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

Case 1:06-cv-00231-EJD

Document 7

Filed 04/17/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________________________________ ) EDWARD GRINELL ) ) Plaintiff, ) ) v. ) ) UNITED STATES POSTAL SERVICE, ) ) Defendant. ) ______________________________________ )

06-231C (Chief Judge Damich)

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO STAY Pursuant to Rule 7 of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully opposes plaintiff's motion to stay this case. Plaintiff, Edward Grinell, requests that this Court stay this case for six months to allow him to pursue his claim before the United States Postal Service Board of Contract Appeals ("BCA"). Pl. Mot. 2.1 A stay, however, would be inappropriate at this time. First, under the Election Doctrine, Mr. Grinnel may pursue his claim before either the BCA or before this Court, but not both. See National Neighbors, Inc. v. U.S., 839 F.2d 1539, 1542 (Fed. Cir. 1988). Second, it is questionable, from the face of Mr. Grinell's complaint, whether he raises a valid claim under the Contract Disputes Act. See 41 U.S.C. 601 et seq. We intend to explore these issues thoroughly and file an appropriate dispositive motion or an answer to Mr. Grinell's complaint. Our answer is currently due on May 23, 2006. If we determine, in the meantime, that a stay of this case is appropriate, we will confer with opposing counsel and take appropriate action.

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"Pl. Mot. __" refers to "Plaintiff's Motion to Stay Proceedings."

Case 1:06-cv-00231-EJD

Document 7

Filed 04/17/2006

Page 2 of 3

CONCLUSION For these reasons, the United States opposes Mr. Grinnel's motion to stay proceedings in this matter. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director /s Brian M. Simkin BRIAN M. SIMKIN Assistant Director /s Sean B. McNamara SEAN B. McNAMARA Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, NW Washington, D.C. 20530 Tel. (202) 305-7573 Fax. (202) 514-8624 April 17, 2006 Attorneys for Defendant

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Case 1:06-cv-00231-EJD

Document 7

Filed 04/17/2006

Page 3 of 3

CERTIFICATE OF FILING I hereby certify that on this 17th day of April, 2006, a copy of the foregoing "DEFENDANT'S RESPONSE TO PLAINTIFF'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. The parties may access this filing through the Court's system.

s/ Sean B. McNamara