Free Motion to Stay - District Court of Federal Claims - federal

Case 1:03-cv-00288-EJD

Document 43

Filed 09/20/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CHEVRON U.S.A., INC., and TEXACO, INC., and TEXACO DOWNSTREAM LLC, Plaintiffs, vs. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 03-288C (Chief Judge Damich)

MOTION TO STAY PROCEEDINGS Plaintiffs, Chevron U.S.A., Inc., Texaco, Inc., and Texaco Downstream LLC (collectively "Chevron"), on behalf of both parties, respectfully submit this Motion to Stay Proceedings. For the reasons set forth below, the parties request that this case be stayed pending the final resolution of any appeal in ConocoPhillips, et al. v. United States, No. 02-1367C (Fed. Cl.), or, in the absence of an appeal, the expiration of the period for appeal. This case is one of twenty-seven similarly situated cases pending in this Court that seek relief from military fuel prices under contracts with the Defense Energy Support Center ("DESC").1 Nineteen of these cases currently are stayed pending further proceedings in one or more of the other similarly situated cases. In the remaining nine cases, including this case, DESC has pending a materially identical motion to dismiss. Oral argument has been held in six of those cases before Judges Block, Bruggink, Hewitt and Wiese. On September 12, 2006, Judge Wiese issued a decision granting DESC's motion in ConocoPhillips, and counsel for Chevron

Attached hereto as Exhibit A is a chart listing each of the twenty-seven cases, the Judge to which it is assigned, and its current status.

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Case 1:03-cv-00288-EJD

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Filed 09/20/2006

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here, who also is counsel for ConocoPhillips, understands that ConocoPhillips is considering its options for appeal.2 The parties believe that it would be a more efficient use of both the Court's and the parties' resources to allow any appeal of the ConocoPhillips decision to be resolved, or the appeal period expire, before proceeding further here. It is believed that, once any appeal is resolved, this case could then proceed more efficiently. This is particularly so since the court in ConocoPhillips considered and ruled on the issue of waiver, which this Court held in its September 7, 2006 Opinion and Order is a focal point for possible discovery and resolution of DESC's dispositive motion here. Should the Motion to Stay be granted, the parties propose to file a joint status report addressing further proceedings in this matter within fourteen days of the final resolution of the appeal or the expiration of the appeal period if no appeal is taken.3

In addition, on August 28, 2006, Judge Hewitt issued a decision granting DESC's motion in La Gloria Oil and Gas Co. v. United States, No. 02-465C (Aug. 28, 2006). The La Gloria decision does not, however, address the issue of waiver and, given the Court's focus in its September 7, 2006 Opinion and Order on waiver, Chevron submits that the resolution of any appeal in ConocoPhillips will be more relevant to this proceeding.
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At that time, Chevron will address fully the Court's inquiry in its September 7, 2006 Opinion and Order as to why Chevron (indeed, either party) did not pursue discovery regarding the negotiation, award and execution of the subject fuel contracts as was authorized by the Court's April 22, 2003 decision staying this case. At this time, counsel of record for Chevron notes that, as confirmed by a review of his firm's e-mail back-up tapes, neither he nor anyone at his firm received the ECF notification of the entry of the order from the clerk's office and thus he was not aware of its entry.

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Case 1:03-cv-00288-EJD

Document 43

Filed 09/20/2006

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For the foregoing reasons, the parties respectfully request that this Motion to Stay Proceedings be granted and that proceedings in this matter be stayed pending the final resolution of any appeal in ConocoPhillips, or, in the absence of an appeal, the expiration of the appeal period. s/ J. Keith Burt J. KEITH BURT Mayer, Brown, Rowe & Maw LLP 1909 K Street, N.W. Washington, DC 20006 (202) 263-3208 (phone) (202) 263-5208 (fax) Counsel for Plaintiffs, Chevron U.S.A., Inc., Texaco, Inc., and Texaco Downstream LLC September 20, 2006

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