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

Filing 93

MOTION for Extension of Time to File Status Report, MOTION to Continue Status Conference by UNITED STATES OF AMERICA (Attachments: #1 Exhibit, #2 Text of Proposed Order)(Field, Brian)

Case 1:16-cv-00745-ESH Document 93 Filed 04/26/18 Page 1 of 4

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

Civil Action No. 16-745 (ESH)

UNITED STATES OF AMERICA
Defendant.
MOTION FOR EXTENSION OF TIME
Pursuant to Federal Rule of Civil Procedure 6, Defendant respectfully requests a 60-day
extension of time in which to file the status report currently due on May 11, 2018. This is
Defendant’s first request to extend this deadline. Pursuant to Local Civil Rule 7(m), the Parties
have conferred and Plaintiffs’ counsel stated that Plaintiffs oppose the relief requested in this
Motion.1

1

Specifically, Plaintiffs requested that Defendant include the following statement of their
position:
It is the plaintiffs’ position that the case should move forward on the Court’s current
schedule—including the May 11 deadline to file a status report and the May 18
status conference. Under the Court’s order (ECF No. 92), the parties are required
only to update the Court on the status of three things. In the plaintiffs’ view, there
is no need for an extension. If the government has no final decision to report on one
or more of these things—including the approval process for any appeal—the
government can simply inform the Court of that fact at that time. Moreover, by the
time of the status conference, the government will have had a full month to consider
these matters, which should be enough time to decide, for example, whether the
government “wish[es] to pursue mediation.” ECF No. 92.
The plaintiffs have also been informed that the government’s counsel (Mark
Nebeker and Brian Field) are “now scheduled to be traveling on the 18th,” so the
government “will be including a request that the Court vacate and reschedule the
5/18 status conference in any event.” Based on this language, it appears that the

Case 1:16-cv-00745-ESH Document 93 Filed 04/26/18 Page 2 of 4

Good cause exists to grant the relief requested:
1.

On March 31, 2018, this Court ruled that certain expenditures by the Judicial

Conference of the United States were unauthorized by Congress and that the plaintiff class is
therefore entitled to damages under the Little Tucker Act for an illegal exaction of PACER fees.
See ECF No. 89.
2.

On April 18, 2018, the Court ordered the Parties to file a status report on or before

May 11, 2018, to advise the Court of their positions as to further proceedings, including
specifically (1) whether they have been able to reach agreement on what Courtroom Technology
expenses were permissible uses of PACER fees; (2) whether they are willing to file an application
for appeal on the issue of liability pursuant to 28 U.S.C. § 1292(b); and (3) whether they wish to
pursue mediation and, if so, whether they have identified potential mediators.
3.

Defendant respectfully requests a 60-day extension of time, to and including

July 10, 2018, in which to file the status report. The requested extension is necessary to allow
adequate time for the appropriate high-level officials to consider the questions posed by this Court.
The United States may not pursue an appeal without authorization by the Solicitor General, see 28
C.F.R. § 0.20(b), who makes such determinations in consultation with all interested components
of the Federal Government. Similarly, with respect to settlement authority, a payment by the

travel plans for Mr. Nebeker and Mr. Field materialized after the Court scheduled
the status conference for May 18. But even if they did not, the plaintiffs oppose the
request because the Court specifically asked the parties if May 18 would work and
counsel for both parties said that it would. If the Court is nevertheless inclined to
reschedule the status conference, the plaintiffs would prefer that the Court move it
to an earlier date, rather than a later date, because one of the plaintiffs’ lead lawyers,
Jonathan Taylor, has a previously planned vacation for the week after May 18—a
vacation that he cut short when the Court scheduled the status conference for May
18 so that he would be able attend.

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government exceeding $4 million must be authorized by the Associate Attorney General or the
Deputy Attorney General. See 28 C.F.R. §§ 0.160(a)(3), 0.161. These high-level officials have
had no prior involvement in this case and have many other responsibilities.
4.

Given the likelihood that both of these approval processes will still be ongoing by

May 11, Defendant will likely be unable to provide the Court with any position regarding either
interlocutory appeal or mediation in a May 11 status report or May 18 status conference. In
analogous circumstances, Chief Judge Braden of the Court of Federal Claims granted the
government’s request for a 90-day extension of time in which to provide its position with respect
to interlocutory appeal and mediation in a significant Tucker Act case. See St. Bernard v. United
States, No. 05-1119 L (Order of May 13, 2015) (attached to this motion as Exhibit A).
5.

For those reasons, Defendant requests that the Court extend the May 11 status

report deadline to July 10, 2018, and vacate the May 18, 2018 status conference and reschedule it
for a date after July 10, 2018, that is convenient for the Court.
6.

Additionally, since the April 18 Status Conference, unexpected obligations have

arisen and both AUSAs Field and Nebeker are now scheduled to be traveling on May 18, 2018.
Accordingly, Defendant respectfully requests that, even if the Court denies the request to extend
the status report deadline, it still vacate the status conference and reschedule it for a date that is
convenient for the Court. Counsel for Defendant is available to participate in a status conference
in this matter on May 15–17, 21–25, or May 28–June 1.
For the foregoing reasons, Defendant requests that the Court enter the relief requested in
this Motion. A proposed order accompanies this motion.

Case 1:16-cv-00745-ESH Document 93 Filed 04/26/18 Page 4 of 4

April 26, 2018

Respectfully submitted,
JESSIE K. LIU
D.C. Bar #472845
United States Attorney
DANIEL F. VAN HORN
D.C. Bar # 924092
Chief, Civil Division
By:

/s/ Brian J. Field
W. MARK NEBEKER, DC Bar #396739
BRIAN J. FIELD, D.C. Bar #985577
Assistant United States Attorney
555 4th Street, N.W.
Washington, D.C. 20530
Tel: [phone]
E-mail: [e-mail]

Case 1:16-cv-00745-ESH Document 93-1 Filed 05/13/15 Page 1 of 1
Case 1:05-cv-01119-SGB Document 277 Filed 04/26/18 Page 1 of 1

In the United States Court of Federal Claims
No. 05-1119 L
Filed: May 13, 2015
****************************************
*
ST. BERNARD PARISH GOVERNMENT
*
AND OTHER OWNERS OF REAL
*
PROPERTY IN ST. BERNARD PARISH
*
OR THE LOWER NINTH WARD OF THE
*
CITY OF NEW ORLEANS,
*
*
Plaintiffs,
*
*
v.
*
*
THE UNITED STATES,
*
*
Defendant.
*
*
****************************************
ORDER
On May 6, 2015, the court convened a settlement conference at the United States District
Court for the Eastern District of Louisiana, during which the parties discussed three options:
mediation; certification or interlocutory appeal of the court’s May 1, 2015 Memorandum Opinion
And Order On Liability Regarding A Temporary Taking By Flooding to the United States Court
of Appeals for the Federal Circuit; or proceeding to final judgment.
On May 13, 2015, the Government informed the court that it would need ninety days to
determine which of these options to pursue.
Accordingly, the Government is ordered to file a notice informing the court of its decision
on or before August 10, 2015.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Judge

Case 1:16-cv-00745-ESH Document 93-2 Filed 04/26/18 Page 1 of 1

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES, et al.,
Plaintiffs,
Civil Action No. 16-745 (ESH)

v.
UNITED STATES OF AMERICA
Defendant.

[PROPOSED] ORDER
Upon consideration of Defendant’s Motion for Extension of Time, and the entire record
herein, it is hereby
ORDERED that Defendant’s Motion for Extension of Time be and is GRANTED; and it
is
FURTHER ORDERED that the parties shall file the Status Report by July 10, 2018; and
it is
FURTHER ORDERED that the May 18, 2018 status conference is vacated.

Date

United States District Judge