Free Joint Status Report - District Court of Federal Claims - federal

Case 1:01-cv-00305-LMB

Document 45

Filed 01/30/2008

Page 1 of 6

IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 01-305 T (Judge Lawrence M. Baskir)

RICHARD J. CAROTA, Plaintiff v. THE UNITED STATES, Defendant.

JOINT STATUS REPORT

Pursuant to the Court's Order dated August 16, 2006 [Doc. #35], the parties provide the following status report to update the Court on the progress of Robert J. Isler and Susan L. Isler v. United States, Fed. Cl. No. 01-344 T; Jeffrey T. Scuteri v. United States, Fed. Cl. No. 01-358 T; Ronald C. and Mary G. Prati v. United States, Fed. Cl. No. 02-60 T; John F. and Pamela F. Hinck v. United States, Fed. Cl. No. 03-865 T; Kenneth C. Keener v. United States, Fed. Cl. No. 03-2028 T; William P. Smith, Jr. and Anne D. Smith v. United States, Fed. Cl. No. 04-907 T; and Donald L. and Bettye G. Dismore v. United States, Fed. Cl. No. 04-1787 T. -1-

Case 1:01-cv-00305-LMB

Document 45

Filed 01/30/2008

Page 2 of 6

1.

On October 8, 2004, the Court heard oral argument in Isler,

Scuteri, and Prati. The United States filed an additional motion for partial dismissal in Isler on December 12, 2005, in Scuteri on February 3, 2006, and in Prati on June 2, 2006. Plaintiffs filed their responses in Isler and Scuteri on July 17, 2006, and their response in Prati on July 18, 2006. The United States filed its replies on August 28, 2006. On September 29, 2006, defendant filed an additional/alternative ground in support of its motion for partial dismissal in all three cases. Plaintiffs filed their responses on November 13, 2006, and the United States filed its replies on November 30, 2006. The Court held oral argument on all pending motions on May 1, 2007. Plaintiffs filed their post oral argument supplemental brief on July 5, 2007. Defendant filed its response on October 4, 2007. 2. Pursuant to an opinion issued February 3, 2005, this Court

dismissed the complaint in Hinck. On May 4, 2006, the Federal Circuit affirmed. See Hinck v. United States, 446 F.3d 1307 (Fed. Cir. 2006). The Federal Circuit held that 26 U.S.C. § 6404(h) grants exclusive subject matter jurisdiction in the Tax Court to review the IRS's denials of interest abatement, and therefore the Court of Federal Claims lacks subject matter jurisdiction to do the same. See id.

-2-

Case 1:01-cv-00305-LMB

Document 45

Filed 01/30/2008

Page 3 of 6

On May 21, 2007, the Supreme Court affirmed. See Hinck v. United States, 127 S.Ct. 2011 (2007). Under the Supreme Court's and Federal Circuit's decision in Hinck, the Court lacks subject matter jurisdiction over the claims for interest abatement in Glass v. U.S., 01-575 T and Lumpkin v. U.S., Fed. Cl. No. 06-94 T. Accordingly, the Court should dismiss those claims. 3. On April 18, 2007, Judge Allegra issued an opinion in Keener

and Smith, granting defendant's partial motion to dismiss for lack of jurisdiction taxpayers' period of limitations and tax motivated interest claims. Under the decision, the Court lacks subject matter jurisdiction over the period of limitations and tax motivated interest claims in Glass v. U.S., Fed. Cl. No. 01-575 T and Lumpkin v. U.S., Fed. Cl. No. 06-94 T. (On August 8, 2007, the parties filed a joint stipulation of dismissal of the interest abatement claims in Keener and Smith, as a result of the Supreme Court's decision in Hinck.) Judgment entered in Keener and Smith on August 17, 2007, and plaintiffs' attorneys filed a notice of appeal on October 15, 2007. Accordingly, the parties propose the Court wait until final appellate action, before dismissing the period of limitation and tax motivated interest claims

-3-

Case 1:01-cv-00305-LMB

Document 45

Filed 01/30/2008

Page 4 of 6

in Glass v. U.S., Fed. Cl. No. 01-575 T and Lumpkin v. U.S., Fed. Cl. No. 06-94 T. 4. As the parties earlier reported via JSR [Doc. #43], on

September 18, 2007, the Court, pursuant to RCFC 41(b), dismissed Dismore for lack of prosecution. Because Dismore was dismissed for lack of prosecution, no decision issued that impacts four of the AMCOR cases that are consolidated with this case (for status report purposes) and that have claims like the ones raised in Dismore: Carota, Fed. Cl. No. 01-305T, Ganter, Fed. Cl. No. 02-248T, Henderson, Fed. Cl. No. 04-1765T, and Johnson, Fed. Cl. No. 05-221T. There are now, however, two other AMCOR cases moving forward in which plaintiffs have raised claims like the ones plaintiffs have raised in Carota, Ganter, Henderson, and Johnson. The two cases are Schell, Fed. Cl. No. 04-1743T, and LeBlanc, Fed. Cl. No. 05-743T. In Schell, defendant moved to dismiss plaintiffs' complaint on December 20, 2007. In LeBlanc, defendant moved to dismiss plaintiffs' complaint on December 7, 2007, plaintiffs responded on January 7, 2008, and defendant's reply is due on February 15, 2008. Accordingly, the parties request the Court continue to stay Carota,

-4-

Case 1:01-cv-00305-LMB

Document 45

Filed 01/30/2008

Page 5 of 6

Ganter, Henderson, and Johnson, until Schell and LeBlanc are resolved, and correspondingly propose that those two cases be reported on in the parties' periodic joint status reports.1 5. Plaintiffs' attorney has authorized defendant's attorney to sign

this motion on his behalf.

In earlier joint status reports, the parties reported on three other AMCOR cases (Jewell, Perkins, and Ivey) with claims like the claims plaintiffs have raised in Carota, Ganter, Henderson, and Johnson. The three cases were resolved without decisions and do not impact Carota, Ganter, Henderson, and Johnson. See Jewell, Fed. Cl. No. 06-228T, Doc. #12 and Docket Entry 12/26/2007 (dismissed with prejudice pursuant to stipulation); Perkins, Fed. Cl. No. 06-51T, Doc. #16 (voluntarily dismissed); Ivey, Fed. Cl. No. 05-223T, Doc. #27 (voluntarily dismissed).
1

-5-

Case 1:01-cv-00305-LMB

Document 45

Filed 01/30/2008

Page 6 of 6

Respectfully submitted, 1/30/2008 s/Thomas E. Redding by s/Bart D. Jeffress Date THOMAS E. REDDING Redding & Associates, P.C. 2914 West T.C. Jester Houston, Texas 77018 (713) 965-9244 (713) 621-5227 (fax) Attorney for Plaintiffs 1/30/2008 s/Bart D. Jeffress Date BART D. JEFFRESS Attorney of Record U.S. Department of Justice Tax Division Court of Federal Claims Section Post Office Box 26 Ben Franklin Post Office Washington, D.C. 20044 (202) 307-6496 (202) 514-9440 (fax) NATHAN J. HOCHMAN Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section 1/30/2008 s/Steven I. Frahm Date Of Counsel Attorneys for Defendant

-6-