Free Joint Preliminary Status Report - District Court of Federal Claims - federal

Case 1:02-cv-01218-EJD

Document 10

Filed 03/25/2003

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UNITED STATES COURT OF FEDERAL CLAIMS MARATHON ASHLAND PETROLEUM, LLC, Plaintiff, vs. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) )

No. 02-1218C (Chief Judge Damich)

JOINT PRELIMINARY STATUS REPORT Pursuant to the Court's February 21, 2003 Order, Plaintiff Marathon Ashland Petroleum, LLC ("Marathon"), and Defendant, the United States, respectfully submit this Joint Preliminary Status Report. Pursuant to the Court's Order, the parties set forth below the principal factual and legal issues in this case: I. Factual and Legal Issues A. Marathon states the principal issues as follows: 1. Did the government establish the price of fuel under Marathon's fuel contracts in violation of law and regulation thereby entitling Marathon to be paid based on the fair market value of the fuel it delivered. Did the government establish the price of fuel under Marathon's fuel contracts in contravention of the purpose and intent of the parties thereby entitling Marathon to be paid based on the fair market value of the fuel it delivered. What is the fair market value of the fuel Marathon delivered.

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Marathon views the first issue as principally a question of law, the second issue as a mixed question of law and fact, and the third issue as principally a question of fact. Various legal theories are encompassed within the first and second issues, including, illegality,

Case 1:02-cv-01218-EJD

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Filed 03/25/2003

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misrepresentation, breach of contact, implied-in-fact contract, failure of consideration and purpose, mistake, and Fifth Amendment taking. B. The Government states the principal issues as follows:

In view of what the Government understands and expects to be the undisputed facts of this case, defendant states that the following issues of law, and no issues of fact, are presented: 1. 2. 3. Whether Barrett Refining Corp. v. United States, 242 F.3d 1055 (Fed. Cir. 2001), compels a finding in favor of plaintiff ("Marathon Ashland"). Whether Marathon Ashland can establish that the contract clauses at issue are inconsistent with the Federal Acquisition Regulation ("FAR"). If the clauses are illegal, whether Marathon Ashland is entitled to a remedy despite an absence of any evidence that it suffered any harm as a result of any illegality. Whether, by submitting offers and signing contracts containing the disputed clauses for five years, without objection or protest, plaintiff waived any benefits it allegedly might have received from a different type of pricing clause. If Marathon Ashland is entitled to recovery in quantum valebant, whether that relief is correctly quantified in its certified claims. Respectfully submitted, s/ J. Keith Burt J. Keith Burt Mayer, Brown, Rowe & Maw 1909 K Street, N.W. Washington, DC 20006 (202) 263-3208 (Phone) (202) 263-5208 (Fax) Attorneys for Plaintiff, Marathon Ashland Petroleum, LLC s/ Steven J. Gillingham Steven J. Gillingham Senior Trial Counsel Commercial Litigation Branch Civil Division United States Department of Justice Washington, D.C. 20530 Tele: (202) 616-2311 Fax: (202) 353-7988 Attorneys for Defendant, The United States Dated: March 25, 2003 Dated: March 25, 2003

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Case 1:02-cv-01218-EJD

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Of Counsel: Lee H. Rubin Nick S. Williams Mayer, Brown, Rowe & Maw 1909 K Street, N.W. Washington, DC 20006

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