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

Case 1:89-cv-00218-EJD

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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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