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MAJURO, Marshall Islands (Yokwe, Mar 19) – More developments in the Bikini case before the U.S. Court of Federal Claims came just two weeks after the Court, in a surprise action, reassigned the case to Judge Christine O.C. Miller, the judge in the Enewetak case.

"I was very pleasantly surprised that Judge Miller granted our motion to file a "surreply" memorandum responding to the U.S. Government’s reply brief," said Bikini attorney Jon Weisgall.

That motion pointed out that the U.S. reply brief raises for the first time the issue of release as a ground for dismissal.

Bikinians submitted a "Motion To File a Surreply Memorandum in Opposition to Defendant’s Motion To Dismiss" on February 16, and the defendant, the U.S., filed its response in opposition on February 27.

The Bikini surreply argues that: (1) it is procedurally improper for the government to argue release as a basis for dismissal now in a reply pleading after declining to do so in its moving papers, because it denies plaintiffs the opportunity to respond; and (2) release is an affirmative defense and the facts necessary to prove it generally must be demonstrated by matters outside the complaint, so the issue cannot be raised on a motion to dismiss under Rule 12 of the Rule of the U.S. Court of Federal Claims.

COURT ORDER No. 06-288C, Christine O.C. Miller, March 14, 2007: Plaintiffs’ motion is granted nunc pro tunc to February 16, 2007, over defendant’s opposition.

"Please understand that this doesn’t mean that we have won the case – or even won on the issues raised in the motion. What it does mean is that Judge Miller has seriously considered the issues we have raised and has granted us the opportunity to raise them – and to have them considered by her," said Attorney Weisgall.

The second development is a "show cause" order from Judge Miller as to why the U.S. Government’s motions to dismiss in the Bikini and Enewetak cases should not be considered together. The order gives both plaintiffs until March 23 to respond. "My response will be that it is fine to hear them both together," said Weisgall.

The order sets oral argument on defendant’s motion to dismiss for Wednesday, April 4, 2007, in the Howard T. Markey National Courts Building.

The Court ordered that if the case is consolidated for the purposes of argument on defendant’s motion to dismiss with Enewetak (Ismael John, No. 06-287L), oral argument will be held at 2:00 p.m. If these cases are not consolidated, oral argument will be held at 2:00 p.m. for the Bikini case alone.

The April 11, 2006 lawsuit by the people of Bikini Atoll seeks compensation damages for the U.S. Government’s breaches of its fiduciary duty to provide just and adequate compensation for the taking of their lands for U.S. Cold War nuclear testing in the Marshall Islands. On April 12, the people of Enewetak filed their lawsuit in the U.S. Court of Federal Claims. In September, the U.S. filed the "Defendant's Motion to Dismiss" for both suits.

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