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

Case 1:07-cv-00016-LMB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST M&A TECHNOLOGIES, INC., Plaintiff, v. UNITED STATES, Defendant. and STEEL CLOUD, INC., Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 07-16C (Judge Baskir)

DEFENDANT'S MOTION TO STAY Pursuant to Rule 7 of the Rules of this Court ("RCFC"), defendant, the United States, respectfully requests that this Court stay proceedings upon the merits pending resolution of our motion to dismiss for lack of jurisdiction. A stay is in the Court's and the parties' interests because it may obviate the need to proceed upon the merits. We have contacted counsel for the plaintiff, M&A Technologies, Inc. ("M&A"), who states that M&A opposes this motion. We have also contacted counsel for the defendant-intervenor, SteelCloud, Inc., who consents to this motion. On February 7, 2007, we notified the parties and the Court that the

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United States Postal Service ("Postal Service") intended to take corrective action. On February 8, 2007, the Postal Service took the intended corrective action (which included a termination of the contract at issue and a statement of intention to re-procure fully the solicitation). Also on February 8, 2007, we filed a motion to dismiss proceedings in this Court as moot, because all of the relief requested in the complaint had been provided. On the following day, M&A filed its motion for judgment upon the agency record. Now, a stay of proceedings upon the merits is in the interests of judicial economy. A stay to allow the Court to determine its jurisdiction may very well obviate the need to proceed further upon the merits. Specifically, if the Court determines that the case is moot and that it lacks jurisdiction, it has no other available option but to dismiss the entire case. Chaney v. United States, __ Fed. Cl. __, 2007 WL 401255 (citing RCFC 12(h)(3)). Additionally, there is no need to proceed simultaneously with our motion to dismiss and M&A's motion for judgment upon the agency record because there is no longer any need for an expedited adjudication of the merits. Specifically, in our initial telephonic status conference with the Court, held on January 17, 2007, we informed the Court that the Postal

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Service was willing voluntarily to stay performance upon the contract until the Court issued its decision in the protest. To that end, the Court issued a briefing schedule that ensured a quick resolution by the end of March 2007. Since then, the Postal Service has canceled the existing contract and intends to take full remedial action by issuing the new solicitation shortly. Therefore, to the extent that M&A contends there remain existing issues for the Court to resolve (a contention with which we disagree), there is no need for the Court to resolve those issues according to the original scheduling order. If the Court determines to proceed with both the merits and the jurisdictional briefing simultaneously, we respectfully request that we be permitted to file our response to M&A's motion for judgment upon the agency record within 14 days of the Court's order upon this motion. For these reasons, we respectfully request that this Court stay consideration of the merits until the jurisdictional issue has been resolved.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Acting Director

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/s Bryant G. Snee BRYANT G. SNEE Assistant Director

OF COUNSEL: MICHAEL KIELY Law Department United States Postal Service Washington, D.C. s/ Claudia Burke CLAUDIA BURKE Trial Attorney Department of Justice Civil Division Commercial Litigation Branch 1100 L St., N.W. ATTN: Classification Unit 8th Floor Washington, D.C. 20530 Telephone: (202) 353-9063 Facsimile: (202) 514-7965

February 14, 2007

Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on February 14, 2007, a copy of the foregoing "DEFENDANT'S MOTION TO STAY" 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/ Claudia Burke Claudia Burke