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

Case 1:89-cv-00218-EJD

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IN THE I-INITEDSTATESCOURTOF FEDERALCLAIMS THE CHEROKEE NATION OF OKLAHOMA, Plaintiff,
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THE UNITED STATESOF AMERICA, Defendant.
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Case 218-89 No.

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PATTONBOGGSLLP Intervenor Plaintiff,

Chief JudgeEdward J. Damich

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THE LJNITEDSTATESOF AMERICA, Defendant.
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PATTON BOGGS' PROPOSED FINDINGS OF'UNCONTROVERTED F'ACT IN SUPPORTOF ITS CROSS-MOTIONFOR SUMMARY JUDGMENT FOR $1,247,501.80 Intervenor Proposed Plaintiff PattonBoggsLLP ("PattonBoggs")submits these Findingsof Uncontroverted in support its Cross-Motion Summary Fact of for Judgment, with in accordance RCFC56(hX1).
I.

PROPOSED FINDINGS OF UNCONTROVERTEDFACT SUPPORTING PATTON BOGGS' FIRST CLAIM F'ORSUMMARY JUDGMENT FOR s866,977.23 AN AMOUNT EQUAL TO THE BALANCE OF THE ATTORNEY ESCROWACCOUNT.INCLUDING SUMSTO BE APPROPRIATEDIN FY 2007.

1 . PattonBoggsentered an attomeyfee contract into Nationwith with the Cherokee

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respect thislitigation. Ex.2 atA-39(the"Contract").r to providedfor, inter alia,monthly compensation o'compensation 2. The Contract and of (10%)of the amount tenpercent recovered the amounts previously paid by said less Cherokee Nationfor attorney feespursuant this Contract litigation;provided, to for that required law, if any,areobtained."Id. at A-41 approvals by 3. PattonBoggswaspaid atotal of $403,959 monthlypayments in underthe Contract. Ex.4 at A-47 (October 2003letterfrom the Cherokee 6, Nation'sGeneral Counsel, JulianFite). 4. TheSettlement provided $20million in appropriations the Cherokee Act for for Nationandits attorneys, making$2 million available paythe Cherokee to Nation's Docket 19,2005Opinion& Orderat 3 ("Since the attorneys. No. 125,December Cherokee Nationwill receive total of $20million in appropriations a underthe for fees."). Settlement $2 million is available payrnent attorney's Act, of installments has threeof the four annual authorized 5. To date,Congress appropriated to to by the Settlement rendering totalof $ 14,485,018.00be allocated theCherokee Act, a Report; throughFY 2006. DocketNo. 137,JointStatus Nationandits attorneys, A. No. 138,Declaration Douglas Lords("LordsDecl."). of Attachment Docket to appropriated, has allocated theattorney to 6. Of the sums already $1,448,501.80 been Report; LordsDecl.fl 7. escrow fund. Docket No. 137,JointStatus in Act for to 7. TheSettlement provides an additional $5,000,000.00 be appropriated (dxl). Of FY2007 the Cherokee for Nationandits attomeys. U.S.C.$$ 1779c(cx4), 25
' All six exhibitscitedherein(Nos. l-6) areincluded the Appendixto Patton Boggs'Cross Motion for in includedin therecord. of Summary Judgment. With the exception Exhibit 5, all exhibitswerealready andarewhattheypurporttobe. SeeExhibit 7, Nonetheless, six exhibitsaretrue andaccurate all copies Esq., 8. Declaration DavidS. Panzer, of !f

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thatamount, Settlement makes to $500,000.00 the Act up available payto the to Cherokee Nation'sattorneys their statutory attomeys'fees. Id. $ 1779e(b). 8. On February 2005,theCherokee 18, Nationprovided the Secretary own to its Resolutions purportedly that payments its lawyers "authorized approved" and certain to otherthanPattonBoggs,asfollows: 'Wilcoxen & Wilcoxen Estate Mr. Niebell of Hall Estill Ex. 6 at A-53 to A-54. 9. Noneof thoseattorneys listedabovein paragraph dispute amounts 8 the they were $550,000.00 $100,000.00 5280.524.57

paid. Ex. 5 at A-51 (March3I,2005letterfrom Mr. V/ilcoxen, theHall Estill firm, and to the Cherokee Nation,stating"havingaccepted Nation'sfeedetermination, have the we payment no dispute with theNation...."). Nor do theyseek additional underthe Act. Id. Settlement 10. On March 30,2005,the Cherokee with a Resolution Nationprovidedthe Secretary payment $151,000 Patton Boggs, 6 at A-53-A-54(October Ex. "approving" of to 13, 2005letterfrom Assistant James Secretary Cason). 11. On October 13,2005, Secretary the decided disburse totalof $1,081,524.57 to from a the attorney escrow account, exactlyasdirected do by the Cherokee to Nation. Exhibit 6 13,2005letter). af A-54(Mr. Cason's October 12. On October and18,2005,the Secretary 17 made those disbursements the from Docket No. 137,JointStatus attorney escrow account. Report; LordsDecl.at tlfl 8-9. 13. No fuither disbursements beenmadefrom the attorney have escrowaccount, its and immediately currentbalance $366,977.23 was afterdisbursement attorneys' of fees. 1d.

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il.

ADDITIONAL PROPOSED F'INDINGS OF T]NCONTROVERTED FACT SUPPORTING PATTON BOGGS' SECOND CLAIM FOR SUMMARY JUDGMENT FOR $280,524.57 AN AMOUNT EQUAL TO THE MONIES IMPROPERLY DISBURSED TO THE HALL ESTILL LA\ry FIRM.

14. The CherokeeNation did not enter into an attomey fee contract with the Hall Estill law firm relating to any aspectof the SettlementAct. Ex 4 at A-44 (Mr. Fite's letter explains that "Wilcoxen associated Hall, Estill law firm and they have presented the billings."). 15. Instead,Hall Estill was "associated" Mr. Vy'ilcoxen, by underthe V/ilcoxen-Niebell Contract. Id. 16. The V/ilcoxen-NiebellContract,required"all expenses associated counsel,like [of Hall Estilll to be paid by [Mr. Wilcoxen and Mr. Niebell], out of any compensation which they may receive for servicesto be renderedhereunder." Ex. 1 at A-35. 17. Despite the lack of any contract with the CherokeeNation, and despite Mr. Wilcoxen's obligationto pay the expenses the Hall Estill firm he associated, of the Cherokee Nation directedthe Secretary makepaymentof $280,524.57 the Hall to to Estill firm. Ex.6 at A-54.

III.

ADDITIONALPROPOSEDFINDINGSOF'UNCONTROVERTEDFACT SUPPORTING PATTON BOGGS' THIRD CLAIM FOR SUMMARY JUDGMENT FOR $100,000.00 AN AMOUNT EQUAL TO THE MONIES IMPROPERLY DISBURSED TO THE ESTATE OF'PAUL NIEBELL. 18. Under the Wilcoxen-NiebellContract,Mr. Niebell's fee was o.whollycontingent"on

a recovery by the CherokeeNation. Exhibit I at A-35. 19. Mr. Niebell and Mr. V/ilcoxen brought only two actions on behalf of the Cherokee Nation under the Wilcoxen-Niebell Contract,both of which were finally dismissedwith prejudice many yearsbefore the SettlementAct was enacted,resulting in no recovery. See UnitedStatesv. Cherokee Nation,480 U.S. 700 (1987) (disposingof "takings"

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claim); Cherokee Nationv. UnitedStstes,937F.2d153911Oth Cir.; (disposingof "fair (lOthCir. 1991). and honorable dealings" claims),reh'g denied,g48F.2d,635 20.Mr. Niebell died in 1994. Ex.4 at A-46. 21. Mr. Niebell never worked on this litigation brought and prosecutedby Patton Boggs. Id. (CherckeeNation's description of Mr. Niebell's work on this matter); seealso Ex.3 at A-43 (October 30,1995 termination letter from the CherokeeNation to Patton Boggs thus, as of 1994(when Mr. Niebell died),PattonBoggs was still lead counselin this case).

Respectfully submitted,

David P. Callet (

David S. Panzer

N o . 1 8 1 990) o .4 7 0 677)

GREENBERG TRAUzuG LLP
Ave, 800Connecticut NW, Suite500 Washington, 20006 DC 202-331-3100 (fax) 202-331-3101 [email protected] [email protected] March20.2006