Free Joint Status Report - District Court of Federal Claims - federal

Case 1:90-cv-00162-LJB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) )
) ) )

STEPHEN ADAMS, et al., Plaintiffs, v. UNITED STATES OF AMERICA,
Defendant.

Case No. 90-162-C and Consolidated Cases (Judge Lynn J. Bush)

JOINT STATUS REPORT Pursuant to the Court's Order of December 20, 2006, requiring the parties to file a joint status report on or before January 26, 2007 informing the Court of the status of settlement negotiations and other developments, the parties wish to advise the Court as follows: 1. The parties have met and continue to meet with regard to various remaining matters

in this litigation. In this connection, they met on January 23, 2007 to discuss the contents of this joint status report and other matters. 2. The parties agree that defendant's motion for reconsideration, filed August 10, 2006,

has been mooted by the Joint Stipulation of Partial Dismissal, filed November 27, 2006. 3. The parties are presently litigating with regard to the defendant's motion for partial

summary judgment concerning GS-12 and GS-13 criminal investigators at the Department of Health and Human Services. Defendant expects to file a motion for partial summary judgment concerning GS-12 and GS-13 criminal investigators at the Department of Housing and Urban Development within the next two weeks.

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4.

Insofar as other so-called 1811 criminal investigators whose claims have not yet been

litigated or settled, the following represents a list of the agencies where settlements have not been achieved with regard to GS-9 through GS-13 criminal investigators: Department of the Treasury, Social Security Administration, Small Business Administration, Resolution Trust Corporation, Railroad Retirement Board, National Aeronautics and Space Administration, General Services Administration, Federal Deposit Insurance Corporation, Department of Transportation, Federal Aviation Administration, Department of the Navy, Department of Labor, Department of Justice, Department of Defense, General Accounting Office, Federal Emergency Management Agency, Equal Employment Opportunity Commission, Department of Education, Naval Criminal Investigative Service, Defense Criminal Investigative Service, Federal Bureau of Investigation, Department of Health and Human Services. With respect to the Department of Housing and Urban Development, settlement was achieved at the GS-9-11 levels but not at the GS-12-13 levels. The following represents agencies where settlements have been achieved at the GS-912 levels but not at the GS-13 level: Department of Commerce (including National Oceanic Atmospheric Administration, the Bureau of Export Administration, and the Office of Export Enforcement), Department of the Interior (including the

-2-

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Fish & Wildlife Service), Department of Veterans Affairs, Environmental Protection Agency, Food and Drug Administration, Immigration and Naturalization Service. 5. The parties are in negotiations with regard to a settlement of the claims of Diversion

Investigators at the Drug Enforcement Administration. The parties also have discussed possible settlement of the claims of OPM Background Investigators (1810s). 6. In connection with the driving claims of GS-12s in which this Court's decision of

April 27, 2005, was affirmed by the United States Court of Appeals for the Federal Circuit, it is the intention of the plaintiffs to file a timely petition for rehearing and/or rehearing en banc with the United States Court of Appeals for the Federal Circuit. 7. With regard to the driving claims of the GS-13s who were the subject of the

November 22, 2006 settlement, the plaintiffs propose to await the outcome of further proceedings with regard to the GS-12s' driving claims as set forth in paragraph 6 before taking any action with regard to the GS-13s and other plaintiffs on their driving claims. Defendant believes that the Federal Circuit's decision in this case concerning the GS-12s' driving claims is a sufficient basis upon which to dismiss the other driving claims, and defendant reserves the right to file an appropriate motion to dismiss these claims without awaiting further proceedings. 8. following: a. b. c. United States Marshals Non-supervisory investigators for U.S. Attorneys (GS-13s and 14s) Technicians at various agencies, including the Department of Homeland Security -3Other claims and issues that are under discussion between the parties include the

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d. e.

United States Customs Service Operational Enforcement Officers GS-5-7 issue - Naval Criminal Investigative Service, Fish &Wildlife Service, Environmental Protection Agency, Internal Revenue Service

f. g. h.

GM 12s & 13s Sunday premium Opa Locka claim which was added by way of an amendment as a result of Hurricane Andrew

i. j. k. l.

Underpayment of AUO at certain agencies (principally DCIS) Interest due on OASDI refunds paid to BATF plaintiffs USSS1802 (Randy Espinoza and John P. Connelly) Michael Banas - Defense Security Service Background Investigator and Customs Import Specialist

m.

Three Customs plaintiffs who contend that they are entitled to back pay under March 16, 1994 settlement agreement: Teena Fountaine (GS-9) claims entitlement to $974.00 Manuel Rascon (GS-9) claims entitlement to $487.00 Elissa Brown-Warpness (GS-12) claims entitlement to $2,932.00

n. o. 9.

Scott Curtis and Tom Radtke (USSS1802) Attorneys' fees and expenses

Insofar as the dismissal of any claims are concerned, because of the continued

pendency of plaintiffs' driving claims as well as the fact that there may be plaintiffs whose employment by defendant was with more than one agency, one of which has not yet been settled, plaintiffs believe it not to be practical or appropriate to dismiss any of the pending claims. -4-

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Defendant believes that it is appropriate to dismiss all plaintiffs who do not possess any identifiable unadjudicated claims pending in this case. 10. The parties propose that they submit a joint status report on or before February 26,

2007, to apprise the Court of the status of the resolution of the above-discussed matters.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/David M. Cohen DAVID M. COHEN Director s/Shalom Brilliant SHALOM BRILLIANT Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W. Washington, D.C. 20530 Washington, D.C. 20036 Tel: (202) 305-7561 Fax: (202) 305-7643 OF COUNSEL: Michael J. Dierberg William Rayel Trial Attorneys Commercial Litigation Branch Civil Division Department of Justice Attorneys for Defendant Dated: January 26, 2007 Filed Electronically with the consent of the Attorneys for Defendant -5-

s/Jules Bernstein JULES BERNSTEIN Bernstein & Lipsett, P.C. 1920 L Street, N.W. Suite 303 Washington, D.C. 20036 OF COUNSEL: LINDA LIPSETT Tel: (202) 296-1798 Fax: (202) 296-7220

s/Edgar N. James EDGAR N. JAMES James & Hoffman, P.C. 1101 17th Street, N.W. Suite 510 Washington, D.C. 20036 Tel: (202) 496-0500 Fax: (202) 496-0555 Attorneys for Plaintiffs Dated: January 26, 2007

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CERTIFICATE OF FILING I hereby certify under penalty of perjury that on this 26th day of January 2007, a copy of the foregoing "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/Jules Bernstein