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

Case 1:05-cv-01189-CFL

Document 74

Filed 03/28/2008

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 05-1189 T (Judge Charles F. Lettow)

THOMAS H. McGANN and EVELYN G. McGANN, Plaintiffs, v. THE UNITED STATES, Defendant. ______________ DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE REPLY ______________ On March 28, 2008, the McGanns filed a reply brief that is styled as a motion for leave to file a reply brief. It addresses an argument (based on Gilman v. Commissioner, 933 F.2d 143 (2d Cir. 1991)) that the defendant first raised at pages 26-27 of its cross-motion for summary judgment and brief in support thereof, filed on January 7, 2008. The McGanns should have responded to that argument in their response to the cross-motion, which they filed on February 8, 2008. They did not respond to it. Nearly two months too late, the McGanns assert that they failed to respond to the defendant's argument "only because the Court's February 5, 2008 order directed the parties to address a specific issue in their responses . . . ." That order asked the parties to "address whether the government's contentions in its response and cross-motion for summary judgment, filed January 7, 2008, are obviated by the second ground of the court's prior decision rendered May 17, 2007, and reported at 76 Fed. Cl. 745, 758-61." The McGanns addressed that issue at pages -1-

Case 1:05-cv-01189-CFL

Document 74

Filed 03/28/2008

Page 2 of 2

1 and 2 of their response. They then went on to address six other issues in the remaining 19 pages­but they did not mention Gilman v. Commissioner. This Court's order of February 8, 2008, clearly did not limit the subjects the McGanns' response could cover, and it cannot be used to expand the matters remaining to be briefed. WHEREFORE the defendant asks the Court to deny the McGanns' motion for leave and to dismiss their complaint with prejudice. Respectfully submitted, s/ Robert Stoddart ROBERT STODDART Justice Department (Tax) P. O. Box 26; Ben Franklin Station Washington, D.C. 20044 TEL: (202) 307-6445 FAX: (202) 514-9440

NATHAN J. HOCHMAN Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief s/ Steven I. Frahm Of Counsel

March 28, 2008

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