2022 CASE UPDATES

May 07, 2022

UPSTREAM: Trial Scheduled

We write to report that Judge Lettow hosted another conference on March 3, 2022, and issued a new Scheduling Order thereafter. Based on this order, trial is now officially scheduled for May 31, 2022, and will last until June 10, 2022. We are scheduled to have a Pre-Trial conference on May 23, 2022, with two more status conferences in March and May.

The long-awaited trial is now officially scheduled. We will prepare and gear up for the upcoming battle!

As always, please do not hesitate to contact us with any questions or comments.

May 02, 2022

UPSTREAM: Trial Moves Forward

We write to remind everyone that the trial for the case is scheduled to start on May 31, 2022, and will last until June 10, 2022. We just attended a conference before Judge Lettow this afternoon, as the Court and the parties continue to move forward in preparation for the upcoming trial – set to take place here in the Federal Courthouse in downtown Houston.

The Court will be hosting a final pre-Trial conference on May 23, 2022, the week before the trial commences, to finalize any loose ends. We will attend the conference and report back any development or instruction from the Court. (Again: unless you have been specifically notified, you do not need to appear for the trial.) As always, please do not hesitate to contact us with any questions or comments.

February 11, 2022

UPSTREAM: Trial Postponed Again

We attended a telephone conference before the Court this afternoon. Unfortunately, due to availability issues (location, counsel, witnesses), the trial has been postponed again, now tentatively to be held during May 31 to June 10 of this year.

We are disappointed in yet another delay in the trial setting. Although, Judge Lettow has reiterated his interest and intention to get the trial started and finished as soon as possible. We hope this is the last time that the trial is pushed back.

The trial will be held here in Houston, at the Southern District of Texas courthouse in downtown. Judge Lettow advised that while he will permit some witnesses to testify remotely, he expects the majority of the witnesses to testify live in person.

As always, please do not hesitate to contact us with any questions or comments.

January 12, 2022

DOWNSTREAM: Oral Argument Concluded

The oral argument of the case is concluded today. Mr. Russell Post did an excellent job representing the Downstream team. He outlined the reasons why a reversal of the lower court’s ruling was warranted, while forcefully refuted each of the government’s claims and defenses. He also articulated the fundamental premise of our case – that private property may not be taken by the government without compensation – even if the government was exercising its police power, or fulfilling the so-called greater good.

For those who did not have a chance to listen to the oral arguments this morning, a copy of the recording is available for download at this link (under: 01/12/202221-1131Milton v. US (mp3) )

The judges on our panel were: Judge Alan D. Lourie, Judge Raymond T. Chen, and Judge Tiffany P. Cunningham.

By now, the case is officially submitted to the Court. We expect an opinion to be issued within anywhere from three to six months. We will advise as soon as we receive it from the Court. Also: the oral argument today was covered by Houston Chronicle, see this link.

As always, please do not hesitate to contact us with any questions or comments.

January 7, 2022

UPSTREAM: Trial Scheduled (tentatively)

We write to report that after much back and forth, we now have a trial setting – scheduled for March 21 to April 1, 2022 – to be held here in Houston, at the Southern District of Texas courthouse in downtown. Although, Judge Lettow advised that this will remain a tentative trial setting, pending Covid status by then. We remain hopeful that trial will take place as scheduled.

A reminder – this is the trial for the second phase – the “damages” phase of the case. Judge Lettow had already held that the government is responsible for the flooding of the Upstream properties. This trial will determine the amount of “damages” that the flooded property owners are entitled to recover.

Also: unless you have been specifically notified, you will not need to personally attend the trial.

Below is a list of other dates provided by the Court today:
February 3, 2022: Meeting of Counsel and Exchange of Preliminary Witness and Expert Lists
February 4, 2022: Meeting of Counsel Certification
February 11, 2022: Plaintiffs’ Pretrial Memorandum, Witness List, and Expert List, and any RCFC Appendix A motions for leave
March 4, 2022: Defendant’s Pretrial Memorandum, Witness List, and Expert List, and any RCFC Appendix A motions for leave
March 14, 2022: Pretrial Conference 02:30 PM (Telephonic)
March 21 to April 1, 2022: Trial As always, please do not hesitate to contact us with any questions or comments.

DOWNSTREAM: Trial Scheduled (tentatively)

We write to remind everyone that the oral argument for the Downstream appeal will take place next Wednesday, January 12, 2022. We expect our case to be heard by (about) 9:30 a.m. (Central; or 10:30 a.m. Eastern). Our case appears on the Court’s docket as: Milton v. US (21-1131), and will be in Courtroom 201.

Oral argument can be heard via YouTube, at the Court’s channel

We have been advised that, due to Covid restrictions, the arguments will be presented telephonically instead. Mr. Russell Post will be presenting the arguments on behalf of the Downstream team. Both sides (our side, and the government’s sides) are given 15 minutes each to argue (for a combined total of 30 minutes).

As always, please do not hesitate to contact us with any questions or comments.