Free Motion for Leave to File Out of Time - District Court of Federal Claims - federal

Case 1:01-cv-00421-CCM

Document 49

Filed 05/02/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 01-421 T (Judge Christine Odell Cook Miller) _____________________________________

DRUMMOND COMPANY, INC., Plaintiff, v. THE UNITED STATES, Defendant. _______________________________________ JOINT MOTION FOR LEAVE TO FILE THE ATTACHED STATUS REPORT AND MOTION OUT OF TIME _________________________________________ In an Order of December 13, 2007, the Court ordered the parties to file a status report within 15 days of the date on which the Supreme Court decided United States v. Clintwood Elkhorn Mining Co., 128 S. Ct. 1511 (2008). The Court issued its opinion on April 15, 2008, and the status report should have been filed on April 30. The parties ask the Court for a two day extension of time­from April 30 through May 2, 2008, inclusive­to file the attached status report and motion. This is the first extension the parties have requested for this purpose. As good cause for this motion, the defendant states that its trial attorney drafted a status report and e-mailed it to the plaintiff's attorney on April 21. She was out of the office until May 1, however; and the defendant's trial attorney was on sick leave on April 30 and May 1.

Case 1:01-cv-00421-CCM

Document 49

Filed 05/02/2008

Page 2 of 2

The plaintiff agrees that defendant may submit this motion as a joint filing. WHEREFORE the parties ask the Court to grant this motion. Respectfully submitted,

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s/ Robert Stoddart ROBERT STODDART U. S. Department of Justice Tax Division Court of Federal Claims Section P. O. Box 26 Ben Franklin Post Office Washington, D.C. 20044 TEL: (202) 307-6445 FAX: (202) 514-9440 NATHAN J. HOCHMAN Acting Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section s/ David Gustafson Of Counsel

May 2, 2008

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Case 1:01-cv-00421-CCM

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Filed 05/02/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 01-421 T (Judge Christine Odell Cook Miller) _____________________________________

DRUMMOND COMPANY, INC., Plaintiff, v. THE UNITED STATES, Defendant. _______________________________________

JOINT STATUS REPORT AND MOTION FOR CONTINUED SUSPENSION _________________________________________

As the Court requested in its Order of December 13, 2007, the parties report that the Supreme Court has now decided that courts lack jurisdiction of claims for refund of coal-excise tax imposed on exports unless the taxpayer has filed a timely refund claim. See United States v. Clintwood Elkhorn Mining Co., 128 S. Ct. 1511 (2008). The decision in Clintwood Elkhorn, will decide all the unresolved issues in the present case if the decision becomes final. Clintwood Elkhorn may petition the Supreme Court for a rehearing on or before May 12, 2008. The parties therefore ask this Court to continue suspension of this case until May 19, 2008. The plaintiff agrees that defendant may submit this status report and motion as a joint filing. -1-

Case 1:01-cv-00421-CCM

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Filed 05/02/2008

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WHEREFORE, the plaintiff and the defendant pray that their motion for continued suspension of proceedings be granted. Respectfully submitted,

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s/ Robert Stoddart ROBERT STODDART U. S. Department of Justice Tax Division Court of Federal Claims Section P. O. Box 26 Ben Franklin Post Office Washington, D.C. 20044 TEL: (202) 307-6445 FAX: (202) 514-9440 NATHAN J. HOCHMAN Acting Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section s/ David Gustafson Of Counsel

May 2, 2008

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