Free Joint Preliminary Status Report - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

DIANE B. GIBSON, et al., Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

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Case No. 07-284C (Judge Lawrence S. Margolis)

JOINT PRELIMINARY STATUS REPORT Pursuant to Rule 16 and Appendix A of the Rules of the United States Court of Federal Claims, plaintiffs and defendant respectfully submit the following joint preliminary status report in response to the questions set forth in Part III of Appendix A. 3a. Jurisdiction: The parties agree that the Court has jurisdiction to entertain and to decide this action. b. Consolidation: The parties agree that this case should not be consolidated with any other cases pending in the United States Court of Federal Claims. However, plaintiffs are employed by the same Federal agency, the Drug Enforcement Administration ("DEA"), as are many of the plaintiffs in Adams, et al. v. United States, Case No. 90-162C, Boston, et al. v. United States, Case No. 01-518C, Kenneth W. Giles, et al. v. United States, Case No. 04-1283C, Thomas E. English, et al. v. United States, Case No. 05-572C, Lydia Y. Bagley, et al. v. United States, Case No. 06-103C, Julia E. Antilla, et al. v. United States, Case No. 06-139C, Alan M. Evans, et al. v. United States, Case No. 06-183C, Paula F. Albert, et al. v. United States, Case No. 06-223C, Roberta Goralczyk, et al. v. United States, Case No. 06-283C, Carlos M. Aquino, et al. v. United States, Case No. 06-367C,

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Wayne Groves, et al. v. United States, Case No. 06-456C, Evangela Forbes v. United States, Case No. 06-510C, Kerry Hamilton v. United States, Case No. 06-680C, Deborah A. George v. United States, Case No. 06-776C, Linda A. Stocum v. United States, Case No. 07-03C, Jeffrey B. Morgan v. United States, Case No. 07-232C, Andrew W. Breiner, et al. v. United States, Case No. 07-249C, Paul G. Jaster, et al. v. United States, Case No. 07-299C, David P. Brown v. United States, Case No. 07-325C, Anita Chalmers v. United States, Case No. 07-361C, Matthew J. Crusan, et al. v. United States, Case No. 07-434C and Shannon M. Garner, et al. v. United States, Case No. 07-525C, and assert claims similar, if not identical, to the claims asserted in such cases. On June 29, 2007, a partial settlement agreement was reached and stipulations of partial dismissal were filed for the aforementioned cases with the exception of the instant case and Jeffrey B. Morgan v. United States, Case No. 07-232C, Andrew W. Breiner, et al. v. United States, Case No. 07-249C, Paul G. Jaster, et al. v. United States, Case No. 07-299C, David P. Brown v. United States, Case No. 07-325C, Anita Chalmers v. United States, Case No. 07-361C, Matthew J. Crusan, et al. v. United States, Case No. 07-434C and Shannon M. Garner, et al. v. United States, Case No. 07-525C. c. Bifurcation: The parties agree that the issues of liability and damages should be bifurcated. d. Deferral: The parties agree that this case should not be deferred pending resolution of any other cases. e. Remand/Suspension: None of the parties seek remand or suspension. f. Joinder: Counsel do not anticipate joining additional parties. -2-

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g.

Dispositive Motions: At this time the parties do not intend to file motions pursuant to RCFC 12(b) or 12(c).

Plaintiffs will submit a proposal to settle the instant case by no later than August 31, 2007. h. Relevant Issues: The parties submit that among the major relevant issues presented herein are the following: 1. Whether plaintiffs, while employed in a non-supervisory position at DEA

were employed in a capacity that is exempt from the overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., pursuant to the administrative exemption set forth thereunder? 2. In the event plaintiffs prevail on the issue of liability, what are the appropriate

statutes of limitations applicable to plaintiffs' claims? 3. In the event plaintiffs prevail on the issue of liability, whether plaintiffs are

entitled to an award of liquidated damages? 4. In the event plaintiffs prevail on the issue of liability, what is the amount of

compensatory damages to which plaintiffs are entitled and are such damages due for driving a Government owned vehicle from home to work and work to home? 5. In the event plaintiffs prevail on the issue of liability, whether plaintiffs are

entitled to interest on their recovery?

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Settlement: The parties believe there is a reasonable likelihood of settlement on the issue of

whether certain plaintiffs are exempt from the FLSA as well as a likelihood that the amount of -3-

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damages due plaintiffs can be resolved. It is unlikely that parties will resolve through settlement whether plaintiffs are entitled to be compensated for driving a Government-owned vehicle from home to work and work to home. Therefore, the parties propose to defer litigation of such issue pending the outcome of appellants' petition for a writ of certiorari in Stephen S. Adams, et al. v. United States, No. 07-116 (July 27, 2007). j. Trial: The parties currently are unable to predict whether this matter will proceed to trial. They will be better able to assess this issue following final disposition of the plaintiffs' petition for writ of certiorari in Stephen S. Adams, et al. v. United States. k. Electronic case management: There are no special issues regarding electronic case management needs. l. Additional Information: Defendant anticipates responding to plaintiffs' settlement proposal soon after receiving it.

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Respectfully submitted,

PETER D. KEISLER Assistant Attorney General

s/Jules Bernstein JULES BERNSTEIN Bernstein & Lipsett, P.C. 1920 L Street, N.W. Suite 303 Washington, D.C. 20036 OF COUNSEL: LINDA LIPSETT Tel: (202) 296-1798 Fax: (202) 296-7220

s/Jeanne E. Davidson by Kirk Manhardt JEANNE E. DAVIDSON Director

EDGAR N. JAMES James & Hoffman, P.C. 1101 17th Street, N.W. Suite 510 Washington, D.C. 20036 Tel: (202) 496-0500 Fax: (202) 496-0555 Attorneys for Plaintiffs Dated: August 24, 2007

s/Shalom Brilliant SHALOM BRILLIANT Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 616-8275 Fax: (202) 305-7643 Attorneys for Defendant Dated: August 24, 2007

Filed Electronically with the consent of Attorneys for Plaintiffs

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CERTIFICATE OF FILING I hereby certify under penalty of perjury that on this 23rd day of August 2007, a copy of the foregoing "JOINT PRELIMINARY STATUS REPORT" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/Jules Bernstein