Free Motion to Amend/Correct - District Court of Federal Claims - federal

Case 1:98-cv-00168-FMA

Document 337

Filed 04/09/2007

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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 MOTION TO AMEND ¶ 1 OF PAGE 86 OF THE COURT'S POST-TRIAL OPINION, AND REQUEST FOR EXPEDITED CONSIDERATION Defendant, the United States, pursuant to Rules 54(b) and 60(b)(6) of the Rules of the United States Court of Federal Claims ("RCFC"), respectfully requests that the Court address a jurisdictional question implicitly raised by the Court's posttrial Opinion regarding its remand to the Department of the Army of the matter of incentive fees, by amending ¶ 1 of page 86 of that opinion.1 We request expedited consideration because ¶ 1

requires that the Government take action by June 22, 2007. Pursuant to RCFC 54(b), any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all

In the event that ¶ 1 of the Court's opinion constitutes an appealable remand order, we request alteration or amendment of that order pursuant to RCFC 59(e), in that this motion is filed no later than 10 days of the reissuance of the Court's opinion on April 2, 2007.

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the parties.

Pursuant to RCFC 60(b)(6), on motion made within a

reasonable time and upon such terms as are just, the Court may relieve a party from an order for a reason justifying relief from the operation of the order. See RCFC 60(b)(6). We have

requested this relief only 33 days after the original issuance of the Court's opinion on March 7, 2007, and only seven days after its reissuance on April 2, 2007. Furthermore, a party may

challenge a court's subject-matter jurisdiction at any time. Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004). We request amendment of ¶ 1 of page 86 of the Court's opinion because it can be read to remand to the Army incentive fee decisions that the Court has, elsewhere in its opinion, determined are not within its jurisdiction. Paragraph 1

requires, that, with respect to "[t]he incentive fee matter," the Army issue "a final decision as to each of the affected years to be filed on or before June 22, 2007." On page 85 of the opinion,

the Court identifies incentive fee determinations "for 1997 through 2003" that "shall be set aside." However, on pages 89

and 90 of the opinion, the Court notes that, with respect to plaintiff's incentive fee claims "[j]urisdiction is lacking for claims after 9/4/02." That raises the question whether the

"affected years" referenced in ¶ 1 are 1997 through 2003. If the "affected years" referenced in ¶ 1 are 1997 through 2003, then ¶ 1 remands two incentive fee decisions that, 2

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according to page 90 of the Court's opinion, are not within the Court's jurisdiction to remand. The Army's incentive fee Plaintiff's

decision for 2002 was issued on February 20, 2003. Exhibit 302 (Appendix 1).

The Army's incentive fee decision for Plaintiff's Exhibit 386

2003 was issued on March 9, 2004. (Appendix 3).

Because the incentive fee decisions for 2002 and

2003 were issued after September 4, 2002, the Court should, as a jurisdictional matter, amend ¶ 1 of page 86 of its opinion to reflect that the paragraph's phrase "affected years" does not encompass years after 2001. For the forgoing reasons, we request that the Court amend ¶ 1 of page 86 of its post-trial opinion to reflect that the Court is not remanding incentive fee decisions for years after 2001. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

JEANNE E. DAVIDSON Director

s/Donald E. Kinner by s/Brian M. Simkin DONALD E. KINNER Assistant Director

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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 9, 2007

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Certificate of Filing I hereby certify that on April 9, 2007, a copy of the foregoing Defendant's Motion to Amend ¶ 1 of Page 86 of the Court's Post-Trial Opinion, and Request for Expedited Consideration 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. through the Court's system. Parties may access this filing

s/Timothy P. McIlmail