Pfizer, Inc. v. United States

In the United States Court of Federal Claims
No. 19-1803T
(Filed: September 14, 2020)

)
PFIZER INC., )
)
Plaintiff, )
) Claim for overpayment interest on refund of
v. ) income taxes; 26 U.S.C. § 6611; genuine issue
) of material fact precluding summary judgment;
UNITED STATES, ) discovery allowed; RCFC 56(d)
)
Defendant. )
)
)

Robert S. Walton, Baker & McKenzie LLP, Chicago, Illinois, for plaintiff. With him on
the briefs were Russell R. Young, Susan E. Ryba, and Cameron C. Reilly, Baker & McKenzie
LLP, Chicago, Illinois.

Jason Bergmann, Attorney, Court of Federal Claims Section, Tax Division, United States
Department of Justice, Washington, D.C., for defendant. With him on the briefs were Richard E.
Zuckerman, Principal Deputy Assistant Attorney General, Tax Division, and David I. Pincus,
Chief, Court of Federal Claims Section, Tax Division, United States Department of Justice,
Washington, D.C.

OPINION AND ORDER

LETTOW, Senior Judge.

Underpinning this tax case is a straightforward question of fact: what happened more
than ten years ago when the Treasury Department endeavored to prepare and send to Pfizer Inc.
(“Pfizer”) five Treasury checks of $99 million each and a sixth Treasury check of $4,528,449.05
as a refund of income taxes overpaid for the 2008 tax year. If those checks actually were
prepared and sent, Pfizer reportedly did not receive them and thus did not negotiate them. After
various communications between Pfizer’s tax department and the Internal Revenue Service
(“IRS”) regarding the refund, the IRS ultimately sent Pfizer $499,528,449.05 by wire transfer on
March 18, 2010, which Pfizer received in its bank account on March 19, 2010. These
circumstances have prompted Pfizer’s claim for overpayment interest due respecting Pfizer’s tax
refund for the taxable year ending December 31, 2008, which the IRS has refused to pay.
 Pfizer’s claim came to the court on transfer from the United States Court of Appeals for
the Second Circuit. See Pfizer Inc. v. United States, 939 F.3d 173 (2d Cir. 2019). Pfizer initially
filed its complaint in the United States District Court for the Southern District of New York,
where the parties undertook discovery and filed potentially dispositive motions before the district
court rendered a decision against Pfizer. See Pfizer Inc. v. United States, No. 16 Civ. 1870
(LGS), 2017 WL 4350581 (S.D.N.Y. June 30, 2017), vacated and transferred, Pfizer, 939 F.3d
173. Upon transfer, Pfizer filed its transfer complaint in this court on December 18, 2019. After
the government filed its answer, the parties conducted no additional discovery and Pfizer
promptly submitted a motion for summary judgment. See Pl.’s Mot. for Summ. J., ECF No. 12.
The government responded opposing summary judgment and with a cross-motion, seeking to
reopen discovery. See Def.’s Cross-Mot. and Resp. (“Def.’s Cross-Mot.”), ECF No. 16. Upon
completion of briefing, see Pl.’s Reply and Resp. to Cross-Mot. (“Pl.’s Reply”), ECF No. 17;
Def.’s Reply, ECF No. 22, a hearing was held on August 19, 2020. The cross-motions
accordingly are ready for disposition.

BACKGROUND 1

Pfizer is a calendar year taxpayer, and as such was required to file its 2008 tax return by
March 15, 2009. See Pl.’s Mem. of Law in Support of the Mot. for Summ. J. (“Pl.’s Mem.”),
ECF No. 13, at 2-3. For the 2008 tax year, corporate taxpayers, like Pfizer, could extend their
tax deadline six months by submitting IRS Form 7004, Application for Automatic Extension of
Time to File Certain Business Income Tax, Information, and Other Returns, before March 15,
2009. See id. at 3. Pfizer timely filed Form 7004 on March 3, 2009 and extended the due date of
its 2008 return to September 15, 2009. See id. Pfizer timely filed its 2008 tax return on
September 11, 2009, claiming a tax overpayment of $769,665,651. See id. Pfizer requested a
refund of $500,000,000 and directed the IRS to credit the remaining $269,665,651 to its 2009
income tax. See id. When the IRS processed the refund, it applied $471,551 to Pfizer’s 2007
income tax account, leaving a refund of $499,528,449.05. See Def.’s Cross-Mot. at 6. The IRS
scheduled the refund to be processed via six Treasury checks—five totaling $99 million each and
one totaling $4,528,449.05. See id.

The government contends that it processed each of the six checks on October 19, 2009
and mailed them on October 20, 2009. See Def.’s Cross-Mot. at 7-13. According to the
government, IRS employees entered the six refund amounts into the Secure Payment System, a
database that it shares with the Treasury Department’s Financial Management Service. See id. at
8. The Treasury Department then avers that it processed and mailed the checks via first-class
mail from its center in Austin, Texas. See id. at 8-13. The checks, however, were never received
by Pfizer’s tax department in New York. See Pl.’s Mem. at 5. Between December 2009 and
February 2010, the IRS and Pfizer discussed the missing refund checks on a number of
occasions. See id. at 4-5; Def.’s Cross-Mot. at 13-14. When the checks could not be located, the
IRS cancelled the six refund checks on February 26, 2010. See Pl.’s Mem. at 5; Def.’s Cross-
Mot. at 15. Thereafter, the IRS executed an electronic funds transfer for $499,528,449.05 on

1 The following recitations do not constitute findings of fact by the court. Instead, the
recited factual elements are taken from the complaint and the parties’ briefs and attached
appendices.

2
March 18, 2010, which was deposited into Pfizer’s account on March 19, 2010. See Pl.’s Mem.
at 5; Def.’s Cross-Mot. at 15.

Pfizer brought suit against the United States in the United States District Court for the
Southern District of New York seeking interest on its delayed refund pursuant to 26 U.S.C. §
6611. Pl.’s Transfer Compl., ECF No. 6, at 6. Section 6611 provides that “[i]nterest shall be
allowed and paid upon any overpayment in respect of any internal revenue tax.” 26 U.S.C. §
6611(a). If the interest is refunded to the taxpayer, interest is calculated between the date of
overpayment to a date determined by the Secretary, but no more than thirty days before the
check is tendered to the taxpayer. See id. at 6611(b)(2). Section 6611(e) allows the government
to avoid payment of interest when the overpayment “is refunded within 45 days after the last day
prescribed for filing the return.” Id. at 6611(e)(1). 2

2 In relevant part, Section 6611 states:

§6611. Interest on overpayments
(a) Rate. – Interest shall be allowed and paid upon any overpayment in respect of any
internal revenue tax at the overpayment rate established under section 6621.

(b) Period. – Such interest shall be allowed and paid as follows:
(1) Credits. – In the case of a credit, from the date of the overpayment to the due date
of the amount against which the credit is taken.
(2) Refunds – In the case of a refund, from the date of the overpayment to a date (to
be determined by the Secretary) preceding the date of the refund check by not more
than 30 days, whether or not such refund check is accepted by the taxpayer after
tender of such check to the taxpayer. The acceptance of such check shall be without
prejudice to any right of the taxpayer to claim any additional overpayment and
interest thereon.
. ..

(e) Disallowance of interest on certain overpayments. –
(1) Refunds within 45 days after return is filed. – If any overpayment of tax imposed
by this title is refunded within 45 days after the last day prescribed for filing the
return of such tax (determined without regard to any extension of time for filing the
return) or, in the case of a return filed after such last date, is refunded within 45 days
after the date the return is filed, no interest shall be allowed under subsection (a) on
such overpayment.
(2) Refunds after claim for credit or refund – If –
(A) the taxpayer files a claim for a credit or refund for any overpayment of tax
imposed by this title, and
(B) such overpayment is refunded within 45 days after such claim is filed,
no interest shall be allowed on such overpayment from the date the claim is filed
until the day the refund is made.

26 U.S.C. § 6611(a)-(b), (e) (emphasis added).

3
 On July 15, 2016, the government filed a motion to dismiss for lack of subject matter
jurisdiction or, alternatively, to transfer to the Court of Federal Claims, arguing that the Southern
District of New York did not have jurisdiction over Pfizer’s claim under 28 U.S.C. § 1346(a)(1).
See Transfer Compl. at 6. The district court denied the government’s motion. See id. The
parties undertook discovery, and the government subsequently filed a second motion to dismiss
on the ground that Pfizer’s claim was filed outside the two-year statute of limitations. See id.
The district court granted the government’s second motion to dismiss and later denied Pfizer’s
motion for reconsideration. See id.

Pfizer appealed to the United States Court of Appeals for the Second Circuit on July 25,
2017. Transfer Compl. at 7. The Second Circuit held that 28 U.S.C. § 1346(a)(1) did not grant
the district court jurisdiction over the claim. Pfizer, 939 F.3d at 175-79. The court of appeals
noted that Section 1346(a)(1) grants district courts and the Court of Federal Claims concurrent
jurisdiction over tax recovery claims for (1) an “internal-revenue tax alleged to have been
erroneously or illegally assessed or collected,” (2) a “penalty claimed to have been collected
without authority,” or (3) a “sum alleged to have been excessive or in any manner wrongfully
collected under internal-revenue laws.” 28 U.S.C. § 1346(a)(1); see Pfizer, 939 F.3d at 176.
Absent district court jurisdiction, the Court of Federal Claims has exclusive jurisdiction over
monetary claims against the United States. See 28 U.S.C. §§ 1346(a)(1), 1491(a)(1). The
Second Circuit ruled that Pfizer’s claim for overpayment interest did not fit within Section
1346(a)(1), and therefore the district court lacked jurisdiction. See Pfizer. 939 F.3d at 179.3 As
a result, the Second Circuit vacated the district court’s judgment for lack of subject matter
jurisdiction and transferred the case to the Court of Federal Claims. See id. 4

In this court, Pfizer’s motion for summary judgment rests on the premise that no material
facts are in dispute, that it never received a timely refund, and that overpayment interest is thus
due pursuant to Section 6611. See Pl.’s Mem. The government’s cross-motion seeks to open
fact discovery to address Pfizer’s mail handling procedures in its New York offices. See Def.’s

3 In doing so, the Second Circuit abrogated two decisions by the District of Connecticut
that each held that overpayment interest is an “internal-revenue tax” within the meaning of
Section 1346(a)(1). Pfizer, 939 F.3d at 177. In Trustees of Bulkeley School v. United States, the
District of Connecticut held that a taxpayer who is owed overpayment interest has not received a
full refund until he or she obtains the overpayment interest. 628 F. Supp. 802, 803 (D. Conn.
1986). Similarly, in Triangle Corp. v. United States, the district court justified its own
jurisdiction by finding that Congress would not have left the taxpayer without a forum to litigate
overpayment interest. 592 F. Supp. 1316, 1317 (D. Conn. 1984). The Second Circuit concluded
that the District of Connecticut’s decisions misapplied Section 1346 and determined that district
courts lacked jurisdiction over overpayment interest cases. Pfizer Inc., 939 F.3d at 176-77.

4 The Court of Claims earlier had reached the same result regarding jurisdiction, see
Alexander Proudfoot Co. v. United States, 454 F.2d 1379, 1384 (Ct. Cl. 1972), which bound the
Federal Circuit and this court to that outcome. In like vein, very recently the Federal Circuit has
followed Alexander Proudfoot and also explicitly approved of the Second Circuit’s rationale and
conclusion in Pfizer. See Bank of America Corp. v. United States, 964 F.3d 1099 (Fed. Cir.
2020).

4
Cross-Mot. While the case was in the Southern District of New York, the parties conducted
discovery about that very issue, with the government examining Pfizer’s designated corporate
witness regarding “complaints relating to lost, non-received, or misplaced mail” and any
investigations into the same. Id. Ex. X. The government contends that Pfizer failed to meet its
obligations to designate a knowledgeable witness in accord with Rule 30(b)(6) of the Federal
Rules of Civil Procedure and seeks to reopen discovery to conduct a further deposition related to
lost or misplaced mail at Pfizer’s New York City offices. Id. at 33-35. Upon completion of the
briefing, see Pl.’s Reply; Def.’s Reply, a hearing was held on August 19, 2020. The cross-
motions are now ready for disposition.

STANDARDS FOR DECISION

A. Jurisdiction

Under the Tucker Act, the Court of Federal Claims has “jurisdiction to render judgment
upon any claims against the United States founded . . . upon . . . any Act of Congress.” 28
U.S.C. § 1491(a)(1). While district courts have concurrent jurisdiction over some internal-
revenue tax claims, see 28 U.S.C. § 1346(a), the Court of Federal Claims has exclusive
jurisdiction over claims for tax overpayment interest, see Bank of America Corp., 964 F.3d at
1109; Pfizer, 939 F.3d at 178; Alexander Proudfoot, 454 F.2d at 1384 (noting that the “[tax]
[c]ode deals quite differently . . . with interest payable by the [g]overnment on overpayments”
than it does with tax refunds and interest on underpayments). Therefore, this court has
jurisdiction over Pfizer’s claim.

B. Summary Judgment

Summary judgment shall be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a) of
the Rules of the Court of Federal Claims (“RCFC”). A material fact is one that “might affect the
outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (interpreting
Fed. R. Civ. P. 56). 5 A genuine dispute exists when the finder of fact may reasonably resolve the
dispute in favor of either party. Id. at 250.

The movant bears the burden of demonstrating the absence of any genuine disputes of
material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), and must “cite[] to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials,” RCFC 56(c)(1)(A). The court may consider other materials in the record even
if not cited by the parties. RCFC 56(c)(3). “[T]he inferences to be drawn . . . must be viewed in
the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654,

5 Because RCFC 56 mirrors Fed. R. Civ. P. 56, the rules should be interpreted in pari
materia.

5
655 (1962)). If the record taken as a whole “could not lead a rational trier of fact to find for the
non-moving party, there is no ‘genuine issue for trial’” and summary judgment is appropriate.
Matsushita, 475 U.S. at 587 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253,
289 (1968)).

Further, Rule 56(d)(2) provides that “if a nonmovant [for summary judgment] shows by
affidavit or declaration that . . . it cannot present facts essential to justify its opposition, the court
may . . . allow time . . . to take discovery.” RCFC 56(d)(2). Such a motion must articulate “with
particularity, what facts the movant hopes to obtain by discovery and how these facts will raise a
genuine issue of fact.” Exigent Tech., Inc. v. Atrana Solutions, Inc., 442 F.3d 1301, 1310 (Fed.
Cir. 2006). When the nonmovant meets this standard, denial of summary judgment and
reopening of discovery are appropriate.

ANALYSIS

A. Interpretation of 26 U.S.C. § 6611

The parties dispute the interpretation and application of Section 6611. Pfizer states that
“tender” in Paragraph 6611(b)(2) requires that the government deliver refund checks to the
taxpayer to avoid overpayment interest liability. Pl.’s Mem. at 10. The government counters
that Subsection 6611(e) acts as an exception to Paragraph 6611(b)(2) and only requires the
government to issue the refund check within 45 days in order to avoid paying interest on a tax
overpayment. Def.’s Cross-Mot. at 20-21.

Pfizer’s argument principally rests on opinions by the United States Courts of Appeals
for the Second and Seventh Circuits. Pl.’s Mem. at 10-12. In Doolin v. United States, the Court
of Appeals for the Second Circuit held that Subsection 6611(b)’s use of the word “tender” when
describing a taxpayer’s refund requires “that a taxpayer has some knowledge of [the refund
check] and an opportunity to accept, or decline to accept, the check.” 918 F.2d 15, 18 (2d Cir.
1990). The Court of Appeals for the Seventh Circuit in Godfrey v. United States adopted the
Second Circuit’s analysis. 997 F.2d 335, 337 (7th Cir. 1993). The Seventh Circuit connected
the “tender” reference in Subsection 6611(b) to Subsection 6611(e), holding that “is refunded” in
Subsection 6611(e) implicates the tender requirement of Paragraph 6611(b)(2). Id. at 336-37.
Overpayment interest cannot be “refunded” absent tender. Id. 6 Although these precedents do
not bind the court, Pfizer encourages the court to adopt this rationale in full. Pl.’s Reply at 12. 7

6
The parties agree that overpayment interest claims are infrequently litigated, especially
where delivery is at issue. To the best of the parties’ knowledge—and the court’s research—the
Second and Seventh Circuits’ decisions in Doolin and Godfrey are the only ones to address the
issue of overpayment interest attendant to refunds that failed of delivery, and claims of missing
refunds are rare. See Hr’g Tr. 43:24-25 (Mr. Walton: “I will note that there’s only now three
cases dealing with this issue that have made it to court.”); see also Doolin, 918 F.2d 15; Godfrey,
997 F.2d 335.

Pfizer acknowledged during oral argument that the government could avoid
7

overpayment interest if the refund was issued within 45 days, provided that the refund was

6
 Defendant asserts that the government can avoid overpayment interest if it issues the
taxpayer a refund within 45 days, regardless of when or whether the refund is delivered to the
taxpayer. Def.’s Cross-Mot. at 19-26. The government asks this court to disregard the rulings of
the Second and Seventh Circuits and find that delivery is not necessary under Subsection
6611(e). Id. at 23-26. The government bolsters its argument with reference to the 1993
amendment to Subsection 6611(e), adopted as part of the Revenue Reconciliation Act of 1993,
Pub. L. No. 103-66, 107 Stat. 312. Id. at 21-23. This enactment came after the Doolin and
Godfrey decisions. See id. at 24-25. The government correctly states that the legislative history
consistently refers to the 45-day period in Section 6611(e) as being triggered upon issuance of
the refund. See, e.g., H.R. Conf. Rep. 103-213 (1993).8 The 1993 amendment, however, made
only minor modifications to the text of Subsection 6611(e). See id at 239, 699; Pl.’s Reply at 13.
The amendment neither altered the “is refunded” or “tender” language upon which Doolin and
Godfrey rely nor mentioned either of those decisions. 9 There is no indication from the legislative
history that legislators were aware of, much less sought to alter, the interpretation of Section
6611 established in Doolin and Godfrey. The legislative history explains that the amendment
was intended to expand the types of taxes covered by Subsection 6611(e) rather than change the
operation of the subsection. H.R. Conf. Rep. 103-213 at 699. While the government urges the
court to use the legislative history to deviate from the Seventh and Second Circuit’s
interpretation of Section 6611, a court may only use legislative history to resolve ambiguity in
the statutory text and should not “resort to legislative history to cloud a statutory text that is
clear.” Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994). 10

delivered to the taxpayer in due course even if delivery occurred outside of the 45-day window.
Hr’g Tr. 15:16-19.

8 The relevant language is as follows: “No interest is paid by the Government on a refund
arising from an original income tax return if the return is issued by the 45th day after the later of
the due date of the return . . . or the date the return is filed.” H.R. Conf. Rep. 103-213 at 699
(emphasis added).

9 It is unsurprising that Godfrey is not mentioned in the legislative history. Most of the
legislative history pre-dates the Godfrey decision, which was rendered on June 28, 1993. See
997 F.2d 335. The Revenue Reconciliation Act of 1993 became law on August 10, 1993. Pub.
L. No. 103-66, 107 Stat. 312. The Conference Report of the House Committee on the Budget –
the main portion of legislative history cited by the government – was published on August 3,
1993. See H.R. Conf. Rep. 103-213.
10
The government further directs the court to the Federal Circuit’s opinion in Deutsche
Bank AG v. United States and this court’s opinion in Paresky v. United States. Deutsche Bank
AG, 742 F.3d 1378 (Fed. Cir. 2014); Paresky, 139 Fed. Cl. 196 (2018). Both opinions refer to
Subsection 6611(e) triggering on issuance of the refund. Deutsche Bank AG, 742 F.3d at 1381
(“A taxpayer claiming a refund . . . is entitled to interest on overpayment when the refund is
issued more than forty-five days after the initial due date for filing or the actual return filing
date.”); Paresky, 139 Fed. Cl. at 207 (stating that the IRS could avoid overpayment interest if it
had “issued refunds within 45 days”). These statements are dicta and also are not determinative

7
 But the court does not need to resolve this question of statutory interpretation on motion
for summary judgment. There are genuine disputes of fact both as to whether the Treasury
issued and mailed the checks and whether the checks were appropriately delivered to Pfizer.
Under either party’s proposed formulation of Section 6611, material disputes of fact bar
summary judgment.

B. Material Disputes of Fact

On the issue of mailing and issuance, Pfizer argues that “the [g]overnment has failed to
produce any evidence that the Six Refund Checks were ever mailed.” Pl.’s Mem. at 13
(emphasis in original). This argument, however, fails to account for evidence of the Treasury’s
routine refund processing and mailing procedures and evidence showing that Pfizer’s refund
checks were processed according to these routine procedures. See Def.’s Cross-Mot. Exs. C-D,
K, M, Attachs. 1, 5. While Pfizer correctly notes that the government has not produced evidence
of envelopes or return receipts, Pl.’s Mem. at 13, such evidence is not required to prove mailing.
“Evidence of . . . an organization’s routine practice may be admitted to prove that on a particular
occasion the . . . organization acted in accordance with the . . . routine practice.” Fed. R. Evid.
406. The government’s contemporaneous business records, coupled with an explanation of IRS
refund check processing procedures, ostensibly satisfies Rule 406.

The Manual Refund Posting Vouchers indicate that the IRS scheduled five checks for
$99 million and one check for $4,528,499.05, see Def.’s Cross-Mot. Exs. C-D, and Treasury
business records display the times and dates of the Treasury’s automated process to print and
mail Pfizer’s refund checks, see id. Exs. K, M. Further, the government presented two
declarations describing the IRS’s scheduling, issuing, and mailing procedures of Treasury checks
generally, and Pfizer’s checks specifically. See id. at Attachs. 1, 5. Pfizer’s checks appear to
have followed the normal Treasury issuance and mailing process, and courts may presume that
“what appears regular is regular.” Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001).

Pfizer cites contrary evidence in the record, including a declaration of Pfizer’s Senior Tax
Manager, Robert Gerken, and an email from IRS employee Judy English that stated she had “just
heard from [the] inquiry unit . . . [and t]hey have confirmed that the checks weren’t sent &
stopped the request.” Pl.’s Mem. Ex. 4 ¶ 8. Additionally, while one or two missing checks
could be attributable to an error by the United States Postal Service or Pfizer’s mail handling
practices, the fact that Pfizer’s tax department never received any of the six checks raises a
serious question as to whether the checks were issued and mailed according to routine process.11
These questions, however, are factual in nature. The court cannot weigh evidence on summary
judgment but must view all evidence in the light most favorable to the nonmovant. See

of the interpretive issue at hand – the interplay between Paragraph 6611(b)(2) and Subsection
6611(e).

The five refund checks for $99 million each were reportedly prepared and mailed in the
11

same way, but the sixth check for $4,528,449.05 was prepared and mailed separately. See Def.’s
Cross-Mot. at 6-10.

8
Matsushita Elec. Indus. Co., 475 U.S. at 587. Here, there is a material dispute as to whether the
checks were issued and mailed and, therefore, summary judgment is inappropriate.

Genuine factual disputes also remain as to the question of delivery. Both Pfizer and the
government agree that the government should be afforded a presumption of delivery when the
government properly mails refund checks. Pl.’s Mem. at 11; Def.’s Cross-Mot. at 29-30. Other
courts that have evaluated the presumption of delivery, including the United States Courts of
Appeals for the Second and Seventh Circuits, have found that the presumption can be rebutted
when the recipient presents evidence that the mail was never received. Doolin, 918 F.2d at 18-
19; Godfrey, 997 F.2d at 388. Because the checks were not received by Pfizer’s tax department
and there are genuine disputes as to whether the checks were actually and properly mailed, the
court cannot evaluate the presumption of delivery on summary judgment.

The government questions the reliability of Pfizer’s mail system for its New York City
offices and seeks to reopen discovery in order to collect additional evidence of Pfizer’s mail
practices. See Hr’g Tr. 33:11 to 34:3 (Aug. 19, 2020). 12 Both parties agree that the refund
checks should have been sent to the address included on Pfizer’s tax returns—150 East 42nd
Street, New York, New York. Pl.’s Mem. at 4; Def.’s Cross-Mot. at 15. Any mail sent to 150
East 42nd Street or Pfizer’s other Manhattan offices follows an established process. Def.’s
Cross-Mot. at 15-16. A third-party contractor collects all mail from the nearby United States
Post Office. Id. at 15. The mail is taken to Pfizer’s central mailroom at 219 East 42nd Street
where it is sorted and later transported to various offices and departments. Id. at 16-17. Pfizer
asserts that it regularly receives timely correspondence from the federal government, including
from the IRS. Pl.’s Reply at 8; Hr’g Tr. 47:7-9. Therefore, according to Pfizer, there is reason to
expect that Pfizer would have received checks properly delivered to Pfizer’s mail department, yet
none of the six checks made it to Pfizer’s New York tax department. Pl.’s Reply at 3-4, 8; Hr’g
Tr. 47:7-19.

During discovery, the government sought to examine, under Rule 30(b)(6) of the Federal
Rules of Civil Procedure, a Pfizer witness as to “all incidents in which Pfizer lost or allegedly
failed to receive mail addressed to Pfizer at 150 East 42nd Street, New York, New York” and
related investigations into missing mail. Def.’s Cross-Mot. at 34, Ex. X. Pfizer designated
Timothy Mahoney, Pfizer’s New York Site Operations Manager, whom the government deposed
on March 31, 2017. Pl.’s Reply Ex. 2. During his deposition, Mr. Mahoney stated that while he
did not undertake additional efforts to prepare for the deposition, he was not aware of any
complaints regarding lost, non-received, or misplaced mail. Def.’s Cross-Mot. at 18-19; Pl.’s
Reply Ex. 2 (Mahoney Dep. 42:18 to 44:4). The government argues that due to Mr. Mahoney’s
lack of inquiry into the incidents of lost mail, Pfizer has failed comply with its Rule 30(b)(6)
obligations. Def.’s Cross-Mot. at 33-35. The government additionally asserts that a proper
inquiry into this topic will allow it to contest Pfizer’s arguments regarding the issue of delivery.
Hr’g Tr. 33:21 to 34:6.

The date will be omitted from further citations to the transcript of the hearing conducted
12

on August 19, 2020.

9
 Rule 56(d)(2) of the Rules of the Court of Federal Claims allows the court to reopen
discovery when a nonmovant for summary judgment articulates “with particularity which facts
the [party] hopes to obtain during discovery and how these facts will raise a genuine issue of
fact.” Exigent Tech., 442 F.3d at 1310. Although Pfizer contends that Mr. Mahoney would have
been aware of incidents of lost mail, Pl.’s Reply at 22-26, the court concludes that additional
discovery on Pfizer’s mail practices could assist the government in combatting Pfizer’s delivery
arguments. Thus, the government has satisfied the requirements of Rule 56(d)(2). When a party
satisfies the requirements of Rule 56(d)(2), the court’s appropriate course of action is to deny the
motion for summary judgment and allow further discovery. RCFC 56(d)(2). There are disputes
of fact as to whether the checks were in fact delivered, which can be clarified through additional
discovery. The court, therefore, must deny Pfizer’s motion for summary judgment and reopen
discovery for both parties.

CONCLUSION

For the reasons stated, Pfizer’s motion for summary judgment is DENIED and the
government’s cross-motion to reopen discovery is GRANTED. Genuine disputes of material
fact exist regarding Pfizer’s claims and are not limited merely to those identified in this opinion.
The court requests that the parties file a joint status report by September 30, 2020 with a
proposed schedule for discovery and further proceedings in this case.

It is so ORDERED.

s/ Charles F. Lettow
Charles F. Lettow
Senior Judge

10