Tuesday, September 26, 2023
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Court Blasts Attorney |for Embellishing Motion

(CN) - The Court of Federal Claims refused to reconsider a veteran-owned small business owner's lawsuit against the Department of Veterans Affairs and chided its attorney for "embellishing" the motion for reconsideration.

Totolo/King Joint Venture argued that new evidence - specifically, a document on the department's Web site - discredited the sufficiency of the government's market research.

Under federal law, the government is supposed to prioritize the bids of small businesses owned by veterans and service-disabled veterans. But if two or more such businesses don't submit bids, or aren't expected to, the contracting officer can open the bidding to unrestricted competition.

Totolo "new" evidence was readily available in June, when the claims court ruled for the government, Judge Christine Odell Cook Miller noted.

Totolo countered that finding the document was like "finding a needle in a haystack." "[I]t should come as no surprise that a private small business owner looking for documents might have difficulty finding a Federal document on a website ... for which the small business private owner has received no training or mandate in searching, and no knowledge that the document even exists," Totolo argued.

Judge Miller found the claim unconvincing.

"Notwithstanding the purported complexity of the DVA website, plaintiff's counsel - not plaintiff - was responsible for searching the DVA website ... prior to the June 15, 2009 decision," she wrote.

"Plaintiff's counsel did not do so, and plaintiff's 'needle-in-the-haystack' excuse is not an extraordinary circumstance justifying reconsideration."

The court also admonished Totolo's attorney, James E. Krause of Jacksonville, Fla., for the "embellishments" in his motion for reconsideration.

Krause cited a nonexistent reference in the court's June decision and stated that the plaintiff "last raised" a legal provision that had only been raised once.

"Plaintiff's counsel should consult the United States Court of Appeals for the Federal Circuit's discussion of court filings deemed sanctionable," Judge Miller warned.

"While the court charitably reads the motion for reconsideration, it advises plaintiff's counsel that unsupported and contradicted statements 'walk on the razor's edge of frivolity.'"

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