Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:05-cv-00281-NBF

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiff, ) ) v. ) ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) UNISYS CORPORATION,

No. 05-281C (Judge Firestone)

JOINT MOTION FOR DEFERRAL OF JOINT PRELIMINARY STATUS REPORT Pursuant to RCFC Appendix A, ¶ 6, plaintiff, Unisys Corporation, and defendant, the United States, jointly and respectfully request that the Joint Preliminary Status Report be deferred pending the Court's determination of cross-motions for partial summary judgment on the legal issues described below. The parties propose below a briefing schedule for the Court's consideration. As the parties have previously advised the Court, the parties have been discussing the possibility that the issues in this case may be amenable to resolution upon motion for summary judgment, in whole or in substantial part. See Joint Motion for Enlargement of Time, dated October 11, 2005, at 1-2. The parties believe that certain legal issues appear appropriate for resolution as a matter of law by motion for partial summary judgment, and that the Court's early resolution of these legal issues would materially advance the ultimate termination of this litigation. These issues are the following: 1. If Unisys transferred to the buyer an amount of the closed

segment's total pension surplus as of the date of the segment closing that was

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greater than the Government's share under CAS 413.50(c)(12) of the closed segment's total pension surplus, did Unisys by making that transfer satisfy its obligation to make a segment-closing adjustment under CAS 413.50(c)(12)? 2. If the answer to the first issue is in the negative, is the Government

entitled to recover its full share under CAS 413.50(c)(12) of the pension surplus that Unisys retained, or is the amount of the Government's recovery relating to the retained surplus required to be reduced or eliminated to the extent that the transfer of the remaining surplus to the buyer resulted in the buyer's charging lower amounts of pension cost to the Government in later years than it otherwise would have? The parties propose the following briefing schedule for the Court's consideration for the filing of cross-motions pursuant to RCFC 56 and 7.1(e) on these legal issues: Plaintiff's motion for partial summary judgment Defendant's cross-motion for partial summary judgment and opposition to plaintiff's motion Plaintiff's opposition to defendant's cross-motion and plaintiff's reply in support of its motion Defendant's reply in support of its cross-motion 60 days from the Court's entry of a scheduling order 60 days for the date of service of plaintiff's motion

30 days from the date of service of defendant's cross-motion

30 days from the date of service of plaintiff's opposition and reply

For the foregoing reasons, the parties jointly and respectfully request that the Court defer the Joint Preliminary Status Report pending the Court's determination of the parties' cross-

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motions for partial summary judgment to be filed in accordance with the schedule requested above. Respectfully submitted, s/ Terry L. Albertson TERRY L. ALBERTSON Crowell & Moring LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2595 Telephone: 202.624.2635 Facsimile: 202.628.5116 Attorney for Plaintiff Unisys Corporation Dated: October 25, 2005 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 Attorneys for Defendant United States of America OF COUNSEL: STEPHEN R. DOOLEY Supervisory Trial Attorney Defense Contract Management Agency 495 Summer Street Boston, MA 02210 PETER D. KEISLER Assistant Attorney General

s/ David M. Cohen DAVID M. COHEN Director

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CERTIFICATE OF FILING I hereby certify that on the 25th day of October, 2005, a copy of the foregoing Joint Motion for Deferral of Joint Preliminary 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