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

Case 1:07-cv-00266-BAF

Document 7

Filed 07/30/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CONSOLIDATION COAL CO., et al., Plaintiffs, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-0266C (Senior Judge Futey)

DEFENDANT'S CONSENT MOTION TO STAY PROCEEDINGS The defendant, the United States, submits this motion to stay the proceedings in this lawsuit. The liability issues presented in this case are identical to those involved in Consolidation Coal Co., et al. v. United States, No. 01-254 (Fed. Cl.) ("Consolidation Coal I"), which involves the same counsel as this case. Defendant's answer to the complaint is currently due July 30, 2007. On July 23, 2007, Mr. Steven Becker, counsel for the plaintiffs, consented to the filing of this motion. In Consolidation Coal I, plaintiffs contend that, under the Export Clause of the United States Constitution, the collection of the Abandoned Mine Lands ("AML") fee pursuant to the Surface Mining Coal Restoration Act of 1977 ("SMCRA") is unconstitutional, as applied to exported coal. This Court granted the plaintiffs' motion for summary judgment on April 4, 2005. After damages discovery, this Court entered judgment in favor of one test plaintiff, Jim Walter Resources, Inc., on February 22, 2007. On April 19, 2007, the United States appealed that judgment to the United States Court of Appeals for the Federal Circuit. The appellant's opening brief in that appeal is currently due August 24, 2007.

Case 1:07-cv-00266-BAF

Document 7

Filed 07/30/2007

Page 2 of 4

This lawsuit presents identical legal issues and parties to those presented in the Consolidation Coal I case. The only difference appears to be the present lawsuit is seeking recovery for different time periods. Much of the groundwork that would be necessary to conduct proceedings in this case has already been performed ­ and/or is currently being performed ­ in the Consolidation Coal I case. The principles of judicial economy strongly support ordering a stay of proceedings in this case while the parties complete the appeal to the Court of Appeals for the Federal Circuit. A final decision (i.e., from the Court of Appeals for the Federal Circuit or the Supreme Court) with respect to liability and any disputed damages issues in Consolidation Coal I will control the disposition of those issues in this case. Moreover, eight other lawsuits pending on this Court's docket, which present indistinguishable legal issues, have been stayed pending final resolution of the earlier Consolidation Coal case. Because the interests of judicial economy will best be served by staying action upon these claims until the appeal of that matter is finally resolved, the defendant respectfully requests that this Court stay these proceedings until all appeals taken have been exhausted.

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Case 1:07-cv-00266-BAF

Document 7

Filed 07/30/2007

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director S/Todd M. Hughes TODD M. HUGHES Deputy Director S/Tara K. Hogan TARA K. HOGAN Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, NW Washington, D.C. 20530 Telephone: (202) 616-2228 Telecopier: (202) 305-7643 Counsel for Defendant July 30, 2007

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Case 1:07-cv-00266-BAF

Document 7

Filed 07/30/2007

Page 4 of 4

CERTIFICATE OF ELECTRONIC FILING I hereby certify that on this 30th day of July, 2007, a copy of the foregoing "DEFENDANT'S CONSENT MOTION TO STAY PROCEEDINGS" 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/Tara K. Hogan

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