Alta Wind I Owner Lessor C v. United States, 13-402

Background

Plaintiffs are purchasers/lessors of six Alta wind‑farm facilities (sale‑leasebacks and one outright sale) originally developed by Terra‑Gen; they applied for ARRA §1603 cash grants based on facility basis allocations.
Treasury awarded plaintiffs about $495 million; plaintiffs sued alleging underpayment of ≈$206 million; the Court of Federal Claims initially awarded plaintiffs damages after a 2016 bench trial.
The Federal Circuit reversed and remanded, holding the trial court wrongly treated the purchase prices and instructing allocation under the §1060 residual method and separation of tangible assets from intangibles (e.g., PPAs, goodwill).
On remand the case was reassigned; parties disputed whether reopening the record and further discovery (supplemental expert reports, recalling witnesses, new exhibits/documents) was permitted or appropriate.
The court exercised its remand discretion and resolved discovery disputes: it authorized limited supplemental expert reports and rebuttals, allowed recall of six witnesses under RCFC 63, admitted the Pagano exhibit (with annotation and deposition), and permitted submission of Owner‑Lessors A & B transactional documents subject to production of unredacted versions or a privilege log.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) May plaintiffs file supplemental expert reports (Blaydon, Maydew) to conform damages to the Federal Circuit's mandate?	Allow limited supplementation to recalculate damages consistent with Alta Wind I and address tax issue flagged for remand.	Remand mandate was "focused"; plaintiffs had prior opportunity at trial; reopening prejudices government (time, fees, new discovery).	Granted: plaintiffs may file up to 35 pages each (excl. exhibits); government may file up to 35‑page rebuttal reports.
2) May plaintiffs recall fact and expert witnesses under RCFC 63?	RCFC 63 (like FRCP 63) requires recalling any material, disputed, available witnesses so successor judge can assess credibility and make factual findings.	Much prior testimony is not material or is undisputed; some witnesses were not qualified as experts; recall could introduce new, un‑disclosed testimony.	Granted: Court finds testimony of Pagano, Revock, Huplosky, Johnston, Blaydon, Maydew is material and disputed and allows recall to testify on same subjects as at first trial.
3) May plaintiffs introduce the Pagano exhibit (financial table comparing sale vs. retained ownership) on remand?	The exhibit aids remand issues (treatment of cash grant value) and addresses questions the Federal Circuit left for remand. Plaintiffs will annotate sources and allow Pagano's deposition.	Plaintiffs had prior opportunity to present it; admitting it now prejudices government and may be misleading; government seeks fair discovery.	Granted: Pagano exhibit admitted; plaintiffs must provide annotated exhibit citing relied documents; government may depose Pagano; further discovery may be sought later.
4) May plaintiffs submit transactional documents for Owner‑Lessors A & B?	These documents are substantively identical to those already admitted for Owners C & D and complete the record for Alta Wind I owners who were not at first trial.	The set is incomplete (missing unredacted indemnity/implementation docs); defendants need complete/unredacted materials to assess scope and discovery.	Granted subject to condition: plaintiffs must provide unredacted documents or a privilege log explaining redactions; government may then seek additional discovery if needed.

Key Cases Cited

Alta Wind I Owner‑Lessor C v. United States, 897 F.3d 1365 (Fed. Cir. 2018) (appellate mandate: apply §1060 residual method and separate intangibles from tangible basis on remand)
Pacific Gas & Electric Co. v. United States, 668 F.3d 1346 (Fed. Cir. 2012) (trial court has broad discretion on remand to reopen record and admit supplemental expert testimony to fulfill appellate mandate)
Exxon Chemical Patents, Inc. v. Lubrizol Corp., 137 F.3d 1475 (Fed. Cir. 1998) (lower court on remand free to consider issues not inconsistent with appellate mandate)
State Industries, Inc. v. Mor‑Flo Industries, Inc., 948 F.2d 1573 (Fed. Cir. 1991) (remand leaves mode of reconsideration to trial court absent contrary instructions)
Lexion Medical, LLC v. Northgate Technologies, Inc., 641 F.3d 1352 (Fed. Cir. 2011) (trial court has discretion on remand to permit supplemental expert reports or factual declarations)
Mergentime Corp. v. Washington Metropolitan Area Transit Authority, 166 F.3d 1257 (D.C. Cir. 1999) (successor judge must recall witnesses unless testimony is undisputed or witness unavailable)
Hanover Insurance Co. v. United States, 137 Fed. Cl. 479 (2018) (late expert disclosures may be cured by allowing rebuttal/surrebuttal to mitigate prejudice)