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

Case 1:98-cv-00533-CFL

Document 136

Filed 07/26/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

FENTON GINGERICH, et. al. Plaintiffs, V. UNITED STATES OF AMERICA, Defendant.

§ § § § § § § § §

DOCKET NO. 98-533 T JUDGE LETTOW

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION TO ENLARGE

On July 25, 2007, the government filed a motion to enlarge the time in which to file the report of amounts to be refunded pursuant to the Court's decision entered on June 22, 2007. Plaintiffs represented to counsel for the government that they did not object to the granting of that motion ­ as they understood it at the time. However, after reviewing the motion actually filed by the government, Plaintiffs are compelled to respond. Over the nine (9) year course of this case, the parties have been in complete agreement as to the amounts in controversy in this action. And from the first status report filed with the Court on November 25, 1998, the parties have represented that this was a winner-take-all case and only liability was at issue, not damages. It was not until Friday afternoon, July 20, 2007, that the government, for the first time, asserted the portion of interest due to application of the §6621(c) penalty interest rate was not recoverable. After a thorough review of the law, the pleadings in this case, and the decision, on July 24, 2007, Plaintiffs asked the government to explain its position and agreed with the

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Case 1:98-cv-00533-CFL

Document 136

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government's July 20th assessment that, if the parties could not resolve this issue, each party should file their own report. In exchanges of e-mail over the course of July 24-25, 2007, the government briefly explained its argument and Plaintiffs briefly responded. But the parties were unable to reconcile their differences. On Tuesday afternoon, July 24th, Plaintiffs asked the government to notify them by the morning of Wednesday, July 25th if the government was preparing to file a separate report. Plaintiffs did not receive a response from government counsel until 4:00 p.m., EST, July 25th. In that response the government repeated its argument and stated that it would file its report that night unless Plaintiffs wanted to move to enlarge. Plaintiffs' counsel did not immediately see that response. At 5:30 p.m., EST, the government e-mailed a second response in which it stated that the government would prefer to submit its computations as a reduction of Plaintiffs' computations and asked that those computations be forwarded. At 6:30 p.m., EST, government counsel and Plaintiffs counsel conferred over the phone, and Plaintiffs e-mailed their computations to the government. The full background leading up to the government's motion reveals that the government's representations that it could not comply with the Court's order because of Plaintiffs' delay is misleading. Until 6:30 p.m., Plaintiffs were under the impression that each party would be filing separately. At 7:00 p.m., EST, the government consulted Plaintiffs regarding a one day enlargement of time to file computations, to which Plaintiffs did not object. However, it was not until the government failed to respond to Plaintiffs' computations, answer e-mail regarding the status of the government's computations, and Plaintiffs received service of the government's separate report that

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Plaintiffs realized that the government intended to proceed independently ­ which was confirmed when Plaintiffs reviewed the government's motion to enlarge the time for the government to file its computations. Based on the discussion with government counsel and the exchange of e-mail, Plaintiffs' counsel was under the impression that the parties would continue to try to prepare a joint report that included the amount for total recovery, less the §6621(c) portion of interest , and that the enlargement would be for a joint report. In reliance on that understanding, Plaintiffs did not file their report on July 25th as ordered.

Respectfully,

/s/ Teresa J. Womack Teresa J. Womack Redding & Associates, P.C. 2914 W. T.C. Jester Houston, Texas 77018 Telephone: (713) 965-9244 Fax: (713) 621-5227 ATTORNEY FOR PLAINTIFFS

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