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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

DOUGLAS S. JOHNSON Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

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Case No. 06-334C (Judge Lynn J. Bush)

JOINT PRELIMINARY STATUS REPORT Pursuant to Rule 16 and Appendix A of the Rules of the United States Court of Federal Claims, plaintiff 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, plaintiff has been employed by the same Federal agencies as plaintiffs in Boyer v. United States, No. 00-641C (the Department of Homeland Security), served in the same position as some of the plaintiffs in Boyer (Senior Marine Enforcement Officer), and he asserts claims similar, if not identical, to the claims asserted in Boyer. c. Bifurcation: The parties agree that the issues of liability and damages should be bifurcated.

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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. g. Dispositive Motions: Summary judgment motions, if any, are to be filed in Boyer by September 30, 2006. This deadline has been extended several times due to a settlement offer currently being considered by the appropriate officials at the Department of Justice. If the proposed settlement is not approved and summary judgment motions are filed in Boyer, the parties anticipate that summary judgment motions will be filed in this case as well. h. Relevant Issues: The parties submit that among the major relevant issues presented herein are the following: 1. Whether plaintiff, while employed in non-supervisory positions at CBP and

ICE was 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 plaintiff prevails on the issue of liability, what are the appropriate

statutes of limitations applicable to plaintiff's claims?

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3.

In the event plaintiff prevails on the issue of liability, whether plaintiff is

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

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

entitled to interest on any recovery? I. Settlement: The parties believe there is a reasonable likelihood of settlement on the issue of whether plaintiffs are exempt from the FLSA as well as a likelihood that the amount of damages due plaintiffs can be resolved. Plaintiff's counsel has submitted a settlement offer with respect to the plaintiffs in Boyer, which, if accepted, could provide a foundation for settling the claims asserted by the plaintiff in this case. It is unlikely that parties will resolve through settlement whether plaintiff is 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 the appeal in Stephen S. Adams, et al. v. United States, Nos. 06-5040 and 06-5041 (United States Court of Appeals for the Federal Circuit). 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 the pending appeal in Stephen S. Adams, et al. v. United States, No. 90-162.

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k.

Electronic case management: There are no special issues regarding electronic case management needs.

l.

Additional Information: There is no other information which the Court should be aware of at this time. 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/David M. Cohen DAVID M. COHEN 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 18, 2006 Filed Electronically with the consent of Attorneys for Plaintiff

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) 305-7561 Fax: (202) 305-7643 Attorneys for Defendant Dated: August 18, 2006

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