Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:02-cv-01460-LB

Document 23

Filed 04/28/2003

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS HERMES CONSOLIDATED, INC., Doing Business As Wyoming Refining Company, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 02-1460C (Judge Block)

DEFENDANT'S MOTION FOR LEAVE TO SUBMIT SUPPLEMENTAL BRIEF The Government respectfully requests leave to submit this supplemental brief to respond to arguments raised for the first time by plaintiff in its opposition brief, dated March 13, 2003. Plaintiff does not oppose the motion, provided that it is permitted to file a response as appropriate. This is one of 21 cases currently pending before this Court. In each case, the parties have, are in the midst of, or plan to submit cross motions for summary judgment. In the course of this briefing cycle, the parties' arguments have evolved and, in at least one case, Sunoco v. United States, No. 02466C (Fed. Cl.)(Damich, C.J.), the Court has granted leave to the parties to submit supplemental briefs before and after oral argument in order to be informed of the parties' latest arguments. Here, we seek to address a section of Hermes' reply brief that addresses the question of whether Hermes has or must demonstrate that the economic price adjustment (EPA) clauses at issue caused it harm. Since Hermes filed its reply, we were afforded no subsequent opportunity to respond to this argument and would be required do so at oral argument, or in any post-argument briefing the Court might request as a result. In order to maximize the usefulness of oral argument, we believe the better practice is to file a written response in advance of oral argument. For these reasons, the Government respectfully requests leave to submit a supplemental brief

Case 1:02-cv-01460-LB

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to respond to arguments raised for the first time by plaintiff in its opposition brief, dated March 13, 2003. Respectfully submitted, ROBERT D. McCALLUM, JR. Assistant Attorney General

DAVID M. COHEN Director s/ Steven J. Gillingham STEVEN J. GILLINGHAM Senior Trial Counsel KYLE CHADWICK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., 8th Floor Washington, D.C. 20530 Tele: (202) 616-2311 Fax: (202) 353-7988 Attorneys for Defendant April 23, 2003

OF COUNSEL: BERNARD A. DUVAL Counsel HOWARD M. KAUFER Assistant Counsel Office of Counsel Defense Energy Support Center Ft. Belvoir, VA

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Case 1:02-cv-01460-LB

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CERTIFICATE OF FILING I hereby certify that on April 28 , 2003, a copy of the foregoing document 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/ Steven J. Gillingham