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

Case 1:96-cv-00700-LB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS APACHE APARTMENTS OF OWATONA, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 96-700C (Judge Block)

DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO STAY TRIAL Defendant, the United States, opposes plaintiffs' request to stay trial. request. First, this case is now more than nine years old, and trial is scheduled to commence in less than three months. Although For three reasons, the Court should deny that

plaintiffs point to the Government's appeals in Chancellor Manor v. United States, No. 06-5052 (Fed. Cir.), and Cienega Gardens v. United States, No. 06-5051 (Fed. Cir.), as the basis of their request, notices of those appeals were filed on January 20, 2006; more than two months ago. Second, the stay that plaintiffs request is remarkably indefinite. No briefs have been filed in either Chancellor Manor

or Cienega Gardens; indeed, the Government's initial briefs in those cases are not due until May 2006. Furthermore, plaintiffs

cannot control whether any of the parties to Chancellor Manor and Cienega Gardens seek further review of any appellate decisions in those cases, and do not suggest that they will abide by rulings

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in such decisions that are adverse to their positions in this case. That leaves open the possibility that plaintiffs could

request a further stay of proceedings in this case pending review by the United States Supreme Court of Chancellor Manor and Cienega Gardens. Third, in deciding to stay proceedings indefinitely, a trial court must first identify a pressing need for the stay. Cherokee

Nation of Oklahoma v. United States, 124 F.3d 1413, 1416 (Fed. Cir. 1997). Plaintiffs identify no pressing need for the Regardless of any appellate

indefinite stay that they request.

decisions in Chancellor Manor and Cienega Gardens, a trial will likely be required in this action to perform the plaintiffspecific, ad hoc inquiry that Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), requires in regulatory takings cases such as this. See Chancellor Manor v. United (Indeed, although

States, 331 F.3d 891, 904-07 (Fed. Cir. 2003).

plaintiffs note the cases of Anaheim Gardens v. United States, Nos. 01-5011, 01-5012 (Fed. Cir.), on March 24, 2006, those cases were remanded to this Court for development of a factual record, without deciding any issue presented in this case. op. at 13 (Fed. Cir.)). See id., Slip

With discovery complete, there is no

pressing need to delay the trial that will be necessary to compile the record required for that Penn Central inquiry. For the foregoing reasons, the Court should deny plaintiffs'

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motion to stay trial in this case. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/Brian M. Simkin BRIAN M. SIMKIN Assistant Director

s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 514-4325 Facsimile: (202) 514-7965 March 29, 2006 Attorneys for Defendant

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Certificate of Filing I hereby certify that on March 29, 2006, a copy of the foregoing Defendant's Response To Plaintiffs' Motion To Stay Trial 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. the Court's system. Parties may access this filing through

s/Timothy P. McIlmail