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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS STEPHEN ADAMS, et al., Plaintiffs,
No

UNITED STATES OF AMERICA, Defendant.

) ) ) ) ) ) ) ) ) ) )

Case No. 90-162-C and Consolidated Cases (Judge Lynn J. Bush)

JOINT STATUS REPORT Pursuant to the Court's Order of April 1, 2008, the parties respectfully advise the
Court as follows:

1.

The parties have conferred and continue to confer with regard to various

remaining matters in this litigation. 2. Concerning criminal investigators whose claims have not yet been litigated

or settled, settlement has not been achieved with regard to GS-9 through GS-13 criminal investigators at the following agencies: Department of the Treasury, Social Security Administration, Small Business Administration, Resolution Trust Corporation, Railroad Retirement Board, National Aeronautics and Space Administration, General Services Administration, Federal Deposit Insurance Corporation, Department of Transportation, Federal Aviation Administration, Department of the Navy, Department of Labor, Department of Justice, Department of Defense, General Accounting Office, Federal Emergency Management Agency, Equal Employment

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Opportunity Commission, Department of Education, Naval Criminal Investigative Service, Defense Criminal Investigative Service, Federal Bureau of Investigation, Department of Health and Human Service, and others. Settlements have been achieved at the GS-9-12 levels but not at the GS-13 level at the following agencies: Department of Commerce (including National Oceanic Atmospheric Administration, the Bureau of Export Administration, and the Office of Export Enforcement), Department of the Interior (including the Fish and Wildlife Service), Department of Veterans Affairs, Environmental Protection Agency, Food and Drug Administration, Immigration and Naturalization Service, and others. 3. On December 21, 2007, plaintiffs submitted a settlement proposal to the

Government that would resolve the majority of claims of the plaintiffs employed by the agencies above as well as plaintiffs employed by the Office of Inspector General ("OIG") of the Department of Health and Human Services ("HHS") and the OIG of the Department of Housing and Urban Development ("HUD"). The Government has evaluated plaintiffs' proposal, and Government counsel provided plaintiffs' counsel with a response to the proposal on February 22, 2008. Plaintiffs' counsel responded to the Government's proposal on April 11, 2008. The parties intend to meet on July 10, 2008 to discuss their respective positionsl 4. On March 14, 2007, the United States Court of Appeals for the Federal Circuit

denied plaintiffs' petition for panel rehearing and rehearing en banc with respect to the Federal
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Circuit's affirmance of this Court's April 27, 2005 disposition of the driving claims of plaintiffs in the grade GS- 12 criminal investigator category. Plaintiffs filed a petition for writ of certiorari on July 27, 2007. Plaintiffs' petition was denied on January 7, 2008. Defendant filed a dispositive motion regarding the remaining driving claims on April 11,2008. By Order d~ted May 19, 2008, the Court suspended proceedings on defendant's motion pending its decision on Plaintiffs' Motion Under RCFC 56(0, for a Continuance to Permit Them to Conduct Discovery for the Purpose of Opposing Defendant's Motion for Summary Judgment Regarding Remaining "Driving Time" Claims filed on May 12, 2008. 5. On September 13, 2007, plaintiffs covered under the Partial Settlement

Agreement covering the claims of Marine Enforcement Officers at the United States Customs and Border Protection within the Department of Homeland Security and/or its predecessor, the United States Customs Service, received payment. However, between September 4, 2007 and October 9, 2007, plaintiffs' counsel notified defendant that eleven plaintiffs believed to be entitled to back pay under such settlement agreement were not paid. Counsel for the parties have recently determined that two of these plaintiffs - Russell G. Perras and Steven D. Harper- are not eligible for back pay under this settlement. The remainder of these plaintiffs were not paid based upon a determination by the defendant that they were not eligible. Defendant, however, is presently in the process of verifying the accuracy of this determination. Plaintiffs are also currently verifying defendant's determinations of ineligibility. 6. On June 1,2007, a proposed settlement agreement covering the claims of the

diversion investigators at the DEA was approved by the authorized representative of the Attorney General. Pursuant to the settlement agreement, on September 26, 2007, plaintiffs provided defendant

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with their overtime hours worked during the relevant time period. On June 24, 2008, defendant made payment under the settlement agreement. Such payment is currently being reviewed for accuracy by plaintiffs. 7. the following:
a.

Other claims and issues that are under discussion between the parties include

United States Marshals Non-supervisory investigators for U.S. Attorneys (GS-13s and 14s) Technicians and other plaintiffs in non- 1811 positions at various agencies, including the Department of Homeland Security

b.
C.

do

USCS Operational Enforcement Officers GM 12s & 13s Sunday premium

eo

go

Opa Locka claim which was added by way of an amendment as a result of Hurricane Andrew Underpayment of AUO at certain agencies (principally DCIS) Interest due on OASDI refunds paid to BATF plaintiffs USSS 1802 Dandy Espinoza and John P. Connelly) Michael Banas - Defense Security Service Background Investigator and Customs Import Specialist Scott Curtis and Tom Radtke ~SSS1802)

mo

Attorneys' fees and expenses. Insofar as the dismissal of any claims are concerned, because of continued
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litigation of the driving claims, as well as the fact that there may be plaintiffs whose employment by defendant was with more than one agency, one of which has not yet been settled, and because plaintiffs' claims for attorneys' fees and expenses have not been resolved, plaintiffs believe it not to be practical or appropriate to dismiss any of the pending claims. Defendant believes that it is identifiable unadjudicated claims appropriate to dismiss all plaintiffs who do not possess any
pending in this case. 9. The parties propose that they submit a joint status report on or before

September 15, 2008 to apprise the Court of the status of the resolution of the above-discussed matters.

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Respectfully submitted, GREGORY G. KATSAS Acting Assistant Attorney General JEANNE E. DAVIDSON Director JULES BERNSTEIN Bernstein & Lipsett, P.C. 1920 L Street, N.W. Suite 303 Washington, D.C. 20036 OF COUNSEL: LINDA LIPSETT Tel: (202) 296-1798

James 8: Hoffman, P.C. 1101 17th Street, N.W. Suite 510 Washington, D.C. 20036 Tel: (202) 496-0500 Fax: (202) 496-0555 Attorneys for Plaintiffs Dated: June .~£), 2008

SHALOM BRILLIANT Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W. Washington, D.C. 20530
Tel: (202) 616-8275 Fax: (202) 305-7643

Attorneys for Defendant Dated: June ~ o, 2008

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CERTIFICATE OF FILING I hereby certify under penalty of perjury that on this 30th day of June 2008, a copy of the foregoing "JOINT 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/Shalom Brilliant