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

Case 1:06-cv-00402-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 06-402 T (Judge Francis M. Allegra)

ALAN SCOTT FITZ and PAULINE ANN FITZ, Plaintiffs, v. THE UNITED STATES, Defendant.

JOINT MOTION FOR SUSPENSION OF PROCEEDINGS

The parties, through their attorneys, respectfully request that proceedings be suspended in the above-captioned case. In support of this motion, the parties state as follows. 1. On October 11, 2002, the parties filed a joint notice of indirectly-related cases pursuant to RCFC 40.2(b) in 23 cases.1 The notice recited that the parties intended to select a

Richard J. Carota v. United States, Fed. Cl. No. 01-305 T; Robert J. and Susan L. Isler v. United States, Fed. Cl. No. 01-344 T; Jeffrey T. Scuteri v. United States, Fed. Cl. No. 01-358 T; Robert H. and Joan C. Donaldson v. United States, Fed. Cl. No. 01-386 T; William W. Winternitz and Madeleine M. Hill v. United States, Fed. Cl. No. 01-404 T; John Y. and Josephine J. Glass v. United States, Fed. Cl. No. 01-575 T; Morris A. and Ann M. Weiner v. United States, Fed. Cl. No. 01-623 T; Richard E. and Heather H. Dahlberg v. United States, Fed. Cl. No. 01-720 T; John J. and Linda E. Vigliotta v. United States, Fed. Cl. No. 02-13 T; Robert B. and Nancy L. Wood v. United States, Fed. Cl. No. 02-56 T; Ronald C. and Mary G. Prati v. United States, Fed. Cl. No. 02-60 T; Nassif J. Cannon and Gail F. Barber v. United States, Fed. Cl. No. 02-61 T; Lewis C. and Sonia C. Ganter v. United States, Fed. Cl. No. 02-248 T; Helen R. Pineo v. United States, Fed. Cl. No. 02-401 T; John G. and Gretchen G. Schuler v. United States, Fed. Cl. No. 02-432 T; Larry A. Marshall and Mary S. LeMieux Marshall v. United States, Fed. Cl. No. 02-474 T; Richard J. and Barclay L. Bolen v. United States, Fed. Cl. No. 02696 T; E. Lisk Wyckoff, Jr. v. United States, Fed. Cl. No. 02-772 T; Lloyd T. and Mary Ann Whitaker v. United States, Fed. Cl. No. 02-795 T; Carmen C. and Emily Mastropieri v. United -1-

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representative case or cases and to request a suspension of proceedings in the remaining cases. A copy of the joint notice of indirectly-related cases in Ronald C. and Mary G. Prati v. United States, Fed. Cl. No. 02-60 T, is attached to this motion as Exhibit A. 2. On January 8, 9, and 10, 2003, the parties filed a joint notice of representative cases in the cases referred to in footnote 1 identifying the following as representative cases: Robert J. Isler and Susan L. Isler v. United States, Fed. Cl. No. 01-344 T Jeffrey T. Scuteri v. United States, Fed. Cl. No. 01-358 T Ronald C. Prati and Mary G. Prati v. United States, Fed. Cl. No. 02-60 T The notice was also filed in the following cases in which complaints were filed with the Court between October 11, 2002, and January 10, 2003: Velusami and Purani A. Arumugam v. United States, Fed. Cl. No. 02-1395 T; Charanjit Singh Dhillon and Mandy K. Dhillon, Fed. Cl. No. 021477 T; Stanley C. and Ruth A. Sperling v. United States, Fed. Cl. No. 02-1523 T; and Gordon W. and Elizabeth K. Ludwig v. United States, Fed. Cl. No. 02-1730 T. A copy of the joint notice of representative cases in Prati is attached to this motion as Exhibit B. 3. The joint notice of representative cases requested that the Court suspend proceedings in the cases that were not selected as representative cases. Orders were entered in these cases directing the suspension of proceedings pending a final decision in the representative cases.2

States, Fed. Cl. No. 02-910 T; Mark A. and Ellen S. Koretz v. United States, Fed. Cl. No. 02-912 T; Thomas E. and Elinor B. Jones v. United States, Fed. Cl. No. 02-1079 T; and David W. and Jane H. Lewis v. United States, Fed. Cl. No. 02-1080 T. An order suspending proceedings was also entered in each of the following cases filed after January 10, 2003: Ira H. and Jane E. Barry, et al. v. United States, Fed. Cl. No. 03-200 T; Robert and Lila T. Ehrenbard v. United States, Fed. Cl. No. 03-1559 T; C. Palmer and Phyllis B. Jones v. United States, Fed. Cl. No. 03-2229 T; Robert G. and Bernice V. Martin v. United States, Fed. Cl. No. 03-2272 T; William D. and Sarah M. Montgomery v. United States, Fed. Cl. -22

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No. 03-2273 T; Richard D. and Darline Johnson v. United States, Fed. Cl. No. 03-2339 T; Robert H. and Joan C. Donaldson v. United States, Fed. Cl. No. 03-2875 T; Tommy V. and Jacqueline L. Clinton v. United States, Fed. Cl. No. 04-0116 T; Charles N. and Lynne K. D'Huyvetter v. United States, Fed. Cl. No. 04-0117 T; Elise R. Goldman, Individually and Elise R. Goldman, Independent Executrix of the Estate of Morton J. Goldman v. United States, Fed. Cl. No. 04-0123 T; Richard F. and Joan D. Hatton v. United States, Fed. Cl. No. 04-0127 T; J. Drayton and Fernanda Hastie v. United States, Fed. Cl. No. 04-291 T; H. Dean Cox et. al. v. United States, Fed. Cl. No. 04-709 T; Jesse W. and Patricia M. Crocker v. United States, Fed. Cl. No. 04-903 T; Stanley J. and Arvilla B. Johnson v. United States, Fed. Cl. No. 04-908 T; Larry E. and Peggy A. Tanner v. United States, Fed. Cl. No. 04-1066 T; Robert J. and Evelyn M. Davison v. United States, Fed. Cl. No. 04-1112 T; Jeffrey T. Scuteri v. United States, Fed. Cl. No. 04-1160 T; Jonathan D. Penni v. United States, Fed. Cl. No. 04-1161 T; Donald A. and Barbara J. Lyon v. United States, Fed. Cl. No. 04-1324 T; Charles M. and Harriett A. Schnepp v. United States, Fed. Cl. No. 04-1709 T; Gene E. and Kathy V. Huebner v. United States, Fed. Cl. No. 04-1742 T; William H. and Ruby G. Schell v. United States, Fed. Cl. No. 04-1743 T; Scott A. and Karen A. Malouf v. United States, Fed. Cl. No. 04-1744 T; Hugh J. and Irene F. McMenamin v. United States, Fed. Cl. No. 04-1745 T; John Farneti, Jr. and Jerry A. Farneti v. United States, Fed. Cl. No. 04-1760 T; Kenneth L. and Jennifer H. Kraemer v. United States, Fed. Cl. No. 04-1761 T; Bill G. and Katherine Chapman v. United States, Fed. Cl. No. 04-1762 T; Paul G. and Elaine S. Marks v. United States, Fed. Cl. No. 04-1763 T; Jerome J. and Velma T. Ungs v. United States, Fed. Cl. No. 04-1764 T (and case consolidated therewith Jerome J. Ungs and Velma T. Ungs, Fed. Cl. No. 06-137 T); Michael D. and Nancy E. Henderson v. United States, Fed. Cl. No. 04-1765 T; William H. Horsley v. United States, Fed. Cl. No. 041766 T; H. Doug and Mary Rutherford v. United States, Fed. Cl. No. 04-1767 T; George O. McDaniel, Jr. and Margaret M. McDaniel v. United States, Fed. Cl. No. 04-1788 T; Joseph F. Penni, Executor for the Estate of Samuel L. Penni v. United States, Fed. Cl. No. 04-1818 T; James J. and Dorothy M. Prendergast v. United States, Fed. Cl. No. 04-1819 T; Robert E. and Jean L. Geurkink v. United States, Fed. Cl. No. 05-24 T; William C. and Patricia W. Sadd v. United States, Fed. Cl. No. 05-25 T; G. Dale and Loretta A. Whittington v. United States, Fed. Cl. No. 05-220 T; Charles H. and Kay A. Johnson v. United States, Fed. Cl. No. 05-221 T; Thomas C. and Lucy Hall v. United States, Fed. Cl. No. 05-222 T; Curtis L. and Doris W. Ivey v. United States, Fed. Cl. No. 05-223 T; Martin J. Kirwan v. United States, Fed. Cl. No. 05-489 T; Edward H. and Billie F. Miller, et al. v. United States, Fed. Cl. No. 05-508 T; Walter S. and Patricia J. Roberts v. United States, Fed. Cl. No. 05-564 T; James H. Hubbell v. United States, Fed. Cl. No. 05-565 T; Purani and Velusani Arumugam v. United States, Fed. Cl. No. 05-627 T; John E. and Anne R. Kettle v. United States, Fed. Cl. No. 04-683 T (and cases consolidated therewith, George W. Plowman, Individually and as Personal Representative of the Estate of Elizabeth Plowman v. United States, Fed. Cl. No. 05-695 T; John Y. and J. Jean Glass v. United States, Fed. Cl. No. 05-696 T; Louis A. Mitchell and Carol J. Mitchell v. United States, Fed. Cl. No. 05-1074 T; Mark W. Brandsted and Pamela S. Brandsted, Fed. Cl. No. 05-1315; Raymond W. Weidemann and Joan C. Weidemann v. United States, 05-1384); Elwood J. and Janice L. LeBlanc v. United States, Fed. Cl. No. 05-743 T; James P. Hackett, III and MarySue Hackett v. -3-

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4. On July 30, 2003, the Court selected John F. and Pamela F. Hinck v. United States, Fed. Cl. No. 03-865 T, which had been filed with the Court on April 30, 2003, as an additional representative case. On September 14, 2004, the Court heard oral argument, and, pursuant to an opinion issued February 3, 2005, this Court dismissed the complaint in Hinck. The plaintiffs filed a notice of appeal on March 17, 2005. The appeal was docketed in the United States Court of Appeals for the Federal Circuit on March 24, 2005 (Docket No. 05-5099) and oral argument held on March 9, 2006. On May 4, 2006, the Federal Circuit affirmed this Court's dismissal of the complaint in John F. and Pamela F. Hinck v. United States, Fed. Cl. No. 03-865 T. See Hinck v. United States, 446 F.3d 1307 (Fed. Cir. 2006). The Federal Circuit held that 26 U.S.C. § 6404(h) grants exclusive subject matter jurisdiction to the Tax Court to review the IRS's denials of interest abatement, and therefore the Court of Federal Claims lacks subject matter jurisdiction to do the

United States, Fed. Cl. No. 05-758 T; Gerald and Kathy Meunier v. United States, Fed. Cl. No. 05-880 T; Donald L. Six, Jr. and Mary M. Six v. United States, Fed. Cl. No. 05-908 T; William K. And Shirley J. Durr v. United States, Fed. Cl. No. 05-932 T; John B. and Georgene T. Morris v. United States, Fed. Cl. No. 05-933 T; Robert L. and Joan R. Gilbertson v. United States, Fed. Cl. No. 05-934 T; Donald M. Ettelson and Mary Ann Ettelson v. United States, Fed. Cl. No.051004 T; Mark K. Glasser and Carol J. Glasser (and Robert Q. Lewis and Susan A. Lewis) v. United States, Fed. Cl. No. 05-1141 T; W. Keith and Margaret E. Oehlschlager v. United States, Fed. Cl. No. 05-1144 T; Robert E. and Jean L. Geurkink v. United States, Fed. Cl. No. 05-1145 T; Alex Golbuff and Susan A. Golbuff v. United States, Fed. Cl. No. 05-1224 T; Bill G. Chapman and Katherine Chapman v. United States, 05-1225 T; Charles M. Atkinson and Kimera S. Copeland v. United States, 05-1249 T; Alfredo Sardinas and Gabriela Sardinas v. United States, 05-1250 T; Joseph Keefe and Marguerite Keefe v. United States, 05-1402 T; Ralph B. Bailey and Dianne L. Bailey v. United States, Fed. Cl. No. 06-39 T; Mark Blinder and Laurie A. Blinder v. United States, Fed. Cl. No. 06-52 T; Robert W. Frangooles and Betty Lou Frangooles v. United States, Fed. Cl. No. 06-93 T; Thomas R. Lumpkin and Jean P. Lumpkin v. United States, Fed. Cl. No. 06-94 T; and J. Scott Key and Shelby Key v. United States, Fed. Cl. No. 06-293 T. -4-

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same. See id. Under the Federal Circuit's decision in Hinck, the Court lacks subject matter jurisdiction over plaintiffs' claims for interest abatement. Plaintiffs' counsel, however, intends to petition for Supreme Court review of the Hinck decision. Accordingly, the parties propose the Court wait until final appellate action, before dismissing plaintiffs' interest abatement claims. 5. On October 8, 2004, the Court heard oral argument in Isler, Scuteri, and Prati. The United States filed an additional motion for partial dismissal in Isler on December 12, 2005, in Scuteri on February 3, 2006, and in Prati on June 2, 2006. Plaintiffs filed their response in Isler on July 17, 2006, and also intend to file their response in Scuteri and Prati on July 17, 2006. 6. On March 29, 2006, the parties filed a joint motion for transfer to a single judge of most currently pending and all future filed AMCOR partnership cases. See Wood et. al. v. U.S., Fed. Cl. No. 02-56 T, Mot. [Doc. #24]. Subsequently, many AMCOR cases, including Isler, Prati, and Scuteri, were transferred to Judge Lawrence J. Block. In addition, there is currently a procedure in place, pursuant to which plaintiffs' counsel, when filing a new AMCOR complaint, notifies the clerk's office that it is an AMCOR case, and the clerk's office assigns the case to Judge Block. 7. The Court also selected the following additional cases as representative cases: Kenneth C. Keener v. United States, Fed. Cl. No. 03-2028 T; William P. Smith, Jr. and Anne D. Smith v. United States, Fed. Cl. No. 04-907 T; and Donald L. and Bettye G. Dismore v. United States, Fed. Cl. No. 04-1787 T. 8. Keener and Smith were consolidated on August 11, 2005, for briefing of

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dispositive motions, and the United States filed a motion for partial dismissal in Keener and Smith on November 4, 2005. On February 21/22, 2006, plaintiffs filed their response and a partial motion for summary judgment. On May 5, 2006, defendant filed a response to plaintiffs' summary judgment motion, and, on May 10, 2006, a reply to plaintiffs' response. 9. In Dismore, the United States filed a motion to dismiss one of plaintiffs' two claims on January 6, 2006. Plaintiffs filed their response on March 7, 2006, and the United States filed its reply on March 28, 2006. Oral argument was held on the motion on June 9, 2006. The parties submitted post-oral argument supplemental briefs on July 14, 2006. Plaintiffs filed a motion to amend their complaint on July 14, 2006. 10. Since the above-captioned case presents issues of fact and law in common with Keener and Smith, the parties request that proceedings be suspended pending a final decision in Keener and Smith. 11. Plaintiffs' attorney has authorized defendant's attorney to sign this motion on his behalf. WHEREFORE, the parties respectfully request that proceedings be suspended in the above-captioned case. Respectfully submitted,

7/17/2006 Date

s/Thomas E. Redding by s/Bart D. Jeffress THOMAS E. REDDING Redding & Associates, P.C. 2914 W.T.C. Jester Houston, Texas 77018 (713) 965-9244 (713) 621-5227 (fax) Attorney for Plaintiffs

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s/Bart D. Jeffress

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Date

BART D. JEFFRESS Attorney of Record U.S. Department of Justice Tax Division Court of Federal Claims Section Post Office Box 26 Ben Franklin Post Office Washington, D.C. 20044 (202) 307-6496 (202) 514-9440 (fax) EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section

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s/Steven I. Frahm Of Counsel Attorneys for Defendant

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