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

Case 1:90-cv-00162-LJB

Document 668

Filed 11/07/2007

Page 1 of 8

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) )
)

STEPHEN ADAMS, et al., Plaintiffs, v. 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 September 6, 2007, 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. The majority of plaintiffs covered under the November 22, 2006 Partial

Settlement Agreement Covering Plaintiffs at the GS-13 Grade level in Occupational Code 1811 at BATF, IRS, DEA, USCS and USSS received payment of their claims. However, several dozen plaintiffs have not yet been paid. Specifically, on December 14, 2006, plaintiffs' counsel notified defendant by letter that the employment history of several plaintiffs was missing, making it impossible for defendant to calculate their claims. Further, by letters dated June 14, 2007 and August 10, 2007, plaintiffs' counsel notified defendant that the claims of various plaintiffs were not paid. With respect to plaintiffs employed by the United States Secret Service, the missing information was obtained from the agency and the plaintiffs in question were paid in September 2007. A list of all plaintiffs whose claims have not been paid to date is attached

hereto as Exhibit A. Government counsel has recently obtained the missing information concerning plaintiffs employed by the Bureau of Alcohol, Tobacco and Firearms, and anticipates

Case 1:90-cv-00162-LJB

Document 668

Filed 11/07/2007

Page 2 of 8

that documentation necessary to effectuate payment will be transmitted to the Department of the Treasury in the very near future. Government counsel has not yet received the missing information concerning plaintiffs employed by the Drug Enforcement Administration ("DEA"), the United States Customs Service ("USCS"), and the Internal Revenue Service ("IRS"), but is working with those agencies to obtain this information. 3. 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 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:

-2-

Case 1:90-cv-00162-LJB

Document 668

Filed 11/07/2007

Page 3 of 8

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. The parties' Joint Status Report with respect to the claims of plaintiffs at HHS and HUD filed on October 26, 2007, is incorporated herein by reference insofar as it concerns the possible disposition of certain claims of plaintiffs employed by the above-listed agencies and others. 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 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. Defendant originally received an enlargement of time until October 31, 2007 to respond to plaintiffs' petition. Defendant received another enlargement of time until

November 30, 2007 to respond to plaintiffs' petition. 5. With regard to the driving claims of the grade GS-13 plaintiffs who were the

subject of the November 22, 2006 settlement, the plaintiffs propose to await the outcome of further proceedings with regard to the GS-12s' driving claims as set forth in paragraph 4 before taking any action with regard to the GS-13s and other plaintiffs on their driving claims. Defendant believes that the Federal Circuit's decision in this case concerning the GS-12s' -3-

Case 1:90-cv-00162-LJB

Document 668

Filed 11/07/2007

Page 4 of 8

driving claims is a sufficient basis upon which to dismiss the other driving claims, and defendant reserves the right to file an appropriate motion to dismiss these claims without awaiting further proceedings. 6. Between March 29, 2007 and June 15, 2007, the majority of plaintiffs covered

under the December 2, 2005 Partial Settlement Agreement Covering Plaintiffs at the Drug Enforcement Administration in Occupational Series 080, 334, 391, 856 and 1802 at the GS-9 through GS-13 Grade Levels received payment of their claims. However, the claims of plaintiffs John Conrad, John Enloe, Kelvin Ivery, the Estate of Elton Armstead and the Estate of Gary Green have not yet been paid. Defendant anticipates that documentation necessary to effectuate payment will be transmitted to the Department of the Treasury in the very near future. 7. 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. Defendant is presently reviewing this matter. 8. 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 with their overtime hours worked during the relevant time period. Further, defendant provided plaintiffs with a proposed methodology to calculate such claims. Plaintiffs thereafter notified defendant of their objections to such methodology. Defendant has reviewed -4-

Case 1:90-cv-00162-LJB

Document 668

Filed 11/07/2007

Page 5 of 8

these objections, and believes that there are few, if any, genuine disagreements concerning the methodology, but that there are features of the methodology that may be clarified. The parties intend to resolve their differences concerning the methodology in the near future. 9. Since the filing of the last Joint Status Report, plaintiffs covered under a partial

settlement agreement covering GS-5 and GS-7 criminal investigators at the Naval Criminal Investigative Service, Fish and Wildlife Service, Environmental Protection Agency, and IRS were paid. 10. following: a. b. c. 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 d. e. f. g. USCS Operational Enforcement Officers GM 12s & 13s Sunday premium Opa Locka claim which was added by way of an amendment as a result of Hurricane Andrew h. I. j. k. Underpayment of AUO at certain agencies (principally DCIS) Interest due on OASDI refunds paid to BATF plaintiffs USSS1802 (Randy Espinoza and John P. Connelly) Michael Banas - Defense Security Service Background Investigator and Customs Import Specialist -5Other claims and issues that are under discussion between the parties include the

Case 1:90-cv-00162-LJB

Document 668

Filed 11/07/2007

Page 6 of 8

l.

Three USCS plaintiffs who contend that they are entitled to back pay under a March 16, 1994 settlement agreement: Teena Fountaine (GS-9) claims entitlement to $974.00 Manuel Rascon (GS-9) claims entitlement to $487.00 Elissa Brown-Warpness (GS-12) claims entitlement to $2,932.00

m. n. 11.

Scott Curtis and Tom Radtke (USSS1802) Attorneys' fees and expenses.

Insofar as the dismissal of any claims are concerned, because of the continued

pendency of plaintiffs' 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, plaintiffs believe it not to be practical or appropriate to dismiss any of the pending claims. Defendant believes that it is appropriate to dismiss all plaintiffs who do not possess any identifiable unadjudicated claims pending in this case. 12. The parties propose that they submit a joint status report on or before January 15,

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

-6-

Case 1:90-cv-00162-LJB

Document 668

Filed 11/07/2007

Page 7 of 8

Respectfully submitted, PETER D. KEISLER Assistant Attorney General 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 Fax: (202) 296-7220 ¯ DAVIDSON

James & 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: November 7, 2007

SHALOM Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W. Washington, D.C. 20530 Washington, D.C. 20036 Tel: (202) 616-8275 Fax: (202) 305-7643 OF COUNSEL: Michael J. Dierberg William Rayel Trial Attorneys Commercial Litigation Branch Civil Division Department of Justice Attorneys for Defendant Dated: November, 7 2007

-7-

Case 1:90-cv-00162-LJB

Document 668

Filed 11/07/2007

Page 8 of 8

EXHIBIT A BATF Joseph Benitez Charles Dirienzo Bradford Donnelly Helen Dunkel Ismael Cabrera Allan Galyan Michael Golson Peter Lobdell Charles Lowe Dennis McCallister Gary Mugridge Nolan Newsom Ismael Rodarte Customs Thomas Baumgardner Rosendo Lopez Fernando Baez Arthur Reifke Edward Barton Mark Fleming Paul Sward Josephine Tavolacci Herbert Hailes Kenneth Lew DEA Charles A. Gardner Thomas Ward Michael Brown Scott Herman Joycelyn Favors-Barnes Dixie Boyles George Stone Bryan Cook Frank Davelli Patrick Gregory

IRS Michael Anderson Walter Banit Guerry Hersey John McHale Michael Mullaney Guy Tomasicchio Thomas Kiernan Alycyn Lorenzen-Lewis Dale Stephens Roger Wittrock