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

Case 1:06-cv-00115-SGB

Document 41

Filed 09/18/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

DANNY C. SIMONS AND SALLY J. SIMONS, Plaintiffs, v. THE UNITED STATES, Defendant.

) ) ) ) No. 06-115C ) (Judge Braden) ) ) ) )

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY Pursuant to Rules 1 and 7 of the Rules of the Court of Federal Claims, defendant respectfully submits this opposition to the Simons' motion to stay. In support of this opposition, defendant states that the motion the Simons have filed in the District Court for the District of Utah pursuant to Rule 60 of the Federal Rules of Civil Procedure does not support a motion to stay this action. Regardless of the action that the district court takes upon that motion, the Simons have no colorable claim in this Court. Defendant's motion to dismiss, and several other briefs, have established that the Simons' amended complaint should be dismissed because of the doctrine of res judicata, in that all of the issues raised in the complaint were or should have been raised by the Simons in the district court. Those briefs also established that this action is untimely, and that the Court does not possess jurisdiction to consider their tort and takings claims. Because we have briefed these issues several times, we will not repeat those arguments here. The arguments that the Simons make in their Rule 60 motion have already been rejected by the district court and the Court of Appeals for the Tenth Circuit. E.g., United States v. Simons, 86 Fed. Appx. 377, 378 (10th Cir. 2004) ("Simons IV"). The Simons have produced no

Case 1:06-cv-00115-SGB

Document 41

Filed 09/18/2006

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new evidence which suggests that they will be more successful raising these arguments in the district court post appeal. In the Tenth Circuit, Rule 60 relief is discretionary and warranted only in exceptional circumstances. Johnston v. Cigna Corp., 14 F.3d 486, 497 (10th Cir. 1993). Where the district court and the Tenth Circuit have already rejected all of the Simons' arguments, there is no reason to believe that they will be able to overcome this difficult standard. Thus, there is no reason to stay this action while the Simons restate their meritless arguments to the district court. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/Mark A. Melnick MARK A. MELNICK Assistant Director

Dated: September 18, 2006

s/Michael N. O'Connell MICHAEL N. O'CONNELL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L St., NW Washington, D.C. 20530 Tel: (202) 307-0282 Attorneys for Defendant

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Case 1:06-cv-00115-SGB

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Filed 09/18/2006

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Certificate of Filing I hereby certify that on this 18th day of September, 2006, a copy of the defendant's opposition to plaintiff's motion to stay was filed electronically. 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/Michael N. O'Connell Michael N. O'Connell