Free Motion in Limine - 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 SECOND MOTION IN LIMINE On September 3, 2004, the Court ordered that the parties file, by May 2, 2005, any in limine motions that raise issues of a substantive nature, i.e., issues that ordinarily would have been raised in a motion for summary judgment or partial motion therefore. Defendant, the United States, requests that the Court

exclude, from the trial scheduled to commence in these consolidated cases on August 15, 2005, evidence that the Government is responsible for an estimated $1,300,000 loss to plaintiff, North Star Alaska Housing Corp., during the period from 1997 through September 1, 2002. North Star estimates that

alleged loss by using an analysis that resembles a "total cost" claim, where evidence of actual costs caused by alleged Government breaches is available. North Star alleges that the Government increased its costs beyond those contemplated when it executed the lease of Birchwood Homes. Case No. 02-1632C Complaint ("Compl.") ¶¶ 4-5. Through

expert testimony, North Star intends to present, in support of that allegation, evidence that Birchwood Homes was $1.3 million

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more expensive to operate during the period 1997 through September 1, 2002, than was another Fairbanks, Alaska, property known as Sprucewood Homes, located on Eielson Air Force Base. Appendix ("App.") at 4-6. Sprucewood Homes is owned by Polar

Star, a corporation, like North Star, owned by Richard W. Fischer. App. at 9-11. Under the total

That claim resembles a total cost claim.

cost method, the measure of damages is the difference between the actual cost of the contract and the contractor's bid. Co. v. White, 305 F.3d 1354, 1365 (Fed. Cir. 2002). Raytheon The method

has always been viewed with disfavor, in part because of concerns about bidding inaccuracies, which can reduce the contractor's estimated costs, and performance inefficiencies, which can inflate its actual expenditures. Id. Moreover, the total cost

method does not distinguish costs for which the Government is responsible from costs that the contractor should bear. Id. The

total cost method has been used "only when no other mode was available . . . ." Id. (quoting WRB Corp. v. United States,

183 Ct. Cl. 409, 426 (1968)). North Star should not be allowed to rely upon a total costtype claim as a method to establish damages. Testimony of North

Star's treasurer reflects that North Star has other, more reliable methods than a comparison to Polar Star of establishing the costs to it of the breaches that it alleges in Case No. 02-2-

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1632C.

In fact, North Star is able to calculate the actual costs

of particular breach claims. For example, North Star alleges that the Government failed to issue work authorizations for the correction of occupant damage. Case No. 02-1632C Compl. at 12. According to North

Star's treasurer, however, damage associated with that issue is being calculated and can be calculated. App. at 18-19, 20-23.

North Star also alleges that the Government issued improper work authorizations (Case No. 02-1632C Compl. at 14) but, according to North Star, damage associated with that issue is also "calculatable." App. at 23-24. North Star alleges that

reimbursement for work authorizations is not based upon the "list of repair costs." Case No. 02-1632C Compl. at 14. App. at 24. That, too, is

subject to a damage calculation.

North Star further alleges that the Government requires subcontractor invoices as a precondition of reimbursement for work authorizations. Case No. 02-1632C Compl. at 15. Damage

associated with that alleged requirement is also amenable to calculation. App. at 24. North Star is also able to calculate

the impact of the Government's alleged exclusion of "Birchwood repair items from the Fort Wainwright Self Help Center." No. 02-1632C Compl. at 8-9 ¶ 21; App. at 31. North Star alleges that the Government improperly depreciates replacement items such as countertops, blinds, -3Case

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appliance parts, and flooring for purposes of reimbursing North Star for occupant damage. ¶ 53. Case No. 02-1632C Compl. at 15-16

North Star, however, claims to have calculated App. 28-31.

depreciation costs.

Finally, North Star alleges that the Government has inflated its calculation of "downdays" and reduced North Star's rent. Case No. 02-1632C Compl. at 17. North Star, however, has

calculated the alleged cost of what it regards as improper rent abatement. App. at 25-27. Because North Star has or could

calculate the actual costs of what it alleges are Government breaches of its lease, the Court should exclude, from trial, evidence that the cost to North Star of operating Birchwood Homes was, during the period 1997 through September 1, 2002, greater than the cost to Polar Star of operating Sprucewood Homes or was beyond those costs contemplated when it executed the lease of Birchwood Homes. For the foregoing reasons, the Court should grant this motion in limine.

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/David M. Cohen by s/Jeanne E. Davidson DAVID M. COHEN Director

OF COUNSEL WILLIAM. M. EDWARDS Assistant District Counsel United States Army Corps of Engineers Alaska 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) 307-0361 Facsimile: (202) 514-7965 Attorneys for Defendant

April 21, 2005

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Certificate of Filing I hereby certify that on April 21, 2005, a copy of the foregoing Defendant's Second Motion In Limine 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. s/Timothy P. McIlmail Parties may access this filing through the Court's