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

Case 1:03-cv-00288-EJD

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Filed 10/21/2005

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

No. 03-288C (Chief Judge Damich)

DEFENDANT'S UNOPPOSED MOTION TO STAY Defendant respectfully requests that the Court stay the answer to the amended complaint in this case, until 14 days after entry of a scheduling order establishing the course of future proceedings or as otherwise provided in such order. Plaintiffs do not oppose this request. This is one of approximately 30 cases pending before this Court concerning EPA clauses used by the Defense Energy Support Center in jet fuel contracts during the 1980s and 1990s. The principal question in these cases, the legality of these clauses, was addressed by the Federal Circuit in Tesoro v. United States, 405 F.3d 1339 (2205). Thereafter, the Court permitted plaintiffs to file an amended complaint, ordered the parties to file a joint status report concerning how they proposed to proceed. The parties filed such a report on October 11, 2005. Plaintiffs filed their amended complaint on October 4. Ordinarily, an answer to such a complaint would be due on or before October 24, 2005. RCFC 12, however, provides that a party may respond to a complaint by a dispositive motion, in lieu of an answer. As set forth more fully in the joint status report, we expect to respond to the amended complaint by motion for summary judgment, but are awaiting a status conference to determine whether the Court will

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Case 1:03-cv-00288-EJD

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Filed 10/21/2005

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permit us to do so. In the other jet-fuel cases in which the Court has entertained that question, three judges have permitted us to file a motion for summary judgment, and refused to permit discovery (except as required by RCFC 56(f)). In one of those cases, on October 18, 2005, the presiding judge also stayed the requirement to answer a virtually identical amended complaint. Calcasieu v. Untied States, No. 02-1219C (Fed. Cl.). In the other cases, we will file motions like this one, as required. For these reasons, defendant respectfully requests that the Court stay the answer to the amended complaint in this case, until 14 days after entry of a scheduling order establishing the course of future proceedings or as otherwise provided in such order. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/ Dave M. Cohen DAVID M. COHEN Director

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OF COUNSEL: BERNARD A. DUVAL Counsel HOWARD M. KAUFER Assistant Counsel Office of Counsel Defense Energy Support Center Ft. Belvoir, VA

s/ Steven J. Gillingham STEVEN J. GILLINGHAM Senior Trial Counsel KYLE CHADWICK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., 8th Floor Washington, D.C. 20530 Tele: (202) 616-2311 Fax: (202) 353-7988 Attorneys for Defendant

October 21, 2005

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Case 1:03-cv-00288-EJD

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Filed 10/21/2005

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CERTIFICATE OF SERVICE I hereby certify that on October 21, 2005, a copy of the foregoing document was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/ Steven J. Gillingham

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