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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) ) ) )

AG-INNOVATIONS, INC., LARRY FAILLACE, LINDA FAILLACE, and HOUGHTON FREEMAN, Plaintiffs,

No. 05-776C Judge Margaret M. Sweeney

v. THE UNITED STATES OF AMERICA, Defendant.

PLAINTIFFS' REPLY IN SUPPORT OF THEIR MOTION FOR LEAVE TO CONDUCT MORE THAN TEN DEPOSITIONS Introduction In its Opposition to Plaintiffs' Motion for Leave to Conduct More Than Ten Depositions, 1/ the Government's main argument is that evidence about its flawed test procedures and the results from those tests is irrelevant and outside this Court's jurisdiction. It is surely true that the Government's flawed testing should be irrelevant to the question whether a Fifth Amendment taking occurred when the Government seized Plaintiffs' sheep and slaughtered them, and when the Government imposed absolute quarantines on the farmlands where the sheep had grazed. But the Government does not accept that. In its view, there may have been no taking at all if its flawed testing accurately indicated that the sheep were actually infected with a TSE. More fundamentally, however, the Government has not (yet) addressed whether it considers all of the seized sheep infected with a TSE, a decision that may impact whether

1/ Plaintiffs will refer to Defendant's Opposition to Plaintiffs' Motion for Leave to Conduct More Than Ten Depositions as "Defendant's Opposition" and will cite it as "Def.'s Opp. at ___."

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Plaintiffs' are entitled constitutional recovery. Thus, as much as Plaintiffs would prefer not to take additional depositions, the Government's position makes them unavoidable. With respect to Plaintiffs' Fifth Amendment claims, the testing issue is indeed irrelevant under Plaintiffs' theories of recovery. Plaintiffs contend that the Government's seizure and slaughter of the sheep and other assets amounted to a physical taking of property, requiring just compensation. After all, the Government seized and slaughtered all of Plaintiffs' sheep and appropriated Plaintiffs' pasturelands by imposing years of absolute quarantine against their use. On that physical taking theory, there would indeed be no need to inquire into the Government's testing, because the Government has always taken the position that the testing is irrelevant to valuation. 2/ But the Government denies that seizing sheep and quarantining pastures amounted to a physical or "per se" takings. First, citing Brown v. Legal Found. of Washington, 538 U.S. 216 (2003), the Government claims that seizing and killing hundreds of sheep was not a physical taking because, it says, categorical takings law does not apply to the expropriation of personal property. The Federal Circuit has specifically rejected this argument. See Rose Acre Farms, Inc. v. United States, 373 F.3d 1177, 1196 & n.17 (Fed Cir. 2004) (rejecting Government's contention that a per se takings analysis is never applicable when the taking involves personal property). This Court has also rejected the Government's position, noting that although the Supreme Court did not find a taking in Brown, it did apply per se rules to personal property. See Innovair Aviation, Ltd. v. United States, 72 Fed. Cl. 415, 423 (2006) (relying on Nixon v. United States, 978 F.2d 1269 (D.C. Cir. 1992)). Nevertheless, the Government claims

2/ In several telephone communications with the Government's counsel, Ms. Sheryl Floyd, Ms. Floyd has indicated that it will not contest valuation of the sheep on the basis that the sheep were infected with any type of transmissible spongiform encephalopathy ("TSE").

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that seizing personal property must be analyzed as if it were a regulatory taking. On that theory, the flaws in the Government's testing are pertinent to its arguments under one of the regulatory taking factors--the alleged nexus between the government "regulation" and the public purpose of eliminating diseased animals. Second, the Government also denies that there was a per se taking when it quarantined Plaintiffs' pasturelands. Instead, it claims that if a constitutional analysis is appropriate, the Court should analyze the quarantine as a temporary regulatory taking under Rose Acre Farms, 373 F.3d at 1195, as derived from the ruling in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978). Again, Plaintiffs submit this standard is not the appropriate test, but since the Government advances it, the flaws in the Government's testing of the sheep are relevant to the alleged nexus between the Government's action and its public purpose. In these two ways, the Government clearly intends to mount a "sick sheep" defense that presumes the correctness of its testing results, and so discovery into the flaws in the Government's testing is required. Plaintiffs expect that discovery will show that there was and is no reliable basis to conclude that the sheep were in fact infected with a TSE. Having advanced arguments making the flaws in its testing relevant, the Government seeks to shield them from discovery by claiming that this Court lacks jurisdiction to decide testing-related issues, but again it misses the mark. Contrary to the Government's suggestion, Plaintiffs do not challenge the regulatory authority exercised in this case. Plaintiffs do not contend that Government agents acted ultra vires or committed theft or sheep rustling when they seized Plaintiffs' property. To be sure, Plaintiffs sued the Government in Vermont federal district court to try to save their sheep, only to have that litigation rendered moot when -3\\\DC - 090737/000002 - 2408054 v9

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the Government seized and slaughtered the animals prior to the consideration of the decision on appeal. But for purposes of this takings litigation, Plaintiffs accept for purposes of this case that the taking was an authorized governmental action. All Plaintiffs seek is just compensation for the taking of their property, an issue over which this Court has unquestioned jurisdiction. The Government also argues that its flawed testing is beyond inquiry by claiming that because Plaintiffs sought to stop the slaughter of their sheep in the Vermont litigation, they are now collaterally estopped from arguing that their sheep were free of TSE. Again, the Government is wrong. True, the Vermont federal district court upheld the authority of the Government to seize the sheep, but in this taking case, Plaintiffs do not deny the Government's authority to seize their property. Instead, Plaintiffs now seek compensation for the taking that resulted when the Government did so. The Federal Circuit has held that litigation like that in Vermont, challenging the substance of the Government's action, has no preclusive effect in later takings litigation seeking compensation for the Government's actions. And here, that is doubly so because the Vermont court made no factual finding that the sheep were in fact infected with or exposed to a TSE. All it held was that the Government was lawfully entitled to take them and slaughter them; the question of compensation is for this Court to decide. Thus, for both of these reasons, the Vermont litigation does not estop Plaintiffs from seeking compensation and, if necessary, from denying the Government's that the sheep were infected with a TSE so its actions are noncompensable. Finally, the Government makes no real effort to support its contention that Plaintiffs' intended depositions are cumulative. As Plaintiffs recount in their Opening Motion

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(Pls.' Mot. at 3-5), 3/ given the large number of individuals who played a role in the events over the course of the last decade, it is not surprising that deposition discovery will exceed ten witnesses. Obviously, depositions are costly, and Plaintiffs will do everything possible to minimize the number needed. With respect to non-testing-related deponents, Plaintiffs will work with the Government to identify certain 30(b)(6) witnesses from the USDA to address specific issues on which discovery is necessary. However, the depositions of Drs. Graves, Hutchins, Johnson, Torres, Holt, and Detwiler, in addition to Peter Welkerling, Axel Meister, Yves Berger, and the eight other proposed expert witnesses that the Government now has identified, 4/ are vital, given the Government's theory of the case. Argument I. The Testing Issue Is Relevant Under The Government's Proposed Theory Of Analyzing This Case. The United States Supreme Court has identified two categories of cases in which governmental action is "compensable without case-specific inquiry into the public interest advanced in support of the restraint." Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992). First, physical invasions or expropriations of property require compensation "no matter how minute the intrusion, and no matter how weighty the public purpose behind it." Id. The second category consists of categorical regulatory takings in which government regulation denies a property owner of all economically beneficial or productive use of land. Id.

3/ Plaintiffs will refer to their Motion for Leave to Conduct More Than Ten Depositions herein as their "Opening Motion" and will cite it as "Pls.' Mot. at ___." 4/ Following the submission of Plaintiffs' Opening Motion, the Government on December 5, 2006, identified eleven proposed expert witnesses: Yves Berger, Peter Welkerling, Axel Meister, Drs. Stephen Mark Hall, Richard Rubenstein, Linda Detwiler, Richard Race, David M. Taylor, W. Terry Disney, Bradley Reiff, and Robert Rowher. Four of these individuals were not identified as potential deponents in Plaintiffs' Opening Motion, specifically Drs. Taylor, Disney, Reiff, and Rowher. Plaintiffs request leave to depose these newly-identified individuals, as well as any other proposed expert witnesses that the Government intends to put forward.

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Plaintiffs assert that the seizure and destruction of their sheep and other chattel by the Government falls into the first category of physical, per se takings. The USDA seized and slaughtered every single one of Plaintiffs' sheep. Plaintiffs also contend that the Government effected a categorical taking when it imposed quarantines over the pasture land on which the sheep were kept. If all that were so, then Plaintiffs agree that no depositions or testimony about the testing issue would be necessary because there would be no need to inquire into the Government's reasons for seizing the sheep and quarantining the pastures. But in defense, the Government takes a different view. It contends (as demonstrated in its Opposition) that its seizures and quarantines must be analyzed under the Penn Central factors for assessing whether a governmental regulation goes "too far." (Def.'s Mot at 10-12.) Because the Government intends to make such an argument, the testing issue is relevant. Under Penn Central, the Government's obligation to pay just compensation must be analyzed by weighing: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. Penn Central Transp. Co., 438 U.S. at 124. The Government cites one formulation of this test in which the court seeks to balance the interference with the owner's right to use its property in light of its reasonable economic expectations "against the substantiality of the governments [sic] purpose and the nexus between that purpose and the means undertaken to achieve it." Rose Acre Farms, Inc., 373 F.3d at 1195; Def.'s Opp. at 10. As indicated above, Plaintiffs do not concede that the temporary regulatory takings test provided in Rose Acres Farms or Penn Central is the correct method of analyzing the compete deprivations of property that occurred in this case. But if the Government intends to defend its -6\\\DC - 090737/000002 - 2408054 v9

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seizure of sheep and quarantining of pasture lands on this ground, then the flaws in its testing become relevant. In response to the Government's regulatory takings argument, Plaintiffs will show that no nexus existed between the Government's "regulation" and the public purpose that it sought to achieve. That purpose, according to the Government, was to avoid the spread of a TSE. If the Government's testing regime was result-driven and flawed, as Plaintiffs believe the evidence will show, then slaughtering the sheep and quarantining the pasturelands on which they grazed served no purpose. Again, as Plaintiffs' explained in opposing the Government's requested stay of this case, 5/ Plaintiffs do not question in this Court the validity of the agency's actions, only the compensation to which they are due as a result of those actions. If the Government is permitted to defend an outright seizure of property based on Penn Central's regulatory taking balancing, then Plaintiffs must be permitted to show that the Government's testing was flawed and that the seized sheep were not infected with a TSE. II. The Testing Issue May Also Be Relevant If the Government Contends That No Constitutional Taking Resulted. As demonstrated by its citation to Rose Acre Farms, the Government intends to rely on certain (flawed) tests in support of its contention that no constitutional taking occurred in this case. (Def.'s Mot. at 10.) Although the Government has not yet explicitly done so, it may also argue that the Fifth Amendment precludes compensation for the seized sheep and land quarantines because it considers all of the sheep infected with a TSE, leaving Plaintiffs with a statutory remedy under former 21 U.S.C. § 134a. Plaintiffs vigorously contend that their sheep

5/ See Pls.' Opp. to Def.'s Mot. to Suspend Proceedings, filed Dec. 6, 2005, at 3-6 (docket entry #11). The Court ultimately denied the Government's motion on January 18, 2006. (See Order dated Jan. 18, 2006 (docket entry # 15).)

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were healthy and that a Fifth Amendment analysis for the sheep and pasturelands on which they grazed is appropriate. See Yancey v. United States, 915 F.2d 1534 (Fed. Cir. 1990) (holding that quarantine over healthy turkeys resulted in a taking requiring just compensation under the Fifth Amendment, and that regulations pertaining to diseased animals were inapplicable). And as explained above, under Plaintiffs' constitutional theories of recovery, the testing of the sheep is not relevant. But if the Government intends to put forward any argument that the health of the sheep somehow undermines a constitutional claim, then the testing issue is relevant. III. This Court Has Jurisdiction To Decide Whether Plaintiffs' Sheep Were In Fact Disease-Free, And Plaintiffs Are Not Precluded From Litigating This Issue. A. This Court has jurisdiction to decide whether Plaintiffs' sheep were in fact healthy.

The Government suggests that it can seek to avoid paying compensation by showing the sheep were infected with a TSE, but that this Court lacks jurisdiction to hear Plaintiffs' evidence to the contrary. It makes this surprising claim on two grounds ­ the limits of this Court's jurisdiction and a claim of collateral estoppel ­ both of which are wrong. The Government first argues that "[u]nder its Tucker Act jurisdiction, the Court cannot decide whether USDA's action was arbitrary and capricious, or whether its actions were valid or invalid." (Def.'s Opp. at 9.) This statement misses the point, for two reasons. First, Plaintiffs seek compensation, not an order invalidating the Government's actions. Second, it is the Government that is placing the "validity" or public purpose of its actions at issue by claiming that its purpose was so grave and weighty as to negate a taking. As explained above, if that argument is to be entertained in this physical taking context under the Fifth Amendment, then Plaintiffs will prove as a factual matter that the Government's testing was flawed, that it was

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aimed at vindicating a decision to destroy the animals, and that in fact all or the vast majority of the sheep were disease-free. The Government again relies on Rose Acre Farms, this time as authority for its claim that this Court lacks the jurisdiction to hear evidence regarding the health of the sheep. (Def.'s Opp. at 11-12.) The Federal Circuit held no such thing. It merely pointed out that the lower court erred in evaluating the Government's acts based on a least-restrictive-alternative analysis, rather than on the nexus between the purpose of the government regulation and the means adopted to achieve it. 373 F.3d at 1193-95. In doing so, the court made clear the importance of focusing on the actual nexus between the regulation and its underlying purpose. 373 F.3d at 1194 ("[T]he issue is not whether a less restrictive alternative to the government action existed or was `possible.' It is whether there is a nexus between the regulation and its underlying public purpose."). Here, if the Government is permitted to defend on a temporary regulatory taking basis, then Plaintiffs will show that the Government's seizure and quarantines lacked a sufficient nexus to preventing the spread of a TSE because the Government's testing was flawed and the sheep were not infected with a TSE. B. Plaintiffs are not precluded from litigating whether the sheep are disease-free.

A prior final judgment has collateral estoppel effect when: (1) the issues to be decided are the same those resolved in the prior action; (2) the issues were raised and actually litigated in the prior action; (3) the determination of those issues was necessary and essential to the resulting judgment in the prior action; and (4) the party estopped was fully represented in the prior action. Mothers Restaurant, Inc. v. Mama's Pizza, Inc., 723 F.2d 1566, 1569 (Fed. Cir. 1983). It is true that the Vermont district court noted a few positive test results in upholding the -9\\\DC - 090737/000002 - 2408054 v9

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Government's authority to seize Plaintiffs' sheep. But as the Federal Circuit has held, a prior determination of governmental authority to act has no preclusive effect here, where the issue is compensation for the resulting taking. And even if that were not so, the Vermont district court made no finding about the actual health of the sheep, only that there were a few positive test results on which the Government could rely for authority to seize them. In fact, the consolidated suit resulted in no judgment at all. 6/ Therefore, the Government's reliance on the determinations made by the Vermont federal district court or their preclusive effect is both misplaced and wrong as a matter of law. In Rose Acre Farms, the Federal Circuit specifically rejected the very same argument advanced by the Government here, holding that a plaintiff's challenge to a federal agency's action in a previous district court litigation does not collaterally estops that plaintiff from addressing the governmental interest issues related to a takings claim. See 373 F.3d at 1195 n.15. As the Federal Circuit wrote, The government contends that the decision of the Seventh Circuit on Rose Acre's challenge to the validity of the regulations precludes further inquiry into the merits of the regulations, citing principles of collateral estoppel. We disagree. The issues before the Seventh Circuit concerned whether the government had the requisite authority to promulgate the regulations, and whether they were arbitrary and capricious so as to lack validity. As discussed above, we deal here with the distinct issue of consideration of whether the regulations appropriately advanced a substantial government interest.

6/ In 2000, prior to the seizure of their sheep, Plaintiffs filed two civil actions against the United States Department of Agriculture (USDA) in the United States District Court for the District of Vermont challenging the validity of the USDA's Declaration of Extraordinary Emergency: Civil Action No. 1:00CV255, brought by plaintiff Houghton Freeman, and Civil Action No. 1:00CV257, brought by Plaintiffs Ag-Innovations, Inc. and Linda and Larry Faillace. These cases were eventually consolidated. In 2002, after the seizure and slaughter of their sheep, Plaintiffs Ag-Innovations, Inc. and Linda and Larry Faillace filed another federal action in Vermont, Civil Action No. 1:02CV332, challenging the validity of the quarantine imposed on the Faillaces' property. Plaintiff Freeman was not a party to this second action.

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373 F.3d at 1195 n.15 (internal citations omitted). The court recognized that federal district court litigation concerning the Government's authority to promulgate regulations and whether regulations were arbitrary and capricious concerned a wholly distinct issue, which did not collaterally estop an inquiry into the merits of the regulations for the purposes of a takings claim. Just so here. Plaintiffs are not challenging the validity of the Government regulation. Instead, they are seeking evidence relating to the Government's "sick sheep" defense of their taking claims. Clearly, that defense will be undermined by evidence that shows the Government's testing was unreliable. In addition, in neither the consolidated action nor the action brought by AgInnovations and the Faillaces, which did not include Plaintiff Freeman, did the district court make a judicial determination that Plaintiffs' respective flocks were actually infected with a TSE. Rather, the issues raised in that litigation centered only on the lawfulness of the USDA's actions in issuing a Declaration of Extraordinary Emergency and an Order to Dispose and whether it acted arbitrarily or capriciously in so doing. In the consolidated litigation, the district court never made a judicial finding that Plaintiffs' sheep were (or were not) healthy. See Freeman v. USDA, No. 1:00CV255, 257, Ruling on Mots. For Prelim. Inj., at 10-11 (D. Vt. Aug. 1, 2000) (attached as App. B to Def's Opp.); Freeman v. USDA, No. 1:00CV255, Memo. of Decision, at 3-4 (D. Vt. Feb. 6, 2001) (attached as App. D to Def.'s Opp.). Although the district court did address the fact that the USDA had test results indicating that four of Plaintiff Freeman's sheep had tested positive for a TSE (see App. B to Def's Opp. at 5-6; App. D to Def's Opp. at 10-11) and that the sheep "have suffered from potential exposure to TSE" (see App. B to Def's Opp. at 13) (emphasis added), the court never took evidence or made a judicial finding that Plaintiffs' sheep were in fact infected with or exposed to a TSE. - 11 \\\DC - 090737/000002 - 2408054 v9

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The same is true in the second action, which Plaintiffs Ag-Innovations, Inc. and Linda and Larry Faillace (and not Houghton Freeman) brought after the seizure of the sheep to challenge the quarantine over the Faillaces' pastureland. See Ag-Innovations, Inc. v. USDA, 2006 WL 462580, at *1 (D. Vt. Feb. 24, 2006). This action too dealt only with a review of the agency action under an arbitrary and capricious standard. See id. at *4. Indeed, in that case, the district court specifically recognized that no finding could be made with regard to the health of the sheep because reliable results were unavailable at that time: These underlying considerations, as well as subsequent, undisputed facts, establish the legality of the agency's quarantine under the arbitrary and capricious standard. It is undisputed that, through subsequent testing, the agency's scientists have been unable to conclusively determine whether abnormal prio[n] proteins originally detected in the plaintiffs' flock are actually evidence of a foreign, atypical strain of a TSE or BSE. Yet, agency experts have found abnormalities which, if ultimately determined to be a TSE of foreign origin, could have resulted in immeasurable damage to citizens and livestock absent the imposition of a quarantine of the land on which the flock had grazed. Two of the plaintiffs' sheep did test positive for an abnormal prion protein, using the monoclonal antibodies. Evidence suggests that abnormal prion proteins in sheep can be transmitted during the lambing process to pasture lands, where they may survive for years. These are among the factors which supply sufficient reliable evidence to support the agency's decision to impose a quarantine. Id. at *3 (emphasis added). Thus, the court noted the existence of test results as a basis for upholding the Government's action; it made no findings about the reliability of those results or the actual health of the sheep. Because there were no judicial findings relating to the actual health of Plaintiffs' sheep, the district court litigation provides the Government with no claim for

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collateral estoppel over the tests performed on Plaintiffs' sheep and the results received therefrom. 7/ For these reasons, there is no basis for the Government's "heads we win, tails you lose" contention that it can claim the sheep were infected based on its test results, but avoid discovery or testimony about the fatal flaws in that same testing. IV. The Requested Testimony Of USDA Decision-Makers And Former Vermont Department of Agriculture Officials Is Not Cumulative. The Government claims that Drs. Graves, Hutchins, and Johnson will provide testimony that is "largely cumulative of one another and other witnesses, Drs. Smith and Zeilenga." (Def.'s Opp. at 2.) Yet, it provides no support for this statement. Dr. Graves was the Commissioner of the Vermont Department of Agriculture. He exercised significant decisionmaking capacity on behalf of the state. Drs. Hutchins and Johnson, on the other hand, each served as the Vermont State Veterinarian (and each during different periods of time). In that role, they each separately served on the Vermont Scrapie Certification Board and made numerous trips to Plaintiffs' farms to inspect the sheep. Given the vastly different responsibilities between the Commissioner of the Department of Agriculture and the State

7/ Even if that were not so, the federal district court's ruling in the consolidated case would still have no preclusive effect because, as the Government concedes (Def.'s Opp. at 15), the judgment was vacated as moot after the Government seized Plaintiffs' sheep prior to the conclusion of Plaintiffs' appeal to the United States Court of Appeals for the Second Circuit. See Ag-Innovations, Inc. v. USDA, 6 Fed. Appx. 97, 98 (2d Cir. 2001). An appellate decision that vacates a lower court determination as moot "clears the path for future relitigation of the issues between the parties." United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950); see U.S. Philips Corp. v. Sears Roebuck & Co., 55 F.3d 592, 598 (Fed. Cir. 1995) (emphasizing that a vacated judgment has no collateral estoppel effect). In fact, when Plaintiffs Ag-Innovations and Linda and Larry Faillace appealed the first judgment in their second case, the Second Circuit explicitly made clear that "[t]he underlying case having been dismissed as moot and the original district court opinion having been vacated . . . there is in place no judgment adverse to the Plaintiffs, or that has a prospective effect." Ag-Innovations, Inc., et. al. v. USDA, 95 Fed. Appx. 384, 386 (2d Cir. 2004). Thus, even if the second action had resulted in findings on the actual health of the sheep (which it did not), Plaintiff Freeman would still not be bound because he was not party. In any event, nothing in the Vermont litigation has preclusive effect for the reasons set out in text: the holding in Rose Acre Farms and the lack of findings on the actual health of the sheep.

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Veterinarians, it is difficult to see how the testimony of Drs. Hutchins and Graves would be cumulative of Dr. Graves' testimony. In addition, Dr. Hutchins was the Vermont State Veterinarian until around 1999, at which time Dr. Johnson succeeded him in that role, meaning that they share no temporal overlap. (Dep. of Wayne Zeilenga at 39-40). Therefore, each would be the exclusive source of information possessed by the State Veterinarian during his respective period of service in that position. Accordingly, there is no reason to believe that one's testimony would be cumulative of the other's. And because they are state officials in very different roles than Drs. Smith and Zeilenga, both of whom are federal employees, they are likely to have different experiences and different information such that their testimony would not be cumulative of Dr. Smith's and Dr. Zeilenga's. The Government also claims that Drs. Clifford, DeHaven, Reed, and Torres would give cumulative testimony. Yet, the Government admits that each acted as a "higher level official[] of USDA . . . at various times." (Def.'s Opp. at 3.) Dr. Torres was responsible for deciding how much Plaintiffs received in compensation (Dep. of Bill Smith at 57, 74, 151 (excerpts attached at Appendix A)), and clearly must be deposed. Otherwise, Plaintiffs are willing to accept appropriate, fully knowledgeable Rule 30(b)(6) witnesses on the several key decisions made by the USDA. V. Plaintiffs' Request Leave To Depose The Government's Eleven Proposed Experts. After Plaintiffs' submitted their Opening Motion, the Government on December 5, 2006, identified its proposed expert witnesses, eleven in total. These witnesses include Yves Berger, Peter Welkerling, Axel Meister, Drs. Stephen Mark Hall, Richard Rubenstein, Linda Detwiler, Richard Race, David M. Taylor, W. Terry Disney, Bradley Reiff, and Robert Rowher. Plaintiffs had identified seven of these witnesses for deposition in their Opening Motion, but did - 14 \\\DC - 090737/000002 - 2408054 v9

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not include Drs. Taylor, Disney, Reiff, and Rowher. Therefore, Plaintiffs request leave to depose these newly-proposed experts, in addition to the individuals that Plaintiffs had already identified. Even assuming that the Court determines that the testing issue is irrelevant and that the Government withdraws its testing-related proposed experts (see Def.'s Opp. at 3 n. 4), Plaintiffs would still require leave to depose the six other proposed experts identified by the Government, given the number of other witnesses (discussed above) who need to be deposed. Conclusion Plaintiffs want nothing more than to streamline discovery in this case. But given the alternative theories of recovery and the Government's defense based on the gravity of its TSE-prevention purpose, evidence regarding the Government's flawed testing is relevant to this case. For the reasons described herein and for those provided in their Opening Motion, Plaintiffs respectfully request that the Court grant Plaintiffs leave to conduct the depositions of the individuals and RCFC 30(b)(6) witnesses identified in their Opening Motion and the proposed expert witnesses recently identified by the Government not already identified within Plaintiffs' Opening Motion. Respectfully submitted,

By:

/s Jonathan L. Abram Jonathan L. Abram

HOGAN & HARTSON, L.L.P. 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5681 (direct) (202) 637-5910 (facsimile) Attorney of Record for Plaintiffs Ag-Innovations, Inc., Larry Faillace, Linda Faillace and Houghton Freeman - 15 \\\DC - 090737/000002 - 2408054 v9

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OF COUNSEL: Raymond S. Calamaro Kevin S. Willen HOGAN & HARTSON, L.L.P. 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5600 (202) 637-5910 (facsimile) Dated: December 28, 2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) ) )

AG-INNOVATIONS, INC., LARRY FAILLACE, LINDA FAILLACE, and HOUGHTON FREEMAN, Plaintiffs,

No. 05-776C

v. THE UNITED STATES OF AMERICA, Defendant.

ORDER The Court having considered Plaintiffs' Motion for Leave to Conduct More Than Ten Depositions, the Government's Opposition thereto, and Plaintiffs' Reply, the Court rules as follows: (1) GRANTED; and (2) Plaintiffs ARE GRANTED leave to conduct __________ additional Plaintiffs' Motion for Leave to Conduct More Than Ten Depositions is

depositions of the individuals, RCFC 30(b)(6) representatives, and the proposed expert witnesses identified in their Motion and Reply. IT IS SO ORDERED.

Margaret M. Sweeney JUDGE

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CERTIFICATE OF FILING The undersigned certifies under penalty of perjury that on this 28th day of December, 2006, I caused a true and correct copy of the foregoing Plaintiffs' Reply In Support of Their Motion for Leave to Conduct More Than Ten Depositions, with its Appendix, to be filed with the Court and to be served via the Court's electronic filing system on the following: Sheryl L. Floyd, Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, DC 20530

By:

/s Kevin S. Willen Kevin S. Willen

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