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

Case 1:04-cv-00683-MBH

Document 32

Filed 12/31/2007

Page 1 of 5

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. #30] dated October 5, 2007, 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. Pursuant to the Court's Order [Doc. #30], the parties are required to file both periodic joint status reports and joint status reports on or before five days after issuance of a triggering decision. Under the order, the reports were to include updates on the progress of the following eight cases: (1) Perkins, Fed. Cl. No. 06-51 T; (2) Schell, Fed. Cl. No. 04-1743 T; (3) Jewell, Fed. Cl. No. 06-228 T; (4) Keener, Fed. Cl. No. 03-2028 T; (5) Smith, Fed. Cl. No. 04-907 T;

-1-

Case 1:04-cv-00683-MBH

Document 32

Filed 12/31/2007

Page 2 of 5

(6) Isler, Fed. Cl. No. 01-344 T; (7) Scuteri, Fed. Cl. No. 01-358 T; and (8) Prati, Fed. Cl. No. 02-60 T. However, after the Court's Order [Doc. #30], one of the eight cases, Perkins, Fed. Cl. No. 06-51 T, was voluntarily dismissed on October 30, 2007. See Perkins, Fed. Cl. No. 06-51 T, Doc. #16. The parties notified the Court of the dismissal and provided a comprehensive status report [Doc. #31]. In the report, the parties noted that the voluntary dismissal of Perkins had no impact on either the Group I or Group II cases (as no decision had issued), and proposed the Court continue to stay the four Group II 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)). The parties reported that there were three other AMCOR cases moving forward in which plaintiffs raised claims like the ones plaintiffs raise in the four Group II cases. The three cases were Schell, Fed. Cl. No. 04-1743T, Jewell, Fed. Cl. No. 06-228T, and LeBlanc, Fed. Cl. No. 05743 T. Accordingly, the parties proposed the Court continue to stay the four Group II cases (Plowman, Glass, Mitchell, and Bransted), until one or more of Schell, Jewell, or LeBlanc was resolved. The parties also proposed that the Court continue to stay the two Group I cases. Since the parties' last status report [Doc. #31], defendant moved, on November 16, 2007, to dismiss plaintiffs' complaint in Jewell. Thereafter, on December 21, 2007, the parties stipulated to dismissal of the complaint with prejudice, and the complaint was dismissed on December 26, 2007. See Jewell, Fed. Cl. No. 06-228T, Doc. #12 and Docket Entry 12/26/2007. Because Schell and LeBlanc remain active (as reported below, defendant has filed a motion to dismiss in both), 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.

-2-

Case 1:04-cv-00683-MBH

Document 32

Filed 12/31/2007

Page 3 of 5

In light of the foregoing, the parties provide the following periodic status report regarding progress in the following seven cases: (1) Schell, Fed. Cl. No. 04-1743 T; (2) LeBlanc, Fed. Cl. No. 05-743 T; (3) Keener, Fed. Cl. No. 03-2028 T; (4) Smith, Fed. Cl. No. 04-907 T; (5) Isler, Fed. Cl. No. 01-344 T; (6) Scuteri, Fed. Cl. No. 01-358 T; and (7) Prati, Fed. Cl. No. 02-60 T. (1) 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 January 22, 2008. (2) 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, and plaintiffs' response is due January 7, 2008. (3) Keener, Fed. Cl. No. 03-2028 T and (4) 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, Fed. Cl. No. 04-683 T and Weidemann, Fed. Cl. No. 05-

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. -3-

1

Case 1:04-cv-00683-MBH

Document 32

Filed 12/31/2007

Page 4 of 5

1384 T). Plaintiffs' attorneys, however, filed a notice of appeal on October 15, 2007. 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). (5) Isler, Fed. Cl. No. 01-344 T; (6) Scuteri, Fed. Cl. No. 01-358 T; and (7) 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. 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 like the claims 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, 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. Plaintiffs' attorney has authorized defendant's attorney to sign this joint status report on her behalf.

-4-

Case 1:04-cv-00683-MBH

Document 32

Filed 12/31/2007

Page 5 of 5

Respectfully submitted, 12/31/2007 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 12/31/2007 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) RICHARD T. MORRISON Acting Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section 12/31/2007 Date s/Steven I. Frahm Of Counsel Attorneys for Defendant