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

Case 1:06-cv-00111-CCM

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Filed 11/13/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS JOHN DOE and JANE ROE for themselves and on behalf of all others similarly situated, Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

No. 06-111C (Judge Christine O.C. Miller)

DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION FOR LEAVE TO FILE THEIR REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO DISMISS THE COMPLAINT WITHOUT PREJUDICE On October 26, 2006, plaintiffs belatedly filed a document styled "motion for leave to file their reply to defendant's response to plaintiffs' motion to dismiss the complaint without prejudice." While styled as "a motion for leave to file," the document also includes plaintiffs' reply to defendant's response.1 Plaintiffs' motion/reply includes plaintiffs' specific, clear, and unambiguous agreement that the instant case should be dismissed with prejudice. Plaintiff's motion/reply p. 4. Defendant understands plaintiffs' "motion/reply" to be plaintiffs' final comment upon this matter, and not a request to file an additional reply or any other document in this case. Given this understanding, and plaintiffs' conclusion, concession, and agreement that the instant case should be dismissed with prejudice, defendant does not oppose plaintiffs' request for leave to file the "reply" contained in plaintiffs' motion/reply.

Plaintiffs' recent motion is not merely a request for permission to file a reply at a later date, nor is it a request for permission to file a separate document with the Court. The reply that plaintiffs seek to file is actually contained within the body of plaintiffs motion for leave, and thus, it is a motion and a reply. Accordingly, we will refer to "plaintiffs' motion for leave to file their reply to defendant's response to plaintiffs' motion to dismiss the complaint without prejudice" as plaintiffs' "motion/reply."

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Plaintiffs' central point appears to be that they have little choice but to consent to a dismissal with prejudice because the Court will not permit them to take discovery. But the fact is that plaintiffs are not entitled to discovery because plaintiffs' claim is based upon the content of the Curfew Orders, and associated "Talking Points," both now before the Court. Plaintiffs remaining comments concern their prediction of their own success upon the merits and generalized disparaging of the Court's decision. While defendant completely disagrees with plaintiffs' prediction and their comments upon the Court's decision, we do not believe a further response is warranted at this time because plaintiffs agree the case should be dismissed with prejudice. At bottom, we do not object to the filing of plaintiffs' motion/reply, and given that there is no opposition, but instead, agreement that the instant case is now ripe for dismissal with prejudice, we respectfully renew our request that the matter be dismissed with prejudice. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director

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OF COUNSEL: THOMAS M. RAY Senior Trial Attorney U.S. Army Legal Services Agency Litigation Division Arlington, VA s/Douglas K. Mickle DOUGLAS MICKLE Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L St., N.W. Washington, D.C. 20530 Tel: (202) 307-0383 Fax: (202) 353-7988 Attorneys for Defendant

November 13, 2006

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CERTIFICATE OF SERVICE I hereby certify that on November 13, 2006, a copy of the foregoing "DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION FOR LEAVE TO FILE THEIR REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO DISMISS THE COMPLAINT WITHOUT PREJUDICE," 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/ Douglas K. Mickle Douglas K. Mickle