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Case 1:05-cv-01236-LMB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS EVA P. WHITE, as Administratrix ) of the Estate of CHRISTINE H. ) ROBERTS, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. )

No. 05-1236C (Judge Baskir) (cc: Judge Horn)

DEFENDANT'S NOTICE OF INTENT TO PROCEED BY DISPOSITIVE MOTION Defendant, the United States, respectfully submits this notice of intent to proceed by dispositive motion in lieu of an answer. Pursuant to paragraphs 2, 3, and 4 of the Court's December 8, 2005 Special Procedures Order, defendant is not filing its dispositive motion at this time. We understand that no dispositive motion may be filed before the Preliminary Status Conference with the Court. It is also our understanding that a Joint Preliminary Status Report ("JPSR"), including an identification of the factual and legal bases for our anticipated motion, must be filed within 45 days of the date when an answer would otherwise be due. Based upon preliminary discussions, the parties do not disagree about the facts involved in this suit for benefits pursuant to the Public Safety Officers' Benefits ("PSOB") Act, 42 U.S.C. §§ 3796-3796c. Rather,

Case 1:05-cv-01236-LMB

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anticipated issues include: (1) whether the routine submission of a "Death Benefits Questionnaire" by a local law enforcement agency constitutes the filing of a claim for PSOB Act benefits and, if so, (2) whether the PSOB Act authorizes payment of benefits to an individual's estate and, if so, (3) whether the estate involved in this case had any cognizable legal interest in benefits. These questions must be answered on the administrative record. Demutiis v. United States, 48 Fed. Cl. 81, 86-87 (2000), aff'd as modified by 291 F.3d 1373 (Fed. Cir. 2002). The answer in this case is currently due on or before January 27, 2006. Therefore, defendant intends to work with plaintiff's counsel in order to file a JPSR, which identifies the factual and legal bases for defendant's anticipated motion, on or before March 13, 2006. Thus, the time for the United States to respond to the complaint has not expired. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/Kathryn A. Bleecker KATHRYN A. BLEECKER Assistant Director -2-

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Of Counsel: JASON P. COOLEY Attorney Advisor Office of the General Counsel Office of Justice Programs Department of Justice 810 7th Street, N.W. Washington, D.C. 20531

s/Allison Kidd-Miller ALLISON KIDD-MILLER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L St. Washington, D.C. 20530 Tel: (202) 307-1011 Fax: (202) 307-0972 Attorneys for Defendant

January 27, 2006

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CERTIFICATE OF SERVICE I certify under penalty of perjury that on this 27th day of January, 2006, a copy of the foregoing "DEFENDANT'S NOTICE OF INTENT TO PROCEED BY DISPOSITIVE MOTION" 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 Allison Kidd-Miller