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

Case 1:05-cv-01020-MMS

Document 59

Filed 02/06/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 05-1020C (Judge Sweeney)

DEFENDANT'S MOTION FOR PUBLICATION Pursuant to Rule 59 of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests the Court to reissue its opinion and order dated January 31, 2008, for publication by commercial reporting services, to facilitate public access to the opinion's discussion of emerging legal issues. The Court's analysis of the requirements of the National Defense Authorization Act of 1993, § 330, 10 U.S.C. § 2687 note ("section 330"), is particularly significant. American Intl. Spec. Lines Ins. Co. v. United States, No. 05-1020C, slip op. at 27-39 (Fed. Cl. Jan. 31, 2008). As the Court is aware, it disagreed with the interpretation of the statutory phrase "arising out of any claim for personal injury or property damage" that was adopted in Richmond American Homes of Colorado v. United States, 75 Fed. Cl. 376, 387-99 (2007), and, in so doing, disagreed with the Richmond Court with regard to, among other things, (1) the relevance of a floor statement made by Senator John McCain during debate preceding the enactment of section 330, and (2) a letter sent to Senator McCain by a Department of Defense official after section 330 was signed into law. See slip op. at 35-36 & n.25. Publication is appropriate when a decision "adds significantly to the body of law." Seligson v. OPM, 878 F.2d 369, 370 (Fed. Cir. 1989) (also referring to "legal opinions that really

Case 1:05-cv-01020-MMS

Document 59

Filed 02/06/2008

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matter"). This Court's recent order and opinion meets that standard. Given that Richmond addressed issues of first impression concerning section 330, the decision in this case represents a "second impression," in which the analysis and the result differ distinctly from those in Richmond. (The Richmond decision, like the one here, remains interlocutory, as no final and appealable judgment has been entered in any of the four matters consolidated in Richmond.) To accurately reflect the development of the case law in this area, therefore, it is appropriate that the Court's recent opinion in this matter join Richmond in the Court of Federal Claims Reporter, and in the databases of the services that distribute the Court's decisions electronically. For these reasons, we respectfully request the Court to reissue its January 31, 2008, opinion and order as a published decision. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General s/Jeanne E. Davidson JEANNE E. DAVIDSON Director

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Case 1:05-cv-01020-MMS

Document 59

Filed 02/06/2008

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OF COUNSEL: CHIN-ZEN L. PLOTNER Trial Attorney Navy Litigation Office Washington, D.C. s/Kyle Chadwick KYLE CHADWICK Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., 8th Floor Washington, D.C. 20530 Tele: (202) 616-0476S Fax: (202) 305-7644 Attorneys for Defendant February 6, 2007

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Case 1:05-cv-01020-MMS

Document 59

Filed 02/06/2008

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CERTIFICATE OF FILING I certify that on February 6, 2008, the attached document was filed electronically. I understand that service is complete upon filing and that parties and others may access the filing through the Court's electronic system. s/Kyle Chadwick

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