Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:02-cv-01460-LB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS EL PASO MERCHANT ENERGY PETROLEUM COMPANY et al., Plaintiffs, v. UNITED STATES, Defendant. HERMES CONSOLIDATED, INC., Doing business as Wyoming Refining Company, Plaintiff, v. THE UNITED STATES, Defendant. SUNOCO, INC. and PUERTO RICO SUN OIL COMPANY, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 02-1094C (Judge Block)

No. 02-1460 C (Judge Block)

No. 02-466C (Judge Block)

DEFENDANT'S REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO STAY PROCEEDINGS Defendant, the United States, respectfully replies to plaintiffs' opposition to our motion to stay proceedings in these cases, pending the final resolution of any appeal in ConocoPhillips, et al. v. United States, --- Fed. Cl. ----, 2006 WL 2615554 (September 12, 2006), or La Gloria v.

Case 1:02-cv-01460-LB

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United States, --- Fed. Cl. ----, 2006 WL 2513065 (August 28, 2006); or, in the absence of an appeal, the expiration of the periods for appeal. Plaintiffs complain that the parties have devoted substantial effort to the pending motion and that, "[p]resumably, the Court too has now devoted substantial efforts toward completing a decision." While the parties have expended such effort (as they have in other cases that have been stayed),1 and while it is within the Court's discretion to determine where to expend its effort, the question is whether there is reason for either party or the Court to expend additional effort on this litigation, at this stage. What is relevant is that this Court has issued final, appealable decisions in the two cases referred to in our motion -- and, just last week, issued a third, Tesoro v. United States, No. 02-704C (Fed. Cl. September 29, 2006). There, considering a complaint virtually identical to the ones at issue here and in ConocoPhillips and La Gloria, following virtually identical briefings and arguments, the Court dismissed all counts of the complaint, for lack of jurisdiction and failure to state a claim, and denied plaintiff's RCFC 56(f) motion for further discovery. As our motion noted without contradiction, at least two of these cases are expected to be appealed. Thus, it is the further proceedings in those cases that will, ultimately, determine the resolution of these cases. Accordingly, defendant respectfully requests that this matter be stayed pending the final resolution of any appeal in ConocoPhillips, La Gloria, or Tesoro; or, in the absence of an appeal, the expiration of the appeal periods.

Calcasieu v. United States (Fed. Cir. No. 02-1219), Chevron v. United States (Fed. Cir. No. 03-288), Gary Williams v. United States (Fed. Cir. No. 03-2106), Valero v. United States (Fed. Cir. No. 03-1916). -2-

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/ David M. Cohen DAVID M. COHEN Director

OF COUNSEL: DONALD S. TRACY Trial Attorney Defense Supply Center Richmond Richmond, VA 23297

HOWARD M. KAUFER Assistant Counsel Office of Counsel Defense Energy Support Center Ft. Belvoir, VA

s/ Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director Commercial Litigation Branch Civil Division Attn: Classification Unit 1100 L Street, N.W., 8th Floor Department of Justice Washington, D.C. 20530 Tele: (202) 616-2311 Fax: (202) 353-7988

Attorneys for Defendant October 4, 2006

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CERTIFICATE OF FILING I hereby certify that on October 4, 2006, a copy of the foregoing document 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