Free Status Report - District Court of Federal Claims - federal

Case 1:02-cv-01632-FMA

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Filed 07/15/2003

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

No. 98-168 C, 02-1632C Judge Francis M. Allegra

PLAINTIFF'S STATUS REPORT Plaintiff submits this status report regarding developments since the Court entered a stay of litigation on April 3, 2003 based on the Government's March 28, 2003 in camera submission concerning a potential criminal investigation of North Star Alaska Housing Corp. ("North Star"). As set forth below, there appears to have been little, if any, investigative activity during the entire three (3) months that have passed since the Court stayed the litigation. 1 Meanwhile, North Star is significantly prejudiced and continues to suffer the daily financial impact of the Government's lease violations. North Star has made every effort to attempt to cooperate in the investigation and to expedite same. North Star's efforts, however, have been ignored or rebuffed by the Government, which does not appear to be conducting an investigation at all. Indeed, as of the date of this submission, the Government has not interviewed any employees of North Star, nor has it requested any documents or other information pertaining to the investigation.

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Yesterday counsel for plaintiff received a notice from the government that the government had filed a Status Report with the Court on July 1, 2003, as ordered by the Court on April 3, 2003. We were informed by the Clerk of the Court last week that they have no record that the Status Report was filed.

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On April 3, 2003, Terence J. Lynam of Akin Gump, at the request of Mr. Killian, plaintiff's counsel, called Donald E. Kinner, counsel for the Government, to learn the name and telephone number of the investigator conducting the investigation and offer North Star's cooperation. Mr. Kinner was not there and Mr. Lynam left a voicemail message. Mr. Kinner did not return the call. On April 16, 2003, Mr. Lynam called him again and left another voicemail message for Mr. Kinner. On April 24, 2003, Mr. Lynam finally spoke to Mr. Kinner and informed him that North Star wanted to cooperate with the investigation and reach a conclusion quickly. Mr. Lynam asked who he could contact regarding the investigation. Mr. Kinner stated that he did not know who was conducting the investigation and directed Mr. Lynam to Anne Nelson, an assistant district counsel for the Army Corps of Engineers in Anchorage, Alaska. Mr. Lynam called Ms. Nelson on April 24, 2003, and left her a voicemail when he was unable to reach her. He called again and could not reach her, and called yet again on May 15, 2003, when her voicemail stated that she would be out of the office until May 19, 2003. It was not until June 3, 2003 that Ms. Nelson returned Mr. Lynam's call. During their June 3 conversation, Ms. Nelson first told Mr. Lynam that North Star had already been told how to contact the Criminal Investigation Division's ("CID") investigator. However, her assertion was incorrect, as no such information had previously been conveyed. She initially advised Mr. Lynam that the Army investigator would be with the CID fraud division in Portland, Oregon, but provided no contact information. She later advised Mr. Lynam that he should contact the CID office in Vancouver, Washington, but again did not provide any telephone number or tell him the name of the investigator. That same day, Mr. Lynam phoned the CID's Fort Lewis, Washington Office (the phone number was publicly available) in an effort

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to determine who was handling the case, and was provided the phone number of the CID Office in Vancouver, Washington. Counsel for North Star left a message on the office voicemail of the Army CID Office in Vancouver on June 3, 2003. The phone call went unreturned. Counsel for North Star called the office again on June 9, 2003, and was able to speak to Jerry Cape, a CID investigator. During the telephone conversation, counsel inquired about the North Star investigation and Mr. Cape stated that he had "just got the case" and "hadn't done much yet". Indeed, when North Star's attorneys expressed a desire to discuss the status of the investigation, pledging the company's cooperation, Mr. Cape stated that he would need to speak with the U.S. Attorney's Office in Anchorage to determine what information he could reveal. In addition, Mr. Cape informed counsel for North Star that he would be traveling for a week and would be unable to call the U.S. Attorney's Office or work on the matter while he was gone. North Star has not heard from Mr. Cape since the June 9 telephone call. It is respectfully suggested that the Court stayed this litigation to accommodate the Government's purported alleged pressing need to conduct an investigation. The Government has done nothing to begin, much less pursue that investigation. Meanwhile, key contractual issues are going unresolved which impact North Star on, virtually, a daily basis. For example, the Government is continuing its practices of stockpiling units and dumping large numbers of units on North Star at once; creating a long list of items for North Star to accomplish during unit turnover, most of which are actually caused by the occupants; rescheduling the dates for unit turnover in breach of the lease making it extremely difficult for North Star to schedule and staff work with subcontractors and employees; making downtime assessments that fail to distinguish between change of occupancy and repair days; and depreciating the cost of replacing items

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damaged by occupant conduct. North Star must live with the Government's ever changing interpretations until the Court rules on these basic contract issues. North Star requests that the Court lift the stay and permit the litigation to move forward.

Respectfully submitted, s/ Paul W. Killian ____________________________________ PAUL W. KILLIAN Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Ave., N.W. Washington, D.C. 2003 (202) 887-4000 Dated: July 15, 2003

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiff's Status Report was served electronically, this 15th day of July, 2003, on:

Donald E. Kinner, Esq. Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Attorney for Defendant

s/ Paul W. Killian _________________________ Paul W. Killian

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