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

Case 1:96-cv-00408-LAS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS INNOVAIR AVIATION LIMITED, Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 96-408C (Judge Smith)

DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S REQUEST TO MODIFY THE POST-TRIAL BRIEFING SCHEDULE Defendant respectfully replies to the opposition of plaintiff, Innovair Aviation, Ltd. (Innovair) (Pl. Opp. Br.), to the Government's motion to modify the post-trial briefing schedule in this case. In our motion for enlargement of time, we requested the Court to extend the date for the filing of the Government's post-trial brief from February 4, 2008, until March 3, 2008, and to extend the date for the filing of the plaintiff's post-trial brief by approximately one month and to extend the date for the parties' oral argument by at least three weeks after the plaintiff has filed its post-trial brief. As we demonstrate below, Innovair is seriously misinformed in its reasons for opposing the Government's request for enlargement of time. Plaintiff's first reason for opposing the Government's request appears to be based upon its misguided assumption that the Government counsel's need to attend to matters in other cases, such as Rose Acre Farms, Inc. v. United States, No. 2007-5169 (Fed. Cir.) and Ag-Innovations, Inc. et al. v. United States, No. 05-776C (Fed. Cl.), while writing the brief in this case was a "self-created predicament." Nothing can be further from the truth. Contrary to plaintiff's contention, Government counsel was required to re-schedule the deadlines in this case and her other cases for reasons outside of her control. Government counsel filed extensions of time in connection with the appeal of Rose Acre as a result of intensive review by the upper level of

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management in the Department of Justice of the Government's Rose Acre appeal memorandum in light of the Federal Circuit's issuance of its decision, Cienega Gardens, et al. v. United States, Nos. 2006-5051, -5052 (Fed. Cir. Sept. 25, 2007), which significantly diverged from the Federal Circuit's earlier decision in Cienega Gardens, et al. v. United States, 307 F.3d 1319 (Fed. Cir. 2003), upon which the Rose Acre trial court had relied heavily in ruling against the Government in July 2007. On December 19, 2007, counsel for the Government requested the Federal Circuit to extend the due date for the Rose Acre appeal brief from January 16, 2008, until February 15, 2008, because a representative from the Office of the Solicitor General of the United States requested her to seek an additional 30 days for the filing of the Government's appeal brief due to the exceptionally heavy work load in the Office of the Solicitor General. In fact, due to that office's heavy work load, we are still awaiting authority from the Solicitor General's office to file an appeal brief in Rose Acre. In the meantime, counsel for the Government has been working closely with the Solicitor General's office and other Department of Justice attorneys to prepare the Government's appeal brief and has been unable to spend the time necessary to draft the Government's post-trial brief in this case. With respect to Ag-Innovations, et al. v. United States, No. 05-776C (Fed. Cl.), Innovair contends that Government counsel's need to work on the Ag-Innovations matter instead of completing the post-trial brief in this case was also within her control, noting that, in late November 2007, the Government moved to extend the discovery period in Ag-Innovations. What Innovair fails to point out is that the Government moved to extend the discovery deadline in Ag-Innovations because plaintiffs in Ag-Innovations did not turn over certain tax and accounting records that were responsive to the Government's July 2006 document production

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requests until mid-July 2007 and January 29, 2008, and plaintiffs did not turn over tax information that were responsive to the Government's August 2007 production request until late October 2007. In fact, certain accounting records that are responsive to the Government's July 2006 document production request are still outstanding, and we have only recently learned that these records will not be produced until February 6, 2008. Moreover, as a result of their failure to timely produce some of their accounting records, plaintiffs in Ag-Innovations, which had initially opposed the Government's extension of the discovery deadline in that case, retracted their opposition to the Government's request to extend the discovery deadline until February 29, 2008. Thus, it is clear that the Government has been delayed in completing its discovery in AgInnovations because of plaintiffs' failure to turn over, in a timely manner, documents they were required to produce much earlier in the litigation. As a result, counsel for the Government is currently required to juggle her responsibilities in this case with her responsibilities in AgInnovations because of matters which were outside of her control. In its opposition to the Government's motion for enlargement of time, Innovair also points out that Brian Edmunds appears to be unavailable to assist the Government's counsel of record with the filing of the Government's post-trial brief. In fact, Mr. Edmunds was assigned to assist counsel for the Government in the trial of this case, but he was not assigned to assist her in connection with any post-trial work. Mr. Edmunds personally handles a number of his own cases and does not have the time to assist in the preparation of the Government's post-trial brief. Finally, Innovair mentions that its claims in this case stem from actions that occurred in 1991. Contrary to Innovair's contention, Pl. Opp. Br. 2, delays in the resolution of this matter were not the result of the Government's previous requests for enlargement of time. This case

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was stayed from 1998 until 2001 while Innovair was litigating many of the same matters at issue here in the Arizona district court and the Court of Appeals for the Ninth Circuit, courts which do not possess jurisdiction to entertain Innovair's Fifth Amendment takings claim. Although we appreciate the fact that Innovair has conceded that the Government may have until February 25, 2008, to file its post-trial brief in this case, the Government truly requires until March 3, 2008, to complete its brief in this matter. As we demonstrated in our initial brief and in this brief, counsel for the Government is required to juggle two additional timeconsuming matters while trying to complete the Government's post-trial brief. Once Government's counsel completes drafting the Government's brief, her supervisor will need at least three days to read and comment upon the draft brief, and Government's counsel will be required to incorporate her supervisor's comments into the final brief and to prepare the Government's appendix. Accordingly, the Government will require the full two weeks after it files its brief on February 15, 2008, in Rose Acre Farms, Inc. v. United States, to complete the preparation of the Government's brief in this case. For the reasons contained in this brief and in our initial request, we respectfully request that the Court grant our motion for enlargement of time. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General

/s/ Jeanne E. Davidson JEANNE E. DAVIDSON Director

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/s/ Sheryl L. Floyd SHERYL L. FLOYD Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 616-8278 Attorneys for Defendant FEBRUARY 1, 2008

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CERTIFICATE OF FILING I hereby certify that on this 1st day of FEBRUARY, 2008, a copy of this "DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S REQUEST TO MODIFY THE POST-TRIAL BRIEFING SCHEDULE" was filed e1ectronically. 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/ Sheryl L. Floyd