Free Scheduling Order - District Court of Federal Claims - federal

Case 1:00-cv-00644-NBF

Document 157

Filed 05/24/2007

Page 1 of 2

In the United States Court of Federal Claims
No. 00-644C (Filed: May 24, 2007) * * * * * * * * * * * * * * * * * * WILLIAM A. CLARK, JAMES * P. DAVERN, ROBERT E. * FREEBURG, WILLIE R. JOHNSON, * ROBERT A. MUSTIN, JOHN * DOES 1 through 4, and JANE DOES * 1 through 3, individually and on * behalf of others similarly situated, * * Plaintiffs, * * v. * * THE UNITED STATES, * * Defendant. * * * * * * * * * * * * * * * * * * * ORDER In preparing its decision on the motions currently pending before the court in the above-captioned case, the court hereby ORDERS the parties to file supplemental briefs on the following issues: 1. At the crux of the court's inquiry is the impact of the Federal Circuit's 2003 decision, Clark v. United States, 322 F.3d 1358 (Fed. Cir. 2003), on a separation of powers analysis. Additional research into this issue has brought to light Beverly Community Hosp. Ass'n v. Belshe, 132 F.3d 1259 (9th Cir. 1997). Beverly, and the cases cited therein, stand for the proposition that the separation of powers principles set forth in United States v. Klein, 80 U.S. 128 (1871), are not applicable to "pending" cases. 132 F.3d at 1264. The parties shall address the impact of the separation of powers analyses in Beverly, Abkco Music, Inc. v. Lavere, 217 F.3d 684 (9th Cir. 2000), and Georgia Ass'n of

Case 1:00-cv-00644-NBF

Document 157

Filed 05/24/2007

Page 2 of 2

Retarded Citizens v. McDaniel, 855 F.2d 805 (11th Cir. 1988), on their constitutional arguments regarding the applicability of the current version 37 U.S.C. § 206 to the plaintiffs' claims. 2. The parties shall also address whether the amendments to 37 U.S.C. § 206 through the 2006 NDAA and 2007 NDAA constitute clarifying amendments, or instead should be considered substantive changes in the law, under the criteria set forth in Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272, 1283-84 (11th Cir. 1999).

The plaintiffs shall file their supplemental brief by Friday, June 8, 2007. The government shall file its response by Friday, June 22, 2007.

IT IS SO ORDERED. s/Nancy B. Firestone NANCY B. FIRESTONE Judge