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

Case 1:01-cv-00305-LMB

Document 38

Filed 11/06/2006

Page 1 of 5

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. -12002748.1

Case 1:01-cv-00305-LMB

Document 38

Filed 11/06/2006

Page 2 of 5

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 25, 2006, defendant filed an additional/alternative ground in support of its motion for partial dismissal in all three cases. 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 to 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. Under the 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. Plaintiffs' counsel, however, has petitioned for Supreme Court review of the Hinck decision.

-2-

2002748.1

Case 1:01-cv-00305-LMB

Document 38

Filed 11/06/2006

Page 3 of 5

Accordingly, the parties propose the Court wait until final appellate action, before dismissing the interest abatement claims. 3. Keener and Smith were consolidated on August 11, 2005, for

briefing of dispositive motions, and the United States filed a motion for partial dismissal in Keener and Smith on November 4, 2005. On February 21/22, 2006, plaintiffs filed their response and a partial motion for summary judgment. On May 5, 2006, defendant filed a response to plaintiffs' summary judgment motion, and, on May 10, 2006, a reply to plaintiffs' response. On August 14, 2006, defendant filed an additional/alternative ground in support of its motion for partial dismissal, and, on September 23, 2006, plaintiffs filed their response. Defendant filed its reply on October 17, 2006. 4. In Dismore, the United States filed a motion to dismiss one of

plaintiffs' two claims on January 6, 2006. Plaintiffs filed their response on March 7, 2006, and the United States filed its reply on March 28, 2006. The Court held oral argument on the motion on June 9, 2006. The parties submitted post-oral argument supplemental briefs on July 14, 2006. Plaintiffs filed a motion to amend their complaint on July 14, 2006, which the Court granted, thereby mooting the briefing and argument. Discovery

-3-

2002748.1

Case 1:01-cv-00305-LMB

Document 38

Filed 11/06/2006

Page 4 of 5

on plaintiffs' remaining claim is proceeding. 5. On August 24, 2006, the Court issued a scheduling order in

Charles L. Ivey and Doris W. Ivey v. United States, Fed. Cl. No. 05-223T, directing that the stay entered in that AMCOR case shall automatically terminate on May 22, 2007, and that the parties shall file a Joint Status Report on or before May 23, 2007, proposing a schedule for future proceedings in Ivey. 6. Defendants' attorney has authorized Plaintiffs' attorney to sign

this motion on his behalf.

Respectfully submitted, 11/06/06 Date /s/ Thomas E. Redding 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

-4-

2002748.1

Case 1:01-cv-00305-LMB

Document 38

Filed 11/06/2006

Page 5 of 5

Bart D. Jeffress w/ permission by 11/06/06 Teresa J. Womack 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) EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section

-5-

2002748.1