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

Case 1:07-cv-00884-LJB

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Filed 01/07/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SOUTHEAST RESTORATION, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-884C (Judge Bush)

JOINT MOTION FOR A STAY OF PROCEEDINGS AND REMAND Pursuant to Rule 52.2 of the Rules of the United States Court of Federal Claims ("RCFC"), plaintiff, Southeast Restoration, Inc., and defendant, the United States, respectfully request that the Court grant a stay of proceedings in this case for 75 days from the date of its order and remand the cause to the Contracting Officer for a decision on plaintiff's May 16, 2007 claim, pursuant to the Contract Disputes Act, 41 U.S.C. §§ 601-613 (2007) ("CDA"). Section 605(c)(5) of the CDA provides the Court with discretion to enter a stay when in a case such as this one, "suit is . . . commenced in the absence of a prior decision by the contracting officer." 41 U.S.C. § 605(c)(5). Moreover, "the Court may issue a stay to obtain a final decision when the Court believes that such a decision would be beneficial to the parties and assist resolution of the matter." United Partition Sys., Inc. v. United States, 59 Fed. Cl. 627, 641-42 (2004); RCFC 52.2. This case is a companion to CCS Industrial Sales, Inc. V. United States, No. 07-337C (Fed. Cl.), which is currently pending before this Court, and primarily involves plaintiff's claim for invoices generated as a result of Hurricane Katrina cleanup work at the Veterans' Affairs ("VA") Medical Center in New Orleans, Louisiana. On May 16, 2007, plaintiff submitted its certified claim to the contracting officer. The contracting officer never issued a final decision. On December 18, 2007, plaintiff filed its complaint in this Court. Additionally, plaintiff filed a motion for provisional relief on December 27, 2007. The Government contends that the

Case 1:07-cv-00884-LJB

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latter motion is premature, but, in any event, the parties agree to request that the Court hold any pending motions in abeyance pending the contracting officer's decision. The VA Office of the Inspector General, Office of Contract Review, is in the process of auditing plaintiff's claims and will make its findings in a report similar to its September 20, 2007 investigation concerning CCS Industrial Services. According to the auditor, the report should be completed by the end of January, 2008, and a copy will be furnished to plaintiff. Such a report will materially advance the parties' understanding of the relevant facts and of the issues requiring resolution. The contracting officer will then have an opportunity to formally resolve the issues. Both parties believe that obtaining a formal analysis of plaintiff's claims through a contracting officer's final decision might resolve these issues and, in any case, can further refine the dispute and develop a basis for settlement or more formal litigation. Accordingly, in the interest of conserving judicial resources, and the time and expense of the parties, the parties respectfully request that the Court stay the proceedings in the case, and enter an order staying this matter for 75 days from the date of its order, directing the contracting officer to issue a final decision upon plaintiff's claim within that time. The parties further propose that within 14 days from the conclusion of the stay, they submit a joint status report recommending further proceedings in this matter. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director

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s/ Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director s/ Cyrus E. Phillips, IV CYRUS E. PHILLIPS, IV 1828 L St., NW, Suite 660 Washington, D.C. 20036-5112 Tel: (202) 466-7008 Fax: (202) 466-7009 s/ Armando A. Rodriguez-Feo ARMANDO A. RODRIGUEZ-FEO Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L St., NW Washington, D.C. 20530 Tel: (202) 307-3390 Fax: (202) 514-8624 Attorneys for Defendant

Attorney for Plaintiff January 7, 2008

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CERTIFICATE OF FILING I hereby certify that on this 7th day of January, 2008, a copy of the foregoing "JOINT MOTION FOR A STAY OF PROCEEDINGS AND REMAND" 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. The parties may access this filing through the Court's system.

s/ Armando A. Rodriguez-Feo