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

Case 1:89-cv-00218-EJD

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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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