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

Case 1:05-cv-01189-CFL

Document 68

Filed 03/24/2008

Page 1 of 3

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 MOTION TO STRIKE, OR FOR LEAVE TO FILE THE SEPARATELY SUBMITTED FOUR-PAGE REPLY TO THE PLAINTIFFS' SUPPLEMENTAL BRIEF ______________ The defendant asks the Court to strike page 1 and pages 7 (beginning with section III) through 10 of the Plaintiffs' Supplemental Brief because those pages re-argue issues the parties previously briefed rather than the issues the Court ordered the parties to discuss in their supplemental briefs. In the alternative, the defendant asks the Court to permit the defendant to respond to the plaintiffs' additional four-page argument on the merits by allowing the filing of the defendant's separately submitted four-page reply to the plaintiffs' supplemental brief. On March 10, 2008, the Court ordered the parties to discuss only two questions; both concerned the effect of a dismissal order entered in the McGanns' earlier TEFRA case. During the earlier oral argument, the Court had issued this instruction­ MR. REDDING: . . . . I would ask that the statement you just made be clarified a little bit so that it just doesn't reopen the briefing to everything again. THE COURT: No, I urge you not to do that. -1-

Case 1:05-cv-01189-CFL

Document 68

Filed 03/24/2008

Page 2 of 3

Transcript of Oral Argument (March 7, 2008) at page 50 (attached). Despite the order and the instruction, the McGanns offered more briefing on the merits of their case. For fairness' sake, the defendant asks either to have their extra briefing on the merits removed from the record or for an opportunity to reply. WHEREFORE the defendant asks the Court to grant one of the alternative forms of relief requested in this motion. 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 24, 2008

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Case 1:05-cv-01189-CFL

Document 68

Filed 03/24/2008

Page 3 of 3

briefing. MR. REDDING: THE COURT: Your Honor.

[50]

If you understand, especially on something

like this where it's not explored to any great detail in the briefing, good as the briefing was, the Court is reluctant to decide a matter without giving the parties a chance to address it. MR. REDDING: Your Honor, I completely agree with that.

I would just ask that the statement you just made be clarified a little bit so that it just doesn't reopen the briefing to everything again. THE COURT: MR. REDDING: THE COURT: No, I urge you not to do that. Why would we want to, Your Honor? I have enough paper the way it is. It's

just that I really do need the parties' thoughts on the question of where the adjustments came from, whether it makes any difference where they came from; whether the Court can go back to the motion, assuming that Exhibit O actually sets out the same numbers that appear in the Tax Court's final order, and what import that has for the TMT conclusion, and then I guess what that does with 6226(h). I think the parties basically have provided an answer to that question, but if you have anything -3-