Case 8:08-cv-03444-AW
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION ) ) ) Plaintiffs ) ) v. ) ) JANET NAPOLITANO, et al., ) ) Defendants. ) ____________________________________) CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, et al.,
8:08-CV-03444-AW
DEFENDANTS’ SECOND STATUS REPORT AND MOTION TO EXTEND STAY Defendants Secretary of Homeland Security Janet Napolitano, Chairman of the Civilian Agency Acquisition Council Albert Matera, and the United States of America provide this Status Report pursuant to the Court’s Order of April 21, 2009. Defendants further move the Court to extend the Stay currently in place for an additional 70 days to allow the Administration to complete its review of the Final Rule at issue in this case. As part of this review, the Secretary of Defense, the Administrator of General Services, and the Administrator of NASA will delay the Applicability Date of the Final Rule from June 30, 2009 to September 8, 2009. Defendants’ counsel has conferred with Plaintiffs’ counsel who have indicated that Plaintiffs consent to the relief sought in this Motion. The status of this matter is as follows: 1. The Complaint in this case challenges an Executive Order signed by President Bush in
June 2008, see Exec. Order 13465, 73 Fed. Reg. 33,285 (June 11, 2008) (amending Exec. Order 12,989), and a Final Rule promulgated pursuant to that Order, see Federal Acquisition Regulation, 73 Fed. Reg. 67,651 (Nov. 14, 2008).
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2.
The Final Rule originally had an effective date of January 15, 2009. See id.
Subsequently, the effective date of the Final Rule was moved to January 19, 2009, and the applicability date for the Final Rule was moved to February 20, 2009. See 74 Fed. Reg. 1,937 (Jan. 14, 2009). On January 30, 2009, the applicability date was moved to May 21, 2009. See 74 Fed. Reg. 5,621 (Jan. 30, 2009). On April 17, 2009, the applicability date was moved to June 30, 2009. See 73 Fed. Reg. 17,793 (April 17, 2009). 3. On January 28, 2009, this Court entered an Order staying proceedings and deadlines in
this case for 90 days to allow the newly-inaugurated Administration time to review the challenged Final Rule and Executive Order. On April 21, 2009, this Court entered an Order extending the Stay for an additional 40 days to allow for continuance of the review. At that time, Defendants believed that this would be sufficient time in which to complete the review. However, due to an unrelated and unforeseen matter of national importance, the Administration was not able to complete the review on the expected timetable. Defendants do expect the review to be completed soon. 4. To facilitate the continued review, the Secretary of Defense, the Administrator of General
Services, and the Administrator of NASA will delay the applicability date from June 30, 2009 to September 8, 2009. As a result, the Final Rule will not apply to any entity until at least September 8, 2009. 5. The Administration’s continued review will be undermined if Defendants are forced to
file a substantive brief on any time before the completion of that review. Defendants thus ask for an extension of the current stay of proceedings for an additional 70 days. Depending on the outcome of the review, Defendants may ask for an additional extension of the stay.
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6.
The requested relief will not prejudice Plaintiffs. Plaintiffs and their members will not be
affected by the Final Rule during the pendency of the review, because the applicability date is being moved to September 8, 2009. In the event that the new Administration determines that it will maintain the Final Rule, there will be ample time for Plaintiffs’ challenge to be litigated prior to that date. Plaintiffs’ counsel have indicated that Plaintiffs consent to the relief sought in this Motion. 7. Denial of the requested relief will prejudice Defendants by denying the new
Administration sufficient time to review the Final Rule before taking a position with the Court. 8. Defendants thus respectfully request that the Court extend the current stay of all
proceedings in this case for an additional 70 days, until August 16, 2009. A proposed Order is attached. May 29, 2009 Respectfully submitted, TONY WEST Assistant Attorney General ROD J. ROSENSTEIN United States Attorney SANDRA SCHRAIBMAN Assistant Branch Director /s/ Jeffrey M. Smith JEFFREY M. SMITH GEOFF FORNEY Attorneys U.S. Department of Justice Civil Division 20 Massachusetts Ave., N.W., Room 7144 Washington, D.C. 20001 Tel: (202) 514-5751 Fax: (202) 616-8470 Counsel for Defendants
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, et al., ) ) ) Plaintiffs ) ) v. ) ) JANET NAPOLITANO, et al., ) ) Defendants. ) ____________________________________)
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[proposed] Order WHEREAS, the Secretary of Defense, the Administrator of General Services, and the Administrator of NASA have decided to delay the applicability date of the Final Rule challenged in this case (Federal Acquisition Regulation, 73 Fed. Reg. 67,651 (Nov. 14, 2008)) from June 30, 2009 to September 8, 2009 in order to allow the Administration sufficient time in which to complete its review of the Final Rule; and WHEREAS, a requirement that Defendants Janet Napolitano, et al., file a response to Plaintiffs’ pending Motion for Summary Judgment and/or a Cross-Motion for Summary Judgment would compel the Administration to take positions on the Final Rule and Executive Order before a meaningful review could be completed; it is ORDERED, that the current stay is extended for an additional 70 days for a total of 200 days from its initial entry on January 28, 2009; and it is
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FURTHER ORDERED, that Defendants shall file a status report on or before July 10, 2009.
So Ordered:
Date: __________________
_________________________ Hon. Alexander Williams United States District Judge