Free Memorandum - District Court of Federal Claims - federal

Case 1:98-cv-00168-FMA

Document 339

Filed 04/19/2007

Page 1 of 4

IN THE UNITED STATES COURT OF FEDERAL CLAIMS NORTH STAR ALASKA HOUSING CORP., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 98-168C (Judge Allegra)

DEFENDANT'S MEMORANDUM IN RESPONSE TO APRIL 13, 2007 ORDER REGARDING FUTURE CLAIMS TO THE CONTRACTING OFFICER Defendant, the United States, pursuant to the Court's April 13, 2007 Order, respectfully submits this memorandum. With

respect to the claims that the Court has noted are not within its jurisdiction, the conduct of litigation in which the United States is a party is reserved to officers of the Department of Justice, under the direction of the Attorney General, pursuant to 28 U.S.C. § 516. That power encompasses the conduct of pending See Hughes Aircraft Co.

litigation against the Government.

v. United States, 534 F.2d 889, 901 (Ct. Cl. 1976). Once a claim is in litigation, the Department of Justice gains exclusive authority to act in the pending litigation, divesting the contracting officer of the authority to issue a final decision on the claim. Sharman Co., Inc. v. United States,

2 F.3d 1564, 1571-72 (Fed. Cir. 1993), overruled on other grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1579 & n.10 (Fed. Cir. 1995).

Case 1:98-cv-00168-FMA

Document 339

Filed 04/19/2007

Page 2 of 4

A claim is in litigation if it is alleged in the complaint. See id. at 1571 n.10; accord, Alaska Pulp Corp. v. United States, 34 Fed. Cl. 100, 103 (1995). Therefore, plaintiff, North Star

Alaska Housing Corp. ("North Star"), cannot now submit claims to, and receive decisions from, the contracting officer relating to claims that are alleged in its complaints, even if the Court has noted that it lacks jurisdiction to entertain portions of the relevant complaints in which North Star alleges those claims. Rather, North Star must either await a final, non-appealable judgment dismissing those portions of its complaints, or file a stipulation to dismiss with respect to those portions of its complaints, pursuant to Rule 41(a)(1)(ii) of the Rules of the United States Court of Federal Claims. North Star may, however, now submit claims to, and receive decisions from, the contracting officer relating to any claims that are not alleged in any complaint in any pending case that it has commenced in this Court. For example, North Star may now

submit claims to, and receive decisions from, the contracting officer relating to incentive fee decisions for years prior to 1998, and for years after 2002. See Case No. 98-168C (Fed. Cl.)

Second Amended Complaint ¶ 60; Case No. 02-1632C (Fed. Cl.) Complaint ¶ 78. North Star may also submit claims to, and receive decisions from, the contracting officer relating to rent reductions, if 2

Case 1:98-cv-00168-FMA

Document 339

Filed 04/19/2007

Page 3 of 4

any, for periods prior to February 2002 and after August 25, 2005. On August 25, 2005, North Star commenced Case No. 05-930C In the complaint in that case, North Star alleged at

(Fed. Cl.).

¶ 74 that "[t]he contracting officer has deducted rent from North Star since February 2002 which has diminished the value of the Birchwood Property." Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director s/Donald E. Kinner DONALD E. KINNER Assistant Director OF COUNSEL ANA-VALLI GORDON Assistant District Counsel United States Army Corps of Engineers Galveston District s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 616-0342 Facsimile: (202) 514-7965 Attorneys for Defendant

April 19, 2007

3

Case 1:98-cv-00168-FMA

Document 339

Filed 04/19/2007

Page 4 of 4

Certificate of Filing I hereby certify that on April 19, 2007, a copy of the foregoing Defendant's Memorandum In Response To April 13, 2007 Order Regarding Future Claims To The Contracting Officer 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. the Court's system. Parties may access this filing through

s/Timothy P. McIlmail