97 Fed. Cl. 545
Fed. Cl.2011Background
- Two plaintiff companies allege a taking under the Fifth Amendment related to a denied Section 404 permit for a landfill in Washington.
- David Barrows, a longtime Corps expert, joined plaintiffs’ case as both fact and expert witness; later, regulatory and ethics concerns arose after he returned to government service in 2009.
- Defendant contends Barrows’ government status would bar him from testifying or assisting plaintiffs due to various federal regulations and ethics rules.
- In 2010, the court declined to bar Barrows but required a meeting with Barrows to determine his intentions; Barrows chose to testify only under subpoena and would not accept compensation.
- Plaintiffs sought (a) advance court approval of a subpoena for Barrows and (b) court-ordered paid leave or compensation for Barrows’s pre-trial preparation.
- The court ultimately held: (1) advance court approval of a subpoena for Barrows is unnecessary and would be premature; (2) Barrows must receive paid leave from the Corps for two weeks before trial to prepare for testimony; (3) court-ordered paid compensation from plaintiffs for pre-trial preparation is not viable; (4) Mitchell v. Baldrige and related authorities support paid-leave relief as appropriate given the unique circumstances and rights at stake.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Advance approval of a subpoena for Barrows is warranted | Pls. argue pre-approval prevents prejudice and preserves testimony | No need; subpoena will be enforceable via RCFC 45 when issued | Unwarranted; not necessary to pre-approve |
| Court-ordered paid leave for pre-trial preparation is necessary | Barrows needs paid time to review records; otherwise testimony may be deficient | RCFC 45 governs subpoenas; compensation not mandated | Granted in part; two weeks of paid leave from the Corps |
| Court-ordered paid leave from plaintiffs for Barrows’s preparation is viable | Plaintiffs can fund Barrows’s preparation | Not viable due to potential criminal penalties and ethics rules | Not viable; remedy is Court-ordered paid leave from the Corps |
| Court-ordered paid leave aligns with precedent and fairness | Mitchell supports paid leave to vindicate rights and ensure fair process | Mitchell limitations and distinctions apply | Strong persuasive support for paid-leave remedy; necessary for fairness and truth-seeking |
Key Cases Cited
- Mitchell v. Baldrige, 662 F.Supp. 907 (D.D.C. 1987) (paid pre-trial leave for a federal employee in Title VII case; fairness and vindication of rights)
- Davis v. Bolger, 496 F.Supp. 559 (D.D.C. 1980) (early authority supporting paid leave for court-related activity)
- Kaufman v. Edelstein, 539 F.2d 811 (2d Cir. 1976) (factors for whether an expert should comply with a subpoena)
- Carter-Wallace, Inc. v. Otte, 474 F.2d 529 (2d Cir. 1972) (cited regarding enforcement of expert subpoenas)
- Waste Conversion, Inc. v. Rollins Envtl. Servs. (NJ), Inc., 893 F.2d 605 (3d Cir. 1990) (treating lawyer-issued subpoenas as court orders; consequences of noncompliance)
- Jones v. Babbitt, 52 F.3d 279 (10th Cir. 1995) (disagreement with Mitchell on scope of relief; later developments)