Free Motion for Extension of Time to File Answer - District Court of Federal Claims - federal

Case 1:05-cv-01043-VJW

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Filed 05/25/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS JORGE A. DELPIN-APONTE, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 05-1043C (Judge Wolski)

DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME Pursuant to Rule 6(b) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant requests an enlargement of time of 60 days, to and including July 25, 2006, within which to respond to the complaint. presently due on May 26, 2006. Our response is

This is our second request for an Defendant's counsel left a

enlargement of time for this purpose.

detailed message with plaintiffs' counsel's law office, but was not able to contact plaintiffs' counsel in order to determine whether he would oppose this request for an enlargement of time. Since our prior request for an enlargement of time, defendant's counsel has had an opportunity to review more thoroughly the litigation report and supporting documents from the previous litigation activity spanning three years in the United States District Court for the District of Puerto Rico, and to consult with agency counsel and other Government attorneys. Given this review and consultation, and the procedural history of the case, defendant's counsel believes that plaintiffs primarily challenge the legality of the method applied by the United States Postal Service ("USPS") to calculate overtime paid to plaintiffs.

Case 1:05-cv-01043-VJW

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We do not believe that the amount actually paid to plaintiffs is, or will be, disputed. Therefore, the dispositive question in

this case is whether the amount of overtime calculated and paid to employees in the Caribbean District is adequate as a matter of law. Whether the method the USPS uses to calculate overtime is

in accordance with law is a question most properly resolved by dispositive motion. Defendant's counsel will require additional time to draft the Government's dispositive motion regarding the legality of the USPS's method of calculating overtime pay for employees in the Caribbean District. Further, defendant's counsel will be on call

from May 30, 2006, until June 9, 2006, to respond to a newly filed bid protest in the United States Court of Federal Claims. Thus, he anticipates that he will be responsible for defending a time-sensitive challenge to a procurement, which may involve requests for immediate injunctive relief, typically requiring an urgent series of briefs and hearings that may extend beyond June 9, 2006. Defendant's counsel also must respond to

significant pending discovery requests by June 15, 2006, in Moreno v. United States, No. 05-142C (Fed. Cl.), in which approximately 4,000 plaintiffs have been notified of their opportunity to join the case; and anticipates that he will be required to file responsive briefs in the United States Court of Appeals for the Federal Circuit by July 3, 2006 in Lineberger v. Nicholson, No. 06-7168 (Fed. Cir.), by July 17, 2006 in Bannum Inc. v. United States, No. 06-5066 (Fed. Cir.), and by July 24, 2

Case 1:05-cv-01043-VJW

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2006 in Bolden v. Dep't of Veterans Affairs, No. 06-3158 (Fed. Cir.). Defendant's counsel must also argue BENMOL Corp. v. Snow, Therefore, we

No. 05-1532 (Fed. Cir.), on July 10, 2006.

anticipate that an additional 60 days will be required to prepare our responsive dispositive motion.1 For the foregoing reasons, defendant requests that the Court grant this motion for an enlargement of time. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Mark A. Melnick MARK A. MELNICK Assistant Director s/ Jeffrey S. Pease JEFFREY S. PEASE Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L St., N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tel: (202) 307-0292 Fax: (202) 514-8624 Attorneys for Defendant May 25, 2006

Defendant's counsel deeply regrets that he was not able to file this motion earlier, and sincerely apologizes to the Court and to plaintiffs' counsel for any inconvenience this may have caused. In the future, defendant's counsel will endeavor to provide ample advance notice to the Court and opposing counsel, in requesting any enlargement of time. 3

1

Case 1:05-cv-01043-VJW

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CERTIFICATE OF FILING

I hereby certify that on this 25th day of May 2006, a copy of the foregoing "DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME" 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 Court's system. Parties may access this filing through

s/ Jeffrey S. Pease