Free Status Report - District Court of Federal Claims - federal

Case 1:05-cv-00448-NBF

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS RAYTHEON COMPANY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) )

No. 05-448C (Judge Firestone)

DEFENDANT'S STATUS REPORT As directed by the Court's orders dated July 28 and August 11, 2008, defendant, the United States, respectfully submits this Status Report to propose a summary judgment briefing schedule to resolve the PRB issue. Defendant is submitting this status report on its own behalf because the parties have discussed but were not able to agree upon a schedule that they could jointly recommend for the Court's consideration. Defendant proposes the following schedule for the resolution of the PRB issue: September 30, 2008 November 21, 2008 Raytheon to file summary judgment motion on PRB issue Defendant to file its opposition and any cross-motion on PRB issue Raytheon to file its reply in support of its motion and its opposition to any cross-motion filed by defendant Defendant to file its reply in support of any cross-motion

December 19, 2008

January 16, 2009

This is a reasonable and workable schedule, and should be adopted. The Court will recall that there was considerable discussion at the June 27, 2008 status conference regarding the summary judgment briefing schedule for the PRB issue. In that discussion, Raytheon agreed that it would go first on the PRB issue. In response to the Court's question, after defendant's counsel had argued that Raytheon should go first on the PRB issue

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because Raytheon was the party claiming entitlement and had the burden of going forward, Raytheon's counsel stated.: "Your Honor, I have no objection to going first on that PRB issue." Transcript of June 27, 2008 Status Conference, pp. 13-14 (Attachment No. 1). On July 29, 2008, Raytheon proposed to the Government to submit a joint status report recommending a briefing schedule under which Raytheon would go first by filing its summary judgment motion on the PRB issue on September 30, 2008. See E-Mail Message dated July 29, 2008, from C. Brennan to C. Bird (Attachment No. 2). In response, in an August 13 telephone conversation with Raytheon's counsel, the Government proposed the schedule recommended above. Even though Raytheon had agreed with the Court that it would go first, Raytheon's counsel objected to the Government's proposed schedule and stated that the parties should file simultaneous motions for summary judgment. Later that same day (August 13), Raytheon's counsel sent an e-mail message that stated in part: "We disagree with your proposed summary judgment briefing schedule to resolve the PRB issue in which Raytheon would be the first to file a motion for summary judgment. As I stated, it is our position that the parties should simultaneously file motions for summary judgment." E-Mail Message dated August 13, 2008 from C. Brennan to C. Bird (Attachment No. 3). Raytheon should be required to file the first motion on the PRB issue as it agreed in Court. The Court should reject the simultaneous summary judgment procedure that Raytheon proposes. This procedure is contrary to this Court's established practice for cross-motions (see RCFC 7.2(e)), multiplies the number of briefs that the Court is required to review (from four to six), and, most important, raises the real possibility that the parties will not directly confront and address in a systematic fashion the arguments raised by the other side.

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For these reasons, the Court should reject Raytheon's belated suggestion of simultaneous briefing, and should adopt the schedule recommended above. Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General

JEANNE E. DAVIDSON Director

s/ Kirk T. Manhardt by s/ Franklin E. White KIRK T. MANHARDT Assistant Director

OF COUNSEL: LAWRENCE S. RABYNE Defense Contract Management Agency 1523 W. Central Road Arlington Heights, IL 60005-2451 Dated: August 18, 2008 s/ C. Coleman Bird C. COLEMAN BIRD Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Telephone: 202.307.0453 Facsimile: 202.514.7965 E-Mail: [email protected] Attorneys for Defendant United States

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Index to Attachments Attachment 1 Excerpt from Transcript of June 27, 2008 Status Conference, pp. 13-14 E-Mail Message dated July 29, 2008, from C. Brennan to C. Bird E-Mail Message dated August 13, 2008 from C. Brennan to C. Bird

Attachment 2 Attachment 3

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CERTIFICATE OF FILING I hereby certify that on the 18th day of August, 2008, a copy of the foregoing Defendant's Status Report 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/ C. Coleman Bird

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