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

Case 1:05-cv-00439-NBF

Document 6

Filed 05/27/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WESTERN REFINING COMPANY, L.P., ) ) Plaintiff, ) ) v. ) ) ) THE UNITED STATES, ) ) Defendant. )

No. 05-439C (Judge Firestone)

DEFENDANT'S MOTION TO STAY Pursuant to RCFC 1, defendant respectfully requests that this case be stayed pending a decision from the United States Court of Appeals for the Federal Circuit on plaintiffs' request for rehearing en banc in Tesoro Hawaii Corporation v.United States, No. 04-5064 (Fed. Cir. April 26, 2005). Plaintiff does not oppose this request. This is one of approximately 30 cases now pending before this Court that concern the legality of pricing clauses in Department of Defense jet fuel contracts. The cases were formally stayed or otherwise delayed, pending the court's decision in Tesoro Hawaii, an interlocutory appeal from two of these cases, Tesoro Hawaii v. United States, 58 Fed. Cl. 65 (2003), and Hermes Consolidated, Inc. v. United States, No. 02-1460C, 2003 U.S. Claims Lexis 312 (November 3, 2003). The issues resolved in Tesoro are central to the resolution of these cases, including this one. Since the issuance of the appellate court's decision, this Court has issued orders requiring the parties in those cases to file status reports concerning how the parties intend to proceed. The parties' counsel in those cases are the counsel in this case, and also are the counsel in the appellate case. They have agreed to recommend that the Court stay all affected cases, because appellant Tesoro intends to file a suggestion for rehearing en banc in Tesoro Hawaii.

Case 1:05-cv-00439-NBF

Document 6

Filed 05/27/2005

Page 2 of 3

RCFC 1 requires that this Court's rules be "construed and administered for the just, speedy, and inexpensive determination of every action." Given that controlling questions are before the appellate court, any effort expended in this case, until the applicable law has been clarified, would appear to be unproductive. For these reasons, defendant respectfully requests that the case be stayed, and that the parties file status reports every 60 days commencing on July 13, 2005. Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/ David M. Cohen DAVID M. COHEN Director s/ Steven J. Gillingham STEVEN J. GILLINGHAM Senior Trial Counsel KYLE CHADWICK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, 8th Floor Washington, D.C. 20530 Tele: (202) 616-2311 Fax: (202) 353-7988 Attorneys for Defendant May 27, 2005

OF COUNSEL: BERNARD A. DUVAL Counsel HOWARD M. KAUFER Assistant Counsel Office of General Counsel Defense Energy Support Center Ft. Belvoir, VA

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Case 1:05-cv-00439-NBF

Document 6

Filed 05/27/2005

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CERTIFICATE OF FILING I hereby certify that on May 27, 2005, a copy of the foregoing "DEFENDANT'S MOTION TO STAY" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/Steven J. Gillingham