Free Joint Status Report - District Court of Federal Claims - federal

Case 1:08-cv-00021-BAF

Document 55

Filed 08/19/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS Bid Protest

_______________________________________ Savantage Financial Services, Inc.,

) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) _______________________________________)

No. 1:08-cv-21 (Judge Futey)

PLAINTIFF'S AND DEFENDANT'S JOINT STATUS REPORT In accordance with the Court's Order, dated August 5, 2008, Plaintiff Savantage Financial Services, Inc. ("Plaintiff" or "Savantage") and Defendant hereby submit this joint status report regarding their efforts to settle the pending Motion For Attorneys' Fees And Expenses Pursuant To The Equal Access To Justice Act ("EAJA Motion") filed by Savantage. The Court directed the parties to attempt to reach an agreement on the issue of Plaintiff's eligibility, whether Defendant's administrative and litigation positions were substantially justified, and an agreed amount of fees and expenses payable to Savantage if the parties reached an agreement on the first two issues. Unfortunately, the parties were unable to reach agreement on these issues. On August 14, 2008, Plaintiff's counsel and Chief Financial Officer, Ms. Moore, met with Defendant's counsel and financial analyst with the Department of Justice, Ms. Zimmer, to discuss Defendant's concerns regarding the supporting documentation submitted by

Case 1:08-cv-00021-BAF

Document 55

Filed 08/19/2008

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Savantage in support of its claim of eligibility for recovery of fees and expenses under the statute. Ms. Zimmer asked Ms. Moore numerous questions regarding what the Government deemed to be considerable "property distributions" shown on line 16d of the 2007 Form 1120S, which is the IRS form used by S corporations. Ms. Moore explained that distributions were made to Savantage's sole shareholder throughout the year primarily to enable the owner to meet her tax obligations; they were routine; and they were consistent with distributions made in 2006. Defendant's position is that its discussions with Plaintiff's counsel and Ms. Moore, although informative, did not result in the presentation of any conclusive proof that Savantage is EAJA eligible. Accordingly, the parties were unable to agree that Savantage has met its burden of showing that it meets EAJA's size threshold. Moreover, Defendant continues to maintain, as set forth in the briefs submitted to this Court, that the Government's administrative and litigation positions were substantially justified.

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Plaintiff and Defendant did not extensively discuss quantum since they were unable to agree on the "eligibility" and "substantial justification" issues. Respectfully submitted,

s/ Timothy Sullivan Timothy Sullivan 1909 K Street, N.W., 6th Floor Washington, D.C. 20006 (202) 585-6930 (tel.) (202) 508-1028 (fax) Attorney of Record for Plaintiff Of Counsel: Katherine S. Nucci Thompson Coburn LLP 1909 K Street, N.W., 6th Floor Washington, D.C. 20006 (202) 585-6900 (tel.) (202) 585-6969 (fax) Jon W. van Horne 18222 Flower Hill Way #112 Gaithersburg, MD 20879

GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director s/ Bryant G. Snee BRYANT G. SNEE Deputy Director s/ A. Bondurant Eley A. BONDURANT ELEY Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 (202) 616-8254 Attorneys for Defendant

Dated: August 19, 2008

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CERTIFICATE OF FILING I hereby certify that on the 19th day of August 2008, a copy of "Plaintiff's And Defendant's Joint Status Report" 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/ Timothy Sullivan

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