Free Motion to Compel - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ANAHEIM GARDENS, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ALGONQUIN HEIGHTS, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 93-655C (Judge Margaret M. Sweeney)

No. 97-582C (Judge Margaret M. Sweeney)

DEFENDANT'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES 24 AND 25 Plaintiffs allege that the Emergency Low-Income Housing Preservation Act of 1987 ("ELIHPA") or the Low-Income Housing Preservation and Resident Homeownership Act of 1990 ("LIHPRHA") (collectively, the "Preservation Statutes"), as applied to their property by Department of Housing and Urban Development ("HUD"), effected a regulatory taking. In October 2007, after receiving approval from this Court, the United States served two interrogatories asking that plaintiffs identify the dates upon which they contend that their regulatory taking claims ripened. Plaintiffs have failed to provide responsive answers. Accordingly, pursuant to Rule 37 of the Rules of the United States Court of Federal Claims ("RCFC"), the United States respectfully requests that the Court enter an order compelling plaintiffs to provide responsive answers to the United States' twenty-fourth and twenty-fifth interrogatories.

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BACKGROUND On October 25, 2007, the United States filed a motion requesting a status conference in these actions because it intended to serve two interrogatories and anticipated that plaintiffs would assert objections. The United States' motion provided the Court the text of the planned interrogatories: The United States seeks to serve the following two interrogatories to ascertain the plaintiffs' position on ripeness in these actions: INTERROGATORY NO. 24: For each subject property, if you contend that ELIHPA effected a regulatory taking, state the date that you contend that the claim that ELIHPA effected a regulatory taking ripened. INTERROGATORY NO. 25: For each subject property, if you contend that LIHPRHA effected a regulatory taking, state the date that you contend the claim that LIHPRHA effected a regulatory taking ripened. These interrogatories are simple, straightforward, and will present no burden to answer. They are timely in that they will be served more than 30 days before the close of discovery. And they are proper in that they go to the crux of the ripeness issue currently pending before the Court. Def.'s Notice of Dispute Regarding Discovery and Mot. for Expedited Status Conference at 1-2 (Oct. 15, 2007) (citations omitted) (docket no. 168 in Anaheim; docket no. 56 in Algonquin). Plaintiffs objected to both the interrogatories, as well as to the United States' request for a status conference. With respect to the interrogatories, plaintiffs argued that the interrogatories would exceed the permissible number of interrogatories, were duplicative, and were unduly burdensome. Pls.' Response to Def.'s Notice of Dispute Regarding Discovery and Mot. for 2

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Expedited Status Conference at 3-5 (Oct. 16, 2007) (docket no. 169 in Anaheim; docket no. 57 in Algonquin). At an October 17, 2007 status conference, the Court rejected plaintiffs' objections and granted the United States' request for leave to serve interrogatories 24 and 25: Defendant seeks additional contention interrogatories to assess plaintiffs' position regarding ripeness under ELIHPA and LIHPRHA, as it applies to each plaintiff. Plaintiffs argue that the responses to such inquiries would be burdensome and duplicative. Defendant's request for leave to serve Interrogatories twenty-four and twenty-five is GRANTED. The court admonished the parties to conduct discovery with a view toward maximum voluntary exchange of relevant information, and to keep in mind the costs to plaintiffs and defendant in time and resources. Order of Judge Hodges at 1 (Oct. 22, 2007) (docket no. 170 in Anaheim; docket no. 58 in Algonquin). The United States served its judicially-approved interrogatories later that day. Def.'s Fourth Set of Interrogs. in Anaheim (Oct. 17, 2007) (attached as Exhibit A); Def.'s Fourth Set of Interrogs. in Algonquin (Oct. 17, 2007) (attached as Exhibit B). Plaintiffs' responses to the interrogatories were served November 15, 2007. Pls.'s Response to Def.'s Fourth Set of Interrogs. in Anaheim (Nov. 15, 2007) (attached as Exhibit C); Pls.' Response to Def.'s Fourth Set of Interrogs. in Algonquin (Nov. 15, 2007) (attached as Exhibit D). Rather than provide a straightforward answer, plaintiffs attempted to recast the interrogatories and answer a different question. See id. at 3-4. We promptly informed plaintiffs that their interrogatory answers were deficient. See Letter from David A. Harrington to Harry Kelly at 1-2 (Nov. 16, 2007) (attached as Exhibit E). Explaining that plaintiffs' answers were unintelligible and, therefore, not responsive, we urged plaintiffs to serve supplemental answers that provided a specific date for each property. Id. at 1.

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Plaintiffs declined to do so. See Letter from Harry Kelly to David A. Harrington at 1-2 (Nov. 21, 2007) (stating that the answers were appropriate and that plaintiffs "do not intend to revise [their] responses at this time") (attached as Exhibit F). On November 26, 2007, we again wrote to plaintiffs. Letter from David A. Harrington to Harry Kelly (Nov. 26, 2007) (attached as Exhibit G). We explained: Conspicuously missing from your [recent] letter is a plain statement that the dates supplied in plaintiffs' interrogatory answers are the dates upon which plaintiffs contend that the asapplied regulatory taking claims in these actions ripened. We would prefer not to file a motion to compel regarding these interrogatories. However, unless we receive supplemental interrogatory answers providing the information we requested, or an unambiguous written statement confirming that plaintiffs' answers do in fact provide this information, we will be left no alternative. Id. at 1. On November 28, 2007, before a scheduled deposition, we raised this issue with plaintiffs' attorney, Harry Kelly. During the ensuring discussion, we urged Mr. Kelly to reconsider plaintiffs' position, explained that clarity is essential, and noted that we merely needed a clear answer providing the dates upon which plaintiffs claim that their regulatory taking claims ripened. Mr. Kelly indicated that plaintiffs would consider the United States' renewed request, but that he would be unable to turn to the issue until the following week. Over a month has passed since the discussion with Mr. Kelly and plaintiffs have not acted upon the United States' request. Accordingly, the United States certifies that it has attempted in good faith to resolve this dispute without recourse to the Court, but that the attempt has been unsuccessful. See RCFC 37(a).

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ARGUMENT Interrogatories 24 and 25 ask plaintiffs to state the date upon which they contend that their respective taking claims ripened. Interrogatory 24 states as follows: For each subject property, if you contend that ELIHPA effected a regulatory taking, state the date that you contend that the claim that ELIHPA effected a regulatory taking ripened. See Ex. A, at 1-2; Ex. B at 1-2. After asserting certain boilerplate objections, plaintiffs provide the following response: Plaintiffs interpret this request as a request for the date when Plaintiffs contend that they could or did initiate administrative processing under ELIHPA, and that date for those subject properties that proceeded under ELIHPA was after enactment of ELIHPA and either (1) on or about the date that the Initial Notice to Prepay was submitted to HUD or (2) the date of the twentieth anniversary of the subject property's mortgage, whichever was earlier. A chart of the relevant dates for the subject properties that proceeded under ELIHPA is attached hereto as Exhibit A. Ex. C, at 3; Ex. D at 3. The United States posed an identical interrogatory with respect to LIHPRHA and plaintiffs' provide the very same response: Plaintiffs interpret this request as a request for the date when Plaintiffs contend that they could or did initiate administrative processing under LIHPRHA, and that date for those subject properties that proceeded under LIHPRHA was after enactment of LIHPRHA and either (1) on or about the date that the Initial Notice of Intent or Intent to Prepay was submitted to HUD or (2) the date of the twentieth anniversary of the subject property's mortgage, whichever was earlier. A chart of the relevant dates for the subject properties that proceeded under LIHPRHA is attached hereto as Exhibit B. Ex. C at 3-4; Ex. D at 3-4. Rather than answering the interrogatories, plaintiffs "interpret" the interrogatories in order to answer to a materially different question. The United States could hardly have served 5

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more straightforward interrogatories. No interpretation is necessary or appropriate. Indeed, plaintiffs' interpretation merely serves to confuse matters. See Ex. C at 3-4 (interpreting the interrogatories as requesting dates the subject properties "could or did initiate" administrative processing); Ex. D at 3-4 (same). As a result, the dates provided in the charts appended to plaintiffs response are ambiguous and unusable.1 It cannot be determined, for instance, whether charts contain the date that each project "could have" initiated administrative processing, actually "did initiate" administrative processing, submitted an "initial notice to prepay,"2 reached "the twentieth anniversary of the project's mortgage," or some another date. In any event, the United States did not ask about any of these dates ­ only about the date upon which plaintiffs contend that their regulatory taking claims ripened. By redefining the interrogatories and then providing unintelligible answers to a different question, plaintiffs have failed to provide a response as required by the Rules of this Court. RCFC 37(a)(3) ("an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond"). The Court should, therefore, order plaintiffs to serve an answer with respect to each subject property that provides the specific date upon which plaintiffs' contend that their regulatory taking claim ripened.3 The charts attached to plaintiffs interrogatory answers fail to include information with respect to two projects ­ Holiday Town #2 and Peachtree Court ­ and do not give specific dates with respect to various other projects. Exs. C & D; see also Ex. E at 2 (noting plaintiffs' failure to provide this information). For this additional reason, plaintiffs answers are deficient. The term "initial notice to prepay" is itself unclear. The Preservation Statutes provided that an owner could submit a "notice of intent" followed by a "plan of action." See ELIHPA §§ 222, 223; 12 U.S.C. §§ 4102, 4107. No property in these actions submitted a plan of action that requested prepayment pursuant to the Preservation Statutes. If plaintiffs persist in refusing to provide this information for each of the properties at issue, their regulatory taking claims should be dismissed as unripe. RCFC 37(b)(2). 6
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CONCLUSION For these reasons, the Court should compel plaintiffs to provide responsive answers to the United States' twenty-fourth and twenty-fifth interrogatories. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Acting Director s/ Brian M. Simkin BRIAN M. SIMKIN Assistant Director s/ David A. Harrington DAVID A. HARRINGTON Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 (202) 616-0465 January 3, 2008 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on the 3rd day of January 2008, a copy of "DEFENDANT'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES 24 AND 25" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ David A. Harrington

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ANAHEIM GARDENS, et al., Plaintiffs,
V.

THE UNITED STATES, Defendant.

) ) ) ) ) ) .) ) )

No. 93-655C (Judge Robert H. Hodges, Jr.)

DEFENDANT'S FOURTH SET OF INTERROGATORIES Pursuant to Rules 26 and 33 of the Rules of the Court of Federal Claims ("RCFC"), defendant, the United States, requests that the plaintiffs respond to the following interrogatories. DEFINITIONS 1. The terms "you," "your," or "plaintiffs" refer collectively to the plaintiffs

identified in the operative complaint in this action, as well as all predecessor and successor institutions, current or former subsidiary and parent corporations or related entities; past or present experts, employees, consultants, agents, investigators, directors, officers, representatives, including counsel; and all other persons or entities that acted or purported to act, or act or purport to act upon behalf of any plaintiff. 2. The term "document," as used herein has the same meaning ascribed to it in

Rule 34 of the United States Court of Federal Claims. 3. The term "subject property" refers to each and every property owaaed by the

plaintiffs that are the subject of any claim asserted in the operative complaint in this litigation. 4. The term "person" is not limited to natural persons and includes, without

limitation, natural persons, corporations, associations, partnerships, and governmental entities.

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5.

As used in this discovery request, the term "communications" includes written,

verbal, non-verbal, electronic, wire and telephonic communications. 6. A. The term "identify," as used herein, in reference to: A natural individual means to state, to the extent known, his or her: (1) (2) full name; present residence address, and if that is not known, the answer shall so state, and in lieu of the present residence address, the last known address and the last known date the person resided there; (3) present employer, business address, telephone number and job title, if known and if not known, the answer shall so state; and (4) employer, address and job title at the time of the event, transactions or occurrence to which the interrogatory relates. B. A person other than a natural individual means to state, to the extent known, the: (1) (2) (3) (4) full name; present or last lcnown address; state of incorporation, if known; place(s) of business at the present time and at all times relevant to the interrogatory involved; C. A document, means to state, to the extent known the: (1) title, heading or caption of such document;

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(2)

identifying number(s), letter(s), or combination thereof, if any, and the significance or meaning of such number(s), letter(s), or combination thereof;

(3) date appearing on such document, and if no date appears thereon, the answer shall so state and shall give the date, or approximate date, on which such document was prepared and/or executed; (4) description of the type of document (for example, letter, handwritten notes, etc.) and the number of pages; The foregoing information shall be given in sufficient detail to enable a party or person to whom a subpoena is directed to identify fully the document to be produced, and to enable defendant to determine that such document, when produced, is in fact the document so described. (In lieu of the description requested above, plaintiff may, at its election, provide a copy of the document, with a notation on a cover page attached to the document that refers to the relevant interrogatory). 7. References to the name of a company or the designation of a party include the

company or corporation, as the case may be, or the party, and its employees, agents, directors, officers, stoclcholders, principals, partners, representatives, attorneys, investigators, and consultants. 8. An interrogatory asking you to "explain in detail," "describe in detail," "state each

fact," or "state all facts" seeks disclosure of each and every fact, circumstance, condition, and thing known to you about the subject of the interrogatory containing such a phrase and full identification and description of the source(s) of such facts, circumstances, conditions and things,
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including, but not limited to, pertinent date(s) and identification of each person having knowledge of and each document containing information relating to such fact, circumstance, condition or thing. 9. The term "HUD" refers to the Department of Housing and Urban Development,

predecessor institutions, past or present employees, agents, directors, officers, representatives, including counsel, and all other persons or entities that acted or purported to act upon behalf of its behalf. 10. Act. 11. The term "LIHPRHA" refers to the Low-Income Housing Preservation and The term "ELIHPA" refers to the Emergency Low-Income Housing Preservation

Resident Homeownership Act. 12. 13. of 1996. 14. The term "plan of action" refers to a plan submitted pursuant to and in accordance The term "Preservation Statues" refers collectively to ELIHPA and LIHPRHA. The term "HOPE Act" refers to the Housing Opportunity Program Extension Act

with section 223 of ELIHPA or, alternatively, the section of LIHPRHA codified at 12 U.S.C. § 4107, regardless of whether the plan proposes to terminate low-income affordability restrictions, extend low-income affordability restrictions, or transfer the subject property to a qualified purchaser. 15. The term "use agreement" refers to an agreement to provide a project's owner any of the incentives authorized by section 224 of ELIHPA or, alternatively, to provide any of incentives authorized by that section of LIHPRHA codified at 12 U.S.C. § 4109.
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16. Unless otherwise stated, this discovery request concerns the period from January 1, 1987 to December 31, 1997. INSTRUCTIONS 1. In responding to the interrogatories, furnish all information, however obtained,

including hearsay, that is available to you, including information known by or in the possession of yourself, your employees, experts, plaintiff's attorney, or appearing in your documents, not merely information within the personal knowledge of the individuals executing plaintiff's answers to interrogatories. 2. If you cannot answer the following interrogatories in full after exercising due

diligence to secure the information, so state, and answer to the extent possible. Specify your inability to answer the remainder, and state whatever information or knowledge plaintiff has concerning the unanswered portion. 3. Provide separate responses for each interrogatory or subpart thereof; do not join

together and provide a common response or answer to two or more interrogatories or to subparts of an interrogatory. 4. Where exact statistical or numerical information, including dates or times, cannot

be furnished, estimated or approximate information is to be supplied. Where an estimate or approximation is supplied, it should be so indicated, and an explanation provided as to the basis upon which the estimate or approximation was made. State the reason(s) why exact statistical or numerical information cannot be furnished. 5. If any response, or any portion of any response, to any of the following

interrogatories or subparts thereof is not made on or by the present knowledge of the person
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signing or swearing to such response, identify each person from whom the information was obtained and is a matter of personal knowledge. Designate the number of the interrogatory for which each such person supplied information. 6. To the extent you consider any of the following interrogatories, or subparts

thereof, to be objectionable, answer that portion of the interrogatory, or subpart thereof, to which you have no objection and separately state the portion of the interrogatory, or subpart thereof, to which you lodge an objection and state the specific grounds for your objections. 7. Should you claim a privilege for any document requested, or about which

information is requested by any of the following interrogatories, you shall so state and describe such documents in the manner indicated above. You shall state all facts that demonstrate why the document(s) sought or the information requested by any of the following document requests or interrogatories is entitled to the privilege requested. 8. When answering these interrogatories, please type the interrogatory, as well as

your response or objection in accordance with all provisions of Rules 33 and 34 of the United States Court of Federal Claim. 9. With respect to each interrogatory response or part thereof to which you refuse to

provide a response based upon a claim of privilege or protection, specify in detail the factual or legal basis upon which you rely in withholding the information. Your response should specifically state each privilege or protection upon which you rely in withholding a response and provide the content of the response in as much detail as is possible without revealing the privileged or protected matter.

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10. If any material responsive to this request has been destroyed, state the reason for the destruction, date on which the material was destroyed, the person in whose possession, custody or control the material was when destroyed, and the person who destroyed the material. 11. To the extent that the answer to an interrogatory is being provided by the production of business records pursuant to RCFC 33(d), specify the title, date and Bates number of the business record from which the answer can be derived and the date upon which the record was produced. 12. These interrogatories are continuing in nature to the extent provided in RCFC 26. If at any time after responding to these requests plaintiff obtains additional responsive information, a supplemental response shall be furnished within 15 days of receiving such information.

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INTERROGATORIES Defendant hereby propounds the following interrogatories: INTERROGATORY NO. 24: For each subject property, if you contend that ELIHPA effected a regulatory taking, state the date that you contend that the claim that ELIPHA effected a regulatory taking ripened. Response:

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INTERROGATORY NO. 25: For each subject property, if you contend that LIHPRHA effected a regulatory taking, state the date that you contend the claim that LIHPRHA effected a regulatory taking ripened. Response:

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PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director

M. SIMKIN Assistant Director

DAVID A. HARR1NGTON Trial Attorney Commereial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0277 Fax: (202) 307-0972 October 17, 2007 Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify under penalty of peljury that on this ~ day of October 2007, I caused to be delivered by U.S. mail (first class, postage prepaid) and e-mail, Defendant's Fourth Set of Interrogatories to:

Harry J..Kelly Nixon Peabody, LLP 410 Ninth Street, N.W., Suite 900 Washington, D.C. 20004

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ALGONQUIN HEIGHTS, et al., Plaintiffs, v. THE UNITED STATES, Defendant. )

)

) ) )

No. 97-582C (Judge Robert H. Hodges, Jr.)

)
) )

)

DEFENDANT'S FOURTH SET OF INTERROGATORIES Pursuant to Rules 26 and 33 of the Rules of the Court of Federal Claims ("RCFC"), defendant, the United States, requests that the plaintiffs respond to the following interrogatories. DEFINITIONS 1. The terms "you," "your," or "plaintiffs" refer collectively to the plaintiffs

identified in the operative complaint in this action, as well as all predecessor and successor institutions, current or former subsidiary and parent corporations or related entities; past or present experts, employees, consultants, agents, investigators, directors, officers, representatives, including counsel; and all other persons or entities that acted or purported to act, or act or purport to act upon behalf of any plaintiff. 2. The term "document," as used herein has the same meaning ascribed to it in

Rule 34 of the United States Court of Federal Claims. 3. The term "subject property" refers to each and every property owned by the

plaintiffs that are the subject of any claim asserted in the operative complaint in this litigation. 4. The term "person" is not limited to natural persons and includes, without

limitation, natural persons, corporations, associations, partnerships, and governmental entities.

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5.

As used in this discovery request, the term "communications" includes written,

verbal, non-verbal, electronic, wire and telephonic communications. 6. A. The term "identify," as used herein, in reference to: A natural individual means to state, to the extent known, his or her: (1) (2) full name; present residence address, and if that is not known, the answer shall so state, and in lieu of the present residence address, the last known address and the last known date the person resided there; (3) present employer, business address, telephone number and job title, if known and if not known, the answer shall so state; and (4) employer, address and job title at the time of the event, transactions or occurrence to which the interrogatory relates. B. A person other than a natural individual means to state, to the extent known, the: (1) (2) (3) (4) full name; present or last known address; state of incorporation, if known; place(s) of business at the present time and at all times relevant to the interrogatory involved; C. A document, means to state, to the extent known the: (1) title, heading or caption of such document;

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(2)

identifying number(s), letter(s), or combination thereof, if any, and the significance or meaning of such number(s), le.tter(s), or combination thereof;

(3)

date appearing on such document, and if no date appears thereon, the answer shall so state and shall give the date, or approximate date, on which such document was prepared and/or executed;

(4)

description of the type of document (for example, letter, handwritten notes, etc.) and the number of pages;

The foregoing information shall be given in sufficient detail to enable a party or person to whom a subpoena is directed to identify fully the document to be produced, and to enable defendant to determine that such document, when produced, is in fact the document so described. (In lieu of the description requested above, plaintiff may, at its election, provide a copy of the document, with a notation on a cover page attached to the document that refers to the relevant interrogatory). 7. References to the name of a company or the designation of a party include the

company or corporation, as the case may be, or the party, and its employees, agents, directors, officers, stockholders, principals, partners, representatives, attorneys, investigators, and consultants. 8. An interrogatory asking you to "explain in detail," "describe in detail," "state each

fact," or "state all facts" seeks disclosure of each and every fact, circumstance, condition, and thing kmown to you about the subject of the interrogatory containing such a phrase and full identification and description of the source(s) of such facts, circumstances, conditions and things, iii

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including, but not limited to, pertinent date(s) and identification of each person having knowledge of and each document containing information relating to such fact, circumstance, condition or thing. 9. The term "HUD" refers to the Department of Housing and Urban Development,

predecessor institutions, past or present employees, agents, directors, officers, representatives, including counsel, and all other persons or entities that acted or purported to act upon behalf of its behalf. 10. Act. 11. The term "LIHPRHA" refers to the Low-Income Housing Preservation and The term "ELIHPA" refers to the Emergency Low-Income Housing Preservation

Resident Homeownership Act. 12. 13. of 1996. 14. The term "plan of action" refers to a plan submitted pursuant to and in accordance The term "Preservation Statues" refers collectively to ELIHPA and LIHPRHA. The term "HOPE Act" refers to the Housing Opportunity Program Extension Act

with section 223 of ELIHPA or, alternatively, the section of LIHPRHA codified at 12 U.S.C. § 4107, regardless of whether the plan proposes to terminate low-income affordability restrictions, extend low-income affordability restrictions, or transfer the subject property to a qualified purchaser. 15. The term "use agreement" refers to an agreement to provide a project's owner any of the incentives authorized by section 224 of ELIHPA or, alternatively, to provide any of incentives authorized by that section of LIHPRHA codified at 12 U.S.C. § 4109.
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16. Unless otherwise stated, this discovery request concerns the period from January 1, 1987 to December 31, 1997. INSTRUCTIONS 1. In responding to the interrogatories, furnish all information, however obtained,

including hearsay, that is available to you, including information known by or in the possession of yourself, your employees, experts, plaintiff's attorney, or appearing in your documents, not merely information within the personal knowledge of the individuals executing plaintiff's answers to interrogatories. 2. If you cannot answer the following interrogatories in full after exercising due

diligence to secure the information, so state, and answer to the extent possible. Specify your inability to answer the remainder, and state whatever information or knowledge plaintiff has concerning the unanswered portion. 3. Provide separate responses for each interrogatory or subpart thereof; do not join

together and provide a common response or answer to two or more interrogatories or to subparts of an interrogatory. 4. Where exact statistical or numerical information, including dates or times, cannot

be furnished, estimated or approximate information is to be supplied. Where an estimate or approximation is supplied, it should be so indicated, and an explanation provided as to the basis upon which the estimate or approximation was made. State the reason(s) why exact statistical or numerical information cannot be furnished. 5. If any response, or any portion of any response, to any of the following

interrogatories or subparts thereof is not made on or by the present knowledge of the person

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signing or swearing to such response, identify each person from whom the information was obtained and is a matter of personal knowledge. Designate the number of the interrogatory for which each such person supplied information. 6. To the extent you consider any of the following interrogatories, or subparts

thereof, to be objectionable, answer that portion of the interrogatory, or subpart thereof, to which you have no objection and separately state the portion of the interrogatory, or subpart thereof, to which you lodge an objection and state the specific grounds for your objections. 7. Should you claim a privilege for any document requested, or about which

information is requested by any of the following interrogatories, you shall so state and describe such documents in the manner indicated above. You shall state all facts that demonstrate why the document(s) sought or the information requested by any of the following document requests or interrogatories is entitled to the privilege requested. 8. When answering these interrogatories, please type the interrogatory, as well as

your response or objection in accordance with all provisions of Rules 33 and 34 of the United States Court of Federal Claim. 9. With respect to each interrogatory response or part thereof to which you refuse to

provide a response based upon a claim of privilege or protection, specify in detail the factual or legal basis upon which you rely in withholding the information. Your response should specifically state each privilege or protection upon which you rely in withholding a response and provide the content of the response in as much detail as is possible without revealing the privileged or protected matter.

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10. If any material responsive to this request has been destroyed, state the reason for the destruction, date on which the material was destroyed, the person in whose possession, custody or control the material was when destroyed, and the person who destroyed th.e material. 11. To the extent that the answer to an interrogatory is being provided by the production of business records pursuant to RCFC 33(d), specify the title, date and Bates number of the business record from which the answer can be derived and the date upon which the record was produced. 12. These interrogatories are continuing in nature to the extent provided in RCFC 26.

If at any time after responding to these requests plaintiff obtains additional responsive information, a supplemental response shall be furnished within 15 days of receiving such information.

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INTERROGATORIES Defendant hereby propounds the following interrogatories: INTERROGATORY NO. 24: For each subject property, if you contend that ELIHPA effected a regulatory taking, state the date that you contend that the claim that ELIPHA effected a regulatory taking ripened. Response:

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INTERROGATORY NO. 25." For each subject property, if you contend that LIHPRHA effected a regulatory taking, state the date that you contend the claim that LIHPRHA effected a regulatory taking ripened. Response:

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PETER D. KEISLER Assistant Attorney General JEANNEE. DAVIDSON Directo~r

BRIAN M. SIMKIN Assistant Director

DAVID A. HARR1NGTON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0277 Fax: (202) 307-0972 October 17, 2007 Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on this ]7"csd day of October 2007, I caused to be delivered by U.S. mail (first class, postage prepaid) and e-mail, Defendant's Fourth Set of Interrogatories to:

Harry J. Kelly Nixon Peabody, LLP 410 Ninth Street, N.W., Suite 900 Washington, D.C. 20004

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U.S. Department of Justice Civil Division JED:BMS :DHarrington DJ No. 154-93-655 & 154-97-582 Telephone: Facsimile: (202) 616-0465 (202) 307-0972

Washington, D. C. 20530

November 16, 2007
Via Electronic Mail and U.S. Mail

Harry J. Kelly, Esq. Nixon Peabody LLP 401 Ninth St., N.W. Suite 900 Washington, D.C. 20004
Anaheim Gardens, et al. v. United States, No. 93-655C (Fed. C1.); Algonquin Heights, et al. v. United States, No. 97-582C (Fed. C1.).

Dear Mr, Kelly: Having reviewed plaintiffs answers to the United States' fourth set of interrogatories in these matters, we have concluded that plaintiffs' interrogatory answers are not responsive. Our interrogatories ask you to provide the respective dates upon which plaintiffs contend that their regulatory taking claims under ELIHPA and LIHPRHA ripened. Your answers state that plaintiffs interpret these simple interrogatories as "a request for the date when Plaintiffs contend that they could or did initiate administrative processing under ELIHPA, and the that date for those subject properties that proceeded under ELIHPA was after enactment of ELIHPA and either (1) on or about the date that the initial Notice of Intent or Intent to Prepay was submitted to HUD or (2) the date of the twentieth anniversary of the subject property's mortgage, whichever was earlier." Pls.' Response to Def.'s Fourth Set of Interrogs. at 3 (served Nov. 15, 2007) (answer to interrogatory no. 24); see also id at 4 (answer to interrogatory no. 25) (providing the same "interpretation" of the interrogatory on LIHPRHA). You then state that charts containing "relevant dates" for projects that proceeded under ELIHPA and LIHPRHA are attached. The above-quoted language is unintelligible and, consequently, is not responsive to the United States' interrogatories. Clarity on this issue is essential.~ There is no reason why the question cannot be answered by a simple date for each property. Please provide us with

~ Your answers indicate that LIHPRHA did not effect a regulatory talcing with respect to projects left off Exhibit A. Similarly, your answers indicate that ELIHPA did not effect a regulatory taking with respect to projects left off Exhibit B. If this is not the case, please also correct your interrogatory answers in this regard.

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2 corrected answers by November 21, 2007, or we will have no choice but to ask the Court to compel responsive answers.2 Plaintiffs also have failed to provide any answer with respect t.o two subject properties: Peachtree Court Apartments, and Holiday Town Apartments #2. Despite the fact that document production in these matters was completed six months ago,.the answer as to Peachtree Court states "no documents." The answer as to Holiday Town #2 is simply omitted. Our interrogatories seek an answer with respect to each "subject property," a defined term that includes both Peachtree Court and Holiday Town #2. Please provide an answer with respect to these projects. Very truly yours,

David A. Harrington Trial Attorney Commercial Litigation Branch

2 Responsive answers are needed in advance of the depositions the United States will be taldng on ripeness during the weeks of November 26, 2007, and December 3, 2007.

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U.S. Department of Justice Civil Division
JED :BMS :DHarrington DJ No. 154-93-655 & 154-97-582

Telephone: Facsimile:

(202) 616-0465 (202) 307-0972

Washington, D:C. 20530

November 26, 2007 Via Electronic Mail and U.S. Mail

Harry J. Kelly, Esq. Nixon Peabody LLP 401 Ninth St., N.W. Suite 900 Washington, D.C. 20004
Anaheim Gardens, et al. v. United States, No. 93-655C (Fed. C1.); Algonquin Heights, et aL v. United States, No. 97-582C (Fed. C1.).

Dear Mr. Kelly: I am writing in response.to two letters I received from you late on November 21, 2007. In your first letter, you assert that plaintiffs have properly responded to the United States fourth set of interrogatories. Conspicuously missing from your letter is a plain statement that the dates supplied in plaintiffs' interrogatory answers are the dates upon which plaintiffs contend that the as-applied regulatory taking claims in these actions ripened. We would prefer not to file a motion to compel regarding these interrogatories. However, unless we receive supplemental interrogatory answers providing the information we requested, or an unambiguous written statement confirming that plaintiffS' answers do in fact provide this information, we will be left no alternative. In your second letter, which was sent about 4:00 p.m. on the Wednesday before Thanksgiving, you provided an expert report from David Smith of Recap Advisors. We had no prior notice that such a report would be proffered. Mr. Smith's report purports to contain his own calculations about nearly 100 different HUD projects in different markets throughout the United States. We are currently beginning to review the contents of Mr. Smith's report. We intend to take a deposition of Mr. Smith regarding this report. However, it will not be possible to prepare for such a deposition during the next two weeks] I will contact you to discuss mutually convenient dates for the scheduling of this deposition.

~ The previously-noticed deposition of Mr. Smith does not concern his expert report, but rather, seeks fact testimony about the role that Mr. Smith's firm, Recap Advisors, played in assisting plaintiffs and other owners with preservation processing.

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-2Very truly yours,

David A. Harrington Trial Attorney Commercial Litigation Branch