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

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No. 06-111C (Judge Christine O.C. Miller) __________________________________________________________________ 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, Defendant, ____________________________________________________________ DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR AN EXTENSION OF THE CONTINUANCE TO PERMIT PLAINTIFFS TO CONDUCT DISCOVERY __________________________________________________________________ PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director STEVEN J. GILLINGHAM Assistant Director OF COUNSEL: MICHAEL E. HOKENSON Lieutenant Colonel U.S. Army Legal Services Agency Litigation Division Arlington, VA DOUGLAS K. MICKLE Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0383 Fax: (202) 353-7988 Attorneys For Defendant

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TABLE OF CONTENTS PAGES DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR AN EXTENSION OF THE CONTINUANCE TO PERMIT PLAINTIFFS TO CONDUCT DISCOVERY ............................................................................................................ 1 DEFENDANT'S BRIEF ................................................................................................................ 2 I. Background .................................................................................................................... 2 SUMMARY OF THE ARGUMENT ............................................................................................ 3 ARGUMENT ................................................................................................................................. 5 I. Standard of Review ....................................................................................................... 5 II. Plaintiffs' Complaint Is Based Entirely Upon An Alleged Order To Work - The Curfew Orders - and No Discovery Is Needed For Plaintiffs To Respond To The Legal Arguments Set Forth In The Government's Dispositive Motion Regarding How The Plain Language Of The Curfew Orders Should Be Interpreted .................... 6 A. General LaPorte's Authority To Issue The Curfew Orders Is Not Relevant To Resolve Plaintiffs' Complaint .......................................................................... 7 B. Plaintiffs Have Not Presented Any Credible Information That Would Warrant A Deposition Of General LaPorte To Examine Whether He Was Being Truthful In His Affidavit ............................................................................. 8 C. Verbal Orders Of Sub-Ordinate Commanders And Pronouncements In The Media Are Immaterial To Resolving Whether The Curfew Orders Were Orders To Work ..................................................................................................... 9 D. The Content Of The Input General LaPorte Received From Subordinate Commanders, His Staff, And Republic of Korea Officials Regarding The Talking Points Is Not Material To Deciding If The Plain Language Of The Curfew Orders Required DOD Civilian Employees To Work .............................. 9 E. General LaPorte's Understanding Of Federal Labor Law Is Immaterial To Resolving The Central Issue In This Case: Were The Curfew Orders Tantamount To Work That Is Compensable ........................................................ 10 F. Discovery Is Not Needed To Disprove General LaPorte's Contention That The Terms Of The Curfew Supported Readiness ................................................ 10 -i-

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G. Plaintiffs Have Failed to Produce Any Credible Information That Would Support A Determination By This Court That Discovery Is Warranted To Show That General LaPorte Did Not Have A Duty To Provide For The Safety And Welfare Of DOD Civilian Employees, Military Personnel And Their Family Members Assigned To Korea ........................................................ 12 CONCLUSION ............................................................................................................................ 13

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TABLE OF AUTHORITIES CASES PAGES

Aero Union Corp. v. United States, 47 Fed. Cl. 677 (2000) ....................................................................................................... 5 C.W. Over & Sons v. United States, 44 Fed. Cl. 18 (1999) ......................................................................................................... 5 Catellus Development Corp. v. United States, 26 Cl. Ct. 210 (1992) ......................................................................................................... 3 Fidelity & Deposit Co. of Maryland v. United States, 14 Cl. Ct. 421 (1988) ......................................................................................................... 4 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968) ........................................................................................................... 5 Hoffman v. United States, 894 F.2d 380 (Fed. Cir. 1990) ........................................................................................... 8 International Graphics v. United States, 3 Cl. Ct. 715 (1983) ....................................................................................................................... 3 Judith A. Mansfield v. United States, No. 05-472C, 2006 WL 1836103 (Fed. Cl. June 30, 2006) ............................................... 4 Keebler Co. v. Murray Bakery Products, 866 F.2d 1386 (Fed. Cir. 1989) ......................................................................................... 5 Moore, U.S.A., Inc. v. Standard Register Co., 229 F.3d 1091 (Fed. Cir. 2000), cert. denied 121 S. Ct. 1734 (2001) ......................... 5, 12 Office of Personnel Management v. Richmond, 496 U.S. 414 (1990) ........................................................................................................... 8 Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624 (Fed. Cir. 1984) ..................................................................................... 5, 12 Reliance Insurance Company v. United States, 18 Cl. Ct. 359 (1989) ......................................................................................................... 3

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Simmons Oil Corp. v. Tesoro Petroleum Corp., 86 F.3d 1138 (Fed. Cir. 1996) ........................................................................................... 5 STATUTES 5 C.F.R. § 550.111 ................................................................................................................. 3, 6, 9 10 U.S.C § 164 ............................................................................................................................... 7

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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, Defendant. ) ) ) ) ) ) ) ) ) )

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

DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR AN EXTENSION OF THE CONTINUANCE TO PERMIT PLAINTIFFS TO CONDUCT DISCOVERY Pursuant to the Court's July 31, 2006 order, and Rule 7.2 of the Rules of the United States Court of Federal Claims, defendant, the United States, respectfully submits the following response in opposition to plaintiffs' July 27, 2006 motion to seek a continuance in this matter to permit plaintiffs to conduct discovery.1 As we demonstrate below, plaintiffs' motion fails to establish why discovery is needed to resolve the legal question before the Court: were the fragmentary orders ("FRAGO's") and General Orders ("Curfew Orders") issued by General LaPorte an order to work. Plaintiffs' complaint alleges that these Curfew Orders were an order to work and support their claims to overtime and special pay compensation. The Government's motion for summary judgment simply places these orders before the Court so it can review them to determine if they did order Department of Defense ("DoD") civilian employees in Korea to

We refer to plaintiffs' July 27, 2006 motion, which is entitled "Plaintiffs Motion For An Extension Of The Continuance To Reply To Defendant's Motion For Summary Judgment To permit Plaintiffs To Conduct Discovery, And In The Alternative, For Denial Of Defendant's Motion," as "plaintiffs' motion" or "Pl. Mot." We refer to Mr. Lechner's accompanying affidavit as "Mr. Lechner's affidavit" or "Pl. Aff." 1

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perform overtime work. Accordingly, given that plaintiffs' case is based entirely upon the contents of the Curfew Orders, the Court should stay all discovery in this case pending resolution of a dispositive motion defendant filed on June 2, 2006. DEFENDANT'S BRIEF I. Background Plaintiffs, John Doe and Jane Doe, seeking to represent a putative class of DoD employees assigned to Korea between September 24, 2004 and March 1, 2005, assert that a number of Curfew Orders issued by General LaPorte support their claims to overtime and special pay compensation. Complaint at ¶¶ 2 - 5, 18-23, 26 -27, 44, 48, 53, 57. Because the allegations in plaintiffs' complaint regarding the alleged order to work were based entirely upon the Curfew Orders issued by General LaPorte, we filed a motion for summary judgment, in which we explained that the established curfew was a legitimate force protection measure, enacted as a result of terrorism concerns evidenced by warnings issued by the United States Embassy in Seoul. We showed that the plain language of the Curfew Orders demonstrates that, except for requiring plaintiffs to be in a safe location at night, no other restrictions were placed upon plaintiffs. We explained that as a result of the Curfew Orders, plaintiffs could reside in their homes, visit the homes of family members or acquaintances, use military installation facilities, or stay in hotels. We further demonstrated that the language in the Curfew Orders did not require anyone to maintain any form of communication with their place of employment or to provide any services. We then cited cases holding that conditions far more restrictive than those contained in General LaPorte's Curfew Orders did not qualify as orders to work. Furthermore, we showed that the curfew never exceeded eight hours in length (and was,

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for almost the entire period, only five hours in length), and was in effect only during the customary hours of sleep. Accordingly, the law supports dismissal of plaintiffs' complaint because all of the hours attributable to the curfew were during the customary hours devoted to sleep, and, thus, noncompensible. SUMMARY OF THE ARGUMENT When a dispositive motion is pending, the question of whether to stay discovery depends upon the relevance of any pending discovery requests, whether the facts have been stipulated, and whether further discovery would uncover facts that would aid the party seeking discovery in its opposition to the dispositive motion. Catellus Development Corp. v. United States, 26 Cl. Ct. 210, 213 (1992). In International Graphics v. United States, 3 Cl. Ct. 715, 718 (1983), the court suspended discovery pending resolution of a dispositive motion, because "it would unduly exacerbate the burden on defendant without justification." Thus, where "questions are ripe for adjudication," an order suspending discovery pending disposition of the Government's dispositive motion is proper, where like here, the discovery sought is not relevant to deciding the issue before the Court. See Reliance Insurance Company v. United States, 18 Cl. Ct. 359, 361 (1989). Here, our motion is based upon an analysis of the documentary basis for the complaint. The motion sets forth the following legal issues: (1) whether DoD civilian employees, plaintiffs, were officially "ordered and approved" to perform overtime work in writing pursuant to 5 C.F.R. § 550.111(c) as a result of a curfew order; (2) whether plaintiffs are entitled to overtime pay for complying with the late night curfew restrictions imposed to protect them from harm; (3) whether plaintiffs are entitled to premium pay and other such entitlements by complying with the

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terms of the curfew orders; and (4) whether plaintiffs are entitled to pay during the principal hours that they devoted to sleep. The very documents asserted by plaintiffs in their complaint as providing the basis for their claims are now before the Court. Accordingly, plaintiffs' motion should be rejected. See, e.g., Fidelity & Deposit Co. of Maryland v. United States, 14 Cl. Ct. 421, 423 n.2 (1988) (because defendant's motion to dismiss was based upon the facts alleged in the complaint and its attachments, discovery was not necessary in order for plaintiff to respond to the motion). Plaintiffs assert that Judith A. Mansfield v. United States, No. 05-472C, 2006 WL 1836103 (Fed. Cl. June 30, 2006)(order denying defendant's motion for summary judgment), supports their request for discovery. However, even a casual reading of that decision reveals that in that case, there remained to be discovered a myriad of details to resolve the case. Id. Here, there is no such need, because plaintiffs' claim is based upon the content of the Curfew Orders, and associated "Talking Points," both now before the Court.2 The Government's motion is based upon these very orders. The declaration from General LaPorte only explains their context. But plaintiffs' case stands or falls upon the orders themselves, and plaintiffs' affidavit does not demonstrate otherwise.

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Plaintiffs have alleged that a so-called "Phase III" changed the hours of the curfew on December 23, 2004, to run from 1:00 a.m. to 5:00 a.m. See Pl. Aff. ¶ 10. Apparently, plaintiffs were confused in the use of military time terminology, as the General Order issued on December 23, 2004, maintained the curfew time limits of 0001 hours (a minute after midnight) until 0500 hours (5:00 a.m.). See DA 21. Interestingly, plaintiffs' complaint demonstrates their understanding of the curfew's actual duration. Compl. ¶ 22. 4

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ARGUMENT I. Standard Of Review A party requesting discovery must state, by affidavit, "explicit reasons why discovery is required in opposition to the motion for summary judgment." Aero Union Corp. v. United States, 47 Fed. Cl. 677, 687 (2000) (quoting C.W. Over & Sons v. United States, 44 Fed. Cl. 18, 23 (1999)). The United States Court of Appeals for the Federal Circuit has explained: In moving for relief under Rule 56(f), a party must demonstrate specifically "how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact." . . . The party "may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts." . . . the movant is "required to state with some precision the materials he hope[s] to obtain with further discovery, and exactly how he expect[s] those materials would help him in opposing summary judgment." Simmons Oil Corp. v. Tesoro Petroleum Corp., 86 F.3d 1138, 1144 (Fed. Cir. 1996) (citations omitted); see also Keebler Co. v. Murray Bakery Products, 866 F.2d 1386, 1389 (Fed. Cir. 1989). The party seeking further discovery must explain, through affidavit, how the requested discovery would enable it to create a genuine issue of material fact. Moore, U.S.A., Inc. v. Standard Register Co., 229 F.3d 1091, 1116 (Fed. Cir. 2000), cert. denied 121 S. Ct. 1734 (2001). "Summary judgment need not be denied merely to satisfy a litigant's speculative hope of finding some evidence that might tend to support a complaint." Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624 627 (Fed. Cir. 1984) (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290 (1968)). As defendant sets out below, the affidavit submitted by plaintiffs does not establish a genuine issue of material fact.

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II.

Plaintiffs' Complaint Is Based Entirely Upon An Alleged Order To Work ­ The Curfew Orders ­ And No Discovery Is Needed For Plaintiffs To Respond To The Legal Arguments Set Forth In The Government's Dispositive Motion Regarding How The Plain Language Of The Curfew Orders Should Be Interpreted In accordance with 5 C.F.R. § 550.111, in order to demonstrate that they are entitled to

back pay, plaintiffs must provide proof of a written order to perform overtime. In their complaint, plaintiffs assert that the Curfew Orders comprised the written order, and those are now before the Court. Defendant's Appendix ("DA") 10-12, 14-24, 38-40. Defendant, also provided a declaration from General Leon LaPorte, the commanding general of U.S. Forces Korea ("USFK"), that simply explains why he issued those orders and authenticates them as the ones at issue. However, the declaration does not alter the orders' terms or assert they were counter-manded. Plaintiffs also assert that the Talking Points (DA 25 - 37) support their claims. This document, dated February 7, 2005, was issued at the very end of the curfew period and covered a diverse number of topics, primarily directed at the 37,000 military personnel assigned to Korea. However, because that document was issued at the tail end of the curfew time period, it could not have required overtime during the preceding four and one-half month of the curfew. Moreover, the Talking Points cannot, as a matter of law, constitute the written notice required to perform overtime work because these Talking Points were never issued to the employees nor do they explicitly or even implicitly require any employee to perform overtime work. In any event how or whether the putative class might have performed overtime work during the hours that they would normally devote to sleep, or while in bowling alleys, at on-post nightclubs, and homes, is information that is in plaintiffs' hands, and requires no discovery of defendant. 6

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Nevertheless, in paragraph 13 of Mr. Lechner's affidavit, plaintiffs argue that further discovery will permit them to address certain specified issues. As we demonstrate below, none of these issues are material to whether the Curfew Orders were orders to work, and plaintiffs' request for discovery should be denied. A. General LaPorte's Authority To Issue The Curfew Orders Is Not Relevant To Resolve Plaintiffs' Complaint

The central issue before the Court is whether the Curfew Orders were tantamount to an order to work. Plaintiffs' motion alleges that they can not respond to our motion for summary judgment until they know what authority General LaPorte had to issue the Curfew Orders. Pl. Mot. ¶ 13. Resolution of that matter is clearly not material to resolving whether the plain language of the Curfew Orders required DoD civilian employees to be compensated. General LaPorte was the Commanding General of U.S. Forces Korea and exercised his authority to protect his forces and personnel assigned to the DoD mission in Korea in his capacity as a commander. However, plaintiffs' first duty is to establish that there was a written order to direct overtime work. If there is no such written order, then the status General LaPorte exercised in directing the curfew is of absolutely no import.3

Defendant submits that General LaPorte had clear authority to direct forces and establish security protocols that impacted upon civilian employees. The legal question as to whether General LaPorte had specific authority to direct the Army, Air Force, Navy and Marine service components to perform overtime work would require an in-depth analysis of the Goldwater-Nichols Department of Defense Reorganization Act of 1986, 10 U.S.C. §§ 161-68, (the "Act"). However, because the Curfew Orders did not direct overtime work, defendant has not put forth such an analysis of the Goldwater Nichols Act. However, 10 U.S.C § 164 does not give subordinate commanders of combatant commands the authority to direct employees of the various services to perform overtime work. 7

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B.

Plaintiffs Have Not Presented Any Credible Information That Would Warrant A Deposition Of General LaPorte To Examine Whether He Was Being Truthful In His Affidavit

Plaintiffs contend they need discovery to determine whether General LaPorte was truthful concerning the statement of his intent, which, they presuppose is a "pretextual attempt to avoid Defendant's liability . . . " Pl. Aff. ¶ 13(2). First, as we have explained, General LaPorte's intent is not relevant. Second, the very premise of this argument is that the Government is liable, an assertion that turns solely upon the documents themselves. Finally, the assertion that General LaPorte may have been untruthful concerning his intent or anything else is completely unwarranted, and disregards the well-settled doctrine that the courts "assume with confidence that Government agents attempt conscientious performance of their duties." Office of Personnel Management v. Richmond, 496 U.S. 414, 433 (1990); see also Hoffman v. United States, 894 F.2d 380, 385 (Fed. Cir. 1990) (military officers, like other public officials, are presumed to have discharged their duties correctly, lawfully, and in good faith.) Moreover, if the Talking Points, which were issued February 7, 2005, and only later made public, constituted the basis of the written order, as alleged by plaintiffs, then plaintiffs can hardly argue that the Talking Points provided a basis for overtime entitlement beginning on September 24, 2004 - four and one-half months earlier. In any event, the Talking Points are now in the record. The plain language of these Talking Points can be reviewed to determine if this document, issued not to employees but instead to "Component Commanders," ordered any DoD civilian employee in Korea to work overtime.

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C.

Verbal Orders Of Sub-Ordinate Commanders And Pronouncements In The Media Are Immaterial To Resolving Whether The Curfew Orders Were Orders To Work

Plaintiffs also allege that they have "information and belief" that the media and subordinate commanders made representations that provide additional details regarding the "purpose" of General LaPorte's Curfew Orders. Pl. Aff. ¶ 13 (3). Leaving aside that plaintiffs fail to state the basis of their "information and belief," and why such information and belief is insufficient to make their point, and even assuming the sought-after information exists, it has no bearing upon what the Curfew Orders actually state. To the extent the plaintiffs contend there are other orders to perform work, pursuant to 5 C.F.R. § 550.111, they should describe them. D. The Content Of The Input General LaPorte Received From Subordinate Commanders, His Staff, And Republic of Korea Officials Regarding The Talking Points Is Not Material To Deciding If The Plain Language Of The Curfew Orders Required DoD Civilian Employees To Work

Plaintiffs also contend, again without explanation, that they need discovery to find out what advice General LaPorte received from various members of his command and officials from the Republic of Korea, prior to General LaPorte issuing the Talking Points. Pl. Aff. ¶ 13(4). Clearly, this stated objective of plaintiffs' discovery cannot lead to any information that will turn the Talking Points into an order to perform overtime work. Furthermore, plaintiffs have completely failed to provide any reasons in their motion or affidavit that demonstrate otherwise.

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E.

General LaPorte's Understanding Of Federal Labor Law Is Immaterial To Resolving the Central Issue In This Case: Were The Curfew Orders Tantamount To Work That Is Compensable

Plaintiffs next allege that they need discovery to determine "whether General LaPorte and his subordinates understood that the Confinement Orders4 as applied to DoD civilian employees effectively and substantially limited their activities for the benefit of their employer so as to require compensation." Pl. Aff. ¶ 13 (5). This statement is premised upon their theory there has been such a limitation, which, again, turns upon the orders themselves. That is for the Court to determine. At bottom, General LaPorte's understanding of the nuances of overtime compensation laws is largely irrelevant. Plaintiffs must prove that they were officially ordered to perform overtime in writing and that they actually performed such overtime work ­ and did not devote almost the entirety of the hours they are now claiming as overtime to hours of sleep. F. Discovery Is Not Needed To Disprove General LaPorte's Contention That The Terms Of The Curfew Supported Readiness

Plaintiffs also claim they need discovery to determine if the terms of the Curfew Orders were essential to readiness. Pl. Aff. ¶ 13 (6). Again, plaintiffs fail to explain why they need this information to respond to our motion. Indeed, it appears that plaintiffs seek this information, given the absence of an actual directive to perform overtime work, to find some basis to support their claims. However, the benefit of the curfew, i.e. protecting personnel from possible terrorist threats, speaks for itself. Protecting employees and military personnel from harm in an overseas

Plaintiffs have repeatedly referred to"confinement orders;" however, other than the documents that defendant has already submitted to the Court as identified by plaintiffs in their complaint, defendant is unable to identify, and is unaware of any such documentation. Indeed, defendant submits that there is no such order directing "confinement" of the DoD civilian employees assigned to Korea as alleged by plaintiffs. 10

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environment, whether such environment is in Korea, Afghanistan, Iraq or any number of other troubled areas in the world, obviously enhances military readiness as well. Indeed, civilian employees contribute in immeasurable ways to military readiness ­ primarily, during the hours that they are actually engaged in work on behalf of the DoD and getting paid for such employment. In short, protecting civilians certainly contributes to overall military readiness; however, the issue is whether they were ordered in writing to perform work upon behalf of the DoD, during the curfew hours. And, that question can be answered by simply reviewing the documents the Government placed before the Court in its opening motion. G. Plaintiffs Have Failed To Produce Any Credible Information That Would Support A Determination By This Court That Discovery Is Warranted To Show That General LaPorte Did Not Have A Duty To Provide For The Safety And Welfare Of DoD Civilian Employees, Military Personnel And Their Family Members Assigned To Korea

Finally, plaintiffs contend they need discovery to determine if General LaPorte, the senior U.S. military commander, had a specific "duty obligation" to protect and ensure the welfare of DoD civilian employees in his command. Pl. Aff. ¶ 13 (7). Once again, this issue is irrelevant to the legal issue before the Court, although as we explained in footnote three above, the commander's authority is beyond question. Moreover, if General LaPorte did not possess this authority, then there would be no legal basis for him to issue any of the Curfew Orders, and, thus, no legal underpinning for plaintiffs' claim. In sum, defendant objects to plaintiffs' request to permit discovery, as such discovery is not likely to result in relevant information. Indeed, plaintiffs' motion fails to show why discovery would enable them to: (1) produce evidence of the requisite written order that requires plaintiffs to work overtime (particularly since the Curfew Orders they alleged in the complaint as

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providing that evidence are now before the Court), and, (2) show that plaintiffs were able to perform work during the eight-hour period the law presumes is devoted to sleep. At bottom, plaintiffs are admitting to a lack of evidence to support their case, despite the fact that our motion is squarely aimed at the very evidence upon which their complaint is based. Accordingly, the time has come to resolve this matter, without further expenditure of the parties or the Court's resources. See Moore, U.S.A., Inc., 229 F.3d at 1116 (sustaining district court's refusal to allow additional discovery and "applaud[ing] [district court] for . . . expedient handling of this case"); Pure Gold, Inc., 739 F.2d at 627 and n.2 (rejecting request for further discovery, holding that further litigation would put the parties to unnecessary expense and be wasteful of judicial resources, and commending the "practice of [this Court] in routinely disposing of numerous cases on the basis of cross-motions for summary judgment"). CONCLUSION For the foregoing reasons, defendant respectfully requests that the Court deny plaintiffs' motion, and stay all discovery pending adjudication of defendant's dispositive motion.5 Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

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Defendant does not object to a reasonable enlargement of time to enable plaintiffs to respond to Defendant's Motion for Summary Judgment, which was filed on June 2, 2006. 12

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Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director

OF COUNSEL: MICHAEL E. HOKENSON Lieutenant Colonel U.S. Army Legal Services Agency Litigation Division Arlington, VA 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

August 4, 2006

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CERTIFICATE OF SERVICE I hereby certify that on August 4, 2006, a copy of the foregoing "DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR AN EXTENSION OF A CONTINUANCE TO PERMIT PLAINTIFF TO CONDUCT DISCOVERY," 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