Free Notice (Other) - District Court of Federal Claims - federal

Case 1:00-cv-00428-CCM

Document 128

Filed 01/08/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS INTERNATIONAL AIR RESPONSE, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 00-428 (Judge Christine O.C. Miller)

DEFENDANT'S NOTICE CONCERNING THE COURT'S ORDER DATED DECEMBER 20, 2007 Defendant, the United States, respectfully submits this notice in response to the Court's order dated December 20, 2007. In that order, the Court invited us to file a sur-reply brief to address new materials included in plaintiff, International Air Response, Inc. ("IAR")'s reply brief in support of its application for fees and expenses pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. We argued in our opposition brief that IAR had not shown that it satisfied the eligibility requirements set forth in 28 U.S.C. § 2412(d)(2)(B). That subsection limits EAJA eligibility to entities with a net worth of less than $7,000,000 and fewer than 500 employees at the time the action was filed. In the attachments to its reply brief, IAR included tax return information and a sworn declaration that appear to establish that IAR satisfies the net worth and employment requirements of section § 2412(d)(2)(B). In light of this new information and Bazalo v. West, 150 F.3d 1380, 1383-84 (Fed. Cir. 1997) (holding that a timely EAJA applicant may supplement its application with additional information concerning its net worth), we are now satisfied that IAR meets the net worth and maximum employment requirements of section 2412(d)(2)(B).

Case 1:00-cv-00428-CCM

Document 128

Filed 01/08/2008

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Accordingly, we respectfully submit this notice that defendant will not submit a sur-reply brief concerning that issue.

Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Donald E. Kinner DONALD E. KINNER Assistant Director s/ Roger A. Hipp ROGER A. HIPP Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20005 Tel. (202) 305-3091 Fax (202) 307-0972 January 8, 2008 Attorneys for Defendant

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Case 1:00-cv-00428-CCM

Document 128

Filed 01/08/2008

Page 3 of 3

CERTIFICATE OF FILING I hereby certify that on this 8th day of January 2008, a copy of the foregoing "DEFENDANT'S NOTICE CONCERNING THE COURT'S ORDER DATED DECEMBER 20, 2007" was electronically filed. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system.

s/ Roger A. Hipp