Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:05-cv-00955-LAS

Document 27

Filed 04/28/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________ No. 05-955 T and 05-954 T (Consolidated on February 22, 2006) (Judge Loren A. Smith) UNICO INDUSTRIAL SERVICES INC. and D. GORDON POTTER, Plaintiffs v. THE UNITED STATES, Defendant ____________________ MOTION OF THE UNITED STATES TO DISMISS PLAINTIFFS' COMPLAINTS ____________________

Defendant, the United States, respectfully moves the Court for dismissal of plaintiffs' complaints on the ground that they were prematurely filed in violation of § 6532(a)(1), thus depriving this Court of subject matter jurisdiction. Plaintiffs' Fifth Amendment due process claims and claims with respect to the imposition of penalties also are not cognizable by this Court and may be dismissed for lack of subject matter jurisdiction independently of § 6532. Likewise, plaintiffs' Fifth Amendment takings clause claim fails to state a claim for which relief can be granted and may be dismissed independently under RCFC 12(b)(6). In support of its motion, defendant relies on the

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Case 1:05-cv-00955-LAS

Document 27

Filed 04/28/2006

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accompanying Brief of the United States in Support of Its Motion to Dismiss Plaintiffs' Complaints and the exhibits attached thereto, filed on April 28, 2006.

Respectfully submitted,

s/Jennifer P. Wilson JENNIFER P. WILSON 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) 307-6495 FAX (202) 514-9440 [email protected] EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Acting Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief s/Steven I. Frahm Of Counsel April 28, 2006

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