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

Case 1:07-cv-00884-LJB

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In the United States Court of Federal Claims
) ) ) ) ) ) ) ) ) No. 07-884C ) Judge Lynn J. Bush ) ) )

SOUTHEAST RESTORATION, INC. d/b/a AFTERDISASTER 1130 West Vandalia Road Greensboro, North Carolina 27406-5606 Plaintiff, v. THE UNITED STATES, Defendant.

PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT Pursuant to RCFC 7.2(c), Southeast Restoration, Inc. d/b/a AFTERDISASTER (AFTERDISASTER), a North Carolina corporation and a small business, Plaintiff herein, hereby files this Reply to Defendant's Opposition to Plaintiff's Motion for entry of a final Partial Summary Judgment in the amount of $2,248,912 plus Contract Disputes Act interest, 41 U.S.C. § 611, from the date of receipt of Plaintiff's certified Claim of May 16th, 2007.

Case 1:07-cv-00884-LJB

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In support of this Reply to Defendant's Opposition to Plaintiff's Motion for Partial Summary Judgment Plaintiff AFTERDISASTER shows to the Court: A. The issue is not, as Defendant would have it, whether United States Department of Veterans Affairs Contracting Officer Brenda Stewart's Final Decision of Thursday, April 24th, 2008 is entitled to deference. Defendant's Opposition, at 5, July 28th, 2008. Rather, the issue is whether Defendant has discharged its burden under RCFC 56(e) of "set[ting] forth specific facts showing that there is a genuine issue for trial." (Emphasis added). Mark G. Abbey v. United States, Fed. Cl. No. 07-272C, July 31st, 2008, 2008 U.S. Claims LEXIS 207, *9-*11. Judge Sweeney has aptly summarized the law on this point: The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp., 477 U.S. at 323, and may discharge its burden by "pointing out . . . that there is an absence of evidence to support the nonmoving party's case," id. at 325. The moving party is not required to support its application with affidavits, but instead may rely solely on the pleadings, depositions, answers to interrogatories, and admissions. Id. at 324. The nonmoving party then bears the burden of showing that there are genuine issues of material fact for trial, id., and must come forward with "specific facts showing that there is a genuine issue for trial," RCFC 56(e). To that end, the nonmoving party must go beyond the pleadings and support its opposition with affidavits or with depositions, answers to interrogatories, and admissions. Celotex Corp., 477 U.S. at 324.

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Case 1:07-cv-00884-LJB

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D & D Landholdings v. United States, Fed. Cl. No. 06-877, June 25th, 2008, 2008 U.S. Claims LEXIS 186, *43-*44. (Emphasis added). B. The essence of Defendant's Opposition is that Defendant is telling this Court that a remand in a Contract Disputes Act Case (as here) can never be proper because a Contracting Officer's Final Decision on a remand ordered by this Court can always be challenged. This is not the law; RCFC 52.2 contains no exception for the Contract Disputes Act. Defendant has no specific facts to challenge United States Department of Veterans Affairs Contracting Officer Brenda Stewart's Final Decision of Thursday, April 24th, 2008, and this, not the standard of review, is the reality here. Here there is nothing in the Defendant's Answer; or in the Joint Preliminary Status Report filed on July 18th, 2008; or in Defendant's Opposition which meets Defendant's burden under RCFC 56(e). Pointing to the standard of review under 41 U.S.C. § 605(a) is not the response required by RCFC 56(e). Plaintiff asks the Court to now enter a final partial summary judgment against Defendant, awarding Plaintiff $2,248,912 plus Contract Disputes Act interest, 41 U.S.C. § 611, from the date of Defendant`s receipt of Plaintiff's certified Contract Disputes Act Claim of May 16th, 2007.

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Case 1:07-cv-00884-LJB

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Respectfully submitted, /s/ Cyrus E. Phillips IV Cyrus E. Phillips IV District of Columbia Bar Number 456500, Virginia State Bar Number 03135 August 11th, 2008 1828 L Street, N.W., Suite 660 Washington, D.C. 20036-5112 Telephone: Facsimile: Electronic Mail: (202) 466-7008 (202) 466-7009 [email protected]

Attorney of record for Plaintiff, Southeast Restoration, Inc. d/b/a AFTERDISASTER.

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Case 1:07-cv-00884-LJB

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CERTIFICATE OF SERVICE I hereby certify, under penalty of perjury, that on Monday, August 11th, 2008 a true and complete copy of this Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion for a final Partial Summary Judgment was filed electronically via the Court's Electronic Case Filing System, through which notice of this filing will be sent to: Armando A. Rodriguez-Feo, Esq. Electronic Mail: [email protected] Attorney of record for Defendant, United States Department of Veterans Affairs. /s/ Cyrus E. Phillips IV Cyrus E. Phillips IV

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