# AETC II PRIVATIZED HOUSING, LLC v. United States

> United States Court of Federal Claims · May 15, 2025

URL: https://www.frixlaw.com/law-library/cases/11051692

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** May 15, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Robin M. Meriweather
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- finding it improper to ask the opposing party to admit that it had complied with disability regulations and whether qualified voters with a disability were entitled to vote by absentee ballot

## Opinion text

In the United States Court of Federal Claims

AETC II PRIVATIZED HOUSING, LLC, et
al., Nos. 22-345C; 22-346C; 22-348C; 22-349C;
22-350C; 22-351C; 22-352C; 22-353C;
Plaintiffs, 22-354C; 22-355C; 22-356C; 22-357C;
22- 358C; 22-359C; 22-360C; 22-361C;
v. 22-362C; 22-363C

THE UNITED STATES, (Filed: May 15, 2025)

Defendant.

David R. Johnson, Vinson & Elkins, LLP, Washington, D.C., for Plaintiffs. With him on the
briefs were Tyler E. Robinson, Michael McCambridge, and Leslie Edelstein, Vinson & Elkins,
LLP.

Amanda L. Tantum, Commercial Litigation Branch, Civil Division, United States Department of
Justice, Washington, D.C., for Defendant. With her on the briefs were Brian M. Boynton,
Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Elizabeth M.
Hosford, Assistant Director.

OPINION AND ORDER

Meriweather, Judge.

This dispute arises from contracts between the United States Navy and Plaintiffs—
specifically Ohana Military Communities, LLC, and Hawaii Military Communities, LLC—to
provide housing for Navy servicemembers and their dependents in Hawaii. Specially, Plaintiffs
in this consolidated case allege that the United States breached certain contractual agreements by
reducing the servicemembers’ monthly housing stipend, which in turn reduced the rent that
Plaintiffs could charge.

Before the Court is Plaintiffs’ Motion to Compel Responses to Requests for Admission
(“Motion”), filed in Ohana Military Communities, LLC et al., No. 22-cv-359 (“Ohana”), one of
18 consolidated cases under the lead case AETC II Privatized Housing, LLC et al., No. 22-cv-
345 (“AETC II”). See Pls.’ Mot. to Compel Resps. to Reqs. for Admis. (“Mot.”), AETC II ECF
No. 82; Ohana, ECF No. 30. The parties in Ohana are conducting discovery in anticipation of
summary judgment briefing that will proceed separately from the remaining 17 consolidated
cases. See Order, AETC II ECF No. 61; Ohana ECF No. 25. Plaintiffs argue that the United
States’ objections to 16 of their requests for admission (“RFA”) are inconsistent with this Court’s
rules and request that the Court compel a response. See Mot. at 1–2. The United States contends
that certain RFAs inappropriately seek admissions or denials to legal conclusions, interpretations
of statutes, or ultimate issues in dispute. See Def.’s Resp. to Mot. to Compel (“Resp.”), AETC II,
ECF No. 83; Ohana ECF No. 31. Having reviewed the parties’ briefs1 and the relevant law, and
for the reasons explained below, the Court GRANTS Plaintiffs’ Motion to Compel Responses to
Requests for Admission.

BACKGROUND

The Military Housing Privatization Initiative (“MHPI”), established in 1996, is a
Department of Defense (“DoD”) program with the mission to improve military housing around
the country. See Compl. ¶¶ 24–25. Under the MHPI, the United States and Plaintiffs entered a
series of contracts (collectively “the contracts”)—including a Ground Lease and LLC Operating
Agreement—to manage, rebuild, and maintain Navy servicemembers’ housing in Hawaii (the
“Project”). See id. ¶¶ 4, 41. The contracts require Plaintiffs to set rent rates in accordance with
those servicemembers’ Basic Allowance for Housing (“BAH”), their monthly housing stipend.
See id. ¶¶ 3, 32, 53. The solicitation for the Project indicated that rent collected “shall equal the
BAH for the pay grade designated to certain units.” Compl., Ex. 1 at *65, ECF No. 1-1. Under
the National Defense Authorization Act (“NDAA”) of 2015, Congress granted the Secretary of
Defense discretion to implement annual, percentage-based reductions in the BAH. See Compl.
¶ 69; Pub. L. No. 113-291, tit. VI, § 604(a), 128 Stat. 3292, 3398–99 (2014) (codified at 37
U.S.C. § 403) [hereinafter BAH statute]. Generally, the Secretary has used this discretion to
annually reduce servicemembers’ BAH. See Compl. ¶ 70.

On March 30, 2022, Plaintiffs filed their Complaints in 18 related MHPI cases. On April
15, 2022, the Court consolidated the MHPI cases under lead case AETC II. See Order, AETC II
ECF No. 11; Ohana ECF No. 11. On July 13, 2022, the United States filed an omnibus Motion
to Dismiss pursuant to Rule 12(b)(6), arguing that Plaintiffs cannot establish that the contracts
entitled them to an increase in tenant rent. See Mot. to Dismiss, AETC II ECF No. 22 (sealed).
On June 7, 2024, the Court denied the United States’ Motion to Dismiss the consolidated cases.
See Order, AETC II ECF No. 46; Ohana ECF No. 18. The Court directed the parties to submit a
case inventory listing relevant legal and factual issues, documentation presently found on the
record, and whether discovery is necessary in each case. See id. at 1–2. The Court also ordered
the parties to submit a Joint Status Report proposing the next steps for proceeding with this
litigation. See id. at 2. On August 1, 2024, the Court issued an Order dividing the consolidated
cases and another related case into three groups for case management purposes as follows: (1)
Aurora et al. (21-cv-2182),2 (2) Ohana, and (3) all remaining consolidated cases under AETC II.
See Order, AETC II ECF No. 61; Ohana ECF No. 25. The Court also ordered the United States

1
This opinion is based on the following filings: Compl., Ohana ECF No.1; Mot., AETC
II ECF No. 82, Ohana ECF No. 30; Resp., AETC II ECF No. 83, Ohana ECF No. 31; Pl.’s
Reply, AETC II ECF No. 84, Ohana ECF No. 32 (“Reply”). Throughout, page citations to
documents in the record refer to the document’s original pagination, unless the page is
designated with an asterisk (e.g., *1), in which case the reference is to the pagination assigned by
PACER/ECF.
2
Aurora et al. is a separate but related case involving MHPI contracts that is proceeding
independently and in parallel to AETC II.

2
to file an Answer in each of the consolidated cases and ordered the parties to submit proposed
discovery schedules. Id. at 1–2.

The Court adopted the Ohana parties’ proposed deadline for the conclusion of fact
discovery concerning liability issues. See Ohana J. Status R., ECF No. 27; Ohana Order, ECF
No. 28. A discovery dispute subsequently arose, and Plaintiffs filed the present Motion
requesting that the Court compel the United States’ response to specific, disputed RFAs. See
Mot. The Motion is fully briefed, and the Court held a hearing to discuss the parties’ respective
positions. See Resp.; Reply; Minute Entry (Mar. 5, 2025).

LEGAL STANDARDS

A. Standard of Review for Discovery Disputes

The Court “has wide discretion in setting the limits of discovery.” Schism v. United
States, 316 F.3d 1259, 1300 (Fed. Cir. 2002) (quoting Moore v. Armour Pharm. Co., 927 F.2d
1194, 1197 (11th Cir. 1991)); accord White Mountain Apache Tribe of Ariz. v. United States, 4
Cl. Ct. 575, 583 (1984) (“It is axiomatic that a trial court has broad discretion to fashion
discovery orders . . . .”). “Although discovery rules are to be accorded a broad and liberal
treatment, the court must, in deciding either to compel or quash discovery, balance potentially
conflicting goals.” Lakeland Partners, L.L.C. v. United States, 88 Fed. Cl. 124, 130 (2009)
(cleaned up). Courts exercise an “extraordinarily broad range of discretion” when determining
the appropriateness of Rule 36 requests, and even “on virtually identical facts, two decision
makers can arrive at opposite conclusions, both of which constitute appropriate exercises of
discretion.” Sommerfield v. City of Chicago, 251 F.R.D. 353, 355 (N.D. Ill. 2008) (collecting
cases).

B. Requests for Admission (Rule 36)

Rule 36 of the Rules of the United States Court of Federal Claims (“RCFC”) permits
litigants to request a party “to admit . . . the truth of any matters within the scope of Rule
26(b)(1).” RCFC 36(a)(1) (referring to the rule limiting the scope of discovery). The substance
of requests for admission must relate to “facts, the application of law to fact, or opinions about
either.” Id. The Rule’s purpose is ultimately “to reduce trial time.” Fed. R. Civ. P. 36 advisory
committee’s note to 1970 amendment (“1970 amendment note”).3 Specifically, RFAs may
“facilitate proof with respect to issues that cannot be eliminated from the case” and, alternatively,
may “narrow the issues by eliminating those that can be.” Id.

A party must answer an RFA with an admission, denial, or a statement as to “why the
answering party cannot truthfully admit or deny” the request. RCFC 36(a)(4). After a
reasonable inquiry, a party may state that it lacks “knowledge or information” that would enable

3
RCFC 36 mirrors Rule 36 of the Federal Rules of Civil Procedure. See RCFC 36 Rules
Committee Notes, 2002 Revision. “[I]nterpretation of the court’s rules will be guided by case
law and the Advisory Committee Notes that accompany the Federal Rules of Civil Procedure.”
RCFC 2002 Rules Committee Note.
3
it to answer the request. Id. The responding party may also object to answering an RFA but
must then state its grounds for objection. RCFC 36(a)(5). Although Rule 36 itself does not
enumerate specific grounds for objection, any objection is “subject to the general [discovery]
provisions of Rule 26.” 1970 amendment note. Similarly, Rule 36 does not allow a party to
object “solely on the ground that the request presents a genuine issue for trial.” RCFC 36(a)(5).
Rather, “[t]he proper response in such cases is an answer.” 1970 amendment note. Finally, Rule
36 contains its own enforcement mechanism independent from Rule 37’s motion to compel.
Under that enforcement mechanism, the party requesting admission “may move to determine the
sufficiency of an answer or objection,” and if the court does not find an objection justified, “it
must order that an answer be served.” RCFC 36(a)(6).

DISCUSSION

Plaintiffs seek an order compelling the United States to respond to 16 RFAs originally
served by Plaintiffs on September 5, 2024. See Mot. at 1. The United States initially objected to
those RFAs and refused to admit or deny, contending that no further response is required. The
United States’ objections generally fall into three categories: (1) that certain RFAs
“inappropriately request[] an interpretation of contract terms, which is a legal conclusion,”4 Mot.
at 12–13; (2) that certain RFAs “seek admissions regarding the meaning of a statute” and are
therefore impermissible under Rule 36,5 Resp. at 10; and (3) that certain RFAs target the ultimate
issue of the case,6 see Mot. at 20. The Court rejects those objections, for the reasons set forth
below.

I. RFAs 10, 21–24, 36, 37, 40, 42, and 45, Which Seek Admissions Regarding
Contractual Terms and Obligations, Comply with Rule 36.

Plaintiffs’ RFA numbers 10, 21–24, 36, 37, 40, 42, and 45 ask the United States to admit
or deny statements pertaining to terms of the parties’ contracts. These RFAs request the
following:

No. 10: Admit that Plaintiffs were not permitted to charge servicemembers
renting units at the Project any out-of-pocket costs above their BAH allotment.

No. 21: Admit that in the LLC Operating Agreement’s definition of “BAH,”
which reads “‘BAH’ means the Basic Allowance for Housing for military
personnel announced from time to time by the United States Department of
Defense or, if ‘BAH’ is no longer applicable, the successor to BAH,” the
capitalized term “Basic Allowance for Housing” means the entitlement of a
servicemember as described in 37 U.S. Code § 403.

4
The United States raises this objection to RFA numbers 10, 21–24, 36, 37, 40, 42, and
45.
5
The United States raises this objection to RFA numbers 26–29, 34, and 35.
6
The United States raises this objection to RFA numbers 22–24, 29, 34–37, 42, and 45.
4
No. 22: Admit that under the LLC Operating Agreement, the Government had a
duty to set BAH.

No. 23: Admit that under the LLC Operating Agreement, the Government had a
duty to set BAH consistent with the definition of “BAH” in the LLC Operating
Agreement.

No. 24: Admit that the parties’ agreement under the LLC Operating Agreement
and Ground Lease anticipated that DoD would issue BAH to servicemembers for
use in paying rent at the Project or on behalf for servicemembers for their rent for
the Project.

No. 36: Admit that under the LLC Operating Agreement and Ground Lease,
Plaintiffs have the right to charge renting servicemembers rent in the amount of
their annual BAH amount.

No. 37: Admit that under the LLC Operating Agreement and Ground Lease,
Plaintiffs are limited in the amount that they can collect from renting
servicemembers to the amount provided by DoD as BAH to either the
servicemember directly or to the Plaintiffs on behalf of the servicemember.

No. 40: Admit that the Government’s action in reducing the BAH amount after
the implementation of the NDAAs of 2015 and 2016 prevented Plaintiffs from
collecting the full amount of rent that they are entitled to charge under the LLC
Operating Agreement and Ground Lease.

No. 42: Admit that under the LLC Operating Agreement, OMC has a duty to not
charge any servicemember an amount that exceeds the BAH that you provide to
or on behalf of the servicemember.

No. 45: Admit that you contend that the Government would not breach the LLC
Operating Agreement if it arbitrarily lowered the BAH for every servicemember
living in the Project to $1 per month, preventing Plaintiffs from collecting more
than $1 per month from each servicemember tenant for her or his rent.

Mot. Ex. A, at 5, 9–10, 15–18, 20.

The parties dispute the propriety of using RFAs to request a party’s position regarding the
interpretation or meaning of a contract provision. Plaintiffs argue that the RFAs are consistent
with Rule 36 because they “involve the application of the terms of the parties’ contract” to
“factual issues currently before this Court,” and thus do not solicit “pure conclusions of law.”
Mot. at 13, 16 (quoting Ransom v. United States, 8 Cl. Ct. 646, 648 (1985)). The United States
counters that it properly objected to the RFAs because they “request admissions as to
interpretations or meaning of contracts, which are legal conclusions—not applications of law to
fact.” Resp. at 3 (emphasis omitted). The parties cite cases from this Court and other

5
jurisdictions to support their respective positions. Compare Booth Oil Site Admin. Grp. v.
Safety-Kleen Corp., 194 F.R.D. 76, 80 (W.D.N.Y. 2000) (concluding that an RFA requesting a
“party’s understanding of the meaning or intent of a document” is a statement of fact, as opposed
to a pure legal conclusion), and S.A. Healy Co./Lodigiani USA, Ltd. v. United States, 37 Fed. Cl.
204, 205 (1997) (“Admissions of the contents or interpretation of a contract at most involve the
application of law to facts.”), with Factory Mut. Ins. Co. v. Derby Indus., LLC, No. 3:17CV-
00198-JHM-RSE, 2018 WL 11411802, at *5 (W.D. Ky. Oct. 5, 2018) (concluding that RFAs
seeking the opposing party’s interpretation of a lease, a supplier agreement, and an insurance
policy were improper requests for legal admissions under Rule 36), and Gem Acquisitionco, LLC
v. Sorenson Grp. Holdings, LLC, No. C 09-01484 SI, 2010 WL 1340562, at *3 (N.D. Cal. Apr.
5, 2010) (finding improper RFAs asking opposing party to admit requesting party’s
“interpretation of a disputed provision of the parties’ contract”), and Nettles v. Edgar, No. 1:22-
CV-119, 2023 WL 11199763, at *2 (W.D. Mich. Feb. 13, 2023) (concluding that RFA seeking
Defendant’s “interpretation of the policy directive” was “not the proper basis for a request under
Rule 36”).

Rule 36 allows a party to serve requests to admit the truth of matters “relating to facts, the
application of law to fact, or opinions about either.” RCFC 36(a). “[A] request for admission is
‘not objectionable even if [it] require[s] opinions or conclusions of law, as long as the legal
conclusions relate to the facts of the case.” Kan. City Power & Light Co. v. United States, 132
Fed. Cl. 28, 34 (2017) (quoting Ransom, 8 Cl. Ct. at 648); see also Fed. R. Civ. P. 36, 1970
amendment note. However, pure questions of law unrelated to relevant facts fall outside the
scope of the rule. See Kan. City Power, 132 Fed. Cl. at 34.

The United States posits that RFAs that require contractual interpretation always involve
pure questions of law that are unrelated to the facts in a case, and that this premise logically
follows from Federal Circuit precedent defining the appellate standard of review for a breach-of-
contract claim. See Resp. at 3. To be sure, in that context, the Federal Circuit has noted that
“[c]ontractual interpretation is a pure legal issue” that is reviewed de novo. P.K. Mgmt. Grp.,
Inc. v. Sec’y of Hous. & Urb. Dev., 987 F.3d 1030, 1032 (Fed. Cir. 2021); see also San Carlos
Irr. & Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989) (“Whether a contract
creates a duty is a legal question of contract interpretation . . . .”). Other circuits have similarly
concluded that lower courts’ interpretations of contract provisions present “pure” questions of
law to which de novo review applies. See, e.g., Trout v. Organizacion Mundial de Boxeo, 965
F.3d 71, 75 (1st Cir. 2020); GEICO Marine Ins. Co. v. Shackleford, 945 F.3d 1135, 1139 (11th
Cir. 2019).

When applying the summary judgment standard, courts have recognized that disputes
regarding contractual interpretation do not always present pure legal questions. For example, in
Beta Systems, Inc. v. United States, the Federal Circuit concluded that there were “questions of
material fact underlying the issue of contract interpretation,” that precluded summary judgment.
838 F.2d 1179, 1183 (Fed. Cir. 1988). Similarly, this Court has recognized that “interpretation
of language, conduct, and parties’ intent, i.e., the question of what meaning should be given by a
court to the words of the contract, may sometimes involve questions of material fact and not
present a pure question of law.” Keeter Trading Co., Inc. v. United States, 79 Fed. Cl. 243, 248

6
(2007); see also PDR, Ind. v. United States, 78 Fed. Cl. 201, 204 (2007); Crown Laundry & Dry
Cleaners, Inc. v. United States, 29 Fed. Cl. 506, 515 (1993).

The Court has found no precedent addressing whether the appellate standard of review, or
the more nuanced approach applied to summary judgment motions, should guide the Court’s
application of Rule 36 to RFAs involving contractual interpretation. Neither standard is directly
on point. Given that the Federal Circuit acknowledged in Beta Systems that contractual
interpretation may present questions of fact, the Court declines to adopt a bright-line rule that
contractual interpretation always presents a pure question of law. Accordingly, the cases
articulating the Federal Circuit’s standard of review do not restrict the Court’s interpretation of
Rule 36.

Treating admissions or denials regarding the intent, scope, or meaning of a contract as
“pure questions of law” that cannot be propounded through RFAs is also in tension with the
scope and purpose of Rule 36. RCFC 36 is identical to Federal Rule of Civil Procedure 36. See
RCFC 36, Rules Committee Notes. The Advisory Committee Notes to the 1970 amendment of
Federal Rule of Civil Procedure 36 specify that Rule 36 “does not authorize requests for
admissions of law unrelated to the facts of the case.” 1970 amendment note (emphasis added).
That language, paired with the rule’s plain text, which authorizes requests to admit “the
application of law to fact,” clearly establish that Rule 36 allows requests for admissions of law
related to the facts of the case. See id.; Kan. City Power, 132 Fed. Cl. at 34 (RFAs involving
“opinions or conclusions of law” are within the scope of Rule 36 if they “relate to the facts of the
case” (quoting Ransom, 8 Cl. Ct. at 648)); Naxon Telesign Corp. v. GTE Info. Sys., Inc., 30 Fed.
R. Serv. 2d 1286 at *1 (N.D. Ill. 1980) (“Naxon is clearly in error in objecting to Requests that
call for ‘opinions of fact or of the application of law to fact,’ because the 1970 amendment to
Fed. R. Civ. P. 36 specifically permits the eliciting of such opinions.”). An RFA that “relates to
the interpretation of a contract at issue in a case involves the application of law to the unique
facts of that case and, therefore, would be permissible” under Rule 36.7 Sigmund v. Starwood
Urb. Retail VI, LLC, 236 F.R.D. 43, 46 (D.D.C. 2006) (interpreting the 1970 Amendment to
Rule 36); see also Booth Oil, 194 F.R.D. at 80 (“[W]here the question of the meaning of the
document is at issue in the case, a request directed to another party seeking an admission or
denial of a document’s meaning or intent by that party as stated in the request relates to a
statement [of] fact, and is authorized by Rule 36.”). Likewise, an RFA that poses questions
concerning “the intent of the parties to a contract and what they understood the contract to mean
is also an issue of fact”—not “purely a legal matter”—and thus permissible under Rule 36.
Disability Rts. Council v. Wash. Area Metro. Transit Auth., 234 F.R.D. 1, 3 (D.D.C. 2006).

7
Bausch & Lomb Inc. v. Alcon Laboratories, Inc., which the United States cites for the
proposition that “[r]equests which seek admissions to interpretations of documents are
improper,” 173 F.R.D. 367, 377 (W.D.N.Y. 1995), relies on three cases decided prior to the 1970
amendment to Rule 36 and one case decided after the amendment that does not support the
United States’ assertions here. See id. (citing Buff Corp. v. Marcelle, 20 F.R.D. 139, 141
(E.D.N.Y. 1957); Pittsburgh Hotels Ass’n, Inc. v. Urban Redevelopment Auth. of Pittsburgh, 29
F.R.D. 512, 513 (W.D. Pa. 1962); Anderson v. United Air Lines, 49 F.R.D. 144, 149 (S.D.N.Y.
1969)); Resp. at 12–13. As such, the Court does not find Bausch & Lomb persuasive on this
issue.
7
Applying this framework, RFAs 10, 21–24, 36, 37, 40, 42, 45 properly request an
admission or denial that connects the facts and circumstances of this case to the contractual
documents in dispute. It is undisputed that the LLC Operating Agreement and Ground Lease are
highly relevant to the issues being litigated. To the extent that interpreting those documents
requires a legal opinion or conclusion, it is a legal conclusion that “relate[s] to the facts of the
case” and is permissible. RCFC 36(a)(1). Specifically, RFAs 10, 36, and 37 ask about permitted
actions under those contracts; RFA 21 asks about terms defined by the contracts; and RFAs 22,
23, and 42 ask about duties under the contracts. See Mot. Ex. A at 5, 9–10, 15–16, 18. RFAs 24
and 40 request an answer regarding anticipated actions and Plaintiffs’ entitlement under the
contracts, respectively. See id. at 10–11, 17; Booth Oil, 194 F.R.D. at 80; Disability Rts.
Council, 234 F.R.D. at 3. And finally, although RFA 45 posits a hypothetical scenario (if the
BAH were reduced to $1 per month), that request is still “tethered to the facts of this case” and is
thus a proper request for admission. See Mot. Ex. A at 20–21; In re Rail Freight Fuel Surcharge
Antitrust Litig., 281 F.R.D. 1, 11 (D.D.C. 2011) (“That a party is asked to make an assumption as
a condition of its answer cannot possibly run afoul of the only requirements in the Rule.”).
Therefore, the Court rejects the United States’ objections to RFA numbers 10, 21–24, 36, 37, 40,
42, 45.

II. RFAs 26–29 and 34–35 Comply with Rule 36 Because They Seek Admissions
Regarding the Application of Federal Statutes to the Facts of This Case.

Plaintiffs’ RFA numbers 26–29, 34, and 35 request that the United States admit or deny
statements pertaining to the BAH statute. These RFAs state the following:

No. 26: Admit that in in [sic] calculating BAH applicable to the Project after the
NDAA of 2015, the Secretary was required to follow the BAH Statute.

No. 27: Admit that in in [sic] calculating BAH applicable to the Project after the
NDAA of 2015, the Secretary followed the BAH Statute and first calculated an
amount that DoD considered the Basic Allowance for Housing, and then
subtracted from that amount a percentage as permitted by the NDAA of 2015.

No. 28: Admit that in in [sic] calculating BAH applicable to the Project after the
NDAA of 2016, the Secretary was required to follow the BAH Statute.

No. 29: Admit that in in [sic] calculating BAH applicable to the Project for each
year following the NDAA of 2016, the Secretary followed the BAH Statute and
first calculated an amount that DoD considered the Basic Allowance for Housing
and then, subtracted from that amount a percentage as permitted by the NDAA of
2016.

No. 34: Admit that since the inception of the Project, 37 U.S. Code § 403 has
required that the Secretary prescribe the rates of the basic allowance for housing
that are applicable for the area of the Project.

8
No. 35: Admit that in prescribing the basic allowance for housing since the
inception of the Project, the Secretary has been required pursuant to 37 U.S. Code
§ 403 for the area of the Project to set the rates based on the costs of adequate
housing for civilians with comparable income levels in the same area.

Mot. Ex. A at 11–13, 14–15.

The parties dispute whether these RFAs improperly seek admissions or denials regarding
pure questions of law, or whether they address the application of law to fact. Plaintiffs contend
that the RFAs request the application of law (the BAH statute) to fact (the Secretary’s actions)
and thus comply with Rule 36. See id.; Reply at 11–12. Specifically, Plaintiffs contend that the
RFAs properly ask “what Defendant did in its attempts to follow the statute” while calculating
BAH. Mot. at 20. The United States counters that these RFAs improperly “seek admissions
regarding the meaning of a statute”—a pure legal conclusion—and consequently are improper.
Resp. at 10.

As discussed above, Rule 36 does not authorize “requests for admissions of law unrelated
to the facts of the case,” 1970 amendment note (emphasis added), which courts have
characterized as “pure” legal conclusions. Kan. City Power, 132 Fed. Cl. at 34. A party may
propound RFAs that pose questions requiring “the application of law to fact, or opinions about
either.” RCFC 36(a)(1)(A). “The distinction between a request that permissibly seeks the
admission of an issue requiring the application of the law to the facts of a case and a request that
impermissibly seeks the admission of a pure issue of law is not easy to draw.” United States ex
rel. Bibby v. Mortg. Invs. Corp., 323 F.R.D. 424, 428 (N.D. Ga. 2017). Indeed, the conflicting
caselaw on this issue indicates that judges draw the line differently. For example, some courts
have concluded that requests to admit whether a party’s conduct complied with a statute or
regulation seek legal conclusions related to the facts of the case—i.e. the application of law to
fact—and thus comport with Rule 36. See, e.g., SEC v. Goldstone, 300 F.R.D. 505, 528 (C.D.
Cal. 2014) (compelling response to RFA seeking admission that certain transactions constitute
“legal sales” under the SEC’s definition of that term); Breuder v. Bd. of Trs., 2021 WL 1165089,
at *5 (N.D. Ill. Mar. 25, 2021) (“[T]he RFAs which call upon the Board to admit its
understanding and opinion as to how the specified statutes would apply to the Foundation’s
funds are appropriate under Rule 36.”). In contrast, other courts have found similar RFAs
impermissible, concluding that such requests seek a pure legal conclusion. See, e.g., Disability
Rts. Council, 234 F.R.D. at 3 (finding it improper to ask the opposing party to admit that it had
complied with disability regulations and whether qualified voters with a disability were entitled
to vote by absentee ballot); Shea v. Sieunarine, No. 3:21-CV-00673 (JCH), 2022 WL 2305554,
at **1, 4 (D. Conn. June 27, 2022) (finding RFA asking “Defendants to admit that they ‘were
subject to the requirements of 49 U.S.C. §§ et seq.’” improper because it required “Defendants to
admit or deny that they were subject to particular federal and state regulations”); E.E.O.C. v.
Bloomberg L.P., No. 07 CIV 8383 LAP, 2010 WL 3260150, at *1 (S.D.N.Y. Aug. 4, 2010)
(sustaining objections to plaintiff’s requests for admission asking the defendant to admit or deny
that its actions “complied with Title VII” (citing Disability Rts. Council, 234 F.R.D. at 2–3)).

“[T]he question of whether and how a particular statute applies to the given set of facts
. . . is a quintessential application of law to fact.” Bibby, 323 F.R.D. at 428. Consequently,

9
“RFAs seeking admission on whether a statutory or regulatory definition is satisfied under a
case’s factual circumstances are not requests for pure matters of law, but rather seek to apply the
law to the facts of the case.” Fauteux v. Walmart, Inc., No. CV 20-00925-DSF (RAOx), 2022
WL 1716002, at *5 (C.D. Cal. Jan. 21, 2022) (cleaned up); see also Breuder, 2021 WL 1165089,
at *4–5 (finding RFAs calling upon a party “to admit its understanding and opinion of how the
specified statutes would apply” are permissible under Rule 36). The cases that conclude
otherwise, some of which the United States has cited, are not persuasive and conflict with this
Court’s reading of Rule 36. Cf. Sommerfield, 251 F.R.D. at 355 (noting trial courts’ broad
discretion in discovery disputes, meaning that “two decision makers can arrive at opposite
conclusions, both of which constitute appropriate exercises of discretion”).

Applying this standard, the Court finds that RFAs 27 and 29 are permissible under Rule
36. Those RFAs do not pose an abstract legal question, but instead ask whether the Secretary
“followed the BAH statute” by calculating BAH in a certain manner. Answering those requests
requires the United States to draw a legal conclusion. But it is a legal conclusion closely tied to
the facts of the case, and requires the application of law to fact, and thus permissible under Rule
36. The United States must answer those RFAs.

RFAs 26 and 28 are a closer call, but also satisfy Rule 36. Those requests seek
admissions of whether “the Secretary was required to follow the BAH Statute” in calculating
BAH applicable to the Project after the NDAA of 2015 and 2016. If these requests generically
asked whether the NDAA binds the United States, that might present a legal question untethered
to the facts disputed in this case. But both requests specifically reference BAH calculations for
the Project, thereby establishing a link (albeit relatively thin) to the relevant facts. Thus, they
comply with Rule 36 and must be answered.

RFAs 34 and 35 straddle the line that Rule 36 sets but are sufficiently related to the facts
of the case to require a response. As the United States notes, RFAs 34 and 35 essentially ask
whether “37 U.S. Code § 403 has required that the Secretary prescribe the rates of the basic
allowance for housing,” for the Project, Resp. at 14, and whether that statutory provision requires
the Secretary “to set the rates based on the costs of adequate housing for civilians with
comparable income levels in the same area” as the Project. Id. at 15. The United States suggests
that the inclusion of the phrases “applicable for the area of the Project” in RFA 34 and “for the
area of the Project” in RFA 35 is pretextual and designed to give the RFAs the appearance of
being tied to the facts in this case. Id. at 14–15; see also Disability Rts. Council, 234 F.R.D. at 3
(deeming it improper to issue RFAs that “ratify legal conclusions that the requesting party has
simply attached to operative facts”). But the Court must review the RFAs as drafted, not a
version rephrased to bolster the opposing party’s objections. Both RFAs reference the Project
and rates at issue in this litigation and cannot fairly be construed as posing purely abstract legal
questions. Therefore, these RFAs comply with Rule 36.

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III. Rule 36 Does Not Support the United States’ Objection to RFAs 22–24, 29, 34–
37, 42, and 45 as Improper Requests for Admissions Regarding the “Ultimate
Issue” in the Case.

The United States also objects to RFAs 22–24, 29, 34–37, 42, and 45, asserting that they
improperly target the “ultimate legal issue in the case.” E.g., Mot. Ex. at 10 (quoting United
States v. Petroff-Kline, 557 F.3d 285, 293 (6th Cir. 2009)); Resp. at 12. Plaintiffs counter that
Rule 36 allows RFAs that ask a party to admit the “ultimate” or “dispositive” issue in a case. See
Mot. at 20–21. Each side cites cases supporting its respective interpretation of Rule 36.8

Courts are divided on whether a party must answer an RFA that poses questions
concerning the principal dispute at issue in a case. See 1970 amendment note (collecting cases).
For example, the United States Court of Appeals for the Sixth Circuit has questioned the validity
of RFAs that “target[] the ultimate legal issue in the case,” Petroff-Kline, 557 F.3d at 293, and
district courts in that circuit have concluded that such requests are outside the scope of Rule 36.
See, e.g., Coburn v. L.J. Ross Assocs., Inc., No. 14-CV-11080, 2015 WL 1926398, *5 (E.D.
Mich. Apr. 28, 2015). But other courts have concluded that “a party can be requested to admit
the ultimate issue in a manner that has a dispositive effect on the case.” In re Rail Freight, 281
F.R.D. at 11; see also S.A. Healy Co., 37 Fed. Cl. at 205 (“Nor is a request objectionable merely
because it relates to an ultimate fact or to an issue of fact that is dispositive of one aspect of the
case.” (cleaned up)).

The language of Rule 36 is plain: “A party must not object solely on the ground that the
request presents a genuine issue for trial.” RCFC 36(a)(5). As discussed above, Rule 36 also
allows parties to request admissions of legal conclusion tied to the facts of the case.
Accordingly, the fact that an RFA may seek admissions of the “ultimate issue” of the case is not
a valid ground for refusing to respond. As the Court has already rejected the United States’ other
objections to RFAs 22–24, 29, 34–37, 42, and 45, the United States must respond to those
requests for admission.

Compare Williamson v. Corr. Med. Servs., No. CIV.06-379-SLR, 2009 WL 1364350, at
8

*2 (D. Del. May 14, 2009) (holding RFAs “objectionable when they call for a conclusion of one
of the ultimate issues in the case” based on pre-1970 caselaw that barred mixed question of law
and fact), and Sports v. Top Rank, Inc., No. 8:17CV11, 2017 WL 4863068, at *2 (D. Neb. Oct.
26, 2017) (noting that “[t]he primary question presented in this case involves the scope and
duration of the Agreement and Release” and concluding that the RFAs improperly “seek an
admission of the legal issues in dispute in this case”), with West Bay Builders, Inc. v. United
States, 80 Fed. Cl. 700, 703 (2008) (“Rule 36 ‘allows litigants to request admissions as to a
broad range of matters, including ultimate facts . . . .’” (quoting In re Carney, 258 F.3d 415, 419
(5th Cir. 2001))), and Sigmund, 236 F.R.D. at 46 (“Even if the meaning of a document or the
intent of the parties as to a contractual provision is the issue ultimately to be decided, such
questions do not raise a valid objection to a request to admit a party’s understanding of a
document’s meaning or the intent of the parties . . . .” (quoting Booth Oil, 194 F.R.D. at 80)).

11
CONCLUSION

Accordingly, the Court hereby GRANTS Plaintiffs’ Motion to Compel Responses to
Requests for Admission (AETC II ECF No. 82, Ohana ECF No. 30). The United States’
objections to Plaintiffs’ RFAs are overruled. The Court ORDERS the United States to provide
answers to RFAs 10, 21–24, 26–29, 34–37, 40, 42, and 45 by June 5, 2025.

IT IS SO ORDERED.

________________________
ROBIN M. MERIWEATHER
Judge

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11051692. Public record. Not legal advice.