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

Case 1:89-cv-00218-EJD

Document 157-3

Filed 05/26/2006

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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

Case 1:89-cv-00218-EJD

Document 157-3

Filed 05/26/2006

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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

Case 1:89-cv-00218-EJD

Document 157-3

Filed 05/26/2006

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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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Case 1:89-cv-00218-EJD

Document 157-3

Filed 05/26/2006

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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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Case 1:89-cv-00218-EJD

Document 157-3

Filed 05/26/2006

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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

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