Free Response to Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

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IN THE UNITED STATESCOURTOF FEDERALCLAIMS NATION OF THE CHEROKEE OKIAHOMA, Plaintifi
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THE LINITED STATESOF AMERICA, Defendant.
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No. Case 218-89

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PATTONBOGGSLLP Plaintiff, Intervenor

Chief JudeeEdward J. Damich

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THE LINITED STATESOF AMERICA,
Defendant.
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PATTON BOGGS' JOINT REPLY IN SUPPORT OF ITS PROPOSED FINDINGS OF UNCONTROVERTED FACT. pursuant to RCFC 56 and this Court's March 28,2006 Order, Intervenor Plaintiff Patton Boggs LLp (.,patton Boggs") files this Joint Reply supporting its ProposedFindings of UncontrovertedFact. As set forth below, in the attachedtable, all twenty-one of Patton Boggs' proposedfindings of uncontrovertedfact should be deemedadmitted.

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PB Proposed Finding 1: Patton Boggs enteredinto an attorney fee contract with the CherokeeNation with respectto this litigation.Ex.2 at A-39 (the "Contract").

Cherokee Nation Response1: The proposedfmding is disputed to the extent that it omits material facts that are relevant to the disposition of Patton Boggs' Motion for Summary Judgment.The proposedf,urdingfails to state,inter alia, that Patton Boggs' contract was made with the CherokeeNation on April 17,1989 and was terminatedin 1995.SeePattonBoggs Complaintin Interventionat tf 15; seealso CN Ex. 10.1 " refers to the exhibits that "CN Ex._ the CherokeeNation submits with the Nation's Opposition to Patton Boggs' CrossMotion for Summary Judgment. t

I USA Response None.

PB Reply: The CherokeeNation's contention that ProposedFinding 1 "omits material facts," doesnot dispute the facts with a finding and set forrh in Finding l. SeeRCFC 56(hX2) (distinguishing betweendisagreement the CherokeeNation's additional proposing additional findings of fact). Patton Boggs doesnot dispute that Patton Bóggs' Contract was terminatedin 1995, although the CherokeeNation's additional þroposed-fact to propor"d findings doesnot belong in its response Patton Boggs' proposedfindings of uncontrovertedfact. tt eGovernmentdoes not addressProposedFinding I at all. ProposedFinding 1 should deemed l¿. admitted.

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PB Proposed Finding 2: The Contract provided for, inter alia, monthly compensationand of "compensation ten percent(10%) of the amount recovered lessthe amounts previously paid by said Cherokee Nation for attorney fees pursuantto this Contract for litigation; provided, that approvals required by law, if any, are Id. obtained." at2,3.

2: Cherokee Nation ResPonse The proposedfrnding is disputed to the extent that it omits material facts that are relevant to the disposition of Patton Boggs' Motion for Summary Judgment,namely the proposedfrnding fails to statethat Patton Boggs' contract was terminated on October 30,1995. SeePattonBoggs Complaintin Interventionat tf l5; seealso CN Ex 10.

PB Reply: the facts The CherokeeNation's contention that ProposedFinding 2 "omits material facts," doesnot dispute and with a finding set forth in Finding 2. SeeRCFC 56(hX2) (distinguishing betweendisagreement not disputethe CherokeeNation's additional proposing additioñal findings of factj. Pattòn Boggs does additional propo..Jruct that patton Bãggs' Contract was terminatedin 1995, although the CherokeeNation's fact' to in propos.a findings doesnot U-eIong its response Patton Boggs' proposedfindings of uncontroverted 2 should deemed Id. TheGovernment does not addressPropãsedFinding 2 at all. ProposedFinding admitted.

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Finding3: PB Proposed Boggswaspaid a total of Patton under in $403,959 monthlypayments 6, Ex.4 at A-47 (October theContract. Nation's from the Cherokee 2003letter JulianFite). Counsel, General

Cherokee Nation Response3:

USA Response3:

Prior to the enactmentof the Settlement The proposedfmding is disputed as Patton Act, was Patton Boggs paid more than the Boggs was paid some amount in excessof 5403,959 it statesit was paid under its $403,959 for servicesprovided under the 1989 contract?The 2003 Fite The Arkansas Riverbed attorneyscontract. Memorandum suggeststhat PB was paid in fact paid Patton Boggs CherokeeNation more than $403,959which meansthat its for a total sum of $1,053,908.48 services presentclaim amount is inflated because provided under this and a separatelobbying it does not take into account any payment contract between the CherokeeNation and of in excess $403,959.SeePB's Patton Boggs. While some services Proposed Findings of Uncontroverted provided under the separatelobbying Fact No. 3 stating that PB was Paid contract were unrelatedto the Arkansas 5403.959underits contract. to the Riverbed, others were related and some portion of the Riverbed Claim fees paid under the separatelobbying contract might properly be attributable to servicesprovided under the Arkansas fuverbed contract under which Patton Boggs makes its claim here. SeePB Ex' 4 at A-47 (October6,2003letter from the CherokeeNation's General Counsel,Julian Fite); seealso CN Ex. 9 (Letter agreement 18, datedSeptember 1991,betweenPatton Boggs and the CherokeeNation regarding payment for other services);CN Ex. 15 offees paid (CherokeeNation spreadsheet to Patton Boggs); CN Ex. 22 at 5 (Ietter from outside legal counselto the Nation).

PB Reply: lobbying The CherokeeNation's mere speculationthat "some portion of the fees paid under the separate contract míght be attributableto servicespaid under the ArkansasRiverbed contract under which Patton Boggs makés its claim heïe" is insufficient to createa genuinedispute. Patton Boggs' Exhibit 4 upon wtrictr it basesits ProposedFinding 3 - is a letter from the CherokeeNation's o\iln generalcounselwho stated ,,I;nderthis contract, ..." That exhibit goeson to mentiona wholly separate Þafton Boggswas paid $403,959. contract betweenthe CherokeeNation and Patton Boggs, not at issuein this case. The CherokeeNation provided at CN Exhibit 15 does lobbying contract as CN Exhibit 9. The spreadsheet attachesthat separate not in any way supportthemere speculationthat Patton Boggs was paid fees under its lobbying contract for its litigation sêrviõés. CN Exhibi iZZ i, indeed a letter from outsidecounselto the CherokeeNation' and, in it, he ãlso querieswhether Patton Boggs was paid under the lobbying contract for litigation services. But the CherokeeNation proffers no evidenceto rebut ProposedFinding 3, and there is none. Similarly, the Governmentasks a hypothetical question. Neither the CherokeeNation nor the Governmentcomplied with Findine 3 should be deemedadmitted. and RCFC56(hX2),

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PB Proposed Finding 4: The SettlementAct provided for $20 million in appropriationsfor the CherokeeNation and its attomeys, making $2 million available to pay the CherokeeNation's attorneys.Docket No. 125,December19,2005 Opinion & Order at 3 ("Since the Cherokee Nation will receivea total of $20 million in appropriationsunder the SettlementAct, $2 million is available for payment of attorney'sfees.").

Cherokee Nation Response4: The proposedfrnding is disputed as it the mischaracterizes terms of the Settlement Act. The SettlementAct provided for S20 million in appropriationsfor the Cherokee Nation, and authorizedthe use of "not to exceed l0% of that Indian Nation's allocation of funds" to pay attorneysfees. added.) 25 U.S.C. $ 1779e(b)(emphasis Thus, the Act imposed a ceiling-not a flooron the amount of attorneys'fees that could be paid.

PB Reply: as Whether characterized a "ceiling" or a "floor," the SettlementAct made $2 million "available" to pay attorneysfees as Patton Boggs proposed. The CherokeeNation's argumentsdo not comply with RCFC with the ProposedFinding 4. ProposedFinding 4 56(hxi). The Governmentneither agreesnor disagrees should be deemedadmitted.

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PB Proposed Finding 5: To date, Congresshas appropriatedthree of the fow annual installmentsauthorized by the SettlementAct, rendering a total of to to S14,485,018.00 be allocated the CherokeeNation and its attorneys, though FY 2006. Docket No. 137,Joint StatusReport; Attachment to Docket No. 138,Declarationof DouglasA. Lords ("Lords Decl.").

5: NationResponse Cherokee in frndingis disputed part.The The proposed to 8.00 S14,485,01 in fundsappropriated date Nation-- not its belongto theCherokee attorneys.

PB Reply: of the FY through 2006. Of course, legalissue appropriated in that It is undisputed thereare$14,485,018 frrnds Finding5 andthey the factsin Proposed to ownership the fundsis a centralissuein the case.No onedisputes admitted. shouldbe deemed

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PB Proposed Finding 6: Of the sums already appropriated, I SI ,448,50 .80 hasbeenallocatedto the attorney escrow fund. Docket No. 137, 7. Joint StatusReport;Lords Decl.'1f

Cherokee Nation Response6: Not disputed.

6: USA Response None.

PB Reply: The CherokeeNation does not dispute ProposedFinding 6, andthe Governmentdoesnot respondto it at all. ProposedFinding 6 should be deemedadmitted.

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Finding 7: PB Proposed for Act The Settlement provides an to be additional $5,000,000.00 in appropriated FY 2007for theCherokee 25 Nationandits attorneys. U.S.C.$$ the Of 1719c(c)(4),(dxl). thatamount, up Act Settlement makes to $500,000.00 Nation's to available payto the Cherokee fees. attorneys' their statutory attorneys Id. $ 1779e(b).

Cherokee Nation Response7: The proposedfrnding is disputed in part. The to additional$5,000,000.00 be appropriated under the SettlementAct in FY 2007 belongs to the CherokeeNation - not its attorneys. Moreover, the Act does not provide any specificamountof "statutoryattomeys'fees."

PB Reply: Finding 5, in will be appropriated FY2007. As with Proposed There is no disputethat an additional$5,000,000 factual issue the CherokeeÑation is disputing a legal issueregarding ownership of the appropriatedfunds, not a as to the amount of funds appropriated. The Govemment makesno responseat all. The facts in Proposed Finding 7 should be deemedadmitted.

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Finding8: PB Proposed 18, On February 2005,theCherokee its Nationprovidedto the Secretary own that Resolutions purportedly "authorized payments its to certain andapproved" Boggs,as lawyersotherthanPatton follows: & Vy'ilcoxen Wilcoxen Estate Mr. Niebell of Hall Estill Ex. 6 at A-53to A-54. $550,000.00 $100,000.00 5280.524.57

Cherokee Nation Response8: The proposedfnding is disputed to the extent the that it characterizes CherokeeNation's Resolutionsas "purportedly" authorizing and approving paymentsto attorneys. The Resolutionsspeakfor themselvesand properly authorize and approvepaymentsto the attorneys,consistentwith the 2002 Settlement and Cherokee Act,25 U.S.C.$ 1779e(a), Nation law, seeCN Ex. 21, as well as the requirementsof the terminated contract under which Patton Boggs makes its claim. That contract makesthe payment of any fee to Patton Boggs subject to the approvalsrequired by applicable law, including tribal law, and tribal law requires any attorney fee payments to be approvedby the CherokeeNation Council.SeePB Ex.2 at3.

PB Reply: The word "purport" meansto "profess or claim." That the CherokeeNation still insists, as a legal matter, that that the that it was permitted to "authorize[]" and "approve[]" the paymentsmade to attorneys,demonstrates CherokeeNations purported to authorizethe payments. Again, the CherokeeNation is disputing facts only to the extend that the facts imply that the CherokeeNation is incorrect in its legal arguments. Such disputesdo not Finding 8 should Proposed Finding 8. Proposed comply with RCFC 56(hX2). The Governmentdoesnot address be deemedadmitted.

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PB ProposedFinding 9: None of those attorneyslisted above in paragraph 8 dispute the amountsthey were paid. Ex. 5 at A-51 (March 31, 2005 letter from Mr. Wilcoxen, and the Hall Estill firm, to the CherokeeNation, stating "having acceptedthe Nation's fee determination, we have no dispute with the Nation .... "). Nor do they seek additional payment under the Settlement Act.Id.

9: Cherokee Nation Response Neibell and Hall Estill did disputethe initial recommendationsregarding the amount of fees to be paid to eachof them, seeCN Exs. indicatedtheir 17,19, but have subsequently of acceptance the Nation's decision. Pa)¡ments to the attorneyshave been made pursuantto the SettlementAct.

PB Reply: The CherokeeNation's responseis non-responsiveand the Governmentmakesno responseat all. Whether or not "Niebell and Hall Estill did dispute the initial recoÍìmendations," is irrelevant to whether they now dispute those payments. Moreover, the legal conclusion that "Paymentsto the attorneyshave been madepursuantto the SettlementAct" is irrelevant. ProposingFinding 9 should be deemedadmitted.

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Finding l0: PB Proposed

Cherokee Nation Response10:

10: USA Response None.

Nation Not disputed,except that the term approving On March30, 2005,the Cherokee with a Resolution should not be in quotes. provided Secretary the to payment $ I 51,000 of "approving" Boggs, 6 at A-53-A-54 Ex. Patton letterfromAssistant (October 13,2005 Cason). James Secretary

PB Reply: Whether the CherokeeNation actually had authority to approvepayment to Patton Boggs is obviously an issueof Finding 10 shouldbe deemedadmitted. law. Proposed

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Findingll: PB Proposed 13, On October 2005,theSecretary a to decided disbwse total of escrow from $1,081,524.57 theattomey to exactlyasdirected do by the account, Nation.Exhibit 6 at A-54 (Mr. Cherokee letter). 13,2005 October Cason's

11: NationResponse Cherokee thatthe proposed to Disputed the extent the findingfails to fully describe basisfor the which decision, 13,2005 October Secretary's that a included determination the Settlement fees payment the attorneys in of Act required Nations. by as amounts approved the settling 13, October PB Ex. 6 at A-54(Mr. Cason's 2005letter).

PB Reply: 13, October 2005"for the Finding11"fails to fully describe basis the Secretary's that Evenassuming Proposed Finding ll. See the factsdo not dispute factsin Proposed which it doesnot purportto do - thoseadditional findingsof fact). additional a finding andproposing with disagreement between RCFC56(hX2)(dìstinguishing admitted. be Finding11should deemed Proposed

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Finding l2: PB Proposed the 17 On October and18,2005, from madethosedisbursements Secretary DocketNo. escrow account. the attorney LordsDecl.at Report; 137,JointStatus 8-e. ff

Cherokee Nation Response12: Not disputed.

12: USA Response None.

PB Reply: Finding12is undisputed. Proposed

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gli.,gir,*gïf'f,¡rg[{*i$þYii¡1.ïffi';il:Ë1¡ lf;¡.{'ir1î,,.4Ë4,ii:f l
Finding13: PB Proposed
Cherokee Nation Response13:

13: USA Response None.

have No furtherdisbursements beenmade Not disputed. and escrowaccount, its from the attorney was5366,977 .23 balance current of afterdisbwsement immediately Id. attornevs'fees.

PB Reply: Finding13is undisputed. Proposed

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PB Proposed Finding 14: The CherokeeNation did not enter into an attorney fee contract with the Hall Estill law frm relating to any aspectof the SettlementAct. Ex 4 at A-44 (Mr. Fite's letter explains that "Wilcoxen associated the Hall, Estill law hrm and they have presented billings.").

Cherokee Nation Response14: Disputed to the extent that the proposed finding omits material relevant facts, namely that while the CherokeeNation did not enter into an attorney contract directly with the Hall Estill law firm, the Hall Estill firm provided servicesto the CherokeeNation as associate counselunder the contract between the CherokeeNation and Mssrs. Vy'ilcoxenand Niebell, which contract expresslyauthorized the use ofassociate counsel. PB Ex 4 at A'44; seealsoPBEx. 1 at2.

USA Response14: Did the law firm of Hall Estill have a contractualrelationship with the CNO when it performed the legal servicesfor which it was paid 5280,524.57 out of the attorneys'fees escrow account?SeePB's ProposedFindings of Uncontroverted Fact Nos. 14 through 17 allegingthe ofa tribal attorney fees contract absence befween Hall Estill and the CNO. The 2003 memorandumwritten by the General Counsel for the CNO, Julian Fite, statesthat Hall Estill was "operating underWilcoxen'scontract."See Attachment to Defendant'sReply to Patton Boggs' Opposition to Defendant's Motion to Dismiss at 4.

PB Reply: The CherokeeNation and the Governmentattempt to dispute the fact that Hall Estill had no contract with the CherokeeNation on the basisthat Hall Estill was "associated"by Mr. Wilcoxen. But that is set forth precisely in the citation supportíng Patton Boggs' ProposedFinding 14. ltis undisputedand undisputablethat having a counsel,hired by a counselto an Indian contractwith an Indian Nation is not the samething as being associate counsel,which proves that Hall Estill did nothave a Nation. Patton Boggs agreesthat Hall Estill was associate contract with the CherokeeNation. The Governmentmerely posesa hypothetical questionthat neither agrees, with the undisputedfacts. ProposedFinding 14 should be deemedadmitted. nor disagrees

15

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PB Proposed Finding 15: by Instead,Hall Estill was "associated" Mr. Wilcoxen, under the WilcoxenNiebell Contract. Id.

Cherokee Nation Response15: Disputed only to the extent that the proposed finding, as written, incorrectly suggestssome impropriety in Hall Estill serving as associate counsel.The use ofassociatecounselwas proper and was expresslyauthorizedby the Wilcoxen-NiebellContract.SeePB Ex. I at2.

USA Response15: Did the law firm of Hall Estill have a contractualrelationship with the CNO when it performed the legal servicesfor which it was paid 5280,524.57 out of the attorneys'fees escrow account?SeePB's Proposed Findings of Uncontroverted Fact Nos. 14 through 17 allegingthe absenceofa tribal attorney fees contract between Hall Estill and the CNO. The 2003 memorandumwritten bY the General Counsel for the CNO, Julian Fite, statesthat Hall Estill was "operating under Wilcoxen's contract." See Attachment to Defendant'sReply to Patton Boggs' Opposition to Defendant's Motion to Dismissat 4.

PB Reply: The CherokeeNation here is disputing afactthat it proffers itself in responseto Patton Boggs' previous Proposed Nation is disputinga fact, not counsel." Now the Cherokee Finding 14,i.e.,that Hall Estill was "associate that the becauseit is not true, but because CherokeeNation fearsthe obvious legal consequences flow from this with the questionthat neither agrees,nor disagrees undisputedfact. The Governmentmerely posesa hypothetical admitted. Finding 15 shouldbe deemed undisputedfacts. Proposed

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PB Proposed Finding 16: The Wilcoxen-Niebell Contract, required "all expenses [ofassociatedcounsel,like Hall Estilll to be paid by [Mr. Wilcoxen and Mr. Niebelll, out of any compensationwhich they may receive for servicesto be renderedhereunder."Ex. I at A-35.

Cherokee Nation Response16: Disputed to the extent that the proposed finding when read with Patton Boggs related proposedfindings offact suggestssome unpropriety in having the Secretarymake payment of $280,524.57directly to the Hall Estill firm rather than include that amount in a payment made to Mr. V/ilcoxen who would then, in turn, remit the fi¡nds to Hall Estill. Although the time spentby Hall Estill could have been consideredand paid as part ofMr. claim for compensation,the Vy'ilcoxen's Nation decidedto review and act on that firm's requestfor compensationseparately,as did the Secretary.Since there is no dispute that Hall Estill was associatecounselunder the Wilcoxen-Niebell contract and provided servicesto the CherokeeNation under that contract,there was nothing unlawful or improper about the form in which the payment was made.

16: USA Response Did the law f,rm of Hall Estill have a contractualrelationship with the CNO when it performed the legal servicesfor which it was paid 5280,524.57 out of the attorneys'fees escrow account?SeePB's Proposed Findings of Uncontroverted Fact Nos. 14 through 17 allegingthe ofa tribal attorney fees contract absence betweenHall Estill and the CNO. The 2003 memorandumwritten by the GeneralCounsel for the CNO, Julian Fite, statesthat Hall Estill was "operating contract." See under Vy'ilcoxen's Attachment to Defendant'sReply to Patton Boggs' Opposition to Defendant's Motion to Dismiss at 4.

PB Reply: Notwithstanding RCFC 56(hX2), the CherokeeNation refusesto agreewith the undisputedfacts simply because, ,,when read with Patton Boggs['] relatedproposedfindings of fact suggestssome impropriety." In other words, when read in conjunction with other rurdisputed the CherokeeNation disputesProposedFinding 16 only because, facts, the undisputedfacts support Patton Boggs' legal argumentthat Hall Estill was improperly paid. The with the undisputedfacts. Govemment mãrely posesa hypothetical questionthat neither agrees,nor disagrees Finding 16 shouldbe deemedadmitted. Proposed

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PB ProposedFinding l7: Despite the lack of any contract with the CherokeeNation, and despite Mr. Wilcoxen's obligation to pay the expenses the of the Hall Estill frm he associated, CherokeeNation directed the Secretaryto to make paymentof $280,524.57 the Hall Estill firm. Ex. 6 at A-54.

Cherokee Nation Responsel7:

USA Response17:

Did the law firm of Hall Estill have a Findings l5 As with PattonBoggs'Proposed contractualrelationship with the CNO and 16, the CherokeeNation disputesthis proposedfurding to the extent that it suggests when it performed the legal servicesfor which it was paid 5280,524.5'7out of the some impropriety in having the Secretary attorneys'fees escrow account?SeePB's to the make payment of $280,524.57directly Proposed Findings of Uncontroverted rather than include the same Hall Estill firm amount in the payment made to Mr. V/ilcoxen Fact Nos. 14 through 17 allegingthe absenceofatribal attorney fees contract who would then, in turn, remit the funds to betweenHall Estill and the CNO. The Hall Estill. Although the time spentby Hall 2003 memorandumwritten by the Estill could have been consideredand paid as GeneralCounsel for the CNO, Julian Fite, part of Mr. Wilcoxen's claim for statesthat Hall Estill was "operating compensation,the Nation decided to review under Wilcoxen's contract." See for and act on the Hall Estill request compensationseparately,as did the Secretary. Attachment to Defendant'sReply to Patton Boggs' Opposition to Defendant's Since there is no dispute that Hall Estill was Motion to Dismiss at 4. associatecounselunder the Wilcoxen-Niebell contract and provided servicesto the CherokeeNation under that contract, there was nothing unlawful or improper about the form in which the payment was made.

PB Reply: Again, notwithstanding RCFC 56(hX2), the CherokeeNation refusesto agreewith the undisputedfacts simply someimpropriety." In other beiause, "when read with Patton Boggs['] related proposedfindings of fact suggests when read in conjunction with other words, the CherokeeNation disputesProposedFinding 17 only because, undisputedfacts, the undisputedfacts support Patton Boggs' legal argumentthat Hall Estill was improperly paid' with the undisputed The Governmentmerely posesa hypothetical questionthat neither agrees,nor disagrees Finding 17 shouldbe deemedadmitted. facts. Proposed

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Finding18: PB Proposed

Cherokee Nation Response18:

USA Response18: Did the CNO construethe "contingency" clausein the Wilcoxen-Niebell contract to extend to the monies paid to the CNO under the terms of the 2002 Settlement Act when it directed that the estateof Paul Niebell be paid $100,000? See PB's Proposed Findings of Uncontroverted Fact Nos. 18 through 21 contendingthat Paul Niebell's right to feeswas "wholly contingenf'upon a recovery and that he never worked upon the 1989lawsuit filed in the U.S. Claims Court. We note that the 2003 Fite Memorandum states,in pertinent part, as follows: Except for the original litigation confirming the title to this property, none of the several lawsuits and appealsever resulted in favorable disposition of any issues. However, the long term and continued litigation efforts helped to keep these issuesalive so that the eventual legislativesolutioncould be reached. Attachment to Defendant'sReply at 5.

Not disputed. Contract, Underthe Wilcoxen-Niebell Mr. Niebell'sfeewas"wholly contingent" Nation. by on a recovery the Cherokee Exhibit I at A-35.

PB Reply: The CherokeeNation does not dispute ProposedFinding 18. The Governmentmerely posesa hypothetical with the undisputedfacts. ProposedFinding 18 should be deemed question that neither agrees,nor disagrees admitted.

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Finding 19: PB Proposed Mr. Niebell andMr. Wilcoxenbrought only two actionson behalfof the Nationunderthe WilcoxenCherokee bothof which were Niebell Contract, many with prejudice finally dismissed Act yearsbeforethe Settlement was See resultingin no recovery. enacted, 480 Nation, v. UnitedStates Cherokee (disposing "takings" of 700(1987) U.S. Nationv. UnitedStates, claim);Cherokee of 937F.2d1539(lOthCir.)(disposing dealings" claims), "fai¡ andhonorable 948F.2d635(lOthCir. reh'gdenied,

Cherokee Nation Response19: The proposedfurding is disputed to the extent that it concludesthat the claims raised in the litigation brought by Mr.Niebell and Mr. Wilcoxen "resulted in no recovery." While it is undisputedthat the litigation itself was dismissed,the2002 SettlementAct includes compensationfor the claims raised in that litigation - namely the lossesto the Cherokee Nation resulting from the constructionand operation of the McClellan-Ken Arkansas RiverbedNavigationProject,see25 U.S.C.$ 1778c(a),which claims were found not to be a part of the lawsuit f,rledby Patton Boggs in this Court. See CherokeeNation of Okla. v. 2l United States, Cl. Ct. 565,580-81& n..l I (1990), The proposedf,rndingis also disputed to the extent it describesMr. Wilcoxen's work as limited to the claims bought in the U. S. District Court for the EasternDistrict of Oklahoma (and adjudicatedthrough the Tenth Circuit and SupremeCourt). While Mr. Wilcoxen was not attorney of record at the time the instant casewas filed, the record before this Court makes clear that he servedas counsel of record to the CherokeeNation in this action after Patton Boggs' contract was terminated and through enactmentof the 2002 SettlementAct.

USA Response19: Did the CNO construethe "contingency" clausein the Wilcoxen-Niebell contract to extend to the monies paid to the CNO under the terms of the 2002 Settlement Act when it directed that the estateof Paul Niebell be paid $100,000? See PB's Proposed Findings of Uncontroverted Fact Nos. 18 through 2l contendingthat Paul Niebell's right to 'wholly contingent'upona feeswas recovery and that he never worked upon the 1989 lawsuit filed in the U.S. Claims Court. We note that the 2003 Fite Memorandum states,in pertinent part, as follows: Except for the original litigation confirming the title to this properfy, none of the several lawsuits and appealsever resulted in favorable disposition ofany issues. However, the long term and continued litigation efforts helped to keep these issuesalive so that the eventual legislative solution could be reached. Attachment to Defendant'sReply at 5.

reer).

PB Reply: The CherokeeNation admits that the only two actions brought by Mr. Niebell and Mr. Wilcoxen were dismissed with prejudice. The CherokeeNation disputedProposedFinding 19 only to the extent that it contendsthat, somehow,issuesraised in mattersthat were dismissedwith prejudice resultedin a legislative recovery. However, the CherokeeNation's Opposition makes clear that ithas no evidenceto supportthis allegation. CN Opp. at 12 n.27. Further,as explainedin PattonBoggs' Reply Brief at n. 19, the McClellan-Kerr Projecteither was excluded from the scopeof Patton Boggs' Contract but worth zero as part of claims dismissedwith prejudice, or it was within the scopeof Patton Boggs' Contract,which culminated in the one and only legislative 'Wilcoxen in has enteredan appearance this casedoes CherokeeNation recovery. In addition, the fact that Mr. not in any way contradict ProposedFinding 19. The Governmentmerely posesa hypothetical questionthat neither agrees,nor disagreeswith the undisputedfacts. ProposedFinding l9 should be deemedadmitted.

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Finding20: PB Proposed Mr. Niebelldiedin 1994.8x.4at A-46.

Cherokee Nation Response20: Not disputed.

USA Response20: Did the CNO construethe "contingency" clausein the Wilcoxen-Niebell contract to extend to the monies paid to the CNO under the terms of the 2002 Settlement Act when it directed that the estate of Paul Niebell be paid $100,000? See PB's Proposed Findings of Uncontroverted Fact Nos. 18 through 21 contendingthat Paul Niebell's right to 'wholly contingent'upon a fees was recovery and that he never worked upon the 1989 lawsuit filed in the U.S. Claims Court. We note that the 2003 Fite Memorandum states, in pertinent part, as follows: Except for the original litigation confirming the title to this properly, none of the several lawsuits and appealsever resulted in favorable disposition ofany issues. However, the long term and continued litigation efforts helped to keep these issuesalive so that the eventual legislative solution could be reached. Attachment to Defendant'sReply at 5.

PB Reply: The CherokeeNation does not dispute ProposedFinding 20. The Governmentmerely posesa hypothetical questionthat neither agtees,nor disagrees',r¡iththe undisputedfacts. ProposedFinding 20 should be deemed admitted.

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Finding21: PB Proposed Mr. Niebellneverworkedon this by litigationbroughtandprosecuted Nation's Boggs.Id. (Cherokee Patton of description Mr. Niebell'swork on this matter); alsoEx. 3 at A-43 (October see letterfrom the 30, 1995termination Boggs- thus, Nationto Patton Cherokee asof 1994(whenMr. Niebell died), in Patton Boggswasstill leadcounsel this case).

Cherokee Nation Response21: The proposedfrnding is disputed to the extent that it omits material facts that are relevant to the dispositionof PattonBoggs'Motion for Summary Judgment. The proposed finding fails to statethat the2002 SettlementAct was the culmination of a 3O-yeareffort to secure compensationto the CherokeeNation, and provided compensationto the Nation for damagessustainedby the CherokeeNation that included damagessought in the litigation the on which Mr. Niebell represented Nation (those arising from the Kerr-McClallen ArkansasRiverbed Navigation Project), 25 and which the Court in U.S.C. $ 1779c(a)), this casesaid were not part of the claims in this case.SeeCherokeeNation of Oklahoma v. united states,2l cl. ct.565, 580-81& n. 1l (1990).

21: USA Response Did the CNO construe "contingency" the to contract clause the Wilcoxen-Niebell in paidto the CNO extend themonies to underthetermsof the 2002Settlement that of Act whenit directed the estate PaulNiebellbe paid$100,000?See Findingsof PB's Proposed Fact Nos.18 through Uncontroverted 21 contending PaulNiebell'sright to that 'wholly a feeswas contingent'upon recovery thathe neverworkedupon and the 1989lawsuitfiled in the U.S. Claims Court.We notethatthe 2003Fite in Memorandum states, pertinentpart, as follows: Exceptfor the originallitigation none confirmingthetitle to this properly, lawsuits appeals and ever of the several disposition ofany resulted favorable in issues.However, longterm and the continued litigationeffortshelpedto keep issues these alive sothatthe eventual legislative solutioncouldbe reached. Replyat 5. to Attachment Defendant's

PB Reply: o'omitsmaterial facts," doesnot disputethe facts set The CherokeeNation's contention that ProposedFinding 2 with a finding and proposing forth in Finding 21. SeeRCFC 56(hX2) (distinguishing betweendisagreement additional findings of fact). The Governmentmerely posesa hypothetical questionthat neither agrees,nor with the undisputedfacts. ProposedFinding 2l should be deemedadmitted. disagrees

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USA Musingat Paragraph 3: Did the CNO construe "contingency" the clause the Wilcoxen-Niebell in contract to paidto the CNO extend the monies to underthetermsof the Settlement Act whenit directed Wilcoxen& that \iVilcoxen paid S550,000? be Again,the Fite memorandum suggests answer the is that "yes."Also, if PB'sargument the paidto theNiebellestate of out $100,000 the attorney feesescrow account was paid out because the improperly of clause, thenwhy isn'tPB "contingency" paidto contending $550,000 the Wilcoxenfrom the attorney feesescrow paidout, since account wasimproperly the "contingency" clause applies to 'Wilcoxen &Wilcoxen,aswell, instead of the This "reserving" argument? disparate treaÍnentof Wilcoxen& Wilcoxenand the estate PaulNiebellunderscores of the existence genuine of issues material of factsin dispute.

PB Reply: p¿ragraph3 doesnot comply with RCFC 56(hX2). First, it is not directedto any of The Government's Response Patton Boggs' ProposedFindings of Fact. Essentially,this the Govemment poses alegal argumentwhich should have been included in its brief. But the responseis simple, Mr. Wilcoxen and Mr. Niebell are in different 'Wilcoxen positions because, the CherokeeNation points out, Mr. as is counselof record in this case. While Mr. Vy'ilcoxen'scontribution as counselin this casehas been of such little import that the Court could not even recall meeting him before Patton Boggs moved to intervene,that marginal amount of work is sufficient to raise a genuine factual dispute as to the extent of his entitlement under the SettlementAct. It is for that reason,and that reasononly, that Patton Boggs moved for summaryjudgment on less than the full amount of its Tucker Act claim.

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USA Musing at Paragraph 4: Whatwerethe respective conhibutions that variouscounsel the Cherokee for Nation, includingPB, made the settlement to embodied inthe2002 Settlement Act? In other words,based quantum on meruit,whatamount entitledto of feeswaseachsetof attomeys receive, based upontheirrespective contributions settlement. is not entitled to PB to recoverl0 percent ofthe total compensation be paidto theCNO by under to its 1989contract underSection1779e(b) or of Act PB's 1989contract the Settlement because wasterminated. general The law common principleapplied the Courtof Appeals for by the Federal v. Circuit in Scates Principi,282 (Fed.Cir. 2002)is that F. 3d 1362,1365-66 (whether cause not) bars termination for or recovery ofattomeys'feesbased uponthe contingency stated the attomey fee in fees contract Rather, recovery mustbe based upon quantum the meruitandfactswhich establish respective contributions CNO'svarious of counsel the eventual to settlement. PB's See Proposed Findingsof FactNos.14,19,20 in Hall and 21 asserting, effect,thatneither Estill nor PaulNiebellmade contribution any But, to the ultimatesettlement. the Courtmust keepin mindthat in 2005the CNO weighed PB'srespective contribution settlement to and PB to out decided wasentitled $151,000 ofthe attomeyfeesescrow account established by pursuant to the Ofüceof Special Trustee Section 1779e, addition the$403,959 in to paidto PB underits 1989contract previously was beforethe contract terminated. PB's See Fact Proposed Findings Uncontroverted of Nos.3 and 10.In short,the CNO hasalready determined PB hasbeenfully that -the compensated that is, PB hasreceived total amount feesto which it is entitled,as of compared the respective to contributions of the othersetsof attomeys.

PB Reply: response neitheragrees Findings 14,19,20 and2l,the Government's Although it makesreferences Proposed to paragraph4 doesnot thoseproposedfacts. The Government's Response nor disagrees(or even addresses) comply with RCFC 56(hX2). The Government's improper legal argumentis also incorrect. SeePafton Boggs'

lv Brief ArsumentIII.

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USA Musingat Paragraph5: Doesthe 1989PB contract with the CNO takepriority overthe 1988rù/ilcoxen Niebell contract? Wilcoxen-Niebell The contract took effectbeforethePatton (indeed, Boggscontract ittook retroactive effectasofAugust,1988) thereis and nothingin the PB contract stating that it haspriorþ overthe Wilcoxen-Niebell contract. addition,it would appear In that thetermination the PB contract of would necessarily moot anypriority argument.

PB Reply: paragraph5 is not directed at any ProposedFinding of Fact and doesnot comply The Government's Response with RCFC 56(hX2). While the Patton Boggs Contract doeshave priority over the Wilcoxen-Niebell Contract, that legal issue is not raised in Patton Boggs' Cross-Motion for Summary Judgmentbecauseit is not relevant to the relief sought. That argumentwill be addressed when Patton Boggs seeksthe remainder of its Tucker Act claim by disputing the amountsalso improperly paid to Mr. Wilcoxen but, as statedabove,that issueinvolves factual disputes,which is why Patton Boggs did not raise it in this Motion.

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David P. Callet David S.

181990) 470677) . Suite500

GREENBE DC V/ashington, 20006 202-331-3r00 (fax) 202-331-3101 [email protected] [email protected] I['4ay 26,2006

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