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. #22] dated February 8, 2007, the parties, through their attorneys, provide the following progress report on Robert J. Isler and Susan L. Isler v. United States, Fed. Cl. No. 01-344 T, Jeffrey T. Scuteri v. United States, Fed. Cl. No. 01-358 T, 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. 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: 1. 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

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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. 2. 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 Kettle, Fed. Cl. No. 04-683 T and Weidemann, Fed. Cl. No. 051384 T. Plaintiffs' counsel, however, petitioned for Supreme Court review of the Hinck decision, and, on January 12, 2007, the Supreme Court granted certiorari to review the Federal Circuit's decision in Hinck. The Supreme Court heard oral argument in Hinck on April 23, 2007. Accordingly, the parties continue to propose the Court wait until final appellate action, before dismissing the interest abatement claims in Kettle and Weidemann. 3. 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 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'

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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, plaintiffs filed their response on September 23, 2006, and defendant filed its reply on October 17, 2006. On November 16, 2006, the Court held oral argument on defendant's motion to dismiss. 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. Under the decision, the Court lacks subject matter jurisdiction over the period of limitations and tax motivated interest claims in Kettle, Fed. Cl. No. 04-683 T and Weidemann, Fed. Cl. No. 05-1384 T. Plaintiffs' attorneys intend to move for reconsideration before this Court and appeal the decision to the Federal Circuit. Accordingly, the parties propose the Court wait until final appellate action, before dismissing the period of limitation and tax motivated interest claims in Kettle and Weidemann. 4. 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. On December 1, 2006, discovery on plaintiffs' remaining claim was stayed and a summary judgment briefing scheduled entered. Defendant filed its motion for summary

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judgment on March 30, 2007. 5. On August 24, 2006, the Court issued a scheduling order in Charles L. Ivey and

Doris W. Ivey v. United States, Fed. Cl. No. 05-223T, directing that the stay entered in that AMCOR case shall automatically terminate on May 22, 2007, and that the parties shall file a Joint Status Report on or before May 23, 2007, proposing a schedule for future proceedings in Ivey. 6. Plaintiffs' attorney has authorized defendant's attorney to sign this joint status

report on her behalf. Respectfully submitted, 5/01/2007 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 5/01/2007 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) EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section -4-

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STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section 5/01/2007 Date s/Steven I. Frahm Of Counsel Attorneys for Defendant