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. #30] dated October 5, 2007, the parties provide the following 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 periodic joint status reports and joint status reports on or before five days after issuance of a triggering decision. The reports are to update the Court 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; (6) Isler, Fed.

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Cl. No. 01-344 T; (7) Scuteri, Fed. Cl. No. 01-358 T; and (8) Prati, Fed. Cl. No. 02-60 T. One of those 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. A copy of the voluntary dismissal is attached to this report. We are filing this status report as a result of that dismissal. Perkins, Fed. Cl. No. 06-51 T, concerned claims like the claims plaintiffs have raised in 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)). Because Perkins was voluntarily dismissed, however, no decision issued that impacts the Group II cases (or the cases in Group I (Kettle, Fed. Cl. No. 04-683 T and Weidemann, Fed. Cl. No. 05-1384 T)). The parties continue to propose a stay of the four Group II cases, because, although Perkins has been dismissed, there are two other AMCOR cases moving forward in which plaintiffs raised claims like the ones plaintiffs raise in the four Group II cases. See JSR [Doc. #28]. The two cases are Schell, Fed. Cl. No. 04-1743T and Jewell, Fed. Cl. No. 06-228T. In addition, after the last report and the status conference with the Court, a deadline for responding to plaintiffs' complaint was entered in another AMCOR case, LeBlanc, Fed. Cl. No. 05-743 T, which raises claims like the ones raised in the four Group II cases. Accordingly, the parties propose the Court continue to stay the four Group II cases (Plowman, Glass, Mitchell, and Bransted), until one or more of Schell, Jewell, or LeBlanc is resolved. The parties also propose, for reasons set forth below, that the Court continue to stay the two Group I cases. The following reports on the seven cases other than Perkins for which updating is required: (1) Schell, Fed. Cl. No. 04-1743 T; (2) Jewell, Fed. Cl. No. 06-228 T; (3) Keener, Fed.

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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. Presently, defendant's answer or other response to plaintiffs' complaint is due on or before December 20, 2007. (2) Jewell, Fed. Cl. No. 06-228 T: This case presents claims like the claims raised in the four Group II cases. Presently, defendant's answer or other response to plaintiffs' complaint is due on or before November 16, 2007. (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. 051384 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

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]. -3-

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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.

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Respectfully submitted, 11/06/2007 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 11/06/2007 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 11/06/2007 Date s/Steven I. Frahm Of Counsel Attorneys for Defendant