court views
as the only section of that document governing the parties’ contractual obligations
following Silver State’s tendering full payment of its promised purchase price.

       In sum, the NORA does not “clearly communicate that the purpose of the
reference” to 43 U.S.C. § 1713 “is to incorporate the referenced material into [a resulting]
contract.” Id. at 1345. And there is nothing whatsoever in the NORA’s passing
reference to 43 U.S.C. § 1713 pointing specifically to § 1713(f) as an “applicable term”
that might govern the parties’ future performance obligations under the contract.

       Although the bilateral August 17, 2012 escrow instructions also make a passing,
general reference to 43 U.S.C. § 1713 (but not specifically to 43 U.S.C. § 1713(f)) – and
albeit mistakenly citing to § 171648 – that document likewise does not contain any
language remotely approaching the type of explicit incorporation phraseology
approved by the Federal Circuit in Southern California Edison. The Court, again, is
cognizant that no “magic words” are required per se, Northrop Grumman Info. Tech., Inc.,
535 F.3d at 1346, but the escrow instruction document includes the relevant statute as
part of what amounts to “background language,” noting simply that “[t]he following
instructions are prepared for use in processing a land patent through escrow . . .
pursuant to [43 U.S.C. § 1713].” Appx. A96. The document does not specifically




48See Tr. at 32:9-16 (“THE COURT: . . . . the escrow instructions . . . miscite[] the code provision
of 1716. MR. ROSENBERG: It does. THE COURT: It should be 1713. MR. ROSENBERG:
Correct.”).
identify 43 U.S.C. § 1713(f) as a term governing the parties’ future rights or performance
obligations under the contract.

        In any event, the paragraph in the escrow instructions referencing the statute
strongly undermines the government’s position. In that bilateral agreement – that the
parties concur is included in the resulting land sale contract – the parties specifically
agreed that “[t]he transaction is found to be in the public interest and otherwise in
conformance with the laws and regulations.” Appx. A96. Given that the parties also
agreed that “[a]ny changes to these instructions must be in writing and signed by the
[sic] all the parties named below[,]” the government would have to explain how the
bare reference to § 1713 generally reserved to the Agency a unilateral contract right
sufficient to (1) override the parties’ agreed-upon finding regarding the transaction’s
“conformance with [applicable] laws and regulations,” (2) revisit the previous BLM
determination that modified competitive bidding procedures were appropriate, and (3)
refuse to convey the land patent to Silver State, while avoiding contract liability. Id.
The government, however – aside from insinuating that the parties’ joint finding was
premature – makes no real effort to reconcile the sentence referencing the statute, the
parties’ contractual finding regarding the legality of the transaction, and the
government’s subsequent invocation of the statute to attempt to avoid liability for
breach of contract. 49

       The government, in its motion to dismiss, even relies upon the legality finding in
the escrow instructions, but fails to acknowledge that the escrow instructions were
executed by both parties, formed part of the parties’ contract at issue, and could only be
amended by further agreement in writing. See Def. Mot. at 49 (quoting Appx. A96).
The government asserts that “[t]he escrow instructions . . . confirm the parties’
agreement that only a lawful sale would be consummated,” and “that the lawfulness of
the sale was reviewable after the modified competitive sale had been initially
authorized,” id., but the escrow instructions contain no such language at all. Again, the
government ignores: (1) that the land sale already had been completed; (2) the only
explicit contract language is the parties’ agreement regarding the lawfulness of the



49See Def. Supp. Br. at 2; Tr. at 33:14-17 (“MR. ROSENBERG: Well, these escrow instructions
were executed before the change in circumstances that rendered the sale to be out of compliance
with Section 1713(f).”); id. at 34:11-21 (“THE COURT: So the government's contention is that the
invocation of 1713(f) . . . beats, in some sense, [the contractual finding that the sale was lawful]?
[The government] has to. MR. ROSENBERG: Yes, but those are not inconsistent. They're not
inconsistent. So[,] the change in circumstances that rendered the sale to be out of compliance
with 1713(f) happened months after this recital about the sale being found to be in the public
interest and otherwise in conformance with the laws and regulations.”).
transaction; and (3) the government’s decision to refuse to issue the land patent
occurred after Silver State tendered the full contract price.

       The government might well have contended – and perhaps the Court could have
been persuaded to agree – that the legality-and-public-interest finding itself constitutes
nothing more than unenforceable preamble language. Lurline Gardens Ltd. Hous. P’ship
v. United States, 37 Fed. Cl. 415, 420 n.7 (1997) (“A recital that an agreement is governed
by or executed pursuant to a set of regulations does not incorporate those regulations
into the agreement.” (internal citations omitted)). But, the legality-and-public-interest
finding is in the same paragraph as the statutory citation. The government cannot have
its cake and eat it too, reading some parts of the relevant escrow agreement paragraph
into the parties’ contract, and other parts out.

        In any event, the government somewhat incredibly urges dismissal of Silver
State’s suit based on a later, unilateral determination of the Agency under
43 U.S.C. § 1713(f), notwithstanding the government’s concession that the finding of
legality was part of the parties’ signed contract. Tr. 33:25-34:10 (“THE COURT: The
secretary agrees in [the] contract that the transaction is in the public interest and in
conformance with the law. MR. ROSENBERG: That’s right.”). The contract did not
provide the Agency with such power.

       The government, in its supplemental brief, relies upon the United States
Supreme Court’s decision in Mobil Oil Expl. & Producing Southeast, Inc. v. United States,
530 U.S. 604, 614 (2000), for the proposition that “language making an agreement
‘subject to’ a specific statutory or regulatory provision suffices to incorporate that
provision into the contract.” Def. Supp. Br. at 2. The Supreme Court, however, held no
such thing; and, indeed, nothing in the Federal Circuit’s subsequent jurisprudence
suggests such a reading of Mobil Oil. See Northrop Grumman Info. Tech., Inc.,
535 F.3d at 1344 (discussing incorporation precedent and citing Smithson, 847 F.2d 791,
with approval, for the proposition that a clause which provided that the “agreement is
subject to the present regulations . . . is hardly the type of clause that should be read as
incorporating fully into the contract all the [agency] regulations”). In that regard, the
government’s supporting parenthetical quotation from Mobil Oil omits a critical part of
the Supreme Court’s summary, specifically the emphasized part of this quote: “The
Government does not deny that the contracts, made ‘pursuant to’ and ‘subject to’ [the
Outer Continental Shelf Lands Act (OCSLA)], incorporated OCSLA provisions as
promises.” 530 U.S. at 614 (emphasis added).

      Thus, in Mobil Oil, and contrary to the government’s suggestion, the Supreme
Court did not hold that “pursuant to” and “subject to” are sufficient phrases, in and of
themselves, to trigger a statute’s incorporation into a contract by reference. Rather, the
question of incorporation by reference simply was not contested in the Mobil Oil
litigation. Indeed, the trial court’s decision in that case demonstrates that there was a
great deal of additional contract language supporting incorporation by reference of the
statute at issue, thus making it hardly surprising that the parties in that case did not
litigate the issue. See Conoco Inc. v. United States, 35 Fed. Cl. 309, 318 (1996) (“In regard
to performance, Sec. 10 of the leases contain[s] a provision requiring that the lessees
comply with all regulations and orders relating to exploration, development and
production. The lease terms also contain a provision in Sec. 13 stating, ‘The Lessor may
suspend or cancel this lease pursuant to Section 5 of the [OCSLA] and compensation
shall be paid when provided by the Act.’”). 50

        Further still, the NORA does not make the parties’ resulting contract “subject to”
43 U.S.C. § 1713(f); rather, the “Summary” section of the NORA merely provides that
“[t]he sale will be subject to the applicable provisions of Sections 203 of the [FLPMA]
and BLM land sale regulations at 43 CFR 2710.” Appx. A73 (emphasis added). And, as
explained above, the NORA itself contemplated that the “sale” concludes when the
Agency receives bids – and, at the latest, upon BLM’s acceptance of a bid – pursuant to
the modified competitive sealed-bid process. Id. at A74 (“Within 30 days of the sale, the
BLM will, in writing either accept or reject all bids received.” (emphasis added)); see also
43 C.F.R. 2711.1-2 (providing that a “[NORA] offering for sale a tract or tracts of public
lands identified for disposal by sale shall be issued, published and sent to parties of
interest by the authorized officer not less than 60 days prior to the sale” (emphasis
added)). The Court need not decide the precise meaning of “sale” in the context of the
NORA; it is sufficient that “sale” clearly means something different from – and occurs
earlier than – “consummation” or “conveyance.” See Imation Corp. v. Koninklijke Philips
Elecs. N.V., 586 F.3d 980, 990 (Fed. Cir. 2009) (“A proper interpretation of a contract
generally assumes consistent usage of terms throughout the Agreement.”); Advanced
Commc'n Design, Inc. v. Premier Retail Networks, Inc., 46 F. App'x 964, 980–81 (Fed. Cir.
2002) (“This contention has some force, as it appeals to the maxim that the construction

50The government also cites Pub. Hous. Authorities Directors Ass'n v. United States, 130 Fed. Cl.
522 (2017). See Def. Supp. Br. at 2. That decision does not support the government’s position.
To the contrary, that case involved a contract that expressly incorporated regulations as
contractual obligations, employing just the type of incorporation language the Federal Circuit
has approved. 130 Fed. Cl. at 532 (“Thus, section 5 of the [agreements] specifies that the parties
must comply with the regulations ‘promulgated by HUD at Title 24 of the Code of Federal
Regulations, which are hereby incorporated into this [agreement] by reference as if fully set
forth herein, and as such regulations shall be amended from time to time.’” (emphasis in
original)).
of any legal document—like a statute, contract or patent—should try to give meaning to
every term in that document; otherwise, a lawyer or court will have erred by reading
the chosen words of the document into oblivion.”); Harris v. Dep't of Veterans Affairs, 142
F.3d 1463, 1467 (Fed.Cir.1998) (“We give the words of the agreement their ordinary
meaning unless the parties mutually intended and agreed to an alternative meaning.”);
Hunt Const. Grp., Inc. v. United States, 281 F.3d 1369, 1372 (Fed. Cir. 2002) (“The contract
must be considered as a whole and interpreted to effectuate its spirit and purpose,
giving reasonable meaning to all parts.”); McAbee Const. Inc. v. United States, 97 F.3d
1431, 1435 (Fed. Cir. 1996) (rejecting contract interpretation that “strips the provision of
its plain meaning”).

       In sum, the Federal Circuit’s binding rule regarding incorporation by reference is
straightforward:

              To incorporate material by reference, a contract must use clear
              and express language of incorporation, which unambiguously
              communicates that the purpose is to incorporate the referenced
              material, rather than merely acknowledge that the referenced
              material is relevant to the contract.

Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 826 (Fed. Cir. 2010) (emphasis
added). No contractual document at issue here contains the type of “clear and express
language of incorporation” that “unambiguously communicates” that the parties
intended to incorporate 43 U.S.C. § 1713(f) into their contract.

      Accordingly, the Court rejects the government’s argument that the parties
incorporated 43 U.S.C. § 1713(f) into their contract, such that the government could
invoke that provision to unilaterally terminate Silver State’s contract without
contractual liability.

              2.     43 U.S.C. § 1713(f) Was Not an Implied Term of the Parties’
                     Contract

       The Court rejects not only the government’s argument that “[t]he parties
expressly manifested their intent to condition the BLM’s delivery of the patent on a
favorable ‘necessary and proper’ determination[,]” Def. Mot. at 47 (emphasis added),
but also the government’s assertion, in the alternative, that a condition precedent to
performance by a party may be implied. Id. (“The ‘intention to make a duty conditional
may be manifested by the general nature of [the] agreement’ itself.” (quoting
Restatement (Second) of Contracts § 226 cmt. a) (alteration in original)). Notably, the
government cites no decision – from this Court,51 the Federal Circuit, or any other court
for that matter – supporting its argument that a condition precedent should be implied
based on the “general nature” of the parties’ agreement.

       This Court will not extract by implication from the parties’ written agreement a
condition precedent untethered to any of the contract’s terms. 52

       Silver State observes that the NORA included a provision in the “Terms and
Conditions” section indicating that “[t]he conveyance of this parcel will not be on a
contingency basis.” Appx. A75; Compl. ¶ 13. The government asserts that “this
phrase” – referred to herein as the “no contingency” language – “plainly concerns a
transfer of ownership made contingent upon . . . potential future uses of the land.” Def.
Mot. at 48 (emphasis in original). The government further argues that Silver State
cannot reasonably construe that phrase “to impair the Secretary’s statutory duty
[pursuant to 43 U.S.C. § 1713(f)], embodied in the contract.” Id. at 49. Although for the
purposes of resolving the government’s motion this Court does not definitively
interpret the “no contingency” language here, the government gives Silver State’s
invocation of that phrase very short shrift, see id. at 48-49, merely begging the question
whether 43 U.S.C. § 1713(f), in fact, is “embodied in the contract” – a premise this Court
already has rejected. Id. Moreover, even if the contract at issue had incorporated that
statutory provision, there is another, more plausible interpretation. In particular,
§ 1713(f) cannot be read – in light of the “no contingency” language – to provide BLM
with a post-contract formation reservation of rights to revisit and effectively nullify the
Agency’s earlier, legally valid decision to enter into a contract with Silver State via
modified competitive bidding.

       Were this Court to read the parties’ contract as containing an implied condition
precedent – in the form of the Agency’s power to engage in a post-contract formation
“necessary and proper” (re-)determination – the Court effectively would be holding
that the MPA itself constituted a term of the NORA and the parties’ resulting contract.
See Def. Reply at 16 (asserting “the land sale’s complete dependence on the existence of
the MPA itself”). That certainly seems to have been BLM’s effective assumption as


51This Court was able to locate only one decision even referencing that putative rule. See Korea
Dev. Corp. v. United States, 9 Cl. Ct. 167, 176 (1985) (quoting 2 Restatement of Contracts, Second,
§ 226 (1981), but noting that “the contract language itself . . . spells out the condition
precedent”).
52For the reasons explained infra, Section III.B.3., the Court rejects the government’s suggested
textual hook – the lone word “sale” – underpinning the assertion that BLM had a continuing
contractual right to revisit its decision to engage in a modified competitive bidding process until
issuance of the land patent.
articulated in its Recommendation Memorandum. Appx. A193 (“[E]ven though the
modified competitive bidding procedures did not guarantee that Silver State was going
to be the successful purchaser for the parcel, but for the now-terminated Development
Agreement [i.e., the MPA] and the parties’ representations about that Agreement and
their relationship, the BLM would not have agreed to utilize a modified competitive
process in the first place.”). 53

       The fatal flaw in the government’s position is that the reason the MPA was not
incorporated into the parties’ contract is that the NORA provided for a modified
competitive bidding process, contemplating that bidders other than Silver State could
purchase the land. If the Court accepts, as it must, the presumption that BLM was
acting in good faith, 54 the Agency by definition recognized the possibility that a bidder
other than Silver State could have been selected as the high-bidder and thus form a
contract with BLM for the Property. That being the case, the Court finds it difficult to
understand how the MPA could have been so critical to the parties’ contract, when no
other potential purchaser would have been bound by the MPA pursuant to the NORA.

       Moreover, had the Agency wanted to reserve to itself the right to cancel the
parties’ agreement without liability, the Agency well knows how to write such a
NORA. In Notice of Realty Action: Non-Competitive Sale in the Las Vegas Valley, NV,
71 Fed. Reg. 74,554-03 (Dec. 12, 2006), 55 BLM proposed to sell a “parcel under direct sale
procedures in accordance with the applicable provisions of the [FLPMA].” 71 Fed. Reg.
at 74,555 (noting that “the direct sale method is supported by 43 CFR 2711.3-3(1)”). 56 In

53The Court notes that BLM, in its recommendation memorandum, raised questions about
Silver State’s “veracity” – with respect to its “initial representations about the Development
Agreement” – “[s]ubsequent to the completion of the sale process.” Appx. A193 (emphasis added).
54“The presumption that government officials act in good faith is enshrined in our
jurisprudence.” Croman Corp. v. United States, 724 F.3d 1357, 1364 (Fed. Cir. 2013).
55 The Court takes judicial notice of this Notice of Realty Action “because it is a government
record published in a reliable source, the Federal Register.” Fairholme Funds, Inc. v. United
States, 147 Fed. Cl. 1, 21 n.6 (2019) (citing Murakami v. United States, 46 Fed. Cl. 731, 739 (2000),
aff'd, 398 F.3d 1342, 1354-55 (Fed. Cir. 2005); Democracy Forward Found. v. White House Office of
Am. Innovation, 356 F. Supp. 3d 61, 62 n.2 (D.D.C. 2019); Fed. R. Evid. 201). “Although a motion
to dismiss is normally limited to the allegations in a complaint, the court may consider facts
derived from sources subject to judicial notice without converting the motion into one for
summary judgment.” Fairholme Funds, Inc., 147 Fed. Cl. at 21 n.6 (citing Sebastian v. United
States, 185 F.3d 1368, 1374 (Fed. Cir. 1999)).
56Appx. A26-27 (BLM rejecting Henderson’s request that BLM utilize direct sale procedures).
The distinction between direct sale and modified competitive bidding is immaterial for the
Court’s point, which is that BLM knows how to build in contingencies to its NORAs but
declined to take the necessary steps here.
particular, BLM “proposed to [sell land] to Clark County for affordable housing
purposes.” Id. Significantly, that NORA omitted the “no contingency” language Silver
State cites in its Complaint, and expressly provided for a number of “terms, covenants,
and conditions” restricting Clark County’s use of the land following the sale, as follows:

             2. Clark County hereby covenants and binds all successors-
             in-interests to use the land conveyed only for affordable
             housing purposes for a period of fifteen (15) years . . . . This
             affordable housing covenant shall be deemed appurtenant to
             and to run with the ownership of the land conveyed. It shall
             be binding upon Clark County, its successors and assigns,
             during the time each owns the land.

             3. If, at the end of five (5) years from the date of the sale
             Patent, any land conveyed through this proposed sale is not
             being used for affordable housing purposes, at the option of
             the United States, those lands not so used shall revert to the
             United States, or, in the alternative, the United States may
             require payment by the owner to the United States of the then
             fair market value.

             4. All land conveyed shall be used only for affordable
             housing purposes during the period of affordability. If at any
             time all or any portion of the land conveyed is used for any
             purpose other than affordable housing purposes by Clark
             County, or any successor-in-interest, at the option of the
             United States, those lands not used for affordable housing
             purposes shall revert to the United States . . . .

             5. This use restriction and the reversionary interest may be
             enforced by the BLM[.]
Id.

        Completely putting aside the significance of the “no contingency” language BLM
omitted from the “direct sale” NORA summarized above, BLM quite clearly knows
how to – and does – employ express language in its land sale auctions and the resulting
contracts to make the promised conveyance contingent on particular usage of the sold
land. In Silver State’s case, Henderson even requested a direct sale. Appx. A22. BLM,
however, declined to engage in that type of sales process or transaction, declined to
include any express contingency, and, in particular, made no attempt to subject Silver
State’s bid or the Agency’s resulting acceptance to any particular post-purchase usage
requirement. Accordingly, the Court similarly declines to read such language into the
parties’ agreement or to otherwise infer a condition precedent that was not met. 57

              3.      Even Assuming 43 U.S.C. § 1713(f) Or Its Implementing
                      Regulations Were Incorporated In The Parties’ Contract, The
                      Government Did Not Have The Contractual Right To Terminate
                      The Land Sale Contract At Issue

       Even assuming that the parties’ contract incorporated 43 U.S.C. § 1713(f) or its
implementing regulations as contract terms, nothing in the plain language of
43 U.S.C. § 1713 or its implementing regulations – even broadly construed – supports
the government’s position here. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)
(“Our first step in interpreting a statute is to determine whether the language at issue
has a plain and unambiguous meaning with regard to the particular dispute in the case.
Our inquiry must cease if the statutory language is unambiguous and ‘the statutory
scheme is coherent and consistent.’” (quoting United States v. Ron Pair Enters., Inc., 489
U.S. 235, 240 (1989)); Sunoco, Inc. v. United States, 908 F.3d 710, 715 (Fed. Cir. 2018)
(“When the words of a statute are unambiguous, then, this first canon is also the last.”
(quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)), cert. denied, 140 S. Ct. 46
(2019)).

       First, as a general matter, the Court views 43 U.S.C. § 1713 as directing the
Agency’s conduct in the land sale process, as the NORA itself suggests, but absolutely
nothing in the statute’s plain language provides any terms akin to a post-bid acceptance
contract clause. Nor can that statutory provision plausibly be read to confer post-
contract formation rights on either party, and certainly not termination rights in favor of
the government after the Agency has accepted a bidder’s offer pursuant to the
procedures that the Agency selected and after that bidder has tendered the full price, as
Silver State did in this case. Cf. Technitrol, Inc. v. United States, 440 F.2d 1362, 1374 (Ct.
Cl. 1971) (discussing a patent and noting that “[t]he clause, as worded here, does not
purport to extend its reach chronologically, by mortmain, into the indefinite future.”).

       The government agrees that the “FLPMA does not prescribe any clauses for
inclusion in authorized land-sale contracts[,]” but argues that the “FLPMA simply
defines the Secretary’s statutory authority to dispose of Federal public lands, including
the conditions that must be met and the procedures that must be followed before selling


57If anything, this would appear to be a case of seller’s remorse. Appx. A193 (admitting that the
Agency was not revisiting or revising its “necessary and proper” decision, per se, so much as
concluding that “[a]bsent Silver State’s and Henderson’s representations [about the MPA], the
BLM would have likely sold the nominated parcel” via a different process (emphasis added)).
land out of Government control.” Def. Supp. Br. at 3-4 (emphasis added). The Court
agrees in-part and disagrees in-part. The government is correct that the statute defines
the Agency’s statutory authority to sell Federal land. The Court further agrees that
certain procedures must be followed “before selling” such land. Id. The Court holds,
however, that the government’s critical error is with regard to whether a “sale” already
had occurred when the government finally repudiated its contractual obligation to issue
the land patent to Silver State. As the Court’s decision demonstrates, the sale at issue
was complete – and the parties had formed a contract – long before the government
repudiated the contract. 58

        Second, § 1713(f), in particular, provides only that the Agency shall conduct
“[s]ales of public lands under this section” using “competitive bidding procedures”
unless the Secretary “determines it necessary and proper” to sell “lands with modified
competitive bidding or without competitive bidding.” 43 U.S.C. § 1713(f). Contrary to
the government’s proposed interpretation of that provision, § 1713(f) only requires a
“necessary and proper” decision prior to initiating the sale process via the NORA; there
is no language even hinting at the Agency’s power to revisit and undo its decision to
engage in modified competitive bidding after (1) the Agency already has accepted a bid
and (2) the winning bidder has paid the full purchase price.

        The government agrees that “[t]his ‘necessary and proper’ determination must
be made by the BLM before holding a modified competitive auction,” but maintains
that such a determination “may be revisited and reversed by the Secretary at any time
before the patent issues.” Def. Mot. at 6. The government, however, points to no
operative statutory language whatsoever supporting its expansive reading, aside from
relying on § 1713(f)’s reference to a single word – “sales.” Def. Mot. at 46 n.13. The
government’s view is thus: “sale” means every action up to and including BLM


58Significantly, this holding is entirely consistent with the central holding of the district court
and circuit court in the APA litigation that the Agency retained the power and acted reasonably
– under various statutory and regulatory authorities – to refuse to transfer the patent. See, infra,
Section IV. In other words, whether a court may order the Agency to transfer the Property “out
of Government control” is a question that is separate and distinct from the issue of whether the
government was contractually obligated to do so, and must therefore pay breach damages for
failing to do so. Notably, while the district court had the power to issue an injunction to order
the Agency to comply with the law – were it found to be in violation – neither this Court nor the
district court has the power to order specific performance of the contract itself, while only this
Court has the power to award contract damages. Kanemoto v. Reno, 41 F.3d 641, 644–45 (Fed.
Cir. 1994) (“The remedies available in [the Court of Federal Claims] extend only to those
affording monetary relief; the court cannot entertain claims for injunctive relief or specific
performance, except in narrowly defined, statutorily provided circumstances not here
pertinent.”).
conveying the land patent to the purchaser, and § 1713(f)’s directive that the Secretary
“may sell . . . land[] with modified competitive bidding” where the Secretary
“determines it necessary and proper” means that the Secretary may revisit that
determination at any point prior to transfer of the land patent. That lone word “sale,”
however, does not secretly encode an escape hatch for the Agency, at least not as
defined in the context of the statute, the regulations, the NORA, or the other documents
upon which the government itself has relied here. To the contrary, BLM repeatedly
refers to the NORA itself as the “proposed sale” and to the Agency’s acceptance of a
sealed-bid as constituting “the sale”:

           •   “The successful bidder will be allowed 180 calendar days from the date of
               the sale to submit the remainder of the full purchase price.” Appx. A74
               (emphasis added).
           •   “Within 30 days of the sale, the BLM will, in writing, either accept or reject
               all bid received.” Id. (emphasis added).
           •   “No contractual or other rights against the United States may accrue
               until the BLM officially accepts the offer to purchase, and the full bid
               price is submitted by the 180th day following the sale.” Appx. A75
               (emphasis added).
           •   “The remainder of the full bid price for the parcel must be received no
               later than 4:30 p.m., Pacific Time, within 180 days following the day of the
               sale.” Id. (emphasis added).
The NORA also refers to when lands are “[c]onveyed out of Federal ownership,” thus
making a clear distinction between the date of sale and the conveyance. Id. at A76; see
also Tr. at 26:1-4 (government conceding that 43 U.S.C. § 1713(f) does not use the phrase
“consummation of sale”).

        Accordingly, while the government focuses on the definition of “sale” in
isolation, its argument ignores that parties may enter into a contract for sale that results,
ultimately, in a conveyance. In that regard, the need for a conveyance presumes the
existence of a prior agreement or sale. See, e.g., Conveyance, Black’s Law Dictionary
(11th ed. 2019) (“The transfer of a property right that does not pass by delivery of a
thing or merely by agreement.”); Contract, Black’s Law Dictionary (11th ed. 2019)
(defining the term to include a “[a] contract to sell goods at a future time”); Lavi v.
Pelican Inv. Corp., 36 F. App’x 923, 924 (9th Cir. 2002) (holding that a particular
“document operate[d] as an agreement to transfer the property in the future rather than
an immediate conveyance”).

       Third, BLM’s own contemporaneous documents support Silver State’s position
here. BLM’s June 12, 2012 Acceptance Letter refers to June 4, 2012, when BLM opened
and considered bids, as “the sale date.” Appx. A95. Moreover, even the
Recommendation Memorandum to the Assistant Secretary – in which BLM officials first
recommended that the Agency “not issue the patent to Silver State” – refers to the date
of bid acceptance (June 12, 2012) as “following a modified competitive sale.” Id. at A189
(emphasis added). If that was not sufficiently clear contemporaneous evidence of the
Agency’s views, the Recommendation Memorandum explicitly recounts that “the
parcel was sold using a modified competitive process.” Id. (emphasis added); see id. at
A190 (“The modified competitive sale was held on June 4, 2012.”); id. at A193 (noting
that the government declined to transfer the land patent “[s]ubsequent to the completion of
the sale process” (emphasis added)); see also Reliable Contracting Grp., LLC v. Dep't of
Veterans Affairs, 779 F.3d 1329, 1332 (Fed. Cir. 2015) (“Generally, evidence of
contemporaneous beliefs about the contract is particularly probative of the meaning of a
contract.”); Blinderman Constr. Co. v. United States, 695 F.2d 552, 558 (Fed. Cir. 1982) (“It
is a familiar principle of contract law that the parties' contemporaneous construction of
an agreement, before it has become the subject of a dispute, is entitled to great weight in
its interpretation.”). 59




59A thought experiment is warranted here. The Agency issued its final decision, declining to
transfer the land patent to Silver State – and purporting to cancel the parties’ transaction – on
May 10, 2013, just three days prior to the revised, contractually agreed-upon due date for land
patent delivery of May 13, 2013. Compare Appx. A195, with id. at A183. If the Agency had
issued its final decision after the May 13, 2013 land patent due date, would the government now
admit its breach of contract? According to the government’s position thus far, the answer to
that question must be “no,” given the government’s assertion that the Agency reserved a right
to revisit its decision to sell the land, and thus to cancel the sale without liability, all the way up
until the Agency provided the land patent to Silver State. If that is the case, however, was there
ever a true contractual deadline – be it May 13, 2013, or any other – by which date the contract
required BLM to provide the land patent to Silver State? If the answer to that question is also
“no,” this Court would have to conclude that the parties’ putative contract was illusory. That is
something this Court will not do, based on the law as explained above, as well as the record
evidence the government included with its motion. See Hernandez v. Dep’t of Def., 325 F. App’x
905, 908 (Fed. Cir. 2009) (declining to construe a “settlement agreement as giving the agency the
option not to” perform because such an interpretation “would come close to rendering the
settlement agreement illusory[,]” and holding that “[s]uch a construction is disfavored”).
Alternatively, if the government concurs that May 13, 2013 constituted a hard deadline for BLM
to provide Silver State with the land patent, where is the contractual language providing a
limiting principle that the Agency may cancel the transaction without liability, but only until
May 13, 2013? Would not the power to entirely cancel the transaction before May 13, 2013
necessarily imply the lesser power to delay the conveyance until after that date if the “necessary
and proper” determination remained under review? And if that is the case, how could the
government agree, to begin with, that May 13, 2013 constituted an enforceable deadline? In
short, the government’s interpretive approach yields more questions than it answers.
       Fourth, the regulation governing BLM’s issuance of the NORA further confirms
the Court’s interpretation that the “sale” here occurred as early as the date upon which
BLM opened the sealed bids, June 4, 2012, and certainly no later than bid acceptance on
June 12, 2012, or Silver State’s final payment on November 28, 2012. See
43 C.F.R. § 2711.1-2(a) (providing that a “[NORA] offering for sale a tract or tracts of
public lands identified for disposal by sale shall be issued, published and sent to parties
of interest by the authorized officer not less than 60 days prior to the sale.” (emphasis
added)).

       If the term “sale” in 43 U.S.C. § 1713(f) were meant to include the entire period
up to BLM’s conveyance of the Property, the implementing regulation would make no
sense because a successful bidder has 180 days from bid opening to submit full
payment. But, if the government were correct, and “sale” includes the entire period up
to conveyance, BLM could have issued the NORA after bid opening and acceptance; of
course, that is nonsensical. Clearly, the date of “sale” is the date of bid opening, and the
NORA must be issued at least 60 days prior to that date, while the successful bidder
must submit full payment no later than 180 days subsequent to that date.

       The government’s attempt to define “sale” in isolation, divorced from the entire
context of the record – including the operative statutes and regulations – must be
rejected. Sunoco, Inc., 908 F.3d at 715 (“Whether the statutory language is unambiguous
is determined by the text itself, the context in which the language is used, and the
statutory scheme as a whole.”), cert. denied, 140 S. Ct. 46 (2019); Vazquez-Claudio v.
Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013) (“In construing regulatory language, we must
read the disputed language in the context of the entire regulation as well as other
related regulatory sections in order to determine the language's plain meaning.”).

        If anything, 43 U.S.C. § 1713(f), its implementing regulations, and the NORA all
support the Court’s view that the parties entered a binding contract for the sale of the
Property, at the latest, when Silver State tendered the full purchase price on November
28, 2012. In that regard, the statute expressly limited the Agency’s options following
the receipt of sealed-bids. The Agency may “accept[] or reject[]” . . . any offer to
purchase” the land so long as it is “[1] in writing [and] . . . [2] no later than thirty days
after the receipt of such offer . . . unless the offeror waives his right to a decision within
such thirty-day period.” 43 U.S.C. § 1713(g) (emphasis added). “Prior to the
expiration” of that 30-day period, “the authorized [Agency] officer” may even:

              refuse to accept any offer or may withdraw any tract from sale if
              he determines that: (1) Consummation of the sale would be
              inconsistent with the provisions of any existing law; or (2)
              Collusive or other activities have hindered or restrained free
               and open bidding; or (3) Consummation of the sale would
               encourage or promote speculation in public lands.

43 C.F.R. § 2711.3-1(f) (emphasis added). 60 Thus, the implementing regulation 61 covers
the precise case that the Agency asserted with respect to Silver State – i.e., where the
“[c]onsummation of the sale would be inconsistent with . . . law” – and yet the
government contends that there is no time limit cabining its power to terminate a
contract for purchase of the Property. Under the government’s view of those provisions
and the contract at issue – that the Agency somehow possessed a superseding power to
terminate the transaction without liability at any time up to conveyance – the 30-day
time limit is rendered entirely superfluous. Put differently, the government fails to
explain why the statute, regulation, and NORA would require the Agency to make a
decision on particular bids – or the sale in general – “no later than 30 days after receipt”
of offers, if a bid’s acceptance can always effectively be revoked at a later date where the
Agency changes its view of the transaction. Those provisions “would be meaningless
had [the regulations] simultaneously achieved the same end with silence.” Maine Cmty.
Health Options v. United States, __ U.S. __, 2020 WL 1978706, at *10 (U.S. Apr. 27, 2020).
Such an interpretation cannot be squared with the fundamental principle “of contract
interpretation . . . that no contract provision is made inconsistent, superfluous, or
redundant.” Lockheed Martin IR Imaging Sys., Inc., 108 F.3d at 322 (citing cases).

       The text of the FLPMA’s implementing regulation confirms the Court’s reading
of § 1713(f). Although the government relies upon 43 C.F.R. § 2711.3-2 to argue that the
Agency was permitted to revisit its decision to engage in modified competitive bidding
at any time prior to conveyance, see, e.g., Def. Mot. at 46, 49, the text of that provision
weighs against the government’s interpretation of § 1713(f). In particular, § 2711.3-2(a)
provides that “[p]ublic lands may be offered [by BLM] for sale utilizing modified
competitive bidding procedures when the authorized officer determines it is necessary

60As detailed above, this language – or virtually identical language – was included in the
NORA. See, e.g., Appx. A74 (“Within 30 days of the sale, the BLM will, in writing, either accept
or reject all bids received.”).
61Admittedly the implementing regulations – in terms of the incorporation issue – present a
closer call given the repeated references to them in the NORA. Appx. A74 (citing
43 C.F.R. §§ 2711.3-1(f), (g), 2711.3-2(a), (a)(1)(i), (c) in the “Supplementary Information”
section); Appx. A75 (citing 43 C.F.R. § 2711.3-1(d)); Appx. A76 (citing 43 C.F.R. § 2711.3-1(f)).
But, similar to the statute itself, those regulatory provisions cover only “Procedures for Sale,”
and do not by their terms create any post-bid acceptance contractual rights or obligations in
favor of either party. See 43 C.F.R. § 2711.3 (Procedures for Sale). Had Silver State taken
exception in its bid to those regulatory sale procedures specified in the NORA, the bid may
have been invalid – i.e., in light of governing sealed-bid or auction law – but that does not mean
the regulatory provisions yield post-contract formation rights.
in order to assure equitable distribution of land among purchasers or to recognize
equitable considerations or public policies.” 43 C.F.R. § 2711.3-2(a) (emphasis added).
Thus, the “‘necessary and proper’ determination” – as the government calls it, see Def.
Mot. at 46 – was a condition precedent only to BLM’s decision to “offer[]” the Property
for sale, which occurred when the Agency issued the NORA. And, § 2711.3-2(a), by its
terms, only applies prior to, and perhaps while, the NORA is pending. Once the
government’s IFB ripens into a contract – at the latest following bid acceptance and the
bidder’s final payment – the “offer [of] sale” is no longer operative, and there is no
predicate for the government to reconsider its chosen method of sale.

         Indeed, the Agency’s NORA further confirms that, even if the parties’ contract
had incorporated 43 U.S.C. § 1713(f) or its implementing regulations, such terms would
not have provided the Agency with the authority to revisit its decision to utilize
modified competitive bidding procedures at any point before patent issuance (i.e., after
the parties entered into the contract). In particular, the NORA provided that
“[i]nterested parties may submit written comments regarding the proposed
sale . . . until May 21, 2012.” Appx. A73 (77 Fed. Reg. at 20,413). The NORA
subsequently provided:

             Any adverse comments regarding the proposed sale will be
             reviewed by the BLM Nevada State Director or other
             authorized official of the Department of the Interior who may
             sustain, vacate, or modify this realty action. In the absence of
             any adverse comments, this realty action will become the final
             determination of the Department of the Interior.

Id. at A76 (77 Fed. Reg. at 20,416) (emphasis added). Thus, if 43 U.S.C. § 1713(f) or its
implementing regulations provided the Agency with any contractual right to revisit its
decision to utilize modified competitive bidding procedures, the contract documents
provide that the Agency had to exercise that right prior to May 21, 2012. Put
differently, the “adverse comments” provision, quoted above, suggests that there will
be a singular final determination, not subject to continual reevaluation. Erie Coal & Coke
Corp., 266 U.S. at 520 (“The terms and conditions of the sale as set forth in the
advertisement were binding alike upon the United States and the bidders.”).

       Accordingly, even assuming for the sake of argument that parties’ contract
incorporated the statutory or regulatory provisions, the Court holds that none of those
provisions contains any language that even plausibly may be interpreted to provide the
Agency with any contractual right to rescind its acceptance of Silver State’s bid,
terminate the parties’ resulting land sale contract, or to otherwise avoid contractual
liability for failing to convey the subject Property to Silver State.62

               4.      The NORA’s Plain Language And Precedent Both Support This
                       Court’s Interpretation Of The Contract At Issue

        The Court finds that yet another reason for rejecting the government’s motion to
dismiss is the repeated statement in the NORA that “[n]o contractual or other rights
against the United States may accrue until the BLM authorized officer officially accepts
the high bid offer to purchase and the full bid price is paid.” Appx. A74. 63 The
necessary implication – and, indeed, the only reasonable interpretation of that language
– is that once BLM “accepts the high bid offer . . . and the full bid price is paid,” the
purchaser’s contractual rights do accrue. Given the government’s admission that the
only contractual duty remaining, once Silver State tendered the full purchase for the
Property, was the government’s obligation to issue the land patent to Silver State, when
would contractual rights against the United States accrue? The answer, according to the
government, would seem to be “never” – or “almost never” – if the Court were to agree
with the agency’s putative continuing, near plenary contract power 64 to cancel the
transaction without liability. Not only is this Court unable to locate such a broad
reservation of rights anywhere within the language of the contract documents or the
governing statute or regulations, the government’s interpretation would render the
agreement at issue all but illusory, particularly in light of the parties’ contractual
finding that the transaction, in fact, was lawful. Stockton E. Water Dist. v. United States,
583 F.3d 1344, 1358 (Fed. Cir. 2009) (noting “the obvious question of whether making
the contracts subject to whatever future federal law or policy may hold would make the
contracts illusory”); Hernandez, 325 F. App’x at 908 (declining to construe a “settlement
agreement as giving the agency the option not to” perform because such an
interpretation “would come close to rendering the settlement agreement illusory[,]” and
holding that “[s]uch a construction is disfavored” (quoting 5 Margaret N. Kniffin,
Corbin on Contracts § 24.22 at 234–35 (rev. ed. 1998) for the proposition that “‘[w]hen the

62The absence of such contractual language stands in stark contrast to the advertisement at
issue in Erie Coal, in which the government explicitly reserved, and thereafter exercised, the
right to rescind a sale at auction prior to a specific date. 266 U.S. at 520-21.
63See also Appx. A75; 43 C.F.R. § 2711.3-1(g) (“Until the acceptance of the offer and payment of
the purchase price, the bidder has no contractual or other rights against the United States . . . .”).
64“Thus, the Secretary has the authority to ensure at every stage of a transaction (nomination,
auction, acceptance and patent issuance) that each transfer of land out of federal ownership
remains in the public interest.” Defendants' Memorandum in Opposition to Plaintiff's Motion
for Summary Judgment and in Support of Federal Defendants' Cross-Motion for Summary
Judgment in Silver State I at 14, 2014 WL 12691273 [hereinafter “Def. Opp. in Silver State I”].
words of the contract indicate that a party has promised to perform, such words should
not be interpreted so as to make the promise illusory, even if the context may show an
intent to leave performance subject to the party’s broad discretion.’”)).

         Several Department of Interior administrative tribunal decisions support the
Court’s conclusions here. In Exxon Corp., analyzing nearly identical contract terms to
those at issue here (although dealing with the award of an oil and gas lease), the Interior
Board of Land Appeals (“IBLA”) 65 held that where the bidder “was obligated to tender
the balance of the . . . bid . . . in 30 days[,]” and that otherwise a bid deposit would be
forfeited, such a “forfeiture constitutes ‘liquidated damages’ assessed against a high
bidder for failure to fulfill its contractual obligations.” 97 IBLA 330, 335 (May 21, 1987).
Accordingly, “[t]he Government, on the other hand, by accepting the high bid bound
itself to issuance of the lease upon submission by the high bidder of the necessary
documents and balance of the [bid]. Indeed, without this mutuality of consideration,
there would be no basis upon which to enforce the forfeiture of the bid deposit. Thus,
once the Government notifies a high bidder that the bid is acceptable, the Government
has contractually obligated itself to issue the lease[.]” Id. 66

       In Chester F. Dawson, 73 IBLA 27, 28 (May 9, 1983), the appellant applied to lease
a 2.5-acre tract of land in Nevada. BLM then sent the appellant a communication which
invited the appellant “to purchase the tract and specified the procedure he should
follow to do so.” Id. The appellant “advised BLM that he wished to purchase the tract
and submitted” payment in accordance with BLM’s instructions. Id. at 30.

65 “The Interior Board of Land Appeals (IBLA) is an appellate review body that exercises the
delegated authority of the Secretary of the Interior to issue final decisions for the Department of
the Interior. Its administrative judges decide appeals from bureau decisions relating to the use
and disposition of public lands and their resources, mineral resources on the Outer Continental
Shelf, and the conduct of surface coal mining operations under the Surface Mining Control and
Reclamation Act.” Office of Hearings and Appeals, Dep’t of the Interior, About the Interior Board
of Land Appeals, https://www.doi.gov/oha/organization/ibla (last visited April 23, 2020).
66The government in this case makes no attempt to square its view of Silver State’s contract
rights with the NORA’s provision entitling BLM to retain a successful bidder’s deposit where
that bidder fails to transmit the total purchase price by the deadline. See Warmuth, 108 IBLA
130, 134-35 (April 3, 1989) (“[T]he District Manager duly notified appellant that his purchase of
the property had been approved and his payment of the purchase price which BLM had
established had been accepted. It seems clear that, under 43 CFR 2711.3-1(g), at that point in
time, contractual rights vested in appellant.”); Exxon Corp., 97 IBLA 330, 334-35 (May 21, 1987)
(“[O]nce the authorized officer has communicated acceptance of a high bid he is thereafter
estopped from rejecting the bid because of a perceived inadequacy in the amount
tendered . . . .[R]ather than exercise the reserved authority to reject any or all bids, the State
Director affirmatively accepted appellant’s bid. By doing so, contractual obligations arose
binding both appellant and the Department.”).
Subsequently, however, BLM notified the appellant that BLM “discovered that the tract
[the appellant] had applied for was subject to prior existing mining claims.” Id. BLM
refused to “issue a patent to Dawson until the question of the validity of the claims was
resolved.” When the mining claims were finally resolved, “BLM advised [the
appellant] that it could process his claim, but that, since the Small Tract Act of June 1,
1938, supra, had been repealed in 1976, its provisions no longer applied, and that he
could therefore only purchase the parcel at current market value, which would be
determined by a new appraisal.” Id.

        Implicitly rejecting the sort of argument the government makes in this case, the
IBLA found that BLM’s original communication “was an unequivocal offer to sell [the
appellant] this tract and invited acceptance merely by submitting payment in this
amount.” Id. at 31. Further, the IBLA found that the appellant “did accept the offer by
making payment of the demanded amount on March 14, 1956, at which point a binding
contract to convey the property to appellant was created, subject only to any superior
rights in the tract held by others.” Id. Accordingly, the IBLA held that “[s]ince there
was a binding contract to sell the tract to appellant for $275, BLM may not now increase
the price of the tract.” Id. According to the government in Silver State’s case, BLM
could have canceled the parties’ contract without liability based, for example, upon the
Agency’s revised view of the fair market value (because the FLPMA only permits sales
of land at fair market value and the “sale,” argues the government, is ongoing until
conveyance is completed). As the IBLA itself held, however, such a position is entirely
inconsistent with the notion of a “binding contract” into which the government admits
it entered with Silver State. 67




67Similar to the agency’s position in Dawson, the government here argues that the Secretary
retained the contractual power to review and reverse any number of decisions that BLM
officials made during the sale process, any one of which could have served – in the
government’s view – as a viable basis for not conveying the land patent to Silver State and
avoiding liability for breach. See Tr. at 28:4-10 (“If the secretary in exercising the superintending
authority over the sales of public lands determines there has been some defect in compliance
with the regulations of the statute for determining fair market value, then, yes, the secretary
would have the authority to terminate the sale, but to refund the money as well.”). Under the
government’s interpretation, the Agency for all practical purposes is not bound by contract
until it actually performs the contract by transferring the land patent, given the myriad factors
the Secretary would be allowed to revisit prior to conveyance (notwithstanding the existence of
an otherwise valid contract). See, e.g., 43 U.S.C. §§ 1713(a)(1)-(3) (specifying various land
disposal prerequisites); id. at § 1713(d) (sales of public land must be “at a price not less than
their fair market value”); 1713(e) (for agriculture purposes, size of tracts sold cannot be “larger
than necessary to support a family-sized farm”).
       D.C. Circuit precedent also supports the Court’s conclusion here. In Willcoxson v.
United States, 313 F.2d 884 (D.C. Cir. 1963), the Secretary of the Interior conducted a sale
of public land pursuant to the Isolated Tracts Act and its implementing regulations.
The then-applicable regulation, 43 C.F.R. § 250.5, provided that:

               until the issuance of a cash certificate, the authorized officer
               may at any time determine that the lands should not be sold,
               the applicant or any bidder has no contractual or other rights
               as against the United States, and no action taken will create
               any contractual or other obligation of the United States.

313 F.2d at 886. 68 The plaintiff bid on a tract of land and was declared the high bidder
and “purchaser,” but the Secretary’s designee did not make timely delivery of the cash
certificate to the plaintiff “because of a heavy backlog of work.” Id. Subsequently, the
agency became aware of the presence of valuable minerals on the land, the Secretary
declined to convey the cash certificate, and, “inasmuch as cash certificates had not
issued, [declared] the sales were ‘null and void.’” Id. at 886-87. The plaintiff sued “to
compel the Secretary to issue cash certificates.” Id. at 887.

       The D.C. Circuit held:

               [b]y providing that the authorized land officer may decide not
               to sell at any time prior to the issuance of a cash certificate, the
               regulation in effect denotes issuance of the certificate as
               acceptance of the applicant's proposal. . . . Until acceptance,
               no contract rights arose and no equitable title vested. . . . In
               the present case, since no rights in the tracts ever vested, the
               Manager was free to consider any facts discovered before the
               issuance of a cash certificate.

Id. at 888. Thus, the D.C. Circuit’s decision concluded, by necessary implication, that
had the Secretary issued the cash certificate, thereby formally accepting the bid and
forming a contract, the Secretary would not have been free to consider new facts and
cancel the sale. 69


68A “cash certificate” is a “final certificate issued in connection with a cash entry.” Bureau of
Land Management, Department of Interior, Glossaries of BLM Surveying and Mapping Terms 9
(1980). A cash certificate is “evidenc[e] [of the] acceptance of an offer to purchase public land.”
Ness Inv. Corp. v. U.S. Dep’t of Agr., Forest Serv., 512 F.2d 706, 714 (9th Cir. 1975).
69Neither the parties, the district court, nor the D.C. Circuit addressed Willcoxson in Silver State I
or II. The Court finds it difficult to square the Silver State I and II decisions with the D.C.
        Returning to § 1713(f), that statutory provision, at best, is akin to a FAR provision
governing an agency’s selection of a particular contracting method, but that does not
yield any contractual rights or obligations in a resulting contract (even if the provision
had been incorporated verbatim). For example, where the government exercises its
discretion to engage in a sole-source procurement (see, e.g., FAR 6.302-1), and then
awards a contract without competition, the government cannot later reconsider its
written justification for the sole-source award and unilaterally terminate the
procurement without paying damages. Indeed, “[t]he fact that a contract may be
inconsistent with a statutory or regulatory requirement does not ipso facto render the
contract void.” Seh Ahn Lee v. United States, 895 F.3d 1363, 1372 (Fed. Cir. 2018). 70 The
government does not contend that the parties’ contract here was void ab initio, see Tr. at
39:22-24, but rather effectively argues that “another procedure would have been
preferable or better attuned to the aims of the competitive bidding legislation.” John
Reiner & Co. v. United States, 325 F.2d 438, 440 (Ct. Cl. 1963) (“If the contracting officer
has viewed the award as lawful, and it is reasonable to take that position under the
legislation and regulations, the court should normally follow suit.”). Here, the
government concedes the parties’ contract was valid when formed, resulting from a
sales process that was lawful when conducted, and nothing in § 1713(f) permits the
Agency to undo its selected method of sale.

               5.     No Other Contract Terms Permit the Government to Avoid Its
                      Contractual Obligation to Silver State

      Although the government concedes that its motion to dismiss hinges on the
incorporation of 43 U.S.C. § 1713(f) in the contract at issue – an interpretation this Court


Circuit’s decision in Willcoxson. If the Secretary’s designee is always free to revisit a decision
and consider new facts before issuing a patent (as Silver State I and II hold), why did the D.C.
Circuit hold in Willcoxson that “since no rights in the tracts ever vested, the Manager [the
Secretary’s designee] was free to consider any facts discovered before the issuance of a cash
certificate”? 313 F.2d at 888 (emphasis added). The necessary implication of Willcoxson appears
to be that a proper, legal acceptance – as occurred in this case – would have resulted in vested
contract rights that Interior could not revisit even prior to formally transferring the property.
70To the contrary, “[i]nvalidation of the contract is not a necessary consequence when a statute
or regulation has been contravened, but must be considered in light of the statutory or
regulatory purpose, with recognition of the strong policy of supporting the integrity of
contracts made by and with the United States.” Am. Tel. & Tel. Co. v. United States, 177 F.3d 1368,
1374 (Fed. Cir. 1999) (en banc). The Court rejects the notion that 43 U.S.C. § 1713(f) was
somehow contravened – or that it could be contravened once Silver State tendered the total bid
price for the Property – but the government remains free to engage in discovery regarding
whether Silver State’s representations to the Agency may provide grounds for the government
to argue that the contract should be held invalid or voided. See infra, Section VI.
rejected above – the government at times contends that its power to terminate the
transaction without liability depends upon the application of yet other statutory
provisions, namely 43 U.S.C. § 1457 and 43 U.S.C § 2. See Def. Mot. at 30 (“The
Secretary (acting through the Assistant Secretary) relied on [43 U.S.C. § 1457] to order
the cancellation of the unlawful sale to Silver State.”); Def. Reply at 21 (“Finally, it is not
‘absurd’ for the Secretary ‘to continuously monitor’ whether a sale of Federal public
land satisfies the requirements of FLPMA, including ‘after [an] auction sale has
concluded.’ Congress has ‘charged the Secretary with precisely that responsibility.
43 U.S.C. § 1457”); Appx. A192; Tr. at 37:1 - 38:5 (“Section 2 and Section 1457 of Title 43,
which not only authorize, but charge the secretary with the final superintending
authority to ensure that all sales of public lands are in compliance with the laws.”).

        Those other statutory provisions – whether considered independently or
collectively – do not yield the government a contractual right to revisit the decision to
utilize modified competitive bidding procedures to solicit offers, particularly not after
accepting Silver State’s bid and its payment of the total bid price, because the parties’
contract does not incorporate any of those additional provisions. There is simply no
contractual document that contains even a bare reference to 43 U.S.C. § 1457 or 43
U.S.C. § 2. See generally Appx. A73-76, A84-101, A106-08, A162-64, A183-85.
Consequently, the contract, with respect to 43 U.S.C. § 1457 and 43 U.S.C § 2, does not
meet our Circuit’s standard for incorporation by reference, as explained above. See
Northrop Grumman Info. Tech., Inc., 535 F.3d at 1345 (the “reference must explicitly, or at
least precisely, identify the written material being incorporated and must clearly
communicate that the purpose of the reference is to incorporate the referenced material
into the contract”). To the extent the government argues that the contract incorporates
those statutes by reference to the FLPMA or some other act of Congress, the Court finds
that position contrary to the rationale underlying the binding precedent in this Circuit.
See St. Christopher Assocs., 511 F.3d at 1384 (disfavoring “wholesale incorporation of
regulations into a contract” and the creation of ‘[a] wholly new ground of obligation . . .
by mere implication.’” (quoting Smithson, 847 F.2d at 794)).

        Second, whatever authority those additional statutory provisions confer on the
Agency, generally, none of them can be transmogrified into contractual rights or into
extra-contractual powers permitting the government to avoid liability here for breach of
contract. While the Court does not question the preclusive effect of the decision in
Silver State’s APA litigation regarding the Secretary’s plenary power not to convey the
land patent to Silver State, 71 the Court holds, as a matter of contract interpretation, that
had the parties’ contract incorporated the statutory provisions at issue as contract terms


71   See infra, Section IV.
(which the contract did not), such terms would not provide the Agency with the power
to avoid liability for the alleged breach. For example, 43 U.S.C. § 2 provides:

              The Secretary of the Interior or such officer as he may
              designate shall perform all executive duties appertaining to
              the surveying and sale of the public lands of the United States,
              or in anywise respecting such public lands, and, also, such as
              relate to private claims of land, and the issuing of patents for
              all grants of land under the authority of the Government.

As discussed above, the Secretary’s designated officer already performed the executive
duty “appertaining to the . . . sale of . . . public land” that 43 U.S.C. § 1713(f) prescribes
when BLM determined, at the latest in the NORA, that the Agency would employ
modified competitive bidding procedures. Nothing in the plain language of
43 U.S.C. § 2, even when combined with 43 U.S.C. § 1713(f), gives the Secretary’s
designated officer the ability to revisit that determination after contract formation, make
a new discretionary determination that modified competitive bidding retroactively was
not appropriate in light of events that transpired after contract formation, and then
refuse to perform under a binding contract while avoiding liability for its breach.

       Nor does the plain language of 43 U.S.C. § 1457 aid the government here. That
statute provides as follows:

              The Secretary of the Interior is charged with the supervision
              of public business relating to the following subjects and
              agencies:

                     1. Alaska Railroad.

                     2. Alaska Road Commission.

                     3. Bounty-lands.

                     4. Bureau of Land Management.

                     5. United States Bureau of Mines.

                     6. Bureau of Reclamation.

                     7. Division of Territories and Island Possessions.

                     8. Fish and Wildlife Service.
                       9. United States Geological Survey.

                       10. Indians.

                       11. National Park Service.

                       12. Petroleum conservation.

                       13. Public lands, including mines.

This statute cannot reasonably be read as granting the Secretary’s designated officer the
reservation of contract powers the government asserts (i.e., to effectively void a binding
contract at the government’s option without liability). See C. Sanchez and Son, Inc. v.
United States, 6 F.3d 1539, 1543 (Fed. Cir. 1993) (“A contract is read in accordance with
its express terms and the plain meaning thereof.”). Indeed, the government does not
cite to a single case in which any court has held that 43 U.S.C. §§ 2 or 1457 grant the
Secretary the power to avoid performance of a valid contract while avoiding liability for
breach, and, as discussed above, the IBLA implicitly has rejected this argument. See
Chester F. Dawson, 73 IBLA 27 (May 9, 1983). The Court recognizes the preclusive effect
of the prior APA litigation, but that holding does not mean that, as a matter of contract
law, the Secretary has the power to avoid liability for breach of contract; it only means
that Silver State was not entitled to injunctive relief under the statute and the APA. 72

        The government does not argue that it may avoid liability for breach because the
parties’ contract incorporated the Secretary’s power under 43 C.F.R. § 4.5. The Assistant
Secretary, however, took “jurisdiction over this matter, pursuant to the authority
reflected in 43 C.F.R. § 4.5(a)” and rendered a “final decision” directing BLM not to
convey the land patent to Silver State. Appx. A195. Accordingly, it appears that the
government’s argument should also hinge, at least in part, on the contract’s having




72 Neither the district court nor this Court has the power to order specific performance of a
government contract. Stewart v. Mabus, 2016 WL 753939, at *7 (D.D.C. Feb. 24, 2019) (“‘[T]he
Tucker Act and Little Tucker Act’ provide the exclusive remedies for any alleged breach of
contract by the federal government and thereby ‘impliedly forbid’ the federal courts’
jurisdiction to grant declaratory relief or specific performance in contract cases.” (quoting Sharp
v. Weinberger, 798 F.2d 1521, 1253 (D.C. Cir. 1986)); see Suburban Mortg. Assocs., Inc. v. U.S. Dep't
of Housing & Urban Dev., 480 F.3d 1116, 1128 (Fed. Cir. 2007) (“Since the Tucker Act grants
consent for suits based on contract, this has been interpreted by . . . other courts to preclude
under the APA contract claims of any kind, either for damages or specific performance”); see
also, infra, Section IV.
incorporated that power. Nevertheless, the government cannot rely upon 43 C.F.R. § 4.5
to avoid liability for breach for at least three reasons.

       First, none of the contract documents contain even a bare reference to
43 C.F.R. § 4.5.

       Second, even if the parties’ contract had incorporated 43 C.F.R. § 4.5 as a contract
term, the Court is unsure whether, as a matter of contract interpretation, 43 C.F.R. § 4.5
would authorize the Assistant Secretary to “assume jurisdiction” over the matter here
and permit the Agency not to convey the land patent. In that regard, the regulation —
located within 43 C.F.R. Part 4, Department Hearings and Appeals Procedures, Subpart
A, General; Office of Hearings and Appeals — provides that the Secretary may assume
“jurisdiction at any stage of any case before any employee or employees of the
Department,” 43 C.F.R. § 4.5(a)(1), or “review any decision of any employee or
employees of the Department.” 43 C.F.R. § 4.5(a)(2). In context, the regulation appears
to provide the Secretary with the specified authority only when a party has filed an
administrative appeal, and, indeed, the Court located only one case in which BLM
invoked the power under 43 C.F.R. § 4.5(a) when there was no pending administrative
appeal. In that case, however, the United States District Court for the District of South
Dakota questioned the Secretary’s authority to assume jurisdiction to review the
decision at issue in the absence of an administrative appeal, although the court
ultimately decided the question on other grounds. See Rosebud Sioux Tribe v. Gover, 104
F. Supp. 2d 1194, 1200–01 (D.S.D. 2000), vacated sub nom. on other grounds Rosebud Sioux
Tribe v. McDivitt, 286 F.3d 1031 (8th Cir. 2002).

       Third, even if the parties’ contract had included 43 C.F.R. § 4.5 and even if that
regulatory provision were read to reserve to the Assistant Secretary the authority to
order BLM not to convey the land, BLM may have breached its contractual duty under
that regulation. Specifically, 43 C.F.R. § 4.5(c) provides as follows:

              If the Secretary or Director assumes jurisdiction of a case or
              reviews a decision, the parties and the appropriate
              Departmental personnel will be advised in writing of such
              action, the administrative record will be requested, and, after
              the review process is completed, a written decision will be
              issued.

The Assistant Secretary, after assuming jurisdiction over the matter pursuant to
43 C.F.R. § 4.5(a), apparently never notified Silver State of BLM’s Recommendation
Memorandum, nor does the record before this Court reflect that the Assistant Secretary
requested and reviewed the administrative record prior to issuing a written decision
adopting BLM’s recommendation. See Rosebud Sioux Tribe, 104 F. Supp. 2d at 1200-01
(“Assuming that . . . the Assistant Secretary did have authority to assume jurisdiction
over the matter or to review the decisions of the local BIA officials [he] would have been
bound to follow the requirements of the regulation in exercising any inherent authority,
[and] he clearly did not adhere to the procedures outlined in § 4.5(c).”).

                                            * * * *

        At base, the government’s motion to dismiss turns upon whether the parties’
contract contained terms reserving the government’s right to: (1) reverse its
determination, made prior to the NORA’s issuance, that a modified competitive sale
was proper and lawful; (2) undo its acceptance of Silver State’s bid; (3) delete
unilaterally the parties’ contractual finding in the escrow agreement that the completed
sale was lawful and proper; and (4) terminate the contract at issue notwithstanding that
Silver State tendered timely final payment consistent with the NORA, BLM’s
Acceptance Letter, and the bilateral escrow instructions. The Court holds that the
parties’ contract contains no such reservation of rights in favor of the government, and
the government’s meld of the various statutory and regulatory provisions upon which
it relies cannot yield contract rights ex nihilo.

       To be clear, the question in this case is not whether the government has an
ongoing statutory or regulatory duty to follow the law or even to ensure that its
contractual processes, resulting in land sale contracts, are lawful. This Court decides
neither the scope of the Agency’s plenary power over federal lands prior to their
conveyance, nor the Agency’s statutory power to decline to convey land pursuant to
governing statutes and regulations. 73 Rather, this decision holds only that once the
government sold the Property pursuant to the NORA’s process, and thus entered into a
contract with Silver State – here, at the latest, when Silver State tendered its full bid
price pursuant to the agreed-upon escrow instructions – the government could not
renege on its contractual duty to convey the Property without facing the prospect of
having to pay damages for breach of that contract.74



73See, e.g., Mack Brothers v. Maine State Housing Authority, 2011 WL 2633084, *7-8 (D. Maine 2011)
(explaining that “[a]s alleged, federal law does not call for the rejection of HUD’s administrative
action, preexisting contract language does,” and therefore contract claim should be pursued in
Court of Federal Claims).
74Consistent with the NORA, BLM could have: (1) rescinded the NORA before receipt of bids;
or (2) rejected all offers or withdrawn the land from sale within 30 days of receipt of offers. The
relevant statutory and regulatory provisions provided the Agency with such power, the Agency
reserved its right in the NORA to take those actions, but the Agency declined to do so.
IV.    This Court Rejects the Application of Issue Preclusion to Silver State’s
       Contract Claim

        Cataloging numerous excerpts from Silver State I and Silver State II, the
government contends that Silver State’s instant suit before this Court is barred by issue
preclusion, also known as collateral estoppel. 75 Def. Mot. at 32-43. In evaluating the
government’s issue preclusion argument, we once again are guided by the Federal
Circuit, which has held that “[c]ollateral estoppel is appropriate only if: (1) the issue to
be decided is identical to one decided in the first action; (2) the issue was actually
litigated in the first action; (3) resolution of the issue was essential to a final judgment in
the first action; and (4) the parties had a full and fair opportunity to litigate the issue in
the first action.” 76 Arkla, Inc. v. United States, 37 F.3d 621, 624 (Fed. Cir. 1994) (citing
Mother’s Restaurant, Inc. v. Mama’s Pizza, Inc., 723 F.2d 1566, 1569 (Fed. Cir. 1983)). Issue
preclusion does not bar Silver State’s claim here because each of these four conditions is
not satisfied. The burden is on the party seeking preclusion to show “that the same
issue was ‘actually and necessarily determined’ in the prior proceeding.” Connors v.
Tanoma Min. Co., Inc., 953 F.2d 682, 684 (D.C. Cir. 1992); see also Taylor v. Sturgell, 553
U.S. 880, 907 (2008) (noting that “claim preclusion, like issue preclusion, is an
affirmative defense” that the defendant must “plead and prove” and citing 18 Wright &
Miller § 4405, at 83 for the proposition that a “party asserting preclusion must carry the
burden of establishing all necessary elements”).

       A.      Silver State I

       The focus of the litigation before the district court was Silver State’s request “to
order the BLM to issue the patent to the plaintiff, as well as to enjoin the BLM from


75“Although the term res judicata was once used primarily to denote the concept of claim
preclusion, usage of the term res judicata has evolved to include ‘any preclusion of litigation
arising from a judgment, including collateral estoppel.’” Acumed LLC v. Stryker Corp., 525 F.3d
1319, 1323 n.2 (Fed. Cir. 2008) (quoting Foster v. Hallco Mfg. Co., 947 F.2d 469, 478 (Fed. Cir.
1991)); see also Nasalok Coating Corp. v. Nylok Corp., 522 F.3d 1320, 1323 (Fed. Cir. 2008) (“This
case involves the doctrine of res judicata, which includes the two related concepts of claim
preclusion and issue preclusion.”).
76The government asserts that this Court should ascribe preclusive effect to numerous
statements in both the district court and the D.C. Circuit decisions in, respectively, Silver State I
and II. Neither party addresses whether it is appropriate for the Court to accord preclusive
effect to certain issues addressed in the district court decision given that the D.C. Circuit
reviewed the entire case de novo. Despite the Court’s concerns that certain issues in the district
court decision were not “essential to [the] final judgment” in the D.C. Circuit’s opinion, the
Court, nevertheless, has considered all of the issue preclusion arguments in the government’s
motion and finds none persuasive.
reoffering the Property for sale.” Silver State I, 145 F. Supp. 3d at 123. The government
acknowledged that Silver State’s claims were not contract-based, but rather were
“brought under the Administrative Procedure Act (‘APA’), 5 U.S.C. § 701, et seq., and
[were] subject to the ‘highly deferential’ standard of review set out in the APA.” Def.
Opp. in Silver State I at 6, 2014 WL 12691273. Consistent with such a cause of action, the
district court limited itself to reviewing the administrative record and applied a
“‘highly deferential’” standard of review, as urged by the government. Silver State I,
145 F. Supp. 3d at 123-24 (citing Zevallos v. Obama, 793 F.3d 106, 112 (D.C. Cir. 2015)).

        More significantly, in distinguishing the plaintiff’s APA action from a breach of
contract action, the Agency conceded that, “prior to the transfer of title, contractual
rights may attach at different phases of the transaction[.]” Def. Opp. in Silver State I at
11, 2014 WL 12691273. Indeed, with regard to the 30-day decisional period specified in
§ 1713(g), the government itself argued that the provision, while not precluding the
Secretary from refusing to convey the Property, served to establish “a window of time
within which the Secretary (or her designee) can terminate a land sale without
repercussions such as financial liability to the potential purchaser.” Defendants' Cross-
Motion for Summary Judgment in Silver State I at 13, 2014 WL 12691272 [hereinafter
“Def. Cross Mot. in Silver State I”]. 77 Equally significant was the government’s
concomitant (and correct) representation that “a breach of contract claim is not
justiciable in [the district] court.” Id. at 13 n.8, 2014 WL 12691272 (citing Spectrum
Leasing Corp. v. United States, 764 F.2d 891, 893 (D.C. Cir. 1985), and Megapulse, Inc. v.
Lewis, 672 F.2d 959, 964 (D.C. Cir. 1982)).

       The district court adopted the government’s argument – apparently the opposite
of what it argues before this Court – holding that “the agency is correct that the plain
language of the statute does not address the Secretary’s authority to terminate the sale,
where the agency has already accepted the offer within 30 days,” even assuming, as the
Agency determined, that the land transfer would be contrary to law. Silver State I, 145
F. Supp. 3d at 129 (emphasis added). 78 While Silver State had asked the district court


77See also Defendants' Reply in Support of Cross-Motion for Summary Judgment in Silver State I
at 5, 2014 WL 12691276 [hereinafter “Def. Reply in Silver State I”] (“As explained in the Federal
Defendants’ opening brief, Section 203(g) of FLPMA merely sets a window of time within which
the Secretary (or her designee) may terminate a land sale without repercussions such as
financial or contractual liability to the potential purchaser.”). That is essentially Silver State’s
position in the instant case.
78Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1565 (Fed. Cir. 1996) (“The doctrine of judicial
estoppel is that where a party successfully urges a particular position in a legal proceeding, it is
estopped from taking a contrary position in a subsequent proceeding where its interests have
changed.” (citations omitted)). The possibility that judicial estoppel might apply here against the
“to construe § 1713(g) as limiting the Secretary’s authority to refuse an offer to purchase
to the time period within thirty days after receipt of such offer” – because otherwise the
clause “no later than thirty days” would be rendered “superfluous” – the district court
disagreed. Id. at 130. But, we must be precise regarding what the district court held,
which was only that the FLPMA did not constrain the Secretary’s plenary power to
refuse to transfer the Property.79 Id. at 125; see Council on Am. Islamic Relations v.
Ballenger, 444 F.3d 659, 666 (D.C. Cir. 2006) (“This case, like every judicial decision,
cannot be divorced from its facts.. . . . [O]ur ratio decidendi necessarily depends on the
context in which the statement was made.”); Klamath Irr. Dist. v. United States, 64 Fed.
Cl. 328, 332–33 (2005) (Allegra, J.) (explaining that a court’s decisional language must be
“read in context” and in light of “the ratio decidendi of the . . . opinion”).

        Significantly, the district court did agree that a bidder may, under § 1713(g)
“bring an action to compel the agency to comply with the statutory time limit and,
further, upon acceptance of an offer, the agency acknowledged the possibility of ‘repercussions
such as financial liability to the potential purchaser.’” Silver State I, 145 F. Supp. 3d at 131
(quoting Def. Mot. for Sum. Judgment in Silver State I) (emphasis added). Thus,
according to the district court, “the time limits are not superfluous.” Id. This district
court conclusion, in that regard, lines up well with this Court’s contract interpretation,
and, if anything, suggests that Silver State’s Complaint for breach of contract should
proceed, and not be dismissed by this Court.




government – in terms of Silver State’s contract claim – suggests that collateral estoppel should
not apply to bar that claim.
79See Nebraska Public Power Dist. V. United States, 590 F.3d 1357, 1372 (Fed. Cir. 2010) (“In
assessing whether the D.C. Circuit’s mandamus order improperly invaded the jurisdiction of
the Court of Federal Claims over the adjudication of contract rights, it is important to focus on
precisely what agency action was challenged in the D.C. Circuit and what relief the D.C. Circuit
granted.”). In Nebraska Public Power, the Federal Circuit held that the Court of Federal Claims
erred in declining to afford preclusive effect to the D.C. Circuit’s prior mandamus order. In that
case, however, the D.C. Circuit concluded that “‘[t]he statutory duty . . . [was] independent of
any rights under the contract’” and specifically “disclaimed that its authority otherwise
extended to any issue of contract interpretation, enforcement, or remedies.” Id. at 1373 (quoting
N. States Power Co. v. Dep't of Energy, 1998 WL 276581 at *2 (D.C. Cir. May 5, 1998)). This Court
recognizes the preclusive effect of the D.C. Circuit’s decision with respect to Silver State’s APA
claim, but concludes that the Secretary’s plenary power regarding final land title transfer –
pursuant to a number of statutes, as described in Cameron v. United States, 252 U.S. 450, 459-60
(1920) – cannot be invoked to avoid a contractual duty. See Silver State II, 843 F.3d at 990
(discussing Cameron and concluding that BLM had the statutory power not to provide the land
patent to Silver State).
        As to 43 C.F.R. § 2711.3-1(g), the district court concluded that “[t]o the extent this
regulation may confer any contractual right upon an offeror whose offer has been
accepted, the regulation is silent as to what those rights may be.” Id. at 131 n.14. The
district court thus did not reach the question of the parties’ contractual rights. Once
again, the district court only held that Silver State could not “compel the agency to
deliver the patent.” Id. at 131.

       In general, the district court’s approach to the FLPMA – in siding with the
government in that case – undermines the government’s position in this case. For
example, the district court found “that the Secretary’s power to stop consummation of a
sale by refusing to issue a patent when consummation would be unlawful does not come
within the ambit of any section of the FLPMA.” Id. at 133 n.16. Putting aside whether this
Court agrees with the district court’s usage of the term “consummation,” what is clear is
that the government was forced to rely upon other provisions of law – including
43 U.S.C. § 2 and 43 C.F.R. § 4.5 – to withstand plaintiff’s APA challenge. Id. But, as the
government acknowledged before this Court – both in the briefs and at oral argument 80
– the government’s motion to dismiss here turns on whether § 1713(f), an FLPMA
provision, is incorporated in the contract and may be interpreted to excuse the Agency’s
refusal to meet its contractual obligations. The parties never litigated that issue in the
APA litigation, and thus the district court never decided whether the parties’ contract
incorporated § 1713(f). At a minimum, and consistent with the Court’s analysis above,
the plain language of the FLPMA does not support the government’s contract
interpretation and certainly not without the aid of other provisions that are found
nowhere in any document that, according to the government, comprise the parties’
contract. 81

        In sum, even accepting the district court’s conclusion that Silver State lacked “the
specific right to compel the agency to issue a land patent,” Silver State I, 145 F. Supp. 3d
at 139, that determination pursuant to the APA does not foreclose – and is arguably
orthogonal to – plaintiff’s contract claim. Griffin & Griffin Expl., LLC v. United States, 116
Fed. Cl. 163, 174 (2014) (holding that a decision reviewed under the APA cannot
preclude a subsequent contract claim, that “there is no inconsistency between Griffin’s
breach of contract claim and the IBLA’s decision here[,]” and that “fidelity to the IBLA’s

80Def. Mot. at 47; Tr. at 37:12-15 (“THE COURT: So the government – does the government’s
case here in terms of no breach hang on 1713(f) alone, or no? MR. ROSENBERG: Yes. It does
depend on 1713(f).”); see, supra, 28.
81 Unlike the Department of Energy Standard Contract at issue in Nebraska Public Power, see supra
n.79, here there is no statute or court order “directing the inclusion” of a particular clause in the
parties’ contract, an issue upon which the district court and the D.C. Circuit in Silver State I and
II, in any event, declined to opine. 590 F.3d at 1375.
determination that BLM never conveyed a valid leasehold interest to plaintiffs does not
preclude this Court from concluding that the lease itself (in which BLM promised to
convey such an interest) was a valid contract for purposes of plaintiffs’ contract claim”).

       B.     Silver State II

        Before the D.C. Circuit, in Silver State’s appeal of the APA action, the
government repeated the same concessions from the district court proceedings
recounted above, similarly disclaiming that Silver State’s APA claims involved contract
issues:

              By its plain terms, Section 1713(g) creates a thirty-day
              window within which the Secretary (or her designee) may
              decide to reject an offer or withdraw the land from sale
              without incurring financial repercussions. After the Secretary
              has accepted an offer and the thirty-day window has expired,
              the bidder may have contractual rights against the United States.

Brief of Federal Appellees in Silver State II at 39-40, 2016 WL 3440116 [hereinafter “App.
Br. in Silver State II”] (emphasis added). Indeed, the very point of that concession was
that “[t]hose [contractual] rights do not affect the Secretary’s broad authority to
terminate the sale” – that is, to refuse to convey the Property via land patent. Id. And,
once again, the government allowed that “Silver State may have a contractual claim
against the United States based on the assertion that the Secretary had accepted its
offer,” and correctly noted “that [such a] claim does not belong in this Court.” Id. at 40
(citing Spectrum Leasing Corp. v. United States, 764 F.2d 891, 893-94 (D.C. Cir. 1985)).

       Those concessions simply cannot be squared with the government’s position in
this contract litigation.

       While affirming the district court’s decision, after applying a de novo standard of
review, the D.C. Circuit similarly declined to decide any contract issues. Silver State II,
843 F.3d at 992 (quoting 145 F. Supp. 3d at 131 n.14). Nor could the D.C. Circuit have
decided any of the contract issues, even assuming they had been litigated, which they
were not. Douglas Timber Operators, Inc. v. Salazar, 774 F. Supp. 2d 245, 261 (D.D.C. 2011)
(“The APA’s waiver of sovereign immunity may not be used ‘to circumvent the
jurisdictional and remedial limitations of the Tucker Act.’” (quoting Spectrum Leasing,
764 F.2d at 893)).
       C.     The Prior APA Litigation Does Not Require Dismissal of Silver State’s
              Contract Claim

       First, this Court need only reach the government’s issue preclusion argument if
the Court holds that the parties’ contract incorporated, at a minimum, 43 U.S.C. § 1713.
As demonstrated supra, however, the parties’ contract did not incorporate that statute.
Nor does the contract at issue incorporate § 1713(f), or any of the other statutory or
regulatory provisions – e.g., 43 U.S.C. §§ 2 or 1457, or 43 C.F.R. § 4.5 – upon which the
Agency relied both initially in rendering its decision to decline to transfer the Property
and, subsequently, in defense of that decision during the APA litigation. Accordingly,
the government’s issue preclusion defense fails.

       Second, even if the parties’ contract were interpreted to incorporate
43 U.S.C. § 1713(f), neither Silver State I nor Silver State II precludes Silver State’s breach
of contract claim. As explained in more detail below, this Court must analyze the
issue(s) to be decided in this case, and compare them to the issue(s) litigated and
decided in the APA matter. Those issues must be identical, and they are not.

        As this decision repeatedly has noted, the issue to be decided in this action is not
simply whether the Agency could refuse to convey the land patent, but whether the
parties’ contract permitted the Agency to do so without liability for breach of contract.
The APA litigation, however, established only that the Secretary had the plenary power
to decline to transfer the land patent to Silver State, but neither the district court nor the
D.C. Circuit ever opined on the breach of contract; if anything, as detailed above, both
courts explicitly reserved the contract question for this Court to decide. Nothing in the
plain language of the statutes at issue – even assuming the parties’ contract somehow
incorporated them – permits the government not to perform the contract while avoiding
liability for breach. See Tr. at 94:1-6 (conceding that the D.C. Circuit did not “directly”
address the meaning of the word “sale” in Section 1713(f)).

       The government further contends that issue preclusion forecloses this Court
from revisiting the D.C. Circuit’s determination that the FLPMA does not constrain the
Secretary’s plenary authority to cancel an illegal land sale. But, because the D.C. Circuit
did not reach the contract issue, this Court reads the D.C. Circuit’s decision as holding
only that the FLPMA does not constrain the Secretary’s plenary power to decline to
convey land. That holding does not speak to whether BLM breached its contract with
Silver State for exercising such extra-contractual (statutory) plenary power.

        Although the government asserts that Silver State may not relitigate whether the
MPA was the sole basis for the Agency’s deciding to engage in a modified competitive
sale, that issue is a red-herring in terms of the contract issue. Even if the MPA were the
reason for BLM’s deciding to employ certain sales procedures, the MPA was not the
sole basis for the resultant contract. Indeed, the contract does not incorporate the MPA
and contains no term that conditions BLM’s performance on the continued existence of
the MPA. BLM may have wished that the MPA had still been in place or may have
decided not to engage in the modified competitive sale if the MPA had not been in
place when BLM made that determination. The bottom line, however, is that the
Agency contracted with Silver State to transfer the Property without the condition that
the MPA be in place – and agreed to a deadline to do so – by the time the Agency
determined that it would refuse to meet its obligation.

       The government also argues that Silver State is collaterally estopped from
challenging the D.C. Circuit’s decision affirming that the Agency’s decision to terminate
the sale – i.e., to refuse to transfer the land patent – was rational, supported by
substantial evidence, and not arbitrary or capricious. But, that conclusion represents
the answer to what is strictly an APA question, and has no bearing on the terms of the
parties’ contract or Silver State’s breach claim.

        Accordingly, the government cannot satisfy its burden to establish the elements
of collateral estoppel. At a minimum, given (1) the government’s representation before
the district court and D.C. Circuit regarding their lack of jurisdiction over any contract
claims, and (2) the government’s conceding – and the district court’s finding – the
“possibility of ‘repercussions such as financial liability to the potential purchaser’”
pursuant to § 1713(g), we decline to apply issue preclusion to bar any part of Silver
State’s contract claim here. In so deciding, the Court finds persuasive the reasoning of
the Federal Circuit’s (unpublished) decision in Charter Fed. Sav. Bank v. United States, 87
F. App’x 175 (Fed. Cir. 2004). In that case, the Federal Circuit declined to apply issue
preclusion where a previous decision rendered by the United States Court of Appeals
for the Fourth Circuit “deliberately avoided the issue of contract formation.”
87 F. App’x at 177. Because the Fourth Circuit “never reached the issue” of the
government’s alleged contractual promises and where, in any event, “the Fourth Circuit
did not have jurisdiction to decide, and thus did not decide” the plaintiff’s contract
claims, the Federal Circuit refused to accord the Fourth Circuit’s decision preclusive
effect. Id.; see also Cook v. United States, 85 Fed. Cl. 820, 824 n.4 (2009) (refusing “to adopt
the government’s position that the district court’s decision in [an APA action] bars
plaintiffs’ claims in this action” due to issue preclusion), aff'd, 368 F. App’x 143 (Fed.
Cir. 2010).

       Moreover, the Federal Circuit has explained that “[p]recedent cautions that res
judicata is not readily extended to claims that were not before the court, and precedent
weighs heavily against denying litigants a day in court unless there is a clear and
persuasive basis for that denial.” Kearns v. Gen. Motors Corp., 94 F.3d 1553, 1557 (Fed.
Cir. 1996) (addressing issue preclusion and holding that “[i]n the case at bar it is not
possible to show that the identical issue was presented”). As a related matter, “[t]he
requirement that the issue be necessary to the judgment is interpreted narrowly.”
Armour of Am. v. United States, 73 Fed. Cl. 597, 601 (2006) (citing Restatement (Second) of
Judgments § 27 cmt. h (1982), and In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 326–
27 (4th Cir. 2004)).

        In this case, the procedural history and record are clear that the issues of contract
formation and interpretation – not to mention contract remedies – were not “identical”
to the issues decided in Silver State’s APA action, were not “actually litigated” in the
APA action, and were not essential to a final judgment in the APA action. 82 Particularly
as a result of the jurisdictional issue, the parties could not possibly have had a full and
fair opportunity to litigate the contract issues in the APA action. See Megapulse, Inc. v.
Lewis, 672 F.2d 959, 968 (D.C. Cir. 1982) (“‘a court’s lack of jurisdiction to decide an issue
directly may affect the collateral estoppel effect of the particular factual determination’”
(quoting De Magno v. United States, 636 F.2d 714, 724 (D.C. Cir. 1980))). Indeed, “any . . .
ambiguity” – in terms of what issues were decided in the earlier APA case – “should be
resolved in [plaintiff’s] favor.” Charter Federal, 87 Fed. App’x at 178.

          Moreover, the standard of review applicable to the review of agency actions or
decisions in the district court and circuit court is highly deferential, whereas “the
Federal Circuit has held that deference is inappropriate in the context of a contract
dispute in which the agency has a financial interest.” Commonwealth Edison Co. v. United
States, 56 Fed. Cl. 652, 661 (2003) (citing cases). That is a critical distinction between an
APA case and a contract case. In the latter, where there is a conflict between an
agency’s interpretation and the contract terms, “[i]t is the unambiguous terms of the
contract, not the unilateral beliefs of one of the parties, that define the parties’ respective
obligations.” Park Village Apartments v. United States, 25 Cl. Ct. 729, 733 (1992) (citing
Lynch v. United States, 292 U.S. 571, 579 (1934) (internal quotation omitted)). The
differing standards of review all but preclude the application of collateral estoppel here.
Tinnus Enterprises, LLC v. Telebrands Corp., 733 F. App’x 1011, 1021 n.3 (Fed. Cir. 2018)
(noting that the Federal Circuit’s earlier decision “has no preclusive effect because the
. . . issue there . . . involved a different burden of proof and different standard of review
than the issue presented in this case”); Otero v. Unum Life Ins. Co. of Am., 226 F. Supp. 3d

82See Comair Rotron, Inc. v. Nippon Densan Corp., 49 F.3d 1535, 1538–39 (Fed. Cir. 1995) (holding
that a finding was not essential to a judgment for collateral estoppel purposes where judgment
was supportable on other grounds); Restatement (Second) of Judgments § 27, cmt. i (favoring
the stricter rule that, when a judgment may have been based on alternative grounds, any of
which would be sufficient to support the result, the judgment is not preclusive with respect to
any ground standing alone).
1242, 1267 (N.D. Ala. 2017) (rejecting application of collateral estoppel where the
“court’s review in the instant case . . . is a de novo review and is not limited to the
administrative record” and “given the different standard of review, different
administrative record, and different claim”). 83

        Finally, to the extent the D.C. Circuit wrote that the Secretary was not required to
follow the timeline prescribed by 43 U.S.C. 1713(g) – or the implementing regulation at
43 C.F.R. § 2711.3–1(f) – the Court declines to accord this statement preclusive effect. In
that regard, the parties’ arguments and the D.C. Circuit’s decision appear to have
focused on whether the Agency timely “withdrew” the Property from sale. See Silver
State II, 843 F.3d at 993 (“Appellant’s third argument, that the Secretary failed to comply
with 43 C.F.R. § 2711.3-1(f), is incorrect. . . . It is irrelevant whether the Secretary ‘failed
to address any of the three limited bases for withdrawing a sale in 43 C.F.R. § 2711.3-
1(f)(1)-(3),’ . . . because that regulation is inapposite here, as the Secretary did not
withdraw the land from sale.” (citations omitted)); Final Brief for Appellant Silver State
Land, LLC in Silver State II at 25, 2016 WL 4036397 (“The Secretary’s decision failed to
address any of the three limited bases for withdrawing a sale in 43 C.F.R. § 2711.3-
1(f)(1)-(3).”). This Court concurs that the Agency did not withdraw the Property from
sale, Silver State II, 843 F.3d at 991, but respectfully disagrees with the D.C. Circuit’s
conclusion – as a matter of contract law – to the extent that court explained that
43 C.F.R. § 2711.3–1(f) “only specifies the circumstances under which the Secretary ‘may
withdraw any tract from sale.’” Id. at 993 (quoting 43 C.F.R. § 2711.3–1(f)) (emphasis in
original). That regulation covers not only withdrawal, but also BLM’s “refus[al] to accept
any offer” where the Agency “determines that . . . [c]onsummation of the sale would be
inconsistent with the provisions of any existing law.” 43 C.F.R. § 2711.3–1(f). That
determination must be made within the statutory 30-day period and appears to cover
the very determination the Agency made here, as the Court explained, supra, in Section
III.B.3. of this decision. The Agency, however, acted to cancel its contract with Silver
State well after the 30-day period had passed. Thus, the Agency effectively refused “to
accept any offer” after determining that “[c]onsummation of the sale would be
inconsistent with the provisions of any existing law” but the Agency did so – as a
matter of contract law – after the sale had been completed and after the prescribed 30-
day window. Given that it is far from clear whether the parties actually litigated that
particular question, and that the D.C. Circuit does not seem to have addressed it, the
doctrine of collateral estoppel should not apply. See Kearns, 94 F.3d at 1557 (“precedent
weighs heavily against denying litigants a day in court unless there is a clear and


83Silver State’s claim in this Court is one under the Tucker Act for money damages due to
breach of contract, which is entirely different than the claim for equitable relief that Silver State
brought in the district court challenging agency action on the administrative record.
persuasive basis for that denial”); Charter Fed. Sav. Bank, 87 F. App’x at 178 (“to the
extent it may be ambiguous what issues were actually decided by the Fourth Circuit,
any such ambiguity should be resolved in . . . favor” of the party not asserting issue
preclusion).

       In sum, the Court holds that the government has not met its burden to justify the
application of collateral estoppel in this case. As explained earlier in this decision, the
question currently before this Court is whether Silver State has stated a claim for breach
of contract which would entitle Silver State to money damages, in contrast to the APA
case which centered on whether Silver State could compel the Agency to transfer the
land patent at issue. The district court and the D.C. Circuit both held that the FLPMA
does not constrain the Secretary’s plenary power to refuse to convey the land patent
and that the Secretary’s exercise of that power was not arbitrary or capricious. This
Court holds that the parties’ contract did not incorporate the Secretary’s plenary power
or any other statute or regulation on which the Agency relies, and, to the extent the
parties’ contract incorporated 43 U.S.C. § 1713(f), that contract term did not permit BLM
to refuse to convey the land patent while avoiding liability for breach of contract.

       To the extent this Court’s decision is inconsistent with, or otherwise disagrees
with, either the district court or the D.C. Circuit’s interpretation of the relevant statutory
and regulatory provisions, we reemphasize that our focus is only on the contractual
rights and obligations of the parties – taking into account all of the documents that
comprise the parties’ agreement – interpreted without deference to the Agency.
Christopher Village, L.P. v. United States, 360 F.3d 1319, 1333 (Fed. Cir. 2004) (rejecting
preclusive effect of prior Fifth Circuit decision, and holding that decision “void as to the
contract issues that could have been decided and also as to those contract issues
actually decided”). 84

V.     This Court Denies The Government’s Motion To Dismiss Plaintiff’s Claim For
       Consequential Or Expectancy Damages

        The government additionally contends that the Court should dismiss Silver
State’s Complaint because “Silver State seeks damages that . . . it cannot recover as a
matter of law.” Def. Mot. at 56. The government raises two principal arguments:

84  Indeed, in Christoper Village, the Federal Circuit specifically concluded that while “[t]he Court
of Federal Claims correctly declined to afford res judicata effect to the Fifth Circuit's decision,
. . . it erred in ascribing collateral estoppel effect to the contract issues decided by the Fifth
Circuit. Those issues should have been decided de novo by the Court of Federal Claims.” Id.;
see also Tucson Airport Authority v. General Dynamics Corp., 136 F.3d 641, 647 (9th Cir. 1998)
(distinguishing, for jurisdictional purposes, between contract rights and statutory rights that
“exist independent of the . . . Contract”).
(1) Silver State’s demand for “lost profits” are “per se unrecoverable” because they are
too “speculative and remote”; and (2) Silver State’s “claim for reliance damages
incurred before November 28, 2012” are unrecoverable because they are based on an
implied-in-law contract. Id. at 56-58. The court denies the government’s motion to
dismiss on these grounds because Silver State’s Complaint adequately alleges “damages
caused by the breach.” San Carlos Irr. & Drainage Dist., 877 F.2d at 959.

        Silver State’s Complaint alleges that “[a]s a direct result of [the BLM’s] breach,
Silver State has suffered damages in excess of $98,000,000,” including “the difference
between Silver State’s contract price and the fair market value of the land” in addition
to “other losses incurred by Silver State.” Compl. ¶ 46. To calculate these damages,
Silver State relies on “a Letter of Intent from D.R. Horton, Inc. (“Horton”), expressing
Horton’s interest in purchasing a portion of the Land at the purchase price of $225,000
per acre.” Compl. ¶ 37. According to Silver State, the letter of intent “suggests that the
value of the Land had increased by approximately 10 times since Silver State submitted
its bid in June 2012.” 85 Compl. ¶ 38. Additionally, Silver State alleges that “over the
course of the 11 months between when BLM accepted Silver State’s offer and when
BLM wrongfully failed to convey title to the Land, Silver State had been expending
significant costs to develop the Land in reasonable reliance of Defendant’s performance
under the Land Sale Contract.” Compl. ¶ 39.

       The government primarily characterizes Silver State’s damages theory as a
demand for “lost profits that [Silver State] allegedly could have earned from selling
some of the Property to a third party” and argues that such damages “are per se
unrecoverable from the United States” because they are too “speculative and remote.”
Def. Mot. at 57. Put differently, the government believes that Silver State’s damages
theory hinges on Silver State’s plan to sell the Property to D.R. Horton, Inc. for
residential or other development. Id. at 58. The Court disagrees with the government’s
characterization of Silver State’s damages theory. Taking Silver State’s complaint at
face value, Silver State does not seek lost profits, per se, nor does Silver State’s damages
theory necessarily depend upon it selling the Property to D.R. Horton, Inc. Instead,
Silver State alleges damages measured by the difference between the fair market value
of the Property at the time of contract formation and at the time of breach. Compl. ¶ 46.
The Federal Circuit in at least one case implicitly has approved this measure of
damages for breach of a land sale contract. See Seravalli v. United States, 845 F.2d 1571,



85$225,000 per acre multiplied by 480 acres (the size of the Property) equals $108,000,000.
Subtracting Silver State’s bid price of approximately $10,000,000 results in Silver State’s claimed
damages of $98,000,000.
1573 (Fed. Cir. 1988). 86 Viewed from that perspective, the D.R. Horton, Inc. letter of
intent may simply provide evidence of the fair market value of the Property at the time
of breach.

        Moreover, the Court rejects the government’s invitation to dismiss the complaint
without the benefit of discovery. Whether a claimed amount is “too remote and
speculative” is ordinarily a question of fact. California Fed. Bank, FSB v. United States,
245 F.3d 1342, 1350 (Fed. Cir. 2001) (“Both the existence of lost profits and their
quantum are factual matters that should not be decided on summary judgment if
material facts are in dispute.”). Indeed, the government only cites a single case, Smokey
Bear, Inc. v. United States, 31 Fed. Cl. 805 (1994), where the Court of Federal Claims even
reached the question on a motion to dismiss. In Smokey Bear, the Court of Federal
Claims characterized the “issue for this court [a]s whether the damages plaintiff seeks
are the ‘natural and probable consequences’ of the alleged breach of the license
agreement, i.e., whether the damages were within the contemplation of the parties at
the time the contract was made.” 31 Fed. Cl. at 809. The Court of Federal Claims held
that “[t]he court cannot, without a factual inquiry, say that these damages are not a
direct and foreseeable consequence of the government's alleged breach of the Smokey
Bear license agreement.” Id. The Court reaches the same conclusion in this case; a
factual inquiry is necessary.

       Relatedly, the government seeks dismissal of “any claim for reliance damages
incurred before November 28, 2012” because those claims rest on an implied-in-law
contract over which this Court lacks jurisdiction. Def. Mot. at 57. Silver State’s
complaint alleges that Silver State expended significant sums in reliance on the BLM’s


86In Seravalli, “the appellees, as high bidders, entered into a contract to purchase . . . an
apartment complex” from the Department of Housing and Urban Development (“HUD”).
845 F.2d at 1573. “HUD refused to close, however, and unilaterally terminated the contract,”
leading the plaintiff-appellees to file suit in the Court of Federal Claims “seeking damages
reflecting, inter alia, the difference between the contract price and the fair market value of the
property on the date of closing.” Id. The case went to trial solely on the issue of damages, with
both sides having agreed that the proper measure of damages was the difference between the
fair market value of the property at the time of contract formation and the fair market value of
the property at the time of breach. Id. The only issue at trial and on appeal was how to
calculate the fair market value of the property at the time of breach. Id. The Federal Circuit’s
decision will be instructive as this case moves forward, although the Court generally shares the
government’s skepticism of Silver State’s claimed damages given certain zoning restrictions that
appear to have been in existence at least at the time of the transaction. “[O]f course, a well-
pleaded complaint may proceed even if . . . actual proof of [the facts alleged] is improbable, and
that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (citations and internal
quotation marks omitted).
performance “over the course of the 11 months between when BLM accepted Silver
State’s offer and when BLM wrongfully failed to convey title.” Compl. ¶ 39. Silver
State appears to allege that it incurred certain reliance damages prior to November 28,
2012, or the latest date on which the parties formed the contract. While such damages
would likely be unrecoverable, Silver State also appears to allege that it incurred certain
reliance damages after November 28, 2012 but before May 13, 2013, when the BLM
allegedly breached the contract. Silver State must prove its damages via summary
judgment or at trial, and the Court, of course, will not entertain damages theories
arising from claims over which this Court has no jurisdiction. At this stage, however,
Silver State adequately has alleged that it incurred certain reliance damages, including
certain damages after November 28, 2012, and the Court sees no reason to dismiss the
Complaint based on one potentially inartful sentence.

       Finally, during oral argument, the government argued for the first time that the
election of remedies doctrine forecloses Silver State’s claim for damages. Tr. at 111:12-
13 (“And there’s another problem potentially looming here, which is, you know,
election of remedies.”). According to the government, Silver State cannot claim
(additional) damages because the BLM already provided restitution when the BLM
refused to convey the Property to Silver State and instead returned Silver State’s
purchase money. The government misapplies the election doctrine. As the Federal
Circuit has explained:

              When one party commits a material breach of contract, the
              other party has a choice between two inconsistent rights—he
              or she can either elect to allege a total breach, terminate the
              contract and bring an action [for restitution], or, instead, elect
              to keep the contract in force, declare the default only a partial
              breach, and recover those damages caused by that partial
              breach.

Old Stone Corp. v. United States, 450 F.3d 1360, 1371–72 (Fed. Cir. 2006) (quoting 13
Williston § 39:32 (4th ed. 2000)). Here, Silver State did not “elect” restitution; rather,
BLM unilaterally elected to return Silver State’s purchase price. Nor did Silver State
have a choice “to keep the contract in force [and] declare the default only a partial
breach.” Id. The alleged breach was BLM’s failure to perform the only action that
remained for either party under the contract. 87 Although the issue may be more fully
briefed at a later date, the Court, at this point, concludes that the government failed to

87It strikes the Court as strange that the Agency provided Silver State with what the
government has characterized as a form of damages (i.e., restitution) while maintaining that the
Agency did not breach the contract.
raise this argument in its motion and cannot, for the first time at oral argument, raise a
new ground for dismissal. See L–3 Global Commc'ns Solutions, Inc. v. United States, 82
Fed. Cl. 604, 611 (2008) (citing Arakaki v. United States, 62 Fed. Cl. 244, 246 n. 9 (2004)
(“The court will not consider arguments that were presented for the first time in a reply
brief or after briefing was complete.”)).

       None of this analysis with respect to damages should be viewed by the parties as
suggesting that the Court has some special confidence in Silver State’s ability to prove
its damages. Indeed, the result here may well amount to nothing more than a Pyrrhic
victory for Silver State, but that is a question for another day.

VI.    This Court Rejects the Government’s Remaining Arguments

        Alternatively, the government urges the Court to dismiss Silver State’s
Complaint based on two affirmative defenses: (1) LVNSC’s termination of the MPA
rendered BLM’s duty to convey the Property to Silver State objectively impossible; and
(2) the FLPMA would have precluded BLM’s performance. The Court holds that it
would be improper to rule on the government’s affirmative defenses at this stage in the
litigation because resolution of both affirmative defenses presents certain questions of
fact. Accordingly, the Court denies the government’s motion to dismiss Silver State’s
Complaint based on the government’s affirmative defenses.

      First, the government argues that LVNSC’s termination of the MPA rendered
BLM’s duty to convey the Property to Silver State objectively impossible. Def. Mot. at
51. The Supreme Court has described the doctrine of impossibility of performance,
providing:

              where, after a contract is made, a party's performance is made
              impracticable without his fault by the occurrence of an event
              the non-occurrence of which was a basic assumption on
              which the contract was made, his duty to render that
              performance is discharged, unless the language or the
              circumstances indicate the contrary.

United States v. Winstar Corp., 518 U.S. 839, 904 (1996) (quoting Restatement (Second) of
Contracts § 261). According to the government, “it was a basic assumption of the
parties’ agreement that the MPA would not be terminated (let alone prior to delivery of
the patent),” “it was not the Government’s fault that [LVNSC] terminated the MPA,”
“BLM did not assume the risk that [LVNSC] would terminate the MPA,” and,
accordingly, LVNSC’s “termination of the MPA made it impracticable for the BLM to
consummate the modified competitive sale to Silver State (through delivery of the
patent).” Def. Mot. at 52-53.

       “Whether performance is factually impossible or commercially impracticable is a
question of fact, not of law. However, the ultimate issue is one of law.” Seaboard
Lumber Co. v. United States, 308 F.3d 1283, 1292 (Fed. Cir. 2002). The government has not
provided a single example from this Circuit where a court dismissed a complaint based
on the affirmative defense of impossibility of performance. Indeed, the government
readily acknowledges that “[r]esolution of the defense of impossibility requires an
examination into the conduct of the party pleading the defense in order to determine
the presence or absence of . . . fault.” Def. Mot. at 51 n.14 (quoting Lowenschuss v. Kane,
520 F.2d 255, 265–66 (2d Cir. 1975)). Nevertheless, and without explanation, the
government proceeds to contend that this is “one of those ‘clear[] cases’ where the
defense may be sustained on a motion to dismiss.” Id. (quoting Lowenschuss, 520 F.2d at
265–66). The government’s out-of-context excerpt from a 1975 decision of the United
States Court of Appeals for the Second Circuit provides no support for the
government’s position here. In Lowenschuss, the Second Circuit explained that “[i]n all
but the clearest cases [resolution of the defense of impossibility] will involve issues of
fact that must be resolved by the district court only after the parties have had adequate
opportunity to investigate and present their evidence.” 520 F.2d at 265–66. The Second
Circuit went on to hold that “[t]o resolve the issues of impossibility and illegality,
plaintiff is entitled to his day in court.” Id. at 266. Notwithstanding the suggestion that
there may be some cases in which a motion to dismiss may constitute a proper vehicle
by which to raise impossibility, the Second Circuit itself did not do so it in its decision.

       Without any binding or persuasive precedent to support the government’s
position here, the Court refuses to dismiss Silver State’s Complaint based on the
government’s affirmative defense of impossibility of performance. Certain elements of
the defense would benefit from discovery, and this decision does not preclude the
government from raising this defense at a later stage of the litigation. 88 To the extent
that this decision does address, however, many subsidiary issues presented in the



88The Court notes, however, that even where Congress itself duly enacts a law that prohibits an
Agency’s contractual performance, such an enactment may give rise to a breach claim. See
Winstar Corp., 518 U.S. at 895 (“An even more serious objection is that allowing the Government
to avoid contractual liability merely by passing any ‘regulatory statute’ would flout the general
principle that, ‘[w]hen the United States enters into contract relations, its rights and duties
therein are governed generally by the law applicable to contracts between private
individuals.’”). In this case, the Agency’s own discretionary assessment and decision cannot
serve as the predicate for its impossibility defense.
government’s motion related to impossibility, the Court does not anticipate permitting
the government to revisit them.

        The government also contends that BLM’s performance would have been illegal
under the FLPMA and urges the Court to “deem Silver State’s agreement with the BLM
invalid and unenforceable.” Def. Mot. at 55. According to the government, the
FLPMA, while “not specifically provid[ing] for the invalidation of contracts that defy
the statute’s requirements,” embodies an important public policy and enforcing the
contract would be opposed to that public policy. Def. Mot. at 54-55. The Federal
Circuit has explained that “[d]etermining whether illegality taints a contract involves
questions of fact.” Godley v. United States, 5 F.3d 1473, 1476 (Fed. Cir. 1993). In Godley,
the Federal Circuit held that the “trial court erred in determining on summary
judgment” that a contract “was voidable, rather than void ab initio” due to the alleged
taint of illegality and remanded the case back to the Court of Federal Claims to
determine several “other factual questions.” 5 F.3d at 1476; see Transfair Int’l, Inc. v.
United States, 54 Fed. Cl. 78, 86 (2002) (“[T]he Federal Circuit, interpreting Mississippi
Valley, [364 U.S. 520 (1961),] held that in considering whether a contract was tainted by
fraud or wrong-doing and, therefore, unenforceable, this court was required to resolve
questions of fact regarding the contractor's conduct and whether any illegality actually
tainted the contract.”).

         The legal standards that apply to resolve the government’s defense of illegality
“require this court to weigh various facts that have not yet been established.” Transfair
Int’l, Inc., 54 Fed. Cl. at 78. Accordingly, the Court denies the government’s motion to
dismiss Silver State’s Complaint based on the asserted affirmative defense of illegality.
Although this decision does not preclude the government from taking discovery or
otherwise again raising this defense, in general, at a later stage of the litigation, the
Court has no intention of revisiting the legal issues decided herein.

VII.   Silver State Fails to Allege a Valid, Implied-in-Fact Contract

       Count II of Silver State’s Complaint alleges, in the alternative, that BLM and
Silver State entered into “an enforceable implied-in-fact contract for the sale of land,
which obligated BLM to convey the [Property]” and that BLM breached that contract.
Compl. ¶¶ 48-49. As discussed above, the Court holds that the parties had a valid
express contract, which obligated BLM to convey the Property to Silver Stated. “It is
well settled that the existence of an express contract precludes the existence of an
implied-in-fact contract dealing with the same subject matter, unless the implied
contract is entirely unrelated to the express contract.” Schism v. United States, 316 F.3d
1259, 1278 (Fed. Cir. 2002).
       Accordingly, Count II of Silver State’s complaint is DISMISSED because an
“implied-in-fact contract cannot exist if an express contract already covers the same
subject matter.” Trauma Serv. Grp., 104 F.3d at 1326.

                                      CONCLUSION

       For all of the above reasons, the government’s motion to dismiss is GRANTED
IN-PART, and DENIED IN-PART. The Court GRANTS the government’s motion to
dismiss Count II of the Complaint (breach of an implied-in-fact contact). In all other
respects, the government’s motion to dismiss is DENIED.

      On or before May 22, 2020, the parties shall submit a joint status report,
proposing a schedule for discovery and further proceedings in this case.

      It is so ORDERED.

                                              s/Matthew H. Solomson
                                              Matthew H. Solomson
                                              Judge
