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

Case 1:07-cv-00348-EGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ESSEX ELECTRO ENGINEERS, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-348C (J. Bruggink)

DEFENDANT'S MOTION FOR PUBLICATION Pursuant to Rule 59 of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests the Court to reissue its opinion and order in this case, dated February 20, 2008, for publication by commercial reporting services, to facilitate public access to the opinion's discussion of several novel and significant legal issues. The Court's analysis of the relationship between the settlement agreement at issue in this case and the Prompt Payment Act (PPA), 31 U.S.C. §§ 3901-3907, is particularly significant. Essex Electro Engineers, Inc. v. United States, No. 07-348C, slip op. at 9-12 (Fed. Cl. Feb. 20, 2008) ("[The] intentional use of imprecise language in the settlement agreement as to the payment date is, we believe, fundamentally inconsistent with the underlying assumption of the PPA."). As the Court is aware, there are no other published decisions located by the parties addressing the effect of settlement agreement language on the availability of PPA interest penalties. Contracting officers throughout the Government ­ not to mention contractors themselves ­ clearly would benefit by understanding how settlement agreements must be worded either to avoid paying PPA interest or to obtain such interest, assuming arguendo that the PPA applies to settlement payments. See Declaration of B. Miller at ¶ 6 (attached as Exhibit A).

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Second, as far as we are aware, this is the Court's first decision that specifically addresses the PPA's "accelerated payment methods" codified at 5 C.F.R. § 1315.5 and FAR 32.903. Essex, slip op. at 11-12. In that regard, this decision would put contractors on notice that an agency must specifically permit accelerated payments in the settlement agreement, or otherwise authorize such payments, in order for PPA interest to accrue prior to the usually applicable 30 day payment deadline for proper invoices. Finally, the Court's decision in this case is important because it confirms that a generally worded claim release will bar a contractor's claim for PPA interest ­ again, assuming that the PPA applies ­ to the extent the PPA claim "seeks interest on the same principal amount agreed upon to resolve the underlying CDA claim." Essex, slip op. at 13. Publication is appropriate when a decision "adds significantly to the body of law." Seligson v. OPM, 878 F.2d 369, 370 (Fed. Cir. 1989) (also referring to "legal opinions that really matter"). This Court's recent order and opinion meets that standard. Indeed, there is at least one other case currently pending before this Court involving a claim for PPA interest on a settlement agreement. See Sarang Corp. v. United States, Fed. Cl. 06-506C. To accurately reflect the development of the case law in this area, and to give other litigants, potential litigants, and judges the benefit of the guidance in the decision in this case, it is appropriate that the Court's recent opinion in this case join the other few decisions regarding the PPA in the Court of Federal Claims Reporter, and in the databases of the services that distribute the Court's decisions electronically.

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For these reasons, we respectfully request the Court to reissue its February 20, 2008 opinion and order as a published decision.

Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Brian M. Simkin BRIAN M. SIMKIN Assistant Director s/ Matthew H. Solomson MATTHEW H. SOLOMSON Trial Attorney, Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 305-3274 Fax: (202) 514-8624

February 22, 2008

Attorneys for Defendant

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EXHIBIT A

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