Free Order on Motion for Leave to File - District Court of Federal Claims - federal

Case 1:08-cv-00133-MMS

Document 52

Filed 04/01/2008

Page 1 of 2

In the United States Court of Federal Claims
No. 08-133 C (Filed: April 1, 2008) ******************************************* GLOBAL COMPUTER ENTERPRISES, INC., * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant, * * and * * QSS GROUP, INC., * * Defendant-Intervenor. * ******************************************* ORDER On March 28, 2008, plaintiff filed a Motion for Leave to File a Corrected Version of the Declaration of Kieran C. McHargue. In its motion, plaintiff represents that it inadvertently omitted one page of the McHargue Declaration containing paragraphs 15-17. A corrected copy of the McHargue Declaration accompanied the instant motion. Plaintiff indicates that defendantintervenor consents to its motion but reserves all other objections to plaintiff's declarations becoming part of the administrative record or being used to reach the merits of the case. Defendant filed an opposition on March 31, 2008, wherein it argues that plaintiff seeks to (1) add new evidence to the preliminary relief record "one business day before the Court is set to issue a decision regarding GCE's motion for preliminary relief," and (2) deprive defendant of an opportunity to rebut the proffered testimony. Def.'s Opp. Pl.'s Mot. Leave File Corrected Version Decl. Kieran C. McHargue 1-2. Although defendant acknowledges that plaintiff's omission was an error, it maintains that correcting the error "in the manner GCE requests would prejudice the Government."1 Id. at 2.
1

Defendant also states that, "[i]f the Court determines that GCE succeeded upon the merits, the Government renews its request to respond with additional evidence and argument to GCE's declarations, including the missing page, before the Court decides whether to issue a permanent injunction. Under these circumstances, we would not object to correcting the

Case 1:08-cv-00133-MMS

Document 52

Filed 04/01/2008

Page 2 of 2

In a separate order dated March 31, 2008, the court granted plaintiff's motion to redesignate the supplemental appendix in which the McHargue Declaration is contained as an appendix to plaintiff's Memorandum in (1) Reply to Defendants' Oppositions to Plaintiff's Motion for Preliminary Injunction and Application for Temporary Restraining Order; (2) in Opposition to Defendant's Motions to Dismiss; (3) in Opposition to Defendants' Motions for Judgment on the Administrative Record; and (4) in Support of Plaintiff's Cross-Motion for Judgment on the Administrative Record and Motion for Permanent Injunctive Relief rather than as an attachment to plaintiff's motion to supplement the administrative record. Also on March 31, 2008, the court issued a temporary restraining order2 and directed the parties to file a status report setting forth any issues that they wish to address further, together with a proposed briefing schedule, by no later than Thursday, April 3, 2008. To avoid any alleged prejudice, defendant shall respond to plaintiff's declarations with additional evidence and argument. It shall advise the court of the precise issue(s) it will address and suggest a proposed briefing schedule in the status report to be filed by April 3, 2008. Accordingly, the court GRANTS plaintiff's instant motion. Plaintiff's corrected version of the McHargue Declaration shall be included as part of plaintiff's supplemental appendix to its memorandum. Nothing in this order shall be construed to incorporate plaintiff's corrected version of the McHargue Declaration into the administrative record as the court has yet to rule upon plaintiff's motion to supplement the administrative record. IT IS SO ORDERED.

s/ Margaret M. Sweeney MARGARET M. SWEENEY Judge

McHargue declaration." Def.'s Opp. Pl.'s Mot. Leave File Corrected Version Decl. Kieran C. McHargue 2 n.1. In granting the temporary restraining order, the court did not rely on the McHargue Declaration. -22