UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY,
Plaintiff,
v.
6,627 SQUARE FEET OF LAND, MORE OR Civil Action Nos. 21-1753 and 21-1757
LESS, SITUATE IN THE DISTRICT OF (BAH)
COLUMBIA (KNOWN AS 2506 28TH
STREET NE), et al., Chief Judge Beryl A. Howell
and
7,360 SQUARE FEET OF LAND, MORE OR
LESS, SITUATE IN THE DISTRICT OF
COLUMBIA (KNOWN AS 2500 28TH
STREET NE AND 2510 BLADENSBURG
ROAD NE), et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff, the Washington Metropolitan Area Transit Authority (“WMATA”), seeks to
take possession of several tracts of land bordering the Bladensburg Bus Garage in Northeast,
Washington, D.C., in order to expand the terminal to hold additional buses as part of an ongoing
capital improvement project. In furtherance of that goal, in June 2021, plaintiff filed civil actions
“under the power of eminent domain through a Declaration of Taking” to gain title to these tracts
of land, so that “just compensation to the owners and parties in interest” could be determined and
awarded. See Compl. ¶ 1, WMATA 1753 ECF No. 1, WMATA 1757 ECF No. 1. 1 Two of
1
On the same day as the two civil actions addressed in this Memorandum Opinion were filed, plaintiff also
filed a third related case seeking to condemn another tract of land in connection with the Bladensburg Bus Garage
project. See Not. Related Case, WMATA v. 5,255 Square Feet of Land, No. 21-cv-1743 (BAH), ECF No. 5. The
1
these tracts of lands, and the corresponding lawsuits filed on the same day as related, see Not.
Related Case, WMATA 1753 ECF No. 5; Not. Related Case, WMATA 1757 ECF No. 5, are
addressed in this Memorandum Opinion. 2 The first is a roughly 6,627 square foot property
located at 2506 28th Street NE, Washington, DC, in which defendants Northeast Iron Works
Land Partnership and Northeast Iron Works, Inc. have claimed an interest. See Answer at 1,
WMATA 1753 ECF No. 15. The second is a roughly 7,360 square foot property located at 2500
28th Street NE, Washington, DC, in which defendants 1210 Bladensburg Road LLC and Tasty
Kabob and Gyro, Inc., have claimed an interest. See Answer, WMATA 1757 ECF No. 15.
Defendants in both these cases object to the taking of their property. See generally id.;
WMATA 1753 Answer. Plaintiff has now moved for judgment on the pleadings, seeking that
the Court adjudge defendants’ properties as taken lawfully, in accordance with a valid public
purpose. See Pl.’s Mot. for J. on the Pleadings as to the Authority for and Public Purpose of the
Taking and to Strike Insufficient Defenses and Objections (“Pl.’s Mot.”), WMATA 1753 ECF
No. 17, WMATA 1757 ECF No. 19. Plaintiff also moves to strike the other defenses and
objections asserted by defendants as legally invalid. See id. For the reasons set forth below,
3
plaintiff’s motion is granted as to both cases.
parties in that suit pursued a successful mediation and, after a stipulated final judgment was entered, that third case
is now closed. See Final J., WMATA v. 5,255 Square Feet of Land, No. 21-cv-1743 (BAH), ECF No. 25.
2
For clarity, each action is referenced by its civil case number. Thus, for example, Civil Action No. 21-1753
will be referred to as “WMATA 1753,” with docket filings in that case identified by the prefix and appropriate
docket number. The briefing between the two cases is almost entirely duplicative, with minor differences in page
numbers. Unless otherwise specified, citations are to the versions of the filings docketed in WMATA 1753.
3
The parties do not contest, and the Court finds, that jurisdiction over these cases may be properly exercised,
pursuant to the Washington Metropolitan Area Transit Authority Compact, Pub. L. No. 89-774, § 81, 80 Stat. 1324,
1324 (codified at D.C. CODE § 9-1107.01) (the “WMATA Compact”), which provides that “[t]he United States
District Courts shall have original jurisdiction, concurrent with the courts of Maryland, Virginia, and the District of
Columbia, of all actions brought by or against the Authority.” See Compl. ¶ 2; Answer ¶ 2.
2
BACKGROUND
In 2019, plaintiff announced plans to overhaul the Bladensburg Bus Garage, first built in
1962, in order to “modernize the facility” that currently houses 260 buses and support vehicles,
and “dramatically improv[e] essential bus operations and maintenance” by creating additional
bus spaces. Bladensburg Bus Garage Reconstruction Project, WMATA (last visited July 5,
2022), https://www.wmata.com/initiatives/plans/Bladensburg/index.cfm. The proposal also
allocated “space for electric bus infrastructure in the future . . . consistent with Metro’s zero-
emission bus plan.” Id.
In connection with this project, on June 30, 2021, plaintiff filed suit in this Court, seeking
to exercise its “power of eminent domain” to condemn (1) a tract of land 6,627 square feet in
size, located at 2506 28th Street NE, see WMATA 1753 Compl. at 1; and (2) another property
7,360 square feet in size, located at 2500 28th Street NE, see WMATA 1757 Compl. at 1. 4 In
the schedules filed with the Complaint in each case, plaintiff explained that it was authorized to
acquire the property pursuant to (1) section 82 of the WMATA Compact, Pub. L. No. 89-774, 80
Stat. 1324, 1350–51, as amended by the National Capital Area Transit Act of 1972, Pub. L. No.
92-517, 86 Stat. 999 (codified at D.C. CODE § 9-1107.01); and (2) the D.C. eminent domain
procedures, D.C. CODE § 16-1351 et seq. Compl., Sched. A, Authority for the Taking at 1,
WMATA 1753 ECF No. 1-2, WMATA 1757 ECF No. 1-2. The “public purpose” for acquiring
the property was “the construction, operation, use, and maintenance of a replacement bus garage
facility and related facilities,” id., Sched. B, Public Purpose at 1, WMATA 1753 ECF No. 1-3,
WMATA 1757 ECF No. 1-3, pursuant to the WMATA “Fiscal Year 2021 Budget Capital
Improvement Project 0311 – Bladensburg Bus Garage Replacement,” see Sched. A at 1.
4
The property at issue in WMATA 1757 is listed alternatively as 2510 Bladensburg Road NE, Washington,
DC. See Compl., Sched. C, Description of the Property, WMATA 1757 ECF No. 1-4.
3
Plaintiff also provided more detailed descriptions of the tracts of land, see id., Sched. C,
Description of the Property, WMATA 1753 ECF No. 1-4, WMATA 1757 ECF No. 1-4, and id.,
Sched. D, Map, WMATA 1753 ECF No. 1-5, WMATA 1757 ECF No. 1-5, and clarified that the
estate to be taken in the properties was “fee simple absolute, including all improvements and
appurtenances, but subject to any existing public utility easements,” or interests held by the
District of Columbia, id., Sched. E, Estate to be Acquired at 1, WMATA 1753 ECF No. 1-6,
5
WMATA 1757 ECF No. 1-6.
In each case, plaintiff also estimated the just compensation for the taking and listed the
parties known to have an interest in the property. In WMATA 1753, just compensation was
estimated to be $880,000, id., Sched. F, Estimate of Just Compensation, WMATA 1753 ECF No.
1-7, and the parties known to have an interest in the property were (1) defendant Northeast Iron
Works Land Partnership, which was listed on the deed; (2) defendant Northeast Iron Works Inc.,
according to an unrecorded lease agreement; and (3) the DC Office of Tax and Revenue, id.,
6
Sched. G, Interested Parties at 1, WMATA 1753 ECF No. 1-8. In WMATA 1757, just
compensation was estimated at $1,060,000, id., Sched. F, Estimate of Just Compensation,
WMATA 1757 ECF No. 1-7, and the parties known to have an interest in the property were (1)
defendant 2510 Bladensburg Road LLC, which was listed on the deed; (2) defendant Tasty
Kabob and Gyro, Inc., according to an unrecorded lease agreement; (3) two “[t]rustees for the
benefit of United Bank,” according to a “Deed of Trust dated September 6, 2017”; (4) United
5
Taking the property “in fee simple” creates “a new title and extinguishes all existing possessory and
ownership interests not specifically excepted.” Calf Island Cmty. Tr., Inc. v. Young Mens Christian Assoc. of
Greenwich, 392 F. Supp. 2d 241, 245 n.1 (D. Conn. 2005) (citing A.W. Duckett & Co. v. United States, 266 U.S.
149, 151 (1924)).
6
On November 16, 2021, the third entity identified as an “interested party” in Schedule G to the WMATA
1753 Complaint, the DC Office of Tax and Revenue, filed a notice “disclaim[ing] any right, title, claim or interest in
the compensation paid or to be paid in this case.” Def.’s Disclaimer of Interest at 1, WMATA 1753 ECF No. 24-1.
No other party has appeared asserting any interest in the property.
4
Bank, according to a “Collateral Assignment of Leases and Rents dated September 6, 2017”; and
(5) the DC Office of Tax and Revenue, id., Sched. G, Interested Parties at 1–2, WMATA 1757
ECF No. 1-8. 7
Along with the Complaint, plaintiff filed a Notice of Condemnation (“Not. Condemn.”),
WMATA 1753 ECF No. 1-9, WMATA 1757 ECF No. 1-9, addressed to those entities identified
as interested parties, and instructing that, if those interested parties had “any objection or defense
to the taking of the property in which [they] have or claim some interest,” to file an Answer to
the Complaint within 21 days “stating the nature and extent of the interest claimed and stating all
[their] objections and defenses to the taking of the property.” Not. Condemn. at 1–2. The Notice
explained that “failure to serve an Answer [would] constitute consent to the taking and . . . a
waiver of all defenses and objections to the taking.” Id. at 2.
That same day, plaintiff filed, in both cases, a Declaration of Taking from Nina M.
Albert, Vice President of Real Estate and Parking for WMATA, affirming that the authority and
public purpose for the takings and the description of the properties were as set forth in the
schedules filed with the Complaint, and declaring that WMATA was depositing the estimated
just compensation “in the registry of the Court for the use and benefit of the persons entitled
thereto.” Decl. of Taking (“Albert Decl.”) at 1–2, WMATA 1753 ECF No. 2, WMATA 1757
ECF No. 2. To facilitate that deposit, and pursuant to Federal Rule of Civil Procedure 67(a) and
7
After filing the Complaint, on September 7, 2021, plaintiff moved to add the District of Columbia Water
and Sewage Authority as an additional interested party, Pl.’s Not. Additional Interested Party & Mot. Add Party
Under Rule 71.1(c)(3), WMATA 1757 ECF No. 17, which motion was granted, see Order, WMATA 1757 ECF No.
18.
On October 4, 2021, United Bank and the two trustees of United Bank identified as “interested parties” in
Schedule G to the WMATA 1757 Complaint (the “United Bank Defendants”) filed a notice “disclaim[ing] any right,
title, claim or interest in the compensation paid or to be paid in this case.” Defs.’ Disclaimer of Interest at 1,
WMATA 1757 ECF No. 22-1. On October 26, 2021, the District of Columbia Water and Sewage Authority did the
same, see Not. Disclaimer of Interest, WMATA 1757 ECF No. 26, as did the only other entity identified as an
“interested party,” the D.C. Office of Tax and Revenue, on December 6, 2021, see Not. Disclaimer of Interest,
WMATA 1757 ECF No. 31. No other party has appeared asserting any interest in the property.
5
D.D.C. Local Civil Rule 67.1, plaintiff moved for an order to deposit the estimated just
compensation in the Court’s registry, see Ex Parte Appl. for Order to Deposit Estimated Just
Compensation, WMATA 1753 ECF No. 3, WMATA 1757 ECF No. 3, which motion was
granted on July 2, 2021, see Order Directing Clerk to Deposit Funds into Court Registry,
WMATA 1753 ECF No. 7, WMATA 1757 ECF No. 7; see also WMATA 1753 Deposit of
Sequestered Funds (July 9, 2021), WMATA 1757 Deposit of Sequestered Funds (July 9, 2021).
On July 27, 2021, defendant 2510 Bladensburg Road LLC filed a motion to release these funds,
pursuant to Fed. R. Civ. P. 71.1(j)(2). See Def.’s Consent Mot. to Release Funds On Deposit,
WMATA 1757 ECF No. 10. The next day, defendant Northeast Iron Works Land Partnership
filed a similar motion to release the deposited funds in the companion case. See Def.’s Consent
Mot. to Release Funds On Deposit, WMATA 1753 ECF No. 10. Without objection from
plaintiff, the Court granted defendants’ motions on July 28, 2021. See Order, WMATA 1753
ECF No. 11, WMATA 1757 ECF No. 11.
Then, on September 3, 2021, defendants filed Answers in each case that are, for all
relevant purposes, identical. See Answer. With respect to (1) plaintiff’s “authority for the
acquisition,” Compl. ¶ 3; (2) the “public purpose for which the property is taken,” id. ¶ 4; (3) the
“legal description of the property,” beyond its street address, id. ¶ 5; and (4) the accuracy of the
map provided by plaintiff, id. ¶ 6, defendants stated they were “[w]ithout sufficient information
to form a belief about the truth of the allegations” and “demand[ed] strict proof thereof,” Answer
¶ 3; see also id. ¶¶ 4–6 (making same statement). Defendants denied that the estimated
compensation “constitutes the just compensation that the Defendants are entitled to receive,” and
that “such deficient compensation tendered in this matter entitles Defendants to recovery of its
[sic] attorney fees and costs under the Equal Access to Justice Act” (“EAJA”), 28 U.S.C. § 2412,
6
and to “additional damages . . . under the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970” (“URA”), 42 U.S.C. § 4601, et seq. Id. ¶ 8.
In light of defendants’ Answers, on September 24, 2021, plaintiff moved for judgment on
the pleadings, asserting that the takings were lawful and justified, and that the defenses and
objections raised by defendants were insufficient. See Pl.’s Mot. at 2. Defendants failed to file
timely oppositions to plaintiff’s motion, and were ordered to show cause (“OTSC”) why
plaintiff’s motion “should not be granted as conceded.” WMATA 1753 OTSC (Oct. 13, 2021);
WMATA 1757 OTSC (Oct. 13, 2021). Defendants filed timely responses to the OTSC issued to
them, clarifying that plaintiff’s motion “was not conceded,” Defs.’ Reply to Court’s OTSC at 1,
WMATA 1753 ECF No. 20, WMATA 1757 ECF No. 23, and appending their belated
oppositions to plaintiff’s motion, see Defs.’ Mem. Supp. Court Ordered Show Cause as to Delay
in Opp’n to Pl.’s Mot. for J. on Pleadings and to Strike Answer as to a Demand for Proof of
Justified Public Purpose (“Defs.’ Opp’n”), WMATA 1753 ECF No. 20-2, WMATA 1757 ECF
No. 23-2. After seeking one extension of the reply deadline, see Pl.’s Unopposed Mot. to Extend
the Reply Deadline, WMATA 1753 ECF No. 21, WMATA 1757 ECF No. 24, which the Court
granted, see WMATA 1753 Min. Order (Oct. 21, 2021), WMATA 1757 Min. Order (Oct. 19,
2021), plaintiff filed a reply in support of its motion on October 29, 2021, see Pl.’s Reply Supp.
Mot. for J. on Pleadings as to the Authority for and Public Purpose of the Taking and to Strike
Insufficient Defenses and Objections (“Pl.’s Reply”), WMATA 1753 ECF No. 22, WMATA
1757 ECF No. 27.
Pursuant to the parties’ request, see Jt. LCvR 16.3 Report to the Court at 3, WMATA
1753 ECF No. 19, WMATA 1757 ECF No. 21, discovery has been stayed “pending a decision
7
on” plaintiff’s motion, see WMATA 1753 Min. Order (Oct. 4, 2021), WMATA 1757 Min. Order
(Oct. 4, 2021), which is now ripe for resolution.
LEGAL STANDARD
Actions “to condemn real and personal property by eminent domain” in federal court are
governed by Federal Rule of Civil Procedure 71.1. FED. R. CIV. P. 71.1(a). The complaint in an
eminent domain action must describe, in “a short and plain statement,” the (1) “authority for the
taking;” (2) “uses for which the property is to be taken;” (3) “interests to be acquired” as well as
a (4) description of the property “sufficient to identify” it; and (5) “designation of each defendant
who has been joined as an owner or owner of an interest in it.” FED. R. CIV. P. 71.1(c)(2). Any
defendant with “an objection or defense to the taking” of the property must, “within 21 days after
being served,” serve an answer to the complaint identifying “the property in which the defendant
claims an interest,” the “nature and extent of that interest,” and any and all “objections and
defenses” the defendant has to the taking. FED. R. CIV. P. 71.1(e)(2). “A defendant waives all
objections and defenses not stated in its answer,” and “[n]o other pleading or motion asserting an
additional objection or defense is allowed.” FED. R. CIV. P. 71.1(e)(3). Unless the law provides
other mechanisms for determining compensation, “the court tries all issues, including
compensation.” FED. R. CIV. P. 71.1(h)(1). Upon plaintiff’s “deposit with the court [of] any
money required by law as a condition to the exercise of eminent domain,” the court must
“distribute the deposit and [] determine and pay compensation.” FED. R. CIV. P. 71.1(j); see also
D.C. CODE § 16-1353(b) (mandating, “[u]pon the filing of the declaration of taking,” that the
plaintiff “deposit in the registry of the court . . . the amount of the estimated compensation stated
in the declaration,” which funds are for “the use of the persons entitled thereto”). If
compensation finally awarded to a defendant exceeds the portion of the deposit distributed to that
defendant, “the court must enter judgment against the plaintiff for the deficiency”; conversely, if
8
the court awards less to a defendant than what was distributed to that defendant, “the court must
enter judgment against that defendant for the overpayment.” FED. R. CIV. P. 71.1(j)(2).
Federal Rule of Civil Procedure 12(c) authorizes a party to move for judgment on the
pleadings at any time “[a]fter the pleadings are closed—but early enough not to delay trial.”
FED. R. CIV. P. 12(c). “In considering a motion for judgment on the pleadings, the Court should
accept as true the allegations in the opponent’s pleadings and accord the benefit of all reasonable
inferences to the non-moving party.” Stewart v. Evans, 275 F.3d 1126, 1132 (D.C. Cir. 2002)
(internal quotation marks omitted); see also Dist. No. 1, Pac. Coast Dist., Marine Eng’rs
Beneficial Ass’n, AFL-CIO v. Liberty Mar. Corp., 933 F.3d 751, 760–61 (D.C. Cir. 2019) (“The
moving party must demonstrate its entitlement to judgment in its favor, even though the ‘court
evaluating the 12(c) motion will accept as true the allegations in the opponent’s pleadings, and as
false all controverted assertions of the movant.’” (quoting Haynesworth v. Miller, 820 F.2d
1245, 1249 n.11 (D.C. Cir. 1987), abrogated on other grounds by Hartman v. Moore, 547 U.S.
250 (2006))). The movant is entitled to judgment under Rule 12(c) by demonstrating that “no
material fact is in dispute and that it is entitled to judgment as a matter of law.” Peters v. Nat’l
R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992) (internal quotation marks omitted).
A court may not consider “matters outside the pleadings” without converting the motion
to one for summary judgment. FED. R. CIV. P. 12(d); see also Stephens v. Kemp, 469 U.S. 1043,
1057 (1984) (Brennan, J., dissenting from denial of certiorari) (“Rule 12(c), for example,
provides that if a court considers matters outside the pleadings in determining whether to enter
judgment, the motion shall be considered as one for summary judgment and all parties shall be
given reasonable opportunity to present all material made pertinent to such a motion.” (internal
quotation marks omitted)). Nevertheless, without triggering the conversion rule, a court may
9
consider “documents incorporated into the complaint by reference, and matters of which a court
may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007); see also Liberty Mar. Corp., 933 F.3d at 760 (“Pleadings include any ‘copy of a written
instrument that is an exhibit to a pleading,’ such as relevant and authentic documents attached to
the complaint.” (quoting FED. R. CIV. P. 10(c) and citing Philips v. Pitt Cty. Mem’l Hosp., 572
F.3d 176, 180 (4th Cir. 2009))).
DISCUSSION
Plaintiff moves “for judgment on the pleadings as to the authority for the taking[s]” and
their “public purpose,” as well as “to strike the insufficient defenses and objections” put forward
by defendants in their Answer. Pl.’s Mot. at 3. According to plaintiff, “[a]djudicating the legal
validity of the taking[s]” at this stage, id. at 7–8, “will not affect the parties’ rights to contest the
amount of compensation or claim a share in the ultimate award,” id. at 2, but “will allow the
parties and this Court to focus their resources on the ultimate issue in [each] case—the
determination of just compensation,” id. at 8. Defendants, in turn, argue that plaintiff has not
met its burden in demonstrating the validity of the takings, and that the motion should be denied
to allow for “limited discovery” on the issue of plaintiff’s compliance “with all Federal laws for
takings in public transportation projects.” Defs.’ Opp’n at 11.
Plaintiff’s motion for judgment on the pleadings as to the authority for and public
purpose of the takings is discussed first, followed by its motion to strike the other defenses and
objections in defendants’ Answer.
A. Motion for Judgment on the Pleadings as to the Authority for and Public
Purpose of the Acquisitions
Plaintiff seeks judgment on the pleadings “with respect to WMATA’s authority and the
public purpose for which the Property was taken,” Pl.’s Mot. at 7, on the grounds that “WMATA
10
has legal authority for the taking” of these tracts of land, and the purpose for which the property
was taken, “the Bladensburg Bus Terminal reconstruction project, . . . is a valid public purpose,”
id. at 2. As support, plaintiff contends that “the authority for the taking and public purpose . . .
are matters of public record and fully described” in plaintiff’s Complaint and Declaration of
Taking, id., and that defendants’ Answer has failed to raise any “legally cognizable defense to
the taking,” id. at 7. Defendants, in turn, assert that plaintiff has put forth insufficient evidence
to prove that the taking of defendants’ property was authorized or done for a valid public
purpose. See Defs.’ Opp’n at 3–14. They also reiterate an affirmative defense under the EAJA.
Id. at 14– 16. 8
When the amount of compensation is undisputed or otherwise not before the court, “the
only substantive question for judicial review in a condemnation proceeding is whether the
purpose for which the property was taken is for a Congressionally authorized public use.”
United States v. 14.02 Acres of Land More or Less in Fresno Cnty., 547 F.3d 943, 949 (9th Cir.
2008) (quoting United States v. 0.95 Acres of Land, 994 F.2d 696, 698 (9th Cir. 1993) (internal
alterations omitted)); see also Berman v. Parker, 348 U.S. 26, 32–33 (1954); United States ex
rel. TVA v. Welch, 327 U.S. 546, 551–52 (1946). “[I]t is clear that a condemnee may challenge
‘the validity of the taking for departure from the statutory limits,’” United States v. 162.20 Acres
of Land, More or Less, Situated in Clay Cnty., State of Miss. (“162.20 Acres”), 639 F.2d 299,
303 (5th Cir. 1981) (quoting Catlin v. United States, 324 U.S. 229, 240 (1944)), but “federal
courts do not second-guess governmental agencies on issues of necessity and expediency when
8
Defendants further argue that plaintiff’s motion should be denied because plaintiff did not file a “statement
of No Genuine Statement of Facts Not in Dispute [sic] as required by Fed. R. C[i]v. P. 56 and L.Cv.R. 7,” Defs.’
Opp’n at 4, but plaintiff brings the instant motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c), which imposes no obligation to file such a statement. Defendants’ reference to Local Civil Rule 7,
which similarly requires that a motion for summary judgment “shall be accompanied by a statement of material facts
as to which the moving party contends there is no genuine issue,” D.D.C. LCvR 7(h)(1), is irrelevant for the same
reasons.
11
condemnation is sought,” as “the concept of justiciability limits judicial review to the bare issue
of whether the limits of authority were exceeded,” and questions of “necessity and expediency
. . . are within the discretion of the legislature or of administrative bodies by delegation,” id.
(citing Berman, 348 U.S. at 32–33, other citations omitted).
Here, none of the defenses put forward by defendants constitute legally cognizable
objections to the takings of the property, nor are they grounds to deny the motion in order to
permit discovery on the validity of the taking. Defendants’ asserted objections and defenses are
discussed first, followed by plaintiff’s authority for the takings and the public purpose.
1. Defendants Have Raised No Valid Defenses or Objections to the Takings
Federal Rule of Civil Procedure 71.1(e)(3) is clear that the only vehicle through which a
defendant can raise objections or defenses to a taking is in an answer to the complaint. Here, the
blanket denials contained in defendants’ Answer are insufficient, and defendants have asserted
no other legally cognizable defenses to plaintiff’s argument that the takings were valid.
First, with respect to plaintiff’s “authority for the acquisition,” and the “public purpose
for which the property is taken,” the Answer simply stated defendants were “[w]ithout sufficient
information to form a belief about the truth of the allegations” and “demand[ed] strict proof
thereof.” Answer ¶¶ 3–4. Nowhere did defendants explain why the allegations set forth in the
Complaint were insufficient to demonstrate their truth, or offer any specific objection to
plaintiff’s asserted authority and public purpose for the takings, as set forth in Schedules A and B
appended to the Complaint. Put another way, they “present[ed] no facts or circumstances from
which the Court can conclude” that plaintiff’s actions “are anything but an exercise of [its]
lawful authority,” nor did they point to anything “in the record to suggest[] that the taking of the
property [was] either speculative or pretextual.” Duk Hea Oh v. Nat’l Capital Revitalization
Corp., 7 A.3d 997, 1002 (D.C. 2010). As such, defendants’ conclusory denials in their Answer
12
provide little to no understanding of the basis for their position and therefore fail to qualify as
“objections or defenses” to the takings. So long as the Court finds that plaintiff had the authority
to take the property and was doing so for a valid public purpose, defendants’ blanket denials
included in their Answer are no obstacle to granting plaintiff’s motion. See United States v. An
Easement and Right-of-Way Over 3.28 Acres of Land, More or Less, in Lee County, Miss., No.
15-cv-19 (GHD), 2017 WL 916415, at *4 (N.D. Miss. Mar. 7, 2017) (granting plaintiff’s motion
for judgment on the pleadings where defendants’ objections or defenses to the taking amounted
to “conclusory” statements that “need not be considered by the Court,” such as “The [property] is
not being taken for the public use,” and where defendants had “cited no authority to the
contrary”).
Defendants attempt to compensate for their cursory and conclusory Answer by
elaborating on their positions in their opposition briefing to the instant motion, but such efforts
are too little, too late. They argue, inter alia, that the takings are invalid because plaintiff has not
met “its burden of proof that it has conducted the proper hearings,” or satisfied the “Federal
Transportation Administration legal requirements,” or “submitted the findings of any
Environmental Impact Study” (“EIS”) or “Large Tract Review” prepared for the project. Defs.’
Opp’n at 3–4 (citing id., Ex. 1, Request for Feedback: Proposed Reconstruction of Metro’s
Bladensburg Bus Garage, WMATA 1753 ECF No. 20-3, WMATA 1757 ECF No. 23-3; id., Ex.
2, Defs.’ Jan. 4, 2021 Ltr. to D.C. Office of Planning re Large Tract Review, WMATA 1753
ECF No. 20-4, WMATA 1757 ECF No. 23-4; id., Ex. 3, Defs.’ Oct. 18, 2019 Ltr. to WMATA re
Public Comments for the Record on the Proposed Modifications to the Bladensburg Garage,
WMATA 1753 ECF No. 20-6, WMATA 1757 ECF No. 23-5). Defendants further question the
necessity of the takings in light of changes to the design of the remodeled bus terminal, see id. at
13
9, “declining” ridership, and that “newer buses are smaller in size and therefore more new
vehicles can be parked in the same space,” id at 10. Moreover, they express skepticism about the
appropriateness of expanding this bus garage, as opposed to others in the District, Virginia, and
Maryland. Id. These arguments are easily dispatched for several reasons. First, “federal courts
do not second-guess governmental agencies on issues of necessity and expediency when
condemnation is sought,” 162.20 Acres, 639 F.2d at 303, and “[f]ailure to prepare an EIS is not
an affirmative defense to a condemnation action,” WMATA v. Fleischman, No. 96-1868, 1997
WL 232301, at *1 (4th Cir. May 8, 1997) (citing United States v. 178.15 Acres of Land, 543 F.2d
1391 (4th Cir. 1976); 0.95 Acres of Land, 994 F.2d at 699; United States v. 255.25 Acres of
Land, 553 F.2d 571, 572 n.2 (8th Cir. 1977)); see also Pl.’s Reply at 6–10. 9 Second, regardless
of their merits, defendants’ arguments necessarily fail, as the Federal Rules unequivocally state
that all objections and defenses to the taking must be stated in the answer. FED. R. CIV. P.
71.1(e)(2)(C). Consequently, “[a] defendant waives all objections and defenses not stated in its
answer” and “[n]o other pleading or motion asserting an additional objection or defense is
allowed.” FED. R. CIV. P. 71.1(e)(3). Waiting until opposition briefing to raise objections to the
takings that are not articulated nor even hinted at in the Answer does not suffice under the
applicable procedural rule.
Defendants’ Answer also includes an objection to plaintiff’s estimated just compensation
for the taking of their property, which defendants argue is insufficient and that “such deficient
9
Bootery, Inc. v. WMATA, 326 F. Supp. 794 (D.D.C. 1970), on which defendants rely in support of their
argument that plaintiff has failed to “meet its burden of proof that it conducted the proper hearings[] and
investigation . . . that [] supports the financial aspect of this taking under Federal and local District law,” Defs.’
Opp’n at 3, is not a condemnation case and therefore inapposite. Even if plaintiffs there had in fact had their
property seized by WMATA—and it is not clear from the decision whether plaintiffs actually had been subject to
eminent domain proceedings, see Bootery, Inc., 326 F. Supp. at 799—plaintiffs brought their challenge to
WMATA’s broader authority to adopt the Mass Transit Plan in a standalone civil action, not as a defense to the
takings in an action under Federal Rule of Civil Procedure 71.1.
14
compensation” entitles them to recover attorney fees and costs under the EAJA. Answer ¶ 8.
This argument is peripheral to the validity of the taking, as the sufficiency of the estimated
compensation has no bearing on whether plaintiff has exercised its condemnation power in
accordance with a congressionally authorized purpose. The Court, of course, has a role to play
in ensuring interested parties receive fair and adequate compensation for the taking of their
property through eminent domain. See FED. R. CIV. P. 71.1(j)(2) (the court’s role is to
“distribute the deposit and [] determine and pay compensation”); United States v. Reynolds, 397
U.S. 14, 20 (1970) (describing the “narrow but important function” of the factfinder in a federal
condemnation proceeding as “the determination of a compensation award within ground rules
established by the trial judge”). Yet, plaintiff repeatedly emphasizes that, at this time, no final
judgment as to the adequacy of the just compensation estimations is being sought. See Pl.’s Mot.
at 2, 7–8. Thus, the assertion that defendants are entitled to additional damages is not a “defense
or objection” to the taking itself, and is in fact irrelevant to the question currently before the
Court, namely: whether plaintiff’s taking was for a “Congressionally authorized public use.” Id.
at 5 (quoting 0.95 Acres of Land, 994 F.2d at 699).
Due to the lack of substantive defenses or objections to the takings set forth in
defendants’ Answer, the Court next turns to plaintiff’s descriptions of the authority for and
purpose of the takings, as detailed in the schedules appended to the Complaint, to determine
whether plaintiff has shown that the property was taken for a congressionally authorized use, see
Welch, 327 U.S. at 551–552, and that plaintiff is therefore entitled to judgment as a matter of
law.
15
2. Plaintiff Has Authority for the Takings
To start, plaintiff has demonstrated that it was legally authorized to exercise the power of
eminent domain over defendants’ property, pursuant to the WMATA Compact and the eminent
domain procedures outlined in the D.C. Code. See Pl.’s Mot. at 9–15.
Eminent domain is the “power of the Government for its own sovereign purposes to
appropriate private property” without the owner’s consent. Maiatico v. United States, 302 F.2d
880, 886 (D.C. Cir. 1962). The federal government’s authority to exercise this “attribute of
sovereignty,” 0.95 Acres of Land, 994 F.2d at 698, is limited by the Fifth Amendment to the
United States Constitution, which prohibits the taking of “private property . . . for public use,
without just compensation,” U.S. CONST. amend. V. Neither a court nor the property owners
may “determine whether or not a particular project be desirable,” Maiatico, 302 F.2d at 886, but
rather must focus their inquiry on “the validity of the taking for departure from the statutory
limits,” id. (quoting Catlin, 324 U.S. at 240). In other words, “[t]he court’s role is merely to
determine whether the asserted statutory authority authorizes the taking of the property for the
asserted purpose.” Calf Island Cmty. Tr., Inc. v. Young Mens Christian Assoc. of Greenwich,
392 F. Supp. 2d 241, 247 (D. Conn. 2005) (citing Welch, 327 U.S. at 552).
As an interstate transit authority, plaintiff’s power to condemn and take private property
stems not from any inherent sovereignty, but from the congressional delegation of that power to
it. In 1967, WMATA was “formed after Congress ‘consent[ed] to, adopt[ed] and enact[ed]’” the
WMATA Compact, “an interstate transit authority compact among the District of Columbia,
Maryland, and Virginia.” Unsuck DC Metro v. WMATA, No. 19-cv-1242 (CJN), 2021 WL
5823800, at *1 (D.D.C. Dec. 8, 2021) (quoting WMATA Compact, D.C. CODE § 9-1107.01,
other citations omitted). Section 82 of the WMATA Compact empowers plaintiff “to acquire by
condemnation, whenever in its opinion it is necessary or advantageous to [plaintiff] to do so, any
16
reason or personal property, or any interest therein, necessary or useful for the transit system
authorized herein,” WMATA Compact § 82(a), so long as plaintiff complies with the
condemnation procedures set forth in the D.C. Code, id. § 82(b) (citing D.C. CODE §§ 16-1351–
1366), and pays “[a]ny award or compensation for the taking of property pursuant to this Title,”
10
id. § 82(c). By consenting to the WMATA Compact, Congress is therefore “deemed to have
delegated federal condemnation powers” to plaintiff. WMATA v. One Parcel of Land in
Montgomery Cty., Md. (“One Parcel”), 706 F.2d 1312, 1319 (4th Cir. 1983); see also Heffez v.
WMATA, 569 F. Supp. 1551, 1554 (D.D.C. 1983) (citing One Parcel for the proposition that
“WMATA’s power of eminent domain is federal in origin”). Plaintiff therefore has the general
authority to exercise the power of eminent domain, where necessary, across the District of
Columbia.
Moreover, plaintiff has demonstrated adequately that these specific takings were lawful
exercises of its general statutory authority. As explained in Schedule A to the Complaint,
WMATA Policy Instruction No. 9.6 “authorizes the WMATA Vice President of Real Estate and
Parking to acquire real property on behalf of WMATA.” Sched. A at 1; see also Pl.’s Mot., Ex.
2, WMATA Policy Instruction No. 9.6, WMATA 1753 ECF No. 17-2, WMATA 1757 ECF No.
19-2. At the time of the takings, that position was held by Nina Albert, whose Declaration of
Taking attested to the authority for the acquisition and its public purpose, Albert Decl. ¶¶ 1–2,
and affirmed that “[t]he sum estimated by [her] as just compensation for the taking” was
“deposited herewith in the registry of the Court for the use and benefit of the persons entitled
10
As plaintiff notes, see Pl.’s Mot. at 11, the WMATA Compact explicitly instructs that plaintiff should
conduct condemnation proceedings pursuant to D.C. CODE §§ 16-1351–1368, the section of the D.C. Code
governing eminent domain proceedings carried out on behalf of the United States. Absent this specification,
plaintiff would not be eligible to conduct proceedings under this portion of the D.C. Code because, as discussed in
Section III.B. infra, plaintiff is not an agency of the federal government.
17
thereto,” id. ¶ 6. Plaintiff further notes that its “Fiscal Year 2021 Budget provides funding for
the acquisition” of the properties in connection with “Capital Improvement Project 0311 –
Bladensburg Bus Garage Replacement.” Pl.’s Mot. at 12 (citing id., Ex. 3, WMATA Fiscal Year
2021 Budget Excerpts at 4–5, WMATA 1753 ECF No. 17-3, WMATA 1757 ECF No. 19-3). As
plaintiff rightly notes, defendants raised no “specific, valid objections or defenses related to [its]
authority for the taking[s] in their Answer,” and “do not appear to have any real dispute with [its]
authority for the taking[s].” Id. The Court thus finds plaintiff has established that the takings
here were “appropriately authorized and funded,” id., and that plaintiff is entitled to judgment on
the pleadings as to its authority for the takings.
3. The Takings Have a Valid Public Purpose
In addition to being congressionally authorized, a taking under eminent domain must also
be “for public use.” U.S. CONST. amend. V. “[I]t is the function of Congress to decide what type
of taking is for a public use and that the agency authorized to do the taking may do so to the full
extent of its statutory authority.” Welch, 327 U.S. at 551–52. “‘[I]t is only the taking’s purpose,
and not its mechanics’ . . . that matters in determining public use,” Kelo v. City of New London,
Conn., 545 U.S. 469, 482 (2005) (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 244
(1984)), and a court may “not substitute its judgment for a legislature’s judgment as to what
constitutes a public use ‘unless the use be palpably without reasonable foundation,’” Midkiff, 467
U.S. at 241 (quoting United States v. Gettysburg Elec. Ry. Co., 160 U.S. 668, 680 (1896)). Put
another way, “[w]hen the legislature’s purpose is legitimate and its means are not irrational, . . .
empirical debates over the wisdom of takings—no less than debates over the wisdom of other
kinds of socioeconomic legislation—are not to be carried out in federal courts.” Id. at 242–43.
Thus, “[t]he district court, powerless to dismiss the proceedings, performs an almost ministerial
function in decreeing the transfer of title.” 162.20 Acres, 639 F.2d at 303. “Only in cases of
18
egregious bad faith will the right to condemn be denied, for in those circumstances the taking
may not be for a ‘public’ use at all.” United States v. 416.81 Acres of Land, 514 F.2d 627, 632
(7th Cir. 1975) (internal citation omitted).
Here, plaintiff’s intentions for this property are well in line with the public purpose
requirement. Schedule B to the Complaint states the property was taken in connection with the
Bladensburg Bus Terminal Replacement project, “for the construction, operation, use, and
maintenance of a replacement bus garage facility and related facilities and activities in support of
[WMATA’s] rapid rail transit system.” Sched. B at 1. Such a project plainly furthers the public
purposes of the WMATA Compact, “to improve public transportation for the national capital
region,” including through “the development, construction, and operation of a regional subway-
rapid rail system.” McKenna v. WMATA, 670 F. Supp. 7, 9 (D.D.C. 1986); see also WMATA v.
Johnson, 467 U.S. 925, 927 (1984) (“WMATA is charged with the construction and operation of
a rapid transit system (Metro) for the District of Columbia and the surrounding metropolitan
region.”). Given the narrow scope of judicial review of a taking, see Welch, 327 U.S. at 551–52,
plaintiff’s stated intention to take this property to expand and reconstruct a bus garage housing
and servicing hundreds of buses that carry passengers around the nation’s capital and the
surrounding region each day plainly constitutes the taken property’s public use. See also
Fleischman, 1997 WL 232301, at *1 (affirming taking of defendant’s property where “the
purpose of the condemnation was to secure property for the building of parking facilities for a
new Metro rail station, and we find that this satisfies the requirements in Welch”).
B. Motion to Strike Arguments Regarding Entitlement to Additional Compensation
As noted, defendants’ Answer objects to plaintiff’s estimated just compensation for the
taking. See Answer ¶ 8. Defendants argue the $880,000 and $1,060,000 valuations for their
respective properties are inaccurate, and that “such deficient compensation tendered in this
19
matter entitles Defendants to recovery of its [sic] attorney fees and costs under the [EAJA].” Id.
Plaintiff moves, under Federal Rule of Procedure 12(f), to strike this defense from the Answer as
“insufficient and immaterial,” and not a “defense[] to the taking.” Pl.’s Mot. at 15. According to
plaintiff, allowing this defense “to stand . . . will cause substantial confusion and undue
prejudice” to plaintiff, by “likely result[ing] in Defendants seeking unwarranted discovery”
regarding this defense, and “in uncertainty to WMATA, Defendants and the public as to whether
there is any remaining avenue to challenge the validity of the taking[s] under the defenses and
objections raised in the Answer.” Id. at 16. The Court agrees, and plaintiff’s motion to strike is
11
granted as to both cases.
Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” FED. R. CIV. P. 12(f). “The decision to grant or deny a motion to strike is vested in the
trial judge’s sound discretion.” Ecological Rights Found. v. EPA, 541 F. Supp. 3d 34, 44
(D.D.C. 2021) (quoting Sacchetti v. Gallaudet Univ., 344 F. Supp. 3d 233, 251 (D.D.C. 2018)).
Although motions to strike are generally “disfavored by the federal courts,” Campaign Legal
Ctr. v. Iowa Values, No. 21-cv-389 (RCL), 2021 WL 5416635, at *3 (D.D.C. Nov. 19, 2021)
11
Defendants’ Answer also claimed that defendants were entitled to “additional damages due to unpaid
relocation expenses” under the URA, Answer ¶ 8; see also 42 U.S.C. § 4601 et seq., which provides for the award of
certain moving costs and “relocation assistance” to individuals displaced “as a direct result of programs or projects
undertaken by a Federal agency or with Federal financial assistance,” 42 U.S.C. § 4621(a), “[i]n order to encourage
and expedite the acquisition of real property by agreements with owners, to avoid litigation and relieve congestion in
the courts, [and] to ensure consistent treatment for owners in the many Federal programs,” id. § 4651. Defendants’
opposition does not address the URA, see generally Defs.’ Opp’n, and plaintiff’s motion to strike is therefore treated
as conceded as to this defense. Even if defendants had not conceded this argument, however, it fails because the
URA, by its explicit terms, does not “affect the validity of any property acquisitions by purchase or condemnation,”
42 U.S.C. § 4601(a), or create “any element of value or of damage” in “any condemnation proceedings brought
under the power of eminent domain,” id. § 4601(b). See, e.g., Tenn. Gas Pipeline Co. v. New England Power,
C.T.L., Inc., 6 F. Supp. 2d 102, 104 (D. Mass. 1998) (The URA “does not relate to takings by eminent domain.
Rather, the statute explicitly encourages federal agencies to negotiate for the purchase of real property in an effort to
avoid eminent domain actions, and sets guidelines—to be followed to the greatest extent possible—for agencies
negotiating such purchases.” (internal quotation marks omitted)).
20
(internal quotation marks omitted); see also Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine
Distribs. Pty. Ltd., 647 F.2d 200, 201 (D.C. Cir. 1981) (per curiam), they are granted “where it is
clear that the affirmative defense is irrelevant and frivolous and its removal from the case would
avoid wasting unnecessary time and money litigating the invalid defense,” United States ex rel.
Head v. Kane Co., 668 F. Supp. 2d 146, 150 (D.D.C. 2009) (quoting SEC v. Gulf & Western
Indus., Inc., 502 F. Supp. 343, 344 (D.D.C. 1980)). See also United States v. Dico, Inc., 266
F.3d 864, 880 (8th Cir. 2001) (affirming the striking of defense where plaintiff’s taking was
clearly authorized by federal statute).
Plaintiff correctly identifies two issues with defendants’ EAJA argument rendering it
invalid. First, as previously discussed, the sufficiency of the compensation is not a defense to the
validity of the taking of property through eminent domain, and the Federal Rules provide a
defendant with ample opportunities to contest the valuation of the property before the judgment
is finalized. See Fed. R. Civ. P. 71.1(e)(3) (“[A]t the trial on compensation, a defendant—
whether or not it has previously appeared or answered—may present evidence on the amount of
compensation to be paid and may share in the award.”).
More importantly, however, defendants’ argument regarding the EAJA is an “insufficient
defense” to the taking of defendants’ property because it is legally invalid. The EAJA
“authorizes a private litigant to recover attorney’s fees incurred in litigation against the federal
government when: (1) the litigant has prevailed in the lawsuit; and (2) the government cannot
prove its position in the lawsuit was substantially justified.” Am. Council of Blind v. WMATA,
133 F. Supp. 2d 66, 71 (D.D.C. 2001) (citing 28 U.S.C. § 2412(d)(1)). The statute clearly states,
however, that this provision applies only in “civil action[s] brought by or against the United
States or any agency or official of the United States.” 28 U.S.C. § 2412(a)(1) (emphasis added).
21
As plaintiff rightly notes, see Pl.’s Mot. at 16, WMATA is generally not considered a federal
agency, and therefore not “an agency . . . of the United States,” 28 U.S.C. § 2412(a)(1). See
Schindler Elevator Corp. v. WMATA, 16 F.4th 294, 301–02 (D.C. Cir. 2021) (holding that
“WMATA, as an interstate compact entity, is not a federal agency within the scope of the APA”
because it “‘is an authority, not of the federal government, but of Virginia, Maryland, and the
District of Columbia’—the Signatories to the Compact” (quoting Old Town Trolley Tours of
Wash., Inc. v. Wash. Metro. Area Transit Comm’n, 129 F.3d 201, 203 (D.C. Cir. 1997)); see also
Archdiocese of Wash. v. WMATA, 897 F.3d 314, 333 (D.C. Cir. 2018) (finding WMATA to be
“an instrumentality and agency of states” for purposes of the Religious Freedom Restoration Act
(emphasis added)); Unsuck DC Metro, 2021 WL 5823800, at *5 (“WMATA is an entity created
through an interstate compact, not a federal administrative agency.”); Seal & Co., Inc. v.
WMATA, 768 F. Supp. 1150, 1154, 1157 (E.D. Va. 1991) (finding that “Congress intended
WMATA to conduct its procurements as a federal agency would,” but that WMATA was “not a
federal agency” but rather “an instrumentality and agency of each of the signatory parties”
12
(emphasis in original, quoting One Parcel, 706 F.2d at 1314)). Defendants point to no cases
treating WMATA differently, for purposes of the EAJA or otherwise. 13
Accordingly, defendants’ assertion of the EAJA as an affirmative defense is legally
insufficient to the clearly authorized taking of defendants’ property, and therefore this defense is
properly stricken from defendants’ Answer.
12
One of cases cited by defendants, Bootery, Inc., describes WMATA as “an agency of each of the signatory
parties including the United States on behalf of the District of Columbia.” 326 F. Supp. at 799 (emphasis added,
internal citations omitted). Any suggestion, however, that WMATA might therefore be considered a federal agency
has been roundly and consistently dismissed by other courts in the intervening fifty years. See Unsuck DC Metro,
2021 WL 5823800, at *5 (collecting cases).
13
Defendants cite Nat. Resources Def. Council, Inc. v. EPA, 703 F.2d 700 (3d Cir. 1983), but that case is
inapposite because the defendant there was the Environmental Protection Agency, see id. at 701, which plainly
qualifies as an “agency . . . of the United States,” 28 U.S.C. § 2412(a)(1).
22
CONCLUSION
For the reasons set forth above, plaintiff’s Motion for Judgment on the Pleadings as to the
Authority for and Public Purpose of the Taking and to Strike Insufficient Defenses and
Objections, WMATA 1753 ECF No. 17, WMATA 1757 ECF No. 19, is GRANTED. An order
consistent with this Memorandum Opinion will be entered contemporaneously in each of these
two related cases.
DATE: July 5, 2022
BERYL A. HOWELL
Chief Judge
23