Free Motion for Extension of Time - District Court of Federal Claims - federal

Case 1:93-cg-00648-SGB

Document 248

Filed 06/16/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) Claimants, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ___________________________________ ) LAND GRANTORS IN HENDERSON, UNION and WEBSTER COUNTIES, KENTUCKY and THEIR HEIRS,

No. 93-648X Judge Charles F. Lettow (Presiding Officer), Senior Judges Lawrence S. Margolis, Loren A. Smith, Review Panel

UNITED STATES' MOTION FOR ENLARGEMENT OF TIME Pursuant to Court of Federal Claims Rule 6.1, Defendant, the United States of America, hereby moves for an enlargement of thirty-seven days, or until August 8, 2008, in which to file its opening brief before the Review Panel. The Hearing Officer issued a Final Report in this matter on April 18, 2008 (Doc. No. 244). The parties filed notices of exception on May 20, 2008 (Doc. Nos. 245, 246). On June 11, 2008, the Presiding Officer issued a Scheduling Order, requiring the parties to file opening briefs no later than July 2, 2008 (Doc. No. 247). The United States respectfully requests a thirty-seven-day enlargement of time so that it may file its opening brief on or before August 8, 2008. The undersigned counsel contacted Claimants' counsel regarding this motion, and understands Claimants will oppose the granting of this motion. In support of this motion, the undersigned counsel states as follows: Counsel for the United States is currently scheduled to be in Little Rock, Arkansas, for expert depositions in the case Arkansas Game & Fish Commission v. United States, 05-381L

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Case 1:93-cg-00648-SGB

Document 248

Filed 06/16/2008

Page 2 of 4

(Fed. Cl.) (Lettow, J.), from June 22-27, 2008.1/ In addition, counsel for the United States is currently scheduled to be in Knoxville, Tennessee, for an expert deposition in the same case from June 30 to July 2, 2008. Counsel for the United States has attempted to modify these deposition dates, but has not been able to do so yet. If counsel is unable to modify the deposition schedule in Arkansas Game & Fish Commission, the United States would have less than one week to prepare its opening brief in the instant matter. Upon receipt of the Review Panel's Scheduling Order, the undersigned counsel attempted, without success, to contact government counsel from the United States Army Corps of Engineers. Consequently, the undersigned counsel is uncertain whether agency counsel is available to review a draft opening brief under the current schedule. In addition, the additional time is needed to prepare the government's opening brief in this lengthy case, which involves an extensive factual record and multiple legal issues. The Hearing Officer conducted two trial proceedings, in September and November 2004. The trial record is extensive. See Order Regarding Final Evidentiary Exhibits, dated Mar. 30, 2005 (Doc. No. 170) (identifying approximately 600 joint exhibits; approximately 200 government exhibits; and approximately 100 Claimants' exhibits). The additional time requested in this motion will allow government counsel a reasonable opportunity to fully address this extensive trial record. Also, this matter involves numerous legal issues. Since the inception of this case more than fourteen years ago, the Hearing Officer has issued many substantive decisions, touching on a variety of legal issues. The Final Report discusses several of these issues. See, e.g., Final

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The undersigned counsel was also in Little Rock for expert depositions from June 11, when the Presiding Officer issued the scheduling order, to June 12. 2

Case 1:93-cg-00648-SGB

Document 248

Filed 06/16/2008

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Report at 32-40 (discussing the doctrine of mutual mistake, a legal theory raised by the Hearing Officer sua sponte several months after trial); id. at 48-50 (vacating a November 24, 1998 Order, and adding hundreds of new claimants, who had been previously dismissed, approximately three years after trial); id. at 50-51 (discussing the Hearing Officer's post-trial reconsideration of Claimants' motion for class certification and certifying a new class). Given the importance of these issues, substantial interagency review of the United States' opening brief will be required before the brief is filed. The additional time requested in this motion will allow the United States a reasonable opportunity to fully address these legal issues. The short extension requested will not prejudice Claimants. Rather, the additional time will allow the United States a reasonable opportunity to address the several legal and factual issues raised by the Final Report, so that the Review Panel can prepare a comprehensive Panel report. For the reasons stated above, the United States respectfully requests a thirty-seven-day extension of time, or until August 8, 2008, in which to file its opening brief. The United States also requests that the subsequent briefing schedule be modified accordingly. Respectfully submitted this 16th day of June, 2008. RONALD J. TENPAS Assistant Attorney General /s William J. Shapiro WILLIAM SHAPIRO United States Department of Justice Environment and Natural Resources Division 501 I Street Suite 9-700 Sacramento, CA 95814 (916) 930-2207 (phone) (916) 930-2210 (fax) 3

Case 1:93-cg-00648-SGB

Document 248

Filed 06/16/2008

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TOM C. CLARK II Principal Deputy Section Chief United States Department of Justice Environment and Natural Resources Division Natural Resources Section 601 D Street, NW Room 3152 Washington, DC 20530 (202) 514-3553 (phone) (202) 305-0506 (fax) Attorneys for the United States Of Counsel: Dale Holmes Stephen J. Allison Martin Cohen U.S. Army Corps of Engineers

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