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

Case 1:02-cv-01632-FMA

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Filed 05/14/2004

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NORTH STAR ALASKA HOUSING CORP., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 02-1632C (Judge Allegra)

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO LIFT THE STAY IN THIS CASE Pursuant to the Court's order of May 5, 2004, defendant provides the following response to North Star's request to lift the stay of this case. Contrary to North Star's statement in its motion, defendant did not join in plaintiff's motion to request a partial lifting of the stay of this case. Indeed, defendant's counsel had no previous knowledge of North Star's intent to file a motion for this purpose with the Court on May 5, 2004. North Star's motion relies upon correspondence between the Assistant United States Attorney and it's criminal counsel and our subsequently filed status report for its belief that the United States joined in that request. In our May 3, 2004 status report, we stated that in order to avoid delay to the civil proceedings, the United States would join in a request to this Court to modify the suspension of these cases to permit briefing and decision upon the motion for summary judgment filed by North Star on March 28, 2003. The declaration by the Assistant United States Attorney in support of that status report states that he supports that request to the extent the litigation of the motion for summary judgment will not interfere with the investigation. The caption of defendant's status report contained the number of each of the three North Star cases before this Court. Defendant's counsel believed that was correct, because the status report, like the stay,

Case 1:02-cv-01632-FMA

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addresses all three cases. North Star's motion for summary judgment, however, addresses only the counts presented in case no. 98-168C. See Plaintiff's Motion for Summary Judgment at 1. When defendant's counsel was contacted by the Assistant United States Attorney regarding a request to lift the stay to pursue North Star's summary judgement motion, I agreed that would be appropriate to advance the litigation before this Court. I did not agree to join in whatever motion North Star would submit to the Court without an opportunity to review that motion. I anticipated that North Star would contact me to develop a joint motion for this purpose. Based upon the limited application of North Star's motion for summary judgment to the issues presented in case no. 98-168C, we oppose North Star's request to lift the stay in this case For these reasons, we respectfully request that North Star's motion be denied. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/David M. Cohen DAVID M. COHEN Director

Case 1:02-cv-01632-FMA

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OF COUNSEL: ANNE N. ROTH Assistant District Counsel United States Army Corps of Engineers Alaska District

s/Donald E. Kinner DONALD E. KINNER Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-7561 Attorneys for the Defendant

May 14, 2004

Case 1:02-cv-01632-FMA

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Filed 05/14/2004

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Certificate of Filing I hereby certify that on May 14, 2004 a copy of foregoing "DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO LIFT THE STAY IN THIS CASE" 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/Donald E. Kinner