Free 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 FOR AN ORDER TO SHOW CAUSE The Court should deny plaintiff's motion for an order to show cause. Plaintiff, North Star Alaska Housing Corp., requests

that the Court order the United States to show cause why it is not in violation of the Court's October 4, 2004 order upon summary judgment. In that order, the Court granted summary

judgment, as to liability, upon count IV of North Star's second amended complaint. Order On Summary Judgment at 6. The Court

held that North Star was entitled to judgment upon the issue whether the Government was entitled to implement unilaterally a ten-year depreciation schedule for carpeting and to adjust reimbursements for carpeting damaged due to occupant negligence to reflect the remaining useful life of the carpeting replaced. Order at 5. Although the order grants summary judgment, it does

not order the Government to take or refrain from any action. More importantly, the apportionment issue that North Star raises is not properly before the Court. Count IV of North

Star's Second Amended Complaint focuses upon depreciation, not

Case 1:98-cv-00168-FMA

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apportionment upon a basis other than depreciation. Amended Complaint at 12 ¶ 41.

Second

And North Star does not identify

any certified claim submitted to the contracting officer in which it presented the issue whether the Government was entitled to apportion the cost of replacing carpet or other replacement items upon a basis other than a depreciation schedule. A contractor,

however, may not raise to this Court a claim that has not been presented and certified to the contracting officer. Santa Fe

Eng'rs, Inc. v. United States, 818 F.2d 856, 858 (Fed. Cir. 1987). For the foregoing reasons, we request that the Court deny North Star's motion for an order to show cause.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/David M. Cohen DAVID M. COHEN Director

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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

February 10, 2005

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Certificate of Filing I hereby certify that on February 10, 2005, a copy of the foregoing Defendant's Response To Plaintiff's Motion For An Order To Show Cause 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