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

Case 1:93-cv-00655-MMS

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Filed 08/21/2007

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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) 307-0277 (202) 307-0972

Washington, D. C. 20530

June 21, 2007

Via Facsimile & U.S. Mail Harry J. Kelly, Esq. Nixon Peabody LLP 401 Ninth St., N.W. Suite 900 Washington, D.C. 20004
Re:

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 to confirm our discussion yesterday about upcoming depositions in the Anaheim Gardens and Algonquin Heights cases. We agreed several weeks ago that deposition discovery would begin during the week of June 25, 2007. I had in fact proposed an earlier start date. On June 12, 2007, you provided a list of preferred locations for the depositions to be taken and, three days later, I served deposition notices for five depositions (Pine Crest Company, Glenview Gardens LP, Dolly Ann Apartments LP, Indian Head Manor LP, and Emory Grove LP) during the week of June 25, 2007. Based upon your statement that the Rule 30(b)(6) deponents for these plaintiffs will be unavailable for all but two days next week, I have reluctantly agreed to defer the depositions of Pine Crest, Glenview Gardens and Indian Head Manor, and move the deposition of Emory Grove from Friday, June 29, 2007, to Thursday, June 28, 2007. A revised deposition notice is enclosed. As you are well-aware~ the Anaheim Gardens and Algonquin Heights plaintiffs have asserted claims with respect to 71 low-income housing projects and the Government intends to take deposition discovery on ripeness with respect to about 50 of these projects. Given that discovery closes at the end of August 2007, we will need to complete about one deposition each business day from now to the end of August. This will require your cooperation and diligence, which you have assured me will be provided. Yesterday, I provided you a proposed schedule that completes theGovernment's deposition discovery by August 31, 2007. You indicated that you would discuss this proposed schedule with your clients so that any desired adjustments can be addressed promptly.

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-2Additionally, I explained that my understanding based upon the complaints, the plaintiffs' representations to the Court, and prior rulings by the Court, is that the plaintiffs no longer contend that Government administrative .delay. effected a taking. The plaintiffs' regulatory taldng claims are based upon the effect of the Preservation statutes as applied to their respective low, income housing projects. During our discussion, you stated that you would confirm in writing that this understanding is correct (or incorrect) by the end of this week. It is essential that we. promptly obtain a confirmation of plaintiffs' position concerning administrative delays as this has the potential to affect significantly the time required to conduct the upcoming depositions in these matters. ° I look forward to hearing back from you. Very truly yours,

David A. Harrington Trial Attorney Commercia! Litigation Branch

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IN THE uNITED STATES COURT OF FEDERAL CLAIMS ALGONQUIN HEIGHTS, et al., Plaintiffsl.
go

THE UNITED STATES, Defendant.

) ) ) ) ) ) ) ) ).

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

RULE 30(b)(6) NOTICE OF DEPOSITION Please take notice that, pursuant to Rule 30(b)(6) of the Rules of the Court of Federal Claims, defendant, the United States, will take the deposition of plaintiff, Emory Grove LP d/b/a Willow Creek Apartments, upon oral examination before an officer authorized by law to administer oaths, commencing at 1100 L Street, N.W., Washington, D.C., at 9:30 a.m., on June 28, 2007, and continuing from day to day until completed. P-ur-suant to Rule 30(b)(6), you shall designate the most knowledgeable person or persons to testify upon its behalf as to the following subject matter: 1. All of your interactions with HUD pursuant to, or in accordance with, the Emergency Low-Income Housing Preservation Act ("ELIHPA"), including, but not limited to, the filing of notices of intent with HUD, the submission of preservation appraisals, the determination of preservation values, the submission of plans of action to HUD, and HUD's response tosubmitted plans of action submitted by plaintiff. 2. All of your interactions with HUD pursuant to, or in accordance with, the LowIncome Housing Preservation and Resident Homeownership Act ("LIHPRHA"),

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including, but not limited to, the filing of notices of intent with HUD, the submission of preservation appraisals, the determination of preservation values, the submission of plans of action to HUD, .and HUD's response to submitted plans of action submitted by plaintiff. All actions taken by you to pursue and exhaust the administrative process established by ELIHPA and LIHPRHA (dollectively, the "Preservation Statutes"). The outcdme of the administrative process established by the Preservation Statutes; e.g., sale to a qualified purchaser, execution of a use agreement, or prepayment. The actions taken by you, or performed on your behalf, to consider, assess or otherwise evaluate the options available under the Preservation Statutes.
o

Your communications with HUD concerning or relating to the possibility of prepaying the Government-insured mortgage on Willow Creek Apartments. The bases for your contention that it was futile to apply for HUD permission to prepay the mortgage on Willow Creek Apartments pursuant to the Preservation Statutes. The date on which you would have been eligible to prepay the Governmentinsured mortgage on Willow Creek Apartments but for the Preservation. Statutes. PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director

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Mo

Assistant Director

.DAVID A. 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
June 2!, 2007 Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on this 7_i ~ day of June 2007, I caused to be delivered by U.S. mail theforegoing Rule 30(b)(6) Notice of Deposition to:

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

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IMPORTANT: This facsimile is intended only for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected from disclosure under applicable .law. If the reader of this transmission is not the intended recipient or the employee or agent responsible for delivering the transmission to the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this transmission or it'~ contents is strictly prohibited. If you have received this transmission in error, please notify us by telephoning and return the original transmission to us at the address given below.

FROM:

Department of Justice Civil Division Commercial Litigation Branch 1100 L Street, N.W. Washington, D.C. 20530 Fax No. Voice No. (202) 616-0465 (202) 307-0277

SENT BY: TO: DATE:

David A. Harrington Harry Kelly, Esq. Fax. No.: (202) 585-8080 June 21, 2007

NUMBER OF PAGES SENT (INCLUDING COVER PAGE): 7 NOTES: Anaheim Gardens, et al. v. United States, No. 93-655 (Fed. C1.); Algonquin Heights, et al. v. United States, No. 97-582 (Fed. C1.).

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IMPORTANT: This facsimile is intended only for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected fi'om disclosure under applicable,law. If the reader of this transmission is not the intended recipient or the employee or agent responsible for delivering the transmission to ~he intended recipient, you ar.e hereby notified that any dissemination, distribution, copying or use of this transmission or it's contents is strictly prohibited. If you hav~ received this transmission in error, please notify us by telephoning and return the original transmission to us at the address given below.

FROM:

Department of Justice Civil Division Commercial Litigation Branch 1100 L.Street, N.W. Washington, D.C. 20530 Fax No. Voice No. ¯

(202) 616-0465 (202) 307-0277

SENT BY: TO: DATE:

David A. Harrington Alice A. Peterson, Esq. Fax. No.: (617) 565-7337 June 21, 2007

NUMBER OF PAGES SENT (INCLUDING COVER PAGE): 7 NOTES: Algonquin Heights, et al. v. United States, No. 97-582 (Fed. C1.).

Case 1:93-cv-00655-MMS

Document 163-3

Filed 08/21/2007

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IMPORTANT: This facsimile is intended only for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected from disclosure under applicable law. If the reader of this transmission is not the intended recipient or the emplo)ee or agent responsible for delivering the transmission to the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this transmission or it's contents is strictly prohibited. If you have received this transmission in error,please notify us by telephoning and remm the original transmission to us at the address given below.

FROM:

Department of Justice Civil Division Commercial Litigation Branch 1100 L Street, N.W. Washington, D.C. 20530 Fax No. Voice No. (202) 616-0465 (202) 307-0277

SENT BY: TO: DATE.:

David A. Harrington Terri L. Roman, Esq. Fax~ No.: (202) 708-3351 June 21, 2007

NUMBER OF PAGES SENT (INCLUDING COVER PAGE): 7 NOTES: Anaheim Gardens, et al. v. United States, No. 93-655 (Fed. C1.).

Case 1:93-cv-00655-MMS Document 163-3 Filed 08/21/2007 *******~** ~COMM. JOURNAL= ~******~*~*~**~** DATE JUN'21=200T ***~* TIME 12:39
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202 30? 0972- *********

IMPORTANT: This facsimile is intendgl only for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected from disclosure under applicable law. If" the reader of this transmission is not the intended rccipbnt or the emp!oy~ or agent responsible for delivering the tmnsmlssion to the intended recipient, yea ~e hereby notified that any dissemination, distribution, copying or use of this transmission or it'~ contents is strictly prohibited. If you have received this transmission in error, please notify us _by_telephoning and remm the original transmission to us ac the address given below.

FROM:

Department of Justice Civil Division Commercial Litigation Branch 1100 L Street, N.W, Washington, D.C. 20530

Fax No, (202) 616-0465 Voice No. (202) 307-0277
SENT BY: David A. Harrington

TO:
DATE:

Harry Kelly, Esq. Fax. No.: (202) 585-8080
Jun~ 21, 2007

NUMBER OF PAGES SENT (INCLUDING COVER PAGE): 7

NOTES:

Anaheim Gardens, et at v. United Stales, No. 93-655 (Fed, C1.); Algonquin Heights, et al. v. United State~, No. 97-582 (Fed. CI.).