Argument Preview

As we have been reporting, five cases being argued in April at the Federal Circuit attracted amicus briefs. One of those cases is City of WIlmington, Delaware v. United States, a contract case. In this case, the Federal Circuit will review a determination by the U.S. Court of Federal Claims that Wilmington was not entitled to recover “the payment of reasonable service charges” assessed for “the control and abatement of water pollution” and interest pursuant to 33 U.S.C. § 1323. This is our argument preview.

Wilmington, in its opening brief, argues the Federal Circuit “should vacate the judgment; reverse the grant of the United States’ motion for judgment based on partial findings and denials of Wilmington’s motion for partial judgment on the pleadings, motion in limine, and motion to reconsider; remand for further proceedings, including completion of trial; and deem inadmissible any evidence the United States could have presented in Wilmington’s appeal process.” More specifically, it contends the Court of Federal Claims “should have assessed evidence under the preponderance-of-the-evidence standard, not ‘de novo review.'” Wilmington then goes on to argue that, “[s]hould the United States have evidence tending to show the stormwater charges assessed on the Properties are not ‘reasonable service charges,’ the United States should not be permitted to use it because it failed to exhaust Wilmington’s administrative remedies—unless the United States proves that available remedies (a) involved only matters of legal interpretation and required no particular expertise, (b) involved no discretion, and (c) would have been futile at all times in establishing ‘reasonable service charges’ if pursued.”

The government, in its response brief, begins by arguing that, “[a]t trial, Wilmington failed to provide any evidence concerning the Properties’ relative contribution to total stormwater pollution.” Moreover, the government asserts, “the trial court correctly held that the statute does not mandate the Government to exhaust the City’s limited appeal process.” This is so, the government maintains, because “Wilmington’s permissive fee adjustment process is not a ‘requirement’ under section 1323(a) of the Clean Water Act.” Finally, it contends, “the trial court correctly concluded that, because the Clean Water Act does not waive sovereign immunity for interest, Wilmington is not entitled to recover interest on the disputed stormwater charges.”

In its reply brief, Wilmington asserts the government’s response “fails to justify the court’s ruling against Wilmington” and instead “merely confirm[s] that the court’s suspicions were not grounded in evidence in the trial record (and possibly caused by the United States choosing not to put on the defense it promised).” Further, it contends, the government’s response “confirmed de novo review was legally unjustified.”

The National Association of Clean Water Agencies filed an amicus brief in favor of Wilmington. The brief argues that a “narrow interpretation of the Clean Water Act’s mandate that Federal agencies pay ‘reasonable service fees’ for stormwater pollution abatement is contrary to Congressional intent.”

This case will be argued on Friday, April 7. We will report on any developments.