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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THOMAS C. PORTA, et al., and ANDREW D. BARTH, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )
No. 05-1420C & No. 05-759C CONSOLIDATED (Judge Firestone)
DECLARATION OF MICHAEL J.D. SWEENEY, ESQ., IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT ON THE ISSUES OF LIABILITY AND DAMAGES I, Michael J.D. Sweeney, declare under the penalty of perjury pursuant to 28 U.S.C. §1749, that I am an attorney admitted to practice before this Court. I am associated with the Getman Law Office, 9 Paradies Lane, New Paltz, N.Y. 12561, attorneys for Plaintiffs. I make this declaration in support of the Plaintiffs' Motion for Summary Judgment on the Issues of Liability and Damages. I submit this declaration to place before the Court certain documents cited in the Plaintiffs' Memorandum of Law and Plaintiffs' Proposed Findings of Uncontroverted Facts. 1. Attached as Plaintiffs' Exhibit 1 is a true and correct copy of the Defendant's Proposed Findings of Uncontroverted Fact from Moreno v. U.S., 05-142C, Docket No. 121 (Fed. Cl., Dec. 21, 2007)(Judge Firestone). 2. Attached as Plaintiffs' Exhibit 2 is a true and correct copy of a declaration provided by Defendant from Wayne Coleman, Defendant's 30(b)(6) deponent, dated October 14, 2004. The declaration was provided in Moreno v. U.S., 05-142 (Fed. Cl.)(Judge Firestone).
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3. Attached as Plaintiffs' Exhibit 3 is a true and correct copy of the Defendant's Answer, Porta et. al., and Barth et al., v. U.S., 05-14210C, Docket No. 14-1 (filed June 2, 2006). 4. Attached as Plaintiffs' Exhibit 4 is a true and correct copy of the Plaintiffs' First Amended Complaint, Porta et. al., and Barth et al., v. U.S., 05-14210C, Docket No. 14-1 (filed June 2, 2006). 5. Attached as Plaintiffs' Exhibit 5 is a true and correct copy of portions of the Defendant's 30(b)(6) Deposition of Wayne Coleman Deposition from November 29, 2006 in Porta et. al., and Barth et al., v. U.S., 05-14210C and 05-759C. 6. Attached as Plaintiffs' Exhibit 6 is a true and correct copy of the Session Roster, U.S. Border Patrol Academy from the Federal Law Enforcement Training Center, as produced by Defendant and referenced by Bates numbers 157-165. 7. Attached as Plaintiffs' Exhibit 7 is a true and correct copy of Defendant's Response to Plaintiffs' First Set of Interrogatories (July 17, 2006). 8. Attached as Plaintiffs' Exhibit 8 is a true and correct copy of Defendant's Questions and Answers on Time Spent In Trainings As Hours of Work for FLSA Covered Employees, Office of Personnel Management website, as produced by Defendant and referenced by Bates numbers MOR-168 to MOR-169. 9. Attached as Plaintiffs' Exhibit 9 is a true and correct copy of e-mail correspondence among various Government personnel, including Steve Cohen, Melissa Allen, Rob Smith and Deborah Spero, dated March 20, 2003, and March 19, 2003, as produced by Defendant and referenced by Bates numbers MOR-19 to MOR-22.
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10. Attached as Plaintiffs' Exhibit 10 is a true and correct copy of portions of Defendant's 30(b)(6) deposition of Jerome Mikowicz dated January 11, 2007 in Moreno v. U.S., 05-142C. 11. Attached as Plaintiffs' Exhibit 11 is a true and correct copy of page 575 of Title V from the 2002 version of the Code of Federal Regulations citing 5 C.F.R.§551.421 that was accessed from the U.S. Government Printing Office's National Archives and Records Administration website at
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13, 2003, as produced by Defendant and referenced by Bates numbers MOR-25 to MOR-35. 17. Attached as Plaintiffs' Exhibit 17 is a true and correct copy of George H. Bohlinger, III, Executive Associate Commissioner, Office of Management U.S. Department of Justice, memorandum to Robert F. Diegelman, Acting Assistant Attorney General For Administration dated April 24, 2002, as produced by Defendant and referenced by Bates numbers MOR-164 to MOR-166. 18. Attached as Plaintiffs' Exhibit 18 is a true and correct copy of Donald Winstead email stream to Doris L. Hausser dated June 24, 2003, as produced by Defendant and referenced by Bates numbers MOR-131 to MOR-134. 19. Attached as Plaintiffs' Exhibit 19 is a true and correct copy of U.S Customs and Border Protection website
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24. Attached as Plaintiffs' Exhibit 24 is a true and correct copy of Plaintiffs' Objections to Defendant's June 15, 2006 Notice of Agency Action, Porta, et al., and Barth, et al., v. U.S., 05-14210C & 05-759C, Docket No. 20 (June 19, 2006). 25. Attached as Plaintiffs' Exhibit 25 is a true and correct copy of Thomas Porta Statement of Earnings and Leave as produced by Defendant and referenced by Bates numbers MOR-3685, and Maame A.F Ewusi-Mensah's, counsel for Defendant, letter to Michael J.D Sweeney dated July 18, 2007. 26. Attached as Plaintiffs' Exhibit 26 is a Chart of Plaintiffs opt-in dates and training dates at the FLETC. The chart shows the dates that each Plaintiff filed his or her consent to sue with the Court as derived from the docket in this case. The training start and ends dates are from Plaintiffs' Exhibit 27 and as provided by the Defendant. See ¶27. 27. Attached as Plaintiffs' Exhibit 27 is a spreadsheet provided by the Government. The spreadsheet has been redacted to exclude settlement information and personal information not relevant to this motion. All the data and text is as provided by the Government with two exceptions: (1) the number of Saturdays Plaintiff Barron worked were recalculated based her dates of training; and (2) the Plaintiffs calculated the total of back wages owed. 28. Attached as Plaintiffs' Exhibit 28 is documentation provided by Defendant showing Plaintiffs' salary information for the period of time that the Plaintiffs trained at the FLETC. 29. Attached as Plaintiffs' Exhibit 29 is my correspondence with Maame A.F EwusiMensah, counsel for Defendant, informing her on October 2, 2007 that William
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Griffith and Joseph Turko had not received payment for the sixth day of training at the FLETC. 30. Attached as Plaintiffs' Exhibit 30 is a true and correct copy of the Order, Moreno v. U.S., 05-142C, Docket No. 44 (April 18, 2006). 31. Based on my experience litigating class and collective actions, skip traces are commonly performed by using the person's social security number to ensure that the person receives notice of the class or collective action. 32. Attached as Plaintiffs' Exhibit 31 is a true and correct copy of Defendant's June 19, 2006 Reply To Plaintiffs' Objections To Defendant's June 15, 2006, Notice of Agency Action, Porta, et al., and Barth, et al., v. U.S., 05-14210C & 05-759C, Docket No. 21.
Dated: February 8, 2008 Respectfully submitted, /s/ Michael J.D. Sweeney Michael J. D. Sweeney, Esq. Getman Law Office 9 Paradies Lane New Paltz, NY 12561 Tel: (845) 255-9370 Fax: (845) 255-8649
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