Free Response to Motion - District Court of Federal Claims - federal

Case 1:00-cv-00644-NBF

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WILLIAM A. CLARK, et. al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 00-644 (Judge Firestone)

DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL WITH ACCOMPANYING APPENDIX Pursuant to Rule 37 of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully submits this response, opposing plaintiffs' motion to compel discovery.1 As we explain below, the United States Department of Defense, the United States Army, the United States Air Force, and the United States National Guard Bureau have been searching for, and producing, responsive documents to plaintiffs since 2004. The produced documents were the result of an exhaustive search effort by hundreds of Department of Defense military and civilian personnel. Indeed, we are unaware of any military pay case in this, or any other Federal court, where DoD has undertaken such efforts to produce documents. Furthermore, the Department of Defense could have raised valid objections to almost all of plaintiffs' discovery requests during this litigation because plaintiffs' discovery requests are vague, burdensome, or outside the scope of discovery.2 However, instead of seeking numerous

In this response, we will refer to plaintiffs' motion to compel, which was filed electronically on December 7, 2007, as "Pl. Mot." or "plaintiffs' motion." Given that the sole issue that plaintiffs were allowed to take discovery upon is what, if any, correspondence courses the Secretary of Defense required members of the state militia to complete, and given that is now beyond dispute that plaintiffs' have admitted that they base their
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protective orders with the court, defendant has tried to work with plaintiffs' counsel in an attempt to understand and respond reasonably to plaintiffs' discovery requests. Moreover, agency counsel, when reviewing search efforts with subordinate service commands and agencies who were searching for responsive documents, told command and agency personnel to err upon the side of production when a question of whether a document was responsive to one of plaintiffs' discovery requests. In sum, the United States believes it has reasonably searched for and produced all responsive documents that it found in its possession. We have contacted numerous agencies within the Department of Defense on several separate occasions to inquire about potential responsive documents. Whenever a responsive document was produced to us, we turned it over to plaintiffs. Plaintiffs' motion to compel should be denied, and if discovery is extended, it should be for only a minimum amount of time. DoD has delayed the implementation of critical new training initiatives pending the outcome of this case, and further delay negatively impacts upon training men and women in the Reserve component of our armed forces. Accordingly, we respectfully request that the Court deny plaintiffs' motion, and if discovery is extended, that the period be for as short of period as possible.3

claims upon their belief that the Secretary of Defense required members of the state militia to complete correspondence courses solely by military regulation, it is difficult to see how any of plaintiffs' request are not objectionable, given that plaintiffs had access to these regulations all along. Submitted with this brief is defendant's appendix ("DA __") which contains documents that we reference in our response. 2
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ARGUMENT I. The Government Has Conducted A Thorough Search For Responsive Documents And Has Produced Everything Within Its Control Plaintiffs allegation that the United States has "not conducted a reasonable search to comply with plaintiffs' discovery requests" is without merit. Pl. Br. pp. 14-22. The United States has been searching for documents for nearly four years now, and as we have explained to plaintiffs' counsel upon numerous occasions, we have produced all responsive documents we located during our searches that are within our control. Current and former agency counsel have set forth the search techniques that they have used to ensure that their agencies have reasonably searched for and produced responsive documents. See DA 01-09 (Declaration of Major Dunlap), DA 10-13 (Declaration of Major Rockenbach), DA 14-52 (Declaration of Mr. Gonzalez), DA 53-55 (Declaration of Lieutenant Colonel Roou), and DA 56-58 (Declaration of Captain Brown). The declarations submitted by agency counsel show that each service searched offices and organizations at the strategic, operational and tactical levels of their agency to obtain potentially responsive documents. Moreover, given that plaintiffs' discovery requests were so broad and vague, agency personnel instructed everyone they contacted to err on the side of production if the person searching for documents was not sure if a document was responsive to a particular discovery request. It is simply not true that plaintiffs "have been able to obtain only minimal discovery from the government." Pl. Mot. p. 14. Indeed, the record shows that plaintiffs have admitted that we have been vigilant in searching for and producing responsive documents. DA 60 (Joint Status Report dated December 13, 2004 noting Government production); DA 62-77 (various e-mails showing Government's cooperation and production). 3

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Plaintiffs' allegation at page 15of their motion that the Government "has not complied with its obligation to make reasonable inquiries in response to Plaintiffs' discovery requests" because Air Force regulations were not available when plaintiffs were given access to the Pentagon Library for a second time is equally with merit. See also Pl. Mot. p. 9. While plaintiffs are correct that Air Force regulations were not available for inspection when they again, recently, visited the Pentagon library,4 plaintiffs fail to mention that they were granted access to both the Pentagon and the Maxwell Air Force base library on previous occasions. Plaintiffs were given access so that they could have unfettered access to all Air Force regulations. Moreover, plaintiffs were told that after their inspection, they should identify all the regulations or documents that they viewed and that we would copy and produce them. Furthermore, plaintiffs fail to mention that at the conclusion of their previous visits, plaintiffs told Government counsel that they were receiving all the regulations they identified and given that plaintiffs have not complained since, we justifiably assumed that they had access to all the regulations they needed. DA 66, 71 (e-mails of February 23, 2005 and March 4, 2005 from plaintiffs' counsel showing Government's cooperation with providing all requested Air Force documents from Maxwell Air Force Base.). Nevertheless, despite this previous understanding,

Plaintiffs were recently told that the Pentagon Library possessed Air Force regulations. However, we have since learned that these regulations are now stored at Maxwell Air Force Base in Alabama. At the time plaintiffs were told that we would work to get them renewed access to the Pentagon Library, we also told them that they could have access to the Maxwell Air Force Base library if they so desired. This offer regarding access to Maxwell Air Force base was extended again to plaintiffs' counsel prior to the deposition of plaintiff James Davern. However, to date, plaintiffs have not affirmatively responded to our offer. Nonetheless, the offer remains open. 4

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we believe we have made available all of the regulations plaintiffs now state that they need and produced them to plaintiffs.5 Similarly, plaintiffs allegation that we have failed to produce state guard documents in our possession is without merit. Pl. Mot. p. 16. We have consistently explained that these documents are within the control of each state's national guard and not the Department of Defense. Nevertheless, we have worked with each state from the outset of discovery in an effort to get them to voluntarily comply with plaintiffs' discovery request. Every document that a state sent to us was produced to plaintiffs. However, to ensure plaintiffs have everything that we have, we have copied these state records again and have produced these duplicate sets to the plaintiffs. Finally, plaintiffs' concerns that the United States is deliberately obstructing the discovery process is a scandalous accusation made without any support. See Pl. Mot. p. 16. First, as mentioned above, we have been working with the states for nearly four years now to get them to voluntarily cooperate. We also have been urging plaintiffs to subpoena state guard bureaus if they believed they were not receiving documents that they needed. Despite our urging, it was not until November 2007, nearly a month after written discovery closed, that plaintiffs took any steps to obtain information within the control of the states.6 See DA 21-37. It was plaintiffs' failure to timely request these documents from the states, and not any failure by

If plaintiffs disagree with this statement, we will continue to work with plaintiffs' counsel on this matter. Plaintiffs' failure to seek timely discovery directly from each state's national guard, as it may now belatedly wish it had, does not provide an appropriate basis either to compel the Government to produce additional documents or to justify an extension of the discovery the period. 5
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the United States, that caused this issue. Nevertheless, as before, we have continued to urge the states to comply with plaintiffs' untimely request, and now believe plaintiffs are in possession of all the documents that they recently requested. Plaintiffs' argument that the United States has not made a complete production of documents responsive to several alleged "key questions" is also without merit. Pl. Mot. pp. 1619. As the declarations from agency counsel explain, the military has reasonably searched for and produced all responsive documents to the plaintiffs. See DA 5-7, 10-13, 17-19, 53-55. Moreover, the United States has searched for, and produced documents, without consideration that "the burden or expense of the proposed discovery outweighs its likely benefit." For example, plaintiffs have asked for documents from 1970 to the present. However, given that plaintiffs now admit that the authority that they allege as the basis for them to complete correspondence courses is regulatory, the Government maintains that any document that is not regulatory in nature has no benefit in this case. Furthermore, because plaintiffs' complaint was filed in 2000, even if plaintiffs could show that a regulation issued by the Secretary does require members of a state's militia to complete correspondence courses, any requirement before 1994 has no benefit to this litigation because the Court's six-year statute of limitations would preclude recovery. 28 U.S.C. § 2501. Similarly, because plaintiffs maintain that an amendment to 37 U.S.C. § 206 enacted on December 28, 2001 precluded compensation for completing correspondence courses after that date, any regulation that is issued after December 28, 2001 also has no effect in this case. See Pl. Br. in Opp. to Def. MSJ, footnote 11, page 9 (filed under seal June 13, 2005); PACER Document 108-2, page 17 of 48; Plaintiffs' Third Amended Complaint, PACER Doc. 169-2, ¶¶ 50-53.

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In regards to plaintiffs' specific allegations set forth at pages 19 through 21 of their motion, the Government has informed plaintiffs that we have searched, and gone back and searched again, those tenant organizations that we believe would have responsive documents to a specific discovery request. DA 7-8, 18-19. After each inquiry, we produced those documents that were found. The Government simply does not believe it has any additional documents to produce. The Department of Defense cannot produce documents it does not have, and military counsels' declarations cannot state this fact any more fully. Hagemeyer North America, Inc. v. Gateway Data Sciences Corp., 222 F.R.D. 594 (E.D.Wis. 2004)("A party need not produce documents or tangible things that are not in existence or within its control." citing Norman v. Young, 422 F.2d 470 (10th Cir.1970)). Additionally, it is sufficient that counsel for the agency responded by declaring in their affidavits that a document or tangible thing is not in existence. Id. Citing 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure: Civil § 2213 (2d ed.1994). Agency counsel for the Department of Defense, the United States Army and Air Force, and the National Guard Bureau have provided sworn testimony that they supervised the gathering of all records, including all documents and electronic media, from all departments within the Department of Defense that were reasonably known or suspected to have material that was responsive to plaintiffs' discovery requests. Agency counsel have made multiple requests to their agency's various commands and offices as plaintiffs provided necessary focus regarding their specific requests, and all materials located in response to those requests were delivered to plaintiffs' counsel. Moreover, in their declarations, counsel for the Department of Defense go even further and specifically rejects plaintiffs'

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inference that the agencies within the Department of Defense improperly withheld or destroyed responsive documents. These statements clearly address the concerns plaintiffs raise here, i,e. that the Department of Defense did not conduct a full and complete search of its records. At bottom, senior attorneys within the Department of Defense have unequivocally testified that all responsive documents were reasonably searched for, gathered, and produced for plaintiffs. It is long-settled that Government officials, like Lieutenant Colonel Roou, Major Rockenbach, Major Dunlap, Captain Brown, and Mr. Gonzalez are presumed to have carried out their duties in an appropriate manner. See United States v. Chem. Found., Inc., 272 U.S. 1 (1926) ("The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties."); see also Schism v. United States, 316 F.3d 1259, 1302 (Fed. Cir.2002) (citations omitted) ("This presumption of regularity is the supposition that public officers perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations, and is valid and binding unless `well-nigh irrefragable proof rebuts or overcomes it.'"). Plaintiffs have not produced any, let alone "well-nigh irrefragable" proof that these men and women were acting in any other manner when overseeing the Department of Defense's search. Accordingly, this baseless aspect of plaintiffs' motion should be denied. II. The Government's Production Complies With All Applicable Discovery Rules Plaintiffs next argue that the Government's production fails to comply with discovery rules because, among other things, the production was not organized and documents were not bate-stamped. Pl. Mot. 22-23. We disagree with this allegation, and note that we have been producing documents without bates-numbers upon searchable compact discs for the past three

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years without complaint. Nevertheless, we have gone ahead and bate-stamped all of the documents that we have previously produced to plaintiffs in response to plaintiffs' second request for documents and have sent these to plaintiffs' counsel, as well. III. Discovery Schedule As previously stated, we oppose extending the discovery period for any length of time. Plaintiffs have had access to all applicable regulations for at least the past three years, and given that the basis for each plaintiff's claim is that, solely pursuant to regulation, the Secretary of Defense required each of them to complete correspondence courses, there is no need for additional discovery. Furthermore, new training initiatives are being impacted upon pending decision of this case. However, if the Court rejects our request that discovery not be extended, we respectfully request that the time that discovery is extended is brief so that plaintiffs' counsel is allowed to take limited7 discovery of the Government's proposed RCFC 30(b)(6) witnesses. CONCLUSION For the foregoing reasons, defendant respectfully requests that this Court deny plaintiffs' motion to compel production of documents. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General

Plaintiffs' counsel has submitted to the United States a list of over 60 topics that it wants the Government to produce 30(b)(6) witnesses who are capable of responding to matters concerning plaintiffs' proposed topics. The topic areas cover extremely broad subject areas, and we repeatedly have asked plaintiffs' counsel to streamline these topic areas. Otherwise, the Government would have to produce dozens of 30(b)(6) witnesses just to ensure defendant was producing witnesses possessing responsive information covering these broad topic areas. 9

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JEANNE E. DAVIDSON Director

s/ Bryant G. Snee BRYANT G. SNEE Deputy Director

OF COUNSEL: MAJOR JERRETT DUNLAP United States Army Litigation Division

TIMOTHY MALLOY LT COL BRIAN ROOU United States Air Force General Litigation Division MAXIMINO GONZALEZ National Guard Bureau Office of Chief Counsel

s/ Douglas K. Mickle DOUGLAS K. MICKLE Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel. (202) 307-0383 Fax (202) 353-7988

Attorneys for Defendant January 4, 2008

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CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on January 4, 2008, a copy of the foregoing "DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL WITH ACCOMPANYING APPENDIX" 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/Douglas K. Mickle Douglas K. Mickle