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

Case 1:06-cv-00228-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 06-228 T (Judge Charles F. Lettow)

JEROME C. JEWELL, Plaintiffs v. THE UNITED STATES, Defendant.

JOINT STATUS REPORT and PROPOSAL

Pursuant to the Court's Order in the case of Curtis L. Ivey and Doris W. Ivey v. United States, Fed. Cl. No. 05-223 T, dated August 23, 2007, the parties provide the following status report and a proposal regarding this case and/or Charles M. Schnepp and Harriett A. Schnepp v. United States, Fed. Cl. No. 04-1709 T, Curtis L. Ivey and Doris W. Ivey v. United States, Fed. Cl. No. 05-223 T, and/or Walter S. Roberts and Patricia J. Roberts v. United States, Fed. Cl. No. 05-564 T. I. JOINT STATUS REPORT 1. On September 14, 2007, the plaintiffs in Curtis L. Ivey and Doris W. Ivey v.

United States, Fed. Cl. No. 05-223 T, filed a voluntarily notice of dismissal pursuant to RCFC 41(a)(1)(i). For that reason, the parties make this report in the instant case. 2. On October 8, 2004, the Court heard oral argument in 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-

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358 T, and Ronald C. Prati and Mary G. Prati v. United States, Fed. Cl. No. 02-60 T. 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 responses in Isler and Scuteri on July 17, 2006, and their response in Prati on July 18, 2006. The United States filed its replies on August 28, 2006. On September 29, 2006, defendant filed an additional/alternative ground in support of its motion for partial dismissal in all three cases. Plaintiffs filed their responses on November 13, 2006, and the United States filed its replies on November 30, 2006. The Court held oral argument on all pending motions on May 1, 2007. Plaintiffs filed their post oral argument supplemental briefs on July 5, 2007. 3. On May 21, 2007, the Supreme Court affirmed the Federal Circuit's decision in

Hinck v. United States, 446 F.3d 1307 (Fed. Cir. 2006), 127 S.Ct. 2011 (2007). Both courts 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 same. Under the Supreme Court's and Federal Circuit's decisions, this Court lacks subject matter jurisdiction over the interest abatement claims in Lawrence R. McCann and Cecil McCann v. United States, Fed. Cl. No. 06-216 T, and James H. Epps and Arbelia Epps v. United States, Fed. Cl. No. 06-615 T. Accordingly, the Court should dismiss those interest abatement claims (but not the other claims in those cases). 4. On April 18, 2007, the Court issued an opinion in Keener and Smith, granting

defendant's partial motion to dismiss for lack of jurisdiction taxpayer's period of limitations and tax motivated interest claims. Final judgments were entered on August 17, 2007. However, plaintiffs' attorneys intend to appeal the decision to the Federal Circuit. Accordingly, the parties

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propose the Court wait until final appellate action, before dismissing the period of limitation and tax motivated interest claims in McCann and Epps. Under the decision, the Court lacks subject matter jurisdiction over the period of limitations and tax motivated interest claims in McCann and Epps. 5. In Donald L. Dismore and Bettye G. Dismore v. United States, Fed. Cl. No. 04-

1787 T, 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, which the Court granted, thereby mooting the briefing and argument. On December 1, 2006, discovery on plaintiffs' remaining claim was stayed and a summary judgment briefing scheduled entered. Defendant filed its motion for summary judgment on March 30, 2007. On May 29, 2007, the Court ordered plaintiffs' response be filed on or before June 12, 2007, or plaintiffs' case would be dismissed for lack of prosecution. No response was filed. On June 14, 2007, defendant moved the Court to rule on the merits of its summary judgment motion, rather than dismiss the case. 6. The parties also report that, pursuant to a telephonic status conference with the

Court on September 5, 2007, defendant is required, on or before November 5, 2007, to answer or otherwise respond to complaints filed in two AMCOR termination year cases ­ Harold C. Perkins v. United States, Fed. Cl. No. 06-51 T, and William H. Schell v. United States, Fed. Cl. No. 04-1743 T.

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II.

JOINT PROPOSAL In light of the voluntary dismissal of Ivey, the parties propose lifting the stay in the

instant case. The parties further propose proceeding in this case according to the schedule set forth in the Rules of the Court of Federal Claims, with defendant's answer or other response to the complaint due sixty days from the date on which the Court lifts the stay and the parties' joint preliminary status report due forty-nine days thereafter.

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Plaintiff's attorney has authorized defendant's attorneys to sign this joint status report and proposal for future proceedings on her behalf. Respectfully submitted, 9/14/07 Date s/Teresa Jean Womack by s/Karen Servidea TERESA JEAN WOMACK Redding & Associates, P.C. P.O. Box 924328 Houston, Texas 77292-4328 (713) 965-9244 (713) 621-5227 (fax) Attorney for Plaintiffs 9/14/07 Date s/Karen Servidea KAREN SERVIDEA 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) RICHARD T. MORRISON Acting Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section 9/14/07 Date s/David Gustafson Of Counsel Attorneys for Defendant