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

Case 1:04-cv-00634-EJD

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THOMAS D. PETERSON, SAUNDRA L. PETERSON, RANDAL J. PETERSON, SHEELAGH M. MURPHY and DON R. PARKER Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) )

No. 04-634C (Chief Judge Damich)

DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS, IN PART, FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM Plaintiffs' response to our request that the Court dismiss their Second Cause Of Action for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted is that we raised neither issue in our answer to their complaint. Plaintiffs' Memorandum Of Points And

Authorities In Opposition To Defendant's Motion To Dismiss at 2, 4. A question of subject matter jurisdiction, however, can be Heaphy v. United States, 23 Cl. Ct. 697, 700

raised at any time. (1991).

In addition, the defense of failure to state a claim upon which relief can be granted may be made in any pleading permitted or ordered under Rule 7(a) of the Rules of the United States Court of Federal Claims ("RCFC"), or by motion for judgment on the pleadings, or at the trial on the merits. RCFC 12(h)(2).

Although some courts have interpreted that rule restrictively as denoting the only points in time at which the defense of failure

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to state a claim upon which relief can be granted may be raised, other courts have taken a more permissive approach and allowed the defense to be raised at other times. See 5C Charles Alan

Wright & Arthur R. Miller, Federal Practice & Procedure § 1392 (3d ed. 2004) (discussing Rule 12(h)(2) of the Federal Rules Of Civil Procedure). Since the basic purpose of the rule probably

is to preserve the defenses, rather than to delimit the precise timing of their assertion, this latter approach is within the spirit of the provision. See id.

Indeed, a motion to dismiss for failure to state a claim made after the filing of an answer serves the same function as a motion for judgment and may be regarded as one. J.M. Huber Corp.

v. United States, 27 Fed. Cl. 659, 661 (1993) (deeming a postanswer motion to dismiss for failure to state a claim upon which relief can be granted to constitute a motion for judgment on the pleadings pursuant to RCFC 12(c)). The Court should adopt that

approach in this case, particularly in view of the Court's June 15, 2005 order directing the filing of a dispositive motion addressing the two legal issues that we identified that could be addressed while the appeal of a case related to this is pending before the United States Court of Appeals for the Tenth Circuit. For these reasons and those set forth in our motion, the Court should dismiss plaintiffs' Second Cause Of Action for lack

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of subject matter jurisdiction or, in the alternative, for failure to state a claim upon which relief can be granted.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/Deborah A. Bynum by s/Brian M. Simkin DEBORAH A. BYNUM Assistant Director

OF COUNSEL: DWIGHT WILLIAMS Office of the Regional Counsel Northwest Mountain Region Federal Aviation Administration 1601 Lind Ave. SW Renton, Washington 98055

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 (202) 307-0361 Attorneys for Defendant

August 31, 2005

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Certificate of Filing I hereby certify that on August 31, 2005, a copy of the foregoing Defendant's Reply To Plaintiff's Opposition To Defendant's Motion To Dismiss, In Part, For Lack Of Subject Matter Jurisdiction And Failure To State A Claim 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. system. Parties may access this filing through the Court's

s/Timothy P. McIlmail