Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:05-cv-00186-FMA

Document 71

Filed 05/05/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

LA VETTA ELK )

Plaintiff, )

v. )
) ) ) )

)

Case No. 05-186L Judge Francis M. Allegra

THE UNITED STATES OF AMERICA, )

Defendant. )

DEFENDANT'S MOTION TO CALL WITNESS FOR IMPEACHMENT PURPOSES
Defendant, the United States of America, hereby moves to call Sergeant First Class Bily
Hallmark exclusively for impeachment.
Appendix A(l5) of the Rules of the United States Court of

Federal Claims ("RCFC")

provides, in relevant part:
Each part shall fie, together with the Memorandum of Contentions of Fact and
Law, a separate statement setting forth a list of

witnesses to be called at trial for case-in-chief or rebuttal purposes, except those to be used exclusively for impeachment.

(emphasis added)Y
1/ Appendix A(13) also provides, in relevant part, that the parties must:

Exchange a list of names, addresses, and telephone numbers of witnesses, including expert witnesses, who may be called at tral for case-in-chief or rebuttal purposes, except those except those to be used exclusively for impeachment. (emphasis added).

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Case 1:05-cv-00186-FMA

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Defendant seeks to introduce the testimony of Sergeant First Class Bily Hallmark solely
to impeach Plaintiff Lavetta Elk's ("Plaintiff') testimony that she was not notified of her

disqualification from the United States Ary ("Ary"), because of her failure to satisfy the
Ary's height, weight regulatory requirements, or alternative percentage body fat standards
during her Military Entrance Processing Examination Station ("MEPS") physical examination.

As the Noncommissioned Offcer in Charge, Sergeant First Class Bily Hallmark is familiar with

all aspects ofthe MEPS.
The Court requested that Defendant provide an analysis of whether it was possible to

anticipate that this witness would be necessary for impeachment. Defendant is not asserting that
it was impossible to anticipate that an impeachment witness would be necessary, given that
Plaintiff testified in her deposition that Sergeant Kopf gave her a t-shirt and said congratulations

to her, while at the MEPS. Nevertheless, Sergeant First Class Bily Hallmark is being offered,
exclusively for impeachment purposes, in response to Plaintiffs testimony that she was not
notified of being disqualified of

her failure to satisfy the Ary's height, weight regulatory

requirements, or alternative percentage body fat standards. Defendant further notes that the

parties jointly agreed that Plaintiffs MEPS Physical Examination documents should be admitted

into evidence. See JX 3. This exhibit contains Plaintiffs signature in the box which requires
applicants to signify that they were informed of the reasons why they were disqualified from the

Ary. Further, the parties stipulated to the fact that Plaintiff did not satisfy the Ary's height,
weight regulatory requirements, or alternative percentage body fat standards during her MEPS
physical examination. See Joint Stipulation of

Undisputed Facts, 15. Based on the

aforementioned, Defendant moves to call Sergeant First Class Bily Hallmark exclusively for
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impeachment.

Dated this 30th day of April, 2008.

RONALD J. TENPAS Assistant Attorney General

STEVEN. NT
SARA E. COSTELL Natural Resources Section Environment and Natural Resources Division United States Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 305-0424 Fax: (202) 305-0506

Attorneys of Record for Defendants
Of

Counsel:

Major Lanny Acosta U.S. Ary Litigation Division 901 N. Stuart Street
4th Floor

Arlington, VA 22202
Sharon Pudwill Departent of the Interior Bishop Henr Whipple Federal Building 1 Federal Drive, Rm 686 Twin Cities, MN 55111

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