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

Case 1:04-cv-00683-MBH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 04-683 T (Judge Marian Blank Horn) (Consolidated with Nos. 05-695 T, 05-696 T, 05-1074 T, 05-1315 T, & 05-1384 T)

JOHN E. KETTLE and ANNE R. KETTLE, Plaintiffs v. THE UNITED STATES, Defendant.

JOINT STATUS REPORT

Pursuant to the Court's Order [Doc. #33] filed January 4, 2008, the parties provide the following periodic joint status report. Pending before the Court are six AMCOR cases, which divide into two groups. Group I has two cases: (1) Kettle, Fed. Cl. No. 04-683 T; and (2) Weidemann, Fed. Cl. No. 05-1384 T. Group II has four cases: (1) Plowman, Fed. Cl. No. 05-695 T; (2) Glass, Fed. Cl. No. 05-696 T; (3) Mitchell, 05-1074 T; and (4) Brandsted, Fed. Cl. No. 05-1315 T. I. Group I Report Regarding Group I (Kettle and Weidemann), the parties report on the progress in the following five cases: (1) Keener, Fed. Cl. No. 03-2028 T; (2) Smith, Fed. Cl. No. 04-907 T; (3) Isler, Fed. Cl. No. 01-344 T; (4) Scuteri, Fed. Cl. No. 01-358 T; and (5) Prati, Fed. Cl. No. 02-60 T.

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(1) Keener, Fed. Cl. No. 03-2028 T and (2) Smith, Fed. Cl. No. 04-907 T: Keener and Smith present claims like the claims raised in the two Group I cases. Keener and Smith were consolidated on August 11, 2005, for briefing of dispositive motions. On April 18, 2007, Judge Allegra issued an opinion in Keener and Smith, granting defendant's partial motion to dismiss for lack of jurisdiction taxpayers' period of limitations and tax motivated interest claims.1 Judgment entered in Keener and Smith on August 17, 2007. Under the decision, the Court lacks subject matter jurisdiction over the period of limitations and tax motivated interest claims in the two Group I cases (Kettle and Weidemann). Plaintiffs' attorneys, however, filed a notice of appeal on October 15, 2007, and filed their appellate brief on February 12, 2008. Accordingly, the parties propose the Court wait until final appellate action, before dismissing the period of limitation and tax motivated interest claims in the two Group I cases (Kettle and Weidemann). (3) Isler, Fed. Cl. No. 01-344 T; (4) Scuteri, Fed. Cl. No. 01-358 T; and (5) Prati, Fed. Cl. No. 02-60 T: Isler, Scuteri, and Prati present claims like the claims raised in the two Group I cases and like the claims raised in the four Group II cases. Regarding the claims like those raised in the two Group I cases: 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,

On August 8, 2007, the parties filed a joint stipulation of dismissal of the interest abatement claims in Keener and Smith, as a result of the Supreme Court's decision in Hinck v. United States, 127 S.Ct. 2011 (2007). Pursuant to Hinck, the Court dismissed the interest abatement claims in the two Group I cases - Kettle, Fed. Cl. No. 04-683 T and Weidemann, Fed. Cl. No. 05-1384 T. See Order [Doc. #26], Fed. Cl. No. 04-683 T. -2-

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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. Plaintiffs filed their responses on November 13, 2006, and the United States filed its replies on November 30, 2006. The Court held oral argument on all pending motions on May 1, 2007. Plaintiffs filed their post oral argument supplemental brief on July 5, 2007. The United States filed its response on October 4, 2007. The briefed matters are now ready for decision. II. Group II Report Regarding Group II (Plowman, Glass, Michell, and Brandsted), the parties report on the progress in the following five cases: (1) LeBlanc, Fed. Cl. No. 05-743 T; (2) Schell, Fed. Cl. No. 04-1743 T; (3) Isler, Fed. Cl. No. 01-344 T; (4) Scuteri, Fed. Cl. No. 01-358 T; and (5) Prati, Fed. Cl. No. 02-60 T. (1) LeBlanc, Fed. Cl. No. 05-743 T: This case presents claims like the claims raised in the four Group II cases. Defendant moved to dismiss plaintiffs' complaint on December 7, 2007, plaintiffs responded on January 7, 2008, and defendant filed its reply on February 15, 2008. (2) Schell, Fed. Cl. No. 04-1743 T: This case presents claims like the claims raised in the four Group II cases. Defendant moved to dismiss plaintiffs' complaint on December 20, 2007, and plaintiffs' response is due April 1, 2008. (3) Isler, Fed. Cl. No. 01-344 T; (4) Scuteri, Fed. Cl. No. 01-358 T; and (5) Prati, Fed. Cl. No. 02-60 T: As noted above, Isler, Scuteri, and Prati, in addition to presenting claims like the claims raised in the two Group I cases, present claims like the ones raised in the four Group

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II cases. However, there has, to date, been no litigation of the claims in Isler, Scuteri, and Prati that are like the claims in the four Group II cases. The litigation has focused instead on the claims similar to those raised in the two Group I cases. The parties continue to propose the Court stay the four Group II cases (Plowman, Glass, Mitchell, and Bransted), until Schell or LeBlanc or both are resolved.

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Plaintiffs' attorney has authorized defendant's attorney to sign this joint status report on her behalf. Respectfully submitted, 3/31/2008 Date s/Teresa J. 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 3/31/2008 Date s/Bart D. Jeffress BART D. JEFFRESS 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) 307-6496 (202) 514-9440 (fax) NATHAN J. HOCHMAN Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section 3/31/2008 Date s/Steven I. Frahm Of Counsel Attorneys for Defendant