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. #17] dated May 17, 2006, 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. 041787 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. 2. On March 29, 2006, the parties filed a joint motion for transfer to a single judge

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of most then currently pending and all future filed AMCOR partnership cases. See Wood et. al. v. U.S., Fed. Cl. No. 02-56 T, Mot. [Doc. #24]. Subsequently, many AMCOR cases, including Isler, Prati, and Scuteri, were transferred to Judge Lawrence J. Block, and a procedure was established for assigning all newly filed AMCOR cases to Judge Lawrence J. Block. 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 Kettle, Fed. Cl. No. 04-683 T and Weidemann, Fed. Cl. No. 051384 T. Plaintiffs' counsel, however, intends to petition for Supreme Court review of the Hinck decision. The parties informed the Court on May 9, 2006 about the Federal Circuit's decision in Hinck, and proposed the Court wait until final appellate action, before dismissing plaintiffs' interest abatement claims. See Joint Notice [Doc. #16]. The Court ordered the parties to file quarterly status reports, beginning on or before Monday, July 3, 2006, to address plaintiffs' counsel's efforts and future proceedings in the present case and cases consolidated therewith. After the parties' joint notice, plaintiffs' counsel decided not to petition the Federal Circuit for rehearing of Hinck. Plaintiffs' counsel still intends to petition for Supreme Court review of the opinion, and is still in process of preparing the petition. The parties continue to propose the

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Court wait until final appellate action, before dismissing plaintiffs' interest abatement claims. 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 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. 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. 6. Since the above-captioned case and those consolidated therewith present issues of

fact and law in common with Isler, Scuteri, Prati, Hinck, Keener, and Smith (six of the seven representative cases), the parties request that proceedings be suspended pending a final decision in Isler, Scuteri, Prati, Hinck, Keener, and Smith. 7. behalf. Plaintiffs' attorney has authorized defendant's attorney to sign this motion on her

Respectfully submitted, 07/03/2006 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

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07/03/2006 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 STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section

07/03/2006 Date

s/Steven I. Frahm Of Counsel Attorneys for Defendant