NATIONAL VETERANS LEGAL SERVICES PROGRAM et al v. UNITED STATES OF AMERICA

Filing 98

Joint STATUS REPORT by UNITED STATES OF AMERICA. (Field, Brian)

Case 1:16-cv-00745-ESH Document 98 Filed 07/13/18 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES, et al.,
Plaintiffs,
Civil Action No. 16-745 (ESH)

v.
UNITED STATES OF AMERICA
Defendant.

JOINT STATUS REPORT
Pursuant to this Court’s May 17, 2018 Order, the Parties provide this Status Report
regarding their positions as to further proceedings. See ECF No. 97.
1.

Digital Audio Equipment

Defendant’s Position: The Court directed Defendant to “respond to plaintiffs’ request for
the contemporaneous budget documents that support the figures defendant previously provided
to plaintiffs concerning the portion of courtroom technology expenditures related to digital audio
equipment for FY 2010-2016.” Order ¶ 1 (May 17, 2018) (ECF No. 97). Previously, Defendant
provided Plaintiffs with a summary of the expenditures related to digital audio equipment
showing that between FY10 and FY16, approximately $5.8 million of the Courtroom
Technology expenditures went toward digital audio equipment.
After the Court’s May 17 Order, Plaintiffs sent Defendant their First Set of Requests for
Production to Defendant. In addition to requesting the records identified in the Court’s Order,
Plaintiffs also requested “budget and accounting information for fiscal years 2017 and 2018.”
On June 22, 2018, Defendant provided Plaintiffs with 124 pages of contemporaneous budget

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documents from FY10 – FY16 reflecting all expenditures made on digital audio equipment,
including software, within the Judicial Conference’s Courtroom Technology expenditures.1
Accordingly, it is Defendant’s position that no additional discovery is needed with
respect to the expenditures related to digital audio equipment for FY10 – FY16.
Plaintiffs’ Position: In light of the government’s decision to seek an interlocutory appeal
(discussed in more detail below), the plaintiffs do not think that any additional discovery is
warranted at this time, and do not intend to seek additional discovery while any appeal is
pending. The plaintiffs will determine whether additional discovery is necessary after any appeal
has been resolved.
2.

Interlocutory Appeal

Defendant’s Position: The Solicitor General has authorized interlocutory appeal in this
case. Specifically, the Solicitor General has authorized interlocutory appeal of both the Court’s
December 5, 2016 Order denying Defendant’s Motion to Dismiss and also the Court’s March 31,
2018 Order granting in part and denying in part Defendant’s Motion for Summary Judgment.
Accordingly, contemporaneous with this Status Report, the Defendant is filing a motion to
certify both Orders for interlocutory appeal. As explained in the United States’ Motion, both
orders satisfy the standards for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The
Federal Circuit should be given the opportunity to address the controlling legal issues before any
further proceedings are conducted in this case. Accordingly, Defendant’s Motion also requests a
stay of proceedings in this Court pending resolution of proceedings in the Federal Circuit.

1

Defendant did not provide Plaintiffs with a response to their request for FY17 or FY18 budget
documents as that information is beyond the scope of the narrow question for which this Court
ordered discovery. See May 17 Order.

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Plaintiffs’ Position: As a general matter, the plaintiffs do not oppose an interlocutory
appeal in this case. That said, the plaintiffs have not yet had the opportunity to review the
government’s forthcoming motion, so they cannot provide a definitive position on how they will
respond. The plaintiffs will be able to provide the Court with their position at the next status
conference, set for five days from now, and will follow up with a formal filing shortly thereafter.
For now, the plaintiffs simply note that they do not anticipate opposing the government’s
motion to certify the Court’s summary-judgment order. That order rejected both parties’
proposed interpretations of 28 U.S.C. § 1913 note, the key statute at issue in this case. Any
appeal from that order would present the question whether the government has violated the
statute, and should allow the Federal Circuit to interpret the statute as either party has urged. As
for the Court’s nearly two-year-old order denying the government’s motion to dismiss the named
plaintiffs’ claims, that order must independently satisfy the requirements for immediate review
under 28 U.S.C. § 1292(b), including the requirement that it “involve[] a controlling question of
law as to which there is substantial ground for difference of opinion.” The plaintiffs do not
believe that there is “substantial ground for difference of opinion” as to whether that 2016 order
was correct.
3.

Mediation

Defendant’s Position: Defendant has determined that it does not wish to participate in
mediation at this time.
Plaintiffs’ Position: As explained in the last status report (ECF No. 94), the plaintiffs
continue to believe that the parties should engage in mediation given the risk to both sides in the
wake of the Court’s summary-judgment decision. In particular, the plaintiffs think that this case

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would be a good candidate for the Federal Circuit’s mediation program in the event that this
Court certifies (and the Federal Circuit permits) an interlocutory appeal.
July 13, 2018

Respectfully submitted,
JESSIE K. LIU
D.C. Bar #472845
United States Attorney
DANIEL F. VAN HORN
D.C. Bar #924092
Chief, Civil Division
By:

/s/ Brian J. Field
BRIAN J. FIELD (D.C. Bar #985577)
W. MARK NEBEKER (D.C. Bar #396739)
Assistant United States Attorney
555 4th Street, N.W.
Washington, D.C. 20530
Tel: [phone]
E-mail: [e-mail];
[e-mail]
Counsel for Defendant

By:

/s/ Deepak Gupta
Deepak Gupta (D.C. Bar No. 495451)
Jonathan E. Taylor (D.C. Bar No. 1015713)
GUPTA WESSLER PLLC
1900 L Street, NW
Washington, D.C. 20036
Phone: [phone]
Fax: [phone]
[e-mail], [e-mail]
Elizabeth Smith (D.C. Bar No. 994263)
MOTLEY RICE LLC
401 9th Street, NW, Suite 1001
Washington, D.C. 20004
Phone: [phone]
Fax: [phone]
William H. Narwold (D.C. Bar No. 502352)
MOTLEY RICE LLC

Case 1:16-cv-00745-ESH Document 98 Filed 07/13/18 Page 5 of 5

One Corporate Center
20 Church Street, 17th Floor
Hartford, CT 06103
Phone: [phone]
Fax: [phone]
[e-mail]
Meghan S.B. Oliver (D.C. Bar No. 493416)
MOTLEY RICE LLC
28 Bridgeside Blvd.
Mount Pleasant, SC 29464
Phone: [phone]
Fax: [phone]
Counsel for Plaintiffs