Free Memorandum - District Court of Federal Claims - federal

Case 1:04-cv-01544-LMB

Document 84-2

Filed 10/19/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ________________________________ ) THE ELLAMAE PHILLIPS COMPANY, ) a Colorado Registered Limited ) Liability Partnership, ) ) Plaintiff, ) No. 04-1544 L v. ) ) Judge Lawrence M. Baskir UNITED STATES OF AMERICA, ) ) Defendant. ) _______________________________ ) AFFIDAVIT OF WILLIAM J. SHAPIRO 1. I am an attorney in the Environment and Natural Resources Division of the United States Department of Justice, and am counsel of record in the above-referenced case. 2. The Court issued its Order on the parties' cross motions for summary judgment on July 3, 2007. I was on previously-scheduled annual leave on that date, and returned to my office on July 9, 2007. 3. I sent an email to George Allen, counsel for Plaintiff, on July 9, 2007, requesting Plaintiff's thoughts about moving this case forward. 4. I also transmitted an email to other attorneys within the Department of Justice on July 9, 2007, to inform them of the Court's Order and to initiate an internal discussion about a possible appeal of this matter 1
Exhibit 1 to United States' Memorandum in Support of Motion to Certify Interlocutory Appeal and Motion to Stay Proceedings Prending Resolution of Interlocutory Appeal

Case 1:04-cv-01544-LMB

Document 84-2

Filed 10/19/2007

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at that time. 5. An internal meeting was held among several attorneys on July 12, 2007, to discuss a possible appeal. Attorneys from the Natural Resource Section and the Environment and Natural Resources Division's Appellate Section participated in this meeting. 6. The decision to request a trial court to certify an order for interlocutory appeal is made the Solicitor General of the United States, with input from the agency client, the relevant litigation section (here, the Natural Resources Section), and the Appellate Section. 7. Following the July 12, 2007 meeting, and further discussions among several attorneys, the Natural Resources Section and the Appellate Section prepared legal memoranda, which are necessary to enable the Solicitor General's consideration of potential appeals. I also contacted agency counsel from the Surface Transportation Board ("STB") to obtain STB's views on pursuing an interlocutory appeal. 8. By July 26, 2007, counsel for Plaintiff had not responded to my July 9, 2007 email. I transmitted another email to Plaintiff's counsel on July 26, 2007, to solicit his thoughts on future proceedings in this

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Exhibit 1 to United States' Memorandum in Support of Motion to Certify Interlocutory Appeal and Motion to Stay Proceedings Prending Resolution of Interlocutory Appeal

Case 1:04-cv-01544-LMB

Document 84-2

Filed 10/19/2007

Page 3 of 5

case. 9. Following my July 26, 2007 email to plaintiffs, I discussed this matter with Plaintiff's counsel by telephone. During that conversation, I informed Plaintiff's counsel that the United States was interested in determining whether to ask the Court to certify an interlocutory appeal to the Federal Circuit. 10. Counsel for Plaintiff and I agreed to a Joint Status Report, which I filed on August 1, 2007. In that report, both parties agreed that the "the best option is to permit the United States a reasonable period of time to consider the Court's ruling and determine whether to request certification." Joint Status Report, dated Aug. 1, 2007. 11. Prior to filing the August 1, 2007 Joint Status Report, I was informed that it was likely that a decision would be made on whether to request certification no later than October 3, 2007. For that reason, I suggested that the parties submit a further report by October 1 in the August 1, 2007 Joint Status Report. (I inadvertently used a date of October 1st in the Joint Status Report, rather than October 3rd). 12. On August 23, 2007, I was informed that the attorney from the Solicitor General's Office who was most familiar with the issues

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Exhibit 1 to United States' Memorandum in Support of Motion to Certify Interlocutory Appeal and Motion to Stay Proceedings Prending Resolution of Interlocutory Appeal

Case 1:04-cv-01544-LMB

Document 84-2

Filed 10/19/2007

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involved in this case and who would be assigned this matter, would be out of the office for most of September. 13. On or about September 22, 2007, I was informed that a decision would not likely be reached by the Office of the Solicitor General by October 1, 2007. 14. I discussed this matter with Plaintiff's counsel on September 25, 2007, and informed him that a decision would not likely be reached by October 1, 2007. 15. On October 1, 2007, the parties submitted a Joint Status Report, which informed the Court that the matter was pending before the Solicitor General, and that a decision was expected by October 22, 2007. See Joint Status Report, dated Oct. 1, 2007. 16. I was informed on October 19, 2007, that the Solicitor General had authorized the filing of a motion to request certification to the Federal Circuit. 17. For the reasons discussed above, the government has not been dilatory in bringing this motion.

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Exhibit 1 to United States' Memorandum in Support of Motion to Certify Interlocutory Appeal and Motion to Stay Proceedings Prending Resolution of Interlocutory Appeal

Case 1:04-cv-01544-LMB

Document 84-2

Filed 10/19/2007

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Respectfully submitted this 19th day of October, 2007. RONALD J. TENPAS Acting Assistant Attorney General Environment & Natural Resources Div. s/ William J. Shapiro WILLIAM J. SHAPIRO Trial Attorney United States Department of Justice Environment & Natural Resources Div. Natural Resources Section 501 I Street Suite 9-700 Sacramento, CA 95814 (916) 930-2207 (phone) (916) 930-2210 (fax)

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Exhibit 1 to United States' Memorandum in Support of Motion to Certify Interlocutory Appeal and Motion to Stay Proceedings Prending Resolution of Interlocutory Appeal