Free Status Report - District Court of Federal Claims - federal

Case 1:01-cv-00254-BAF

Document 107

Filed 10/08/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CONSOLIDATION COAL CO., et al., ) ) Plaintiffs, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ----------------------------------------------------- ) RAPOCA ENERGY CO., LLC, ) ) Plaintiff, ) ) v. ) ) UNITED STATES, ) ) Defendant. )

No. 01-254 (Judge Futey)

No. 01-442 (Judge Futey)

DEFENDANT=S STATUS REPORT Pursuant to the Court=s Order dated September 25, 2007 and the Court=s September 24, 2007 status conference, the defendant, the United States, respectfully submit this jstatus report, in which the defendant describes its position regarding further proceedings necessary in these cases during the pendency of the Government=s liability appeal and whether the proceedings with respect to the remaining plaintiffs in this case should be stayed. Defendant submits this status report because defendant's counsel will be unavailable through October 9, 2007, the due date the Court set for a joint status report. The parties designated five test plaintiffs: Jim Walter Resources, Inc., Pioneer Resources, Inc., Kingston Resources, Inc., CONSOL of Pennsylvania, and Eastern Associated. This Court entered judgment in favor of one test plaintiff, Jim Walter Resources, Inc. on February 22, 2007. On April 19, 2007, the United States noticed its appeal to the United States Court of Appeals for the Federal Circuit. On August 24, 2007, the United States filed its opening brief. The appellees= response brief is currently due October 9, 2007; however, the appellees have filed an unopposed motion for an enlargement of time of sixty (60) days.

Case 1:01-cv-00254-BAF

Document 107

Filed 10/08/2007

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No discovery activity has occurred on the remaining four test plaintiffs since the Court entered judgment in February. The defendant does not have a need to seek further discovery with respect to the four test plaintiffs. Given that briefing on the Government=s liability appeal is well underway, the Government believes that a stay of the proceedings with respect to the remaining test and non-test plaintiffs during the pendency of the appeal is most appropriate. In the alternative, the Court could choose to proceed with the claims of the remaining four test plaintiffs, because there has been substantial discovery on those claims and they are sufficiently developed to be relatively near the point of final disposition. As to the non-test plaintiffs, the defendant believes the proceedings should be stayed in order to prevent the substantial loss of time and resources that would result if the Court=s liability decision is reversed on appeal. For many transactions, the parties are in substantial agreement and may be able to provide joint stipulations of fact. That said, there are two remaining issues with respect to the remaining four test plaintiffs. First, as stated in the December 19, 2006 joint status report, there is a legal issue the defendant intends to raise as to whether certain transactions are within the export stream of commerce; if those transactions were not in the export stream of commerce, they are not entitled to the Export Clause=s protection. This is a legal issue appropriate for disposition by this Court on summary judgment motions, with no further fact development or discovery needed to determine this issue. The defendant is amenable to setting a briefing schedule in order to resolve that issue. Second, there remain some sales transactions for which the parties cannot agree to stipulations of fact at this time. Specifically, the parties cannot agree as to whether the coal was actually exported. Because this is a disputed issue of fact, the defendant believes that resolution of these factual disputes will require an evidentiary hearing or trial of fact. Although the discovery period closed on December 13, 2006, the defendant proposes that this Court set a

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Case 1:01-cv-00254-BAF

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deadline for the completion of any further discovery, including production of any documents or affidavits upon which the plaintiffs will rely to meet their burden of proof on these factual issues.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director S/Todd M. Hughes TODD M. HUGHES Deputy Director S/Tara K. Hogan TARA K. HOGAN Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, NW Washington, D.C. 20530 Telephone: (202) 616-2228 Telecopier: (202) 305-7643

Counsel for Defendant DANIEL W. KILDUFF U.S. Department of the Interior Office of the Solicitor October 8, 2007 Of Counsel

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Case 1:01-cv-00254-BAF

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Filed 10/08/2007

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CERTIFICATE OF ELECTRONIC FILING I hereby certify that on October 8, 2007, a copy of the foregoing ADefendant=s Status Report@ 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/ Tara K. Hogan

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