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

Case 1:05-cv-00528-LMB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS TELENOR SATELLITE SERVICES, INC. Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-528C (Judge Baskir)

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE DECLARATIONS INTERPRETING A STATE DEPARTMENT POSITION DESCRIPTION Defendant, the United States, opposes the motion of plaintiff, Telenor Satellite Services, Inc., to strike all or part of the declarations of Reid A. Daugherity, Steven Halter, and Lee Schwartz, which we offered in support of our cross-motion for summary judgment. Telenor argues that a Government employee's job description is akin to a regulation; but, for purposes of determining whether a Government employee possessed authority to bind the Government in contract, a Government employee's job description is not a regulation. See Leonardo v. United States, 63 Fed. Cl. 552, 557 (2005), aff'd, No. 05-5103 (Fed. Cir. Jan. 11, 2006) (table). Accordingly, nothing prohibits the Court from considering evidence from persons familiar with a Government employee's duties and authority when considering whether the employee possessed authority to bind the

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Government in contract; indeed, in Doe v. United States, 58 Fed. Cl. 479, 485 (2003), aff'd, No. 04-5052 (Fed. Cir. 2004) (table), the Court considered the declaration of the Deputy Assistant Administrator for the Office of Acquisition Management of the Drug Enforcement Administration ("DEA") upon the issue whether DEA agents possessed contracting authority. And in Kenney v. United States, 41 Fed. Cl. 353, 360 (1998), the Court compared Government employees' declarations describing their duties with their position description in examining whether the employees possessed authority to bind the Government in contract. Particularly in a case such as this, in which a plaintiff contends that contracting authority is integral to a Government employee's duties, the Court should receive that type of evidence. See id. Therefore, the Court should receive the declarations of Mr. Halter, who participated in drafting the description of the position that Mr. Daugherity holds (Appendix To Defendant's Cross-Motion For Summary Judgment And Response To Plaintiff's Motion For Summary Judgment ("Def. App.") 11 ¶ 2); of Mr. Daugherity's supervisor, Mr. Schwartz (App. 9); and of Mr. Daugherity himself (App. 3-6). Telenor's argument that whether Mr. Daugherity possessed authority to bind the

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Government in contract is a conclusion of law upon which declarants may not testify is erroneous. That question is one of fact. See Trauma Serv. Group v. United States, 104 F.3d 1321, 1327 (1997) (stating that plaintiff "must allege facts sufficient to show that the Government representative who entered into its alleged implied-in-fact contract was a contracting officer or had implied actual authority to bind the Government."). With respect to Telenor's argument that Mr. Daugherity and Mr. Schwartz do not possess first-hand knowledge of the drafting of Mr. Daugherity's position description, neither even mentions that document. Def. App. 3-6, 9. Finally, Telenor's argument that the Foreign Affairs Manual ("FAM") has the status of a regulation and that the FAM includes provisions regarding position descriptions does not help its argument. Even if the excerpts of the FAM that Telenor relies upon are regulations, Telenor does not demonstrate that the position description of Mr. Daugherity appears in the FAM. For the foregoing reasons, the Government requests that the Court deny Telenor's motion to strike any portion of the declarations of Mr. Daugherity, Mr. Schwartz, or Mr. Halter.

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/Patricia M. McCarthy PATRICIA M. MCCARTHY Assistant Director

s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20005 Telephone: (202) 514-4325 Facsimile: (202) 514-7965

February 17, 2006

OF COUNSEL: ONA M. HAHS Attorney-Adviser Department of State Attorneys for Defendant

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Certificate of Filing I hereby certify that on February 17, 2006, a copy of the foregoing Defendant's Opposition To Plaintiff's Motion To Strike Declarations Interpreting A State Department Position Description 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/Timothy P. McIlmail