WASHINGTON, District of Columbia USA — The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) was granted an extension today to the deadline for the filing of motions in response and opposition to summary judgment motions filed on January 31, 2007.  ATF filed their motion requesting a delay on February 26, 2007.

The case before U.S. District Court Judge Reggie B. Walton was brought by the Tripoli Rocketry Association and the National Association of Rocketry, a litigation seeking to end the ATF's regulatory oversight of ammonium perchlorate composite propellant (APCP), the primary solid propellant used by members of both organizations in single-use rocket motors and reloadable rocket motor reload kits.

Today was the deadline for the filing of motions in response and opposition to the motions for summary judgment filed with the court on January 31, 2007. Two days ago the ATF filed "Defendant’s Unopposed Motion to Modify Briefing Schedule" (39KB Adobe PDF file) requesting a delay in the filing of the remaining briefs.

Citing the absence of a key ATF technical advisor due to illness, the demand placed on the Assistant U.S. Attorney in an unrelated civil case, and more recently, a heavy snowfall which blanketed Washington on February 25th, the motion was submitted with the knowledge and acquiescence of counsel for the TRA and NAR, as long as the filing deadline would be extended for the plaintiffs as well as the defendant.

The ATF motion proposed March 16, 2007 as the new date for filing of opposition briefs for both parties. According to the original scheduling order, the next filing date was slated for March 23 where replies to the opposition briefs were to be filed. As such, ATF felt with the new proposed date of March 16 for the filing of opposition briefs, the March 23 date should be moved to April 10. Judge Walton approved the motion in U.S. District Court today.

Text of the ATF motion approved today follows:

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DEFENDANT’S UNOPPOSED MOTION TO MODIFY BRIEFING SCHEDULE

       Pursuant to Rule 6(b)(1) of the Federal Rules of Civil Procedure, defendant respectfully moves to modify the current schedule for briefing the parties cross-motions for summary judgment in this case on remand of this matter from the United States Court of Appeals for the District of Columbia Circuit. Plaintiffs, through their counsel, do not oppose the relief being sought in this motion as long as the deadlines are extended for both parties to preserve the simultaneous briefing established in the initial schedule. The grounds for this motion are set forth below, and a proposed order is attached.

       The parties simultaneously filed motions for summary judgment on January 31, 2007. Oppositions are currently due on February 28, 2007 and replies are due on March 23, 2007. Defendant requires some additional time to file its opposition to plaintiffs’ motion for two primary reasons: (1) one of the key individuals at the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) who provides technical advice to counsel was out of the office recently for a serious illness; and (2) the Assistant United States Attorney with daily responsibility for this matter has prepared for and remains fully occupied in trial of a retaliation claim under Title VII in Martin Desmond v. Alberto Gonzales, Civil Action No. 03-1729 (CKK). With regard to the former, the ATF employee has returned to work and is providing assistance as of the filing of this motion, but the delay from his absence was both unanticipated and difficult to work around given this individual’s familiarity with the issues in this litigation. With respect to the latter issue, trial began on February 20, 2007, and has lasted longer than defense counsel anticipated. At of the filing of this motion, the trial will certainly continue into February 28, 2007, the current deadline for the opposition brief, and quite likely beyond. Due to the press of preparing for and trying the case, defense counsel has been unable to focus sufficiently on the opposition to summary judgment in this case. Coming out of trial, defense counsel already has a number of other commitments in other, longer-pending cases which must also be completed, including completion of discovery in another employment discrimination case requiring multiple depositions and travel out of D.C., as well as several other briefs.

       Undersigned counsel would have filed this motion sooner but still believed as of the weekend of February 24-25, 2007 that it might be possible to make the existing deadline. The unexpected heavy snowfall on February 25, 2007 in the Washington, D.C. area further disrupted good faith plans to work on this case. This request for a some additional time is made in good faith and, although granting defendant’s request will delay the Court’s receipt of the briefs on the pending motions, it should not unduly delay the Court’s resolution of this matter. When the parties proposed the schedule and the Court adopted it last year, the Desmond trial was scheduled between Thanksgiving and Christmas and, accordingly, defense counsel could not anticipate this conflict. Moving the opposition briefs until March 16, 2007 will leave too little time for preparation of reply briefs by both parties. Thus, defendant respectfully requests that the deadline for filing reply briefs be set for April 10, 2007.¹

       WHEREFORE, based on the foregoing, the defendant respectfully requests that the time for filing opposition briefs for both parties to the pending summary judgment motions be extended through March 16, 2007, and that the deadline for reply briefs be extended until April 10, 2007.

       Dated: February 26, 2007.
                                                                                    Respectfully submitted,

                                                                                    JEFFREY A. TAYLOR, D.C. BAR # 498610
                                                                                    United States Attorney

                                                                                    RUDOLPH CONTRERAS, D.C. BAR # 434122
                                                                                    Assistant United States Attorney

                                                                                    /s/
                                                                                    JANE M. LYONS, D.C. BAR # 451737
                                                                                    Assistant United States Attorney
                                                                                    Civil Division
                                                                                    555 4th Street, N.W. - Room E4822
                                                                                    Washington, D.C. 20530
                                                                                    (202) 514-7161

OF COUNSEL
Joel J. Roessner, Associate Chief Counsel (Litigation)
Bureau of Alcohol, Tobacco, Firearms and Explosives

¹ Plaintiffs’ counsel specifically concurs with the deadline requested for the reply briefs and indicated that he was taking account of other matters on his schedule around that time.

02-28-2007 08:28 PM  #1
Steve_Shannon When in doubt, ask Keenan   Joined: Aug 2006 Posts: 1820	Unreasonable as it may be, I hope that this means that ATF is finding difficulty in supporting their position.

02-28-2007 09:02 PM  #2
shockwaveriderz Model Rocket Historian   Joined: Aug 2006 Posts: 24	yeah, I think I'd call in sick too, if I wuz the BATFE....

02-28-2007 09:32 PM  #3
Aphyle Hot HCl and rubber @ AM   Joined: Dec 2006 Posts: 107	Quote: ...lasted longer than defense counsel anticipated.... Hoist by their own petard? I'm not sure how it was in DC, but the snow came in Saturday night late here in elsewhere in Virginia. This is the same judge in the Scooter Libby case too, isn't he? Is the jury still out on that one? Still, it reminds me of some of my students. I recently had a student tell me that a 9:00 AM class just didn't work for him, as he asked me to move the time... Eric

03-01-2007 12:00 AM  #4
Kapton Certified Level Two   Joined: Oct 2006 Posts: 31	Sounds like BATFE whining to me. Was it really in our interest to support this delay? Or are delays like this always granted anyway and opposition fruitless?

03-01-2007 01:05 AM  #5
ddmobley Administrator   Joined: Jul 2006 Posts: 2585	Quote: Sounds like BATFE whining to me. Was it really in our interest to support this delay? Or are delays like this always granted anyway and opposition fruitless? I don't think it was detrimental to support the delay, it's only 2 weeks. If shows the judge a willingness on our part to cooperate, shows the lack of attention and sufficient resources to the case by ATF on their part, plus gives time to dot all the i's and cross all the t's again. It just reinforces the judge's position that the ATF has been dragging its feet.

03-01-2007 02:34 AM  #6
Rocket hound New Member   Joined: Feb 2007 Posts: 4	I'm a little suprised that they would resort to delay tactics (whether legit or otherwise) at this stage of the game. I hope Steve's right in his hope.

03-01-2007 01:32 PM  #7
ksaves2 Certified Level Two   Joined: Sep 2006 Posts: 19	Patience I guess we have to exercise patience. If it takes a bit extra time to get full relief from the ATFE nazis, I'm for it. I can't wait to see how this soap opera plays out. Kurt

03-01-2007 09:21 PM  #8
Aphyle Hot HCl and rubber @ AM   Joined: Dec 2006 Posts: 107	Is the "fat lady" warming up yet? Too soon to start building a "fat lady" rocket?

03-02-2007 12:37 PM  #9
jsprague New Member   Joined: Sep 2006 Posts: 2	Always need a new rocket I don't think that the BATF will let the fat lady warm up quite yet, but I would like to see her practice a bit anyway. As for the FAT-LADY rocket, let's see, four fins so L-A-D-Y will fit, slightly slimmer than the Fat-Man, perhaps a little transition about the middle, and Pink of course. I like the idea.

03-02-2007 08:07 PM  #10
Aphyle Hot HCl and rubber @ AM   Joined: Dec 2006 Posts: 107	Quote: I don't think that the BATF will let the fat lady warm up quite yet, but I would like to see her practice a bit anyway. As for the FAT-LADY rocket, let's see, four fins so L-A-D-Y will fit, slightly slimmer than the Fat-Man, perhaps a little transition about the middle, and Pink of course. I like the idea. I'll post a picture when she is ready! I just live in some trepidation that if BATFE does not win, they will try something else, sort of a "Hey, Rocky! Watch me pull a rabbit out of my hat!"

03-10-2007 08:40 PM  #11
Raider Rocketry Low Power Enthusiast   Joined: Mar 2007 Posts: 128	I think that NAR/TRA taking the position that they would be happy to extend the deadline provided they got the same extension is sound. It seems to me that the plaintiff is taking every precaution they can to prevent an appeal or a mistrial. It definitely is taking the high road in any case and while I am personally not inclined to give the government a single inch in anything I have to applaud the folks fighting City Hall. Would that be hot pink on the Fat Lady?