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

Case 1:90-cv-00162-LJB

Document 609

Filed 11/08/2006

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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 October 5, 2006, the parties respectfully submit this status report concerning the status of settlement negotiations. 1. In the parties' previous Joint Status Report ("JSR"), the parties stated that the

Government plaintiffs' September 22, 2005, settlement offer concerning the claims that were the subject of the Court's December 1, 2004 partial summary judgment decision (i.e., the Fair Labor Standards Act ("FLSA") claims of GS-13 criminal investigators employed by the Bureau of Alcohol, Tobacco and Firearms, the United States Customs Service, the Drug Enforcement Administration, the Internal Revenue Service, and the United States Secret Service) had been reviewed by the Assistant Attorney General for the Civil Division, and was awaiting a final decision by the Acting Associate Attorney General. We have been informed that on or about November 7, 2006, the Acting Associate Attorney General approved the proposed settlement. 2. As indicated in the parties' previous JSR, Government counsel had concluded that

they could not recommend acceptance of plaintiffs' December 22, 2004 proposal pertaining to the FLSA claims of GS-12 criminal investigators employed by the Departments of Health and Human Services ("HHS") and Housing and Urban Development ("HUD"), and plaintiffs' December 7, 2005

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proposal pertaining to the FLSA claims of GS-5/7 criminal investigators employed by various agencies. Plaintiffs anticipate conducting discovery in preparation for a motion for summary judgment concerning the claims of GS-12 criminal investigators employed by HHS and HUD. The Government also anticipates filing a motion for summary judgment concerning these claims, and is likely to do so in the near future, but may conduct some discovery before completing and filing the motion. Settlement of the GS-5/7 criminal investigator claims is still under discussion. As mentioned in the parties' previous JSR, plaintiffs have revised their offer as to these claims. Government counsel and plaintiffs have exchanged information related to the GS-5/7 claims, most recently on October 17, 2006, to assist the Government in assessing the proposed settlement offer. The parties plan to have these issues resolved shortly so that, within the next three weeks, the proposed settlement may be provided to the agencies for a recommendation. 3. As indicated in the parties' May 25, 2006 JSR, on May 23, 2006, plaintiffs'

settlement offer of November 23, 2005, concerning the FLSA claims of marine enforcement officers, was submitted for approval within the Department of Justice, together with the necessary memorandum concerning the proposal. This settlement offer is currently under consideration within the Department of Justice. Government counsel anticipates that a decision whether to accept this offer will be made within the next few weeks. 4. In connection with plaintiffs' February 15, 2006 settlement proposal concerning

certain technical positions at Customs and Border Protection ("CBP") and its predecessor agencies, the agency has not yet provided its recommendation regarding the proposed settlement. Although the parties indicated in the prior JSR that a response from the agency was expected in early October, the agency has not yet been able to provide a recommendation, and agency counsel at CBP has

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informed us that, due to the amount of the proposed settlement, it must be reviewed by the Office of General Counsel of the Department of Homeland Security ("DHS") before a recommendation can be provided to Government counsel. We have further been informed by agency counsel at CBP that he expects the proposal to be forwarded to DHS within the next few days. 5. Plaintiffs' April 7, 2006 settlement proposal concerning the FLSA claims of plaintiffs

who have been employed by the Drug Enforcement Administration ("DEA") as diversion investigators is still undergoing review by the agency. The agency has identified implementation issues presented by the back pay computation mechanism contained in the proposed settlement agreement, and has been preparing proposed revisions to this mechanism to make its implementation more practical. This process has been more difficult than originally anticipated. On November 6, 2006, agency counsel met with the Chief Counsel and the Chief of Human Resources concerning this matter, and thereafter informed Government counsel that he hoped to convey the agency's specific proposed revisions as soon as they are approved by the chief counsel. Government counsel hopes to present these proposed revisions to plaintiffs' counsel for their consideration promptly after receiving them from the agency. Once these issues are resolved, the proposed settlement will be presented to the Deputy Administrator of DEA for his review. 6. The parties propose that they submit a joint status report on or before December 12,

2006, to apprise the Court of the status of the resolution of the above-discussed matters.

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/David M. Cohen DAVID M. COHEN Director s/Jules Bernstein 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

s/Shalom Brilliant 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 Washington, D.C. 20036 Tel: (202) 305-7561 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 8, 2006

s/Edgar N. James EDGAR N. JAMES 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 8, 2006 Filed Electronically with the consent of the Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify under penalty of perjury that on this 8th day of November 2006, 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/Jules Bernstein