NATIONAL VETERANS LEGAL SERVICES PROGRAM et al v. UNITED STATES OF AMERICA

Filing 22

RESPONSE re #21 MOTION for Leave to File Sur-Reply filed by UNITED STATES OF AMERICA. (Attachments: #1 Text of Proposed Order)(Nebeker, William)

Case 1:16-cv-00745-ESH Document 22 Filed 08/17/16 Page 1 of 3

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES PROGRAM, et al.,

)
)
)
Plaintiffs,
)
)
v.
) Civil Action No. 16-745 ESH
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
)
______________________________)
RESPONSE TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE A SUR-REPLY
Defendant opposes Plaintiffs’ request to file a sur-reply but
agrees to allow the filing of Plaintiffs’ Concise Statement Of
Genuine Issues Of Material Fact.
Plaintiffs appear, at first blush, to be attempting to address
an issue not raised earlier, the issue presented for the first time
in Defendant’s Reply: that in their opposition, “Plaintiffs have made
no effort to address the claim made in support of Defendant’s
dispositive motion that they have not alleged a statutory remedy that
supports an illegal extraction claim.
at 5-6.

Def. Mem. at 15-19.”

Reply

In fact, however, Plaintiffs then argue in their proffered

sur-reply, that which they should have argued in any opposition, the
merits of their exaction claim.

Plaintiffs offer no legitimate

basis for having failed to address all of the claims presented by
Defendant at the proper time (i.e., in Plaintiffs’ opposition).

Case 1:16-cv-00745-ESH Document 22 Filed 08/17/16 Page 2 of 3

Having failed to make any showing of excusable neglect, they should
not be allowed to alter their opposition by means of a sur-reply.
See Smith v. District of Columbia, 430 F.3d 450, 456 57 and n.5 (D.C.
Cir. 2005) (“In the absence of any motion for an extension, the trial
court had no basis on which to exercise its discretion” to allow an
untimely filing.)

Respectfully submitted,

CHANNING D. PHILLIPS, DC Bar #415793
United States Attorney

DANIEL F. VAN HORN, DC Bar #924092
Chief, Civil Division

By:

/s/

W. MARK NEBEKER, DC Bar #396739
Assistant United States Attorney
555 4th Street, N.W.
Washington, DC 20530
[phone]
[e-mail]

-2-

Case 1:16-cv-00745-ESH Document 22 Filed 08/17/16 Page 3 of 3

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that service of the foregoing Response To
Plaintiffs’ Motion For Leave To File A Sur-Reply and a proposed order
has been made through the Court’s electronic transmission facilities
on this 17th day of August, 2016.

/s/
W. MARK NEBEKER, DC Bar #396739
Assistant United States Attorney
555 4th Street, N.W.
Washington, DC 20530
[phone]
[e-mail]