UNITED STATES DISTRICT!_JURT FOR THE DISTRICT OF COLUMBIA ) ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) ) GALE NORTON, Secretary of thc Interior, et al., ) Civil Action No. 96-1285 (RCL) ) Defendants. ) .) JOINT MOTION FOR CONSENT ORDER The plaintiff class, Mona Infield, and defendants (collectively, "the parties"), hereby jointly move for the Court to enter the proposed Consent Order. MEMORANDUM OF POINTS AND AUTHORITIES The parties have entered into a Settlement Agreement (attached hereto) conceming the allegations of the plaintiff class and Mona Infield that Ms. Infield was subjected to retaliation by defendants and the Department of the Interior. The parties seek approval by the Court of the Settlement Agreement, the rescheduling of the trial date concerning the reprisal allegations, and a stay of proceedings as set forth in the proposed Consent Order. The proposed Consent Order is attached hereto. Respectfully submitted, . ._---_ ./_..._ .J' "" ' _ ': Dennis Gingold / /,/27-_ ?j. /' P.O. Box 14464 Washington, DC 20044-4464 Telephone: (202) 661-6380 :tj_ L'_.-- Robert S. Libman U.S. Department &Justice Civil Division Federal Programs Branch P.O. Box 883 Washington, DC 20044 Telephone: (202) 514-4964 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) ) GALE NORTON, Secretary of the Interior, et al., ) Civil Action No. 96-1285 (RCL) ) Defendants. ) ) CONSENT ORDER Upo n the representation of the parties that they have settled the allegations of the plaintiff class and Mona Infield that Ms. Infield was subjected to retaliation by defendants and the Department of the Interior ("the reprisal allegations"), and upon consideration of the Settlement Agreement behveen the parties, IT IS HEREBY ORDERED that: 1. The Settlement Agreement is approved; 2. All further proceedings, including all discovery, concerning the reprisal allegations are hereby stayed until further Order, except that the December 18, 2002 trial date is hereby rescheduled for February, 2002; and 3. Upon the parties' filing of a Stipulation of Dismissal with Prejudice, the Court will so order the dismissal of the reprisal allegations, and will issue an Order providing that the Court% Page - 1- September 17, 2002 Order to Show Cause is vacated, and the need for the civil contempt trial concerning the reprisal allegations is obviated. SO ORDERED: Dated: ROYCE C. LAMBERTH United States District Judge Respectfully submitted, FOR PLAINTIFFS AND MONA B. INFIELD: --,,----v _,J .-." ,...:_.",._'- _ . /.J" f Dennis Gingold, Esq.'" P.O. Box 14464 Washington, DC 20044-4464 Telephone: (202) 661-6380 j- November .._., 2002 FOR DEFENDANTS: A. 1 Jr. Scott H. Park Robert S. Libman U.S. Department of Justice Civil Division Federal Programs Branch P.O. Box 883 Washington, DC 20044 Telephone: (202) 514-4964 November _ 2002 Page -2- t, Copies to: Henry Azar Scott H. Park Robert S. Libman U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 Dennis M. Gingold 1275 Pennsylvania Avenue, N.W. 9th Floor Washington, DC 20004 Keith Harper Native American Rights Fund 1712 N Street, N.W. Washington, DC 20036-2976 Stephen M. Byers Crowell & Moring 1001 Pennsylvania Ave., NW Washington, DC 20004 B. Michael Rauh Mannatt, Phelps & Phillips 1501 M Street, Suite 700 Washington, DC 20005 Lisa Kemler · Zwerling & Kemler 108 N. Alfred Street Alexandria, VA 22314 John Kenneth Zwerling Zwerling & Kemler 108 N. Alfred Street Alexandria, VA 22314 Herbert Fenster McKenna & Cuneo 1900 K Street, NW Washington, DC 20006 Jefferson Gray Axent Fox Kintner Plotkin & Kahn 1050 Connecticut Ave., NW Washington, DC 20036 SETTLEMENT AGREEMENT The United States Department of the Interior ("Interior"), the class plaintiffs in Cobell, et al. v. Babbitt, et al., Civil Action No. 1:96CV01285 (D.D.C.) ("Cobell"), and Mona B. Infield ("Ms. Infield") hereby agree, in full and final settlement of the matters referred to herein, as follows: 1 (a). The term "Respondents" means Interior, Gale Norton, Secretary of the Interior, Neal McCaleb, Assistant Secretary of the Interior, and any current or former Interior or Department of Justice official, employee or attorney, in his or her official, individual, or any other capacity ("in any capacity"). (b) The term "Complainants" refers collectively to the plaintiffclass and Ms. Infield. (c) The term "information technology" refers to "any equipment or interconnected system or subsystem of equipment, that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission or reception of information." (d) The term "pay period" refers to the bi-weekly periods of time for which federal employees are paid. (e) The term "reprisal allegations" refers to (a) Ms. Infield's complaint filed before the Office of Special Counsel, OSC File No. MA-00-1024; (b) Plaintiffs' Motion for Order to Show Cause Why Defendants and Their Employees and Counsel Should not be Held in Contempt and for Sanctions for Violating the Anti-Retaliation Order, filed August 15, 2000, in Cobel!; and (c) any other allegation by plaintiffs or Ms. Infield that Interior or Respondents retaliated against Ms. Mona Infield-Plaintiffs-Interior Settlement 1 Infield because of her statements or actions supporting plaintiffs or criticizing Interior or Respondents. The term "reprisal allegations," as used in the Settlement Agreement, either standing alone or in connection with other terms, is not meant to encompass any issues, other than the reprisal allegations, that were raised by Ms. Infield during the course of Cobell (such as, for example, IT security issues). f. The word "days" as it is used herein means calendar days, except that when an act is required to be performed on a certain day, and that day falls on a weekend or holiday, the day for such performance will be the immediately following business day. 2. Immediately upon the execution of this Settlement Agreement, counsel for the parties will execute, and cause to be filed, ajoint application for approval by the Cobell Court of the Consent Order appended hereto. Except as specifically provided herein, the effective date of this Settlement Agreement is the date of signature of the Settlement Agreement by all signatories. Faxed signatures on the Settlement Agreement will be treated as original signatures for all purposes under the Settlement Agreement. 3. In consideration of the provisions of this Settlement Agreement and the terms of the Consent Order and of the Stipulation of Dismissal with Prejudice and Consent Order, Interior agrees to the following: a. (i) Inter/or will make available to Ms. Infield a GS-14 supervisory position in the information technology field ("the IT position"). Such position will be located in Albuquerque through at least September 30, 2008. (ii) Effective the second pay period following the entry of the Stipulation of Dismissal with Prejudice and Consent Order, Interior will assign Ms. Mona Infield-Plaintiffs-Interior Settlement 2 Infield to the Supervisory Computer Specialist position (GS-14), Division of Information Resources Management, Bureau of Indian Affairs. This position is described in the position description attached hereto as Exhibit 1. (The functional name of this position, as stated on the position description, is Supervisory IT Specialist.) This is a permanent position, and Interior has no plans to eliminate, outsource, transfer, or otherwise contract to a non-federal entity the functions of this position, and this position will remain in effect at least through September 30, 2004. (iii) The provisions of Subparagraphs 3(a)(i) and (ii) are solely for the benefit of Ms. Infield. If Ms. Infield leaves the IT position before September 30, 2008, voluntarily or for disciplinary grounds that are either unchallenged by Ms. Infield or determined to be valid after all legal recourse is exhausted, Interior is released from the provisions of Subparagraphs 3(a)(i) and (ii). The provisions of Subparagraphs 3(a)(i) and (ii) of this Settlement Agreement will become effective within seven days of notification to defendants' counsel that plaintiffs' counsel has received the last of the payments required under this Settlement Agreement. b. Interior will expunge from Ms. Infield's official personnel file any reference to any actions she took or was alleged to have taken in connection with the matters resolved by this Settlement Agreement. A copy of the Settlement Agreement will '- not be included in Ms. Infield's Official Personnel File. Mona Infield-Plaintiffs-Interior Settlement 3 c. Interior will pay reasonable out-of-pocket personal expenses and any overtime pay, incentive awards, and step increases to which Ms. Infield Was entitled and did not receive as a result of alleged retaliation included within her complaint filed with the Office of Special Counsel, OSC File No. MA-00-1024. d. Interior will restore to Ms. Infield any sick and annual leave to which Ms. Infield is entitled and did not receive as a result of the reprisal allegations. e. Interior will pay to Ms. Infield and to class plaintiffs reasonable attorney's fees, expenses and costs (collectively, "attorney's fees") incurred as a result of the reprisal allegations, through the effective date of this Settlement Agreement. f. The amount of payments pursuant to Paragraphs 3(c) and (e) above, and the number of hours to be restored pursuant to Paragraph 3(d) above, will be determined by the Special Master upon application to the Special Master by Complainants within 7 days of the effective date of this Settlement Agreement. Complainants will not be awarded attorney's fees in excess of $1 million for both Ms. Infield's and plaintiffs' attomey's fees combined under this Settlement Agreement. Defendants' response will be submitted to the Special Master within 25 days of such application. At their option, Complainants will have 5 days to reply to defendants' response, but there will be no supplemental or amended evidentiary submission by Complainants. The Special Master's determination will be binding and final and will not be appealed. The payments determined pursuant - to Paragraphs 3(c) and (e) above will be made, and the hours restored pursuant to Paragraph 3(d) above will be restored, within 20 days of the issuance of the Mona Infield-Plaintiffs-Interior Settlement 4 Special Master's determination. Interior will pay the amount determined pursuant to Paragraph 3(c) to Mona Infield. Interior will pay the amount determined pursuant to Paragraph 3(e) to Dennis Gingold, Esq., and the payment of attorney's fees may be made in two separate payments. All payments made under this Settlement Agreement will be made to the client trust fund account of Dennis Gingold, Esq. Complainants will provide to counsel for defendants the account information necessary for a wire transfer of these payments. Within three days of receipt of the last of the payments required under this Settlement Agreement, counsel for plaintiffs will so inform the Special Master. 4. a. Complainants and their heirs, administrators, successors, or assigns hereby release and forever discharge Interior, the defendants in the Cobell action and the Respondents, and their administrators or successors, and any department, agency, or establishment of any defendant and any officers, employees, agents, attorneys, or successors of any such department, agency, or establishment, in any capacity, through the date of the last of the payments required to be made under this Settlement Agreement, from any and all civil claims and causes of action which have been asserted, or could have been asserted (including all attorney's fees), in any court, before the Office of Special Counsel, or administratively, or otherwise, by reason of, as a result of, or with respect to, or in connection with, or which arise out of or relate to, or arise out of the litigation of, the reprisal Mona Infield-Plaintiffs-Interior Settlement 5 allegations. This release will become effective as of the date of the last of the payments required to be made under this Settlement Agreement. b. Interior hereby releases and forever discharges Complainants and their agents and attorneys, through the effective date of this Settlement Agreement, from any and all civil claims and causes of action which have been asserted, or could have been asserted administratively, or otherwise, by reason of, as a result of, or with respect to, or in connection with, or which arise out of or relate to, or arise out of the litigation of, the reprisal allegations. This release will become effective as of the date of the last of the payments required to be made under this Settlement Agreement. 5. This Settlement Agreement is not and will not be construed as an admission by the defendants in the Cobell action, Interior, or other Respondents of the truth of any allegation or the validity of any claim asserted in the Cobell action or described in the preceding paragraph, or of the defendants' liability therein, nor is it a concession or an admission of any fault or omission in any act or failure to act, nor will this Settlement Agreement, nor any of the terms hereof, be offered or received in evidence or in any way referred to in any civil or administrative action or proceeding (other than such proceedings as may be necessary to consummate or enforce this Settlement Agreement), nor will they be construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of the defendants in the Cobell action, Interior, or other Respondents. 6. The provision of attorney's fees, expenses, and costs in the Settlement Agreement is by agreement of the parties and will not serve as precedent, or otherwise be binding, in this or any Mona Infield-Plaintiffs-Interior Settlement 6 other case, beyond the implementation of this Settlement Agreement. Likewise, the Special Master's determination of attorney's fees and costs pursuant to the Settlement Agreement is by agreement of the parties and will not serve as precedent, or otherwise be binding, in this or any other case, beyond the implementation of this Settlement Agreement. 7. Nothing in this Settlement Agreement will be construed to satisfy, modify, or eliminate any substantive or procedural requirements for making or challenging employment decisions under applicable federal law, nor will any valid or unchallenged disciplinary action by Interior constitute a violation of this Settlement Agreement. All provisions of this Settlement Agreement are to be construed consistent with applicable law as it now applies or applies hereafter. Nothing in this Settlement Agreement will be construed to require the obligation of any funds in violation of the Anti-Deficiency Act, 31 U.S.C. § 1341. In the event that, at any time before September 30, 2008, Interior does not pay Ms. Infield's salary and asserts that a shortfall in funds appropriated by Congress is the reason for its inability to do so, Ms. Infield may bring a claim of breach of this Settlement Agreement to the Special Master. After providing Interior with an opportunity to respond, the Special Master will consider whether a shortfall in appropriated funds exists and whether any unallocated funds held by Interior may legally be used to pay Ms. Infield's salary. The Special Master will issue a report and recommendation to the Court. 8. For one year after the effective date of this Settlement Agreement, the parties will submit to non-binding mediation by Special Master Alan Balaran all disputes arising out of either: (a) the implementation of this Settlement Agreement, or (b) any future allegation by Ms. Infield or the class plaintiffs that Ms. Infield has been or will be subjected to reprisal by Interior Mona Infield-Plaintiffs-Interior Settlement 7 in violation of any anti-retaliation Order issued by the Court in Cobell. Before filing any pleading or motion in Cobell or in any other judicial proceeding with respect to a dispute arising out of (a) or (b), the parties will first raise it with the Special Master for resolution, as follows. First, the party raising the issue will notify the other party in writing of the nature of the dispute and will propose a solution thereto. If the parties are unable to resolve the dispute themselves expeditiously, and not sooner than 10 days after the written notice described above has been provided, the party raising the issue will provide written notice of the dispute to the Special Master and serve a copy on the other party. If the parties are unable to resolve the dispute with the assistance of the Special Master, and not sooner than 10 days after providing written notice to the Special Master, the party raising the dispute may submit the matter to the Court for resolution. This provision does not alter or modify any procedural rights that Ms. Infield may have as a federal employee. 9. The terms of this Settlement Agreement constitute the entire agreement of the parties, and no prior statement, representation, agreement or understanding, oral or written, that is not contained herein, shall have any force or effect. Except as expressly provided herein, this Settlement Agreement cannot be modified except upon express written consent of the parties. This Settlement Agreement does not create, and is not to be read to create, any rights or privileges on behalf of any person or entity other than the parties hereto, except that the releases set forth in Paragraph 4 above apply according to the terms thereof. 10. The parties hereto agree that notice to the plaintiff class is unnecessary. 11. The signatories hereto represent that they have the requisite authority to enter into A this Settlement Agreement. Mona Infield-Plaintiffs-Interior Settlement 8 NOV-8$-_a2 14:_ CIVIL DIV/FED PRO _ L_Oa GiG P.15/'34 11 Coun _el _r l_. hficld and plaLntiffs 1nd Gounael for del=net rots will, i with their cxccu_! _n of_o Settlcrnm_t A_ent, cx_cL_c _2o Oo_t C. der t_ached 1_ tnd arrange for its ir_ _cdi,te filing upon full :eeut_ of the Se,ement A_eat. 13, Cour_ tl for Ms. Infield _nd plentiffs and counJcl for dda_a/mta will, rimuJ t Consent Order ("_ tipulali,n' ) s_ched bet_o. Thc Sp_id Mutor will r_ain until he receivol ! _ficalion from pldntifff Comuel of rece/pt ofth_ ]_t ! required Imder P_ a_h 3(t], At ti:it time, the Spcdal Master will pro,de the to ! r counsel for defcac _ti, who will p:omptly file it, AGI_ED TO BY FOR MONA Il. 11 _'IELD; "Mo'tl_, B. Infiold_ l'lo.cm = [[, P.O. Box 1/464 / Wlmhingt_a, DC 2. :)044.4464 Tel_l_one: (1202) ;_1-6380 / November._.%, 200 Mona luf=kl-_n_ _.lnt_or _'d.me_t 9 FOR THE DEPARTMENT OF THE INTERIOR: Hugo Teufel III Associate Solicitor Department of the Interior NovemberS--, 2002 FOR DEFENDANTS IN THEIR OFFICIAL CAPACITIES: /He)_7__'_za'r,Jr_. _-_'T Scott H. Park Robert S. Libman U.S. Department of Justice Civil Division Federal Programs Branch P.O. Box 883 Washington, DC 20044 Telephone: (202) 514-4964 November _', 2002 Mona Infield-Plaintiffs-Interior Settlement l 0