Free Notice (Other) - District Court of Federal Claims - federal

Case 1:04-cv-00856-GWM

Document 122

Filed 11/02/2006

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

No. 04-856C (Judge George W. Miller)

DEFENDANT'S NOTICE OF POTENTIAL REBUTTAL WITNESS NOT LISTED ON DEFENDANT'S AUGUST 21, 2006 WITNESS LIST Defendant, the United States, respectfully submits this notice regarding a potential rebuttal witness to respond to a credibility issue that plaintiffs have indicated that they might potentially raise at trial. Specifically, plaintiffs have indirectly alleged that Barry Joe Aiken, the union steward for the high pay grievance, received a promotion in exchange for the settlement of the shipwright's high pay grievance.1 Defendant has just been made aware of, and spoken to, the individual who recommended Mr. Aiken for the promotion at issue: Dan Haas. Mr. Haas is not listed on our witness list, filed with the Court on August 21, 2006. To allow plaintiffs an opportunity to take discovery of Mr. Haas should they so choose and overcome any prejudice or surprise by this late disclosure, defendant is providing notice of this potential rebuttal witness to the Court and the plaintiffs, and will make Mr. Haas available at the plaintiffs' convenience. Mr. Haas is not part of Shop 64, and possesses no information regarding the underlying settlement of the grievance. Mr. Haas would only serve as a rebuttal At the pretrial conference, however, it was unclear whether plaintiffs intend to raise this issue at trial. 1
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Case 1:04-cv-00856-GWM

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witness in the event that plaintiffs raise the issue of Mr. Aiken's promotion at trial, and his direct testimony would take no more than five to ten minutes, causing minimal disruption to trial. See Yankee Atomic Elec.Co. v. United States, No. 98-126C, 2006 WL 2848615 (Oct. 4, 2006).

Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Mark A. Melnick MARK A. MELNICK Assistant Director s/ Steven M. Mager STEVEN M. MAGER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit, 8th floor Washington, D.C. 20530 Tele: (202) 616-2377 Fax: (202) 305-7644

OF COUNSEL . JOHN D. NOEL Senior Trial Attorney Department of the Navy 720 Kennon Street, S.E., Room 233 Washington, D.C. 20374-5013 STEVEN L. SEATON Puget Sound Naval Shipyard 1440 Farragut Avenue Bremerton, Washington 98314-5001

Attorneys for Defendant

November 2, 2006

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CERTIFICATE OF FILING I hereby certify that on this 2nd day of November, 2006, a copy of the foregoing "DEFENDANT'S NOTICE OF POTENTIAL REBUTTAL WITNESS" 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/ Steven M. Mager Steven M. Mager Trial Attorney Commercial Litigation Branch Civil Division Department of Justice