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

Case 1:05-cv-01227-EJD

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS QASEM M. AL-ALI; et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) Case No. 05-1227 C ) (Chief Judge Damich) ) ) )

JOINT PRELIMINARY STATUS REPORT Pursuant to Appendix A, Section III, of the Rules of the United States Court of Federal Claims, and the Court's Special Procedures Order, the parties submit the following Joint Preliminary Status Report. (a) Jurisdiction - Plaintiff states that the Court appears to have jurisdiction

over this action pursuant to the Tucker Act (28 U.S.C. § 1491). Defendant states that it has no reason to question the jurisdiction of the Court at this time. (b) Consolidation - This case involves the Fair Labor Standards Act (FLSA)

liability of GS-11 and GS-12 Supervisory Immigration Enforcement Agents (SIEA). There is no other case pending in this Court that this case should be consolidated with at this time. (c) Bifurcation - The parties believe that this case should be bifurcated into

damages and liability phases for both trial and discovery purposes. (d) Further Proceedings - There is no need to defer further proceedings in this

case at this time. (e) (f) Remand or Suspension - No remand or suspension will be sought. Dispositive Motions pursuant to RCFC 12(b), 12(c) or 56 - Both parties

intend to file Motions for Summary Judgment pursuant to Rule 56.

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(g)

Relevant Factual And Legal Issues - It is undisputed that plaintiffs are

GS­11 and GS-12 SIEA's and are not paid FLSA overtime. As an issue of law, defendant asserts the Executive exemption and the Administration exemption to the FLSA. Plaintiffs dispute whether they meet each of the individual elements of the Executive exemption and the Administrative exemption. (h) Likelihood of Settlement and ADR - The parties do not know how likely

it is that the case will settle prior to a determination on the issue of liability, and do not believe any ADR method would cause a speedier resolution of the case. (i) Joint Proposed Scheduling Plan 1. Joinder of Additional Parties ­ Plaintiffs do not intend to add any

additional plaintiffs at this time however, should the Court wish to set a deadline, any additional plaintiffs will be added by May 15, 2006. 2. Joint Proposed Discovery Plan - The parties believe that discovery

should be bifurcated into two phases - liability and damages. The parties hereby propose the following deadlines for liability phase and the damages phase: (i) Discovery Phase - Liability (1.) Expert Witness Disclosures ­ The parties do not

anticipate at this time the use of and/or exchange of any expert testimony and/or reports. (2.) Fact Witness Depositions ­ The parties propose that

oral depositions be completed by May 15, 2007. (3.) Written Discovery - The parties propose that any

written discovery be completed by May 15, 2007. (4.) be completed by May 15, 2007. (5.) Presumptive Limits on Discovery - Defendant believes Discovery Cut-off - The parties propose that discovery

that it is possible that it will require more than 10 depositions, depending upon whether the parties can agree upon representative plaintiffs, and how many representative plaintiffs are agreed upon. Accordingly, should the Court alter the limit on the number of

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depositions allowed under RCFC 30, plaintiffs hereby request that they be allowed the same number of depositions as defendant. (6.) Dispositive Motions - The parties propose that they be

allowed to file dispositive motions at any time, provided that the motion be held in abeyance if there is a showing that a party has not had sufficient opportunity for discovery to fairly litigate the motion. (ii) Discovery Phase - Damages (to begin after the liability

phase of trial has concluded) (1.) Expert Witness Disclosures ­ The parties do not

anticipate at this time the use of and/or exchange of any expert testimony and/or reports. (2.) Fact Witness Depositions ­ The parties propose that

oral depositions be completed at least 30 days before trial on damages. (3.) Written Discovery - The parties propose that any

written discovery be completed at least 30 days before trial on damages. (4.) Presumptive Limits on Discovery - The parties do not

anticipate going beyond the limited number of depositions pursuant to RCFC 30(a)(2)(A) and interrogatories pursuant to RCFC 33(a). (5.) Discovery Cut-off - The parties propose that discovery

be completed at least 30 days before trial on damages. (6.) Dispositive Motions - The parties propose that they be

allowed to file dispositive motions at any time, provided that the motion be held in abeyance if there is a showing that a party has not had sufficient opportunity for discovery to fairly litigation the motion. 3. Trial - The parties anticipate proceeding to the trial on liability in

approximately one year, or by the summer of 2007, with the damage phase to follow, if liability is proven. The parties are discussing methods of reducing the length of any liability trial by identifying representative plaintiffs or groups of plaintiffs. Based upon trial time from 10:00 a.m. to 4:00 p.m., the parties believe that, if they can so identify

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plaintiffs, trial in the liability phase will require 8-10 days. Neither party requests expedited trial scheduling. The parties state that they will be able to request trial locations after they have selected representative plaintiffs. The parties propose any date of the weeks of May 21, or May 27, 2007 from 12:00 p.m. to 4:00 p.m. for a post discovery conference. (j) Electronic Case Management Needs - There are no special electronic

case management needs. (k) Other Information for the Court 1. The parties have conducted the early meeting of counsel by

telephone on March 15, 2006. The parties have exchanged RCFC 26 disclosures. 2. Defendant believes that the cost of litigating this case through appeal

will be less than $10,000, excluding salaries of Government employees. Defendant certifies that this estimate has been provided to agency counsel. Plaintiffs estimate, and have represented to their respective clients, that it is possible that the costs of litigating this case through appeal may exceed $10,000, excluding attorneys fees, depending on the amount of travel and related costs associated with discovery and trial. 3. Defendant's counsel is available for a status conference at any time

between March 31 and April 6, 2006, with the exception of the afternoon of April 3, 2006. As of the filing of this Report, plaintiff's counsel also appears to be available during this time. 4. The only other relevant information for this Court to be aware of is

that a prior matter before this Court, Aaron Angelo, Jr. et al. v. United States, Fed. Cl. No. 00-116, involved many of the same plaintiffs and the same or virtually the same legal issues.

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Respectfully submitted,
PETER D. KESSLER Assistant Attorney General DAVID M. COHEN Director s/Kathryn A. Bleecker KATHRYN A. BLEECKER Assistant Director s/Michael N. O'Connell MICHAEL N. O'CONNELL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L. Street, N.W. Washington, D.C. 20530 Tel: (202) 305-7561 Attorneys for Defendant

s/Everett L. Bobbitt EVERETT L. BOBBITT RICHARD L. PINCKARD BRADLEY M. FIELDS JULIE S. BUECHLER Bobbitt, Pinckard & Fields APC 8388 Vickers Street San Diego, CA 92111 Tel: (858) 467-1199

Attorneys for Plaintiffs

March 16, 2006

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