Free Response to Motion - 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 OKLAHOMA, Plaintiff,
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Case 89-218L No. Edward Damich J. ChiefJudge

THE I.INITEDSTATESOF AMERICA, Defendant.
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PATTONBOGGSLLP,
Intervenor-Plaintiff.
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THE UNITED STATESOF AMERICA.
Defendant.
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PATTON BOGGS' OBJECTION TO JOINT STATUS REPORT AND RESPONSE TO "JOINT MOTION TO STRIKE JOINT STATUS REPORT AND FOR LEAVE TO SUBSTITUTE CORRECTED REPORT" Patton Boggs LLP ("P8"), through counsel,hereby objects to the "Joint StatusReport" ReportAnd For to filed on January31,2006, and responds "Joint Motion To Strike Joint Status Report," filed on FebruaryI,2006, statingas follows: Corrected LeaveTo Substitute For PB's Requests InformationHave Been Ignored L On October26,2005, the Court ordered"the parties"to file a joint statusreport

on or before January 31,2006, "to inform the Court of the progressmade in carrying out the of requirements the ConsentDecree."DocketNo. 114. 2. On the sameday that the Court issuedits Order, counselfor PB sent counselfor

the governmenta letter requestingthe following information:

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(a) How much money has been appropriatedto date to the Cherokee Nation, including sumsfor its attorneys'fees,under25 U.S.C. S 1779?; (b) How much of that total appropriationto date has been placed in the "specialholding account"for attorneys'fees?; (c) How much money from the "specialholding account"hasbeen paid to eachof the attomeys for the CherokeeNation, and when was each payment made?; (d) today?;and How much money remainsin the "special holding account"

(e) to How much more money is expected be addedto the "special holding account" from future appropriations? Memorandumin Supportof its Exhibit 13 attached Docket No. 117 (PB's Supplemental to Motion to Intervene). 3. The government's counselfailed to respond PB's October26,2005letter. Nor to

did the govemment ever provide PB the information requested. 4. confirming On December19, 2005,the Court grantedPB's Motion to Intervene,

its statusas a party. SeeDocketNo. 125. 5. 26,2005letter,on January 12,2006, Havingreceived response its October no to

counselfor PB telephonedgovernmentcounseland, again, askedwhether any additional funds had been paid out of the attomey fee escrow fund. 6. this request Receivingno response, January23,2006, counselfor PB reiterated on

hereto(1123106 email from David Panzer to to the government's counsel. SeeExhibit 1 attached DOJ's JamesUpton). 7. On January3I,2006, counselfor the govemmentleft PB's counsela voicemail

message, stating that no such additional funds had beenpaid out of the attorney escrow account. 8. That sameday, after ignoring PB's requestsfor information for months, and

having made no effort to include PB, the governmentfiled what it styled a "Joint StatusReport"

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purportedlyon behalfof "the parties."Docket 130. Of course,this StatusReportwas not filed on behalf of all parties,as PB had no role in its preparation. SubstantiveOmissionsIn The Joint StatusReport 9. Accordingto AssistantSecretary Cason'sOctober13,2005letter, the Cherokee

Nation attorneys have beenpaid a total of $1,081,524.57. Exhibit 12 attached DocketNo. to 117 (PB's Supplemental Memorandumin Supportof its Motion to Intervene). 10. yesterday's Nonetheless, Joint StatusReport states remains that only $389,389.28

in the attorneyescrowaccount. Assumingthat $15 million had beenappropriated the for CherokeeNation and its attorneysover the last three years and that ten percent (10%) of these appropriationswere allocatedto the attomey escrow account,and given the attorney fee paymentsreflectedin Mr. Cason'sletter,thereappears be a shortfallof $29,086.29.While the to Joint StatusReportmight be readas statingthat only $14,934,831.70 beenappropriated has for the CherokeeNation and its attorneys,even if that were the case,there still appears be a to shortfall of 522,569.32. 11. From the informationavailableto PB, it is not clearwhether(a) Congress not has

appropriatedall of the funds called for in the SettlementAct, (b) the governmenthas not allocated a fulI ten percent(10%) of those funds appropriatedto the attorney escrow account,(c) the govemment has disbursedadditional funds beyond those set forth in Mr. Cason's letter (which it has statedorally is not the case),or (d) some combination of the above. Had the govemmentprovidedPB with the informationrequested its October26,2005letter, or in included PB in the preparationof yesterday'sJoint StatusReport, the Court would be fully informed on theseissuesconsistent with its October26,2005 Order. Moreover,this filing would have been urìnecessary.

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12.

In fact, someof this very information - the amount of money appropriated

years- is provided in the Joint StatusReport for the annually for each of the relevant f,rscal Choctaw Nation and the ChickasawNation. but not for the CherokeeNation. 13. Basedon the allocationof funds between respective the Indian Nations set forth

in the SettlementAct, the sum of the funds received by the ChoctawNation and the Chicasaw Nation should equal the total sum receivedby the CherokeeNation - but that is not the case. For example,the Joint StatusReport statesthat in fiscal year 2004, the Choctaw Nation received Nation received L25 million, for a total of $5.0million. $3.75million, and the Chickasaw $ Nation had received$5.0 million in fiscal Basedon that, one would expectthat the Cherokee year 2004 as well. Nonetheless, March 2005 CherokeeNation Resolution statedthat the the for Nation had receivedonly $4.5 million out of $9.935million appropriated fiscal Cherokee year 2004. ,S¿e hereto(3115105 Cherokee Nation Resolution). The Exhibit2 affached govemment and the CherokeeNation's failure to provide this information makesit impossible for the Court to know the sourceof the shortfall in the attorney escrow account. 14. On February1,2006, the governmentand the Indian Nations filed a Joint Motion

To Strike Joint StatusReport, seekingleave to file a correctedreport basedupon undisclosed effors resulting from miscommunicationsamong counselfor those parties. No communications have been made with counselfor PB, nor have there been any efforts to include PB in this additional"j oint" filing. V/HEREFORE, PB respectfully requeststhat this Court order the United Statesto include PB in the preparationof any further Joint StatusReports,and to provide a supplementalJoint StatusReport to the Court that includesthe information outlined in paragraph2 above.

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Respectfully this submitted lst dayof February,2006, PATTONBOGGS, LLP

David P. Callet David S.

GREENBER 800Connecticut Suite500 DC Washington, 20006 202-331-3100 (fax) 202-331-3101 [email protected] [email protected]

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