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1603, Van de Sand against the United States.

[00:00:04] Speaker 00:
Mr. Hanna.

[00:00:09] Speaker 01:
Good morning, Your Honors.

[00:00:11] Speaker 01:
May it please the court, Rod Hanna on behalf of the appellant and the plaintiff below, Gladys Van de Sandy.

[00:00:19] Speaker 01:
This is the second time this case is before Your Honors.

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I believe Judge Newman, in fact, sat on the panel on the first appeal that was done here with regard to a motion to dismiss, which was reversed.

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uh... now we are here before you your honors on a dismissal of the entire case based on two summary judgment decisions of judge grisby of the court of federal claims uh... what exactly is the relief that you want other than them two thousand three calculations we want to reversal your honors of the uh... decisions uh... finding liability of breach at the very least it was that was the only issue the lot whether or not government was

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liable for the breach of the stipulation agreement for damages, whether it was paragraph 14 or paragraph 12 or paragraph 21.

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The fundamental issue was whether or not the government was liable for breach, and our position was that it was undisputed and based upon interpretation of the contract that the government was liable.

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I would like to focus, Your Honors, on paragraph 14, which seems to be like the central dispute here.

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In that regard, let me ask you, I'm scratching my head a little bit about one item here on page three of the government's brief.

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It says, it's a red brief, it says, in the first full paragraph, I'll just read this one sentence, Ms.

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Vandesandi could serve USPS with account and calculated tax consequences for 2003 under paragraph 14 of the agreement.

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subject to paragraph 14 be paid.

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Now, I or one of my colleagues, I'm sure, will ask the government about that.

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But how do you read that?

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Is the government saying, you know, let's start all over again?

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Have you had any conversations in light of this statement?

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We have, Your Honors.

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In fact, we were able to, to some extent, resolve one of the issues, and that was the 2004 tax consequence calculation, which is not before Your Honors.

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But not the 2003?

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The 2003, no, we have not because we have some, I guess, a little bit different issue.

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One of the fundamental, and I think a fundamental misinterpretation of paragraph 14 is this issue that Judge Grigsby found and the government continues to argue that as a condition proceeding to any payment whatsoever by the U.S.

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Postal Service under paragraph 14,

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that my clients and said he had to submit account calculated tax consequence calculations and by certified me by certified males what are some claimants that was what what what your honor to be actually step back and actually look at paragraph fourteen and it's a pages ten eleven of my free i think uh... and exceeding eighty nine ninety pages eighty nine ninety if you look at the language of that paragraph the only mention

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of our client, my client, I'm sorry, having to submit calculations by an accountant is with regard to a 180-day payment requirement.

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If you look further in paragraph 14.

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But she did get the calculations for 2000.

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Ultimately, she did as an alternative argument when they were dealing with, I think, an EEOC issue in 2006.

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That was quite a bit later.

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So putting aside the sort

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silly argument that you can't put it in first class mail as opposed to certified mail.

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Why aren't those calculations enough to just get at least, I know you debate whether or not they cover the full consequences.

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It is one of our arguments, Your Honor, and it's just really a fallback argument to some extent.

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And our position is that they should have paid at least the accountant calculated amount

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back in february of two thousand five when they actually have money is now at stake what is the difference between your position and there is in terms of what's still one of the what's the difference in position while one of our positions was they should pay all the tax consequence of what was that what it says that i just tell us you're really reasonable our reasonable position you're on the reach occurred and this is this is just grounds for reversal itself

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If you look at paragraph 14, once our clients submit- How much money is involved?

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I'm sorry, Your Honor?

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What is the amount that you are claiming?

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At the very least, the breach is not payment of the 30, the exact amount, Your Honor, 33,691 calculated by their account.

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That happened in February of 2005.

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That breach- That was on the page?

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None of that was paid?

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None of that was paid.

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They haven't been paid a penny.

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of the two thousand three tax consequences here we are fifteen years later uh... and they haven't paid one cents uh... even though they had an account they hired an account back in two thousand five calculated what they consider to be the tax liability that was thirty three thousand six hundred ninety one dollars and was that so that's a total tax liability that's what they were claiming was the adverse tax liability if you look at paragraph fourteen so this would be under the government's theory you're saying

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is the 33,000.

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Under their theory, if you don't buy into the all tax liability, as opposed to just average tax liability.

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So the real debate then, what we're talking about, is the interest.

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Is that what you're saying?

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No, we're not talking about the interest, Your Honor.

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Right, because the government doesn't have to pay.

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We're talking about timing.

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Paragraph 14 required, with regard to any tax consequence submission, doesn't have to be a tax accountant, because that was not mandatory.

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under paragraph 14, any.

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And they submitted something in January of 2005 after Mr. Kessler, who was their representative, submitted a letter to Mr. Vandesandi and Mrs. Vandesandi saying, we will not pay you until you provide us with this documentation.

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We have hired a CPA, Mr. Michelson, to handle this.

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And so Mr. Vandisanti, on behalf of his wife back then, submitted all the documentation that Mr. Kessler was asking for, expecting to get paid something.

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It was required to be certified, so did you?

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It was.

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Back then it was.

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Back then it was.

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Back then in January it was sent by certified mail.

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Now again, it was not done by an accountant.

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There was no accountant submission at that time.

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They wanted it certified by an accountant.

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You said it was certified.

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No, it was sent by certified mail.

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I thought that's what you were asking.

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Well, I was then certified by the accountant.

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No, no.

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It wasn't required, Your Honor.

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Paragraph 14 does not require.

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Eventually, you've got an account.

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Eventually, it happened.

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This is what I don't understand.

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As to this piece, why is this piece still out there?

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So the government takes what, like I said, I think is a silly position that because you sent it in the mail rather than certified mail, because really,

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that substantial compliance with the contract should say that just the fact that they got it in the mail is enough.

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But the government's also saying that because you just attached it to your EEOC materials, it wasn't really submitted.

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So why didn't you just submit it?

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I wasn't representing her back then.

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I don't know.

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But in the course of this proceeding, couldn't you have submitted it again?

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we could have but that was part of the whole process again you know we actually the position my client so started what process it once they get it the whole process of making submission of the tax consequence payment that happened back in january two thousand four no but in the contract it says once they get it they have to pay it and they have to pay it within a certain period of time you know when you were back before the court of federal claims you could have said all right at least as to this part

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We're going to send it to you again, and then they would have had to pay it.

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They say right now you could send it to them again and they'd have to pay it.

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That's position, but that's not the way the contract is written, though, Your Honors.

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There is a breach that occurred 45 days after January 10, 2004, and that is regard to the payment of at least the $33,691.

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So what's the damage, though?

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at the very least it hasn't which you could have gotten from the government at any point by submitting that account right but then they will give up all the interest that would have accumulated on that but isn't there a problem with the government having to pay interest there is a problem because paragraph fourteen requires them to pay interest from the date that is due if you look at paragraph fourteen this is it's the only way to really interpret paragraph fourteen

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And I'd like to take you towards the middle of paragraph 14, because it talks about the accountant calculator.

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Judge Grigsby found that as a condition proceeded to the government having to make any payment whatsoever, that there had to be an accountant-prepared tax calculation.

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And that is not what paragraph 14 says.

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Paragraph 14 says, if there is a tax accountant calculated

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a number that's provided by Mr. Vandesani, then the government has 180 days to pay that.

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If you look further in paragraph 14, it says, the agency may only challenge the complainant's submission for tax consequences.

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It doesn't mention or condition it upon an accountant.

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By utilizing the services of another state of Florida licensed certified public account, we shall provide a detailed report as to the agency's calculation of the estimated tax consequences

[00:10:29] Speaker 02:
detailing each disputed amount let me ask you the only reason i'm interrupting here is that time passes more quickly than i realize sometimes and on this figure to follow up a little bit with the question judge newman had about exactly how much is at stake here in vanda sandy one the court of federal claims said that

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on this tax consequences issue, as I understand it.

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It said that the government was only liable for the taxes owed because she would receive her wages and leave payments in a single lump sum.

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And I think, as I understand it, that takes out of play a lot of the money that you were asking for before.

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Now, if we were to affirm that decision in Vanda Sandy 1, to which I just referred, does that mean that all the tax consequences money that we're talking about is this dispute about $33,961 that Mr. Michelson presented, or on the other hand, the $43,000 that your accountant, Mr. Gomez,

[00:11:56] Speaker 01:
came forward am i right on that well also originally what the argument was uh... is that if you look at it not just as adverse tax consequences but all the tax costs she got a a very large sum of money in two thousand three and the tax consequence of that was her tax liability because she didn't do any other without the committee getting back to my question if we if we were to agree with what

[00:12:22] Speaker 02:
the court of federal claims said that i just referred to and then to send one is all that we're arguing about here in terms of tax consequences this thirty three thousand on the one hand forty whatever it is eight thousand dollar difference okay but no i i realize that you dispute and send the one but i just want to make

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sure I understood where we are if we don't agree with you on that.

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Right.

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It is a breach argument that at the very least they should have paid the $33,691 back when it was calculated in February of 2005.

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So when I originally asked you if this was really about interest, you said, no, it's not about interest.

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And then you came back around and said, well, yeah, it is about interest.

[00:13:05] Speaker 01:
Well, it is about the use of the money over time.

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It should have been paid back in February of 2005.

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We're not here specifically arguing over a certain amount of money in interest.

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which is something that would have to be done on a damage calculation if we go back, and it goes back.

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This was just purely a liability issue.

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Did the government, did the Postal Service breach the stipulation?

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They did, because they had 45 days from January 10th to submit Mr. Michelson's calculations to Ms.

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Vandesandi.

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It says it right in paragraph 14.

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They didn't do that.

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They never have.

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But January 10th is when you submitted it without an account.

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right it was submitted because when did you do the accountants one that was back at the end of april two thousand sister mister michaelsons as i have equipment i'm wrong as i understand the record the government received michaelson uh... figures january fifth february fifth february fifth or fifth thousand five and then the you presented your figures

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in april of 2006 and then it's your contention based on a pleading in the court of federal claims that it was only during discovery in the court of federal claims that you received the michelson figures, is that correct?

[00:14:26] Speaker 01:
We actually got it in one of the prior lawsuits that were there was a prior lawsuit in the southern district of florida they produced as part of it these records of mr michelson

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that case yet to thousands of the records somewhere in two thousand seven yet two thousand seven point out around that time uh... but if you look at our fourteen and we're just focusing on paragraph fourteen i know that i'm running out of time but paragraph fourteen required the government when once they hired account to respond to mister and the center miss them send these uh... tax consequence to man you know wasn't done like an account and

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They then had 45 days from that date to submit to Ms.

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Vanessandi their accountant's calculations.

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And then after that, if there was any disagreement on the tax consequences, any, not only the accountant calculated tax consequences, any disagreement on the tax consequences, the agency shall be required to make timely payment of the non-disputed portion of the tax consequence payment.

[00:15:33] Speaker 01:
They never did that.

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So that's a breach in and of itself, right then and there.

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And that's going back to February.

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Even if we're just talking about $33,000.

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Even if we're talking about Mr. Vanessanti's, Ms.

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Vanessanti submitting $100-something thousand dollars, they then got an accountant and said, well, this is what we think it should be, $33,691.

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And then they had 45 days from that point in time to submit that to Ms.

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Vanessanti.

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So that was the non-disputed portion.

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Well, that's undisputed.

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They never did.

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They never did the 45 days.

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They never paid her.

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Then they had to pay her at least what was agreed upon, that their accountant agreed upon, which was the $33,691.

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They never did that.

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They never paid her a penny.

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And what was their explanation for not paying her that amount?

[00:16:15] Speaker 01:
No explanation whatsoever at that time.

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They never told Ms.

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Vandesandi that you have to, before we can pay you, you have to get an accountant to calculate your adverse tax consequences.

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That was not done until much later in 2006, when the EEOC took that position.

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in a decision and handed the government an argument.

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It was 2006, I think it was March of 2006, when the EEOC decided, and it had to do with the 2004 calculations, that you have to submit it through an accountant, Ms.

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Vanda Sandy.

[00:16:49] Speaker 03:
Well, what's your response to the government's position that by filing the lawsuit, you somehow stopped the process?

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We didn't stop the 45-day process.

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That was done well.

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The lawsuit was filed well after the 45 days and paying the nondisputed amount.

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That happened long after.

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That was back in the later part of 2005.

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They had a four to five day window to give Ms.

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Vanessanti their accounts calculations.

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They failed to do that.

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They then had to pay Ms.

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Vanessanti the undisputed amount, which they knew about back in February of 2005, which was $33,691.

[00:17:22] Speaker 01:
They didn't do that.

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So right then and there, there's a breach of paragraph 14 to preclude summary judgment.

[00:17:29] Speaker 02:
One question that I want to ask you, assume it comes down to this.

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We have the government figure of $33,691, and then we have the Gomez figure that's about $8,000 more.

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Are you willing to simply accept, for purposes of resolving the case, the $33,000 figure?

[00:17:48] Speaker 01:
Certainly.

[00:17:48] Speaker 01:
Certainly, at this time, because I think that's a breach in and of itself.

[00:17:52] Speaker 00:
OK.

[00:17:52] Speaker 00:
Well, let's hear from the government.

[00:17:54] Speaker 00:
We'll save you a rebuttal, John.

[00:17:56] Speaker 01:
Thank you.

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Thank you, Your Honors.

[00:18:01] Speaker 00:
Mr. Hoffman, that was quite a concession we just heard.

[00:18:03] Speaker 00:
Does that end the case?

[00:18:05] Speaker 04:
Well, good morning, Your Honor.

[00:18:07] Speaker 04:
May it please the Court.

[00:18:08] Speaker 04:
As far as, I think it's important to understand where we are in this case, going to your question about the sentence, Your Honor.

[00:18:14] Speaker 04:
I mean, that is where that case is.

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What the Court of Federal Claims held below is that when Ms.

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Vandesandi provides an account in calculated tax consequence, paragraph 14 will start, and the government is still obligated under paragraph 14.

[00:18:29] Speaker 04:
So that was something that they won below and that's not on appeal.

[00:18:32] Speaker 04:
So that's not really a concession here, Your Honor.

[00:18:35] Speaker 03:
Why haven't you paid it?

[00:18:37] Speaker 03:
This is the thing I don't get.

[00:18:39] Speaker 03:
I mean, there's no dispute over this $33,000.

[00:18:43] Speaker 03:
You have your own calculations.

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You admit that your accountant came up with at least that much.

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So why hasn't that been paid?

[00:18:53] Speaker 03:
You could even have paid it and say that we're not admitting any liability as to anything else.

[00:18:59] Speaker 03:
It's very specific that it's just got to be paid.

[00:19:03] Speaker 04:
Right, Your Honor.

[00:19:04] Speaker 04:
Two parts to that.

[00:19:05] Speaker 04:
First part, as far as the calculations, and everybody's been talking about the $33,000 figure.

[00:19:10] Speaker 04:
What that was based on is submissions by Ms.

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Vandesandi.

[00:19:14] Speaker 04:
And as is reflected in our brief, most of those calculations were performed based on tax documents, except for one year, that weren't filed.

[00:19:24] Speaker 04:
In discovery below, based on a successful motion to compel,

[00:19:29] Speaker 04:
We figured we got the tax documents.

[00:19:33] Speaker 04:
They don't have any more, the Van De Sandies do not have any more, the actual tax records.

[00:19:37] Speaker 04:
We had to go and get the tax transcripts.

[00:19:40] Speaker 04:
And if you compare the tax transcripts, what you see is what they submitted, their total tax burden was $123,000 or $133,000.

[00:19:48] Speaker 04:
They submitted it multiple times, it changed by $10,000.

[00:19:52] Speaker 04:
But when you see what they actually paid, which was finalized a couple months after they filed their suit at the Court of Federal Claims,

[00:19:58] Speaker 04:
Their actual tax burden for that year was about $85,000.

[00:20:01] Speaker 04:
So although it's sort of been presented as, oh, this was all known, this was all accepted, that's not actually the case, Your Honor.

[00:20:10] Speaker 04:
And then there was this.

[00:20:12] Speaker 03:
But seriously, the government has been fighting for 15 years.

[00:20:16] Speaker 03:
Yes, Your Honor.

[00:20:16] Speaker 03:
15 years not to pay this woman.

[00:20:19] Speaker 03:
I get the fact that they didn't like the fact that she won at the EEOC and that these payments were made.

[00:20:27] Speaker 03:
They've got to pay those even under the government's theory of what tax consequences are.

[00:20:33] Speaker 03:
Why didn't the government just say, let's figure this out and let's get this part paid?

[00:20:37] Speaker 04:
I think that's correct, Your Honor.

[00:20:39] Speaker 04:
But here's the premise that that is lying on.

[00:20:41] Speaker 04:
What that premise is lying on is that at that time, and we're going back to around the 04, 05 time frame, is that at that time, everything was clean and everybody knew exactly what was going on and everybody was operating pursuant to paragraph 14.

[00:20:56] Speaker 04:
If you look in my brief, your honor, in the facts section, you'll see around the end of 2004 and then into 2005, there is paperwork flying back and forth all over the place.

[00:21:06] Speaker 04:
There's a dispute over whether or not they submitted the tax consequences in March of 2004.

[00:21:12] Speaker 04:
And then they say October of 2004.

[00:21:14] Speaker 04:
And then they make multiple filings on January 10th to the EEOC.

[00:21:19] Speaker 04:
So at this point, although hindsight being 20-20, the Postal Service probably should have said, well, OK, we're going

[00:21:25] Speaker 04:
We're going to stay in paragraph 14.

[00:21:26] Speaker 04:
We're going to give her whatever she has.

[00:21:28] Speaker 04:
The fact is there was a tremendous amount of confusion created by Ms.

[00:21:32] Speaker 04:
Vanda Sandy pursuing multiple avenues of recovery.

[00:21:37] Speaker 03:
I just can't even fathom how many government resources have been spent on this when you could sit down in a 15 year timeframe and reach a resolution.

[00:21:49] Speaker 04:
Well, your honor, but I think that's also

[00:21:52] Speaker 04:
Incorrect if you if you recall your honor from their complaint.

[00:21:55] Speaker 04:
They were they were not only figured something out in 15 years Well, your honor I don't think we could have your honor given their position that they were owed their entire tax Consequences which in their complaint they alleged as three hundred thousand dollars and they were also alleging that she was properly Improperly terminated and that she should have gotten her full pay from when she was terminated all the way going up until today, right

[00:22:15] Speaker 04:
So when you narrow it down to that little issue, Your Honor, I completely agree.

[00:22:20] Speaker 04:
The government's behavior seems unreasonable.

[00:22:23] Speaker 02:
Let me ask you this.

[00:22:25] Speaker 02:
Let's assume for the moment we agree with you on the decision in Van De Sandy 1 that she's only entitled to a limited amount of tax consequences payments.

[00:22:38] Speaker 02:
Assume we agree with you on her termination claim that she was improperly terminated.

[00:22:45] Speaker 02:
And assume we agree with you that she wasn't entitled to be reinstated, okay?

[00:22:51] Speaker 02:
Those are the other issues, right?

[00:22:52] Speaker 02:
Yes, sir.

[00:22:53] Speaker 02:
Assume we agree with you on all of those.

[00:22:55] Speaker 02:
And all that's left then is the issue about the 2003 taxes, okay?

[00:23:02] Speaker 02:
Yes, sir.

[00:23:03] Speaker 02:
Under those circumstances, to resolve this lengthy litigation, forgetting the ill feelings between the Postal Service and everybody in the past, would the government just be willing to pay

[00:23:15] Speaker 02:
is 33,000 to resolve it, given the premise I gave you about you're prevailing on all those other things.

[00:23:21] Speaker 04:
Yes, your honor.

[00:23:21] Speaker 04:
And I can give you an example.

[00:23:22] Speaker 04:
That's essentially what happened with the 2004 tax consequences.

[00:23:26] Speaker 02:
So in other words, you're saying if you win on those three issues I mentioned, the government is prepared, I'm not going to say today, but the government is prepared to give her the 33,691 that Mr. Michelson came up with.

[00:23:40] Speaker 02:
Granted, I understand you say,

[00:23:42] Speaker 02:
He did that based on figures that weren't up to snuff in terms of actual tax things.

[00:23:49] Speaker 02:
But to resolve it, would the government be willing to pay that?

[00:23:52] Speaker 04:
Your Honor, if this case is affirmed and the Postal Service receives an amount like that, the Postal Service is not going to... What do you mean, receives an amount like that?

[00:24:01] Speaker 04:
Because it'll have to be submitted, Your Honor.

[00:24:04] Speaker 03:
Yeah.

[00:24:04] Speaker 03:
So this is the other thing.

[00:24:05] Speaker 03:
You've got the tax accountant, you've had the accountant

[00:24:11] Speaker 03:
calculations of the 33,000 since 2005, right?

[00:24:16] Speaker 03:
Now, you keep saying, well, it all got confused.

[00:24:18] Speaker 03:
But the reality is when a party has an affirmative obligation under a contract, it doesn't excuse a breach if you say someone else wanted more under the contract, the other party wanted more.

[00:24:33] Speaker 03:
You still have to comply with your affirmative obligation under the contract.

[00:24:38] Speaker 03:
No, Your Honor, I understand, but also... So you're saying we've got to start all over, even though you've got her account and calculations, your account and calculations, and you won't just make the payment?

[00:24:52] Speaker 04:
Your Honor, the court held below that Ms.

[00:24:54] Speaker 04:
Vandesandi has to submit account and calculated tax consequences.

[00:24:58] Speaker 03:
So in order to comply with that holding... And why isn't the fact that she submitted to the government in connection with her EEOC proceeding

[00:25:08] Speaker 03:
Why wasn't that substantial compliance with the contract?

[00:25:11] Speaker 04:
Because your honor, those were based on the documents that I described earlier, which were unfiled.

[00:25:15] Speaker 03:
Well, it doesn't say what it says is she has to have an accountant that does the assessment and submits it.

[00:25:22] Speaker 03:
Correct.

[00:25:23] Speaker 03:
Right.

[00:25:23] Speaker 03:
And you have one opportunity to challenge that.

[00:25:25] Speaker 03:
And you went ahead and you got your own calculations, though you didn't turn them over to her.

[00:25:30] Speaker 03:
And so you've already made that addition, that separate calculation.

[00:25:36] Speaker 03:
And the contract says,

[00:25:37] Speaker 03:
that the undisputed amount has to be paid within 45 days.

[00:25:41] Speaker 04:
Yes, Your Honor.

[00:25:41] Speaker 04:
Our calculations were made, just to be clear, our calculations were made in 2005.

[00:25:47] Speaker 04:
Her calculations were not submitted later until 2006 under the EEOC construct.

[00:25:52] Speaker 03:
So you've had both.

[00:25:53] Speaker 03:
Yes, Your Honor.

[00:25:55] Speaker 03:
That's correct.

[00:25:56] Speaker 03:
Since at least 2006.

[00:25:58] Speaker 04:
Yes, Your Honor.

[00:25:58] Speaker 04:
April 2006.

[00:25:59] Speaker 03:
And you're saying that even today, you wouldn't consider paying your numbers

[00:26:06] Speaker 03:
until she resubmits, presumably under a different mailing version, the same material?

[00:26:13] Speaker 04:
Your Honor, I wouldn't say I wouldn't consider it.

[00:26:15] Speaker 04:
That would take us outside the construct of the case.

[00:26:18] Speaker 04:
It would have to be pursuant to a settlement agreement, Your Honor, because the government is not going to wind up back in court over this, Your Honor.

[00:26:25] Speaker 04:
We do not want to be back in court over this.

[00:26:27] Speaker 04:
We want a final judgment and a payment pursuant to that final judgment, Your Honor.

[00:26:31] Speaker 02:
What if we said, what if an opinion came down that said,

[00:26:35] Speaker 02:
government wins on parameters of tax consequences.

[00:26:41] Speaker 02:
The government wins on no reinstatement and the government wins on her termination argument.

[00:26:49] Speaker 02:
Okay.

[00:26:51] Speaker 02:
And then we said, we deem everything to have been properly submitted when you put together what happened in 06 and then the

[00:27:04] Speaker 02:
that we deem that a proper submission, a substantial compliance, so that what you then have before you is the 33,000, which Mr. Hanna said he's prepared to accept.

[00:27:18] Speaker 02:
Would that be the end of the case?

[00:27:22] Speaker 02:
I mean, all good things must come to an end.

[00:27:24] Speaker 04:
No, Your Honor.

[00:27:25] Speaker 04:
I mean, I think, Your Honor, I guess my caution with that, Your Honor, I believe, is that based on that being a substantial compliance, I think there would be additional

[00:27:34] Speaker 04:
arguments to be made on plaintiff's behalf because that wouldn't be 100% consistent with what was decided below.

[00:27:42] Speaker 03:
In affirmance, however... But Court of Appeals is allowed to say that what was decided below was wrong.

[00:27:48] Speaker 03:
Isn't that why we're here?

[00:27:50] Speaker 04:
Yes, Your Honor.

[00:27:50] Speaker 04:
Yes, Your Honor.

[00:27:51] Speaker 04:
I'm just saying, what he asked... I'm sorry, Your Honor.

[00:27:54] Speaker 04:
What I understood his question to be is, would that be it?

[00:27:57] Speaker 04:
Would it be the $33,000?

[00:27:58] Speaker 04:
And sitting here today, I haven't thought all the way through it, but I don't think that would be

[00:28:02] Speaker 04:
because I believe there would be other paragraphs that would come into effect and would cause additional damages that would have to be resolved.

[00:28:10] Speaker 00:
You're saying that if the other paragraphs came into effect, the liability would be less, it might be more.

[00:28:17] Speaker 04:
That's what I'm saying, Your Honor.

[00:28:18] Speaker 04:
I think it would be more.

[00:28:21] Speaker 00:
We have an offer for Mr. Hanna that I thought when you first stood up, you accepted.

[00:28:28] Speaker 04:
Yes, Your Honor.

[00:28:31] Speaker 00:
Yes or no?

[00:28:32] Speaker 04:
Yes, Your Honor.

[00:28:33] Speaker 04:
The Postal Service, in order to be done with this case, would pay that amount.

[00:28:38] Speaker 04:
But the Postal Service, again, based on the long-going... The Postal Service wants finality.

[00:28:45] Speaker 04:
The Postal Service, that is its number one goal.

[00:28:47] Speaker 04:
It wants finality.

[00:28:49] Speaker 03:
Well, I think you guys ought to go out in the hallway.

[00:28:51] Speaker 03:
I mean, my district court hat is getting on here.

[00:28:55] Speaker 03:
Why don't we just negotiate the settlement right now?

[00:28:59] Speaker 04:
I will represent to your honor that there were past negotiations and that there were obstacles that were hit.

[00:29:05] Speaker 00:
You think we should recess?

[00:29:10] Speaker 02:
We will ask Mr. Hen a little bit on rebuttal, Mr. Hump.

[00:29:14] Speaker 02:
Because I mean, I think the government has a very strong case in all those other points that I sort of went through.

[00:29:22] Speaker 02:
And maybe that's the way, with those out of the way, there's

[00:29:27] Speaker 02:
maybe less than meets the eye.

[00:29:29] Speaker 02:
But we'll see.

[00:29:29] Speaker 02:
See what Mr. Hanna has to say.

[00:29:31] Speaker 00:
We'll finish with the Governor.

[00:29:32] Speaker 00:
We'll save you rebuttal time, Mr. Hanna, not to worry.

[00:29:36] Speaker 00:
Do you want an answer from Mr. Hanna now?

[00:29:38] Speaker 02:
Oh, no, no, no.

[00:29:39] Speaker 02:
I was just... No, I was just... You don't need to hear from me.

[00:29:42] Speaker 00:
It's fine.

[00:29:42] Speaker 00:
We'll hear from you in a few moments.

[00:29:45] Speaker 00:
Please be seated.

[00:29:47] Speaker 04:
Your Honor, as I believe, we've touched on a lot of the points here.

[00:29:51] Speaker 04:
I guess the only ones that I would

[00:29:55] Speaker 04:
also bring to the court's attention is there is the issue of paragraph 21, and that was properly dismissed as implausible based on Ms.

[00:30:03] Speaker 04:
Van Sandy having never identified any specific loss benefits or corresponding damages that could result from early termination of her LWOP status.

[00:30:12] Speaker 04:
And again, I just want to be clear sitting here today that my concern with a resolution that would

[00:30:25] Speaker 04:
uh... say the two thousand six submission was substantial compliance first all i think i think uh... the court federal claims got one hundred percent correct that that needs to be viewed in the context of when it was submitted uh... the the court uh... in prior questioning has been uh... focused on the issue of the uh... of the of how the letter was sent uh... and that that you know that is an issue but the bigger issue is sort of when that's still an issue that's the silliest issue i've heard well yes you don't deny receiving it

[00:30:53] Speaker 04:
That's correct, Your Honor.

[00:30:54] Speaker 04:
But again, I'm getting to the more substantial issues, which is the issue that was submitted in the context of an EEOC case.

[00:31:04] Speaker 04:
And given what had happened with the parties up to that point, the Postal Service simply did not view that as a restart of the paragraph 14 process.

[00:31:15] Speaker 04:
And more importantly, four months later, so we're four months forward of having received that, Your Honor.

[00:31:21] Speaker 04:
And again, we agree that we received it.

[00:31:23] Speaker 04:
Four months after that, they went to district court and they filed a complaint that sought all tax consequences.

[00:31:31] Speaker 04:
So that was within four months.

[00:31:32] Speaker 04:
So despite having received that and our being within our 180 days to pay it, within four months they had gone to district court.

[00:31:40] Speaker 03:
I still don't understand why that resolves your obligation to pay.

[00:31:45] Speaker 03:
Just because they want more doesn't mean you don't owe what's clearly stated in the agreement.

[00:31:53] Speaker 04:
Well, Your Honor, at that point also there was at least one, yes, there was one EEOC decision that had already, that had decided that the government's obligations under the contract were met and that any further obligations were extinguished.

[00:32:07] Speaker 04:
So I think that the Postal Services actions have to be considered in light of that holding by the EEOC as well.

[00:32:14] Speaker 04:
For all these reasons and the reasons presented in our response brief, we respectfully request that the Court affirm the Court of Federal Claims decision.

[00:32:22] Speaker 00:
comment, although we haven't consulted.

[00:32:25] Speaker 00:
It is not impossible that this panel will decide we're going to end this case.

[00:32:33] Speaker 00:
In which case we already have an offer.

[00:32:36] Speaker 00:
We have a concession.

[00:32:38] Speaker 00:
There are certain aspects in the back of my mind, interest in others that haven't yet been put on the table.

[00:32:45] Speaker 00:
And yet your position as you sit down

[00:32:50] Speaker 00:
is that the government should be affirmed on all grounds?

[00:32:54] Speaker 04:
Yes, Your Honor.

[00:32:54] Speaker 04:
And I just want to be clear, in affirmance, we are going to pay them, Your Honor.

[00:32:58] Speaker 04:
We are absolutely going to pay them in the affirmance.

[00:33:01] Speaker 00:
You haven't paid in 15 years.

[00:33:04] Speaker 00:
So we now, you say, are you setting a time limit on when you will make that payment?

[00:33:11] Speaker 04:
Your Honor, when we get that, when we did it for 2004, Your Honor, I don't have the calendar in front of me, but I believe when we received

[00:33:18] Speaker 04:
their letter for the 2004 tax consequences, I want to say we had them paid in 45 days, Your Honor.

[00:33:22] Speaker 00:
Well, that's a start.

[00:33:24] Speaker 00:
All right, let's hear from Mr. Hannah.

[00:33:27] Speaker 02:
Hannah, let me ask you.

[00:33:29] Speaker 02:
You heard the colloquy with Mr. Hoffman.

[00:33:32] Speaker 02:
Let's assume that, number one, the court agrees with the government on Van De Sandy 1, what the limits of the tax consequences liability are.

[00:33:45] Speaker 02:
Let's assume number two, we agree with the government on, and I can only speak hypothetically.

[00:33:50] Speaker 02:
We agree with the government on the reinstatement point and we agree with the government on the termination point.

[00:33:58] Speaker 02:
Okay.

[00:33:59] Speaker 02:
You, contrary to what you're arguing, you would lose on those points.

[00:34:04] Speaker 02:
But then are you willing under that circumstance to then accept with no ifs, ands or buts the 33,691

[00:34:15] Speaker 01:
mister michelson proposed in the case this question client willing to accept that i i i probably intellectually probably would to some extent uh... your honor uh... if you look at paragraph fourteen i think the remedy that was fashion was too uh... understand the fundamental dispute between all tax consequences adverse tax consequences which i think what you're saying your honor is that and saying one

[00:34:45] Speaker 01:
i don't think that there are a lot of that point which is consistent probably you'll see rulings on this issue uh... but i think the issue of fundamental breach of this agreement paragraph fourteen in particular was as your honors have pointed out not doing the government not taking upon itself to do it was supposed to paragraph fourteen which was at the very least at that time when it was calculated back in february two thousand five

[00:35:14] Speaker 01:
paying to miss fans and the undisputed amount which was thirty three thousand six ninety one later on the status of the group and council submitted their own tax consequence calculations from other account that was in april end of april two thousand six uh... which was submitted to mister kessler who was the representative it was received by him uh... you know we said we would say we would say we we agree with you on that didn't agree with anything else

[00:35:43] Speaker 01:
uh... there's also the issue about uh... paragraph fourteen also requires payment of the tax consequences of the tax consequence paying well let's assume that would she would get this year that they would have to pay for that that would that was that what i think you lose on if we use for the firm and said one note that the paragraph actually says not only are you to get the tax consequence payment but also the tax consequence payment

[00:36:08] Speaker 01:
for the tax consequences of the tax consequence payment that could go on forever is a little yes a little bit convoluted are could the case be resolved it's especially could be resolved yesterday thirty three six ninety one yes i'd probably recommended but i i think the issues whether or not there was a breach the interpretation of her fourteen by the judge to set a condition absolute condition preceding of the

[00:36:35] Speaker 01:
of the accountant calculated tax consequences as being a way for the government not to pay anything which i think is wrong i think that's just a wrong decision uh... that they still had an obligation to which they did and they were acting consistently with that without my interpretation of the contract they're acting consistently because they went and hired an accountant even though mr vanesanti and ms vanesanti had not submitted account calculations they're supposed to pay your accountant did they do that

[00:37:05] Speaker 01:
no they haven't paid a dime, they haven't paid a single penny fifteen years later at the very least there was a breach there, there should have been liability at least on paragraph fourteen it was misinterpreted by Judge Grigsby with all due respect to her that argument about as a condition proceeding having Ms.

[00:37:27] Speaker 01:
Vanesanti submit tax calculations by an accountant that fell into their laps when the EEOC made this decision

[00:37:35] Speaker 01:
in March 2006.

[00:37:38] Speaker 01:
Prior to that time they never sent one letter to Ms.

[00:37:41] Speaker 01:
Vanessandi saying, we're not going to pay you until you first submit to us calculations by your accountant.

[00:37:48] Speaker 01:
They never said that.

[00:37:49] Speaker 01:
They just made it seem like they're going to pay her because they hired their own accountant who's going to make his own calculations.

[00:37:54] Speaker 01:
And Ms.

[00:37:55] Speaker 01:
Vanessandi and Mr. Vanessandi provided all the documentation they requested.

[00:37:59] Speaker 01:
Mr. Kessler requested all of it.

[00:38:01] Speaker 02:
Both you and Mr. Hoffman seem very accommodating and

[00:38:05] Speaker 02:
reasonable.

[00:38:06] Speaker 02:
So perhaps we can get back to the era of good feelings that seem to prevail between where Mr. Kessler and Mr. Van Sandy got into their differences.

[00:38:16] Speaker 02:
Yeah, sure, sure.

[00:38:17] Speaker 02:
Perhaps.

[00:38:18] Speaker 02:
Perhaps.

[00:38:19] Speaker 01:
Hopefully.

[00:38:20] Speaker 01:
If I was back then, it would have been handled differently as their lawyer.

[00:38:24] Speaker 01:
But here we are 15 years later, Your Honor.

[00:38:27] Speaker 00:
Any more questions?

[00:38:28] Speaker 00:
Thank you, Your Honor.

[00:38:31] Speaker 00:
Thank you, and thank you both.

[00:38:32] Speaker 00:
The case is taken under submission.