District of Columbia Water and Sewer v. United States ( 2021 )

In the United States Court of Federal Claims
No. 18-1586C
Filed: September 10, 2021
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DISTRICT OF COLUMBIA WATER AND *
SEWER AUTHORITY, *
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Plaintiff,
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v. *
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UNITED STATES, *
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Defendant. *
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Frederick A. Douglas, Douglas & Boykin PLLC, Washington, D.C., for plaintiff. Of
counsel was Tram T. Pham, Douglas & Boykin PLLC, Washington, D.C.
Douglas T. Hoffman, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him were
Claudia Burke, Assistant Director, Commercial Litigation Branch, Martin F. Hockey, Jr.,
Jr., Acting Director, Commercial Litigation Branch, and Brian M. Boynton, Acting
Assistant Attorney General, Civil Division.
OPINION
HORN, J.
The above-captioned case involves a dispute between the District of Columbia
Water and Sewer Authority (DCWS) and the Armed Forces Retirement Home of
Washington, D.C. (AFRH), over the alleged lack of payment by AFRH for sewer services
provided by DCWS. Plaintiff’s amended complaint seeks payment for sewer services,
including impervious area charges, or what plaintiff refers to as stormwater charges.1 In
1 As explained on the DCWS website:
Impervious surfaces such as rooftops, paved driveways, patios, and parking
lots are major contributors to stormwater runoff entering the District’s
combined sewer system. This adds significantly to pollution in the Anacostia
and Potomac Rivers and Rock Creek.
The Clean Rivers Impervious Area Charge (CRIAC) is a fair way to
distribute the cost of maintaining storm sewers and protecting area
the case currently before the court, plaintiff does not seek payment for the provision of
non-sewage-related-water to the AFRH by the District of Columbia (the District). Plaintiff’s
amended complaint alleges amounts due in excess of $12,000,000.00 which plaintiff
asserts have not been paid by the AFRH over a number of years.2 Plaintiff asserts
entitlement to payment for sewer services pursuant to the District of Columbia Public
Works Act of 1954, Pub. L. No. 83-364, 68 Stat. 101 (1954) (the 1954 Act), as amended
and codified in the Code of the District of Columbia (D.C. Code) at § 34-2101, et seq.,
which plaintiff argues obligates the United States to compensate DCWS for sewer
services rendered to the AFRH. The United States responds by relying on a 1938
agreement between DCWS’ predecessor-in-interest and the AFRH’s predecessor-in-
interest (the 1938 Agreement), in which, according to defendant, DCWS’ predecessor-in-
interest agreed to provide water and sewer services to the AFRH’s predecessor-in-
interest, free of charge and in perpetuity, in exchange for AFRH’s predecessor-in-interest
providing DCWS’ predecessor-in-interest an easement to build and access a critical water
reservoir on the property of AFRH’s predecessor-in-interest. Plaintiff disputes defendant’s
interpretation of the 1938 Agreement, arguing that the 1938 Agreement did not cover
sewer services free of charge and in perpetuity. Plaintiff also argues that, regardless of
whether the 1938 Agreement included sewer services, the alleged mandatory payment
obligations of the United States set forth in the 1954 Act, as amended, controls. Defendant
waterways because it is based on a property’s contribution of rainwater to
the District’s sewer system. Because charges are based on the amount of
impervious area on a property, owners of large office buildings, shopping
centers and parking lots will be charged more than owners of modest
residential dwellings.
All residential, multi-family and non-residential customers are billed a
CRIAC. The charge is based on an Equivalent Residential Unit (ERU). An
ERU is a statistical median of the amount of impervious surface area in a
single-family residential property, measured in square feet.
Available at https://www.dcwater.com/impervious-area-charge (last visited Sept. 10,
2021).
2 Plaintiff’s amended complaint and subsequent submissions are unclear as to the date
starting from which plaintiff seeks compensation for sewer services rendered, and the
amount of damages requested. In its amended complaint, plaintiff states that it has been
billing the AFRH since 2004 without receiving any payments, however, at oral argument,
plaintiff indicated that it was only requesting payments allegedly due starting in January
of 2012. Moreover, in supplemental briefing to the court, plaintiff states that it is requesting
“judgment in the amount of $9,234,228.76 for past and estimated sewer services and for
past and estimated stormwater costs,” which plaintiff appears to have calculated from
2012 to 2019, and, as discussed below, was the amount requested in its April 2019
submission of its Federal Cost of Service Estimates (FCSE) for the fiscal year 2021.
Plaintiff also requests “an Order approving the methodology for calculating the Federal
Cost of Service Estimates for FY2022 and FY2023.”
2
filed a motion to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Rules of the
United States Court of Federal Claims (RCFC). The parties also filed cross-motions for
summary judgment, all of which were fully briefed.
FINDINGS OF FACT
The AFRH, which was originally established in 1851 as the Military Asylum of
Washington, D.C., was created for
every soldier of the army of the United States who shall have served, or
may serve, honestly and faithfully twenty years in the same, and every
soldier, and every discharged soldier, whether regular or volunteer, who
shall have suffered by reason of disease or wounds incurred in the service
and in the line of his duty, rendering him incapable of further military service,
if such disability has not been occasioned by his own misconduct . . . .
31st Cong. § 4 (1851). After a number of re-designations by Congress, on September 7,
1972, the AFRH was designated as “an independent establishment in the executive
branch” for the purpose of providing “residences and related services for certain retired
and former members of the Armed Forces.” See 24 U.S.C. § 411 (2018). At the time of
the 1938 Agreement, discussed below, the AFRH was called the United States Solders’
Home (the Soldiers’ Home).
Plaintiff asserts that “[t]he various buildings on the AFRH-W [Washington] grounds
are connected to separate water and sewer mains operated by” DCWS. Plaintiff offers a
history of the organization of the District of Colombia Water and Sewer Departments,
stating that “[s]ewer lines were mapped separately from water mains as early as the late
1800s,” and that, unlike water in the water mains, the sewer mains “provides non-potable
water for waste products and removes it for treatment.” Plaintiff further provides that,
dating back to the early 1900s, “water and sewer services were overseen by the District
of Columbia Water Department and the Sewer Department, respectively.” Plaintiff states,
that the Sanitary Engineer of the Sewer Department oversaw “construction and
maintenance of the sewer system,” while the Superintendent of the Water Department
oversaw the Water Department. Plaintiff also states that the head of each department
also provided separate annual reports of their respective departments’ activities.
In the 1929 edition of the D.C. Code, which existed through 1939 by way of five
supplements thereto, relevant water and sewer provisions were contained in title 20,
titled: “Municipality of the District of Columbia.” The “Drainage of Lots” provisions were
included as Part 6 of Chapter 5, “Health,” in title 20 of the D.C. Code. See D.C. Code, title
20, §§ 1311-1314 (1929). Chapter 6 of title 20 was titled: “Water.” See id. §§ 1371–1408.
The provision in section 1311, part of the “Drainage of Lots” provisions in Chapter 5,
stated that lots on streets where there was a “public sewer” were required to be
“connected with said sewer in such manner that any and all of the drainage of such lot,
whether water or liquid refuse of any kind, except human urine and fecal matter, shall flow
into said sewer.” Id. § 1311.
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Despite the separate labels of “Drainage of Lots” and “Water,” each set of
provisions contained instructions pertaining to both water and sewer services. For
instance, section 1311 of title 20 of the D.C. Code, the section discussed immediately
above, which was part of the “Drainage of Lots” provisions in Chapter 5, also provided
that lots on streets which had both a “public sewer and water main” were required to “be
connected with said sewer and also with said water main in such manner that any and all
of the drainage of such lot, whether water or liquid refuse of any kind shall flow into said
sewer.” D.C. Code, title 20, § 1311. Similarly, section 1380 of title 20 of the D.C. Code,
which was part of the “Water” Chapter, provided that the “Commissioners of the District
of Columbia are authorized . . . to construct water mains and service sewers in any street,
avenue, road, or ally in the District of Columbia.” Id. at § 1380; see also id. at § 1387 (part
of the “Water” Chapter, and which provided a definition of “service sewer” as “a sewer
with which connection may be directly made for the purpose of providing sewerage
facilities to abutting property,” and that “such sewers shall be so indicated on the records
of the sewer division of the engineer department of the District of Columbia”).
Regarding payment, the provision in section 1381 in the “Water” Chapter stated by
1939 that assessments were to be “levied against all lots or land abutting upon that part
of the street, avenue, road, or ally,” “at the rate of one dollar and twenty-five cents per
linear front foot” where a “water main shall be laid,” and “at the rate of one dollar per linear
front foot” where a “sewer shall be laid.” D.C. Code, title 20, § 1381 (Supp. V, 1939). In
the D.C. Code at title 20, section 1390, part of the “Water” Chapter, an assessment for
“water rents” was set forth for the “use of water for domestic purposes through unmetered
services,” at “$9.85 per annum for all tenements two stories high, or less, with a front
width of sixteen feet, or less,” and “for each additional front foot or fraction thereof greater
than one-half, 62 cents; and for each additional story or part thereof, one-third of the
charges as computed above.” Id. § 1390. The provision at section 1390 in the D.C. Code
at title 20, also stated that “[f]or the use of water through metered services,” there was “a
minimum charge of $8.75 per annum for seven thousand five hundred cubic feet of water,
and 7 cents per one hundred cubic feet for water used in excess of that quantity.” Id.
There was no indication in the 1929 edition of the D.C. Code, or its supplements through
1939, that a reoccurring fee was charged for the use of water for sewage purposes.
The 1938 Agreement
On October 4, 1937, the Honorable Melvin C. Hazen, the President of the Board
of Commissioners of the District of Columbia, wrote the following letter to Major General
Frederick W. Coleman, the Governor of the Soldiers’ Home, one of the predecessors-in-
interest to the AFRH:
The Commissioners of the District of Columbia wish you to know that it is
necessary for them to construct a new water distribution reservoir of
approximate elevation of 250 feet above mean tide level in order to properly
operate and safeguard the supply and distribution of water in the District of
Columbia.
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A study of contours of the city indicates that the only suitable location for
this reservoir that is 250 foot elevation is the United States Soldiers’ Home
Grounds.
Accordingly, request for authority and funds for the construction of a
reservoir and pipe line in the United States Soldiers’ Home Grounds is
embodied in the Annual Estimates of the District of Columbia Water Division
for 1939, as shown on the attached sketch, which will shortly be placed
before the Bureau of the Budget.
Your comments and cooperation in this matter are requested.
(capitalization in original).
On October 20, 1937, Major General Coleman replied with an acknowledgement
of receipt, and wrote to the Honorable Melvin C. Hazen:
On account of the fact that the Soldiers’ Home is a public trust owned and
operated practically in its entirety from contributions received from enlisted
men on the active list of the Regular Army, I would suggest that the
legislative action contemplated by you be suspended until such time as this
matter can be considered by the Board of Commissioners of the Home.
Your letter will be presented to the Board and I will be glad to communicate
further with you when the Board has taken action thereon.
(capitalization in original). On October 25, 1937, the Board of Commissioners of the
Soldiers’ Home “convened a Board Meeting . . . to discuss the matter.” At the October 25,
1937 Board of Commissioners meeting General Pillsbury, who was a member of the
Board of Commissioners of the Solders’ Home, stated :
I have gone into the matter and I believe without any question this proposed
installation is necessary to safe-guard the water supply of the District of
Columbia in the increasing drain and demand on the service. The increased
water demand is such that the water is filtered at the McMillan plant here at
an excessive rate. This installation is designed to offer a reserve supply so
that the filters could be run at the regular rate in the day time and the surplus
water filtered at night could be drawn on during the following day. There is
an emergency in the water supply of the District that I think makes this
installation necessary. The only reasonable solution is the installation of the
reservoir so as to afford a reserve supply.
Nevertheless, Major General Coleman, then the President of the Board of
Commissioners for the Soldiers’ Home, initially rejected the proposal to build the
reservoir. In a November 2, 1937 letter from Major General Coleman to the Honorable
Melvin C. Hazen, the President of the Board of Commissioners of the District of Columbia,
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Major General Coleman wrote:
[A]lthough the United States has title to the land where the District desires
to construct the new reservoir, the deed [of the Soldiers’ Home] contains a
definite limitation as to its use, in that the land is held “ * * * In Trust
nevertheless for sole use, benefit and behoof of the Commissioners of the
Soldiers’ Home and for no other use or purpose whatsoever: * * * ” and that
the Commissioners held the property in trust for the use and benefit of the
soldiers of the United States Army.
A license, grant, or deed to the District of Columbia which would enable the
District of Columbia to establish a reservoir within this tract would constitute
a violation of the trust imposed upon the Commissioners of the Home unless
such action is clearly to the best interest of the old soldiers who are the
beneficiaries of the trust. In determining what these “best interests” are, the
potential applicability of the property, among other things, must be
considered. The location of the proposed reservoir is one of the logical
building sites in event of enlargement of the Home and should be reserved
for such purpose. In all matters affecting the Home the Commissioners
regard the trust as being concerned not only with the present or with the
immediate future but with the years far ahead.
The Commissioners of the Home are informed and believe that there are,
in fact, other points in the District of Columbia of sufficient elevation and
accessibility which can be used for the uprose of operating and
safeguarding the supply and distribution of water in the District of Columbia
It was the conclusion of the Board of Commissioners of the Home, having
in mind the vested interest of the beneficiaries of the trust, that it can not, at
this time, take favorable action with respect to the proposed construction.
In view of what has been stated above, I am directed by the Board of
Commissioners to request that you withdraw from you estimates for 1939,
which will shortly be placed before the Bureau of the Budget, any request
for authority or funds for the construction of a reservoir on Soldiers’ Home
property and that the Board of Commissioners of the United States Soldiers’
Home be advised of your action in the matter.
(capitalization and ellipses in original). The District complied with the Soldiers’ Home’s
request for the District to withdraw from its budget request the funds for the construction
of the reservoir, however, discussions between the Soldiers’ Home and the District
continued. In a letter dated January 6, 1938 to Major General Coleman of the Soldiers’
Home, the Honorable Melvin C. Hazen, President of the Board of Commissioners of the
District of Columbia, wrote:
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In view of the absolute necessity of ample water supply at adequate
pressure, not only for Federal institutions but also in the interest of the
general public welfare, your renewed consideration of our request for
permission to locate a vitally important storage reservoir on high ground
within the territory under the jurisdiction of the Board of Commissioners of
the United States Soldiers’ Home is requested.
Our renewed request that you grant this permission would not be made but
for the fact that the proposed site is the only one considered feasible. The
engineers of the District of Columbia Water Division have made a
comprehensive survey of all possible sites for a reservoir and after
exhaustive study have reluctantly reached the conclusion that all
contemplated alternates are impracticable.
The Commissioners are willing, with your advice and approval, to
recommend payment of a reasonable price for the site in question since the
need for the construction of this reservoir is so urgent, and they therefore
are most reluctant to postpone a recommendation for the enactment of
legislation beyond the present (75th) Congress which would authorize its
construction and the necessary appropriation. The Commissioners are
willing that the price be determined by a board of appraisers selected jointly
by the Board of Commissioners of [the] Solders’ Home and the Board of
Commissioners of the District of Columbia.
(capitalization in original).
The Honorable Melvin C. Hazen’s renewed request to construct the reservoir on
the premises of the Soldiers’ Home was subsequently discussed by the Board of
Commissioners of the Soldiers’ Home and, on February 1, 1938, the 1938 Agreement
was signed and executed. The 1938 Agreement stated:
This Agreement made this 1st day of February, 1938, by and between
Frederick W. Coleman (Retired), Governor of the United States Soldiers’
Home; Major General Charles R. Reynolds, The Surgeon General; Major
General Edgar T. Conley, The Adjutant General; Major General Henry
Gibbins, The Quartermaster General; Major General Julian L. Schley, The
Chief of Engineers; Major General Allen W. Gullion, The Judge Advocate
General; and Major General Frederick W. Boschen, The Chief of Finance,
constituting the Board of Commissioners of the United States Soldiers’
Home, parties of the first part, and Melvin C. Hazen, George E. Allen, and
Colonel Dan I. Sultan, constituting the Board of Commissioners of the
District of Columbia, parties of the second part, witnesseth:
That Whereas the Commissioners of the District of Columbia have made
application to the Board of Commissioners of the United States Soldiers’
Home for permission to install and maintain an underground reservoir, for
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use in connection with the water supply system of the District of Columbia,
on lands constituting a part of the Soldiers’ Home grounds;
And Whereas the lands on which it is proposed to construct said reservoir
were conveyed to the United States of America in Trust “for the sole use,
benefit and behoof of The Commissioners of the Soldiers’ Home and for no
other purpos [sic] whatsoever”;
And Whereas to grant the request of the District of Columbia would
constitute a violation of the trust imposed unless such action is clearly to the
best interest of the old soldiers who are the beneficiaries of the said trust;
And Whereas the Board of Commissioners of the United States Soldiers’
Home at a meeting held on the 24th day of January, 1938, after careful
consideration of all of the facts, have determined that the recognition of the
perpetual right to the use of water from the water supply system of the
District of Columbia, and the right to use water from the reservoir proposed
to be installed on the Soldiers’ Home grounds, with the right to tap the
District of Columbia Water mains and use water therefrom to the extent
necessary for the purpose of said Home, and the advantage of having a
more continuous pressure for fire fighting purposes in the protection of the
buildings and property of said Home resulting from the installation of the
proposed reservoir, constitute a lasting benefit to said Home and adequate
consideration for the grant of the privilege requested by the parties of the
second part;
And Whereas the National Capital Park and Planning Commission has
recommended the transfer of jurisdiction for the purposes and to the extent
hereinafter set forth;
Now Therefore, pursuant to the authority vested in the Board of
Commissioners of the United States Soldiers’ Home and the Secretary of
War, by Section 4815, United States Revised Statutes (U.S.C. 24:41), with
the approval of the Secretary of War, as evidenced by signature hereto, the
parties of the first part hereby grant to the parties of the second part,
permission, and transfer jurisdiction to the extent hereinafter set forth, to
install an underground reservoir, for use in connection with the water supply
system of the District of Columbia, together with right-of-way for water
mains leading to and from said reservoir, on and across the grounds of the
United States Soldiers’ Home, at the locations, and in the manner, and in
accordance with the plans therefor, as more fully shown, described, and set
out on the map attached hereto and made a part hereof, together with the
right of ingress and egress thereto for the purpose of constructing, repairing
and maintaining same, so long as the said reservoir is used in connection
with the water supply system of the District of Columbia, and no longer, with
the understanding that said grant is made in consideration of the perpetual
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right to use water from the water supply system of the District of Columbia,
as may be needed, for the purpose of said Home, including water for fire
protection purposes without compensation therefore at any time, which right
the said parties of the second part, under authority of the act of Congress
approved May 20, 1932 (47 Stat. 161, U.S.C. 40:122), hereby grant, warrant
and confirm to the parties of the first part.
The parties of the second part agree to repair all damages done to roads
and property of the parties of the first part, in the construction, repair and
maintenance of said reservoir, and to save the parties of the first part
harmless from any damages or claims resulting from the occupation of the
premises under this agreement by the parties of the second part.
It is mutually understood and agreed that the jurisdiction over said property
hereby transferred to the parties of the second part is limited to that
necessary in construction, repair and maintenance of the reservoir and
water mains above mentioned, and in all other respects, including the power
to police the property, jurisdiction retained by the parties of the first part.
This Agreement is made in anticipation of an appropriation to be made for
the construction of said proposed reservoir, and in the event the necessary
appropriation is not made within two years, this agreement shall become
null and void and of no effect.
In Witness Whereof, the said parties have hereunto, and to a duplicate
hereof of like tenor and affect, set their hands and seals, in the City of
Washington and District of Columbia, the day and year first above written.
(capitalization in original).
On April 4, 1938, Congress passed the following legislation which provided:
For the construction of a reservoir of approximately fifteen million gallons
capacity on the grounds of the United States Soldiers’ Home, District of
Columbia, including necessary appurtenances and auxiliaries, and
including not to exceed $12,000 for the employment, by contract or
otherwise, and without reference to section 3709 of the Revised Statutes
(41 U.S.C. [§] 5) or the Classification act of 1923, as amended, of
engineering and other professional services, $400,000, to continue
available [sic] until June 30, 1940.
52 Stat. 190, 75th Cong. (1938).
On January 26, 1939, Major General Coleman of the Soldiers’ Home wrote to the
Honorable Melvin C. Hazen, the President of the Board of Commissioners of the District
of Columbia, regarding the 1938 Agreement’s applicability in the face of potential
9
legislation recommended by the District that would require the federal government “to
purchase the water used by” the federal government. Major General Coleman’s letter
January 26, 1939 letter stated:
There has been noted recently in the press apparently authentic statements
that the Commissioners of the District of Columbia either have
recommended or propose to recommend to the Congress that legislation
be enacted which will require that Federal Government activities in the
District of Columbia be required to purchase the water used by them.
On February 1, 1938, the Commissioners of the District of Columbia and
the Board of Commissioners of the U.S. Soldiers’ Home entered into a
contract of agreement where, in consideration of the authority given the
former to erect and maintain a large water storage reservoir on the grounds
of the Soldiers’ Home, the perpetual right to free water for its use was
granted to the latter. This agreement appears to be entirely satisfactory to
both parties; it will result in a very considerable construction and
maintenance savings to the District of Columbia and at the same time will
satisfy the requirements of the Trustees of this Home in their responsibility
to the trust obligation imposed upon them by law.
In view of the existing contract above referred to, I feel that it is fair to
assume that any proposed legislation on this subject will specifically exclude
the U.S. Soldiers’ Home from the provisions of any Act in reference hereto
to be proposed to Congress by the Commissioners of the District of
Columbia.
(capitalization in original).
The Honorable Melvin C. Hazen of the District responded in a letter to Major
General Coleman of the Soldiers’ Home, stating:
On January 13, 1939, the Commissioners [of the District] transmitted to
Congress a report of a study of the Water System authorized by Public Act
No. 172, 75th Congress, First Session, approved June 29, 1937, and stated
to Congress that it was their belief “that the Federal Government should
reimburse the water fund for water used at the established meter rates,
possibly with a preferential discount of about 10 %.”
The Commissioners are cognizant of the fact that a contract was entered
into between the Soldiers’ Home and the District under which the Home was
given the perpetual right to free water. It is not intended to modify this
contract in any way. When, as and if definite legislation is under
consideration, the Commissioners will make suitable recommendations to
this effect.
10
(capitalization in original).
In a March 4, 1939 Memorandum to the Board of Commissioners for the Soldiers’
Home, Judge Advocate General, Major General Allen W. Gullion questioned the validity
of the perpetual water rights granted to the United States Soldiers’ Home by the 1938
Agreement, as follows:
1. By letter, subject as above, dated February 21, 1939, inclosing copy of
an agreement dated February 1, 1938, between the Board of
Commissioners of the United States Soldiers’ Home and the Board of
Commissioners of the District of Columbia, together with a copy of a letter
from the Governor of the United States Soldiers’ Home dated January 26,
1939, and the reply to said letter signed by the President of the Board of
Commissioners of the District of Columbia, I am requested to express an
opinion on the following questions:
“a. As to the binding effects of the [1938] agreement entered
into and as further supported by the two letters hereinbefore
referred to.
“b. What further action, if any, the Board of Commissioners of
the U.S. Soldiers’ Home, should now take to guarantee
perpetual water rights to the U.S. Soldiers’ Home by the
District of Columbia in return for the action of the Board of
Commissioners in granting them the right to construct an
underground water reservoir on the grounds of the U.S.
Soldiers’ Home, to improve and enlarge the water system of
the District of Columbia.
“c. The desirability or necessity of filing a copy of the
agreement and pertinent papers for record in the office of the
Recorder of Deeds of the District of Columbia.”
2. In substance the agreement gives to the District of Columbia the right to
install an underground reservoir on lands constituting a part of the Solders’
Home grounds in consideration of the perpetual right to the use of water
from the water supply system of the District of Columbia, by the Home
without compensation therefor.
3. (a) In response to question a: Whether the agreement is enforceable
in the courts is an extremely doubtful question which can only be resolved
by the courts. The agreement is, however, binding on the parties in
accordance with its terms. It is, of course, subject to the will of Congress.
The subject matter of the agreement is within the exclusive legislative
jurisdiction of Congress under Article I, section 8 of the Constitution.
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(b) With respect to question b, it is my opinion that there is
nothing that can be done by the Board of Commissioners of
the Home to guarantee perpetual water rights to the Home by
the District of Columbia. The power to tax or charge
Government instrumentalities for water does not reside in the
Board of Commissioners of the District of Columbia, but in
Congress which has not delegated this power. It is suggested
that if a bill is introduced in Congress contemplating a tax or
charge on water supply, the agreement should be brought to
the attention of the Committee to whom the bill is referred. The
agreement may have some persuasive effect but as
heretofore stated has no binding effect on Congress.
(c) With respect to question c, it is my opinion that it is not
necessary to file a copy of the agreement in the Office of the
Recorder of Deeds of the District of Columbia. However, such
filing will cause the agreement to become a matter of public
and permanent record and thus may be influencing in future
consideration of water charges to the Home. Accordingly, I
deem it desirable that the agreement be so filed.
(capitalization and emphasis in original).
The District of Columbia Public Works Act of 1954
The United States, including the AFRH, had not paid for water or sewer services
until the enactment of the 1954 Act. The enactment of the 1954 Act marked the first time
that the District’s public was charged for sewer services on a recurring basis. As originally
enacted, in section 206 of Title II, “Sanitary Sewage Works,” the 1954 Act provided that
the “Commissioners [of the District of Columbia] are authorized to establish charges for
the provision of sanitary sewer service, such charges to be collected in the same manner
and at the same time as water charges are collected, and to be paid into the D.C. Sanitary
Sewage Works Fund.” Id.The 1954 Act also marked the first time the United States was to be charged for
sewer services rendered by the District. The provision in section 212(a) of the 1954 Act,
as originally enacted, stated:
The sanitary sewer service charges prescribed herein shall be applicable to
all sanitary sewer services furnished by the sanitary sewage works of the
District through any connection thereto for direct use by the Government of
the United States or any department, independent establishment, or agency
thereof, and such charges shall be predicated on the value of water and
water services received by such facilities of the Government of the United
States or any department, independent establishment, or agency thereof
from the District water supply system. Payment of the said sanitary sewer
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service charge shall be made as provided in subsection (b) of this section:
Provided, That the aggregate amount of such sanitary sewer service charge
for each fiscal year shall be determined in the manner prescribed in section
207 hereof: Provided further, That the obligation to pay for sanitary sewer
services received by the Government of the United States or any
department, independent establishment, or agency thereof shall be with
respect to such service furnished on and after July 1, 1954.
Id. § 212(a) (capitalization and emphasis in original). In section 212(b), the 1954 Act
provided:
For the purpose of effectuating the provisions of subsection (a) of this
section there shall be included annually in the budget estimates of the
Commissioners beginning with the estimates for the fiscal year ending June
30, 1955, the value as determined by the Commissioners of the sanitary
sewer service furnished to the United States or to any department,
independent establishment, or agency thereof during the most recent
preceding fiscal year for which such value can be determined based on the
rates for such charges prevailing during the period of such service, and
there shall be appropriated annually for the D.C. Sanitary Sewage Works
Fund out of any money in the Treasury not otherwise appropriated (to be
advanced on July 1 of each fiscal year beginning in July 1, 1954) a sum
corresponding to the said value of charges for sanitary sewer service
furnished the United States.
Id. § 212(b) (capitalization in original). Title II of the 1954 Act was incorporated into the
D.C. Code in what is now D.C. Code § 34-2101, et seq. Neither the AFRH (including any
of its predecessors-in-interest), nor the 1938 Agreement, were mentioned in the 1954 Act.
Relevant to the above-captioned case, in 1989, section 212 of the 1954 Act was
amended and section 212(b) imposed a specific set of instructions on (1) the Secretary
of the Treasury, (2) the District, and (3) each Federal entity receiving sanitary sewer
services from the District before the District was to receive payment from the United
States for sanitary sewer services rendered by the District. As amended in 1989, section
212(b) provided, in full:
(b)(1) Beginning in the second quarter of fiscal year 1990, the government
of the District of Columbia shall receive payment for sanitary sewer services
from funds appropriated or otherwise available to the Federal departments,
independent establishments, or agencies. In accordance with the provisions
of paragraphs (2) and (3) of this subsection, one-fourth (25 percent) of the
annual estimate prepared by the District government shall be paid, not later
than the second day of each fiscal quarter, to the District government by the
Secretary of the Treasury from funds deposited by said departments,
establishments, or agencies in a United States Treasury account entitled
“Federal Payment for Water and Sewer Services.” In the absence of
13
sufficient funds in said account, payment shall be made by the Secretary of
the Treasury from funds available to the United States Treasury and shall
be reimbursed promptly to the United States Treasury by the respective
user agencies. Payments shall be made to the District government by the
Secretary of the Treasury without further justification, and shall be equal to
one-fourth (25 percent) of the annual estimate prepared by the District
government pursuant to paragraph (2) of this subsection.
(2) By April 15 of each calendar year the District shall provide the Office of
Management and Budget, for inclusion in the President’s budget of the
respective Federal departments, independent establishments, or agencies,
an estimate of the cost of service for the fiscal year commencing October
1st of the following calendar year. The estimate shall provide the total
estimated annual cost of such service and an itemized estimate of such
costs by Federal department, independent establishment, or agency. The
District’s estimates on a yearly basis shall reflect such adjustments as are
necessary to (1) account for actual usage variances from the estimated
amounts for the fiscal year ending on September 30th of the calendar year
preceding April 15th, and (2) reflect changes in rates charged for water and
sewer services resulting from public laws or rate covenants pursuant to
water and sewer revenue bond sales.
(3) Each Federal department, independent establishment, or agency
receiving sanitary sewer services in buildings, establishments, or other
places shall pay from funds specifically appropriated or otherwise available
to it, quarterly and on the first day of each such fiscal quarter, to an account
in the United States Treasury entitled “Federal Payment for Water and
Sewer Services” an amount equal to one-fourth (25 percent) of the annual
estimate for said services as provided for in paragraph (2) of this
subsection.
(4) The amount or time period for late payment of charges for sanitary sewer
services involving a building, establishment, or other place owned by the
Government of the United States imposed by the District of Columbia shall
not be different from those imposed by the District of Columbia on its most
favored customer.
District of Columbia Appropriations Act, 1990, Pub. L. No. 101-168, 103 Stat. 1267, 1281–
82 (1989) (capitalization in original). As indicated in the quote immediately above, and of
particular relevance to the above-captioned case, section 212(b), as amended in 1989,
required that the District, “[b]y April 15 of each calendar year, shall provide the Office of
Management and Budget, for inclusion in the President’s budget of the respective Federal
departments, independent establishments, or agencies, an estimate of the cost of service
for the fiscal year commencing October 1st of the following calendar year.” Id. (emphasis
added). The parties refer to this provision of required annual estimates as the Federal
Cost of Service Estimates (FCSE). Subsection 212(b)(2) was later amended in 2001 to
14
require that the District provide its annual FCSE, in addition to the Office of Management
and Budget, also to “the Secretary of Treasury, and the head of each of the respective
Federal departments, independent establishments, and agencies.” See District of
Columbia Appropriations Act, 2002, Pub. L. No. 107-96, 115 Stat. 923, 943 (2001). The
District of Columbia Appropriations Act of 2002 also added subsection 212(c), which
stated:
Nothing in this section may be construed to require the District of Columbia
to seek payment for sanitary sewer services directly from any Federal entity
which is under the jurisdiction of a department, independent establishment,
or agency which is required to make a payment for such services under this
section, or to allocate any amounts charged for such services among the
entities which are under the jurisdiction of any such department,
independent establishment, or agency. Each Federal department,
independent establishment, and agency receiving sanitary sewer services
from the District of Columbia shall be responsible for allocating billings for
such services among entities under the jurisdiction of the department,
establishment, or agency, and shall be responsible for collecting amounts
from such entities for any payments made to the District of Columbia under
this section.
Id.Subsequent Correspondence between DCWS and AFRH
As discussed below, the parties have submitted to the court various copies of
correspondence between DCWS and the AFRH, beginning in 1990, in which DCWS and
the AFRH discuss their respective positions regarding the sewer service charges
allegedly owed by the AFRH to DCWS. On June 25, 1990, John Touchstone, then the
Director of the District of Columbia Department of Public Works, DCWS’ predecessor-in-
interest, wrote the following letter to Colonel (Retired) R.W. Hampton, then the Secretary
Treasurer of the Soldiers’ Home, AFRH’s predecessor-in-interest, regarding the validity
of the 1938 Agreement and its applicability to sewer services:
This is in response to your letter of January 10, 1990, addressed to Mr.
James E. Dennis, regarding a 1938 Agreement between the District
Government and the U.S. Soldiers’ and Airmen’s Home. We regret the
delay in responding to your inquiry. However, it was necessary for us to
allow the D.C. Corporation Counsel to review the agreement, prior to
accepting or denying the terms outlined.
The Corporation Counsel recently rendered an opinion on the validity and
enforceability of the agreement. As a result of their opinion, the Department
of Public Works will honor the 1938 Agreement between the U.S. Solders’
and Airmen’s Home and the District of Columbia. The District will continue
to render water and sewer services to the Home without charge.
15
(capitalization in original).
In 1996, DCWS, the successor-in-interest to the District of Columbia Department
of Public Works, and the plaintiff in this case, was established “to plan, design, construct,
operate, maintain, regulate, finance, repair, modernize, and improve water distribution
and sewage collection, treatment, and disposal systems and services, and to encourage
conservation.” Water and Sewer Authority Establishment and Department of Public
Works Reorganization Act of 1996, 1995 D.C. Sess. L. Serv. 11–111 (Act 11–201),
§ 202(c) (1996) (codified as amended at D.C. Code § 34-2202.02(c) (2021)). DCWS was
authorized to “establish, adjust, levy, collect, and abate charges for services, facilities, or
commodities furnished or supplied by it,” D.C. Code § 34-2202.03(11). DCWS was also
authorized to “determine whether churches, charitable organizations, or institutions that
receive annual appropriations from Congress should be furnished with water or sewer
service without charge.” D.C. Code § 34-2202.03(31).
The Resolution of the Board of Directors of the D.C. Water and Sewer Authority,
which was presented and adopted on December 5, 1996, stated:
In accordance with the Water and Sewer Authority Establishment and
Department of Public Works Reorganization Act of 1996, D.C. Law 11-111,
sections 203 (31) and 216 (the Act), the District of Columbia members of
the Board of Directors considered the matter of furnishing water and sewer
services to the United States Soldiers’ Home without charge. The Act
transferred the responsibility for determining whether any customers are to
receive water and sewer services without charge or at reduced rates. Upon
consideration, it was decided by a vote of six (6) in favor, and none (0)
opposed, and be it resolved as follows:
1) Pursuant to an agreement between the U.S. Soldiers’ Home and the
District of Columbia, the Commissioners of the Soldiers’ Home dated
February 1, 1938, granted permission to the District of Columbia to place
an underground reservoir on property conveyed in trust to the U.S. Soldiers’
Home. As consideration the District of Columbia granted the U.S. Soldiers’
Home the perpetual right to use water from the District’s water supply
system without charge. In a legal review of this agreement, an Assistant
D.C. Corporation Counsel and the D.C. Deputy Corporation Counsel for
Public Works determined that under the terms of the Agreement, the District
is obligated to provide water services to the U.S. Soldier’s [sic] Home as
long as the District uses the U.S. Soldiers’ Home property.
2) The Agreement does not obligate the District of Columbia to provide
sewer services without charge to the U.S. Soldiers’ Home, and the April 25,
1990 memorandum of the Office of Corporation Counsel concludes that
“since the Agreement does not discuss the gratuitous sewer services, the
Soldiers’ Home may be legally obligated to pay the District for sewer
16
services.” However, in a memorandum dated June 19, 1990, the Director of
Public Works extended no charge [for] sewer services to the U.S. Soldiers’
Home.
3) The Board of Directors wishes to honor the agreement and continue
providing water without charge to the U.S. Soldiers’ Home. The no charge
sewer services practice will be honored for the remainder of fiscal year
1997.
On or before March 1997, the Board will determine whether to extend no
charge sewer services into fiscal year 1998. To assist in this determination,
the Interim General Manager shall cause a comparative analysis of the
annual value of the right to use the U.S. Soldiers’ Home property for the
reservoir and the value of the no water charge and/or water and sewer
services since June 1990. The analysis should be submitted for
consideration by the Retail Rates Committee at its February 1997 meeting.
(capitalization in original).
In a letter dated January 12, 2004, the Chief Financial Officer of DCWS, Mr. Paul
Bender, wrote to the Facilities Manager of the Soldiers’ Home, stating:
The U.S. Soldiers’ and Airmen’s Home (“Soldiers’ Home”) receives free
water service from the District of Columbia Water and Sewer Authority
(WASA) for eight accounts pursuant to an agreement executed in 1928 [sic]
between the District of Columbia and the Soldier’s Home
WASA, and before October 1996 the District of Columbia Government, has
also provided the Soldier’s Home sewer service at no charge even though
sewer service is not part of the agreement. In 1996, the WASA Board of
Directors reviewed the agreement with Soldier’s Home and determined that
the sewer exemptions should be eliminated; this was part of an overall
elimination of all other free services that were then being provided by the
D.C. Government, including free water and sewer service to the District of
Columbia Government itself.
Therefore, effective July 1, 2004, WASA will begin to bill Soldier’s Home for
sewer service for all of its accounts. The institution of sewer fees is also
consistent with federal law; fee exemptions of sewer services conflict with
Section 204(b)(1) of the Clean Water Act (PL 92-500). Federal regulations
require elimination of any contract that contravenes this section of the law.
Free water service for the eight accounts will continue for the time being.
WASA desires to open discussion with Soldier’s Home regarding the
continuation of free water service and the value already provided to the
Home compared to the value of the property. We also need to resolve with
17
you the historical unbilled amounts for sewer service.
Soldiers’ Home eight exempt accounts registered 70,000 hundred cubic
feet (ccf) of use from October 2002 to September 2003. WASA’s
wastewater rate is $2.57 per ccf. We estimate the annual cost of sewer
service to these eight accounts to be approximately $180,000. WASA
understands this amount may impose a financial burden on the Soldier’s
Home and we welcome your thoughts on how to mitigate this impact.
I would like to meet with you to develop a mutually agreeable plan to
implement sewer charges for these accounts and resolve these issues. I
will contact you to arrange a meeting.
(capitalization in original).
Based on the record before the court, including the supplemental submissions filed
by both parties, it appears that DCWS did not attempt to charge the AFRH for sewer
services rendered until at least 2004. Plaintiff alleges that “[b]eginning in 2004, and at
regular, [sic] intervals since,” DCWS “has billed AFRH for sewer services provided which
includes impervious area charges.” Although plaintiff has produced a number of
spreadsheets and tables documenting charges for various sewer services rendered by
the DCWS to the AFRH, plaintiff has produced little evidence that it had sent billings for
such sewer services to the AFRH at “regular intervals” since 2004. There are only two
actual “billings” which have been produced in the record before the court, even after
multiple instructions to the parties to file fuller and more complete documentation if
available. One billing is a “Bill Summary,” dated March 9, 2012, indicating a bill amount
to the AFRH for $1,794,808.89, of which $1,744,174.48 is indicated as past due. The
second billing is a “Group Bill Summary,” dated May 25, 2018, which indicates a total
amount due by the AFRH of $12,472,946.91, of which $12,452,520.54 is indicated as
past due. Plaintiff also states in supplemental briefing:
Beginning in October 2007, DC Water’s electronic data system records
reflect billings for sewer services being sent to:
Soldiers’ Home,
ACCTG OPS/UNB Building 5th FL,
Bureau of Public Debt/PO BOX 1328,
Parkersburg, WV 26106
(hereinafter referred to as the “West Virginia AFRH business address”).
(capitalization in original).3
3 Although plaintiff alleges that “billings were sent to” the above West Virginia address,
plaintiff has not produced any billings sent to that address, including the two billings
discussed above, for the record before the court.
18
Based on the record before the court, DCWS retained a consultant company, PB
Consult, and, in a July 16, 2004 memorandum from David Earley of PB Consult to Paul
Bender, Chief Financial Officer of DCWS, Thomas Bridenbaugh of Leftwich & Ludaway,
LLC, Nick Amrhein of PB Consult, and John Cromwell of Stratus Consulting, Mr. Earley
estimated that “[c]umulatively, the Soldiers Home has received $13.3 million in water and
sewer services over the 65 year period.”
The court notes that, according to plaintiff, in 2010, DCWS and the AFRH began
another negotiation to “construct a five-million-gallon reservoir” on AFRH’s premises. A
January 20, 2011 email from Jessica Demoise of the DCWS Department of Engineering
and Technical Services, to Jody Russell of the AFRH provided, in relevant part:
This email summarizes our meeting today, January 20th, with Soldiers
Home regarding the feasibility of locating a 5MG tank on their property.
We met with Justin Seffens, Chief of Campus Operations, and Steve
McManus, Acting GM and Deputy COO/CFO. They stated that AFRH is
open to the idea of locating the tank at the Eisenhower Drive site, and
requested that the design include a garden on top of the tank. A condition
of AFRH’s cooperation is that DC Water must renew the agreement to
provide water service on a perpetual basis. (It should be noted that AFRH
believes that their sewer is also currently subsidized.)
(capitalization in original).
In a February 2, 2011 email from Olu Adebo, Chief Financial Officer of DCWS, to
Steven McManus of the AFRH, Mr. Adebo wrote:
I am reaching out to you and your team to find out how we can resolve a
long standing financial dispute between our 2 agencies. As you may already
be aware, Soldiers Home currently owes over $4m in unpaid sewer charges
on its sewer account. In addition, while we wish to continue to honor the
current agreement for providing free water (this agreement does not
obligate the Water Authority to provide free sewer), due to the extensive
passage of time since the agreement was struck, we will like to discuss and
clarify certain aspects of the agreement.
Note that although, we started to bill your agency for sewer services in 2004,
to date, we have not received any payment or formal notification explaining
your lack of payment. Also, note that between 1996 and 2004 we made
numerous attempts to understand the basis for an exemption to your
agency for sewer services, however, to date, no one has been able to
substantiate the basis for the exemption. Our suspicion is that the
19
exemption stems from an old tradition (that has long since changed) of
providing free water and sewer to government and non-profit type
organizations in the District. Note that after 1996 through legislation and
rulemaking in the District this exemption was cancelled for all entities and
every customer now pays for services provided.
While we concede that an existing agreement obligates us to provide free
water, we however see no basis, or know of any basis (in light of our current
legislative structure), for not charging for sewer services on your accounts.
As I stated above, the outstanding balance now exceeds $4m and has risen
to the attention of our board of directors who have identified this as a critical
issue that has to be dealt with this fiscal year. Coincidentally, we are also
interested in discussing with you an option to build additional water facility
on your premises, which could create an opportunity to discuss and
negotiate these matters.
I have been tasked by our General Manager and Board to coordinate a
resolution to this matter. Please confirm that you are the appropriate officer
in your organization to work with directly on this matter, and if so when we
can reasonable [sic] expect to get together “soon” to discuss. If you are not
the appropriate officer please direct me to the correct party. I look forward
to a productive dialogue and a timely resolution to this matter.
(capitalization in original). On February 3, 2011, Mr. McManus of the AFRH responded:
Mr. Adebo, Thank you for your note. As the agency head, I’m probably the
best person to start with. Please see attached memo from DC Public Works
dated June 25, 1990. Based on this letter I’m not sure it is correct to use the
terminology – “long standing financial dispute between our 2 agencies.”
Also believe it is important to understand and point out that our 1938
agreement that was validated in 1990 by the DC Corporation Counsel was
the result of DC placing a large water reservoir on the AFRH-W Campus
and not because we were government or a non-profit. We look forward to
discussing the mutual benefits of DC building an additional water facility on
AFRH. We are in the process of moving real property support from GSA to
DoD. Would expect this to take another 30 to 60 days. Once this
realignment has occurred we will reach out for discussions. Is that timeline
acceptable to you?
Mr. Adebo responded the same day, February 3, 2011, writing:
Thanks for your timely response on this matter. I will appreciate if we can
meet within the next two weeks to clarify the facts around our current
arrangement. If that works I will send you some tentative dates for such a
meeting.
20
The long standing dispute I referenced was related to the sewer bills and
not water. I expect that this meeting I requested would set the stage for our
negotiation meetings in the very near future.
Finally, also on February 3, 2011, Mr. McManus responded: “Mr. Adebo, Understand, but
the letter dated June 25, 1990 by DC validated both water and sewer. I will be in Gulfport,
MS all next week. You are welcome to propose some dates the following week.” No
further communications between Mr. Adebo and Mr. McManus are included in the record
before the court.
In a supplemental brief, plaintiff asserts:
Between 2012 and 2017, negotiating teams from AFRH and DC Water met
to discuss AFRH’s payment for water and sewer services regarding the
following issues: whether the residential properties that AFRH rented
should receive free water services, whether there should be a cap on free
water services to encourage conservation, whether the 1938 Agreement
exempted AFRH from payment for sewer, whether the meters were
accurately recording water consumption necessary for sewer billing,
whether all accounts were active, whether there was any objection to DC
Water’s statement of amounts due, defining core (essential to AFRH’s
mission) and non-core properties and buildings for services, whether an
agreement could be reached for a valuation of the past consumption of
water in order to agree on an amount for the past sewer services and a time
frame for payment for the past, ongoing and future services.
Throughout this litigation the parties have provided little documentation of the
negotiations between the parties between 2012 and 2017 or copies of billing statements
from the DCWS to the AFRH, even after multiple requests from the court for more
evidence of comprehensive communications or documentation. The record before the
court does include a May 7, 2012 letter from Justin Seffens, Chief of Campus Operations
of the AFRH, to Jacqueline Brown-Ervin, a Commercial Care Associate of DCWS, stating:
The Armed Forces Retirement Home disputes the three (3) Billings, sent by
FedEx dated May 1, 2012 to this facility because we are exempt from
charges pursuant to a longstanding Agreement between the Armed Forces
Retirement Home and the District of Columbia Water and Sewer Authority,
whereby, in 1939 [sic], the District of Columbia agreed to exempt the Armed
Forces Retirement Home. The Armed Forces Retirement Home and DC
Water are currently negotiating a resolution to this dispute, and until this
dispute is resolved, the Armed Forces Retirement Home shall continue to
officially dispute all billing charges.
(capitalization and emphasis in original). As discussed above, there are only two billing
records which were provided for inclusion in in the record before the court: one in March
of 2012, and one in May of 2018. It is, therefore, unclear as to which “three (3) Billings,
21
sent by FedEx dated May 1, 2012,” mentioned in the quote immediately above, Mr.
Seffens of the AFRH is referring. Plaintiff also alleges that “DC Water and AFRH entered
into a Tolling Agreement to stay the running of the District of Columbia’s three – year
statute of limitations while exploring efforts to resolve the impasse over the payment for
sewer services,” starting on January 22, 2013, and that the “January 2013 Tolling
Agreement was thereafter renewed every six months until January 10, 2017 when the
term of the agreement was set for one-year to expire on January 9, 2018.” Plaintiff states
that “[i]n December 2017, Joseph H. Pollard, AFRH’s General Counsel, advised DC
Water that AFRH would not extend the tolling agreement beyond its January 8th [2018]
expiration.” In its supplemental submissions to the court, plaintiff provided a January 22,
2013 Tolling Agreement, as well as a January 10, 2017 extension, but did not produce
any record of the extensions in between or beyond those dates.
DCWS’ Annual Federal Cost of Service Estimate Submission
Plaintiff concedes that “[p]rior to April 15, 2019, DC Water did not include the AFRH
in the annual FCSE submitted to the Office of Management and Budget, the United States
Treasury and the Department of Defense official responsible for AFRH.” The record
before the court contains an April 13, 2021 affidavit from Carolyn Mackool, who attested
that “[s]ince 2017” she has “been the Director of Customer Care for the District of
Columbia Water and Sewer Authority,” and that among her duties are to “supervise
accounting and billing services to customers, including federal departments, agencies,
and independent establishments of the United States Government.” Additionally, Ms.
Mackool attested that “[u]ntil January 2019, DC Water treated AFRH as a commercial
account, exempted from paying for drinking water, billed on a retrospective pay as you
go basis.” She further attested that “[a]t least once every year, on or about April 15th, DC
Water provides the United States its estimate of the cost of service for the upcoming fiscal
year for each of the United States’ agencies, federal departments, and independent
establishments.” Ms. Mackool further attested that up until 2019, DCWS “had not included
the sewer services provided to AFRH as part of the Federal Cost of Service Estimate
(FCSE) for any fiscal year,” but that “[i]n January 2019, the Department of Customer
Services became aware that AFRH was a federal entity and should be included in the
federal estimate.” Ms. Mackool further attested that DCWS then “prepared a summary of
the costs of sewer services provided to AFRH from FY2010 through FY2017,” which
“were thought to be those for which we could legally recover costs.” She further indicated
that, on January 23, 2019, DCWS “provided this summary of sewer services costs to the
U.S. Treasury as a true-up for sewer services provided to the AFRH and requested
payment for those services,” but that DCWS’s “request was denied.”4
In the record before the court, plaintiff produced a ten-page set of spreadsheets
which appear to be what plaintiff and Ms. Mackool refer to as the “true-up” provided to the
United States Treasury on January 23, 2019 for sewer services and impervious area
4 In a footnote to Ms. Mackool’s April 13, 2021 affidavit, she explained that her “best
recollection is the denial was communicated in a telephone conversation to members of
my staff from the Treasury officials with whom they had been communicating.”
22
charges allegedly incurred by the AFRH. The January 23, 2019 “true-up” is specific to the
AFRH, and is a separate document from the FCSE’s submitted later in 2019, which are
discussed below. The first spreadsheet of the January 23, 2019 “true-up” is titled:
“FY2020 Federal Billing Estimate & FY2017 True-up (For Agencies Appropriations).”
(capitalization and emphasis in original). For the first eight pages of the spreadsheet, the
years listed in the title of each page decreases one fiscal year from the previous page,
with the eighth page titled: “FY2013 Federal Billing Estimate & FY2010 True-up (For
Agencies Appropriations).” (capitalization and emphasis in original). In each of the first
eight pages, for each of the fiscal years for federal billing estimate and true-up indicated
in the title, there are columns named: “Estimated Amount Billed,” “Actual Usage Cost,”
and “Adjustment for . . . Actual Usage Variance,” and are associated with the following
five categories of fees: “WSRF [Water System Replacement Fee],” “METERING FEE,”
“CLEAN RIVERS IAC [Impervious Area Charge (CRIAC)],” “STORMWATER,” and
“RIGHT-OF-WAY FEE.” (capitalization and emphasis in original). Almost all of the
amounts in the “Estimated Amount Billed” columns, however, are left empty, and all of
the amounts in the “Actual Usage Cost” columns are identical to the amounts in the
“Adjusted for . . . Actual Usage Variance” columns. (emphasis in original). For example,
the following WSRF and metering fees are listed in the first spreadsheet page, which is
titled: “FY2020 Federal Billing Estimate & FY2017 True-up (For Agencies
Appropriations):”
The ninth page of the spreadsheet lists the same categories of fees, but focuses on “Pre
FY2010 Past Due Amount[s].” (capitalization and emphasis in original). The tenth page
appears to contain the sum of all previous costs from the document, and lists a final “Total
Past Due” for the charges in the amount of $10,637,264.10 (capitalization and emphasis
in original).
As explained in the April 13, 2021 affidavit of Ms. Mackool, “[o]n or about April 18,
2019, DC Water submitted its FCSE” for the fiscal year 2021, “to the United States Office
of Management and Budget, U.S. Treasury and appropriate officials of federal agencies,
departments, and independent establishments of the United States, including AFRH,
included in the FCSE.” Ms. Mackool further attested that “[o]n July 16, 2019, DC Water
submitted a revised estimate for FY2021 to correct certain formulaic errors that affected
all of DC Water’s calculations throughout the estimate.” Plaintiff has produced both the
initial 2019 FCSE, dated April 15, 2019, as well as the revised, July 16, 2019 submission,
both of which are for the fiscal year 2021.5 Both the April 15, 2019 FCSE and the revised,
5 Plaintiff’s submissions also include another affidavit from Carolyn Mackool, dated
December 18, 2019, in which Ms. Mackool attested that the “[o]n or about April 18, 2019”
FCSE submission was for the 2022 fiscal year, not for the 2021 fiscal year. That the April
15, 2019 FCSE, or revised July 16, 2019 FCSE, provided estimates for the 2022 fiscal
23
July 16, 2019 FCSE include a cover letter, which states, as taken from the July 16, 2019
version:6
This letter serves to formally transmit a revision of the FY 2021 water and
sewer bill for all federal agencies served by the District of Columbia Water
and Sewer Authority (DC Water). We reviewed the previously issued
Federal Cost of Service Estimate for FY2021 and identified some errors,
including the incorrect version of Exhibit V. In addition, there were some
incorrect formulas in Exhibit I. These errors have caused some confusion
and we are reissuing the Cost of Service Estimate for FY2021 with the
appropriate corrections. In the interest of improving our process, minimizing
our risk for data link errors, and providing less redundant information, we
reduced the FY2021 estimate from eleven exhibits to four. This decision
was made in conjunction with the Department of Treasury and our legal
counsel. It is our sincerest hope you find this document easier to understand
and identify the responsibility of each respective agency.
As detailed further in the enclosed documents, the total water and sewer bill
for all federal agencies is approximately $101,518,263.58. This bill is net of
the FY 2018 actual settlement as required by federal law and as further
explained below.
This bill constitutes the basis for appropriation of FY 2021 federal payment
for all services furnished by DC Water in accordance with the DC Public
Works Act of 1954, as amended, and Public Laws 103-334, 107-96 and
108-335. The enclosed detail exhibits accommodate the change to the
legislation, Public Law 111-378, that clarifies federal responsibility for
payment of storm water charges and restricts payment of such storm water
charges from permanent appropriation of the U.S. Treasury. As a result, the
enclosed bill delineates the portion of the appropriation that will be paid from
the U.S. Treasury permanent authorization account and the remaining
balance that will be paid directly from each federal agency account. The
total amount remains the sum of the appropriation required for each agency.
year is in contradiction to the information transmitted either by the original or the revised
2019 FCSE, both of which state that the estimates pertained to fiscal year 2021. Adding
further confusion, plaintiff’s amended complaint states that the “[o]n or about April 18,
2019” FCSE submission was for estimates pertaining to “the upcoming fiscal year,” which
neither would be for the 2022 or for the 2021 fiscal year, but for the 2020 fiscal year. In
supplemental briefing to the court, plaintiff states that its references to the 2019
submissions of its FCSE were for the 2021 fiscal year.
6Aside from the first paragraph added to the cover letter of the July 16, 2019 revised
FCSE, which explains the need for the revision, the July 16, 2019 FCSE cover letter is
substantially similar to the April 15, 2019 FCSE cover letter.
24
Each agency is required to pay the IPAC[7] request they receive from the
Department of Treasury. In the event an agency disputes what is owed, they
should contact the designated billing agent. If adjustments are warranted,
we will correct individual accounts and the outcome will be reflected on the
true-up for the agency. As in previous years, we have included detailed
information, by federal agency and meter, for your reference, and consistent
with federal law, are transmitting a copy of this estimate to all federal
agencies (see enclosed distribution list).
(capitalization in original). Notably, the July 16, 2019 FCSE lists as a “[k]ey assumption[]
for the FY 2021 billing,” that “[t]his year’s adjustment includes billing from 2012 to 2018
for Department of Defense- AFRH in the amount of $7.5 million.” Enclosed with the July
16, 2019 transmission letter is an exhibit which lists the “FY2021 Net Federal Bill
Payment (For Agencies Appropriations),” and provides, with respect to the AFRH, that
the AFRH’s “Total FY2021 Estimate” equals $1,747,090.49; that the AFRH’s “FY18
True-Up,” which, based on the “[k]ey assumption” described in the July 16, 2019 letter,
includes “billing” to the AFRH from 2012 to 2018, equals $7,487,138.27; that the “Total $
FY2021 Bill Amount,” which is the previous two amounts added together, equals
$9,234,228.76, and of that amount, $648,299.31 is for stormwater charges; and that the
“US Treasury Total $ FY2021 Bill” for the AFRH, which is equal to the “Total $ FY2021
Bill Amount” for the AFRH, less AFRH’s stormwater fees, is calculated as
$8,585,929.45. (capitalization and emphasis in original).
DISCUSSION
This case was originally filed in the United States District Court for the District of
Columbia on January 9, 2018, and subsequently transferred from the United States
District Court for the District of Columbia to the United States Court of Federal Claims in
October 2018. In this court, the case was originally assigned to Judge Thomas C.
Wheeler. The case was stayed to allow for plaintiff to submit its 2019 FCSE for the 2021
fiscal year. Once plaintiff had submitted its estimate for the 2021 fiscal year, plaintiff filed
an amended complaint containing four counts. The parties subsequently stipulated to
dismiss the first two counts. Plaintiff’s remaining two counts allege a violation of the 1954
Act, which plaintiff argues created a statutory obligation for the AFRH to make payments
for sewer services rendered by the District, and alleges a claim for quantum meruit and
that AFRH has received valuable sewer services from DCWS without payment.
After the amended complaint was filed, defendant initially filed a motion to dismiss
pursuant to RCFC 12(b)(1) or RCFC 12(b)(6). With respect to the motion to dismiss
pursuant to RCFC 12(b)(6), defendant argues that plaintiff’s amended complaint fails to
state a claim because the 1938 Agreement must be read to prevent DCWS from charging
the AFRH for sewer services. Defendant argues that: (1) the 1938 Agreement was
“unambiguous” and included sewer services free of charge to the AFRH; (2) the laws in
7 Although not defined in the revised July 16, 2019 FCSE, IGPC appears to be an acronym
for “Intra-Governmental Payment and Collection.”
25
effect at the time of the 1938 Agreement treat water and sewer services similarly; (3)
plaintiff’s predecessor-in-interest acknowledged that the 1938 Agreement encompassed
sewer services; and (4) plaintiff’s inaction in attempting to charge AFRH for sewer
services until 2004 constitutes a waiver of plaintiff’s right to now bring suit for payments
plaintiff might have attempted to start recovering as early as 1954. Defendant also
alternatively argues, pursuant to RCFC 12(b)(1), that plaintiff lacks jurisdiction to bring all
but one year of plaintiff’s claims for recovery of payments allegedly due, because “[t]he
District does not allege proper submission of any AFRH sewer charges until April 2019.”
(emphasis in original). As discussed above, plaintiff alleges in its amended complaint that
it has billed the AFRH “at regular intervals” since 2004, but, until 2019, had not ever
included the AFRH in its annual submission of its FCSE.8 Defendant excludes from its
RCFC 12(b)(1) jurisdictional motion, plaintiff’s claim for the recovery of such funds related
to its April 2019 submission of estimates as they pertain to the 2021 fiscal year, but argues
that recovery of such funds nevertheless fails for the reasons discussed in its RCFC
12(b)(6) motion. Defendant also argues that plaintiff lacks jurisdiction to the extent it seeks
to recover impervious area charges, because the 1954 Act, as amended, does not waive
sovereign immunity for such charges. After the parties completed briefing on defendant’s
motion to dismiss, the parties brought cross-motions for summary judgment which
generally tracked the parties’ arguments addressed in the briefing for the motions to
dismiss. The above captioned case was first transferred to another Judge of this court
before ultimately being assigned to the undersigned for resolution during the summary
judgment briefing. After oral argument on the motions to dismiss and for summary
judgment, the court ordered the parties to submit supplemental briefings to explain their
respective positions on the interplay between the 1954 Act and the 1938 Agreement, as
well as to give the parties an opportunity to supplement the record with additional relevant,
but apparently missing, documents. In defendant’s supplemental briefing, defendant
continues to maintain that plaintiff is not entitled to payment for sewer services rendered
because of the 1938 Agreement in which the District, according to defendant, agreed to
provide sewer services, in addition to water services, to AFRH’s predecessor-in-interest
8 In supplemental briefing to the court, plaintiff stated:
On April 15, 2020, DC Water submitted its FCSE for FY2022 to the federal
government for federal entities including the AFRH. The FY2022 for AFRH
includes a True-up for FY 2019 of the actual charges incurred in FY2019
although there was not a prior estimate for the fiscal year charges. On April
15, 2021, DC Water will submit its FCSE for FY2023. This estimate will have
a True-up for of [sic] the actual charges incurred in providing sewer services
to the AFRH in FY2020 although there was not a prior estimate for the fiscal
year charges. The methodology for estimating the cost of services and
True-up are the same for each fiscal year and consistent with DC Water’s
treatment of other federal customers.
(capitalization in original). The court also notes that plaintiff also requests in its
supplemental briefing that the undersigned issue “an Order approving the methodology
for calculating the Federal Cost of Service Estimates for FY2022 and FY2023.”
26
free of charge and in perpetuity in exchange for the permission to build a water distribution
reservoir on the property on which the AFRH is situated. Although the defendant does not
dispute that the 1954 Act generally obligates the United States and its federal entities
situated in the District to pay for sewer services rendered by the District, defendant argues
that the obligation does not apply to the AFRH.
Defendant also does not dispute the general authority of Congress to obligate the
United States to pay for sewer services rendered to the AFRH by the District, or the
authority of Congress to effectively nullify the 1938 Agreement through the passage of
legislation. Defendant argues, however, that “any interpretation of the 1954 Act must
necessarily account for the 1938 agreement,” and, thus, an exception for the AFRH must
be read into the 1954 Act and its subsequent amendments, such that the AFRH is to be
excluded from the general mandate that federal entities are to compensate the District for
sewer services rendered. Defendant argues that congressional intent to uphold the
AFRH’s rights gained from the 1938 Agreement is evidenced by the 1954 Act’s failure to
explicitly “disband the parties’ earlier 1938 Agreement if it wished to eliminate its [the 1938
Agreement’s] protections.” Defendant argues that “harmony” between the 1938
Agreement and the 1954 Act “is further supported by the fact that both parties’ behavior
shows that they understood Congress did not intend to obviate the parties’ 1938
agreement.” Defendant also argues that it would achieve an “absurd result” if the 1954
Act, which, in addition to section 212, mandates, in a similar, but separate, provision,
federal entities to pay for water services, as it does for sewer services, were to be read
to nullify the 1938 Agreement in its entirety, because such an interpretation would also
eliminate AFRH’s right to free water services, which, the parties do not dispute, was
agreed to in the 1938 Agreement. Such nullification of the 1938 Agreement, defendant
argues, would “result in an illusory agreement wherein AFRH gets no benefit, and
resultantly, the District had no right to its easement in the first place.” In plaintiff’s
supplemental briefing, plaintiff maintains that the 1938 Agreement did not include sewer
services free of charge and in perpetuity, but that even if the 1938 Agreement did,
Congress exercised its authority through the enactment of the 1954 Act and subsequent
amendments thereto to obligate all federal entities, including the AFRH, to pay for sewer
services rendered.
Construction and Operation of Section 212 of the 1954 Act, as Currently Amended
The amended provisions of section 212 of the 1954 Act are incorporated into the
D.C. Code at § 34-2112, titled: “Sanitary sewer service charges for United States
government.” Section 212, in its entirety, as currently amended, reads:
(a) The sanitary sewer service charges prescribed herein shall be
applicable to all sanitary sewer services furnished by the sanitary sewage
works of the District through any connection thereto for direct use by the
government of the United States or any department, independent
establishment, or agency thereof, and such charges shall be predicated on
the value of water and water services received by such facilities of the
government of the United States or any department, independent
establishment, or agency thereof from the District water supply system.
27
Payment of the said sanitary sewer service charge shall be made as
provided in subsection (b) of this section.
(b)(1) Beginning in the second quarter of fiscal year 1990, the government
of the District of Columbia shall receive payment for sanitary sewer services
from funds appropriated or otherwise available to the Federal departments,
independent establishments, or agencies. In accordance with the provisions
of paragraphs (2) and (3) of this subsection, one-fourth (25 percent) of the
annual estimate prepared by the District government shall be paid, not later
than the second day of each fiscal quarter, to the District government by the
Secretary of the Treasury from funds deposited by said departments,
establishments, or agencies in a United States Treasury account entitled
“Federal Payment for Water and Sewer Services”. In the absence of
sufficient funds in said account, payment shall be made by the Secretary of
the Treasury from funds available to the [United States Treasury and shall
be reimbursed promptly to the United States Treasury by the][9] respective
user agencies. Payments shall be made to the District government by the
Secretary of the Treasury without further justification, and shall be equal to
one-fourth (25 percent) of the annual estimate prepared by the District
government pursuant to paragraph (2) of this subsection.
(2) by April 15 of each calendar year the District shall provide
the Office of Management and Budget, the Secretary of the
Treasury, and the head of each of the respective Federal
departments, independent establishments, and agencies, for
inclusion in the President’s budget of the respective Federal
departments, independent establishments, or agencies, an
estimate of the cost of service for the fiscal year commencing
October 1st of the following calendar year. The estimate shall
provide the total estimated annual cost of such service and an
itemized estimate of such costs by Federal department,
independent establishment, or agency. The District’s
estimates on a yearly basis shall reflect such adjustments as
are necessary to (A) account for actual usage variances from
the estimated amounts for the fiscal year ending on
September 30th of the calendar year preceding April 15th,
and (B) reflect changes in rates charged for water and sewer
9 The Consolidated Appropriations Act for FY2001 amended section 212(b) of the 1954
Act as follows, “in the third sentence of paragraph (1), by striking ‘United States Treasury
and’ and all that follows through ‘by the.’” The versions of section 212 which are published
on Westlaw, Lexis Nexis, Bloomberg Law, and the D.C. Code website do not strike this
language, and there are no subsequent amendments to section 212 in which such
language is reincluded. The parties, in a joint supplemental submission in response to the
court’s inquiry, confirmed an error in the D.C. Code, contrary to the citations on Westlaw,
Lexis Nexis, Bloomberg Law, and the D.C. Code website.
28
services resulting from public laws or rate covenants pursuant
to water and sewer revenue bond sales.
(3) Each Federal department, independent establishment, or
agency receiving sanitary sewer services in buildings,
establishments, or other places shall pay from funds
specifically appropriated or otherwise available to it, quarterly
and on the first day of each such fiscal quarter, to an account
in the United States Treasury entitled “Federal Payment for
Water and Sewer Services” an amount equal to one-fourth (25
percent) of the annual estimate for said services as provided
for in paragraph (2) of this subsection.
(4) The amount or time period for late payment of charges for
sanitary sewer services involving a building, establishment, or
other place owned by the Government of the United States
imposed by the District of Columbia shall not be different from
those imposed by the District of Columbia on its most favored
customer.
(5) Repealed.
(c) Nothing in this section may be construed to require the District of
Columbia to seek payment for sanitary sewer services directly from any
Federal entity which is under the jurisdiction of a department, independent
establishment, or agency which is required to make a payment for such
services under this section, or to allocate any amounts charged for such
services among the entities which are under the jurisdiction of any such
department, independent establishment, or agency. Each Federal
department, independent establishment, and agency receiving sanitary
sewer services from the District of Columbia shall be responsible for
allocating billings for such services among entities under the jurisdiction of
the department, establishment, or agency, and shall be responsible for
collecting amounts from such entities for any payments made to the District
of Columbia under this section.
D.C. Code § 34-2112 (capitalization and emphasis in original) (brackets and strike-out
represent words which were struck by the Consolidated Appropriations Act for FY2001).
In order to reach a decision in the above-captioned case, the court must interpret
section 212 of the 1954 Act. In a statutory construction analysis, the first step is “to
determine whether the language at issue has a plain and unambiguous meaning with
regard to the particular dispute in the case.” Barnhart v. Sigmon Coal Co., 534 U.S. 438,
450 (2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)); see also
Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1056 (2019) (quoting Caraco Pharm.
Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 412 (2012) (“We begin ‘where all such
inquiries must begin: with the language of the statute itself.’” (quoting United States v.
29
Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)))); Jimenez v. Quarterman, 555 U.S.
113, 118 (2009) (“As with any question of statutory interpretation, our analysis begins with
the plain language of the statute.”); Facebook, Inc. v. Windy City Innovations, LLC, 973
F.3d 1321, 1330 (Fed. Cir. 2020) (“Our ‘first step “is to determine whether the language
at issue has a plain and unambiguous meaning with regard to the particular dispute in the
case.”’” (quoting Barnhart v. Sigmon Coal Co., Inc., 534 U.S. at 450 (quoting Robinson v.
Shell Oil Co., 519 U.S. at 340))); Starry Assocs., Inc. v. United States, 892 F.3d 1372,
1377 (Fed. Cir. 2018) Click-To-Call Techs., LP v. Ingenio, Inc., YellowPages.com, LLC,
899 F.3d 1321, 1329 (Fed. Cir. 2018); Starry Assocs., Inc. v. United States, 892 F.3d
1372, 1377 (Fed. Cir. 2018); Bettcher Indus., Inc. v. Bunzl USA, Inc., 661 F.3d 629, 644
(Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2011); Strategic Hous. Fin. Corp. of
Travis Cnty. v. United States, 608 F.3d 1317, 1323 (Fed. Cir.) (“When interpreting any
statute, we look first to the statutory language.”), reh’g and reh’g en banc denied (Fed.
Cir. 2010), cert. denied, 562 U.S. 1221 (2011). “The plainness or ambiguity of statutory
language is determined by reference to the language itself, the specific context in which
that language is used, and the broader context of the statute as a whole.” Robinson v.
Shell Oil Co., 519 U.S. at 341 (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S.
469, 477 (1992); McCarthy v. Bronson, 500 U.S. 136, 139 (1991)); see also King v.
Burwell, 576 U.S. 473, 474 (2015) (“[W]hen deciding whether the language is plain, we
must read the words ‘in their context and with a view to their place in the overall statutory
scheme.’” (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000))). In construing a statute, courts “‘must begin with the language employed by
Congress and the assumption that the ordinary meaning of that language accurately
expresses the legislative purpose.’” Schindler Elevator Corp. v. United States, 563 U.S.
401, 407 (2011) (2011) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009)
(internal quotation marks omitted)). Even “‘[w]hen terms used in a statute are undefined,
we give them their ordinary meaning.’” Schindler Elevator Corp. v. United States, 563
U.S. at 407 (quoting Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995)). “‘Beyond
the statute’s text, the traditional tools of statutory construction include the statute’s
structure, canons of statutory construction, and legislative history.’” Bartels Trust for the
Benefit of Cornell Univ. ex rel. Bartels v. United States, 617 F.3d 1357, 1361 (Fed. Cir.)
(quoting Bull v. United States, 479 F.3d 1365, 1376 (Fed. Cir. 2007)), reh’g en banc
denied (Fed. Cir. 2010); see also Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566
U.S. at 412 (“[W]e consider each question [of statutory interpretation] in the context of the
entire statute.” (citing Robinson v. Shell Oil Co., 519 U.S. at 341)); Roberts v. Sea-Land
Servs., Inc., 566 U.S. 93, 100 (2012); Bush v. United States, 655 F.3d 1323, 1329 (Fed.
Cir. 2011), cert. denied, 566 U.S. 1021 (2012).
The initial inquiry into the statutory text ceases “if the statutory language is
unambiguous and ‘the statutory scheme is coherent and consistent.’” Barnhart v. Sigmon
Coal Co., 534 U.S. at 450 (quoting Robinson v. Shell Oil Co., 519 U.S. at 340); see also
King v. Burwell, 576 U.S. at 474 (“If the statutory language is plain, we must enforce it
according to its terms.” (citing Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251
(2010)); Sucic v. Wilkie, 921 F.3d 1095, 1098 (Fed. Cir. 2019) (quoting Barnhart v.
Sigmon Coal Co., 534 U.S. at 450); Bettcher Indus., Inc. v. Bunzl USA, Inc., 661 F.3d at
644; Arko Foods Int’l, Inc. v. United States, 654 F.3d 1361, 1364 (Fed. Cir. 2011)
(“‘[W]here Congress has clearly stated its intent in the language of a statute, a court
30
should not inquire further into the meaning of the statute.’” (quoting Millenium Lumber
Distrib., Ltd. v. United States, 558 F.3d 1326, 1328 (Fed. Cir.), reh’g denied (Fed. Cir.
2009)); Am. Airlines, Inc. v. United States, 551 F.3d 1294, 1300 (Fed. Cir. 2008). Thus,
when the “‘statute’s language is plain, “the sole function of the courts is to enforce it
according to its terms.”’” Johnson v. United States, 529 U.S. 694, 723 (2000) (quoting
United States v. Ron Pair Enters., Inc., 489 U.S. at 241 (quoting Caminetti v. United
States, 242 U.S. 470, 485 (1917))); see also Jimenez v. Quarterman, 555 U.S. at 118;
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)); Bartels
Trust for the Benefit of Cornell Univ. ex rel. Bartels v. United States, 617 F.3d at 1361
(citing Sharp v. United States, 580 F.3d at 1237); Candle Corp. of Am. v. U.S. Int’l Trade
Comm’n, 374 F.3d 1087, 1093 (Fed. Cir.), reh’g and reh’g denied (Fed. Cir. 2004).
In interpreting the plain meaning of the statute, it is the court’s duty, if possible, to
give meaning to every clause and word of the statute. See Setser v. United States, 566
U.S. 231, 239 (2012) (“Our decision today follows the interpretive rule they invoke, that
we must ‘give effect . . . to every clause and word’ of the Act.” (omission in original)
(quoting United States v. Menasche, 348 U.S. 528, 538–39 (1955))); see also Alaska
Dep’t of Env’t Conservation v. EPA, 540 U.S. 461, 489 n.13 (2004) (“It is, moreover, ‘“a
cardinal principle of statutory construction” that “a statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause, sentence, or word shall be superfluous,
void, or otherwise insignificant.”’” (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)
(quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)))); Williams v. Taylor, 529 U.S. 362,
404 (2000) (describing as a “cardinal principle of statutory construction” the rule that every
clause and word of a statute must be given effect if possible); Boeing Co. v. Sec’y of the
Air Force, 983 F.3d 1321, 1327 (Fed. Cir. 2020) (quoting Shea v. United States, 976 F.3d
1292, 1300 (Fed. Cir. 2020) (“[i]t is a ‘cardinal principle of statutory construction that courts
must give effect, if possible, to every clause and word of a statute.’” (quoting Williams v.
Taylor, 529 U.S. at 364))); Sharp v. United States, 580 F.3d 1234, 1238 (Fed. Cir. 2009).
Similarly, the court must avoid an interpretation of a clause or word which renders other
provisions of the statute inconsistent, meaningless, or superfluous. See Duncan v.
Walker, 533 U.S. at 174 (noting that courts should not treat statutory terms as
“surplusage”). “[W]hen two statutes are capable of co-existence, it is the duty of the courts
. . . to regard each as effective.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 155
(1976); see also Xianli Zhang v. United States, 640 F.3d 1358, 1368 (Fed. Cir.) (citing
Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 1365 (Fed. Cir. 2005)),
reh’g and reh’g en banc denied (Fed. Cir. 2011), cert. denied, 566 U.S. 986 (2012); Hanlin
v. United States, 214 F.3d 1319, 1321 (Fed. Cir.), reh’g denied (Fed. Cir. 2000).
The United States Supreme Court also has held that the specific terms of a statute
supersede general terms within that statute or within another statute that might otherwise
control. See Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228–29 (1957)
(“Specific terms prevail over the general in the same or another statute which otherwise
might be controlling.” (quoting D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208 (1932)));
see also Bloate v. United States, 559 U.S. 196, 207 (2010); Bulova Watch Co. v. United
States, 365 U.S. 753, 761 (1961). In addition, the Supreme Court has endorsed “the
‘normal rule of statutory construction’ that ‘identical words used in different parts of the
same act are intended to have the same meaning.’” Gustafson v. Alloyd Co., 513 U.S.
31561, 570 (1995) (quoting Dep’t of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332, 342
(1994)); see also Kislev Partners, L.P. ex rel. Bahar v. United States, 84 Fed. Cl. 385,
389, recons. denied, 84 Fed. Cl. 378 (2008).
If a statute is unequivocal on its face or the meaning of the statute is plain, there
is usually no need to resort to the legislative history underlying the statute. See Whitfield
v. United States, 543 U.S. 209, 215 (“Because the meaning of [the statute’s] text is plain
and unambiguous, we need not accept petitioners’ invitation to consider the legislative
history . . . .”), reh’g denied sub nom. Hall v. United States, 544 U.S. 913 (2005); but see
Chamberlain Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1196 (Fed. Cir.) (“Though
‘we do not resort to legislative history to cloud a statutory text that is clear,’ Ratzlaf v.
United States, 510 U.S. 135, 147–48 (1994), we nevertheless recognize that ‘words are
inexact tools at best, and hence it is essential that we place the words of a statute in their
proper context by resort to the legislative history.’” (quoting Tidewater Oil Co. v. United
States, 409 U.S. 151, 157 (1972))), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert.
denied, 544 U.S. 923 (2005). In limited circumstances, legislative history may be helpful
in certain instances “to shed light on what legislators understood an ambiguous statutory
text to mean when they voted to enact it into law.” Bruesewitz v. Wyeth LLC, 562 U.S.
223, 242 (2011) (citing Exxon Mobile Corp. v. Allapatah Servs., Inc., 545 U.S. 546, 568
(2005); see also Xianli Zhang v. United States, 640 F.3d at 1373. Legislative history,
however, does not “trump[] clear text.” Bartels Trust for the Benefit of Cornell Univ. ex rel.
Bartels v. United States, 617 F.3d at 1361 (citing Sharp v. United States, 580 F.3d at
1238; Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392, 396 (Fed. Cir. 1990)). The
Supreme Court, however, has noted that when it appears that the plain language of a
statute resolves the issue, a court is to “look to the legislative history to determine only
whether there is [a] ‘clearly expressed legislative intention’ contrary to that language,
which would require us to question the strong presumption that Congress expresses its
intent through the language it chooses.” INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12
(1987) (citing United States v. James, 478 U.S. 597, 606 (1986), abrogated on other
grounds by Cent. Green Co. v. United States, 531 U.S. 425, 436 (2001); Consumer
Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)).
The amended section 212 of the 1954 Act, quoted above, provides for procedures
by which the District is to be paid for sewer services rendered to the federal entities
situated in the District. The general instruction appears in section 212(a), which states:
The sanitary sewer service charges prescribed herein shall be applicable to
all sanitary sewer services furnished by the sanitary sewage works of the
District through any connection thereto for direct use by the government of
the United States or any department, independent establishment, or agency
thereof, and such charges shall be predicated on the value of water and
water services received by such facilities of the government of the United
States or any department, independent establishment, or agency thereof
from the District water supply system. Payment of the said sanitary sewer
service charge shall be made as provided in subsection (b) of this section.
D.C. Code § 34-2112(a). As the immediately above-quoted provision states, sanitary
sewer service charges are to be “predicated on the value of water and water services
32
received by” each federal entity. The value of water and water service are provided in the
D.C. Code at section 34-2401.25, titled: “Water and water service supplied for the use of
the government of the United States,” which states, in relevant part:
All water and water services furnished from the District water supply system
through any connection thereto for direct use by the government of the
United States or any department, independent establishment, or agency
thereof, situated in the District, except water and water services furnished
to the United States for the maintenance, operation, and extension of the
water system, shall be paid for at the rates for the furnishing and readiness
to furnish water applicable to other water consumers in the District.
D.C. Code § 34-2401.25. Reading D.C. Code sections 34-2112(a) and 34-2401.25
together, the United States is to pay for all sanitary sewer services rendered to it by the
District, and the cost of such services are to be based on what the District charges the
United States to supply water to the United States, which is equivalent to what the District
charges the District’s public to supply water.
In order for the District to be paid for sewer services rendered to the United States,
there must be compliance with certain prerequisites identified in the provision of
subsection 212(b), as currently amended and incorporated into the D.C. Code at section
34-2112(b). This subsection (b) divides responsibilities into three steps to be undertaken
by: (1) the District, (2) the federal entities which receive sanitary sewer services from the
District, and (3) the Secretary of the Treasury. See D.C. Code at § 34-2112(b)(1)–(3).
These steps are to be complied with annually, and, with respect to the responsibilities of
the federal entities and the Secretary of the Treasury, actions are required on a quarterly
basis.
Starting with the instructions to the District, which are set forth in section 212(b)(2),
“[b]y April 15 of each calendar year,” the District is to produce annual estimates of sewer
services used by the federal government “for the fiscal year commencing October 1st of
the following calendar year.” D.C. Code § 34-2112(b)(2). By way of example, by April 15,
2019, the District was to have produced its estimates for the fiscal year beginning on
October 1, 2020, which, for purposes of the federal government’s budget, is the fiscal
year of 2021. See Budget of the United States, available at https://www.usa.gov/budget
(last visited Sept. 10, 2021) (“The government’s fiscal year runs from October 1 of one
year to September 30 of the next.”). Section 212(b)(2) also provides specific instructions
to the District with respect to the format of the District’s production of estimates. See D.C.
Code § 34-2112(b)(2). Additionally, section 212(b)(2) states that the estimates are to be
provided to “the Office of Management and Budget, the Secretary of the Treasury, and
the head of each of the respective Federal departments, independent establishments,
and agencies, for inclusion in the President’s budget of the respective Federal
departments, independent establishments, or agencies.” Id. Section 212(b)(2) also
requires the format of the estimates to include “the total estimated annual cost of such
service and an itemized estimate of such costs by Federal department, independent
establishment, or agency.” Id. Section 212(b)(2) also requires that the estimates produced
be adjusted
33
as are necessary to (A) account for actual usage variances from the
estimated amounts for the fiscal year ending on September 30th of the
calendar year preceding April 15th, and (B) reflect changes in rates charged
for water and sewer services resulting from public laws or rate covenants
pursuant to water and sewer revenue bond sales.
Id. Therefore, for example, taking estimates which were to have been produced by the
District on April 15, 2019, such estimates were to have accounted for any differences in
usage from the estimates supplied for the fiscal year 2018, which estimates were to have
been produced by the District by April 15, 2016.
In accordance with the instructions in section 212(b)(2), and, again, using April 15,
2019 as an example, the District was to comply with the following: (1) the estimates
produced by the District by April 15, 2019 were to have been for the fiscal year 2021; (2)
the estimates were to have been produced to the Office of Management and Budget, the
Secretary of the Treasury, and the head of each of the respective federal entities located
within the District to receive such services for the fiscal year 2021; (3) the estimates were
to have included the total amount estimated to be due for all sanitary sewer services
rendered to the United States government in the fiscal year 2021, as well as that total
itemized by each federal department, independent establishment, and agency receiving
such sewer services; and (4) the estimates were to have been adjusted to reflect the
actual usage variances from the estimates which were to have been submitted for the
fiscal year 2018 and which were to have been submitted by April 15, 2016, as well as any
changes in rates resulting from public laws or rate covenants entered into pursuant to
water and sewer revenue bond sales.
Section 212(b)(3) contains instructions for each of the federal entities which are to
receive sanitary sewer services within the District. The instructions delegated to each
federal entity are triggered by the District’s production of estimates, discussed
immediately above. According to section 212(b)(3):
Each Federal department, independent establishment, or agency receiving
sanitary sewer services in buildings, establishments, or other places shall
pay from funds specifically appropriated or otherwise available to it,
quarterly and on the first day of each such fiscal quarter, to an account in
the United States Treasury entitled “Federal Payment for Water and Sewer
Services” an amount equal to one-fourth (25 percent) of the annual estimate
for said services as provided for in paragraph (2) of this subsection.
D.C. Code § 34-2112(b)(3) (capitalization in original). For example, on October 1, 2020,
each federal entity was to have paid to the above-referenced Treasury account one-fourth
of its estimated, allocated amount for the fiscal year 2021, which amount, as discussed
above, was to have been produced by the District by April 15, 2019. An additional one-
fourth payment of the estimated fiscal year 2021 was to have been submitted by each
federal entity by January 1, 2021, April 1, 2021, and July 1, 2021, respectively. As also
discussed above, the estimates produced for the fiscal year 2021 were to have included
an adjustment representing the actual costs of services from the fiscal year 2018, and,
therefore, the payments starting on October 1, 2020 by each federal entity also were to
have reflected such adjustments.
34
Section 212(b)(3) contains the instructions for the Secretary of the Treasury.
Although section 212(b)(2) charges each Federal entity with the primary responsibility to
pay the estimated funds, section 212(b)(1) contemplates that it is the Secretary of the
Treasury who is charged with executing the actual payment of the estimated funds to the
District. See D.C. Code § 34-2112(b)(1). Section 212(b)(1) states:
In accordance with the provisions of paragraphs (2) and (3) of this
subsection, one-fourth (25 percent) of the annual estimate prepared by the
District government shall be paid, not later than the second day of each
fiscal quarter, to the District government by the Secretary of the Treasury
from funds deposited by said departments, establishments, or agencies in
a United States Treasury account entitled “Federal Payment for Water and
Sewer Services”.
Id. Additionally, in the “absence of sufficient funds” in the above-referenced United States
Treasury account, section 212(b)(1) instructs that “payment shall be made by the
Secretary of the Treasury from funds available to the United States Treasury and shall be
reimbursed promptly to the United States Treasury by the respective user agencies.”10 Id.Furthermore, section 212(b)(1) states that “[p]ayments shall be made to the District
government by the Secretary of the Treasury without further justification, and shall be
equal to one-fourth (25 percent) of the annual estimate prepared by the District
government pursuant to paragraph (2) of this subsection.” Id.Reconciliation Between the 1938 Agreement and Section 212 of the 1954 Act, as
Currently Amended and Codified at D.C. Code § 34-2112The parties’ dispute in the above-captioned case revolves around the effect of the
1938 Agreement in light of section 212 of the 1954 Act, as currently amended. As
discussed above, in the 1938 Agreement, the parties’ predecessors-in-interest agreed
that, in exchange for the Soldiers’ Home’s permission for the District to install and access
a water reservoir on the Soldiers’ Home’s premises “for use in connection with the water
supply system,” the Soldiers’ Home would have “the perpetual right to use water from the
water supply system of the District of Columbia, as may be needed, for the purpose of
said Home, including water for fire protection purposes without compensation therefore
at any time.” Defendant argues that such language in the 1938 Agreement must be
interpreted to allow the AFRH, the Soldiers’ Home’s successor-in-interest, to receive, in
addition to water services free of charge and in perpetuity, sewer services free of charge
also in perpetuity. Plaintiff disagrees that uncompensated sewer services were included
in the 1938 Agreement. Moreover, plaintiff argues, regardless of what was agreed to in
the 1938 Agreement, section 212 of the 1954 Act obligates each federal entity situated in
the District, including the AFRH, to pay for sewer services rendered to it by the District.
As noted above, defendant does not dispute that Congress possesses the authority to
enact legislation which could nullify the 1938 Agreement and obligate the AFRH to pay
for sewer services rendered. As further noted above, defendant also does not dispute
that section 212 of the 1954 Act mandates payment from federal entities receiving
10As discussed above, the crossed-out language was stricken by the Consolidated
Appropriations Act for FY2001.
35
sanitary sewer services within the District, but argues that the AFRH is excepted from
such a mandate. Defendant argues that any legislation subsequent to the 1938
Agreement would have had to explicitly evidence congressional intent to nullify the 1938
Agreement. Defendant further argues that section 212 of the 1954 Act does not evidence
explicit congressional intent to nullify the 1938 Agreement because section 212 makes
no reference the AFRH or the 1938 Agreement.
The United States Supreme Court recently discussed the authority of Congress to
mandate the government to pay compensation through the enactment of legislation. See
generally Me. Cmty. Health Options v. United States, 140 S. Ct. 1308 (2020). In Maine
Community Health Options, the Supreme Court ruled on the effect of a statute which, on
its face, appeared to mandate the government to reimburse health insurers participating
in the national health exchanges created by the Patient Protection and Affordable Care
Act (ACA) under certain circumstances. See id. at 1320–21. The Supreme Court found
that “Congress can create an obligation directly through statutory language.” Id. at 1321.
According to the Supreme Court, the statute at issue in Maine, section 1342 of the ACA
“imposed a legal duty of the United States that could mature into a legal liability through
the insurers’ actions—namely, their participating in the healthcare exchanges.” Me. Cmty.
Health Options v. United States, 140 S. Ct. at 1320. The Supreme Court explained:
This conclusion flows from § 1342’s express terms and context. See, e.g.,
Merit Management Group, LP v. FTI Consulting, Inc., 583 U.S. ----, ----, 138
S. Ct. 883, 893, 200 L.Ed.2d 183 (2018) (statutory interpretation “begins
with the text”). The first sign that the statute imposed an obligation is its
mandatory language: “Shall.” “Unlike the word ‘may,’ which implies
discretion, the word ‘shall’ usually connotes a requirement.” Kingdomware
Technologies, Inc. v. United States, 579 U.S. ----, ----, 136 S. Ct. 1969,
1977, 195 L.Ed.2d 334 (2016); see also Lexecon Inc. v. Milberg Weiss
Bershad Hynes & Lerach, 523 U.S. 26, 35, 118 S. Ct. 956, 140 L.Ed.2d 62(1998) (observing that “‘shall’” typically “creates an obligation impervious to
. . . discretion”).
Me. Cmty. Health Options v. United States, 140 S. Ct. at 1320. The Supreme Court in
Maine observed that section 1342 of the ACA used the “shall” “command three times,”
and that Congress opted to use the term “shall” instead of the term “may,” despite the use
of the latter term in section 1342’s “adjacent provisions.” Me. Cmty. Health Options v.
United States, 140 S. Ct. at 1320.
Related to the above-captioned case, section 212 of the 1954 Act, as currently
amended, uses the term “shall” fifteen times.11 By way of example, and relevant to the
federal government’s obligations, section 212 of the 1954 Act uses the term “shall” to
instruct: (1) that the “sanitary sewer service charges prescribed herein shall be applicable
to all sanitary sewer services” rendered by the District to federal entities of United States
situated in the District; (2) that the District “shall receive payment for sanitary sewer
services from funds appropriated or otherwise available to” the federal entities situated in
11The term “shall” also appears one time in the text stricken by the Consolidated
Appropriations Act for FY2001, discussed above.
36
the District; (3) that “[e]ach” federal entity “shall pay” the sanitary sewer service charges
into the named United States Treasury account “from funds specifically appropriated to
it;” (4) that, even in absence of sufficient funds in the named Treasury account, “payments
shall be made” to the District “by the Secretary of the Treasury;” and (5) that “[p]ayments
shall be made to the District government by the Secretary of the Treasury without further
justification.” D.C. Code § 34-2112 (all emphasis added). The term “may” is used only
once in section 212, appearing in section 212(c), to indicate that “[n]othing in this section
may be construed to require” the District of Columbia “to seek payment for sanitary sewer
services directly from any Federal entity which is under the jurisdiction of a department,
independent establishment, or agency which is required to make a payment for such
services under this section.” D.C. Code § 34-2112(c) (emphasis added).
Given the use of the term “shall” fifteen times in section 212 of the 1954 Act, the
court finds that section 212, as currently amended and codified in the D.C. Code at section
34-2112, can create “a legal duty of the United States” that matures into a “legal liability”
if not fulfilled. See Maine Cmty. Health Options v. United States, 140 S. Ct. at 1320. As
was the case in Maine, however, in which the legal liability was contingent upon the
“insurers’ actions—namely, their participating in the healthcare exchanges,” this court
finds that the legal liability imposed upon the United States by section 212 of the 1954
Act is contingent upon the “actions” of the District, namely, the District’s mandatory
production of its annual estimates, or what the parties refer to as the District’s annual
FCSE submission.
As indicated above, section 212(b)(2) of the 1954 Act, as amended, instructs that
the District “shall” comply with the following: (1) by April 15 of each year, the District must
produce estimates of the costs to render sanity sewer services to federal entities in the
District for the fiscal year beginning the following calendar year; (2) such estimates must
be produced to the Office of Management and Budget, the Secretary of the Treasury, and
the head of each of the respective federal entity within the District receiving such services;
(3) such estimates must indicate the total amount estimated to be due for all sanitary
sewer services rendered to the United States government for the relevant fiscal year, as
well as that total itemized by each federal entity to receive such sewer services; and (4)
such estimates must be adjusted to reflect the actual usage variances from the estimates
for the fiscal year preceding April 15th, as well as any changes in rates resulting from
public laws or rate covenants entered into pursuant to water and sewer revenue bond
sales. See D.C. Code § 34-2112(b)(2). If the District does not timely produce its statutorily
required estimates to the various federal entities receiving sanitary sewer services within
the District, as well as to the Secretary of the Treasury and the Office of Management
and Budget, the issue becomes whether the subsequent obligations of a federal entity,
such as the AFRH, are triggered. A federal entity receiving sanitary sewer services from
the District would have great difficulty to be able to determine what the federal entity would
be obligated to pay into the named Treasury account, and, in the event of a federal entity’s
nonpayment of the proper amount into the Treasury account, the Secretary of the
Treasury would also have great difficulty to know what amount is due to be paid to the
District. Therefore, unless the District first completes its statutory obligations, as set forth
in section 212(b)(2) of the 1954 Act, to properly inform the United States of its estimated
sanitary sewer service charges, the United States’ payments equal to such estimated
37
amounts for sanitary sewer services, as set forth in sections 212(b)(1) and (3), do not
mature into a legal liability for the United States to pay such estimated sanitary sewer
service charges to the District.
Aside from the above condition that, in order to receive payment, the District must
comply with all the instructions set forth in section 212(b)(2) of the 1954 Act, as currently
amended, with respect to its production of estimates, section 212 contains no other
contingencies or exceptions which would permit any federal entity the discretion not to
execute the required payments into the named Treasury account, or which would permit
the Secretary of the Treasury the discretion not to execute the required payments to the
District. By the plain language of section 212, there is no exemption for a federal entity,
such as the AFRH which receives sanitary sewer services delivered by the District, from
submitting the required payments into the named Treasury account. To the contrary, “[t]he
sanitary sewer service charges” in section 212 “shall be applicable to all sanitary sewer
services furnished by the sanitary sewage works of the District through any connection
thereto for direct use by the government of the United States or any department,
independent establishment, or agency thereof,” see D.C. Code § 34-2112(a) (emphasis
added), and “[e]ach Federal department, independent establishment, or agency receiving
sanitary sewer services in buildings, establishments, or other places shall pay from funds
specifically appropriated or otherwise available to it, quarterly and on the first day of each
such fiscal quarter,” into the named Treasury account, for payment to the District. See id.§ 34-2112(b)(2) (emphasis added). Although defendant argues that Congress would have
had to explicitly subject the AFRH to make sanitary sewer service payments, or otherwise
explicitly nullify the 1938 Agreement so as to subject the AFRH to make sanitary sewer
service payments, such a reading of section 212 would be in direct contradiction with
section 212’s express, catchall instructions that the District is to be paid for all sanitary
sewer services rendered, and that each department, independent establishment, or
agency of the United States is to pay for all such services it receives. See King v. Burwell,
576 U.S. at 474 (“If the statutory language is plain, we must enforce it according to its
terms.” (citing Hardt v. Reliance Standard Life Ins. Co., 560 U.S. at 251); Sucic v. Wilkie,
921 F.3d at 1098 (quoting Barnhart v. Sigmon Coal Co., 534 U.S. at 450); Bettcher Indus.,
Inc. v. Bunzl USA, Inc., 661 F.3d at 644; see also Arko Foods Int’l, Inc. v. United States,
654 F.3d at 1364 (quoting Millenium Lumber Distrib., Ltd. v. United States, 558 F.3d at
1328); Am. Airlines, Inc. v. United States, 551 F.3d at 1300.
This court, therefore, finds that provided the proper furnishing of estimates by the
District occurs, section 212 of the 1954 Act creates a mandatory obligation for federal
entities within the District, including the AFRH, to pay for sanitary sewer services rendered
by the District. Section 8 of Article I of the Constitution vests explicit authority in Congress
“[t]o exercise exclusive legislation in all cases whatsoever, over” the District of Columbia.
See U.S. Const. art 1, § 8. Therefore, despite the silence in the 1938 Agreement as to
the provision of sewer services, free or not, or in perpetuity or not, and even if the 1938
Agreement could be read to include the District’s providing sanitary sewer services
without the AFRH having to pay, the 1938 Agreement was always going to be subject to
potential, subsequently enacted legislation by Congress concerning the obligations of the
United States related to sewer charges by the District.
38
As noted above, in the case currently before the court, the District only seeks to
be paid sewer services charges, not paid for water service charges. The parties do not
dispute that free water services were agreed to in the 1938 Agreement. In very similar
language to section 212 of the 1954 Act, section 106 of the 1954 Act, as currently
amended and incorporated into the D.C. Code at § 34-2401.25 (2021), requires that all
federal entities of the United States within the District, including the AFRH, make
payments for water and water services rendered to it by the District. Section 106(a) of the
1954 Act provides, as currently amended and codified at D.C. Code § 34-2401.25:
All water and water services furnished from the District water supply system
through any connection thereto for direct use by the government of the
United States or any department, independent establishment, or agency
thereof, situated in the District, except water and water services furnished
to the United States for the maintenance, operation, and extension of the
water system, shall be paid for at the rates for the furnishing and readiness
to furnish water applicable to other water consumers in the District.
Id. § 34-2401.25(a). Section 106 also states:
Each Federal department, independent establishment, or agency receiving
water services in buildings, establishments, or other places shall pay from
funds specifically appropriated or otherwise available to it, quarterly and on
the first day of each such fiscal quarter, to an account in the United States
Treasury entitled “Federal Payment for Water and Sewer Services” an
amount equal to one-fourth (25 percent) of the annual estimate for said
services as provided for in paragraph (2) of this subsection.
Id. § 34-2401.25(b)(1). Section 106 of the 1954 Act, as currently amended, also requires
the proper furnishing of estimates by the District, in the same fashion as Section 212 of
the 1954 Act, as currently amended:
By April 15 of each calendar year the District shall provide the Office of
Management and Budget, the Secretary of the Treasury, and the head of
each of the respective Federal departments, independent establishments,
and agencies, for inclusion in the President's budget of the respective
Federal departments, independent establishments, or agencies, an
estimate of the cost of service for the fiscal year commencing October 1st
of the following calendar year. The estimate shall provide the total estimated
annual cost of such service and an itemized estimate of such costs by
Federal department, independent establishment, or agency. The District's
estimates on a yearly basis shall reflect such adjustments as are necessary
to (A) account for actual usage variances from the estimated amounts for
the fiscal year ending on September 30th of the calendar year preceding
April 15th, and (B) reflect changes in rates charged for water and sewer
services resulting from public laws or rate covenants pursuant to water and
sewer revenue bond sales.
Id. § 34-2401.25(b)(2).
39
Prior to the 1938 Agreement, as well as prior to the 1954 Act, it appears that the
United States was not required to pay for either water or sewer services rendered by the
District. As noted above, defendant tries to argue that reading the 1954 Act to obligate
the AFRH’s payment for both water and sewer services renders the 1938 Agreement an
illusory agreement, because, according to defendant, the AFRH would then have
received nothing in return for having permitted the District an easement to build and
access a water reservoir on its premises. As explained, however, in the documents of
correspondence between the District and the AFRH leading up to the 1938 Agreement,
the District identified building a water reservoir on the grounds of the AFRH as necessary
for the proper operation of the water supply system throughout the District. As discussed
above, in a January 6, 1938 letter from the President of the Board of Commissioners of
the District, the Honorable. Melvin C. Hazen, to the Governor of the Soldiers’ Home, Major
General Frederick W. Coleman, the Honorable Melvin C. Hazen stated:
In view of the absolute necessity of ample water supply at adequate
pressure, not only for Federal institutions but also in the interest of the
general public welfare, your renewed consideration of our request for
permission to locate a vitally important storage reservoir on high ground
within the territory under the jurisdiction of the Board of Commissioners of
the United States Soldiers’ Home is requested.
Our renewed request that you grant this permission would not be made but
for the fact that the proposed site is the only one considered feasible. The
engineers of the District of Columbia Water Division have made a
comprehensive survey of all possible sites for a reservoir and after
exhaustive study have reluctantly reached the conclusion that all
contemplated alternates are impracticable.
The necessity of the water reservoir also was acknowledged by a member of the Board
of Commissioners of the Soldiers’ Home, prior to the letter from the Honorable Melvin C.
Hazen. As noted above, the record reflects that General Pillsbury acknowledged at the
October 25, 1937 Board of Commissioners meeting:
I have gone into the matter and I believe without any question this proposed
installation is necessary to safe-guard the water supply of the District of
Columbia in the increasing drain and demand on the service. The increased
water demand is such that the water is filtered at the McMillan plant here at
an excessive rate. This installation is designed to offer a reserve supply so
that the filters could be run at the regular rate in the day time and the surplus
water filtered at night could be drawn on during the following day. There is
an emergency in the water supply of the District that I think makes this
installation necessary. The only reasonable solution is the installation of the
reservoir so as to afford a reserve supply.
Therefore, permission by the Soldiers’ Home for the District to build the water reservoir
was a direct benefit to the United States and its government buildings, including the
Solders’ Home, because, once the water reservoir was built, the Soldiers’ Home, as well
as other government entities in the District, would not be affected by an inadequately
40
constructed and operated water supply system, and at that time memorialized the
provision of free water to the AFRH. Moreover, that the 1938 Agreement always remained
subject to changes at a later time as a result of legislation subsequently enacted by
Congress that might obligate the AFRH to pay for both water and sewer services, does
not make the 1938 Agreement illusory merely because such legislation ultimately came
to fruition. In its authority over matters concerning the District, Congress had, and has,
the discretion to include, or not to include, mandatory language in sections 106 and 212
of the 1954 Act. As currently amended by Congress, the AFRH, along with all other United
States entities situated within the District receiving water and sewer services, are required
to pay for water and sewer services received, in accordance with the express provisions
of the 1954 Act.
The District’s Compliance with the Submission Requirements of Section 212 of the 1954
Act, as Currently Amended
Plaintiff’s amended complaint alleges: “Beginning in 2004, and at regular intervals
since, DC Water has billed the AFRH for sewer services provided by DC Water.” At oral
argument, plaintiff’s counsel of record explained that DCWS had been sending “monthly
bills” to the AFRH, although only two actual billings were produced for inclusion in the
record before the court. Plaintiff’s submissions to the court also include a “true-up”
statement which the District alleged was sent to the Treasury on January 23, 2019, which
defendant does not dispute, in which plaintiff allegedly provided the costs of what the
District claimed were “Actual” usage fees incurred by the AFRH for sewer services,
including certain impervious area charges, organized by fiscal years, from the fiscal years
of 2017 to 2010, as well as for charges for “PRE FY2010.” (capitalization and emphasis
in original). Plaintiff’s amended complaint also states: “At least once every year, on or
before April 15th, DC Water provides the United States its estimate of the cost of service
for the upcoming fiscal years for each of the United States’ agencies, federal department,
and independent establishments,” and that the estimate “includes adjustments to account
for actual usage variances from its estimated amounts and changes in rates charged for
water and sewer services resulting from public laws or rate covenants pursuant to water
and sewer revenue bond sales.” Plaintiff, however, concedes that it did not include the
AFRH in its annual FCSE until the District’s April 15, 2019 FCSE submission for the 2021
fiscal year. The record before the court includes the April 15, 2019 FCSE, as well as a
July 16, 2019 revision of the April 15, 2019 FCSE, both of which include sewer service
charges the District estimated it would provide in the 2021 fiscal year to the AFRH, as
well as water and sewer service charges the District estimated it would provide to many
other United States entities situated within the District for the 2021 fiscal year. The April
15, 2019 FCSE and the July 16, 2019 revision reflect that those documents were
submitted to the Office of Management and Budget, as well as to the Department of
Treasury. Plaintiff also states that the submissions were sent to the AFRH. Defendant
does not dispute that the April 15, 2019 FCSE, or the July 16, 2019 revision of the April
15, 2019 FCSE, were sent to various entities of the United States, including the AFRH,
nor does defendant dispute that original and revised 2019 FCSE for the 2021 fiscal year
were sent on April 15, 2019, and July 16, 2019, respectively. In addition, both the April
15, 2019 FCSE and the July 16, 2019 revision included, with respect to the AFRH, an
adjustment to account for an alleged amount owed due to “billing from 2012 to 2018.”
41
As discussed above, this court has determined that section 212 of the 1954 Act,
as currently amended and codified at D.C. Code § 34-2112, created mandatory payment
obligations for the AFRH, as well as for each federal entity receiving sanitary sewer
services provided by the District, contingent upon the District’s proper production and
presentation of fiscal year estimates, as set forth in section 212 of the 1954 Act, as
currently amended and codified at D.C. Code in section 34-2112. As indicated above, the
District’s production and presentation of annual estimates “shall” conform to the following
instructions: (1) by April 15 of each year, the District is to produce estimates of the costs
to render sanity sewer services to the federal entities in the District for the fiscal year
beginning the following calendar year; (2) such estimates are to be produced to the Office
of Management and Budget, the Secretary of the Treasury, and the head of each of the
respective federal entity within the District to receiving such services; (3) such estimates
are to indicate the total amount estimated to be due for all sanitary sewer services
rendered to the United States government for the relevant fiscal year, as well as that total
itemized by each federal entity to receive such sewer services; and (4) such estimates
are to be adjusted to reflect the actual usage variances from the estimates for the fiscal
year preceding April 15th, as well as any changes in rates resulting from public laws or
rate covenants entered into pursuant to water and sewer revenue bond sales. See D.C.
Code § 34-2112(b)(2).
The record before the court does not indicate that before 2019 plaintiff included in
its annually submitted FCSE any estimated costs of services to account for usage by the
AFRH, despite multiple opportunities and requests from this court to submit such
evidence. Although plaintiff has alleged it made submissions of monthly billings for sewer
services to the AFRH since 2004, as well as the submission of a “true-up” sent to the
Treasury on January 23, 2019, for various charges incurred by the AFRH from fiscal years
2017 to 2010 and earlier, those submissions did not comply with the requirements in
section 212 that the District was to have submitted such charges prospectively, and by
April 15th, on an annual basis, not only to AFRH, but to the Secretary of the Treasury, as
well as to the Office of Management and Budget for inclusion in the President’s budget
for the AFRH. See D.C. Code § 34-2112(b)(2). Because plaintiff’s attempts to bill the
AFRH for sewer services prior to 2019 were not in compliance with section 212’s
mandatory submission requirements, the United States is not obligated retroactively to
pay for such sanitary sewer services alleged by plaintiff to be retrospectively owed.
The only instance in the record before the court in which plaintiff appears to have
complied with section 212’s mandatory submission requirements with respect to the
AFRH was in 2019, as described above, when the District submitted its 2019 FCSE for
the fiscal year 2021, on April 15, 2019, and then submitted a revised version of the 2019
FCSE for the fiscal year 2021 on July 16, 2019. Plaintiff’s April 15, 2019 FCSE submission
was in compliance with the statutory submission requirements in section 212, in that: (1)
it was submitted “by April 15” of 2019; (2) it included sanitary sewer service charges
estimated to be due for the fiscal year 2021; and (3) it was submitted to “the Office of
Management and Budget, the Secretary of the Treasury, and the head of” the AFRH.
Plaintiff, therefore, can be entitled to the costs of sanitary sewer services estimated to be
due for the 2021 fiscal year, and an amount equivalent to one-fourth of such costs should
have been included in the AFRH’s deposit into the “Federal Payment for Water and Sewer
42
Services” Treasury account on October 1, 2020, January 1, 2021, April 1, 2021, and July
1, 2021, respectively, and such amounts should have been included in the executed
payments by the Secretary of the Treasury to the District on October 2, 2020 January 2,
2021, April 2, 2021, and July 2, 2021, respectively.
As discussed above, plaintiff’s 2019 FCSE for the 2021 fiscal year included
adjustments to the AFRH’s fiscal year 2021 estimated sewer service charges for “billing
from 2012 to 2018 for Department of Defense- AFRH in the amount of $7.5 million.”
Plaintiff, however, is not entitled to adjustments for past years with respect to the AFRH
because the District did not include in its annual estimates, any estimated charges due
for the AFRH. Section 212(b)(2) of the 1954 Act provides that “[t]he District’s estimates
on a yearly basis shall reflect such adjustments as are necessary to (A) account for actual
usage variances from the estimated amounts for the fiscal year ending on September
30th of the calendar year preceding April 15th.” D.C. Code § 34-2112(b)(2). In the case
of plaintiff’s 2019 annual submission for the 2021 fiscal year, section 212(b)(2) required
the District to adjust its 2021 fiscal year annual estimates to account for the difference
between the United States’ actual cost of usage for sanitary sewer services in the 2018
fiscal year from what the District estimated was to be the cost of usage for the 2018 fiscal
year. Because the District did not submit any sanitary sewer service charges estimated
to be due for the AFRH in its annual fiscal year 2018 submission, or any other prior year
before its submission of the 2019 FCSE, and, subsequently, did not receive any payments
from the AFRH associated with its 2018 fiscal year submission, plaintiff now would not be
entitled to an adjustment of its 2021 fiscal year estimates.
Entitlement to Impervious Area Charges
In its amended complaint, plaintiff included a request for payment of “sewer service
and impervious area charges” by the AFRH. As indicated above, the DCWS website
provides the following explanation of its impervious area charges:
Impervious surfaces such as rooftops, paved driveways, patios, and parking
lots are major contributors to stormwater runoff entering the District’s
combined sewer system. This adds significantly to pollution in the Anacostia
and Potomac Rivers and Rock Creek.
The Clean Rivers Impervious Area Charge (CRIAC) is a fair way to
distribute the cost of maintaining storm sewers and protecting g area
waterways because it is based on a property’s contribution of rainwater to
the District’s sewer system. Because charges are based on the amount of
impervious area on a property, owners of large office buildings, shopping
centers and parking lots will be charged more than owners of modest
residential dwellings.
All residential, multi-family and non-residential customers are billed a
CRIAC. The charge is based on an Equivalent Residential Unit (ERU). An
ERU is a statistical median of the amount of impervious surface area in a
single-family residential property, measured in square feet.
43
Available at https://www.dcwater.com/impervious-area-charge.
Plaintiff’s amended complaint states:
Beginning in 2004, and at regular intervals since, DC Water has billed AFRH
for sewer services provided by DC Water to AFRH-W at the rates set by the
DC Retail Water and Sewer Rates Committee and for Impervious Surface
Area charges (“IAC”) that are part and parcel of sewer services.
(capitalization in original; footnote omitted).
In defendant’s motion to dismiss, defendant states:
The District’s first amended complaint relies on the D.C. Public Works Act
of 1954 as the jurisdictional basis for the District’s claim for stormwater
charges. The District’s reliance is misplaced because section 212 is
explicitly limited to “sanitary sewer service charges,” and section 201 [of the
1954 Act] differentiates between “sanitary sewage” and “stormwater
sewage.” The District’s impervious surface area charges relate to
stormwater sewage, not sanitary sewage. See DCMR § 556.1, 3, 5,
(Stormwater Fees); 21 DCMR § 4101.3.
(capitalization in original; brackets added; internal references omitted). Defendant further
argues that “[t]he substantive law the District must rely on for its claim for stormwater
charges is 33 U.S.C. § 1323,” and notes “the obvious applicability of 33 U.S.C. § 1323 to
stormwater.” The statute at 33 U.S.C. § 1323 (2018), enacted as part of the Federal
Facilities Section of the Federal Water Pollution Control Act Amendments of 1972, Pub.
L. No. 92–500, 86 Stat. 816 (the Clean Water Act), states, as currently amended, in
relevant part:
(a) Compliance with pollution control requirements by Federal entities
Each department, agency, or instrumentality of the executive, legislative,
and judicial branches of the Federal Government (1) having jurisdiction over
any property or facility, or (2) engaged in any activity resulting, or which may
result, in the discharge or runoff of pollutants, and each officer, agent, or
employee thereof in the performance of his official duties, shall be subject
to, and comply with, all Federal, State, interstate, and local requirements,
administrative authority, and process and sanctions respecting the control
and abatement of water pollution in the same manner, and to the same
extent as any nongovernmental entity including the payment of reasonable
service charges. . . . This subsection shall apply notwithstanding any
immunity of such agencies, officers, agents, or employees under any law or
rule of law. . . .
44
(c) Reasonable service charges
(1) In general
For the purposes of this chapter, reasonable service charges
described in subsection (a) include any reasonable
nondiscriminatory fee, charge, or assessment that is--
(A) based on some fair approximation of the
proportionate contribution of the property or
facility to stormwater pollution (in terms of
quantities of pollutants, or volume or rate of
stormwater discharge or runoff from the
property or facility); and
(B) used to pay or reimburse the costs
associated with any stormwater management
program (whether associated with a separate
storm sewer system or a sewer system that
manages a combination of stormwater and
sanitary waste), including the full range of
programmatic and structural costs attributable
to collecting stormwater, reducing pollutants in
stormwater, and reducing the volume and rate
of stormwater discharge, regardless of whether
that reasonable fee, charge, or assessment is
denominated a tax.
(2) Limitation on accounts
(A) Limitation
The payment or reimbursement of any fee,
charge, or assessment described in paragraph
(1) shall not be made using funds from any
permanent authorization account in the
Treasury.
(B) Reimbursement or payment obligation of
Federal Government
Each department, agency, or instrumentality of
the executive, legislative, and judicial branches
of the Federal Government, as described in
subsection (a), shall not be obligated to pay or
reimburse any fee, charge, or assessment
45
described in paragraph (1), except to the extent
and in an amount provided in advance by any
appropriations Act to pay or reimburse the fee,
charge, or assessment.
Id. (emphasis in original). Defendant in the above-captioned case, however, argues that
because plaintiff’s amended complaint does not assert 33 U.S.C. § 1323 as a basis for
entitlement to stormwater charges, “the portion of the District’s complaint seeking
stormwater charges should be dismissed pursuant to RCFC 12(b)(6).” Defendant also
cites to DeKalb County, Georgia v. United States, 108 Fed. Cl. 681 (2013), in which a
Judge of this court found that 33 U.S.C. § 1323, as amended in 1977, waived the United
States’ sovereign immunity for stormwater assessments considered service fees, but did
not waive such immunity for stormwater assessments considered taxes until 33 U.S.C.
§ 1323 was subsequently amended in 2011, after which sovereign immunity for
stormwater assessments considered taxes was waived. In DeKalb County, plaintiff,
DeKalb County, was attempting to collect DeKalb County “stormwater utility charges”
prior to 2011. See DeKalb Cnty., Ga. v. United States, 108 Fed. Cl. at 687. The Judge in
DeKalb County determined DeKalb County was not entitled to such stormwater
assessments because the DeKalb the court found that such charges were to be
considered taxes, not fees. See generally id. at 694–710.
In plaintiff’s response to defendant’s motion to dismiss, plaintiff disagrees with
defendant that section 212 of the 1954 Act’s mandate does not include stormwater
charges. Relying on the definitions provided in section 201 the 1954 Act, plaintiff argues
that the charges mandated in section 212 of the 1954 Act “are applicable ‘to all sanitary
sewage works of the District.’” (emphasis added by plaintiff) (citing subsection 212(a) of
the 1954 Act). Plaintiff continues:
“Sanitary sewage works” means “a system of sanitary and combined
sewers, appurtenances, pumping stations, and treatment works for
conveying, treating, and disposing of sanitary sewage.” “Combined sewer”
means “a sewer which carries both sanitary sewage and stormwater
sewage.” “Stormwater sewage” means “liquid flowing in sewers resulting
directly from precipitation.”
(emphasis added by plaintiff; internal citations and footnotes omitted). Plaintiff also
disagrees with defendant’s assertion that 33 U.S.C. § 1323 is the proper avenue to seek
stormwater charges, stating:
Contrary to the United States’ position, the Federal Facilities Pollution
Control provision of the Clean Water Act (“Federal Facilities Section”), 33
U.S.C. § 1323, does not control the instant issue of whether DC Water may
demand payment for impervious area charges from the United States.
Rather, this section governs water pollution and merely requires the
Government to comply with all applicable law and to pay “reasonable
service charges.”
46
Plaintiff continues:
The Federal Facilities Pollution Control (“FFC”) provision of the Clean Water
Act (“CWA”) merely provides the necessary waiver of sovereign immunity
for DC Water to charge for stormwater services. Both federal provisions
work in conjunction by first granting permission for the District of Columbia
to charge for stormwater via the FFC and then delineating the way the
District may seek compensation via the 1954 Act. Indeed, DC Water
charges for stormwater charges through its annual federal estimate which
all other federal agencies accept.
(emphasis in original).
Responding to plaintiff’s contention that “DC Water charges for stormwater
charges through its annual federal estimate which all other federal agencies accept,”
defendant states:
It is unclear what the District means by the phrase “which all other federal
agencies accept.
Whatever the District may mean, section 1323 explicitly excludes the
payment of stormwater charges through Treasury’s process. Section 1323
provides that “[t]he payment or reimbursement of any fee, charge, or
assessment described in paragraph (1) shall not be made using funds from
any permanent authorization account in the Treasury.” 33 U.S.C. §
1323(c)(2)(A). The account Treasury uses for water and sewer charges is
a “permanent authorization account” that is not used for stormwater
charges. 33 U.S.C. § 1323(c)(2)(A). Thus as our prior filings have
described, Treasury does not collect for stormwater charges from agencies,
nor does it pay for any stormwater charges under 33 U.S.C. § 1323, from
the permanent authorization account.
(emphasis in original; quotation marks to internal references omitted).
The 1954 Act provides the following definitions in section 201, codified at D.C.
Code § 34-2101, and which particular section has not been amended since the 1954 Act’s
initial enactment:
For the purposes of this subchapter:
(1) The term “sanitary sewage” means:
(A) Domestic sewage with storm and surface
water limited;
47
(B) Sewage discharging from sanitary
conveniences;
(C) Commercial or industrial wastes; and
(D) Water supply after it has been used.
(2) The term “stormwater sewage” means liquid flowing in
sewers resulting directly from precipitation.
(3) The term “combined sewage” means sewage containing
both sanitary sewage and stormwater sewage.
(4) The term “sewer” means a pipe or conduit carrying
sewage.
(5) The term “sanitary sewer” means a sewer which carries
sanitary sewage.
(6) The term “stormwater sewer” means a sewer which carries
stormwater sewage.
(7) The term “combined sewer” means a sewer which carries
both sanitary sewage and stormwater sewage.
(8) The term “sanitary sewage works” means a system of
sanitary and combined sewers, appurtenances, pumping
stations, and treatment works for conveying, treating, and
disposing of sanitary sewage.
(9) The term “stormwater sewer system” means a system of
sewers, appurtenances, and pumping stations for conveying
and disposing of stormwater sewage.
(10) The term “combined sewer system” means a system of
sewers and appurtenances conveying both sanitary sewage
and stormwater sewage.
1954 Act § 201; see also D.C. Code § 34-2101 (emphasis in original).
Subsection 212(a) of the 1954 Act, as amended and codified at D.C. Code § 34-2112(a),
states:
The sanitary sewer service charges prescribed herein shall be applicable to
all sanitary sewer services furnished by the sanitary sewage works of the
District through any connection thereto for direct use by the government of
48
the United States or any department, independent establishment, or agency
thereof, and such charges shall be predicated on the value of water and
water services received by such facilities of the government of the United
States or any department, independent establishment, or agency thereof
from the District water supply system. Payment of the said sanitary sewer
service charge shall be made as provided in subsection (b) of this section.
1954 Act § 212(a); see also D.C. Code § 34-2112(a) (emphasis added). Although section
201 of the 1954 Act and the section 34-2101 of the D.C. Code provide specific definitions
for multiple different terms related to sewer and sanitary sewer, the 1954 Act and the D.C.
Code do not provide a specific definition for “sanitary sewer service charges,” the critical
term for subsection 212(a) of the 1954 Act and D.C. Code § 34-2112(a).
As indicated in the definitions above, section 201 of the 1954 Act and the section
34-2101 of the D.C. Code define the term “sanitary sewer” as “a sewer which carries
sanitary sewage.” 1954 Act § 201; see also D.C. Code § 34-2101. The term “sanitary
sewage” is defined in section 201 of the 1954 Act and the section 34-2101 of the D.C.
Code as:
(A) Domestic sewage with storm and surface water limited;
(B) Sewage discharging from sanitary conveniences;
(C) Commercial or industrial wastes; and
(D) Water supply after it has been used.
1954 Act § 201; see also D.C. Code § 34-2101. Although it is not entirely clear what the
words in section 201 of the 1954 Act and section 34-2101 of the D.C. Code, “with storm
and surface water limited,” mean, or if the words are meant as a limitation of storm and
surface water as it relates to the term “Domestic sewage.” Notably, section 201 of the
1954 Act provides separate definitions for “sanitary sewage” and “stormwater sewage,”
as well as “sanitary sewer” and “stormwater sewer.” See D.C. Code § 34-2101 The 1954
Act does not explain why storm and surface water are limited. See id. Given, however,
the distinct definitions in section 201 of the 1954 Act of sanitary sewage/sewer and
stormwater sewage/sewer, and given section 212’s multiple uses of the term “sanitary” to
qualify the term “sewer,” without reference to “stormwater,” it appears that section 212’s
mandate for the United States to pay for sewer services was intended to be limited to
sanitary sewer services charges, to the exclusion of stormwater sewer service charges.
In addition, section 212 of the 1954 Act, which, as discussed above, governs the
United States’ obligations to pay sanitary sewer service charges, was not amended to
include reference to an impervious area charge. This is in contrast to section 207 of the
1954 Act, codified as amended at D.C. Code § 34-2107, which applies to the District’s
49
building owners,12 which makes no specific mention of an obligation of the United States
to pay sewer service charges for its buildings. As originally enacted, section 207 provided,
in relevant part:
The sanitary sewer service charges established under the authority of this
title shall be based on the water consumption of, and water services to, the
properties served, and be determined by one of the following methods:
(a) Where water is supplied from the District water supply system at meter
rates, the Commissioners shall establish the sanitary sewer service charge
as a percentage of the water charge applicable in the District, but such
percentage shall not exceed 60 per centum of the water charge.
1954 Act § 207. In 2008, the D.C. Council amended D.C. Code § 34-2107, which tracks
section 207 of the 1954 Act, to include the impervious area of a property as an additional
basis upon which the District could determine the sanitary sewer service charges for a
property. See Water and Sewer Authority Equitable Ratemaking Amendment Act of 2008,
2008 D.C. Sess. L. Serv. 17–370 (Act 17–705) (“AN ACT to amend the District of
Columbia Public Works Act of 1954 to broaden the bases for the determination of sanitary
sewer service charges to include impervious surface area and to provide for an appeal
process for the assessment of an impervious surface area fee.” (capitalization in
original)). The provisions at D.C. Code § 34-2107 now provide for the “[m]ethods of
determination of sanitary sewer services charges,” as follows:
(a) The sanitary sewer service charges established under the authority of
this subchapter shall be based on the following:
(1) A billing methodology which takes into account both the water
consumption of, and water service to, a property and the amount of
impervious surface on a property that either prevents or retards the entry of
water into the ground as occurring under natural conditions, or that causes
water to run off the surface in greater quantities or at an increased rate of
flow, relative to the flow present under natural conditions. For the purposes
of this paragraph, the term “surface” shall include rooftops, footprints of
patios, driveways, private streets, other paved areas, athletic courts and
swimming pools, and any path or walkway that is covered by impervious
material.
D.C. Code § 34-2107(a)(1). Therefore, for building owners in the District, the impervious
surface area of a property is included as part of the methodology for determining the cost
of sanitary sewer services, and is in addition to the consideration of “the water
12D.C. Code § 34-2108 describes the “Persons obligated to pay sanitary sewer service
charge,” in subsection (a), as “[t]he owner or occupant of each building, establishment, or
other place in the District connected with any District sewer conducting sanitary sewage
shall pay the sewer service charge authorized by this subchapter.” Id.
50
consumption of, and water service to,” the property. See id. A United States’ waiver of
sovereign immunity, however, does not appear in section 207 of 1954 Act, as originally
enacted, or as it currently appears at D.C. Code § 34-2107. Instead, the United States’
waiver of sovereign immunity is in section 212(a) of 1954 Act, which, as discussed above,
governs the United States’ obligation to pay for sanitary sewer service charges, but does
not include a property’s impervious surface area as part of the basis upon which sanitary
sewer services charges are predicated. Section 212(a) of 1954 Act has stated, since its
enactment in 1954, that “[t]he sanitary sewer service charges prescribed herein shall be
applicable to all sanitary sewer services furnished by the sanitary sewage works of the
District through any connection thereto for direct use by the government of the United
States or any department, independent establishment, or agency thereof, and such
charge shall be predicated on the value of water and water services received by such
facilities of the Government of the United States.” D.C. Code § 34-2112(a) (emphasis
added).
Although the D.C. Council amended the D.C. Code at D.C. Code § 34-2107, to
include the impervious surface area as part of the basis upon which sanitary sewer
service charges are determined, such an amendment could not extend to the United
States. In 1973, Congress enacted the District of Columbia Self-Government and
Governmental Reorganization Act, Pub. L. 93–198, 87 Stat. 774 (1973) (codified as
amended at D.C. Code § 1-201.01, et seq.) (the Home Rule Act), which, among other
things, “established a Council of the District of Columbia,” Home Rule Act, § 401, and
granted it “legislative power,” id. § 404, subject to specific limitations set forth in Title VI
of the Home Rule Act. See id. §§ 404, 601–04. Among these limitations, section 603(a)(3)
in Title VI of the Home Rule Act provides:
(a) The Council shall have no authority to pass any act contrary to the
provisions of this act except as specifically provided in this act, or to—
...
(3) enact any act, or enact any act to amend or repeal any act
of Congress, which concerns the functions or property of the
United States or which is not restricted in its application
exclusively in or to the District.
Id. (emphasis added). Therefore, the D.C. Council’s amendment to the D.C. Code at D.C.
Code § 34-2107 to include a property’s impervious area as an additional basis upon which
to determine sanitary sewer service charges, should be read to the exclusion of sanitary
sewer service charges for the impervious area of a United States property, including the
AFRH.
The United States’ waiver of sovereign immunity to incur monetary damages is to
be narrowly construed. See, e.g., RHI Holdings, Inc. v. United States, 142 F.3d 1459,
1461 (Fed. Cir. 1998). In RHI Holdings, the United States Court of Appeals for the Federal
Circuit stated:
51
Waivers of sovereign immunity must be explicit, and cannot be implied. See
United States v. Testan, 424 U.S. 392, 399, 96 S. Ct. 948, 953–54, 47 L.
Ed. 2d 114 (1976) (citing United States v. King, 395 U.S. 1, 4, 89 S. Ct.
1501, 150203, 23 L. Ed. 2d 52 (1969)); see also Irwin v. Department of
Veterans Affairs, 498 U.S. 89, 93, 111 S. Ct.453, 456, 112 L. Ed. 2d 435(1990); cf. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S. Ct.
1114, 1123, 134 L. Ed. 2d 252 (1996). Any statute which creates a waiver
of sovereign immunity must be strictly construed in favor of the Government.
See Sherwood, 312 U.S. at 590, 61 S. Ct. at 771.
RHI Holdings, Inc. v. United States, 142 F.3d at 1461; see also Lane v. Pena 518 U.S.
187, 192 (1996) (“[W]hen confronted with a purported waiver of the Federal Government’s
sovereign immunity, the Court will ‘constru[e] ambiguities in favor of immunity.” (alteration
in original) (quoting United States v. Williams, 514 U.S. 527, 531 (1995)). Based on the
forgoing, this court finds that the 1954 Act’s waiver of sovereign immunity for sanitary
sewer service charges applicable to the United States, should be construed so as to
exclude stormwater or impervious area charges, and should be construed only to permit
the United States to be charged sanitary sewer service charges which are “predicated on
the value of water and water services received by such facilities of the Government of the
United States.” D.C. Code § 34-2112(a). This is because of the 1954 Act’s separate
definitions for stormwater sewage/sewer as opposed to sanitary sewage/sewer, section
212 of the 1954 Act’s continuous use of “sanitary” sewer service charges, without mention
of “stormwater” sewer service charges, and the absence of congressional action to
amend section 212 of the 1954 Act to include a property’s impervious area as an
additional basis upon which to determine sanitary sewer service charges for the United
States.
Although not claimed in the amended complaint filed in this court, and not argued
for by the plaintiff in the above captioned case, the court notes that 33 U.S.C. § 1323, as
enacted in the Clean Water Act, may be relevant to plaintiff’s claims regarding stormwater
charges. As indicated above, the statute at 33 U.S.C. § 1323(a) provides that federal
entities “shall be subject to, and comply with, all Federal, State, interstate, and local
requirements, administrative authority, and process and sanctions respecting the control
and abatement of water pollution in the same manner, and to the same extent as any
nongovernmental entity including the payment of reasonable service charges.” Id.(emphasis added). With respect to what is included in “reasonable service charges,” the
statute at 33 U.S.C. § 1323(c) states:
For the purposes of this chapter, reasonable service charges
described in subsection (a) include any reasonable
nondiscriminatory fee, charge, or assessment that is--
(A) based on some fair approximation of the
proportionate contribution of the property or
facility to stormwater pollution (in terms of
quantities of pollutants, or volume or rate of
52
stormwater discharge or runoff from the
property or facility); and
(B) used to pay or reimburse the costs
associated with any stormwater management
program (whether associated with a separate
storm sewer system or a sewer system that
manages a combination of stormwater and
sanitary waste), including the full range of
programmatic and structural costs attributable
to collecting stormwater, reducing pollutants in
stormwater, and reducing the volume and rate
of stormwater discharge, regardless of whether
that reasonable fee, charge, or assessment is
denominated a tax.
Id. (emphasis in original).
In its amended complaint plaintiff makes no mention of the Clean Water Act, or
any subsequent amendments to the Clean Water Act, or 33 U.S.C. § 1323 in particular,
and instead relies solely on the 1954 Act as its basis for entitlement to stormwater charges
incurred by the AFRH. Moreover, plaintiff appears to disagree with defendant’s assertion
that “[t]he substantive law the District must rely on for its claim for stormwater charges is
33 U.S.C. § 1323.” As noted above, plaintiff argues:
Contrary to the United States’ position, the Federal Facilities Pollution
Control provision of the Clean Water Act (“Federal Facilities Section”), 33
U.S.C. § 1323, does not control the instant issue of whether DC Water may
demand payment for impervious area charges from the United States.
Rather, this section governs water pollution and merely requires the
Government to comply with all applicable law and to pay “reasonable
service charges.”
(capitalization in original). Plaintiff has not alleged in its amended complaint filed in this
court entitlement to stormwater charges pursuant to 33 U.S.C. § 1323, and has
specifically rejected reliance on the Clean Water Act as a basis for its recovery.
Additionally, plaintiff has provided no evidence that any alleged stormwater charges were
reasonable and in accordance with 33 U.S.C. § 1323. Moreover, as discussed above, nor
does the 1954 Act allow plaintiff to recover for stormwater charges. The court, therefore,
dismisses plaintiff’s claim for stormwater charges, without prejudice.
Quantum Meruit
In plaintiff’s amended complaint, plaintiff sets forth an alternative argument alleging
entitlement to all payments alleged to be owed by the AFRH under a theory of quantum
meruit. Plaintiff’s amended complaint states: “There exists a contract between the United
53
States and DC Water as expressed through the District of Columbia Public Works Act,”
and that such contract “obligates the United States to pay for sewer services, including
IAC [impervious area charge] charges, received from the District of Columbia as provided
by DC Water.” Plaintiff further asserts that “[t]he sewer services billed to AFRH-W are the
kind of services that are typically paid for by individuals, businesses, and federal agencies
in the District of Columbia.” Plaintiff also asserts that “[t]he United States received
valuable services from DC Water for AFRH,” and that “[t]he United States accepted and
enjoyed these services.” Plaintiff also argues in its amended complaint that “[s]ince 2004,
the United States has been aware that DC Water expected to be paid for the provision of
sewer services to the buildings on AFRH-W’s grounds.”
“Quantum meruit is ‘[a] claim or right of action for the reasonable value of services
rendered.’” United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1329 (Fed. Cir. 2006)
(quoting Black’s Law Dictionary 1276 (8th ed. 2004)). The United States Court of Appeals
for the Federal Circuit distinguishes two types of quantum meruit claims: implied-in-law
and implied-in-fact. See Int’l Data Prods. Corp. v. United States, 492 F.3d 1317, 1325
(Fed. Cir. 2007). An implied-in-law contract is
a contract in which there is no actual agreement between the parties, but
the law imposes a duty in order to prevent injustice. The Court of Federal
Claims, however, lacks jurisdiction over contracts implied in law. 28 U.S.C.
§ 1491(a)(1) (2000). On the other hand, “[w]here a benefit has been
conferred by the contractor on the government in the form of goods or
services, which it accepted, a contractor may recover at least on a quantum
valebant or quantum meruit basis for the value of the conforming goods or
services received by the government prior to the rescission of the contract
for invalidity. The contractor is not compensated under the contract but
rather under an implied-in-fact contract.” United Pac. Ins. Co. v. United
States, 464 F.3d at 1329-30.
Int’l Data Prods. Corp. v. United States, 492 F.3d at 1325-26; see also Perri v. United
States, 340 F.3d 1337, 1343 (Fed. Cir. 2003) (“Recovery in quantum meruit, however, is
based upon a contract implied in law.” (citing Fincke v. United States, 230 Ct. Cl. 233,
246, 675 F.2d 289, 296 (1982)); Sanders v. United States, 252 F.3d 1329, 1334 (Fed.
Cir. 2001); Reid v. United States, 143 Fed. Cl. 661, 671 (2019); Lee v. United States, 130
Fed. Cl. 243, 260 (2017). Thus, the Court of Federal Claims does not have jurisdiction
over implied-in-law contract claims, but does have jurisdiction over express and implied-
in-fact contracts.
Similarly, the United States Court of Appeals for the Federal Circuit stated at a
later date:
Recovery in quantum meruit is typically “based on an implied-in-law
contract.” Int’l Data Prods. Corp., 492 F.3d at 1325. Because the jurisdiction
of the Claims Court over contract claims “extends only to contracts either
express or implied in fact, and not to claims on contracts implied in law,”
Perri v. United States, 340 F.3d 1337, 1343 (Fed. Cir. 2003) (quoting
Hercules, Inc. v. United States, 516 U.S. 417, 423, 116 S. Ct. 981, 134 L.
54Ed. 2d 47 (1996), that court ordinarily does not entertain quantum meruit
claims. However, we have on occasion approved the use of quantum meruit
or quantum valebant as a measure of damages for breach of an implied in
fact contract. See Amdahl Corp., 786 F.2d at 393; Barrett, 242 F.3d at
1059–61.
Seh Ahn Lee v. United States, 895 F.3d 1363, 1373–74 (Fed. Cir. 2018).
Plaintiff in the above-captioned case appears to be trying to allege that “[t]here
exists a contract between the United States and DC Water as expressed through the
District of Columbia Public Works Act.” The United States Court of Appeals for the Federal
Circuit, however, has explained that “the general requirements of a binding contract with
the United States are identical for both express and implied contracts.” Trauma Serv. Grp.
v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997) (citing Russell Corp. v. United
States, 210 Ct. Cl. 596, 537 F.2d 474, 482 (1976); and Thermalon Indus. v. United States,
34 Fed. Cl. 411, 414 (1995)). These general requirements are “(1) mutuality of intent to
contract; (2) consideration; and, (3) lack of ambiguity in offer and acceptance.” Lewis v.
United States, 70 F.3d 597, 600 (Fed. Cir. 1995) (quoting City of El Centro v. United
States, 922 F.2d 816, 820 (Fed. Cir. 1990), cert. denied, 501 U.S. 1230 (1991)). “When
the United States is a party, a fourth requirement is added: the government representative
whose conduct is relied upon must have actual authority to bind the government in
contract.” Id. (internal quotation marks omitted). The United States Supreme Court has
stated generally that “absent some clear indication that the legislature intends to bind
itself contractually, the presumption is that ‘a law is not intended to create private
contractual or vested rights but merely declares a policy to be pursued until the legislature
shall ordain otherwise.’” Nat’l R.R. Passenger Corp. v. Atchison Topeka & Santa Fe Ry.
Co., 470 U.S. 451, 465–66 (1985) (quoting Dodge v. Bd. of Educ., 302 U.S. 74, 79
(1937)). As the Supreme Court cautioned National Railroad:
This well-established presumption is grounded in the elementary
proposition that the principal function of a legislature is not to make
contracts, but to make laws that establish the policy of the state. Indiana ex
rel. Anderson v. Brand, 303 U.S. 95, 104-105, 58 S. Ct. 443, 447-448, 82
L. Ed. 685 (1938). Policies, unlike contracts, are inherently subject to
revision and repeal, and to construe laws as contracts when the obligation
is not clearly and unequivocally expressed would be to limit drastically the
essential powers of a legislative body. Indeed, “‘[t]he continued existence
of a government would be of no great value, if by implications and
presumptions, it was disarmed of the powers necessary to accomplish the
ends of its creation.’” Keefe v. Clark, 322 U.S. 393, 397, 64 S. Ct. 1072,
1074, 88 L. Ed. 1346 (1944) (quoting Charles River Bridge v. Warren
Bridge, 11 Pet. 420, 548, 9 L. Ed. 773 (1837)). Thus, the party asserting the
creation of a contract must overcome this well-founded presumption, Dodge
[v. Board of Education, 302 U.S. 74,] 79 [(1937)], and we proceed cautiously
both in identifying a contract within the language of a regulatory statute and
in defining the contours of any contractual obligation.
55
Nat’l R.R. Passenger Corp. v. Atchison Topeka & Santa Fe Ry. Co., 470 U.S. at 466; see
also Brooks v. Dunlop Mfg., Inc., 702 F.3d 624, 630-31 (Fed. Cir. 2012); XP Vehicles, Inc.
v. United States, 121 Fed. Cl. 770, 787 (2015) (“As a preliminary matter, a federal statute
or regulation does not inherently create a contractual relationship between an individual
and the United States.”); ARRA Energy Co. I v. United States, 97 Fed. Cl. 12, 27 (2011)
(“There is a general presumption that statutes are not intended to create any vested
contractual rights.”).
“‘[I]t is of first importance to examine the language of the statute,’” when trying to
discern whether a particular statute creates an implied-in-fact contract. See Nat’l R.R.
Passenger Corp. v. Atchison Topeka & Santa Fe Ry. Co., 470 U.S. at 466 (quoting Dodge
v. Bd. of Educ., 302 U.S. at 78); see also Hanlin v. United States, 316 F.3d 1325, 1330
(Fed. Cir. 2003) (rejecting the moving party’s argument that the text of the statute at issue
“establish[ed] contractual intent on the government’s part,” because “[w]e discern no
language in the statute or the regulation that indicates an intent to enter into a contract”).
If the statute “‘provides for the execution of a written contract on behalf of the state the
case for an obligation binding upon the state is clear.’” Nat’l R.R. Passenger Corp. v.
Atchison Topeka & Santa Fe Ry. Co., 470 U.S. at 466 (emphasis in original) (quoting
Indiana ex rel. Anderson v. Brand, 302 U.S. 95, 78 (1938)). “[A]bsent ‘an adequate
expression of an actual intent’ of the State to bind itself, this Court simply will not lightly
construe that which is undoubtedly a scheme of public regulation to be, in addition, a
private contract to which the State is a party.” Id. at 466-67 (internal citation omitted)
(quoting Wisconsin & Michigan R. Co. v. Powers, 191 U.S. 379, 386-87 (1903)).
Section 212 of the 1954 Act, as amended by Congress, and codified at D.C. Code
§ 34-2112, contains no such clear contractual language, and, therefore, “absent some
clear indication that the legislature intends to bind itself contractually,” section 212 of the
1954 Act does not rebut “the presumption is that ‘a law is not intended to create private
contractual or vested rights but merely declares a policy to be pursued until the legislature
shall ordain otherwise.’” See Nat’l R.R. Passenger Corp. v. Atchison Topeka & Santa Fe
Ry. Co., 470 U.S. at 465–66 (quoting Dodge v. Bd. of Educ., 302 U.S. at 79). Plaintiff’s
attempt to label the 1954 Act as creating an implied-in-fact contract, therefore, fails.
Furthermore, the United States Court of Appeals for the Federal Circuit has stated that
“[t]he assertion of quantum meruit as a basis for calculating damages cannot rescue an
implied-in-fact theory of recovery that is otherwise not cognizable.” Seh Ahn Lee v. United
States, 895 F.3d at 1374. Therefore, because plaintiff cannot establish an implied-in-fact
theory of recovery based the 1954 Act, plaintiff cannot establish a quantum meruit theory
of recovery based on the 1954 Act.13 Aside from stating that “[t]he United States received
valuable services from DC Water for AFRH,” and that “[t]he United States accepted and
enjoyed these services,” plaintiff’s amended complaint in the above-captioned case does
not allege any facts which could establish that the requirements giving rise to a contract
have been met, namely, that there was (1) mutuality of intent to contract, (2)
consideration, (3) lack of ambiguity in offer and acceptance, and (4) actual authority of
13As noted above, this court does not have jurisdiction over implied-in-law contracts. See,
e.g., Int’l Data Prods. Corp. v. United States, 492 F.3d at 1325-26.
56
the government representative whose conduct is relied upon to bind the government.
See, e.g., Lewis v. United States, 70 F.3d at 600.
The court also notes that the 1938 Agreement entered into between the plaintiff
and defendant’s predecessors-in-interest, was not an agreement in which the United
States agreed to pay for services rendered by the District. To the contrary, the 1938
Agreement, which was raised in this case as a defense for the United States, attempted
to do the opposite, i.e., to release the United States from a future obligation to pay for
“water from the water supply.” As explained by the United States Court of Appeals for the
Federal Circuit in Perri v. United States, 340 F.3d at 1344, “[w]e know of no case . . . in
which either we, the Court of Claims, or the Court of Federal Claims has permitted
quantum meruit recovery in the absence of some contractual arrangement between the
parties.” Id. The parties did not enter into any express contract or agreement in which the
United States attempted to bind itself to pay for sewer services rendered by the District.
Based on the above discussion, plaintiff claim for quantum meruit fails.
CONCLUSION
In sum, section 212 of the 1954 Act, as currently amended and codified in the D.C.
Code at section 34-2112, obligates the United States, including the AFRH, to pay for
sanitary sewer services rendered to it by the District, provided that the District properly
follows the statutorily prescribed steps required by the 1954 Act, and provided the District
submits its annual, prospective estimates in accordance with Paragraph 212(b)(2). This
is true whether or not the 1938 Agreement is construed to have included sewer services
free of charge and in perpetuity to the AFRH, because the broad and mandatory language
enacted by Congress in section 212 of the 1954 Act applies equally to the AFRH as it
does to every other federal entity receiving sanitary sewer services from the District. Prior
to 2019, however, the District had failed to include the AFRH in its annual estimates
submitted pursuant to Paragraph 212(b)(2) of the 1954 Act.
With the exception of its 2019 FCSE for the fiscal year 2021, plaintiff has not met
its obligations before the defendant’s payment obligations become payable for AFRH
usage to the named United States Treasury account equal to such estimated amounts
for sanitary sewer services rendered to the AFRH. Nor has plaintiff triggered any
payments to be executed by the United States Secretary of Treasury. Plaintiff, however,
did comply with the submission requirements of section 212 of the 1954 Act with respect
to its 2019 FCSE, and, therefore, the District is entitled to the payments which should
have been executed by the Secretary of the Treasury on October 2, 2020, January 2,
2021, April 2, 2021, and July 2, 2021, constituting the AFRH’s estimated sanitary sewer
service charges for the 2021 fiscal year. Plaintiff is not entitled to any adjustments,
because plaintiff did not include the AFRH in any of its previous FCSE’s submitted for
prior years, as plaintiff concedes. Even if plaintiff had included the AFRH, plaintiff would
only be entitled to the adjustment between what it would have submitted for its 2018 fiscal
year estimates, and the actual cost for sanitary sewer services provided to the AFRH for
the 2018 fiscal year. As stated in section 212(c) of the 1954 Act, as currently amended
and codified in the D.C. Code at section 34-2112(b)(2), “[t]he District’s estimates on a
yearly basis shall reflect such adjustments as are necessary to (A) account for actual
usage variances from the estimated amounts for the fiscal year ending on September 30 th
57
of the calendar year preceding April 15th.” D.C. Code § 34-2112(b)(2). Because plaintiff
did not include the AFRH in its FCSE for the 2018 fiscal year, or any year prior to its 2019
FCSE for the 2021 fiscal year, plaintiff is not entitled to an adjustment in the positive or
negative direction. Furthermore, section 212 of the 1954 Act does not obligate an entity
of the United States to compensate the District for stormwater or impervious area
charges, and plaintiff has failed to allege or establish that it is entitled to such stormwater
charges under 33 U.S.C. § 1323. Finally, plaintiff is not entitled to compensation for sewer
services rendered to the AFRH under an alternative theory of quantum meruit, as plaintiff
has not established that an implied-in-fact contract was created through section 212 of
the 1954 Act.
Therefore, for the reasons stated above, defendant’s motion to dismiss under
RCFC 12(b)(1) and (6) is GRANTED IN PART and DENIED IN PART, to the extent that
plaintiff is entitled its 2021 estimated sanitary sewer service charges as submitted in its
2019 FCSE, but not entitled to any other damages requested. As discussed above,
plaintiff’s claim for stormwater charges is DISMISSED, without prejudice. As also
discussed above, plaintiff’s motion for summary judgment is GRANTED IN PART and
DENIED IN PART. Plaintiff is entitled to the amount listed, in its 2019 FCSE submission,
which was estimated to be due by the AFRH for the fiscal year 2021, less stormwater
charges, and less retrospective charges for prior years. Indeed, provided that DCWS’
2019 FCSE was properly submitted in accordance with section 212(b)(3) of the 1954 Act,
as amended and codified at D.C. Code § 34-2112(b)(3), such net amount for the 2021
fiscal year was to have been executed by the Secretary of the Treasury to the AFRH
“without further justification,” and regardless of whether the AFRH executed such
amounts into the named Treasury account for the Secretary to subsequently execute to
the District. See D.C. Code § 34-2112(b). In the July 16, 2019 FCSE submission, the
District of Columbia Water and Sewer Authority provided that its estimate for the AFRH
for sewer charges for the 2021 fiscal year was $1,747,090.49, not including stormwater
charges, and not including any retrospective charges. Therefore, in accordance with
section 212(b)(1) of the 1954 Act, as it is currently amended and codified at D.C. Code
§ 34-2112(b)(1), the Secretary of Treasury was to have executed payment to DCWS,
equal to one-quarter of $1,747,090.49, or $436,722.62, on each of October 2, 2020,
January 2, 2021, April 2, 2021, and July 2, 2021, and, based on the record before the
court, failed to do so,. Plaintiff’s entitlement to the amounts listed above, however, is
conditioned on plaintiff not having been previously compensated.
The court will schedule future proceedings by separate Order.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
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