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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) ) STONE, ERROL L. & SUSAN H., ) In their own right and as Trustees of the ) Susan H. Stone Trust and the Errol L. Stone ) Trust, ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ) ) EUGENE J. FRETT, Individually and ) as trustee of the Victor J. Horvath and Frances ) B. Horvath Trust, and ) ) DONNA P. FRETT, ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ) JOHN H. and MARY E. BANKS, et al.,
No. 99-4451 L Judge Emily C. Hewitt
No. 04-277 L Judge Emily C. Hewitt
No. 05-1353L Judge Emily C. Hewitt
JOINT SUBMISSION REGARDING DATE OF 1999 REPORT By order filed April 20, 2007, the Court directed the parties to "provide the date of
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publication of the 1999 Report" referenced in Banks v. United States, 314 F.3d 1304, 1310 (Fed. Cir. 2003). The title of the "1999 Report" is the "January 2000 FY-1999 Annual Report on the Section 111 Beach Nourishment Monitoring Report." Id. at 1307. In response, on April 25, 2007, the parties filed a "Joint Response to Court Order April 20, 2007 re: Date of 1999 Report." The Joint Response attached the declaration of James P. Selegean, United States Army Corps of Engineers, in which he explains his unsuccessful efforts to identify a date of publication. On May 2, 2007, the Court conducted a telephonic conference call with John Ehret, counsel for Banks plaintiffs, and Terry Petrie, counsel for defendant United States, to address the question further. Consequently, the Court extended Mr. Ehret the opportunity to conduct discovery or interview Government employees to attempt to elicit additional information. The Court also scheduled a conference call for Monday, May 7, 2007. The parties provide the following report for the Court's use for the May 7 conference call. 1. Pursuant to Mr. Ehret's desire, a call was conducted on Friday, May 4, 2007, with the
following participants: A. Charles Thompson: Mr. Thompson wrote the 1999 Report. At the time, Mr. Thompson was an employee in the Riverine and Coastal Section of the Hydraulics & Hydrology Branch of the Detroit District Office of the U.S. Army Corps of Engineers. Mr. Thompson is retired today. B. David Schweiger: Mr. Schweiger, as the Chief of the Hydraulics & Hydrology Branch of the Detroit District Office of the U.S. Army Corps of Engineers, approved the 1999 Report. Today, Mr. Schweiger is the Chief of the Engineering Design & Construction Division of the Detroit District Office.
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C.
Gary Segrest: Mr. Segrest is an Assistant District Counsel in the Detroit District Office of the U.S. Army Corps of Engineers.
D.
John Ehret, counsel for Banks plaintiffs, and Terry Petrie, counsel for defendant United States.
2.
Neither Mr. Thompson nor Mr. Schweiger were informed before the May 4 call about
any relationship between their memory of when the 1999 Report was approved and the issue regarding the January 27, 2006 date of filing of the complaint by the Okonski plaintiffs in this litigation. Mr. Thompson and Mr. Schweiger provided the following information: A. They believe the report was approved in January 2000. When the report was approved it was considered final. The Detroit District Office, like the Corps generally, uses a convention of dating reports by Month and Year. B. Subsequent to approval by Mr. Schweiger, copies of the 1999 Report were provided to other elements of the Corps' Detroit District Office. The 1999 Report would not normally be distributed outside the Detroit District Office. C. Mr. Schweiger agrees that he could have approved the 1999 Report anytime during January, 2000. Based upon his recollection of the ordinary course of business following year-end holidays, he would guess though that he acted upon the 1999 Report sometime after the first week of January and estimates that he approved it about mid-January 2000.
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Dated: May 7, 2007
Respectfully submitted,
s/John B. Ehret by Terry M. Petrie John B. Ehret, Esq. 20860 Greenwood Drive Olympia Fields, IL 60461 Telephone: (708) 748-8975 Facsimile: (708) 748-7661 [email protected] Counsel for Banks plaintiffs
MATTHEW J. McKEOWN Acting Assistant Attorney General Environment and Natural Resources Division
s/Terry M. Petrie TERRY M. PETRIE Environment and Natural Resources Division U.S. Department of Justice 1961 Stout Street, 8th Floor Denver, CO 80294 Telephone: 303-844-1369 Facsimile: 303-844-1350 [email protected] Attorney for Defendant
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CERTIFICATE OF SERVICE I certify that I have served a copy of the "JOINT SUBMISSION REGARDING DATE OF 1999 REPORT " by electronic filing with the Unites States Court of Federal Claims on the 7th day of May, 2007 on: John Ehret, Esq. 20860 Greenwood Drive Olympia Fields, IL 60461 Counsel for Banks Plaintiffs **************** Drew Marrocco, Esq. Sonnenschein Nath & Rosenthal LLP 1301 K Street, NW Suite 600, East Tower Washington, DC 20005 Counsel for Stone Plaintiffs **************** Eugene J. Frett, Esq. Sperling & Slater, P.C. 55 West Monroe Street Suite 3200 Chicago, Illinois 60603 Counsel for Frett Plaintiffs ****************
s/Terry M. Petrie TERRY M. PETRIE
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