Land Grantors in Henderson, Union v. United States

REPORT OF THE REVIEW PANEL

MARGOLIS, Senior Judge,

with whom SMITH, Senior Judge, joins in the Report. LETTOW, Judge and Presiding Officer, dissents to the Report.

On September 20, 1993, the United States Senate referred Senate Bill 794, 103d Cong. (1993) entitled, “A bill [f]or the relief of land grantors in Henderson, Union, and Webster Counties, Kentucky, and their heirs,” to the Chief Judge of the United States Court of Federal Claims and instructed the Court to report back to the Senate “giving such findings of fact and conclusions that are sufficient to inform Congress of the amount, if any, legally or equitably due from the United States to the [Claimants individually” in accordance with 28 U.S.C. §§ 1492 and 2509 (2000). S. Res. 98, 103d Cong. (1993). Senate Bill 794 provides for relief to those individuals that were “promised they would be given priority to repurchase land sold by them if sold by the United States Government” and “paid less than reasonable value due in part to the refusal of the United States Government to compensate the owners for mineral, oil and gas rights.” S. 794, 103d Cong. § 2 (1993).

Judge Susan G. Braden, sitting as Hearing Officer in this case, held that “the record provides substantial evidence to support the Claimants’ entitlement to the equitable remedy of restitution, at least in the amount of $34,303,980.42.” Land Grantors v. United States, 81 Fed.Cl. 580, 583 (2008). Following the ruling of the Hearing Officer, the United States and the Claimants filed exceptions to the Hearing Officer’s report in accordance with the Rules of the United States Court of Federal Claims (“RCFC"). See RCFC App. D, ¶ 7. The Review Panel reviewed the Hearing Officer’s report, the briefs filed by both parties, and held a hearing on August 19, 2008, and finds that any payment to the Claimants would be a gratuity.

DISCUSSION

1. Background

In the summer of 1941, after the onset of World War II, the United States (“Government”) began condemning land pursuant to the War Purposes Act of 1917, 40 Stat. 241 (codified as amended at 50 U.S.C. § 171) (repealed 1956) in order to establish military training corps throughout the United States. Land Grantors v. United States, 81 Fed.Cl. at 582 (“Land Grantors VI” or “Final Report”). The Government acquired approximately 35,849.28 acres of land in Henderson, Union, and Webster counties, Kentucky to be used for an Army training facility, later named Camp Breckinridge. Id. To initiate these condemnations, the Department of War filed five Petitions in Condemnation in the United States District Court for the Western District of Kentucky between 1942 and 1944. Id. After the Petitions in Condemnation were filed, the owners of the 491 affected tracts of land had the option to voluntarily negotiate a sale price and sign an option agreement with the United States, or demand a jury trial to determine the amount of “just compensation.” Id. In total, the Government paid approximately $3.7 million for a fee simple ownership in all of the Camp Breckinridge properties, including those that were purchased under contract and those conveyed under judicial order. Id.

After the end of World War II, the United States declared certain facilities on Camp Breckinridge to be surplus property; however, on July 15, 1948, Camp Breckinridge was returned to active status because of the onset of the Korean War. Id. at 592. In December 1962, the Department of Defense (“DOD”) declared Camp Breckinridge inactive and the land was transferred to the General Services Administration (“GSA”) for disposal as surplus property. Land Grantors v. United States, 64 Fed.Cl. 661, 665 (2005) (“Land Grantors I” or “First Interim Report”); see Land Grantors VI, 81 Fed.Cl. at 593. Between 1957 and 1967, the GSA leased and sold all of the gas, oil, coal, and other mineral rights underneath the condemned properties, generating millions of dollars of revenue. Land Grantors VI, 81 Fed.Cl. at 588-97. In addition, between 1965 and 1972, the GSA sold most of the Breckinridge properties to the public through auctions. See Land Grantors I, 64 Fed.Cl. at 682-84.

In 1965, a former landowner, Cyrus Hig-ginson, filed a lawsuit against the United States in the United States District Court for the Western District of Kentucky. Id. at 597-98. That suit was ultimately dismissed by the trial court for lack of jurisdiction: the complaint alleged a violation of the Surplus Property Act of 1944, 58 Stat. 765, which was repealed in 1949. See id. at 598. The United States Court of Appeals for the Sixth Circuit upheld the District Court’s ruling, stating that the “[Gjovemment’s title to the land acquired by negotiated purchases vested some 20-30 years ago” and holding that the fee simple title to the condemned tracts “cannot now be disputed under any accepted property theory.” Higginson v. United States, 384 F.2d 504, 506 (6th Cir.1967). Following the United States Supreme Court’s denial of certiorari in 1968, a group of landowners formed the Breckinridge Land Committee ¹ and sought redress from the United States Congress. Land Grantors VI, 81 Fed.Cl. at 598. On April 19, 1993, S. 794 was introduced before the United States Congress, and on October 19, 1993, S. 794 and S. Res. 98 were successfully reported out of the United States Senate and forwarded to the Chief Judge of the United States Court of Federal Claims as a congressional reference. Id. at 599.

The current litigation began in this Court on January 12, 1994 with the filing of the initial complaint by the Claimants. Discovery disputes and settlement negotiations occurred for over a decade. See Land Grantors I, 64 Fed.Cl. at 685-695. On April 1, 2005, Judge Braden, as Hearing Officer, issued the first Interim Report and Memorandum Opinion. See generally id. That report stated that “many of the landowners entered into Contracts with the Government in 1942-1944 with the apparent understanding that they could repurchase their properties after World War II was concluded” but found that any representations by Government employees or agents regarding the Claimants’ ability to repurchase their land were unauthorized and therefore, not contractually binding on the Government. Id. at 701-03. The report further found that the contracts between the Government and the Claimants were void as they were based on a mutual mistake that “no coal, gas, oil, and other mineral deposits existed under the condemned properties that would support exploration or operation,” and noted that restitution is a remedy for contracts based on mutual mistake. Id. at 703-09. Judge Braden also found that the doctrine of equitable tolling would stay the statute of limitations because of the sui generis circumstances of the case. Id. at 711-16. Judge Braden ordered the parties to show cause why the Court should not exercise jurisdiction under 28 U.S.C. § 1491(a)(1) by entering final judgment and staying the issuance of a report on S. 794 under the congressional reference statute. Id. at 717-18. On October 3, 2005, the Claimants amended their complaint pursuant to RCFC 15(b) to add a legal claim under the Tucker Act, 28 U.S.C. § 1491(2000) and renewed their equitable claim under 28 U.S.C. § 2509. Land Grantors VI, 81 Fed.Cl. at 583. On June 22, 2006, the Hearing Officer issued a Memorandum Opinion and Order granting the Claimants’ motion for class certification and holding that RCFC 23, regarding class action suits, was satisfied by a preponderance of the evidence. In 2008, the Claimants’ legal claim under the Tucker Act was extinguished by the Supreme Court case, John R. Sand & Gravel Co. v. United States, — U.S. —, 128 S.Ct. 750, 753, 169 L.Ed.2d 591 (2008) which held that the six-year statute of limitations in the Court of Federal Claims could not be waived based on equitable considerations. See id. On April 18, 2008, the Hearing Officer issued a Final Report finding that the Claimants’ agreement to sell their land was based on a mutual mistake and awarding the Claimants $34,303,980.42 in restitution. Id.

2. Standard of Review

Congressional reference eases are referred to the United States Court of Federal Claims under 28 U.S.C. § 2509. That statute directs a hearing officer to

[P]roceed in accordance with the applicable rules to determine the facts, including facts relating to delay or laches, facts bearing upon the question whether the bar of any statute of limitation should be removed, or facts claimed to excuse the claimant for not having resorted to any established legal remedy. 28 U.S.C. § 2509(c).

After the hearing officer rules on the case, the officer “shall append to his findings of fact conclusions sufficient to inform Congress whether the demand is a legal or equitable claim or a gratuity, and the amount, if any, legally or equitably due from the United States to the claimant.” Id. The phrase “legal claim” simply requires that the claim be based on the invasion of a legal right and be viable in all respects. J.L. Simmons Co. v. United States, 60 Fed.Cl. 388, 394 (2004); see also Spalding & Son, Inc. v. United States, 28 Fed.Cl. 242, 247 (1993); Banfi Prods. Corp. v. United States, 40 Fed.Cl. 107, 121 (1997); INSLAW, Inc. v. United States, 35 Fed.Cl. 295, 302 (1996). An equitable claim arises from “an injury occasioned by Government fault” where there is “no enforceable legal remedy,” such as where the statute of limitations has run or sovereign immunity bars the suit. J.L. Simmons Co., 60 Fed.Cl. at 394 (citing Kerr-McGee Corp. v. United States, 36 Fed.Cl. 776, 786 (1996)). To recover on an equitable claim, a claimant must show (i) that the Government “committed a negligent or wrongful act” and (ii) that the act “caused damage to the [Claimant.” Id. (quoting Cal. Canners & Growers Assoc. v. United States, 9 Cl.Ct. 774, 785 (1986)). To constitute a “negligent or wrongful act,” the Government must violate a standard of conduct established by statute, regulation or a recognized rule of common law, and that violation must damage the claimant. Id. (citing Land v. United States, 29 Fed.Cl. 744, 753 (1993)). There must be more than a mere error or questionable exercise of Government discretion. Id. If, on the other hand, the Government action violates only principles of ethics or morality, that action gives rise to a gratuity. Id. at 395; see also Banfi, 40 Fed. Cl at 122. If relief would constitute a “mere gratuity,” the Court must recommend that Congress deny relief. Kanehl v. United States, 38 Fed.Cl. 89, 98 (1997).

After the hearing officer makes a determination on whether the demand is a legal or equitable claim or a gratuity, the findings and conclusions of the hearing officer are submitted to a review panel for review. 28 U.S.C. § 2509(d). “The panel, by majority vote, shall adopt or modify the findings or the conclusions of the hearing officer.” Id. In reviewing the hearing officer’s report, the panel “serves in a role analogous to that of an appellate court.” Kanehl v. United States, 40 Fed.Cl. 762, 766 (1998) (citing Bear Claw Tribe, Inc. v. United States, 37 Fed.Cl. 633, 636 (1997)). The review panel may set aside the factual findings of the hearing officer only if the findings are “clearly erroneous.” RCFC App. D, ¶ 8(d). A finding is “clearly erroneous” when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Land v. United States, 37 Fed.Cl. 231, 234 (1997) (citing Milmark Services, Inc. v. United States, 731 F.2d 855, 857 (Fed.Cir.1984)). The hearing officer’s legal conclusions are reviewed by the panel de novo. Kanehl, 40 Fed.Cl. at 766 (citing Merchants Nat’l Bank of Mobile v. United States, 7 Cl.Ct. 1, 9 (1984)). Thus, no deference need be given to the legal conclusions reached by the hearing officer. Land, 37 Fed.Cl. at 234.

3. Conclusions

A. Class Action Certification

Judge James F. Merow, who acted as Hearing Officer in this ease prior to August 15, 2003, issued an order on December 23, 1997 denying plaintiffs’ motion to certify this case as a class action. In a well-reasoned order, Judge Merow stated,

It is concluded that class certification is not feasible in this matter. To the extent that it is necessary to establish the contemporaneous values of the parcels acquired, to compare "with the amounts paid, this must be accomplished on the basis of evidence addressed to the most profitable uses to which the specific land could probably have been put in the reasonably near future.... Individual proof as to a claimant’s status as a covered individual or heir under the reference is also necessary. A report to the Senate must identify any claimant held entitled to relief and the specific amount determined.... Common questions do not predominate to the extent that a class action would be feasible or desirable.

Land Grantors v. United States, No. 93-648X (Cl.Ct. Dec. 23, 1997) Order at 2 (internal citations omitted). Judge Braden, as Hearing Officer, reconsidered this matter and on June 22, 2006, granted plaintiffs’ motion to reconsider class certification. See Land Grantors v. United States, 71 Fed.Cl. 614 (2006). The Hearing Officer determined that Rule 23 of the Rules of the Court of Federal Claims,² regarding class action suits, was satisfied. Id. With regard to the issue of whether common questions of law and fact predominated, the Hearing Officer stated, “The court, however, is mindful that issues of the precise damages owed to individual members of the proposed class may arise” and “[i]f individual damage determinations is impaired by the existence of a class, the court may de-certify any time before a final judgment.” Id. at 624-25. The Hearing Officer did not de-certify the class, however, and went on to award approximately $34 million to the class as a whole. See Land Grantors VI, 81 Fed.Cl. at 616-17. Upon review of the facts of this case, the Review Panel agrees with the determination made by Judge Merow that this case should not have been certified; the bill, S. 794, requires a determination of an amount, if any, owed to the Claimants individually. See S. 794, 103d Cong. § 1 (“The Secretary of the Treasury is authorized and directed to pay ... to the individuals ... who sold their land in Henderson, Union, and Webster Counties, Kentucky, to the United States Government under threat of condemnation-”).

B. Senate Bill 794, Section 2(1)

Senate Bill 794 limits relief to those former landowners who were: 1) promised they would be given priority to repurchase land sold by them if sold by the United States; and 2) paid less than reasonable value due in part to the refusal of the United States Government to compensate the owners for mineral, oil, and gas rights. S. 794, 103d Cong. § 2. Based on a review of depositions, affidavits, and answers to interrogatories prepared by former landowners and their heirs, the Hearing Officer determined that S. 794, Section 2(1) was satisfied by a preponderance of the evidence. Land Grantors I, 64 Fed.Cl. at 700-02. The Hearing Officer stated, “The court ... has absolutely no doubt that many of the landowners entered into Contracts with the Government in 1942-1944 with the apparent understanding that they could repurchase their properties after World War II was concluded, and in some cases, at the same price that the Government paid for it or at a discount.” Id.

The Government argues: 1) the Hearing Officer improperly admitted, and relied on, hearsay evidence in support of her conclusion that S. 794, Section 2(1) was satisfied; and 2) the Hearing Officer’s conclusion that S. 794, Section 2(1) was satisfied by a preponderance of the evidence is clearly erroneous. According to the Rules of the Court of Federal Claims, a hearing officer’s factual findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the hearing officer to judge the credibility of witnesses. RCFC App. D, ¶8(d). In this case, the Hearing Officer’s findings are not based on any live witnesses; thus, the usual deference given to a hearing officer to judge witness credibility does not apply.

1) Hearsay

At the outset, the Government argues that the majority of the evidence relied on by the Hearing Officer was inadmissible hearsay evidence. Specifically, the Government alleges that the 49 affidavits cited by the Hearing Officer in support of her conclusion that the Government made repurchase promises should not have been admitted. The affidavits are hearsay statements under Federal Rule of Evidence (“FRE”) 802³, but the Hearing Officer admitted the documents under the residual hearsay exception, FRE 807. FRE 807 allows for the admission of hearsay evidence that would be otherwise inadmissible where the evidence has the “equivalent circumstantial guarantees of trustworthiness” as those found in hearsay exceptions FRE 803 and 804. FED. R. EVID. 807. If the court is satisfied with a statement’s circumstantial guarantees of trustworthiness, it may then be admitted under the residual exception if:

[T]he court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of [the Federal Rules of Evidence] and the interests of justice will best be served by admission of the statement into evidence.

Id. The proponent of the evidence must also “make[ ][it] known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to meet it_” Id. Over strong Government objection, the Hearing Officer held that the affidavits satisfied FRE 807. Evi-dentiary rulings such as this are reviewed under an abuse of discretion standard. Shu-Hui Chen v. Bouchard, 347 F.3d 1299, 1307 (Fed.Cir.2003). A reviewing court shall not disturb an evidentiary ruling unless the decision 1) is clearly unreasonable, arbitrary, or fanciful; 2) is based on an erroneous conclusion of law; 3) rests on clearly erroneous fact findings; or 4) follows from a record that contains no evidence on which the lower court could rationally base its decision. Id.

The statements that the Hearing Officer admitted into evidence under the residual exception were affidavits written between 1978 and 1994, approximately 36 to 52 years after the first of the contracts were created. Land Grantors I, 64 Fed.Cl. at 700 n. 36. The affidavits were written by a variety of different authors including children, grandchildren, and friends of former landowners. Id. In some eases, the affidavits were written by elderly former landowners themselves. Id. The only explanation the Hearing Officer provided for admitting the affidavits was:

[T]he court has determined that the trustworthiness of the affidavits is demonstrated by the totality of the circumstances under which they were executed, ie., not for litigation, but to persuade members of Congress to pass legislation to compensate the former landowners or their heirs for losses arising from the condemnation of their property in 1942-1944.

Id. The Hearing Officer then went on to provide a lengthy list of selected affidavits that the Court considered “credible and reliable.” Id.

Upon examination of the affidavits and the facts surrounding their admission, the Review Panel finds that the affidavits should not have been admitted. As previously mentioned, a court must determine that the statements possess “circumstantial guarantees of trustworthiness” equivalent to that of statements admitted under FRE 803 and 804, prior to admitting hearsay evidence under FRE 807. The following factors are relevant to a court’s determination of whether the statements possess such guarantees of trustworthiness:

[T]he declarant’s disinterest, the declar-ant’s motivation to lie, whether the statement was made under oath, the declarant’s probable motivation in making the statement, the extent of the declarant’s personal knowledge of the events recounted in the statement, the probable accuracy of the witness’ recounting of the declarant’s statement, a testifying witness’s knowledge of the statement’s contents, the declarant’s age, the declarant’s character for truthfulness and honesty, the frequency with which the declarant made similar statements, whether the declarant recanted the statement, and the statement’s temporal proximity to the event related.

See Amcast Industr. Corp. v. Detrex Corp., 779 F.Supp. 1519, 1527-28 (N.D.Ind.1991) (citations omitted); Michael H. Graham, Handbook of Federal Evidence § 807:1 (6th ed.2006). An examination of the foregoing factors as applied to the affidavits in this case leaves the Review Panel with the firm conviction that a mistake was committed. First, there is no evidence of the circumstances under which the affidavits were created. Land Grantors I, 64 Fed.Cl. at 700 n. 36. Second, the affiants were hardly disinterested parties. In virtually every affidavit cited by the Hearing Officer, the affiant was an individual seeking redress from Congress and had a deep-seated interest in Congress’ approval of his or her position; the affiants stood to receive large sums of money and/or mineral rich land from the Government if Congress agreed. This direct interest alone indicates that there were not circumstantial guarantees of trustworthiness. Third, in many cases, the declarant did not have personal knowledge of the events to which he or she averred and was merely repeating rumors or second-hand information. See, e.g., CX 155 (Aug. 17, 1979 Russell Holeman Aff. (stating first option to repurchase land was “second hand information.”)); CX 163 (March 15,1979 Donald L. Bullock Aff. (stating that “[w]e were told by our father that he was told he would be given first chance at buying property back.”)); CX 133 (March 1, 1979 James L. Wathen Aff. (stating that he overheard his father state that they would have the first option to buy back the land when the war was over)); CX 204 (March 1, 1979 Thomas Woodring Aff. (stating that “[m]y father, Thomas Woodring, told me that he was told by the government agent that he would be able to repurchase the farm after the camp was declared surplus.”)); CX 212 (Feb. 6, 1979 Anne Luckett Cambrón Sanley Aff. (stating only that “[t]he general belief and talk at that time was that the original landowners were to have first chance to repurchase their land taken by the Federal Government for Camp Breckinridge along with the mineral rights.”)); CX 216 (Nov. 16, 1979 Samuel W. Steger Aff: (stating that he was in college when his grandfather and parents relayed the story that the heirs could repurchase the land)). Finally, the lack of temporal proximity to the event clearly operates against admission of the affidavits; most of the affidavits were written in 1979, approximately 37 years after the relevant events took place. In consideration of these factors, the Review Panel finds that the affidavits did not have the circumstantial guarantees of trustworthiness to merit the Hearing Officer’s reliance on them.

Furthermore, even if the Review Panel supported the Hearing Officer’s conclusion that the affidavits have circumstantial guarantees of trustworthiness, there are other requirements for admission. Under FRE 807, the statement must be “more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.” Fed. R.Evid. 807(B). In this ease, the written record produced at or near the time of acquisition was the best available evidence regarding the parties’ intentions, and nothing in the written record supports the affiants’ hearsay statements. Additionally, during trial, the Claimants did not present any evidentiary foundation for the affidavits. See Trial Tr. at 422-23. Finally, the affidavits were not provided to the Government until 2004, 10 years after the complaint was filed. By that time, all the affiants were deceased, leaving the Government unable to interview the affiants and assess their statements. While the affidavits were provided in advance of trial, they were not provided “sufficiently in advance ... to provide the adverse party with a fair opportunity to prepare to meet [them]” as FRE 807 requires. See Fed.R.Evid. 807. Thus, the Review Panel finds that the affidavits do not satisfy FRE 807 and that the Hearing Officer’s admission of them was an abuse of discretion.⁴

2) Repurchase Promises

In the First Interim Report, the Hearing Officer cited 11 depositions, 11 interrogatory responses and 49 affidavits in support of her conclusion that “many” former landowners entered into contracts with the “apparent” understanding that they could repurchase their properties after World War II ended.⁵ Land Grantors I, 64 Fed.Cl. at 700-02. Even assuming, arguendo, the Hearing Officer properly admitted the affidavits, the circumstances surrounding the creation of the cited evidence, and the general deficiency in quantity of evidence, leave the Review Panel with the definite and firm conviction that a mistake has been committed.

For the reasons mentioned with regard to hearsay, the Review Panel finds that the affidavits do not have circumstantial guarantees of trustworthiness and will not place substantial reliance on them. The Hearing Officer also cited 11 interrogatory responses in support of her position that the Government made repurchase promises to the former landowners. The interrogatory responses were signed by heirs in 2004, approximately 63 years after the date of acquisition; none of the interrogatory responses was signed by the actual landowners. The discovery responses are vague, based on hearsay, and merely repeat rumors. See, e.g., DX 675 at 3, 8 (stating that she was a child at the time of purchase and that her parents were told they would have a chance to have first chance to purchase the property once it was sold); DX 679 at 8 (“When I was young my father had mentioned to me that the government had taken the land ... and that they (the families) were supposed to be able to purchase the land back but this did not happen.”); DX 681 at 8 (“I was always told all my life that there was such an arrangement made that the [government] did not live up to, however this all occurred before I was born!”); DX 692 at 8 (Answer to question regarding details of repurchase promise consisted only of: “Through rumor it was a oral promise”); DX 694 at 8 (“In later years I was told by family members ‘that promises that owners would be given priority to repurchase’ were given to owners”). Indeed, the majority of the interrogatories were nonre-sponsive with regard to questions requesting detailed information such as the name of the representative of the United States who made such a promise, how that promise was communicated to the original owner, and the date on which that promise was communicated to the original owner. Upon careful review of the interrogatory responses, the Review Panel finds that they add virtually nothing to the body of evidence regarding whether such repurchase promises were actually made and only serve to repeat rumors.

Finally, the Hearing Officer cited 11 depositions in her First Interim Report. The cited depositions were taken in July 1995 and October 2004. Land Grantors I, 64 Fed.Cl. at 700 n. 35. The deponents were former landowners and Camp Breckinridge workers; their ages at the time the depositions were taken ranged from 77 to 87 years old. Id. The Hearing Officer admitted the depositions, over the Government’s objection, under the FRE 804. Id. That section allows hearsay evidence to be admitted if the declarant is unavailable as a witness and the “[testimony [was] given ... in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” Fed.R.Evid. 804(b)(1). In relying on the depositions, the Hearing Officer noted that the Government had an opportunity to cross-examine the deponents, that the deponents were no longer alive or unavailable by reason of health or age, and that each deponent testified in a “cogent and persuasive manner.” Land Grantors I, 64 Fed.Cl. at 700 n. 35.

The depositions were properly admitted under FRE 804 and provide the most compelling evidence of repurchase promises; nonetheless, the depositions cannot alone stand for the proposition S. 794, Section 2(1) was satisfied by a preponderance of the evidence. The depositions offer vague statements and provide little conclusive evidence regarding the alleged repurchase promises: most of the deponents could not specify a government employee who allegedly promised the former landowners the right of repurchase; many of the deponents were children at the time that the events to which they testified occurred; many testified that they merely overheard conversations whereby a government agent allegedly made such a promise; and the depositions were taken over 50 years after the relevant events occurred, signifying a strong likelihood of faded memories. See, e.g., CX 270 (Sept. 21, 2004 John E. Johnson Dep. at 11, 13 (stating that when he was 10 years old, he overheard a government representative tell his father that his father would be able to buy the land at a fraction of the cost of what the government paid after World War II ended; Johnson also stated “I think fairly well-known throughout the community that, you know, they were going to get their farm back”)); CX 269 (Oct. 5, 2004 Robert H. Bruce Dep. at 12, 32 (stating that “[t]he understanding was that the land as such could be repurchased by the original owner when it became available” but that he has never seen anything in writing regarding a right to repurchase)); CX 268 (Oct. 4, 2004 Carl Culver Dep. at 37-39 (stating that his aunt told him “the government was going to take their farms” but that “[the government agent] promised that they would be able to buy back their land at the price that the government was going to pay them”; Culver was not able to provide specific details such as the exact date that the interaction occurred or the name of the government agent that made the alleged promise)); CX 274 (July 14, 1995 William Caton Dep. at 12-13 (stating that Pete West was one of several Government agents that told him he could buy his property back after the war, but that “they didn’t put it in writing”)); CX 273 (July 14, 1995 Lottie Lynn Dep. at 10 (stating that a government agent “said we could have [the land] back after the war was over” but providing few other details)); CX 272 (July 13, 1995 William Logan Newman Dep. at 35 (stating that his “impression that [the landowners] would have the first chance to buy [the land] back” was based on “hearsay”)); CX 275 (July 14, 1995 Mary Virginia Dixon Dep. at 14, 31 (stating that “after the war was over and they were through with the land, we had first chance to buy it back if we wanted to” but could not remember the name of the government agent she and her husband spoke to)); CX 276 (July 14, 1995 Kathryn Pullman Dep. at 9 (stating that a government representative told her husband that “we would have first chance to buy the land back when they were finished with ... it” but providing no other details)); CX 271 (Oct. 1, 2004 Peyton Heady at 7-8 (Heady, a Clerk in Mechanical Engineer Department of Camp Breckinridge, stated, “And this land acquisition agent told me ... these farmers will get their land back after this camp is closed” but could not name the agent with whom he had spoken)).

The depositions of 11 individuals cannot stand for the proposition that all of the approximately 1,000 Claimants in this ease have a right to monetary compensation from the Government. Hundreds of tracts of land were purchased by the Government, and only a handful of landowners testified that they were personally promised the right to repurchase their land after World War II ended. Furthermore, none of the alleged repurchase promises were in writing. Indeed, the acquisition documents generated at the time of the sales indicate that the landowners conveyed a full fee simple interest in the Camp Breckinridge properties to the United States. See Land Grantors I, 64 Fed.Cl. at 669. Additionally, the Government’s expert witness, Dr. Johnson, testified that “no written confirmation [of the promise] has been found in the legal documentation,” and the Claimants have not offered a single piece of evidence generated at or near the time of the sales representing that repurchase promises were made. DX 182 at 65. Based on the foregoing facts, the Review Panel finds that S. 794, Section 2(1) was not satisfied by a preponderance of the evidence and that the Hearing Officer’s holding to the contrary was clearly erroneous; the Review Panel is left with the “definite and firm conviction that a mistake has been committed.” See Land, 37 Fed.Cl. at 234.

C. Mutual Mistake

The Hearing Officer concluded that the contracts between the Government and the Claimants were void because they were based on a mutual mistake that “no coal, gas, oil, or other mineral deposits existed under the condemned properties that would support exploration or operation at the time of sale” and awarded the Claimants the equitable remedy of restitution. Land Grantors VI, 81 Fed.Cl. at 602, 616. The Government contends that the Hearing Officer’s application of the doctrine of mutual mistake is clearly erroneous, challenging the Hearing Officer’s factual findings, as well as the legal relevance of the doctrine in this case. The Review Panel reviews the judgments of the Hearing Officer to determine if they are incorrect as a matter of law or otherwise premised on clearly erroneous factual findings. See Kanehl, 40 Fed.Cl. at 766; RCFC App. D, ¶ 8(d).

“To establish a mutual mistake of fact, [the Claimant] must show that: (1) the parties to the contract were mistaken in their belief regarding a fact; (2) that mistaken belief constituted a basic assumption underlying the contract; (3) the mistake had a material effect on the bargain; and (4) the contract did not put the risk of the mistake on the party seeking [relief].” Dairyland Power Co-op. v. United States, 16 F.3d 1197, 1202 (Fed.Cir.1994); Land Grantors VI, 81 Fed.Cl. at 602; see also Restatement (Second) of Contracts § 152(1) (1981). The Restatement (Second) of Contracts § 151 defines a mistake as a “belief that is not in accord with the facts.” “[T]he erroneous belief must relate to the facts as they exist at the time of the making of the contract.” Id. § 151 cmt. a. The burden of proof is borne by the party attacking the validity of the contract, and that party must present “clear and convincing evidence” of each element before mutual mistake can be found. See Nat’l Austl. Bank v. United States, 452 F.3d 1321, 1329 (Fed.Cir.2006); Restatement (Second) of Contracts § 155 cmt. c (stating that the trier of facts must be satisfied by “clear and convincing evidence” before reformation is granted).

The Hearing Officer cited numerous factual findings in support of her conclusion that the 1942-1944 contracts are void because they were based on a mutual mistake, and the Review Panel gives due regard to these factual determinations.⁶ See RCFC App. D, ¶ 8(d). Notwithstanding our due regard to the Hearing Officer’s factual findings, the Review Panel finds that the Claimants did not meet their burden of proving that the contracts should be set aside under the doctrine of mutual mistake.

There is not “clear and convincing” evidence that the contracts were entered into based on an “erroneous belief’ of the parties that there was no coal, gas, oil or other minerals that would support exploration or operations at the time of sale, nor that this was a “basic assumption” of the contracts. In fact, there is undisputed evidence that oil was being produced in and around the Breck-inridge properties at the time that the contracts were entered into, indicating that the parties had or should have had knowledge of the potential for exploration and operations.⁷ Land Grantors VI, 81 Fed.Cl. at 602 n. 16; see also DX 183 at 14; DX 182 at DOJ 1853-54. Furthermore, as the Hearing Officer noted, in some eases, both parties were fully aware of the potential for coal, gas, oil or mineral deposits as evidenced by the fact that the landowners had leases with oil and gas companies for operation on their land. Land Grantors VI, 81 Fed.Cl. at 605 n. 18; see also DX 627; DX 630; DX 633. In those cases, the Government paid for the leases, or an agreement was negotiated with the lessees whereby the lessees could resume activities after the war. See Land Grantors VI, 81 Fed.Cl. at 605 n. 18; see also DX 627; DX 630; DX 633. Finally, and most telling, the Claimants admitted knowledge in their complaint, alleging, “[a]t and prior to the time of the appraisal and condemnation of the real properties by the agents of the United States, both the property owners and the Defendant either knew or should have known that there existed sub-surface mineral, gas, oil, and/or coal deposits under the properties” and “the aforementioned sub-surface minerals, including gas, oil, and/or coal, were being extracted from some of the real properties as well as surrounding properties.” Second Am. Compl. ¶¶ 91-92. Additionally, in their Post-Trial Memorandum, the Claimants noted that coal had been mined in the immediate area since before the Civil War, and that oil and gas drilling was underway before the properties were sold to the United States. Claimants’ Post-Trial Br. at 2. Indeed, the Claimants did not allege that there was any mutual mistake until after the Hearing Officer issued her First Interim Report.

Even if we assume that some of the contracts were based on a mistaken assumption by the parties, the Claimants have not proved that “the contract did not put the risk of the mistake on the party seeking [relief].” See Dairyland Power Co-op. v. United States, 16 F.3d 1197, 1202 (Fed.Cir.1994). According to the Restatement (Second) of Contracts, “[a] party bears the risk of mistake when ... he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient.” Restatement (Second) of Contracts § 154(b). As previously noted, oil was being produced in Henderson, Union, and Webster counties and some landowners in the area had leases on their land; this should have put the parties on notice that there were deposits of coal, gas, oil or minerals that would support exploration or operation on or near the Camp Breckinridge properties. See Land Grantors VI, 81 Fed.Cl. at 605 nn. 16 & 18. Therefore, because the Claimants were “aware that [their] knowledge was limited but undertook to perform in the face of that awareness, [they] bear[ ] the risk of the mistake.” Restatement (Second) of Contracts § 154, cmt. c (“It is sometimes said in such a situation that, in a sense, there was not a mistake but ‘conscious ignorance.’ ”). Moreover, it is generally accepted that where the parties to a transaction fail to recognize the value associated with a purchased item, such as deposits of minerals on a parcel of land, the seller bears the risk. E. Allan Farnsworth, Farnsworth on Contracts § 9.3 (3d ed.2004); Land Grantors VI, 81 Fed.Cl. at 606; see also Restatement (Second) of Contracts § 154, cmt. a (“it is commonly understood that the seller of farm land generally cannot avoid the contract of sale upon later discovery by both parties that the land contains valuable mineral deposits, even though the price was negotiated on the basic assumption that the land was suitable only for farming_”). In light of the foregoing, the Review Panel finds that the Claimants did not meet their burden of proving, by “clear and convincing” evidence, that the doctrine of mutual mistake applies in this case.

D. Laches

28 U.S.C. § 2509(c) directs a Hearing Officer to determine facts relating to delay or laches. See also Kanehl v. United States, 38 Fed.Cl. 89, 95 (1997). Laches is an equitable defense that rests on considerations of fairness. Id. at 105 (citing Acuna v. United States, 1 Cl.Ct. 270, 279 (1982)). It bars a claim when a plaintiff’s “neglect or delay in bringing suit to remedy an alleged wrong, which taken together with lapse of time and other circumstances, causes prejudice to the adverse party.” A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1028-29 (Fed.Cir.1992); see also Kanehl, 38 Fed.Cl. at 105. As noted by the Federal Circuit:

Laches is a element doctrine. It assures that old grievances will some day be laid to rest, that litigation will be decided on the basis of evidence that remains reasonably accessible and that those against whom claims are presented will not be unduly prejudiced by delay in asserting them. Inevitably it means that some potentially meritorious demands will not be entertained. But there is justice too in an end to conflict and in the quiet of peace.

A.C. Aukerman Co., 960 F.2d at 1029 (quoting Environmental Defense Fund v. Alexander, 614 F.2d 474, 481 (5th Cir.1980)).

The Hearing Officer determined that the doctrine of laches did not apply “[f]or the same reason, relevant to the court’s determination regarding the application of the equitable doctrine of tolling in this case” and found that the Government could not bear its burden of establishing that the delay in bringing suit was unreasonable or that it caused the Government any prejudice. Land Grantors I, 64 Fed.Cl. at 717. The Government takes exception to the Hearing Officer’s conclusion that the doctrine of laches is inapplicable, as well as the factual findings cited in support of that conclusion. As an equitable defense, laches is committed to the sound discretion of the trial judge and is reviewed by an appellate court under the abuse of discretion standard. A.C. Aukerman Co., 960 F.2d at 1028.

To sustain its burden of proving a laches defense, a defendant must demonstrate: 1) an unreasonable and unexcused delay by the claimant in the assertion of a claim, and 2) prejudice to the party against whom the claim is asserted. See JANA, Inc. v. United States, 936 F.2d 1265, 1269-70 (Fed.Cir.1991); Kanehl, 38 Fed.Cl. at 105; Acuna v. United States, 1 Cl.Ct. 270, 279 (1982). Under the first prong, the length of time of delay is measured starting from the time the claimant knew or reasonably should have known about his claim to the date of suit. See A.C. Aukerman Co., 960 F.2d at 1032.

The Government sustained its burden of demonstrating an unreasonable and unexcused delay by the Claimants. The Claimants’ claim based on the Government’s alleged repurchase promises accrued immediately after World War II ended in 1945. The Claimants clearly had knowledge of that claim in 1945, making the delay in bringing suit until 1994 an astounding 49 years.⁸ Any claim allegedly arising from the Government’s lease and sale of coal, gas, oil, and other minerals accrued at various times between 1957 and 1967, according to the Hearing Officer’s undisputed determination. See Land Grantors I, 64 Fed.Cl. at 711. Thus, the Claimants knew or should have known by that time of any claims based on the sale of coal, gas, oil, or other mineral deposits.⁹ This makes the delay in bringing suit until 1994 between 27 and 37 years. This Court has previously found unreasonable and unex-eused delay in significantly shorter amounts time. E.g., Mexican Intermodal Equip., S.A. de C.V. v. United States, 61 Fed.Cl. 55, 71-72 (2004) (holding that the delay of 4 1/2 years before submitting a claim to the contracting officer and six years before filing a complaint made the application of the doctrine of laches appropriate); Kanehl, 38 Fed.Cl. at 105 (finding delay of 13 years from time plaintiff’s claim accrued to date of congressional reference bill to be unreasonable); LaCoste v. United States, 9 Cl.Ct. 313, 316 (1986) (holding that plaintiff unduly delayed by waiting five years to bring its claim); Awtry v. United States, 231 Ct.Cl. 271, 276, 684 F.2d 896(1982) (delay of 3 1/2 years after the claim accrued found to be unreasonable); Acuna v. United States, 1 Cl.Ct. 270, 280 (1982) (finding a 14-year delay between accrual of claim and introduction of congressional reference bill to be unreasonable).

The Claimants appear to argue that this delay in bringing suit against the Government was not “unreasonable and unexcused” and that they diligently pursued their claim. See Claimants’ Resp. Br. at 24-25. The Claimants support their argument based on three principal points: 1) they began requesting the return of their land soon after World War II ended; 2) they continued their campaign through the Higginson litigation; and 3) they formed the Breckinridge Land Committee in 1968 to pursue their congressional reference case.¹⁰ Id. The Review Panel finds these arguments without merit.

Taldng the Claimants’ first point that they made “numerous requests” for return of their land immediately after World War II, the Review Panel notes that the Claimants cite only two letters in support of their position. See Claimants’ Resp. Br. at 24 (“On March 15, 1957, two former landowners of this property ... sent a letter of protest to [Department of the Interior].... ”). Moreover, if the Claimants did make numerous requests as they allege, it is unclear why they did not seek any legal redress at that time.¹¹ Additionally, the Higginson litigation cannot be viewed in support of the Claimants’ argument that they preserved their claim. A suit by a single landowner cannot support the Claimants’ position that the landowners and heirs who are a part of the present litigation diligently pursued their claims. Furthermore, the Hearing Officer noted that the Higginson case was never certified as a class action and that it did not have a preclusive effect on this case; thus, those landowners who were not a part of that action were not precluded from bringing suit under an alternative legal theory. See Land Grantors I, 64 Fed.Cl. at 709-10, 714. The Claimants argue that “[w]here the Claimant does not have a meritorious legal claim to bring, his failure to sue will not support a laches defense,” noting that suits for unjust enrichment are barred by sovereign immunity in all federal courts. Claimants’ Resp. Br. at 23-24. The Panel finds the Claimants’ argument to be unpersuasive particularly given the fact that they filed, a claim under 28 U.S.C. § 1491 on October 3, 2005.

Finally, the formation of the Breckinridge Land Committee by some of the former landowners in 1968¹² does not, standing alone, preserve the Claimants’ claim. See Kanehl, 38 Fed.Cl. at 105 (“Plaintiffs contention that he contacted persons in Congress during the years 1983 to 1993 in an attempt to bring a congressional reference action does not by itself demonstrate diligent pursuit of plaintiffs claim.”). Even if we assume that the formation of the Breckinridge Land Committee by some of the Claimants could preserve a claim for all of the Claimants, the Review Panel is not persuaded that the efforts of the Committee constituted a diligent pursuit of the Claimants’ claims sufficient to preserve them. The Claimants concede that following the end of the Higginson litigation in 1968, the first specific request for a Senate inquiry of this matter “appears to have been” directed to the GSA five years later in 1973. Claimants’ Resp. Br. at 25; see also Land Grantors VI, 81 Fed.Cl. at 598. It was not until 1978 that the Breckinridge Land Committee, through the support of a non-profit environmental public interest organization, interviewed the former landowners and Government representatives and searched for records that might support the former landowners’ grievances.¹³ Land Grantors VI, 81 Fed.Cl. at 598. Further, it was not until 1979 that any report was sent to any member of Congress,¹⁴ and it was not until 1993 that S. 794 was introduced in the Senate.¹⁵ Id. at 598-99. Therefore, giving due regard to the factual determinations of the Hearing Officer, the chronology is as follows: the Breckinridge Land Committee delayed at least 10 years from its formation in 1968 in starting to conduct any due diligence on the landowners’ claim by interviewing former landowners and searching for records; it delayed 11 years in sending a report to Congress on this issue; and it delayed 25 years in obtaining a resolution from Congress, thereafter filing suit. That delay was unreasonable and unexcused.

Under the second prong of a lach-es defense, “prejudice to the adverse party” bars a claim whether it is economic prejudice or evidentiary prejudice. See JANA, Inc. v. United States, 936 F.2d 1265, 1269-70 (Fed.Cir.1991); A.C. Aukerman Co., 960 F.2d at 1033. Evidentiary or “defense” prejudice occurs when there is an impairment of the defendant’s ability to “present a full and fair defense on the merits due to the loss of records, the death of a -witness, or the unreliability of memories of long past events, thereby undermining the court’s ability to judge the facts.” A.C. Aukerman Co., 960 F.2d at 1033. “[T]he greater the lapse of time in asserting a claim, the less need there is to show specific prejudice to the party against whom the claim is made.” Acuna v. United States, 1 Cl.Ct. 270, 280 (1982) (citing Eurell v. United States, 215 Ct.Cl. 273, 280, 566 F.2d 1146 (1977); Gersten v. United States, 176 Ct.Cl. 633, 636, 364 F.2d 850 (1966)).

In this case, most of the relevant events occurred during World War II when the land was transferred to the Government, making much of the pertinent evidence over 50 years old. The Claimants’ delay in pursuing their claim resulted in key witnesses, such as Government employees who participated in the acquisition negotiations and the original landowners, being unavailable for deposition or trial testimony. Additionally, some of the evidence cited in favor of the Claimants comes from affidavits of former landowners who had died by the time the Government received the affidavits, thereby making it impossible for the Government to interview the affiants. Furthermore, documents that may have supported the Government’s case, such as the original appraisals, were lost. Finally, the memories of those landowners who gave depositions in 1995 and 2004, over 50 years after the relevant events, were faded, thereby undermining the Court’s ability to judge the facts.

In their response brief, the Claimants argue: 1) that the Government possessed the documents regarding the transfer of land, and 2) had been on notice that the Claimants were entitled to repurchase their land since the 1940’s, and could have prepared affidavits at that time.¹⁶ Claimants’ Resp. Br. at 26-27. The Claimants’ argument is not persuasive. The Claimants did not bring a claim against the Government until 1994: it was that decades-long delay that resulted in little documentation having been preserved; the unavailability of all key witnesses; and the potential for faded memories of those persons that could testify due to the passage of years. That delay caused evidentiary prejudice to the Government and impaired its ability to assert its defense. Furthermore, the Government was not obligated to prepare its defense without any knowledge of who might file a claim against it and what that claim might be.

In light of the decades-long, unreasonable, and unexcused delay by the Claimants and the prejudice that delay caused to the Government, the Hearing Officer’s holding that the doctrine of laches is inapplicable was an abuse of discretion. The Government sustained its burden of proving that the doctrine of laches applies to the facts of this case, barring the Claimants from asserting a claim against the Government.

CONCLUSION

In sum, the Review Panel finds that the Hearing Officer’s determination that Senate Bill 794, Section 2, relating to the Government’s alleged repurchase promises, was proven by a preponderance of the evidence was clearly erroneous. Further, the Claimants did not meet their burden of proving that the doctrine of mutual mistake applies to the facts of this case. Finally, the Government met its burden of proving that the doctrine of laches applies, and the Hearing Officer’s conclusion to the contrary was an abuse of discretion. In light of the foregoing, the Review Panel recommends that the Chief Judge advise the Congress that the Claimants do not have a legal or equitable claim and that any award to the Claimants would constitute a gratuity.¹⁷

1 . The Government asserts that this committee was formed in 1978. Def.’s ODenin Br. 31. The Hearing Officer concluded that it was formed in 1968. Land Grantors VI, 81 Fed.Cl. at 598.

2 . Under RCFC 23, one or more members of a class may sue as representative parties on behalf of all members if: 1) the class is so numerous that joinder of all members is impracticable; 2) there are questions of law or fact common to the class; 3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 4) the representative parties will fairly and adequately protect the interests of the class. RCFC 23(a). In addition, the United States must have acted or refused to act on grounds generally applicable to the class; questions of law or fact common to class members must predominate over any questions affecting only individual members; and a class action must be superior to other available methods for fairly and efficiently adjudicating the controversy. RCFC 23(b).

3 . Under the Federal Rules, in the absence of a codified exception, hearsay is inadmissible at trial in the federal courts. Fed.R.Evid. 802. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing. offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). Any oral or written assertion is a statement. Fed.R.Evid. 801(a).

4 . The Claimants assert that the affidavits are admissible under FRE 803(16). See Claimants’ Resp. Br. at 16. FRE 803(16) is an exclusion from the hearsay rule for ”[s]tatements in a document in existence twenty years or more the authenticity of which is established.” Fed.R.Evid. 803(16). FRE 901(a) states that “the requirement of authenticity or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a). The Hearing Officer did not admit the affidavits under this exception. There is no evidence that the authenticity of the affidavits was, in fact, established, and the Review Panel will not infer authenticity.

5 . Although the Hearing Officer found that repurchase promises were made to land grantors, she concluded that such promises were unauthorized and therefore not contractually binding on the Government. Land Grantors I, 64 Fed.Cl. at 702-03.

6 . The Review Panel notes that the Government asserts that many of the factual findings the Hearing Officer relied on are "clearly erroneous.”

7 . The Hearing Officer cited: 1) Dr. Jay L. Brigham's testimony that there was evidence of well-defined oil pools located on a map of Union County, even though they were not within the bounds of Camp Breckinridge; that four wells in Webster Country produced a total of 7,075 barrels of oil annually; and 176 wells in Henderson County produced 358,408 barrels of oil annually and 2) Dr. Johnson's testimony that Henderson Counly produced 365,085 barrels in January 1943. Land Grantors VI, 81 Fed.Cl. at 602 n. 16.

8 . The dissent argues that the Claimants’ claims accrued in 1963, after the Government declared Camp Breckinridge as surplus property. Even if the relevant period for laches started in 1963, the doctrine of laches applies to the facts of this case.

9 . The Hearing Officer’s Report does not state the exact time that the Claimants gained knowledge of a cause of action. The Claimants do not dispute knowledge of their cause of action. See Claimants’ Resp. Br. at 24. The Review Panel therefore assumes that the Claimants had knowledge of their claim by 1967.

10 . The Review Panel notes that the test of unreasonable delay is "neglect or delay in bringing suit" and not in apprising the opposing party of the claim as the Claimants argue in their response brief. See Claimants’ Resp. Br. at 24; A.C. Aukerman Co., 960 F.2d at 1028-29.

11 . The Government takes exception to the Hearing Officer and the Claimants’ conclusions that "numerous requests/petitions were made by the former landowners to repurchase their land after World War II ended.” Def.’s Opening Br. at 32-33. The Review Panel accepts the Hearing Officer’s determinations.

12 .The Government claims this Committee was formed in 1978 and not in 1968. Def.’s Opening Br. 31. The Hearing Officer determined that the Committee was formed in 1968, and the Review Panel takes that determination as true. See Land Grantors VI, 81 Fed.Cl. at 598.

13 . The dissent cites numerous letters -written to U.S. Senators, the GSA, and other prominent individuals by a single landowner, Mrs. Ruby Higginson Au, during the years 1968 and 1978. The Review Panel is not convinced that the sporadic letter writing campaign of one individual is sufficient to preserve a claim against the Government.

14 . "[0]n April 6, 1979 a Report was forwarded to Senator Wendell Ford, Senator Walter Huddleston, Congressman William H. Natcher, and Congressman Carroll Hubbard.” Land Grantors VI, 81 Fed.Cl. at 598.

15 . Similar versions of the bill failed to be reported out of the Senate in 1983, 1987, 1989, and 1991. Land Grantors VI, 81 Fed.Cl. at 598.

16 . In support of this claim, the Claimants claim that this case is “remarkably similar” to Spalding and Son, Inc. v. United States, 24 Cl.Ct. 112, 153 (1991), where the hearing officer concluded that defendant was prejudiced "primarily [as a] result of its own dilatory conduct and failure to preserve relevant evidence.” Claimants’ Resp. Br. at 27. In that case, the claimant filed its claims arising from the 1978 execution of a document which gave rise to the claim nine years later, in 1987. On the contrary, in this case, the Claimants' delay in asserting a claim was between 27 and 37 years from the time the Government sold the coal, gas, oil, and other minerals and 49 years from the time it acquired the properties. Accordingly, the Review Panel finds this argument without merit.

17 . Based on this determination, the Review Panel has not addressed the Claimants’ exceptions to the Hearing Officer’s report.