Free Notice of Additional Authority - District Court of Federal Claims - federal

Case 1:02-cv-01894-EJD

Document 106

Filed 01/09/2008

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS CONSUMERS ENERGY COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 02-1894C (Chief Judge Damich)

DEFENDANT'S NOTICE OF ADDITIONAL AUTHORITY Defendant, the United States, brings to the Court's attention the recent decision by the United States Court of Appeals for the Federal Circuit in St. Christopher Associates v. United States, No. 2007-5069 (Fed. Cir. Jan. 9, 2008). The Court's decision in St. Christopher supports the Government's position in its pending motion to dismiss Count III of the complaint of plaintiff, Consumers Energy Company ("Consumers"), which alleges a Fifth Amendment taking claim. Specifically, in our motion to dismiss, we asserted that Consumers has failed to state cognizable takings claims, as those claims are expressly predicated upon a contract with the Government. In St. Christopher, a plaintiff alleged both a takings claim and a breach of contract claim based upon the refusal of the Department of Housing and Urban Development ("HUD") to consider the plaintiff's request for a rent increase. The Federal Circuit rejected plaintiff's takings claim, holding that "any claim that St. Christopher may have asserted should be a breach of contract claim, not a taking claim." Slip op. at 15. A copy of the St. Christopher decision is attached for the Court's convenience.

Case 1:02-cv-01894-EJD

Document 106

Filed 01/09/2008

Page 2 of 2

Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director s/ Scott R. Damelin SCOTT R. DAMELIN Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-2312 Fax: (202) 307-2503

OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Avenue, S.W. Washington, D.C. 20585 STEPHEN FINN JOSHUA E. GARDNER Trial Attorneys Department of Justice Washington, D.C. 20530 January 9, 2008

Attorneys for Defendant

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