OPINION and ORDER
In a complex litigation that is now well into its second decade, plaintiffs — Resource Investments, Inc. and Land Recovery, Inc.
The dispute began in 2009, when Barrows rejoined his former employer, the U.S. Army Corps of Engineers (the “Corps”), after an intervening career in the private sector. See id. at 376. In light of Barrows’s status as a government employee, defendant asserted that federal regulations and criminal statutes would henceforth bar Barrows from providing expert testimony on plaintiffs’ behalf. See id. at 377. In a prior opinion and order, the court held that defendant’s assertions were either speculative or sought to extend federal regulations beyond their permissible reach. Id. at 381-82. However, noting that Barrows’s own wishes were “a critical unknown,” the court ordered the parties to meet jointly with Barrows in order to ascertain his intentions. Id. at 383.
Following that court-ordered meeting, Barrows expressed continuing anxiety about the prospects of criminal prosecution and disciplinary action by the Corps if he were to testify on plaintiffs’ behalf either voluntarily or in exchange for compensation. See Joint Status Report (July 1, 2010) (“July 2010 JSR”), Attach. (“Barrows Letter”). Accordingly, Barrows announced that he would testify only under subpoena and that he would not accept compensation from plaintiffs either for his testimony or for any necessary pre-trial preparation. See id. Thereafter, the Corps conveyed its intention to give Barrows paid leave for his time in court while under subpoena, but not for any time expended in pre-trial preparation. See Deck of Daniel D. Syrdal (Aug. 5, 2010) (“Syrdal Decl.”), Ex. C (attached to Pis.’ Mot. Re. Subpoena and Compensation of Expert Witness David Barrows).
This prompted plaintiffs’ instant motion, which asks the court: (1) to “declare that it is appropriate and enforceable for [pjlaintiffs to issue a subpoena” for Barrows’s expert testimony; and (2) to order that Barrows “receive paid leave or other reasonable compensation in connection with the preparation for and taking of his testimony.” Pis.’ Mot. Re. Subpoena and Compensation of Expert Witness David Barrows at 1 (“Pis.’ Mot.”). As explained more fully below, plaintiffs’ first request is premature. In particular, the court’s rules authorize plaintiffs’ attorney to issue a subpoena for Barrows without advance approval from the court. See Rules of the United States Court of Federal Claims
Court intervention is necessary, however, in order to ensure that Barrows can adequately prepare for his trial testimony. Having resolved to forego compensation from plaintiffs, Barrows must either prepare for trial on his own time and at his own expense or, as is more likely, forego pre-trial preparation altogether. Yet, without adequate preparation, plaintiffs and the court would be deprived of the full benefit of the expert testimony of this critical witness. Accordingly, plaintiffs’ motion is granted in part and denied in part. As set forth in more detail below, the court orders the Corps to give Barrows paid leave for a period of two weeks before the start of trial so that Barrows may adequately prepare for his expert testimony.
I. BACKGROUND
Although the court’s present ruling does not reach the merits of plaintiffs’ claims, it is informed by the events giving rise to those claims and by Barrows’s central role in those events. Accordingly, an account of the history of this litigation is warranted.
Plaintiffs are two companies in the business of solid-waste management. See Resource I,
In August of 1990, plaintiffs submitted their application for a Section 404 permit. See id. After a three-year period that was “rife with disagreements between plaintiffs and the Corps,” id., the Corps recommended that plaintiffs retain the services of a third-party consultant who would review plaintiffs’ application and recommend the best approach for successful completion of the permitting process. Decl. of David B. Barrows ¶ 2 (Feb. 23, 2000) (“Barrows Deck”) (attached to Pis.’ Mot. for Protective Order Re. Expert Testimony of David Barrows). Spurred by the Corps’ recommendation, plaintiffs sought to retain Barrows, then an environmental consultant with the private firm of Woodward-Clyde. See Resource II,
At the local level, Barrows served as Chief of the Regulatory Programs in the Corps’ Fort Worth and Alaska districts, where he oversaw implementation of the Corps’ Section 404 permitting program.
At the national level, Barrows first supervised the Technical Section of the Regulatory Branch at Corps headquarters in Washington, DC. Barrows Expert Report at 3. In that capacity, Barrows was responsible for providing regulatory oversight and guidance to Corps districts, as well as developing Memoranda of Agreement (“MOA”) between the Corps and other federal agencies. Id. Barrows also helped to develop national “procedures for wetlands delineation and other issues of geographic jurisdiction.” Id.
Ultimately, as Assistant for Regulatory Affairs in the Office of the Secretary of the Army, Barrows oversaw the Corps’ regulatory program nationwide. Id. Barrows’s responsibilities included the “development, or review and recommendation for approval, of regulations, policy, ... and MOAs that would be implemented by Corps headquarters and the 11 divisions and 38 districts of the Corps.” Id. at 3-4. Barrows authored many “MOAs that the Corps implemented concerning wetland mitigation, enforcement, and geographic jurisdiction.” Id. at 4. Barrows also “developed and authored the Army’s position on practicability of alternatives,” a necessary component of the Corps’ evaluation of permit applications under Section 404.
Finally, Barrows’s experience included collaborations with other agencies and branches of the federal government. Barrows led the Corps’ collaboration with the Department of Justice “to develop supplemental guidelines to evaluate risk and avoid unanticipated ‘takings,’ including instructions for preparing Takings Implications Assessments (TIAs)
Based upon this “significant hands-on experience,” plaintiffs believed that Barrows’s assessments and recommendations “would be reliable and carry some weight” with the Corps. Barrows Deck ¶2. Plaintiffs were also encouraged by Barrows’s record as a private consultant, particularly his then-recent success in helping another company to obtain a landfill permit from the Corps. Id. Accordingly, per the Corps’ recommendation and ultimately with its approval, plaintiffs retained Barrows as a third-party consultant in late 1993. See Resource II,
Over the next three years, Barrows was intimately involved in plaintiffs’ efforts to secure a Section 404 permit. See Barrows Decl. ¶¶ 3-17; Barrows Expert Report at 5-6. Barrows began by assessing the prospects for approval of plaintiffs’ permit application; this involved extensive discussions with the Corps concerning a wide range of
At one point during preparation of the EIS, however, Barrows perceived that the Corps had “completely changed its standard of review” with respect to the practicability of alternatives to plaintiffs’ proposed landfill. Barrows Decl. ¶¶ 14-16. In response to Barrows’s protest that its new standard “could never result in a favorable permit decision,” the Corps equivocated. Id. However, subsequent attempts at clarifying the Corps’ standard of review proved fruitless. Id. ¶ 17. So, plaintiffs requested that the Corps terminate the EIS process and, in June of 1996, the Corps did so without a final draft of the EIS. Resource I,
Barrows’s involvement did not end with the Corps’ decision, but continued through the ensuing litigation. In particular, plaintiffs retained Barrows as a non-testifying, consulting expert for their initial suit in the U.S. District Court for the Western District of Washington. See Resource II,
Shortly before the Ninth Circuit’s ruling, plaintiffs filed the instant suit, alleging that the Corps’ actions amounted to an uncompensated taking of their property in violation of the Fifth Amendment. See Compl. ¶¶ 47-49. Plaintiffs identified Barrows as both a fact witness and a testifying expert witness in this case. See Resource II,
The parties then spent an unavailing three years pursuing settlement
Therein, the court held that the federal regulations invoked by defendant were “intended to yield to the needs of the court, and that defendant ha[d] improperly blocked plaintiffs’ access to a key witness.” Id. at 375. The court also concluded that Barrows’s anticipated trial testimony is “unlikely” to create any conflict of interest, given that Barrows would merely “reiterate facts and opinions that he has already provided” through his expert report, sworn declaration, and deposition testimony. Id. at 382. Finally, though not deciding the issue, the court found “speculative” defendant’s suggestion that Barrows’s provision of expert testimony at trial would subject Barrows to criminal prosecution. Id.
Nevertheless, mindful that “expert testimony is ordinarily a matter of private contract,” id. at 378, the court noted that Barrows’s own wishes had been “a critical unknown throughout the course of this dispute,” id. at 383. Accordingly, the court ordered the parties to meet jointly with Barrows in order to ascertain definitively his intentions. Id. The court also provided guidance for the parties’ course of action following that meeting. Notably, the court observed that plaintiffs would be free to issue a subpoena for Barrows’s expert testimony, should Barrows indicate that he would not provide such testimony voluntarily. Id. Though recognizing that “it is not the usual practice,” the court explained that an expert witness may be appropriately subpoenaed under some circumstances. Id. (citing, inter alia, Kaufman v. Edelstein,
Pursuant to the court’s order, the parties met with Barrows on June 14, 2010. See July 2010 JSR at 4. Thereafter, in a letter sent to the parties’ counsel via email on June 29, 2010, Barrows communicated his wishes as well as his ongoing concerns. See Barrows Letter. Barrows began his letter by writing that he was “presented with the difficult challenge to do what is morally right, legal, and ethical.” Id. at 1. Barrows then explained how he had resolved to address that challenge.
Citing the interests of justice, the contractual commitment that he made to plaintiffs more than a decade ago, and his recognition that “expert testimony is for the benefit of the court,” Barrows conveyed his unequivocal wish to testify at trial on plaintiffs’ behalf. Id. at 1-2. However, based upon an ethics opinion from a Corps attorney, Barrows concluded that he must forego all further compensation from plaintiffs in order to shield himself from potential criminal prosecution. Id. at 1. Based upon the same ethics opinion, Barrows further concluded that testifying voluntarily on plaintiffs’ behalf, even without compensation, would subject him to disciplinary action by the Corps. Id. Accordingly — even as he expressed his preference “to avoid the personal, professional, and financial hardship” of testifying without compensation — Barrows stated that he would make himself available to testify at trial “if compelled by subpoena.” Id. at 2.
In light of Barrows’s letter, plaintiffs resolved to seek issuance of a subpoena for Barrows’s expert testimony once a trial date
Responding through district counsel, the Corps rejected both alternatives. See Syrdal Decl., Ex. C. Significantly, district counsel reiterated the Corps’ and defendant’s position that Barrows would commit a crime to accept any compensation from plaintiffs for his services as an expert witness in this case. Id. at 1 (citing the Ethics in Government Act, 18 U.S.C. § 205). However, district counsel noted that plaintiffs may lawfully reimburse Barrows for any travel expenses associated with his court attendance. Id. at 1-2 (citing 28 U.S.C. § 1821). More importantly, district counsel conveyed the Corps’ intention to fulfill its statutory obligation to give Barrows paid leave — “without loss of, or reduction in, pay, or leave to which he is otherwise entitled” — for the period during which Barrows would be under subpoena. Id. at 1 (citing 5 U.S.C. § 6322). As to the time that Barrows would spend preparing for his testimony, however, district counsel asserted that she was “not aware of any federal statute that either authorizes the federal government to pay an employee duty time for witness preparation by a third party, or to accept compensation from a third party for such witness preparation.” Id. at 2.
Plaintiffs then filed the instant motion, asking the court to issue a two-part order. See Pls.’ Mot. at 1, 10-11. First, plaintiffs ask the court to issue an order “declaring that it is appropriate and enforceable for [pjlaintiffs to issue a subpoena” for Barrows’s expert testimony. Id. at 1. To be sure, plaintiffs recognize that no subpoena may yet issue for Barrows because no trial date has been set. Id. at 4; see RCFC 45(a)(1)(A)(iii). Plaintiffs argue, however, that the circumstances warrant the court’s advance approval of a subpoena for Barrows. See Pis.’ Mot. at 1, 4. In particular, plaintiffs assert that they “would be prejudiced in their (likely futile) attempts to seek replacement testimony if made to wait until the [cjourt sets a trial schedule to learn whether the [cjourt would enforce their subpoena.” Id. at 4.
Second, plaintiffs ask the court to order that Barrows “receive paid leave or other reasonable compensation in connection with the preparation for and taking of his testimony.” Id. at 1, 11. Plaintiffs recognize that the Corps intends to give Barrows paid leave while he is under subpoena, i.e., for the period during which Barrows would be in court. Id. at 9. Plaintiffs assert, however, that Barrows “must [also] be allowed time— compensated time — to prepare for his testimony.” Id. at 8 (emphasis added). Without compensation for this preparation time, either from plaintiffs or from the Corps, plaintiffs assert that Barrows may have no opportunity to prepare for his testimony at all. Id. In turn, plaintiffs argue, “to subpoena [Barrows] to testify without providing him the opportunity to prepare without undue hardship would undermine the [ejourt’s truth-seeking functions.” Id.
II. DISCUSSION
For the second time in the course of the parties’ dispute over Barrows, the court is presented with a motion that is, at least in part, premature and inapposite to the procedural posture of the ease. See Resource II,
As recounted above, in order to shield himself from potential criminal prosecution and adverse employment action, Barrows resolved to testify only under the command of a subpoena. See Barrows Letter at 2. Believing that the court’s Resource II opinion “reserved the question of the actual issuance of a subpoena,” id., plaintiffs ask the court to enter an order “declaring that it is appropriate and enforceable for [plaintiffs to issue a subpoena” for Barrows’s expert testimony. Pis.’ Mot. at 10. Plaintiffs alternatively characterize their request as one for advance approval of a future subpoena for Barrows. See id. at 1 (stating that the “question presented” is whether the court should “approve in advance” plaintiffs’ issuance of a subpoena for Barrows). On either formulation, however, plaintiffs’ motion is premature and at odds with the procedural posture of the case. As explained below, no advance court approval of a subpoena for Barrows is necessary, and any court order or declaration regarding the subpoena’s enforceability would be inappropriate and premature.
The court begins with the plain language of Rule 45, which governs the issuance of subpoenas. The rule provides that “[a]n attorney authorized to sign filings under RCFC 83.1 ... may issue and sign a subpoena as an officer of the court.” RCFC 45(a)(3); see also RCFC 45(c)(1) (referring to the “attorney responsible for issuing and serving a subpoena”). This authorization is not otherwise qualified or made subject to court approval. In turn, the rule provides that the “court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena.” RCFC 45(e).
By making “explicit that the attorney acts as an officer of the ... court when issuing and signing subpoenas,” Rule 45 makes clear that an attorney-issued subpoena “has the force of the court behind it.” 9A Wright & Miller, Fed. Prac. & Proc. § 2453 (3d ed. 1998) (discussing the analogous federal rule, Fed. R. Civ. Proc. (“FRCP”) 45).
In turn, the failure to obey an attorney-issued subpoena is “an act in defiance of a court order and exposes the defiant witness to contempt sanctions” under Rule 45(e). Committee Notes on FRCP 45(a)(3). Indeed, refusal to comply with an attorney-issued subpoena may subject the noncompli-ant witness to prosecution for criminal contempt. See Waste Conversion,
As a general matter, therefore, an attorney-issued subpoena is enforceable as a court order through operation of RCFC 45. Accordingly, absent a motion to quash or modify an attorney-issued subpoena, it is generally “a waste of the [c]ourt’s and the parties’ time to litigate the issuance of superfluous additional orders.” Jackson,
This is no less true in this instance. To be sure, as the court previously observed, an expert witness “retained by a party through private, voluntary agreement [] is ordinarily not the proper object of a subpoena.” Resource II,
All the same, the court has gleaned a twofold impetus for plaintiffs’ request for advance approval of a subpoena for Barrows’s expert testimony. As explained below, the first impetus appears to be plaintiffs’ misreading of the court’s opinion in Resource II; the second is plaintiffs’ concern that there may be additional chapters to this protracted dispute. See Pis.’ Reply in Supp. of Pls.’ Mot. Re. Subpoena and Compensation of Expert Witness David Barrows at 2-3 (“Pls.’ Reply”).
To begin, plaintiffs misread Resource II when positing that the court therein “reserved the question of the actual issuance of a subpoena” for Barrows or otherwise put in question the subpoena’s enforceability in the absence of opposition. Id. Resource II did nothing of the sort. Rather, the court merely declined to prejudge a hypothetical motion to quash a future subpoena for Barrows. Resource II,
By overlooking the procedural posture in Kaufman, plaintiffs also misread the court’s previous citation to that particular authority. See Pls.’ Mot. at 4. In Kaufman, the court of appeals was asked to review, not the initial decision to issue a subpoena for expert testimony, but the trial court’s denial of a motion to quash that subpoena. See Kaufman,
To be sure, the court is sympathetic to plaintiffs’ eagerness to remove, once and for all, any remaining uncertainty as to Barrows’s ability to provide expert testimony at trial. See Pls.’ Reply at 3 (expressing plaintiffs’ worry that they “are in most respects no closer now to being able to work” with Barrows). Yet, especially in light of the court’s present ruling on the question of compensation for Barrows, see infra, it appears that the uncertainty is already at an end. For, none expect Barrows himself to challenge plaintiffs’ anticipated subpoena. After all, it is Barrows who all but invited the subpoena so that its command would provide him safe harbor from potential adverse consequences to his expert testimony, testimony that he has conveyed an unequivocal wish to provide. See Barrows Letter at 1-2; Syrdal Deck ¶ 6.
And, for its part, defendant has made repeated and unambiguous representations to the court that it will not move to quash or otherwise oppose a subpoena for Barrows’s expert testimony. See Def.’s Resp. to Pls.’ Mot. Re. Subpoena and Compensation of Expert Witness David Barrows at 2, 5, 8 (“Def.’s Resp.”); July 2010 JSR at 5. Strictly speaking, plaintiffs are correct that defendant’s present intention does not preclude a future change in position. See Pls.’ Mot. at 5. Still, defendant would be hard-pressed to reconcile a future motion to quash with its present commitment to the court. See Def.’s Resp. at 2 (“The United States has committed in writing to [p]laintiffs and to the [c]ourt that it would not seek to quash a subpoena issued to [ ] Barrows for expert testimony.”). It appears unlikely, therefore, that a subpoena for Barrows’s expert testimony will be met with opposition from either Barrows or defendant. Plaintiffs’ anxiety is thus exaggerated and, in any event, cannot alter the appropriate scope for the court’s intervention at this time. For, even if a motion to quash were expected, it would be inappropriate for the court to prejudge that motion or to anticipate or address arguments that have not yet been made. See, e.g., United States v. Hoffenberg,
Once a trial date is set, plaintiffs’ attorney will have the authority as an officer of the court to issue a subpoena for Barrows’s expert testimony pursuant to RCFC 45. Significantly, like all other rules of the court, RCFC 45 has the force and effect of law. See M.A. Mortenson Co. v. United States,
B. Court-Ordered Paid Leave for Barrows’s Pre-Trial Preparation
Far from hypothetical, however, is the parties’ dispute over whether and how Barrows may be compensated for his pre-trial preparation. As discussed above, plaintiffs intend
After all, for more than a year and a half, defendant has maintained that it would be criminal for Barrows to accept any compensation from plaintiffs in connection with his testimony in this ease. See, e.g., Barrows Letter at 1; Syrdal Decl., Ex. C at 1 (citing 18 U.S.C. § 205); Def.’s Resp. at 6 (same); Def.’s Resp. to Pls.’ Mot. for Protective Order Re. Expert Testimony of David Barrows at 7 (Aug. 13, 2009) (citing 18 U.S.C. §§ 201-27). Faced with this dire prospect, Barrows has resolved to forego all further compensation from plaintiffs. See Barrows Letter at 1. For its part, though it has conveyed its intention to give Barrows paid leave for the duration of plaintiffs’ anticipated subpoena, see Syrdal Decl., Ex. C at 1 (citing 5 U.S.C. § 6322),
If Barrows’s testimony is to be of any value to the court, plaintiffs posit, “Barrows must be allowed time — compensated time— to prepare for his testimony.” Pls.’ Mot. at 8. Plaintiffs estimate that Barrows would require two weeks “to adequately review the record in preparation for his expert testimony.” Id. (citing Syrdal Decl. ¶ 4). Plaintiffs argue that to “subpoena [Barrows] to testify without providing him the opportunity to prepare without undue hardship would undermine the [cjourt’s truth-seeking functions.” Id.
The court agrees. A full and fair adjudication of this case requires that Barrows be provided a meaningful opportunity to prepare for his testimony. Although the precise circumstances of this case present a question of first impression for the court, fundamental principles all but dictate the answer. As elaborated below, and in light of Barrows’s central role in this case, the interests of justice and indeed the needs of this court require that Barrows receive paid leave from the Corps so that he may adequately prepare for his testimony.
1. Court-Ordered Compensation from Plaintiffs Is Not Viable
Admittedly, this is an unusual remedy. See infra. So, the court begins by explaining why the ordinarily simpler alternative, court-ordered compensation from plaintiffs, is not viable in this instance. Quite simply, no such court order can resolve Barrows’s dilemma or shield him from the albeit remote prospect of criminal prosecution that he so fears. See Barrows Letter at 1-2. And plaintiffs’ proffer of RCFC 45 as a possible ground for such a court order is unavailing.
Plaintiffs point to the dual command of RCFC 45 that a party issuing a subpoena must “take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena” and that the “court must enforce this duty.” Pis.’ Mot. at 5-6 (quoting RCFC 45(c)(1)). Plaintiffs also point to the rule’s provision that the court may set “specified conditions” for the enforcement of a subpoena, including that a subpoenaed expert “be reasonably compensated” for his testimony. Id. (quoting RCFC 45(c)(3)(C)). With these provisions in mind, plaintiffs argue that RCFC 45 gives the court “the authority and indeed the mandate to order that [] Barrows be compensated” by plaintiffs for his pre-trial preparation. Id. at 6; see id. n. 5.
Moreover, even if the command of plaintiffs’ anticipated subpoena could encompass pre-trial preparation, RCFC 45(c) would still be inapposite to the posture of this ease. After all, the duties imposed by RCFC 45 fall plainly and squarely on the party “responsible for issuing and serving a subpoena” or “the serving party.” RCFC 45(c). And plaintiffs, the serving parties in this case, are only too eager to fulfill those duties. Plaintiffs have expressed their willingness to compensate Barrows in accordance with their existing contract, they have offered to reimburse the Corps for Barrows’s salary and benefits if the Corps gives Barrows paid leave for pre-trial preparation, and they have filed the instant motion urging the court to protect Barrows from undue hardship. See Pis.’ Mot. at 5-10.
In the end, however, plaintiffs’ efforts are beside the point. The rub in this case is that plaintiffs, though willing to fulfill their duties under RCFC 45, will be unable to compensate Barrows because Barrows has decided not to accept such compensation. See Barrows Letter at 1. To be sure, Barrows made this decision grudgingly. See id. at 2 (noting that he “would prefer to avoid the personal, professional, and financial hardship” of testifying without compensation). And plaintiffs are correct to question whether Barrows truly had a choice in the matter. See Pis.’ Mot. at 5, 7; Pis.’ reply at 7. Barrows’s letter certainly suggests that he felt coerced by defendant’s counsel’s “continued comments” concerning “legal risks” and potential “vulnerability] to charges of conflict of interest or criminal penalties.” Barrows Letter at 1. Nevertheless, Barrows’s decision clearly signals his fear of the prospect of criminal prosecution, although this prospect is at best hypothetical.
Thus, court-ordered compensation from plaintiffs might spare Barrows the financial burden of preparing for trial on his own time, but would substitute for it the burden of exposure to possible criminal prosecution. This would hardly resolve Barrows’s dilemma or effectuate the command of RCFC 45(e) to spare Barrows undue burden. This is why court-ordered paid leave from the Corps is the only way to ensure — without substituting one undue burden for another — that Barrows will have an adequate opportunity to prepare for his testimony.
The precedent of Mitchell, a Title VII anti-discrimination suit brought by a federal employee,
Mitchell relied upon the importance of the right being vindicated in a suit brought under Title VII, a law that seeks “to afford to those suffering from discrimination an efficacious remedy, unencumbered by unnecessary difficulties and obstacles.” Id. at 908 (quoting Davis v. Bolger,
In turn, the importance of the right being vindicated made any departure from basic notions of fairness particularly troubling to the Mitchell court. See id. Instructive in this regard is Mitchell's extensive reliance on Davis, an earlier Title VII case in which the court ordered that one of the plaintiffs witnesses, a federal employee, receive paid leave for court attendance. See Davis,
Finally, Mitchell relied upon the fact that its plaintiff was “not an untested litigant,” but rather had a “particularly strong” claim and had already survived one round of appeal. Id. This further buttressed the court’s decision because the successful Title VII plaintiff is entitled to reimbursement for any unpaid leave used for pre-trial preparation. See id. Subsequent decisions by the same court have underscored this particular ground for the decision in Mitchell. See Moore v. Summers,
3. The Need for Court-Ordered Paid Leave for Barrows Is Compelling
Mitchell’s reasoning proves equally compelling when extended to this case. First
After all, Barrows’s expertise with regard to the Corps’ permitting process under Section 404 — an expertise acquired over the course of a nineteen-year career with the Corps — is all but singular. As noted above, during his time at the Corps’ Fort Worth and Alaska Districts, Barrows personally processed or reviewed more than one thousand Section 404 permit applications. See Barrows Expert Report at 3; Resource II,
More importantly, Barrows played a central role in the permitting process at issue in this case. For three years as a third-party consultant, Barrows worked extensively both with plaintiffs and with the Corps. See Barrows Decl. ¶¶ 3-17; Barrows Expert Report at 5-6. During that time, Barrows engaged in extensive discussions with the Corps regarding environmental and other concerns relating to plaintiffs’ landfill proposal. See Barrows Deck ¶¶3-5. Pursuant to those discussions, Barrows recommended specific and targeted changes to plaintiffs’ permit application, all aimed at securing the Corps’ approval. See id. ¶¶ 6-8. Barrows also worked closely with the Corps over the course of many months to draft the EIS for plaintiffs’ landfill. See id. ¶¶ 11-13; Resource I,
Juxtaposed against the critical importance of Barrows’s testimony is the passage of more than a decade since Barrows was last involved in this litigation. When testifying at trial, Barrows will be expected to have a thorough and detailed knowledge of a voluminous record, including a fifty-page expert report and 400 pages of deposition testimony dating back eleven or twelve years. See Pis.’ Mot. at 8. Barrows will also be expected to recall events, along with contemporaneously formed impressions and expert opinions, dating back nearly twenty years. See supra. It will be impossible for Barrows to meet these expectations for thoroughly informed and coherent testimony without a substantial in
In sum, three things are clear. First, absent court intervention, Barrows will have no source of financial support for the two-week period he would need to prepare for his testimony. Accordingly, given the financial hardship it would entail, Barrows is almost certain to forego pre-trial preparation altogether. Second, given the passage of time, the sheer volume of the record, and the complexity of the issues in this case, Barrows’s testimony would be vitiated by this lack of preparation. Third, without the full benefit of Barrows’s critical testimony, plaintiffs’ case would virtually collapse. Barrows’s ability to prepare for his testimony and plaintiffs’ ability to vindicate their rights are thus inexorably linked: as in Mitchell, plaintiffs’ own rights are very much at stake.
Those rights, in turn, are no less important than the right at issue in Mitchell. The civil right to be free from discrimination was considered by the court in Mitchell to be so important as to implicate the United States’ own interests. See Mitchell,
Also as in Mitchell, plaintiffs here are tested litigants. See Mitchell,
Attempting to distinguish Mitchell in this regard, defendant observes that Barrows’s decision to refuse further compensation means that plaintiffs, even if ultimately successful in this suit, “will not have recoverable expert [witness] fees from this point forward relating to” Barrows. Def.’s Resp. at 9-10. This accurate observation, however, only underscores the need for court-ordered paid leave in this case. Instructive on this point is the one ease expressing categorical disagreement with Mitchell. See Jones v. Babbitt,
Finally, the same basic principles of fairness and equal protection that moved the Mitchell court also dictate the outcome in this case. See Mitchell,
The court’s present decision thus rests, not only upon precedent, but also upon fundamental principles of fairness, equal protection for the parties before the court, and truth-seeking in the judicial process. The court has both the authority and the obligation to ensure that such fundamental principles are not disregarded or undermined, no matter how novel the factual circumstance or how rarely used the requisite remedy. Although no statute or rule requires it, the interests of justice and the needs of the court require that Barrows have an adequate opportunity to prepare for his expert testimony. Under the circumstances of this case, court-ordered paid leave from the Corps is the only way to provide Barrows with that opportunity.
III. CONCLUSION
For the foregoing reasons, plaintiffs’ motion is GRANTED in PART and DENIED in PART. The Corps (1) SHALL give Barrows paid leave for a period of two weeks — without loss of, or reduction in, pay, credit for time or service, or leave to which Barrows is otherwise entitled — so that Barrows may adequately prepare for his trial testimony. This court-ordered paid leave (2) SHALL be in addition to the statutorily mandated leave, under 5 U.S.C. § 6322, to which Barrows will be entitled while under subpoena (for the two-week period of trial), and (3) SHALL span the two-week period immediately preceding the start of trial, unless compelling circumstances necessitate, or plaintiffs and Barrows jointly consent to, an alternate two-week period.
IT IS SO ORDERED.
Notes
. See Res. Invs., Inc. v. United States,
. Under Section 404 of the Clean Water Act, the discharge of "dredged or fill material” into "the navigable waters” of the United States is prohibited, unless the Secretary of the Army, acting through the Corps, issues a permit for the proposed discharge. 33 U.S.C. § 1344. In some instances, "the navigable waters” under Section 404 can include wetlands. See Rapanos v. United States,
. The Corps' offices are organized geographically into multiple divisions and, within those divisions, multiple districts. See Locations, U.S. Army Corps of Engineers, http://www.usace. army.mil/about/Pages/Locations.aspx.
. Although the authority to issue Section 404 permits lies with the Corps, Congress directed the Environmental Protection Agency ("EPA”) to promulgate guidelines for the Corps' exercise of that authority. See 33 U.S.C. § 1344(b). EPA's guidelines provide that "no discharge of dredged or fill material shall be permitted” — i.e., no Section 404 permit shall issue — "if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a).
. Pursuant to a 1988 Executive Order, executive agencies must analyze the takings implications of certain actions and must report any significant findings to the Office of Management and Budget: these reports are called "Takings Implications Assessments.” See Cong. Budget Office, Regulatory Takings and Proposals for Change 45 (1998) (discussing Exec. Order No. 12630, 53 Fed.Reg. 8859 (1988)), available at http://www. cbo.gov/doc.cfm?index= 1051 &type=0& sequence=6.
. For all "major Federal actions significantly affecting the quality of the human environment”— which actions can include issuance of a permit under Section 404 — the National Environmental Policy Act of 1969 requires a federal agency to prepare "a detailed statement” on "the environmental impact of the proposed action,” including, inter alia, an assessment of "alternatives to the proposed action.” 42 U.S.C. § 4332(C). This "detailed statement,” id.., is commonly referred to as an “environmental impact statement” or "EIS.” See, e.g., Winter v. Natural Res. Def. Council, Inc.,
. The parties participated in the court’s Alternative Dispute Resolution ("ADR”) program from April 2002 to August 2005. See Order Referring Case to ADR (Apr. 14, 2002), ECF No. 117; Order Removing Case from ADR (Aug. 26, 2005), ECF No. 122.
. In interpreting RCFC 45, the court looks to case law construing the corresponding federal rule, to which RCFC 45 "conforms ... to the extent feasible given the court’s nationwide jurisdiction,” Rules Committee Notes on RCFC 45. See Widdoss v. Sec’y of the Dept. of Health and Human Srvs.,
. In pertinent part, and with exceptions not applicable here, the statute provides that an employee of the federal government is "entitled to leave, without loss of, or reduction in, pay, leave to which he otherwise is entitled, credit for time or service, or performance of efficiency rating, during a period of absence with respect to which he is summoned, in connection with a judicial proceeding, by a court or authority responsible for the conduct of that proceeding, to serve — ... as a witness on behalf of any party in connection with any judicial proceeding to which the United States ... is a party.” 5 U.S.C. § 6322(a).
. As noted earlier, the statutory provision that Barrows fears, and which arguably would expose him to criminal sanctions should he accept compensation from plaintiffs, is 18 U.S.C. § 205. See, e.g., Def.'s Resp. at 3. Section 205 provides that "[wjhoever, being an officer or employee of the United States in the executive, legislative, or judicial branch of the Government or in any agency of the United States, other than in the proper discharge of his official duties — ... receives any gratuity, or any share of or interest in any [claim against the United States], in consideration of assistance in the prosecution of such claim ... shall be subject to the penalties set forth in section 216 of this title.” 18 U.S.C. § 205.
. Notably, the court cannot ground its order upon the authority of 5 U.S.C. § 6322. By its terms, the statute mandates leave only for the period of time during which a government employee "is summoned, in connection with a judicial proceeding.” 5 U.S.C. § 6322(a). This statutory mandate is limited to involuntary appearances and does not extend to time spent in voluntary pretrial preparation. See, e.g., Aaron v. United States,
. Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. §§ 2000e, 2000e-l-17, prohibits discrimination on the basis of race, color, religion, sex, or national origin, id. § 2000e-2.
. Both Shelborne and Moore sought to narrow the appropriate circumstances for ordering paid leave for case preparation by limiting Mitchell's application to the “tested” litigant. See Moore,