Free Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-01043-VJW

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Appendix A

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Dierberg, Michael (CIV) From: Sent: To: Subject: Santiago F. Lamp6n [[email protected]] Monday, October 08, 2007 3:01 PM Dierberg, Michael (CIV) RE: JSR

Dear Mike: I am back at the office today. I reviewed the JSR and I am in agreement. Thank You. Nonetheless, I do have a difficulty which I now face upon my return to the office. Two matters in State Court have been scheduled for hearings on October 24 and October 30. I had prediction on the October 30 event, but the October 24 schedule is new and complicates my schedule significantly. Preparing for these hearings plus the deposition and other events in connection to the practice, is going to be an absolute nightmare. I cannot request a re-scheduling of the court dates, since getting a prompt date in State Court is far tighter and almost impossible to handle in comparison to Federal Court matters. My clients are lucky to have these dates scheduled, and if l move for a change of dates they will most likely be re-scheduled for 2008. I would like to coordinate with you moving the deposition two weeks in order to give me some breathing room. As a matter of fact, except for the 27th and the holiday weekend, my schedule for the month of November is quite open. I hope that you can accommodate this request and I apologize for the inconveniences. Best regards, Santiago

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Appendix B

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,,~,,!erberg, Michael (CIV)
From: Sent: To: Subject:

Dierberg, Michael (CIV) Tuesday, October 09, 2007 11:25 AM '[email protected]' RE: JSR

How about November 15? If that doesn't work, I'd suggest November 13. I have checked with people on my end and those dates work for us. ..... Original Message ..... From: Santiago F. Lamp6n [mailto:[email protected]] Sent: Monday, October 08, 2007 3:01 PM To: Dierberg, Michael (CIV) Subject: RE: JSR Dear Mike: I am back at the office today. I reviewed the JSR and I am in agreement. Thank You. Nonetheless, I do have a difficulty which I now face upon my return to the office. Two matters in State Court have been scheduled for hearings on October 24 and October 30. I had prediction on the October 30 event, but the October 24 schedule is new and complicates my schedule significantly. Preparing for these hearings plus the deposition and other events in connection to the practice, is going to be an absolute nightmare. I cannot request a re-scheduling of the court dates, since getting a prompt date in State Court is far tighter and almost impossible to handle in comparison to Federal Court matters. My clients are lucky to have these dates scheduled, and if l move for a change of dates they will most likely be re-scheduled for 2008. I would like to coordinate with you moving the deposition two weeks in order to give me some breathing room. As a matter of fact, except for the 27th and the holiday weekend, my schedule for the month of November is quite open.

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Appendix C

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~
FIEI.S : ,.'787} 273.6767 TELECOPIER (787.', 758-3679 E. Mail: [email protected] Website'.: WV'v~'. I_A M P O N LAW.C OM

~7"-ASS(2) (_-7.{~)RNI,2YS A 1' E~ ! AI-" I ,A\~ AI|
POSTAl.: LAMP(')N & ASSC'CIATL-:S P O BOX 363841 SAN JUAN, PR 0093(~-.304

November 2, 2007
BY TELEFAX Mr. Michael J. Dierberg Commercial Litigation Branch Civil Division - Department of Justice Class. Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Dear Mr. Dierberg:

I have been discussing with my clients the scheduling and expenses connected to the taking of the upcoming deposition. As ! wrote to you last week, I am available the days of November 15 and 16 as needed, but I needed to coordinate with my clients for many reasons I am sure you can understand and are familiar with.
After conferri.ng on this subject, we have finally been able to coordinate our end for taking your client's deposition on or about November 29, 2007. I understand that you have proposed the 15t", but I am hopeful that you can accommodate this date, meaning the 29t~. Please let me know as soon as you can.

~ntiago F

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Appendix D

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U.S. Department of Justice Civil Division (202) 353-0536
l,l~asllington, D. C 20530

DJ No. 154-05-1043

September 26, 2007 Santiago F. Lamp6n Gonzfilez Lampdn & Associates P.O. Box 363641 San Juan, PR 00936-3641 Dear Mr. Lamp6n: By letter dated July 17, 2007, we raised various issues regarding the upcoming Rule 30(b)(6) deposition, scheduled for November 1,2007. Although you indicated that you would respond to the issues raised in our July 17 letter, you have not done so with respect to any issue other than the length of the deposition. Progress in this suit has been impeded by your lack of communication with respect to this and other matters. With respect to your e-mail dated September 25, 2007, we have previously indicated that we will make arrangements such that our schedules will not be an obstacle to continuing the deposition beyond November 1, 2007. However, we are not obligated to continue the deposition beyond seven hours, and you fail to provide any reason that the deposition cannot be concluded in seven hours. Moreover, we believe that this deposition can easily be concluded in one day. We anticipate that a single witness, Jo Ann Mitchell, will be sufficient. We have amply laid out in responses to interrogatories and other documents how the United States Postal Selwice ("USPS") calculates overtime, and you have already met with Ms. Mitchell to go over these matters. To the extent that you still do not understand some of the materials We have already provided, such as examples of overtime pay calculations, I would be happy to go over them informally with you. In fact, in light of your explanation during oral argument that the purpose of the deposition is to better understand USPS's calculations, it may be possible to avoid the expense of a deposition altogether by going over these matters with you informally on the phone instead. Even if there are questions that I cannot immediately answer, I can get back to you with answers. At a minimum, this wonld significantly streamline the deposition. Furthermore, we are concerned that extending the deposition beyond seven hours creates a risk that the deposition will be used as a fishing expedition. Given your inability to describe what claims you are asserting, or what legal theories might support such claims, this is a significant risk. In addition, while we appreciate that you will incur some expense in attending

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the deposition, the Government has already consumed significant resources defending this suit. Extending the deposition beyond one day will only increase the burden upon the Government with little prospect that additional time will aid in a resolution of this matter. If, during the course of the deposition, it appears that continuing the deposition beyond seven hours would be appropriate, we may consent to extending the deposition an additional hour or two, or to extending the deposition to November 2, 2007. Therefore, we agree to modify the joint status report ("JSR") so that the JSR is not an additional impediment to continuing the deposition beyond November 1,2007. However, we cannot commit at this time to extending the deposition beyond seven hours. If you believe that there is a reasonable likelihood that seven hours would be insufficient, please explain why. In addition, please provide an immediate response to our letter dated July 17, 2007 so that we may appropriately prepare for the deposition. Sincerely,

Michael J. Trial Attorney Commercial Litigation Branch Civil Division

-2-

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Appendix E

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Appendix B (page 1), City FLSA Calculation Formula
For all nonexempt employees, except Deslgnalion 4x: H = 35hrs + 43hrs + 52hrs + 53hrs + 57hrs.+ 62hrs* + 74hrs + 83hrs B = 345 + 355 + (435 x 1/2) + 525 + (535 x 2/3) +54.$ + 575 + 625* + 725 + (7,:1,$ x 2/3) + TCOLA FLSA Amount] R = B / H [R is rounded la two places] P = (R x 50%) x (H - 40.00) [50%R is rounded to four places; P is rounded to two places] + 1.0 x [TCOLA FLSA Anmunt / (H)] x [(1|) - 411[ C = 385 + (435 x 1/2) + 485 + (535 x 1/3) + 735 + (745 x 1/3) + 885 NET = P - C (ifC is greater than P, NET = 0.00) Changed PP 16-1992

For all Designation 4x nonexempt employees: H = 35hrs + 43hrs + 52hrs + 53hrs + 83hrs B = 34S + 355 + (435 x 1/2) + (52hrs x 2080 Hourly Rat~2)$+ (535 x 2/3) + 545 + ?25 + TCO~A FLSA Amount3 R = B / H [R is rounded ta two places] P = (R x 50%) x (H -40.00) [50%R is rounded to four places; P is rounded to two places] ÷ t.0 x ITCOLA FLSA AmlJu,~/(ll)l x l(ll)-4(tl C = 385 + (435 x 112) + (53,$ x 1/3) + 745 NET = P - C (if C is greater d~an P, IXrET = 0.00) Changed PP 1.6-1992

' TCOLA FLSA Amount = (PP 52 hrs + [PP (Tolal PP TCOLA Amount) LeaveHours) x (Weekly 52 hours + Weekly 62 hbu;s') 62hrs - PP 68hrs] + PP Paid (nol to exceed 40 hours per week)

2080 Hourly Rate "

(Base Annual 2080 Salar~ - Annual COLA) 2080

Hourly COLA (.xx)

(Total PP TCOLA Amo.gnt 2000"" a TCOLA FLSA Amount = (pp 52 hrs + [PP 62hrs- PP 68hrs] + PP )Paid Leave Hours) x 208"-"'~ x Weekly 52 hours (not to exceed 40 hours per week) ¯ Full-time carrier ONLY (7.01 rule): Guaranlee time (62)- Guarantee overtime (68) ~ Guaranlee time actually used in FLSA calculation. ¯ " For pay periods prior to 21-85, use 2008. "'" Non-exempt Postmasters in RSC F - not Io exceed 48 hours per week. H = Total hours per FLSA 34 = Beeper time 57 = Holiday work B - Total remuneration lot FLSA hours 35 ~ IEx~ra slraighl time 6~= Guaranl~e time 38 = Extra 50% (adjuslmenls only) 68 - Guarantee overlima pR== FLSApremium liabilitythe paid week FLSA hourly rata for 43 = Penally overlime (200%) 72 = Sunday premium (25%) C = Contract or policy premium used to offset 48 = Holiday sched, premium (50%) 73 - Out--el-schedule premitJm (50%) FLSA liability 52 = Work 74 = Chrislmas work (for 4x 5~/o; for 3x'150%) NET = Additions/premium paid per FLSA 53 = Overtime (t50%) 88 - Nonbargaining rescheduling premium $ = Journal dollars hr~ = Journal hours Handbook F-18, September 1990 23

USPS 00001

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Appendix F

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U S Postal Service Calculation of FLSA Premium Location: Salary: Gross Income Prior to TCOLA & FLSA: TCOLA Attributable to Workhours:
Puerto Rico 30106 638.95 57.90

FLSA Recap:
,Employee: B PM Pay Period: 09-1992 Week 1 $ 696.05

Total FLSA Remuneration
Divided by

H

Total FLSA Hours
Equals

40.1

R

FLSA Hourly Rate

$ 40.1 - 40) 40.1 -40) $ $

17.35 0.87 0.14

P1 FLSA Premium on Hours ( 17.35 x 1/2 ) x ( P2 FLSA Premium on TCOLA ( 57.90 / 40.1 ) x (
Equals

P

Total Premium Due
Minus

$

1.01

C

FLSA Offset for Contract Payments
Equals

$

0.80

Net Net FLSA Premium Due

$

0.21

sample.xls PM 2003 09-1

3/10/2003

USPS 00020

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U S Postal Service Calculation of FLSA Premium
,Explanation: Employee: PM PayPeriod: 09-1992Week 1 Finance Number. 428460 Office Name: San Juan TCOLA Location: Puerto Rico TCOLA Rate: 10.00% Employee Salary:. 30106 from Payroll J'oumal TCOLA Maximum Weekly Compensation: 57.9 Salary/20BO" TCOLA Rate ° 40 Employee Basic Houri;~ Rate: 14.474 Full Time: Salary / 2080 .Step 1: Datermine FLSA Dollars Attributal~le to TCOLA TCOLA FLSA Dollars:r .Step 2 & 3: Determine FLSA Hours and Dollars from Payroll Journal FLSA Hours Code 35 43 52 53 57 62 74 FLSA HOURS1 Actual Hours 40.00 0.10 Actual Pa~ 636.56 2.39 Remuneration $ Formula (35) Extra Straight Time x 1 (43) Penalty Overlime x 1/2 '(52) Work x 1 (53) Overtime x 2/3 (57) Holiday Work x 1 (62) Guarantee Time x I (74) Christmas Work x 2/3 (54) Night Differential xl (72) Sunday Premium x 1 TCOLA FLSA $ FLSA Remuneration Step ~: Determine FLSA Hourly Rate: FLSA Remuneration 696.05 S.tep.5: Determine FLSA Premium Due on Workhours Above 40 FLSA Heudy Rate 17.35
Step 6: When applicable~ determine FLSA Premium Due on TCOLA

57.90] Code 52 Straight time hour~ / 40 * TCOLA Weekly Maximum

40.101

, Remunerati~n $ 0.00 0.00 636.56 1.59 0.00 0.00 0.00 0.00 57.90 696.051

divided by

FLSA Hours FLSA Hourly Rate 40.1 = I 17.35~

x 1/2 =

8.6750 x

FLSA Hours over 40 FLSA Premium on Hours 0.1 = 0.87

TCOLA Do ars divided by FLSA hours times FLSA hours over 40 57.90 40.1 0.10

FLSA Premium on TCOLA 0.14 Total FLSA Premium Due

Step 7: Determine FLSA Premium Offset due to Contract Payments (48) Hiotiday-Scheduling Premium x 1 (53) Overtime x 1/3 (73) Out-of-Schedule Premium x 1 (74) Christmas Work x 1/3 (43) Penalty Overtime x 1/2 FLSA Premium Offset Credit .St.ep 8: Determine Amount of FLSA Payment Due: Total FLSA Due from Step 6: Subtract FLSA Offset from Step 7: FLSA Paymentl, Mc.Quigg Portion of 2003 FLSA Payment 1992 FLSA Payment 1.01 0.80 0.211Pay difference if Step 6 is larger than Step 7, otherwise pay 0. 0.14 0.07

0.7967 0.0000 0.0000

0.601

samp~e.xis PM 20090~-1

US PS 00020

9~10~2003