          In the United States Court of Federal Claims
                                         No. 12-843T
                                    (Filed: April 29, 2014)

                                               )
NEVADA CONTROLS, LLC,                          )
                                               )
                       Plaintiff,              )     Motion to dismiss; RCFC 12(b)(6);
                                               )     Amended Complaint; Limited Discovery
v.                                             )
                                               )
THE UNITED STATES OF AMERICA,                  )
                                               )
                       Defendant.              )
                                               )
                                               )
                                               )

        Bryan D. Dixon, Bryan D. Dixon, Attorney at Law, PLLC, Henderson, NV, for
        plaintiff

        Michael J. Ronickher, U.S. Department of Justice – Tax Division, Washington,
        DC, for defendant

     ORDER GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT,
      DENYING DEFENDANT’S MOTION TO DISMISS AS MOOT, AND SETTING A
                   SCHEDULE FOR LIMITED DISCOVERY

        This case is before the Court on the motion of the defendant, the United States of

America (hereinafter “the government”), to dismiss for failure to state a claim upon which relief

can be granted under the Rules of the Court of Federal Claims (“RCFC”) 12(b)(6). The plaintiff,

Nevada Controls, LLC, a Nevada corporation, alleges that the Secretary of the Treasury

erroneously denied its claim for four grants under section 1603 of the American Recovery and

Reinvestment Tax Act of 2009 (“ARRTA”), Pub. L. No. 111-5 (2009), as amended by section

707 of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010,

Pub. L. No. 111-312 (2010). Nevada Controls seeks $553,716 in ARRTA grants, and $40,000 in
damages to compensate it for loan penalties and interest it allegedly incurred as a result of the

government’s failure to award the grants.

         The government argues that Nevada Controls’ complaint must be dismissed because it

fails to allege facts showing compliance with the application deadline set forth in section 1603(j)

of ARRTA, which prohibits the Secretary of the Treasury from “mak[ing] any grant to any

person under this section unless the application of such person for such grant is received before

October 1, 2012.” In addition, the government argues that the Court does not have jurisdiction

over Nevada Controls’ claim for consequential damages resulting from the nonpayment of the

grant.

         Oral argument was held on the motion to dismiss by phone on April 29, 2014. During

the oral argument, counsel for plaintiff clarified the allegations in its complaint regarding its

compliance with the statutory deadline. He indicated that Nevada Controls believed that it had

timely submitted specific requests for grants for the projects at issue in this case through

communications with the Secretary of the Treasury’s online applications system (to which

plaintiff no longer has access). In light of that clarification, the Court will GRANT plaintiff

leave to file a second amended complaint as requested in its opposition to the government’s

renewed motion to dismiss at 5, and DENY the government’s motion to dismiss as moot.

         The plaintiff shall file its amended complaint by June 27, 2014. In addition, the parties

shall complete discovery regarding the contents of the online communications between plaintiffs

and the Secretary of the Treasury within sixty days of the date of this Order. Thereafter, within

thirty days of completing discovery, the parties shall submit a joint (or, if necessary separate)

proposed scheduling order to govern further proceedings in the case.




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IT IS SO ORDERED.

.



                        s/ Elaine D. Kaplan
                        ELAINE D. KAPLAN
                        Judge




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