Free Motion to Stay - 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, V. 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 MOTION TO STAY PROCEEDINGS Defendant, the United States, respectfully requests that these cases be stayed pending the final resolution of any appeal in ConocoPhillips, et al. v. United States, --- Fed.Cl. ----, 2006 WL

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2615554 (September 12, 2006), or La Gloria v. United States, --- Fed.Cl. ----, 2006 WL 2513065 (August 28, 2006); or, in the absence of an appeal, the expiration of the periods for appeal.1 Plaintiffs' counsel has informed us that their position is that plaintiffs will promptly respond to the Government's motion upon receipt. This case is among twenty-seven virtually-identical cases pending in this Court. Plaintiffs, Department of Defense fuel suppliers, seek to re-price their Defense Energy Support Center ("DESC") fuel contracts, under various theories, including illegality.2 See generally Tesoro Hawaii Corp. v. United States 405 F.3d 1339 (Fed. Cir. 2005). Twenty of these cases are stayed, pending the outcome of proceedings in one or more of the other cases. In the seven cases that are proceeding, we have responded to the complaints with virtually-identical motions to dismiss. Plaintiffs in those cases have replied to our motions with virtually-identical oppositions and motions for further discovery, pursuant to RCFC 56(f). In two of the seven cases (ConocoPhillips and La Gloria), Judges Wiese and Hewitt addressed these arguments, and dismissed the complaints in their entirety.3 In a third case, Chevron v. United States, No. 03-288 (Fed. Cl., September 7, 2006), Chief Judge Damich denied plaintiff's motion for discovery pursuant to RCFC 56(f), but ordered plaintiff to file a revised RCFC 56(f) motion, by October 6, 2006. On September 21, 2006, the parties jointly requested a stay of Chevron, upon the same grounds as we rely upon here. In the remaining four cases (one before Judge Bruggink and these

Plaintiffs' and defendant's counsel in these cases also are counsel in La Gloria and ConocoPhillips. Attached as Exhibit A is a chart listing each of the twenty-seven cases, the Judges to which they are assigned, and the cases' status.
3 2

1

In La Gloria, Judge Hewitt did not address the waiver issue, inasmuch as the Court's dismissal of the complaint on other grounds made that issue moot. -2-

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cases), decisions are pending. Defendant believes that it would be a more efficient use of the Court's and the parties' resources to allow any appeal of ConocoPhillips or La Gloria to be resolved, or the appeal periods to expire, before proceeding further. This is particularly so, inasmuch as the court in ConocoPhillips considered all of the issues presented in this case, and, we understand, ConocoPhillips is considering its appeal options, and must select one soon. The Court recognized the utility of our recommended approach in these cases, when it stayed these cases earlier, to allow interlocutory appeals concerning the illegality and waiver arguments to proceed in Hermes and Tesoro Hawaii. Should this motion be granted, we propose that the parties file a status report addressing further proceedings, within fourteen days of the final resolution of any appeal, or within 14 days of the expiration of the later appeal period, if no appeals are taken. For the foregoing reasons, defendant respectfully requests that this matter be stayed pending the final resolution of any appeal in ConocoPhillips or La Gloria, or, in the absence of an appeal, the expiration of the appeal periods. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/ David M. Cohen DAVID M. COHEN Director

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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 September 22, 2006

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CERTIFICATE OF FILING I hereby certify that on September 22, 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

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DESC Fuel Cases Pending In the United States Court of Federal Claims Case Judge Status Atofina Petrochemicals, Inc. v. United G. W. Miller Stayed States, No. 03-538C (Fed. Cl.) Berry Petroleum Co. v. United States, G. W. Miller Stayed No. 02-1462C (Fed. Cl.) Calcasieu Refining Co. v. United States, C. Miller Stayed - fully briefed No. 02-1219C (Fed. Cl.) Chevron U.S.A. Inc. v. United States, Damich DESC's Motion to Dismiss No. 03-288C (Fed. Cl.) pending - joint motion to stay pending - fully briefed Conoco Phillips v. United States, Wiese DESC's Motion to Dismiss No. 02-1367C (Fed. Cl.) granted El Paso Merchant Energy - Petroleum Co. v. Block DESC's Motion to Dismiss United States, No. 02-1094C (Fed. Cl.) argued; decision pending Exxon Mobil Corp. v. United States, Wiese Stayed No. 02-1217C (Fed. Cl.) Flint Hills Resources, LP v. United States, Wheeler Stayed - fully briefed No. 02-462C (Fed. Cl.) Gary-Williams Energy Corp. v. United G. W. Miller Stayed - fully briefed States, No. 03-2106C (Fed. Cl.) Giant Industries Inc. v. United States, G. W. Miller Stayed No. 03-291C (Fed. Cl.) Gold Line Ref., Ltd. v. United States; Hewitt Stayed No. 98-543C (Fed. Cl.) Of The Bankruptcy Estate of Gold Line Hewitt Stayed Refining, Ltd, No. 03-2245C (Fed. Cl.) Hermes Consolidated, Inc. v. United States, Block DESC's Motion to Dismiss No. 02-1460C (Fed. Cl.) argued; decision pending Kern Oil & Ref. Co. v. United States, G. W. Miller Stayed No. 03-1623C (Fed. Cl.) La Gloria Oil & Gas Co. v. United States, Hewitt DESC's Motion to Dismiss No. 02-465C (Fed. Cl.) granted LL&E Mining, Inc. v. United States, Bruggink Stayed No. 05-374C (Fed. Cl.) Marathon Ashland Petroleum LLC v. United Damich Stayed States, No. 02-1218C (Fed. Cl.) Navajo Ref. Co., L.P. v. United States, Hewitt Stayed No. 02-1220C (Fed. Cl.) Phoenix Petroleum Co. v. United States, Margolis Stayed No. 97-315C (Fed. Cl.) Placid Holding Co. v. United States, Wiese Stayed No. 03-1216C (Fed. Cl.) Shell Oil Company v. United States, Damich Stayed No. 04-1240C (Fed. Cl.)

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Case Sinclair Oil Corp. v. United States, No. 02-464C (Fed. Cl.); Sunoco, Inc. v. United States, No. 02-466C (Fed. Cl.) Tesoro Hawaii Corp. v. United States, No. 02-704C (Fed. Cl.) Valero Ref.-Texas, L.P. v. United States, No. 03-1916 (Fed. Cl.) Western Refining Co., LP v. United States, Nos. 03-2699C & 05-439C (Fed. Cl.); Williams Alaska Petroleum, Inc. v. United States, No. 02-705C (Fed. Cl.).

Judge Baskir Damich Bruggink Firestone Firestone Wiese

Status Stayed DESC's Motion to Dismiss argued; decision pending DESC's Motion to Dismiss argued; decision pending Stayed - fully briefed Stayed Stayed

Attachment A -2-