Free Status Report - District Court of Federal Claims - federal

Case 1:07-cv-00074-CFL

Document 10

Filed 01/11/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________ No. 07-74 T (Judge Lettow) KANAWHA EAGLE COAL, LLC, Plaintiff, v. THE UNITED STATES, Defendant. ______________ DEFENDANT'S STATUS REPORT AND MOTION FOR SUSPENSION OF PROCEEDINGS ______________ The defendant, the United States, reports a development that could make any further proceedings in this case superfluous. On December 3, 2007, the United States Supreme Court granted the defendant's certiorari petition in United States v. Clintwood Elkhorn Mining Co., No. 07-308. The Court will review the Federal Circuit's decision in Clintwood Elkhorn Mining Co. v. United States, 473 F.3d 1373 (Fed. Cir. 2007). In particular, the Court will decide the following question (see the notification on the Supreme Court's website, http://www.supremecourtus.gov/docket/07-308.htm): Whether a taxpayer who would have been entitled to file a tax refund action in federal court to seek a refund of taxes (and interest thereon), but who failed to satisfy a statutory prerequisite to such an action (namely, the filing of a timely administrative refund claim) and is therefore barred from bringing such an action, may obtain a refund, and interest thereon, through an action directly under the Constitution pursuant to the Tucker Act, 28 U.S.C. 1491(a).

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Case 1:07-cv-00074-CFL

Document 10

Filed 01/11/2008

Page 2 of 2

If the Supreme Court answers this question in the negative, the present case must be dismissed. The parties will have wasted the time and resources they are devoting to the present case if the Supreme Court reverses the Federal Circuit's Clintwood Elkhorn decision. The defendant therefore asks the Court to suspend all proceedings until two weeks after the Supreme Court decides Clintwood Elkhorn. If the Supreme Court affirms the Federal Circuit's decision that this Court has jurisdiction of suits like the plaintiff's, the parties will suggest further proceedings. The plaintiff's attorney has stated that he will not oppose this motion. WHEREFORE the defendant asks the Court to grant this motion. Respectfully submitted, s/Robert Stoddart ROBERT STODDART Attorney of Record U.S. Department of Justice Tax Division Court of Federal Claims Section Post Office Box 26 Ben Franklin Station Washington, D.C. 20044 TEL: (202) 307-6445 FAX: (202) 514-9440 [email protected] RICHARD T. MORRISON Acting Assistant Attorney General DAVID GUSTAFSON Court of Federal Claims Section s/ David Gustafson January 11, 2008

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