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

Case 1:89-cv-00218-EJD

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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.

Case 1:89-cv-00218-EJD

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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.

Case 1:89-cv-00218-EJD

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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.