Free Response - District Court of Federal Claims - federal

Case 1:99-cv-02051-LAS

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Filed 02/05/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ATHEY, ROBERT M., et al., C.A. No. 99-2051C Plaintiffs, v. THE UNITED STATES, Defendant. PLAINTIFFS' REPLY TO DEFENDANT'S OBJECTION TO TRANSFER (Senior Judge Smith) Electronically filed on February 5, 2007

The threshold issue in the Solow case is whether Ms. Solow and the other named plaintiffs, who were not employed by one of the seventeen specified agencies, were included in the Class certified by Senior Judge Smith in the Archuleta case. The secondary issue is whether the specific terms of the Settlement Agreement approved by Judge Smith waived the right of Ms. Solow and other potential plaintiffs to bring their own class action(s) despite the fact that they were not employed by one of the seventeen agencies. If those issues are resolved in favor of the plaintiffs in Solow, the court then must address the issues of claims preclusion, issue preclusion, and/or laches, all of which were raised by defendant in Athey when Ms. Solow attempted to join that case as an additional named plaintiff. Finally, despite defendant's attempt to muddy the waters with distinctions between some VA employees who were hired pursuant to title 38, U.S.C., as compared to those VA employees hired pursuant to title 5, there can be no question whatsoever that federal employees

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hired pursuant to title 5 OR title 38 are covered by the underlying operative statute involved in both the Athey and Solow cases, namely 5 U.S.C. 5551. Thus, the central issue on the merits to be decided in Solow is precisely the same one to be decided in Athey that Judge Smith dealt with for years in Archuleta: whether the VA and the other agencies systemically failed to include in the lump-sum payment for unused annual leave the same pay that the members of the putative class would have earned if they had remained in the federal service rather than retire, separate, or die with unused annual leave to their account.

Dated:

February 5, 2007

Respectfully Submitted,

s/ Ira M. Lechner

Ira M. Lechner Counsel for Plaintiffs 19811-4th Place Escondido, CA 92029 (858) 864-2258 (619) 699-2700

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CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of February, 2007, I served by regular U.S. mail (postage prepaid) a copy of PLAINTIFFS' REPLY TO DEFENDANT'S OBJECTION TO TRANSFER, addressed as follows: HILLARY STERN Attorney Commercial Litigation Branch Civil Division, Department of Justice Room 7038 1100 L Street, N.W. Washington, D.C. 20530

s/ Tammy Hill TAMMY HILL

SD\1509134.1

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