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

Case 1:98-cv-00168-FMA

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

No. 98-168C (Judge Allegra)

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO CORRECT JUDGMENT Defendant, the United States, respectfully opposes the motion that plaintiff, North Star Alaska Housing Corp. ("North Star"), has filed requesting that the Court add $39,981 plus interest to its April 15, 2008 judgment for an incentive fee for 1997. North Star does not demonstrate that the Court omitted Indeed, the Court may have

that amount in clerical error.

deliberately omitted that amount. On May 25, 2007, the Court issued an order (Document 345) that addressed the Government's position regarding whether certain claims were pending in this Court and, therefore, not within the contracting officer's authority to consider. In

disagreeing with the Government's position, the Court, discussing 28 U.S.C. §§ 516 and 519, stated that "it would appear that a claim is `in litigation' only if it is covered by a complaint that is still before the court." May 25, 2007 Order at 3.

However, none of the complaints in these consolidated cases covers an incentive fee for 1997. The Second Amended Complaint

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in Case No. 98-168C (Fed. Cl.) covers, in ¶ 60, an incentive fee for 1998.1 The November 19, 2002 complaint in Case No. 02-1632C

(Fed. Cl.) covers, in ¶ 78, incentive fees for 1999 "to the present." The complaint in Case No. 03-2699C (Fed. Cl.) does not

cover incentive fees for any years. Because none of the complaints in these consolidated cases covers an incentive fee for 1997, the issue of an incentive fee for 1997 is a not a claim in litigation. Cf. Hughes Aircraft Co.

v. United States, 534 F.2d 889, 901-02 (Ct. Cl. 1976) (holding that, at the time of an agency action regarding the "Skynet II F2 project," that project was not yet the subject of pending litigation against the Government of which the Justice Department would necessarily have had exclusive supervision and control where the original petition before the court did not allege acts related to that project, and was not amended to include such acts until after the agency action). Consequently, North Star fails

to demonstrate that the Court's omission of an incentive fee amount for 1997 from its April 15, 2002 judgment was clerical error. For the foregoing reasons, we respectfully request that the Court deny North Star's motion to correct the judgment.

Paragraph 60 actually states "[f]or 1998 and thereafter," but, on May 31, 2002, the Court issued an order striking the phrase "and thereafter" from that paragraph. 2

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Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director

s/Donald E. Kinner DONALD E. KINNER Assistant Director

OF COUNSEL ANA-VALLI GORDON Assistant District Counsel United States Army Corps of Engineers Galveston District

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. 20530 Telephone: (202) 616-0342 Facsimile: (202) 514-7965 Attorneys for Defendant

July 21, 2008

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Certificate of Filing I hereby certify that on July 21, 2008, a copy of the foregoing Defendant's Response To Plaintiff's Motion To Correct Judgment 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. through the Court's system. Parties may access this filing

s/Timothy P. McIlmail