Dist. of Columbia Water & Sewer Auth. v. United States, 18-1586C

CourtCourt of Federal Claims
Writing for the CourtMARIAN BLANK HORN JUDGE.
Docket Number18-1586C
Decision Date10 September 2021



No. 18-1586C

United States Court of Federal Claims

September 10, 2021

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.



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 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 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.


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.

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
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...

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