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

Case 1:05-cv-00223-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 05-223 T (Judge Charles F. Lettow)

CURTIS L. IVEY and DORIS W. IVEY, Plaintiffs v. THE UNITED STATES, Defendant.

JOINT STATUS REPORT

Pursuant to the Court's Orders dated April 19, 2005, and August 24, 2006, the parties provide the following status report: 1. This case has been suspended since April 19, 2005, pending a final decision in

Robert J. Isler and Susan L. Isler v. United States, Fed. Cl. No. 01-344 T and Jeffrey T. Scuteri v. United States, Fed. Cl. No. 01-358 T. The stay in this case will automatically terminate on May 22, 2007. With respect to this case and/or Charles M. Schnepp and Harriett A. Schnepp v. United States, Fed. Cl. No. 04-1709 T, Walter S. Roberts and Patricia J. Roberts v. United States, Fed. Cl. No. 05-564 T, Lawrence R. McCann and Cecil McCann v. United States, Fed. Cl. No. 06216 T, or Jerome C. Jewell v. United States, Fed. Cl. No. 06-228 T, this status report also provides updates on: Ronald C. Prati and Mary G. Prati v. United States, Fed. Cl. No. 02-60 T, Kenneth C. Keener v. United States, Fed. Cl. No. 03-2028 T; William P. Smith, Jr. and Anne D.

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Case 1:05-cv-00223-CFL

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Smith v. United States, Fed. Cl. No. 04-907 T; Donald L. Dismore and Bettye G. Dismore v. United States, Fed. Cl. No. 04-1787 T; and John F. and Pamela F. Hinck v. United States, Fed. Cl. No. 03-865 T. 2. On October 8, 2004, the Court heard oral argument in Isler, Scuteri, and Prati.

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. 3. On September 14, 2004, the Court heard oral argument in Hinck, and, pursuant to

an opinion issued February 3, 2005, this Court dismissed the complaint in Hinck. On May 4, 2006, the Federal Circuit affirmed this Court's dismissal of the complaint. See Hinck v. United States, 446 F.3d 1307 (Fed. Cir. 2006). The Federal Circuit 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 Federal Circuit's decision, the 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. Plaintiffs' counsel, however, has petitioned for Supreme Court review of the Hinck decision. The parties propose the Court wait until final appellate action, before dismissing the interest abatement claims in McCann. 4. Keener and Smith were consolidated on August 11, 2005, for briefing of

dispositive motions, and the United States filed a motion for partial dismissal in Keener and

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Smith on November 4, 2005. On February 21/22, 2006, plaintiffs filed their response and a partial motion for summary judgment. On May 5, 2006, defendant filed a response to plaintiffs' summary judgment motion, and, on May 10, 2006, a reply to plaintiffs' response. On August 14, 2006, defendant filed an additional/alternative ground in support of its motion for partial dismissal, and, on September 23, 2006, plaintiffs filed their response. 5. In Dismore, 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. Discovery on plaintiffs' remaining claim is proceeding. 6. 7. behalf. Respectfully submitted, 10/06/06 Date s/Teresa Jean Womack by s/Bart D. Jeffress 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 10/06/06 Date s/Bart D. Jeffress BART D. JEFFRESS Attorney of Record U.S. Department of Justice -3The parties will file the next status report on or before January 8, 2007. Plaintiffs' attorney has authorized defendant's attorney to sign this motion on her

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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) EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section 10/06/06 Date Steven I. Frahm Of Counsel Attorneys for Defendant