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

Case 1:07-cv-00174-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS PENNSAUKEN SENIOR TOWERS URBAN RENEWAL ASSOCIATES, LLC ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

and HOUSING AUTHORITY OF THE TOWNSHIP OF PENNSAUKEN Plaintiffs, v. THE UNITED STATES, Defendant. HADDON HOUSING ASSOCIATES, LIMITED PARTNERSHIP, ET AL., Plaintiffs, v. THE UNITED STATES, Defendant.

No. 07-174C (Judge Lettow)

No. 07-646C (Judge Lettow)

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION TO CONSOLIDATE Pursuant to Rules 42 and 42.1 of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully opposes plaintiffs' motion to consolidate Pennsauken Senior Towers Urban Renewal Associates, LLC, et al. v. United States, Case Number 07-174C (Fed. Cl.), with Haddon Housing Assoc., et al. v. United States, Case Number 07-646C (Fed. Cl.), because these cases involve different plaintiffs and different Housing Assistance Payment ("HAP") contracts.

Case 1:07-cv-00174-CFL

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The Court possesses broad discretion to consolidate cases before it. Wolfchild v. United States, 72 Fed. Cl. 511, 526 (2006) (citations omitted). In determining whether to consolidate, the Court weighs the risks of prejudice and possible confusion against "the risk of inconsistent adjudication of common factual and legal issues, the burden on parties, witnesses, and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives." Boston Edison Co. v. United States, 67 Fed. Cl. 63, 65-66 (2005) (quotations omitted). Plaintiffs posit that the cases are more similar than they really are. There are important distinctions between these two cases that counsel against consolidation: (1) the plaintiffs are different; (2) the rent adjustment provisions of the HAP contracts are different; and (3) while the private property owners are the same in both cases, privity of contract exists only between the public housing authorities and defendant. See Brown Park Estates-Fairfield Dev. Co. v. United States, 34 Fed. Cl. 464 (1995), aff'd, 127 F.3d 1449 (Fed. Cir. 1997) (holding that the Court lacks jurisdiction to entertain claim of private party that entered into contract with public housing authority in its claim against the Government). Plaintiffs also urge that the same judge should preside over its cases in order to "not produce inconsistent results." Pl. Mot. at 2. Plaintiffs are mistaken. There are already inconsistent results regarding the application of the Automatic Adjustment Factors, and whether the Government breached the contract by applying a one-percent reduction for non-turnover tenants. Compare Statesman II Apartments, Inc., v. United States, 66 Fed. Cl. 608, 625 (2005) (finding that one-percent adjustment was a further breach of HAP contracts), with Park Properties Assoc., et al., v. United States, 74 Fed. Cl. 264, 274 (2006) (one-percent reduction did

Case 1:07-cv-00174-CFL

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not effectuate further breach of HAP contracts). Accordingly, "consistency" alone should not overcome the differences between these two cases. For these reasons, we respectfully request that the Court deny plaintiffs' request for consolidation. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director s/Brian M. Simkin BRIAN M. SIMKIN KIRK T. MANHARDT Assistant Directors s/Armando A. Rodriguez-Feo ARMANDO A. RODRIGUEZ-FEO s/Stephen C. Tosini STEPHEN C. TOSINI Trial Attorneys Department of Justice Civil Division Commercial Litigation Branch Attn: Classification Unit, 8th Floor 1100 L St., N.W. Washington, D.C. 20530 Tel: 202-307-3390 Fax: 202-514-8624 Attorneys for Defendant

October 1, 2007

Case 1:07-cv-00174-CFL

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CERTIFICATE OF FILING I hereby certify that on this 1st day of October, 2007, a copy of the foregoing "DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION TO CONSOLIDATE" 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 Rodriguez-Feo