CITY OF WILMINGTON, DELAWARE v. USA

Filing 115

REPORTED ORDER: Granting 106 Plaintiff's motion to admit the identified portions of Mr. Homesley's deposition testimony and PX 1, PX 4 (without pages COE000077 and COE000080-82), PX 28, and PX 43. The government's request 112 to move its counter-designated portions of Mr. Homesley's deposition testimony into the record is, likewise, hereby GRANTED. Signed by Judge Matthew H. Solomson. (ids) Service on parties made.

In the United States Court of Federal Claims
No. 16-1691C
(Filed: June 8, 2021)
CITY OF WILMINGTON,
DELAWARE,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

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ORDER

SOLOMSON, Judge.
This case involves a long-running legal controversy between Plaintiff, City of
Wilmington (“Wilmington”), and Defendant, the United States, concerning five
properties (the “Wilmington properties”) that the United States Army Corps of
Engineers maintains in Wilmington, Delaware, near the Christina River. ECF No. 1
(“Compl.”) at 1–2. From 2011 through 2016, Wilmington assessed water pollution
service charges on those properties, but the government thus far has refused to pay
these fees. Id. at 1–2, 6. On December 22, 2016, Wilmington filed its complaint against
the government, seeking to recover “the payment of reasonable service charges”
assessed for “the control and abatement of water pollution” pursuant to the Clean
Water Act, 1 as amended by the Federal Responsibility to Pay for Stormwater Programs
Act of 2011, Pub. L. No. 111-378, 124 Stat. 4128, codified at 33 U.S.C. § 1323. Compl. at
1–3.
Trial commenced on April 19, 2021. ECF No. 89. On April 20, 2021, following
the close of Wilmington’s case-in-chief, the Court suspended trial to permit the
government to file its motion for judgment on partial findings pursuant to Rule 52(c) of
the Court of Federal Claims (“RCFC”). ECF No. 105 at 436, 441–45; see ECF No. 102.
1

33 U.S.C. §§ 1251 et seq.

Before the Court suspended the trial, however, Wilmington moved the Court to admit
into the record additional pieces of evidence, a request to which the government
objected. ECF No. 105 at 426–35, 444. On April 21, 2021, the Court ordered a briefing
schedule so that the parties could address the evidentiary issues. ECF No. 102.
On May 4, 2021, Wilmington filed its timely motion to admit evidence into the
record. ECF No. 106 (“Pl. Mot.”). Specifically, Wilmington moves to admit into
evidence portions of the Rule 30(b)(6) deposition testimony taken from the
government’s designated witness Craig Homesley, Chief of the United States Army
Corps of Engineers’ Project Support Branch, 2 as well as Plaintiff’s Exhibits 1, 2, 28, and
43. 3 Pl. Mot. at 2. On May 18, 2021, the government filed its response brief, indicating
that while the government does not object to the admission of these portions of Mr.
Homesley’s deposition, the government seeks to admit other portions of Mr.
Homesley’s deposition that the government previously counter-designated in its filings
with the Court. 4 ECF No. 112 (“Def. Resp.”) at 3–4 (citing ECF No. 64–4). The
government additionally opposes admitting Wilmington’s four exhibits into the record.
Id. at 5–10. On May 25, 2021, Wilmington sought leave of the Court to file a reply,
which the Court granted. ECF No. 113, Minute Order (May 25, 2021). Later that same
day, Wilmington filed its reply brief. ECF No. 114 (“Pl. Reply”).
I.

Plaintiff’s Motion To Admit Evidence
A.

Rule 30(b)(6) Deposition Testimony

RCFC 30(b)(6) allows a party, including the government, to designate a deponent
“to testify on its behalf.” As a general matter, “testimony of a Rule 30(b)(6) witness is
binding on the government.” Zip-O-Log Mills, Inc. v. United States, 113 Fed. Cl. 24, 32
(2013); but see King v. United States, 119 Fed. Cl. 277, 284 (2014) (noting exceptions to the
general rule).

Wilmington requests that the Court admit the following portions of Mr. Homesley’s
deposition into evidence: Tr. 14:5–21; 15:1–4; 15:18–16:12; 17:19–18:15; 29:4–17, 40:3–41:11;
37:21–38:5; 43:3–17; 46:16–47:18; 48:12–19; 54:3–55:3. Pl. Mot. at 4.

2

Regarding Plaintiff’s Exhibit 4, Wilmington requests that this exhibit be admitted without
pages COE000077 and COE000080–82. Pl. Reply at 4.
3

The government requests that the Court admit the following portions of Mr. Homesley’s
deposition into evidence: Tr. 12:2–19; 21:2–5, 8–16; 29:18–30:1; 31:2–8; 38:9–39:5; 39:16–18, 39:21–
40:2; 43:3–17; 62:5–15; 63:13–64:12; 65:19–66:2; 66:5; 71:10–15; 71:17–72:19. Def. Resp. at 4; see
ECF No. 64-4.
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RCFC 32(a)(1) establishes that “[a]t a hearing or trial, all or part of a deposition
may be used against a party” provided:
(A) the party was present or represented at the taking of the
deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible under the
Federal Rules of Evidence if the deponent were present
and testifying; and
(C) the use is allowed by RCFC(a)(2) through (8).
Moreover, RCFC 32(a)(3) provides that “[a]n adverse party may use for any purpose the
deposition of a party or anyone who, when deposed, was the party’s . . . designee under
RCFC 30(b)(6)[.]” A deposed party-designee need not be found “unavailable” prior to a
court admitting that deposition testimony into evidence. Long Island Savings Bank,
F.S.B. v. United States, 63 Fed. Cl. 157, 164 (2004); see Wisconsin Elec. Power Co. v. United
States, 2007 WL 5209538, at *13 (Fed. Cl. Aug. 16, 2007) (“To admit statements of a partyopponent, plaintiff need not establish the witness is unavailable.”); Anchor Sav. Bank,
FSB v United States, 2005 WL 6112617, at *1–*3 (Fed. Cl. May 17, 2005) (holding that the
plaintiff was not required to demonstrate the unavailability of designated deponents
before using their depositions as substantive evidence).
The government does not oppose Wilmington’s motion to admit portions of
Mr. Homesley’s deposition testimony because, consistent with RCFC 32, Mr. Homesley
was one of the government’s Rule 30(b)(6) designee witnesses and the government was
present at the time of his deposition. Def. Resp. at 3–4. Rather, the government seeks to
have additional portions of Mr. Homesley’s deposition testimony admitted into the
record. Id. at 4. In that regard, pursuant to RCFC 32(a)(6), “[i]f a party offers in
evidence only part of a deposition, an adverse party may require the offeror to
introduce other parts that in fairness should be considered with the part introduced,
and any party may itself introduce any other parts.”
Wilmington opposes the government’s request, contending – without citation to
any authority – that RCFC 32(a)(6) is only intended to “avoid misleading the trier of
fact,” which Wilmington agrees is not a concern at a bench trial. Pl. Reply at 1–2
(quoting United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982)). This argument borders
on frivolous because, given that this Court only conducts bench trials, such a reading
would render RCFC 32(a)(6) a dead letter. Moreover, as Wilmington also agrees, the
purpose of that rule is to ensure completeness of the record. Pl. Reply at 2 (citing Marin,
669 F.2d at 84). Given that salutary goal and the commonsense proposition that

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completeness generally mitigates confusion – not to mention Wilmington’s concession
about the nature of a bench trial – the Court has a difficult time even following
Wilmington’s train of thought here. Wilmington further asserts that the government’s
counter-designations “have little or no relationship to the portions of testimony
Wilmington designated in its motion.” 5 Pl. Reply at 2–3. Having reviewed the
government’s counter-designations, however, the Court finds that these additional
portions from Mr. Homesley’s deposition provide necessary context for his testimony
and likewise should be admitted into the record pursuant to this Court’s rules.
B.

Plaintiff’s Exhibits

Wilmington additionally seeks to have the following four exhibits admitted as
evidence into the trial record:
•

Plaintiff’s Exhibit 1 (“PX 1”) and Exhibit 4 (“PX 4”) are Water Quality Certificates
(and related application materials) that the Army Corps of Engineers applied for
and obtained from the Delaware Department of Natural Resources and
Environmental Control (“DNREC”). Pl. Mot. at 8–10. PX 1 was issued in 2008
and PX 4 is from 2012. Id. These documents, in Wilmington’s view, indicate that
certain pollutants may have been released by the Army Corps of Engineers into
the Christina River. Id.

•

Plaintiff’s Exhibit 28 (“PX 28”) is a United States Environmental Protection
Agency (“EPA”) publication, printed in January 2008, entitled “Funding
Stormwater Programs.” Pl. Mot. at 5. EPA published this document to “assist
local stormwater managers understand the alternatives available to fund their
stormwater program” and mentions Wilmington’s stormwater utility program.
Id. at 5–6 (quoting PX 28).

•

Plaintiff’s Exhibit 43 (“PX 43”) is an Army Corp of Engineers manual, published
in 2015, entitled “Dredging and Dredged Material Management.” Pl. Mot. at 6.
The Wilmington properties are of a type that the manual notes are subject to
stormwater erosion, which may lead to run-off of dredged materials into the
Christina River. Id. at 6–7.

Not withstanding this objection, Wilmington concedes that some of the government’s counterdesignations are perhaps relevant and that “[i]f pressed, [it] would not oppose admitting Tr.
12:2–19, 21:2–5, 21:8–16, 29:18–30:1, and 40:3–17.” Pl. Reply at 3. In any event, the Court does
not see a clear and decisive basis upon which to distinguish these designations from those
Wilmington more strongly opposes.

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Pursuant to Federal Rule of Evidence (“FRE”) 401, relevant evidence is
information having “any tendency to make a fact more or less probable than it would be
without the evidence; and the fact is of consequence in determining the action.” The
Court is mindful that the relevancy standard is a “liberal one.” Yankee Atomic Elec. Co.
v. United States, 2004 WL 1535686, at *2 (Fed. Cl. Jun. 28, 2004) (quoting Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993)). Moreover, while FRE 403 permits the
Court in its gatekeeping function to exclude relevant evidence that could lead to
“confusing the issues,” such concerns are mitigated because there are no jury trials in
this Court. See Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1302 (Fed. Cir. 2002)
(noting that “concerns [about juror confusion] are of lesser import in a bench trial”);
United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005) (“There is less need for the
gatekeeper to keep the gate when the gatekeeper is keeping the gate only for
himself.”). 6
The government opposes admitting these documents into the record because:
(1) they are not relevant to whether Wilmington’s stormwater charges are “fair and
reasonable”; (2) they constitute inadmissible hearsay; and (3) to the extent the
documents are relevant and admissible, their “probative value is substantially
outweighed by the danger of confusing the issues.” Def. Resp. at 4–5.
The Court, however, agrees with Wilmington. First, while these documents may
not be highly relevant to or dispositive of the legal issue in this case – whether
Wilmington’s charges on the federal properties are “fair and reasonable” and assessed
for the control of stormwater pollution – “disputes about the degree of relevance or
accuracy . . . may go to the testimony’s weight, but not its admissibility.” i4i Ltd. P’ship
v. Microsoft Corp., 598 F.3d 831, 852 (Fed. Cir. 2010).
Second, these documents are not inadmissible hearsay. Pursuant to the
FRE 803(8) “public records” exception to hearsay rule, “[a] record or statement of a
public office” is admissible if “it sets out . . . the office’s activities . . . and . . . the
opponent does not show that the source of information or other circumstances indicate
a lack of trustworthiness.” PX 1, a DNREC-issued Water Quality Certificate, clearly
identifies DNREC’s action – permitting the Army Corps of Engineers to dredge the
federal properties subject to certain conditions – and the government does not contest
the legitimacy of this certificate. See Standard Havens Prods., Inc. v. Gencor Indus., 953
F.2d 1360, 1371–72 (Fed. Cir. 1991) (affirming trial court’s admission of patent
See 28 U.S.C. § 2503(b) (“The proceedings of the Court of Federal Claims shall be . . . in
accordance with the Federal Rules of Evidence.”); Eden Isle Marina, Inc. v. United States, 89 Fed.
Cl. 480, 504 (2009) (“the Federal Rules of Evidence, as congressional enactments, are controlling
on this court”).
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Certificate of Correction pursuant to FRE 803(8)). Likewise, PX 28 and PX 43 are both
publications issued, respectively, by the EPA and the Army Corps of Engineers, that
discuss stormwater management and, thus, are squarely within FRE 803(8)’s public
record hearsay exception. See Yankee Atomic, 2004 WL 1535686, at *4–*5 (holding that
agency reports are admissible under FRE 803(8)).
Third, although the portions of PX 4 that Wilmington now seeks to admit, see
supra n. 3, may not qualify as a public record, what remains at issue is a series of
documents that the Army Corps of Engineers submitted to DNREC as part of its Water
Quality Certificate application. Any statements therein properly constitute admissions
by a party opponent and are admissible under FRE 801(d)(2)(B) (“The statement is
offered against an opposing party and . . . is one the party manifested that it adopted or
believed to be true[.]”). The government does not appear to contest that conclusion. See
Def. Resp. at 5-6 (arguing against relevancy and challenging admissibility of documents
Wilmington no longer seeks to admit).
Finally, given that this Court is the finder of fact (rather than a jury), there is no
danger that these documents will overly confuse the relevant issues in a manner that
will substantially outweigh the probative value of these documents. See Seaboard
Lumber, 308 F.3d at 1302.
CONCLUSION
Wilmington’s motion to admit portions of Mr. Homesley’s deposition testimony
and PX 1, 4 (without pages COE000077 and COE000080–82), 28, and 43 hereby is
GRANTED. The government’s request to move its counter-designated portions of
Mr. Homesley’s deposition testimony into the record is, likewise, hereby GRANTED.
IT IS SO ORDERED.
s/ Matthew H. Solomson
Matthew H. Solomson
Judge

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