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

Case 1:06-cv-00115-SGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

DANNY C. SIMONS AND SALLY J. SIMONS, Plaintiffs, v. THE UNITED STATES, Defendant.

) ) ) ) No. 06-115C ) (Judge Braden) ) ) ) )

DEFENDANT'S RESPONSE TO THE SIMONS' RCFC 59 AND 60 MOTION FOR CLARIFICATION, AMENDMENT AND RECONSIDERATION/REVERSAL OF THE COURT'S NOV. 29, 2006 ORDER OF DISMISSAL Defendant respectfully submits this response to the Simons' motion for clarification, amendment and reconsideration/reversal of the Court's November 29 [sic], 2006 order of dismissal. The Simons invoke Rules 59 and 60 of the Rules of the Court of Federal Claims as the basis of their motion. However, the Simons' reliance upon RCFC 60 is in error. RCFC 60, like Rule 60 of the Federal Rules of Civil Procedure, provides that the Court "may relieve a party or a party's legal representative from a final judgment, order or proceeding ..." RCFC 60(b) (emphasis added). Here, the Court has not entered a final judgment or order. The circuit courts of appeal have repeatedly held that a party may not rely upon Rule 60(b) when it seeks reconsideration of a non-final order. E.g., Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571 (7th Cir. 2006); Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 880 (9th Cir. 2000). The Simons may seek reconsideration pursuant to RCFC 59. Rule 59 prohibits the nonmoving party from filing a response to a motion for reconsideration unless requested by the court. For this reason, and because we have responded to the Simons' arguments in several

Case 1:06-cv-00115-SGB

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earlier briefs, we will not file a response to the Simons' motion unless requested to do so by the Court.1 Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/Mark A. Melnick MARK A. MELNICK Assistant Director

Dated: December 11, 2006

s/Michael N. O'Connell MICHAEL N. O'CONNELL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L St., NW Washington, D.C. 20530 Tel: (202) 307-0282 Attorneys for Defendant

With respect to the Simons' assertion on page 2 of their motion that "the Court promised the Plaintiffs a hearing on their claims," defendant is not aware of any such "promise" by the Court to the Simons. -2-

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Case 1:06-cv-00115-SGB

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Certificate of Filing I hereby certify that on this11th day of December, 2006, a copy of the Defendant's Response to the Simons' Rcfc 59 and 60 Motion for Clarification, Amendment and Reconsideration/Reversal of the Court's Nov. 29, 2006 Order of Dismissal 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/Michael N. O'Connell Michael N. O'Connell