Free Motion to Stay - District Court of Federal Claims - federal

Case 1:04-cv-00482-EGB

Document 6

Filed 05/24/2004

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BARRETT REFINING CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 04-482C (Judge Bruggink)

DEFENDANT'S UNOPPOSED MOTION TO STAY Pursuant to RCFC 1, defendant respectfully requests that this case be stayed pending a decision from the United States Court of Appeals for the Federal Circuit in Tesoro Hawaii Corporation and Hermes Consolidated, Inc. v. United States, No. 04-5064 (Fed. Cir.). Plaintiff's counsel has informed us that plaintiff will not oppose. This is one of approximately 25 cases now pending before this Court that concern the legality of pricing clauses in Defense Department jet fuel contracts. The appellate case arises out of two such cases, Tesoro Hawaii v. United States, No. 02-704C, and Hermes Consolidated, Inc. v. U.S., No. 02-1460C. In these cases, the Court decided questions central to the resolution of this case: whether the clause at issue is legal; and whether, if so, such a claim is susceptible to the defense of waiver. However, the Court then certified these issued for interlocutory appeal, pursuant to 28 U.S.C. § 1292(d). Consequently, both issues now are before the appellate court. Plaintiffs and three amici have filed briefs in the appellate case. Defendant's brief is due next month. RCFC 1 requires that this Court's rules be "construed and administered for the just, speedy, and inexpensive determination of every action." Given that controlling questions in this

Case 1:04-cv-00482-EGB

Document 6

Filed 05/24/2004

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case will be addressed by the appellate court, the parties here would be forced to proceed without settled law to guide their overall strategy, their discovery, or their advocacy in general, and would be faced with the prospect of redoing much of what they had done, once the appellate court issues its decision. The Court too would be hampered by the lack of settled law, and would be unable to decide, with authority, questions of virtually any consequence to the parties. In short, proceeding at this point would be contrary to the requirements of RCFC 1. For these reasons, defendant respectfully requests that the case be stayed. Should the Court disagree, defendant respectfully requests an enlargement of time of ten days from the issuance of the Court's decision. Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/ David M. Cohen DAVID M. COHEN Director

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Case 1:04-cv-00482-EGB

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Filed 05/24/2004

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OF COUNSEL: BERNARD A. DUVAL Counsel HOWARD M. KAUFER Assistant Counsel Office of General Counsel Defense Energy Support Center Ft. Belvoir, VA

s/ Steven J. Gillingham STEVEN J. GILLINGHAM Senior Trial Counsel KYLE CHADWICK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, 8th Floor Washington, D.C. 20530 Tele: (202) 616-2311 Fax: (202) 353-7988 Attorneys for Defendant

May 21, 2004

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Case 1:04-cv-00482-EGB

Document 6

Filed 05/24/2004

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CERTIFICATE OF FILING I hereby certify that on May 24, 2004, a copy of the foregoing "DEFENDANT'S UNOPPOSED MOTION TO STAY" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/Steven J. Gillingham