ESTATE OF CHARLIE & BETTY KELLEY et al v. USA

Filing 1

Order: The Clerk is directed to enter judgment. Signed by Judge Marian Blank Horn. (jm5) Copy to parties.

In the United States Court of Federal Claims
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CLIFFORD L. FINCH et al.,
For Themselves as Representatives
of a Class of Similarly Situated
Persons
Plaintiffs,
v.
UNITED STATES,
Defendant.

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Nos. 12-92L; 12-9203L; 129204L
Filed: July 24, 2015

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ORDER
On September 30, 2014, the court granted the parties’ Joint Motion for Approval
of Notice to Class Members Regarding Proposed Class Action Settlement. On October
28, 2014, this court held a fairness hearing at the United States District Court for the
Eastern District of Arkansas.
On November 21, 2014, the court issued an Order instructing the Clerk of the Court
to enter a judgment in the following amounts: $2,020,120.06 in principal and $294,000.00
for reimbursement of attorneys’ fees and costs pursuant to the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970. The court indicated that,
the plaintiffs would receive interest on the principal at a 3.75% interest rate, and
compounding annually for the period between November 19, 2010 and the date of
payment. The court also awarded class counsel attorneys’ fees in the amount of
$820,140.36, or a 35% fee of the award, excluding statutory attorneys’ fees. On
November 24, 2014, the Clerk of the Court entered judgment consistent with the court’s
Order.
On January 22, 2015, defendant filed its notice of appeal of the court’s decision to
the United States Court of Appeals for the Federal Circuit. On April 29, 2015, the Federal
Circuit issued a mandate dismissing defendant’s appeal after the defendant filed an
unopposed motion to withdraw its appeal. Within a week of the mandate, plaintiffs filed
in this court a motion to enforce the judgment. Plaintiffs alleged that “[o]n April 24, 2015,
and then again on May 5, 2015, Class Counsel asked current counsel for the government
when the Class Members could expect payment from the Judgment Fund. Based on
counsel for the government’s response, it appears that, at best, the government does not
intend to make payment for another 9-11 weeks (i.e., approximately 11-13 weeks after
the government’s dismissal of its appeal).” Plaintiffs argued that “this timeframe is

unacceptable. The government has withheld payment to these landowners for no good
reason for more than 3 months, and now has the audacity to force them to wait an
additional 11-13 weeks for payment.” In response, defendant argued “there has been no
breach of any term of the parties’ settlement, nor has there been any undue delay in the
submission of the Judgment for payment,” and claims that “[t]he Judgment was not final
and eligible for payment until after the dismissal of the appeal, which occurred on April
29, 2015, and Defendant received only last week all required information from Plaintiffs
needed to submit the Judgment to the Department of the Treasury for payment.” In a
May 13, 2015 Order, the court indicated “there has not been a breach of the settlement
and further, there has not been an undue delay in the submission of the judgment to the
Judgment Fund.” In the interest of keeping the plaintiffs informed about the status of the
judgment, the court ordered defendant to file a status report on May 20, 2015, “and every
other week thereafter, updating the plaintiffs and the court of the progress defendant has
made in submitting the judgment to the Judgment Fund at the Department of the Treasury
for payment, and an estimated time frame for payment to the plaintiffs.” Defendant,
however, has failed to file the five required status reports, and has not offered an
explanation for why the status reports have not been filed.
On July 1, 2015, the parties filed a joint motion to vacate and amend the November
24, 2014 judgment. The parties indicate in their motion that because “3 of the 183
remaining plaintiffs have not provided social security numbers or tax identification
numbers, and the government asserts that payment cannot be made until information is
received from all parties, the parties ask the Court to enter separate judgment applicable
to the 181 responsive plaintiffs, and then two others for the non-responsive plaintiffs.” In
the defendant’s portion of the joint motion, the defendant indicates that:
Three of the 183 plaintiffs, the Estate of Charlie and Betty Kelley and Kelly’s
Upholstery (the “Kelley Plaintiffs”) and Cindy Uhrich-Northcutt, have thus far
been unable or unwilling to provide to counsel for the United States
necessary information for the Treasury to process and issue payments.
Plaintiffs’ counsel represents that he has made several attempts to obtain
the information from each of the three plaintiffs. However, because the
United States has not received the necessary social security numbers or
tax identification numbers, Treasury has been unable to process final
payments to the 183 plaintiffs.
In the plaintiffs’ portion of the filing, “Plaintiffs state that they concur with the procedural
route suggested by the United States to carve out the three plaintiffs that have not yet
provided the requested information, so that the 181 other plaintiffs can be paid. Plaintiffs
will continue to attempt to obtain the requested information from the three remaining
plaintiffs, and hopefully resolve their claims without need of Court assistance.”
Therefore, “the parties ask that one amended judgment provide for just
compensation and full attorney’s fees and costs to be payable to the 181 responsive
plaintiffs. The parties ask that two additional judgments be entered for the Kelley Plaintiffs
and Cindy Uhrich-Northcutt, which provide only for just compensation awards payable to
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each of the remaining plaintiffs.” The parties’ joint motion to vacate and amend the
November 24, 2014 judgment is GRANTED. The Clerk of the Court shall VACATE the
November 24, 2014 judgment.
The claims associated with Estate of Charlie & Betty Kelley and Kelley’s
Upholstery are, hereby, SEVERED from the case of Clifford L. Finch, et al. v. United
States, Case No. 12-92L, and shall be reorganized, for case management purposes, into
the above-captioned case, Estate of Charlie & Betty Kelley, et al. v. United States, and
assigned Case No. 12-9203L. The Clerk of the Court shall enter JUDGMENT in the
amount of $6,977.04, plus interest at 3.75% compounded annually for the period between
November 19, 2010 and the date of payment, for Estate of Charlie & Betty Kelley and
$12,196.80 plus interest at 3.75% compounded annually for the period between
November 19, 2010 and the date of payment, for Kelley’s Upholstery. Moreover, the
claims associated with Cindy Uhrich-Northcutt are, hereby, SEVERED from the case of
Clifford L. Finch, et al. v. United States, Case No. 12-92L, and shall be reorganized, for
case management purposes, into the above-captioned case, Cindy Uhrich-Northcutt v.
United States, and assigned Case No. 12-9204L. The Clerk of the Court shall enter
JUDGMENT in the amount of $4,275.00, plus interest at 3.75% compounded annually for
the period between November 19, 2010 and the date of payment.
For the remaining 181 plaintiffs in the case of Clifford L. Finch, et al. v. United
States, Case No. 12-92L, the Clerk of the Court shall enter JUDGMENT in the following
amounts: $1,996,671.22 in principal and $294,000.00 for reimbursement of attorneys’
fees and costs pursuant to the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970. Additionally, the remaining 181 plaintiffs shall receive
interest on the principal at a 3.75% interest rate, and compounding annually for the period
between November 19, 2010 and the date of payment. Class counsel is awarded
attorneys’ fees in the amount of $820,140.36, or a 35% fee of the award, excluding
statutory attorneys’ fees.

s/Marian Blank Horn
MARIAN BLANK HORN
Judge

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