Veterans for Common Sense et al v. Nicholson et al

Filing 150

Memorandum in Opposition to Plaintiffs' Administrative Motion to File Sur-Reply filed byWilliam P. Greene, Jr. (Bensing, Daniel) (Filed on 2/27/2008)

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Veterans for Common Sense et al v. Nicholson et al Doc. 150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JOSEPH P. RUSSONIELLO Interim United States Attorney RICHARD LEPLEY Assistant Branch Director DANIEL BENSING D.C. Bar No. 334268 JAMES SCHWARTZ D.C. Bar No. 468625 KYLE R. FREENY California Bar No. 247857 Attorneys United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 305-0693 Facsimile: (202) 616-8460 Email: Daniel.Bensing@USDOJ.gov Attorneys for Defendants Hon. James B. Peake, the U.S. Department of Veterans Affairs, Hon. James P. Terry, Hon. Daniel L. Cooper, Bradley G. Mayes, Hon. Michael J. Kussman, Ulrike Willimon, the United States of America, Hon. Michael B. Mukasey, and Hon. William P. Greene, Jr. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO VETERANS FOR COMMON SENSE and ) VETERANS UNITED FOR TRUTH, ) ) Plaintiffs, ) ) v. ) ) Hon. JAMES B. PEAKE, Secretary of ) Veterans Affairs, et al., ) ) Defendants. ) ) ____________________________________ ) No. C 07-3758-SC DEFENDANTS' RESPONSE TO PLAINTIFFS' ADMINISTRATIVE MOTION TO FILE SUR-REPLY BRIEF ON CHIEF JUDGE GREENE'S MOTION TO DISMISS For the reasons set forth in defendants' February 25, 2008 letter to plaintiffs (Exhibit B to the Moser Declaration supporting plaintiffs' motion), and adopted herein by reference, defendants' Reply Memorandum in Support of Chief Judge Greene's Motion to Dismiss, D.E. 140, did not raise a new legal argument and hence there is no justification for permitting plaintiffs to file a Sur-Reply. Defendants' Reply addressed a new argument raised by plaintiffs in D e fe n d a n ts ' Response to Plaintiffs' Motion to File Sur-Reply ( No. C 07-3758-SC) Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 their Opposition that could not have been anticipated from plaintiffs' long but vague complaint. Nevertheless, in the interest of avoiding an unnecessary dispute, or a future argument by plaintiffs that they were prejudiced in the briefing on this motion, defendants do not object to permitting plaintiffs to file a Sur-Reply and continuing the hearing subject to three modest conditions, all of which were stated in defendants' February 25 letter. First, defendants ask for an opportunity to file a Response to plaintiffs' Sur-Reply by April 4, 2008, two weeks after plaintiffs' proposed filing of their Sur-Reply on March 21, 2008. The Court can then set the matter for hearing on any Friday in April that is convenient. Second, any Sur-Reply should be strictly limited to the alleged new issue of judicial immunity. Third, defendants have moved for a Protective Order to Stay Discovery against Chief Judge Greene (or the Court of Appeals for Veterans Claims) pending a ruling on Chief Judge Greene's Motion to Dismiss, D.E. 99, which is also set for a hearing on March 7, 2008. While defendants are willing to accommodate plaintiffs' request for four weeks to file a Sur-Reply, defendants should not be required to respond to discovery in the interim. Therefore, defendants ask that the Motion for Protective Order to Stay Discovery also be continued to whatever date the Court sets for the hearing on Chief Judge Greene's Motion to Dismiss and Judge Greene not be required to respond to any discovery pending a hearing on that motion.1 Plaintiffs' footnote 1 asserts that defendants' Reply in support of the Motion to Dismiss, D.E. 140, was untimely when it was filed on February 19, 2008. Plaintiffs's assertion is premised on a misreading of this Court's Orders of January 10 and February 1 as they operate in conjunction with the Local Rules. The Court's January 10, 2008 Order, D.E. 93, set plaintiffs' Motion for Preliminary Injunction for a hearing on February 22, 2007, but established a special briefing schedule, different than that set in the Local Rules, for that motion. Subsequently, defendants filed the Motion to Dismiss Chief Judge Greene on January 18, 2008, resulting in a hearing date for that motion of February 22. In reviewing an agreed stipulation to extend the hearing on that Motion to Dismiss by one week, to February 29, D.E. 108, the Court instead continued all motions set for February 22 to March 7, D.E. 109. That Order did not change the special briefing schedule for plaintiffs' Motion for Preliminary Injunction, but as there was never a special briefing schedule for the Motion to Dismiss, the operation of Local Rule 7-7(d) did extend the time for filing defendants' Reply from February 8 to February 22. Therefore, defendants' Reply was timely when it was filed on February 19, 2008. D e fe n d a n ts ' Response to Plaintiffs' Motion to File Sur-Reply ( No. C 07-3758-SC) 1 2 1 2 3 4 5 6 7 8 9 10 11 12 13 Counsel for Defendants 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Daniel Bensing DANIEL BENSING D.C. Bar # 334268 JAMES SCHWARTZ D.C. Bar # 468625 KYLE R. FREENY California Bar #247857 Attorneys, U.S. Department of Justice P.O. Box 883 Washington, D.C. 20044 Dated February 27, 2008 Respectfully Submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JOSEPH P. RUSSONIELLO Interim United States Attorney RICHARD LEPLEY Assistant Branch Director Unless these reasonable conditions are placed on plaintiffs' motion, defendants object to plaintiffs' attempt to forestall the dismissal of Chief Judge Greene from this lawsuit. D e fe n d a n ts ' Response to Plaintiffs' Motion to File Sur-Reply ( No. C 07-3758-SC) 3

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