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

Case 1:07-cv-00731-LJB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

MARIA L. GILBERT, et al., Plaintiffs,
V.

THE UNITED STATES, Defendant.

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Case No. 07-731C (Judge Lynn J. Bush)

JOINT PRELIMINARY STATUS REPORT

Pursuant to Rule 16 and Appendix A of the Rules of the United States Court of Federal Claims, plaintiff and defendant respectfully submit the following joint preliminary status report in response to the questions set forth in Part III of Appendix A.
3a. Jurisdiction:

The parties agree that the Court has jurisdiction to entertain and to decide this action. b. Consolidation: The parties believe that this case should be consolidated with Julia E. Antilla, et al. v. United States, Case No. 06-139C; Alan M. Evans, et al. v. United States, Case No. 06-183C; Paula F. Albert, et al. v. United States, Case No. 06-223C; Roberta Goralczyk, et al. v. United States, Case No. 06-283C; Carlos M. Aquino, et al. v. United States, Case No. 06-367C and Anita Chalmers v. United States, Case No. 07-361C. All of the foregoing cases are presently pending before the Court, and all of the foregoing cases exclusively involve the Fair Labor Standards Act claims of Diversion Investigators employed by the Drug Enforcement Administration ("DEA").
c. Bifurcation:

The parties agree that the issues of liability and damages should be bifurcated.

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d.

Deferral: The parties believe that this case and the cases referred to above with which the

parties propose consolidation should be deferred pending resolution of the pending motions in Adams v. United States, Case No. 90-162C, insofar as they relate to claims therein of Diversion Investigators employed by DEA. e. Remand/Suspension: None of the parties seek remand or suspension. f. Joinder: Counsel do not anticipate joining additional parties. g. Dispositive Motions: At this time the parties do not intend to file dispositive motions pending the disposition of the pending motions in Adams v. United States, Case No. 90-162C relating to Diversion Investigators. h. Relevant Issues: The parties submit that among the major relevant issues presented herein are the following: 1. Whether plaintiffs, while employed in non-supervisory positions at DEA, were

employed in a capacity that is exempt from the overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et se~, pursuant to the administrative exemption set forth thereunder? In the event plaintiffs prevail on issue # 1 above, whether defendant is liable for time spent by plaintiffs driving government vehicles from home to work and work to home?

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3.

To the extent that plaintiffs prevail regarding liability, what are the appropriate

statues of limitations applicable to plaintiffs' claims? 4. In the event that plaintiffs prevail regarding liability, whether plaintiffs are

entitled to recover of liquidated damages? 5. In the event that plaintiffs prevail regarding liability, what is the amount of

compensatory damages to which plaintiffs are entitled? 6. In the event plaintiffs prevail regarding liability, whether plaintiffs are entitled

to interest on their recovery? i. Settlement: The parties believe there is a reasonable likelihood of settlement regarding the issue of whether certain plaintiffs are exempt from the FLSA as well as a likelihood that the amount of damages due plaintiffs can be resolved. It is unlikely that the parties will resolve through settlement whether plaintiffs are entitled to be compensated for driving a Government vehicle from home to work and work to home. j. Trial: The parties currently are unable to predict whether this matter will proceed to trial. k. Electronic case management: There are no special issues regarding electronic case management needs. 1. Additional Information: Appellants' petition for writ of certiorari filed in Stephen S. Adams, et al. v. United States, No. 70-116 (July 27, 2007), seeking review of the Federal Circuit's March 14, 2007 ruling

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against the plaintiffs concerning the home-to-work driving issue involved therein, was denied on January7,2008. Respectfully submitted, GREGORY G. KATSAS Acting Assistant Attorney General JEANNE E. DAVIDSON Director 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 HUGHES Deputy Director

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 Plaintiff D~ed:May23, 2008

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 Tel: (202) 616-8275 Fax: (202) 305-7643 Attorneys for Defendant D~ed:May23,2008

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CERTIFICATE OF SERVICE I hereby certify that on the 23rd day of May, 2008, a copy of the foregoing "JOINT PRELIMINARY 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/Shalom Brilliant