Free Motion for Extension of Time - District Court of Federal Claims - federal

Case 1:05-cv-00142-NBF

Document 155

Filed 07/15/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ARTURO MORENO, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) )

No. 05-142C

(Judge Firestone)

DEFENDANT'S MOTION TO ENLARGE TIME TO FILE JOINT STATUS REPORT Pursuant to Rule 6(b) of the Rules of the Court of Federal Claims, the United States files this motion to enlarge time to file the parties' joint stats report concerning the status of the individual plaintiffs in light of the Court's July 3, 2008 order finding that equitable tolling is not available to any of the plaintiffs. This is the first enlargement of time being requested for this purpose. The joint status report currently is due July 18, 2008, and we request an additional 28 days to file the joint status report. We also respectfully request that the Court order plaintiffs' counsel to provide us with the plaintiffs' social security numbers which are required to conduct accurate searches for the information to be contained in the joint status report. Plaintiffs' counsel stated that the plaintiffs would not oppose an enlargement of time through August 15, 2008, but that plaintiffs "want an opportunity to ensure the Court fully understands the government's actions." In order to complete the joint status report, the parties must determine the dates upon which each of the plaintiffs attended training at the FLETC, the pay days that correspond to these dates, and the status of any back pay payments made to the nine plaintiffs who allege they

Case 1:05-cv-00142-NBF

Document 155

Filed 07/15/2008

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did not receive any back pay payment. Prior to the hearing on the parties' cross-motions for summary judgment, we conferred with plaintiffs' counsel regarding the dates upon which each plaintiff attended training. Plaintiffs' counsel stated that counsel does not have the training dates for the plaintiffs, many of whom do not recall the precise dates upon which they attended training. We conducted a search of the agency's database of information on FLETC attendees during the relevant period of time. Nearly 80 of the plaintiffs were not found via a name search. In addition, several names appeared in the database which were similar to, but not identical to, the plaintiffs' names. We then asked plaintiffs' counsel to provide social security numbers for the plaintiffs in order that the agency could conduct a search within its broader payroll databases. Plaintiffs' counsel was unable to provide this information, and therefore we provided them with the preliminary information we had been able to obtain, explaining that more accurate information might later be obtained. We have requested that the agency conduct a search for the training dates of all the plaintiffs as well as the back pay status of all of the nine plaintiffs alleging non-payment. Given the manner in which the agency's pay databases are maintained and given the large number of persons employed by the agency (not to mention possible duplicate names or misspelled names), the undersigned counsel has been advised that the agency requires the social security numbers in order to efficiently search for accurate information on the plaintiffs. Accordingly, we reiterated our request to plaintiffs' counsel for social security numbers on July 8, 2008. Plaintiffs' counsel refused to provide this information, stating via email on July 8, 2008: This is information that the government, not Plaintiffs' counsel is required by law to have. The government never provided the information to us: not the list of class members, not contact information, and not social security numbers. This is information 2

Case 1:05-cv-00142-NBF

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the government presumably had when it sent notice to these people. Plaintiffs' counsel has provided no support for the proposition that it is not required to provide social security numbers for purposes of the joint status report. In any event, we have requested that the agency attempt to continue to conduct its searches in the absence of the social security numbers. The agency is unable to confirm that it will be able to provide accurate information in the absence of the social security numbers, and is unable to provide an estimated time frame for any information it may obtain via its searches. In addition, agency counsel, Arthur I. Rettinger, was out of the office on vacation and largely unavailable to assist with this process from July 3, 2008 through July 14, 2008. The undersigned counsel will be out of the office on vacation from July 17, 2008 through August 4, 2008. In the meanwhile, agency pay personnel have been fully engaged in the process of migrating thousands of employees to a new retirement system, which has affected the amount of time they have been able to devote to searches for information on the plaintiffs. For these reasons, we respectfully request that the Court grant our motion for an enlargement of time, through and including August 15, 2008 to file the joint status report. We also respectfully request that the Court order plaintiffs' counsel to provide us with the social security numbers of the plaintiffs as soon as possible.

Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director 3

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s/ Martin F. Hockey, Jr. MARTIN F. HOCKEY, JR. Assistant Director

s/ Maame A.F. Ewusi-Mensah MAAME A.F. EWUSI-MENSAH Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, NW Washington, D.C. 20530 Tel: (202) 353-0503 Fax: (202) 514-8624 July 15, 2008 Attorneys for Defendant

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Case 1:05-cv-00142-NBF

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CERTIFICATE OF FILING

I hereby certify that on this 15th day of July 2008, a copy of the foregoing "DEFENDANT'S MOTION TO ENLARGE TIME TO FILE JOINT STATUS REPORT" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ Maame A.F. Ewusi-Mensah

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