[00:00:02] Speaker 01:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:07] Speaker 01:
God save the United States and this Honorable Court.

[00:00:13] Speaker 05:
Good morning, everyone.

[00:00:14] Speaker 05:
The first argued case this morning is number 20, 1902, Doe against the United States.

[00:00:23] Speaker 05:
Mr. Morris.

[00:00:25] Speaker 01:
Good morning.

[00:00:25] Speaker 01:
Thank you so much, Your Honors.

[00:00:27] Speaker 01:
Christopher Morris on behalf of Appellant John Doe.

[00:00:30] Speaker 01:
May it please the Court.

[00:00:32] Speaker 01:
There are two salient questions, I think, that the panel needs to grapple with and wrestle with in this case.

[00:00:38] Speaker 01:
The first one being, did the deactivation of the appellate John Doe in April of 2008 put him on notice such that the claims that are at issue today accrued under the definition of accrual in SAR 33.201?

[00:00:55] Speaker 01:
Second question being,

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Assuming that it did, does the Continuing Claims Doctor continue to told the statute such that this claim and complaint should continue and survive?

[00:01:12] Speaker 04:
Well, Counsel, you didn't argue the Continuing Claims issue in the Claims Court and therefore it didn't decide it and so that's not properly before us, is it?

[00:01:25] Speaker 01:
Well, Your Honor, it's a good question.

[00:01:27] Speaker 01:
You know, I don't think that we use the talismanic phrase, continuing claims, but we did argue and argue substantially the continuing claims doctrine in that these claims continue to accrual.

[00:01:39] Speaker 01:
What he was told at the time that he signed the deal was that it would be not only the direct consequences of the direct forfeitures that he was involved with, but also the tendrils of all of his information that he was giving.

[00:01:53] Speaker 01:
And if you look at our

[00:01:56] Speaker 01:
reply brief pages 12 to 17, we argued extensively, excuse me, we probably, pages seven to 14, we argued extensively the different, probably 27 different entries where we argued this factual basis that these claims continue to accrue down the line and that the tingles of this information continue to potentially lead to captures and forfeitures.

[00:02:21] Speaker 02:
So we may not have used it.

[00:02:23] Speaker 02:
Council, this is Justice Dole.

[00:02:24] Speaker 02:
I see where in your gray brief you've identified some quotes for us, as you just mentioned.

[00:02:31] Speaker 02:
And you definitely repeatedly assert the fact that there could be new leads or compensation all the way down the line.

[00:02:39] Speaker 02:
But I don't see where in anything in this gray brief and any of the quotes you've identified, I don't see where there's a legal theory.

[00:02:46] Speaker 02:
expressed for why the statute of limitations should be treated differently and not as a one-time event, instead should be, you know, even something, even if you didn't use the word continuing claim doctrine, I don't even see where you evoked the concept of it other than just alleging a fact about the contract.

[00:03:10] Speaker 02:
Could you address that, please?

[00:03:12] Speaker 01:
Sure.

[00:03:13] Speaker 01:
So what we addressed was that as these claims continued to accrue, potentially, and discovery would hopefully reveal that, that the statute would start again.

[00:03:23] Speaker 02:
I mean, you've got... We don't know when... I don't see... This is Judge Stoll again.

[00:03:29] Speaker 02:
I simply don't see that in the quotes you provided in your gray brief or elsewhere in the record.

[00:03:35] Speaker 02:
So, if you have an example, for example, I'd love to see it.

[00:03:39] Speaker 02:
I want to make sure that I give your argument full consideration.

[00:03:42] Speaker 02:
Thank you.

[00:03:44] Speaker 01:
Sure.

[00:03:44] Speaker 01:
So, if you look at Appendix 77 through 78, Mr. Doe in this case was told that the asset forfeiture cases take a long time.

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Just because they were able to seize the money doesn't mean that they were able to then disperse the money.

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And that whoever the person against whom that money was seized could file all sorts of motions in the hope of the seizure and disbursement of funds for years and years.

[00:04:07] Speaker 04:
But a continuing claim argument implies that it keeps accruing with subsequent events accrue a new period, a new actionable claim.

[00:04:23] Speaker 04:
And that, as Judge Stoll suggests, that's not here.

[00:04:30] Speaker 01:
Well, I think if you look at Appendix 78, Mr. Doe was told that the tendrils of his information could be wide-reaching and could result in arrests and forfeitures and seizures years and years down the road, which would then be subject again to the forfeiture due process proceedings that are available to persons against whom money and assets are seized.

[00:04:53] Speaker 01:
So I mean, even though we didn't say continuing claims, we talk about how these are going to lead to new forfeitures and new seizures.

[00:05:03] Speaker 01:
And that's why he continued to believe that as these accrued, that he would be given the chance to his commissions or his deal would be in effect.

[00:05:12] Speaker 02:
Is there some place in the record, counsel, this is Judge Stoll again, is there some place in the record where you tie this alleged fact to the statute of limitations?

[00:05:25] Speaker 01:
Well, I think that's kind of the crux of the entire argument that we were making down below was that each of these claims as they came up would, again, be subject to the forfeiture proceedings and the due process proceedings and would take time and restart the statute of limitations clock.

[00:05:43] Speaker 01:
Even though we didn't say continuing claims, that was the crux of the entire argument was that, hey, these things are going to be coming up.

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There's going to be new arrests, new investigations.

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Your information is going to have tendrils that are going to then restart.

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And I think that's what we're asking for is just a chance in discovery to look at those new cases, new forfeitures and new investigations and determine whether or not they do fit within the six-year rule.

[00:06:09] Speaker 02:
Council, am I correct that the hearing pages on which you referred us to, pages A77 and A78, relate to a hearing that also involved a question of whether a contract existed?

[00:06:22] Speaker 02:
I mean, there isn't...

[00:06:24] Speaker 02:
That statute of limitations was certainly not the only issue being discussed in that hearing, right?

[00:06:30] Speaker 01:
That's true.

[00:06:31] Speaker 01:
That's true, yes.

[00:06:31] Speaker 01:
That involved whether or not a contract had been formed and whether or not the contract would be barred by the statute.

[00:06:38] Speaker 02:
Is there anything in the complaint about the continuing claims, doctor?

[00:06:43] Speaker 01:
Well, I think in the complaint we talk about that this was just a... Let me see.

[00:06:49] Speaker 01:
Hold on there.

[00:06:53] Speaker 01:
Yes, I think if you look at page eight of our reply brief, we cite the agreement also included a provision where should plaintiff's information lead ice to more information, plaintiff would be entitled to percentage of all seizures pursuant to those new leads all the way down the line.

[00:07:07] Speaker 01:
And that's appendix 20 to 21.

[00:07:11] Speaker 05:
Well, to get to the substance of the argument and accepting for the purpose of what I want to ask you that the idea of continuing claims which certainly has a basis in law, even so, would

[00:07:32] Speaker 05:
Your client, is he claiming entitlement to anything that may have been earned earlier than six years before this complaint was filed?

[00:07:43] Speaker 01:
Yes, Your Honor.

[00:07:45] Speaker 01:
Thank you for the question.

[00:07:46] Speaker 01:
And that goes back to the accrual question.

[00:07:49] Speaker 01:
And that question, I think, supersedes the continuing claims doctrine because you have to be put on notice with the continuing claims doctrine to kick in.

[00:07:58] Speaker 01:
And you have to look at what happened in 2008.

[00:08:01] Speaker 01:
And in April of 2008, if you look directly at the notice that was given to him, and that's at Appendix 44, it's entitled Deactivation Notice.

[00:08:12] Speaker 01:
It is entitled Deactivation Notice.

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So he was deactivated as a CI.

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But it doesn't say repudiation of your ongoing deal, repudiation of your past deal, and we're not going to honor the service that you've already rendered.

[00:08:26] Speaker 01:
It just says you are hereby deactivated.

[00:08:30] Speaker 01:
He was told, as far as the one seizure that he was paid a down payment on, that that particular arrest fee was turned into a CI.

[00:08:42] Speaker 01:
And so that's why he didn't pursue it because he figured that the forfeiture of that particular person may not be taken to effect and may not, you know, he may get his stuff back if he's turned into a CI, at least the cash part.

[00:08:59] Speaker 01:
And so that's what he was told when he inquired was that that arrestee has been turned into a CI.

[00:09:05] Speaker 01:
So simply deactivating him as a CI wouldn't put him on notice that his deal was somehow being revoked or repudiated.

[00:09:12] Speaker 05:
Well, there's this gap of nonetheless we have six years to work with and whether it's the idea that the earlier collections were the

[00:09:27] Speaker 05:
the substantial ones so that unless they're included, somehow there isn't enough substance to proceed.

[00:09:37] Speaker 05:
The purposes of statutes of limitations are pragmatic and realistic, the preservation of information and evidence.

[00:09:51] Speaker 05:
And so if, in fact, accepting that there is a period for which the statute is not run as to what's included in the potential claim for that period.

[00:10:09] Speaker 01:
Thank you for the question, Your Honor.

[00:10:10] Speaker 01:
I think under the FAR, in order for the statute to begin to run at all, there has to have

[00:10:17] Speaker 01:
the claims or facts that were known or should have been known to the claimant such that he was put on notice.

[00:10:26] Speaker 01:
So I don't see that six-year statute as a statute of repose, meaning anything previous to six years is dead regardless of notice.

[00:10:33] Speaker 01:
I think it's under the FAR 33.20.

[00:10:35] Speaker 01:
The statute doesn't begin to run at all until there's facts known or should have been known to the claimant.

[00:10:43] Speaker 01:
I think that we can go back to the 2008 claim.

[00:10:46] Speaker 01:
Was that a beep?

[00:10:49] Speaker 04:
That was a beep, but I have a question.

[00:10:51] Speaker 04:
This is Judge Laurie.

[00:10:54] Speaker 04:
The government denies that there was a contract at all, except on confidentiality.

[00:11:00] Speaker 04:
And I know you said you couldn't keep a copy, but apparently there isn't a copy on record and the government says there wasn't a contract.

[00:11:11] Speaker 01:
Well, I think in footnote five of the government's brief, they state that that is not an issue ripe on appeal.

[00:11:18] Speaker 01:
But I would like to address that issue, which is under the cases cited in our brief, it's pretty clear that a contract with the government can be both written and oral.

[00:11:27] Speaker 01:
And in this case, he did perform and he was paid and he did sign an agreement.

[00:11:33] Speaker 01:
So together with those documents, together with what was told to him and what his testimony will be,

[00:11:38] Speaker 01:
I think will be sufficient for there to be a finding of a contract.

[00:11:42] Speaker 01:
And we just like the opportunity to present that evidence and discover that evidence.

[00:11:47] Speaker 01:
They do.

[00:11:48] Speaker 01:
Go ahead.

[00:11:49] Speaker 01:
I'm sorry.

[00:11:50] Speaker 02:
Oh, this is Judge Scholl.

[00:11:51] Speaker 02:
I just wanted to ask one other question, which is the court found that Mr. Doe's threat to take legal action in April of 2008 shows that he knew that, you know, he had a claim at that point.

[00:12:04] Speaker 02:
How do you respond to that?

[00:12:07] Speaker 01:
Well, I think threatening to sue legal action for what was due.

[00:12:10] Speaker 01:
And then you have to also look at what he was told, which was that particular arrestee was turned into a CI.

[00:12:16] Speaker 01:
And so that is what told.

[00:12:18] Speaker 01:
And they told them it would take years and years down the road for these things to come to fruition.

[00:12:22] Speaker 01:
So I think that he was upset when he was terminated, said, I should sue for what you've already taken from me.

[00:12:27] Speaker 01:
And the guy said, whoa, whoa, wait a minute.

[00:12:29] Speaker 01:
That guy's turned into a CI already.

[00:12:30] Speaker 01:
So this really, who knows?

[00:12:34] Speaker 01:
what, you know, how long that's going to take.

[00:12:36] Speaker 01:
And that was at appendix 51 to 52.

[00:12:38] Speaker 01:
Okay.

[00:12:38] Speaker 05:
Any more questions?

[00:12:43] Speaker 04:
I'd like to save a few minutes.

[00:12:46] Speaker 04:
No.

[00:12:48] Speaker 05:
All right.

[00:12:49] Speaker 05:
We'll save you rebuttal time, but let's hear what the government has to say.

[00:12:52] Speaker 01:
Great.

[00:12:53] Speaker 01:
Thank you so much.

[00:12:55] Speaker 05:
Mr. Bixley?

[00:12:58] Speaker 03:
Yes.

[00:12:59] Speaker 03:
Can you hear me?

[00:13:01] Speaker 03:
I hear you.

[00:13:02] Speaker 03:
Okay, thank you.

[00:13:03] Speaker 03:
May it please the court?

[00:13:05] Speaker 03:
In this case, Mr. Doe waited 11 years to file a lawsuit for an alleged breach of contract, an alleged breach that he was aware had occurred in April of 2008 when the government did not pay him for services performed as a confidential informant.

[00:13:21] Speaker 03:
His complaint is clearly time-barred for the trial court appropriately held.

[00:13:25] Speaker 05:
Would you say alleged breach?

[00:13:29] Speaker 05:
No communications from Mr. Doe after that initial one for which the breach is purportedly alleged?

[00:13:42] Speaker 03:
Well, yes, we say alleged breach because what the trial court did was giving Mr. Doe the benefit of the doubt, accepting the facts alleged in his complaint as true,

[00:13:59] Speaker 03:
that his breach of contract claim accrued no later than April 2008.

[00:14:05] Speaker 03:
That's what the trial court found.

[00:14:08] Speaker 05:
Well, but he also says that there were promises that there would be future payments and that those future payments can't have been breached until there was the appropriate time and accrual of those payments.

[00:14:25] Speaker 05:
Isn't that accurate?

[00:14:26] Speaker 05:
Yes.

[00:14:28] Speaker 03:
What Mr. Doe alleges, he alleges the existence of a contract which has a term that in exchange for information and services, he would receive up to 25% of all cash seized and $1,000 per kilogram of drug seized.

[00:14:48] Speaker 03:
And he also says as a condition of this alleged agreement that information

[00:14:56] Speaker 03:
It's conditional.

[00:14:59] Speaker 03:
For example, I'm looking at, he alleges that should his information lead ICE to new leader information, he would be entitled to compensation all the way down the line.

[00:15:11] Speaker 03:
So he alleges a condition of disagreement, but he does not allege facts that any of his actions led to new leads, new information, new seizures, it's the only alleges

[00:15:26] Speaker 03:
as a condition of one of the terms of the agreement, but he does not allege facts that it actually occurred.

[00:15:32] Speaker 05:
Well, he wants discovery in order to find out what happened to his ensuing disclosures.

[00:15:42] Speaker 05:
Yeah.

[00:15:43] Speaker 05:
And we're saying you can't get into court in order to do that because you waited too long.

[00:15:50] Speaker 05:
And we're trying to figure out when that period of too long started.

[00:15:57] Speaker 03:
Yes, Your Honor.

[00:15:58] Speaker 03:
So the basis of the government's motion and the decision of Senior Judge Smith in the trial court is that all events which gave, which occurred, which fixed the liability of the government to pay him and entitled him to payment, the Institute in action occurred in 2008.

[00:16:22] Speaker 03:
As he alleges, he was

[00:16:26] Speaker 03:
basically became a confidential informant.

[00:16:31] Speaker 03:
Early in 2008, he participated in four undercover operations, three of which resulted in the seizure of cash.

[00:16:42] Speaker 03:
He alleges the amount seized that he participated in, discrete amounts.

[00:16:48] Speaker 03:
He alleges that in these undercover activities, he seized kilograms

[00:16:56] Speaker 03:
of cocaine, $1,000 per kilogram, that's 25%.

[00:17:00] Speaker 03:
In his complaint, he alleges, in effect, on February 5, 2008, he received a single down payment of $10,000.

[00:17:12] Speaker 03:
And that's all he received.

[00:17:14] Speaker 03:
He further alleges, and this is the key paragraph in his complaint, paragraph 34, he threatened to sue for the amount he was owed.

[00:17:26] Speaker 05:
I'm not sure I understand the point that you're...

[00:17:29] Speaker 05:
trying to make, he asserts that there were promises to pay that were made after that date that you're referring to and that those promises continued as well as other obligations accrued.

[00:17:46] Speaker 05:
So, would you focus on what happened after he was paid the $10,000 and was told, so he says, that more was promised?

[00:18:00] Speaker 03:
Yes, Your Honor.

[00:18:01] Speaker 03:
So after he was paid the $10,000, which occurred on February 5, 2008, shortly thereafter, apparently he threatened to sue.

[00:18:16] Speaker 03:
And then he was deactivated as a confidential informant in April of 2008.

[00:18:24] Speaker 03:
And this is relevant because,

[00:18:28] Speaker 03:
his services as a confidential informant ended at that point.

[00:18:32] Speaker 03:
So he provided no further services after April of 2008.

[00:18:38] Speaker 03:
But in answer to the court's question, his allegations that he would be entitled to additional compensation in his term all the way down the line, that is simply a conditional term of the alleged agreement.

[00:18:56] Speaker 05:
Well, now, the issue is not whether or not he's, as a matter of law or fact, found to be entitled.

[00:19:06] Speaker 05:
The issue is whether the statute of limitations has run so that he can't get into court to explore these substantive issues.

[00:19:17] Speaker 03:
Yes.

[00:19:19] Speaker 03:
Yes.

[00:19:20] Speaker 03:
Mr. Doe actually alleges in his complaint

[00:19:24] Speaker 03:
that his claims accrued.

[00:19:27] Speaker 03:
I direct the court's attention.

[00:19:28] Speaker 03:
For example, paragraph 51 of the complaint, he alleges that he performed his obligations pursuant to the agreement and provided ICE with information that led to multiple arrests and seizures.

[00:19:42] Speaker 03:
Therefore, the conditions required for descendant ICE's performance had occurred.

[00:19:48] Speaker 03:
He states similar allegations.

[00:19:52] Speaker 03:
Now the question is when was the contract breached?

[00:19:57] Speaker 03:
The contract was breached and he knew it was breached when he fully performed his part of the bargain and the government refused to pay him.

[00:20:10] Speaker 05:
No, it's when the contract was breached when payment was refused.

[00:20:16] Speaker 05:
Isn't that right?

[00:20:18] Speaker 05:
That's correct.

[00:20:20] Speaker 05:
Yes.

[00:20:22] Speaker 05:
But he was told, according to the record, that this is a continuing operation of seeing how much you're entitled to, not that you'll never be paid.

[00:20:34] Speaker 03:
No, there's nothing in the complaint that stipulates.

[00:20:45] Speaker 03:
For example, the standard for claim of cruel

[00:20:50] Speaker 03:
in a breach of contract context is set forth in the oceanic steamship case.

[00:20:56] Speaker 03:
And in oceanic steamship, what the Court of Plains found in that case was that by the terms of that contract, there was to be a final accounting.

[00:21:07] Speaker 03:
That's when payment would be made.

[00:21:11] Speaker 03:
There's no such statement in this alleged agreement.

[00:21:15] Speaker 03:
So in other words,

[00:21:17] Speaker 03:
Yes, there's a conditional statement that should additional leads, should additional seizures, should additional amounts be collected, he would be entitled to compensation.

[00:21:32] Speaker 03:
But his complaint does not allege that that actually happened.

[00:21:37] Speaker 03:
It's just not in the complaint.

[00:21:39] Speaker 03:
The only events which occurred which entitled him to payment are these three undercover operations

[00:21:46] Speaker 03:
that resulted in actual seizures.

[00:21:47] Speaker 05:
Those are the only events which actually occurred.

[00:21:58] Speaker 05:
It was sooner than six years after the date that you alleged.

[00:22:03] Speaker 05:
He would be, then it would be easy and he would, we assume, be entitled to discovery and could find out the facts that we don't know in terms of what was promised and what was entitled.

[00:22:19] Speaker 05:
So for you to tell us certain facts that haven't been established doesn't really help.

[00:22:28] Speaker 03:
Well, Your Honor, in other words, our position here is that based upon the discrete allegations, the discrete events, essentially he alleges three breaches, these three undercover operations which actually resulted in seizures.

[00:22:55] Speaker 03:
and money due and only to him, which he knew about, and he knew he had the right to sue.

[00:23:01] Speaker 03:
And all this happened in 2008.

[00:23:03] Speaker 03:
Those claims are time barred.

[00:23:05] Speaker 03:
As to whether there is a separate distinct breach based upon continuing seizures down the line, that would be a discrete event.

[00:23:21] Speaker 03:
That's a hypothetical.

[00:23:23] Speaker 03:
He has not alleged that facts have occurred, which would entitle depayment.

[00:23:30] Speaker 05:
Well, he doesn't know those facts.

[00:23:32] Speaker 05:
He doesn't know those facts.

[00:23:34] Speaker 05:
How can he allege them?

[00:23:36] Speaker 05:
He just suspects that there's more to this than he's been allowed to know.

[00:23:41] Speaker 03:
Yes, Your Honor.

[00:23:48] Speaker 03:
In other words, what I'm saying is for what he alleges and

[00:23:53] Speaker 03:
As I said, these three events, these three undercover operations, and I think this is what the trial court's decision goes to.

[00:24:03] Speaker 03:
As to these matters, he's clearly time barred.

[00:24:08] Speaker 03:
And briefly, I'd like to just address the continuing claims issue.

[00:24:15] Speaker 02:
Counsel, before you move on, could I ask you a question?

[00:24:19] Speaker 02:
I just want to clarify your position.

[00:24:22] Speaker 02:
As I understand it, you said that the alleged agreement, as described in the complaint, accepting all the allegations in the complaint is true, does not defer payment.

[00:24:35] Speaker 02:
And because the alleged agreement does not defer payment, the statute of limitations accrued when payment would have been due, which would have been after the collection of the,

[00:24:49] Speaker 02:
drugs and monies that you previously identified and that are identified in the claim, which would have been by April of 2008.

[00:24:57] Speaker 02:
Do I understand that correctly?

[00:25:01] Speaker 02:
That's correct.

[00:25:04] Speaker 02:
Okay, thank you.

[00:25:07] Speaker 03:
Yes.

[00:25:10] Speaker 03:
And I think I was addressing the continuing claim.

[00:25:14] Speaker 03:
I think that is correct.

[00:25:16] Speaker 03:
That is waived as we have argued.

[00:25:19] Speaker 03:
We note that Mr. Doe did not appear pro se in this case, even at the pleading stage.

[00:25:27] Speaker 03:
He was represented by counsel.

[00:25:29] Speaker 03:
And at no time in the trial court proceedings did Mr. Doe, through counsel, argue a continuing claim.

[00:25:41] Speaker 03:
And in fact, in the argument at the trial court before Senior Judge Smith,

[00:25:47] Speaker 03:
What they argued was that the statute of limitations should be told.

[00:25:51] Speaker 03:
That was one of the defenses they raised.

[00:25:53] Speaker 03:
And clearly that's not appropriate under the John R. Sand and Gravel case.

[00:26:01] Speaker 03:
Going back to the issue of the conditional term of this alleged agreement, payments all the way down the line, and the issue potentially of discovery, I would raise,

[00:26:18] Speaker 03:
I think we're in hypothetical territory that the government's position, I think from the questions that came up, was that in fact the actual agreement that was signed did not reflect a promise to pay Mr. Doe.

[00:26:37] Speaker 03:
We cited that agreement on pages three and four of our brief.

[00:26:45] Speaker 03:
The issue was not decided by the trial court.

[00:26:47] Speaker 03:
It is not really before the court here today.

[00:26:52] Speaker 03:
But certainly, if there was a claim for additional monies based upon that alleged contract, again, hypothetical, but we would revisit this as a new issue and perhaps look at that whether, in fact, there is a contract.

[00:27:12] Speaker 03:
So we don't necessarily concede that point, I would add.

[00:27:17] Speaker 05:
I was very curious to hear you argue this.

[00:27:22] Speaker 05:
And at the same time, he was paid $10,000.

[00:27:25] Speaker 05:
And you were saying that was just a gift out of the kindness of the government's heart, that there was no obligation.

[00:27:36] Speaker 03:
No, what I'm saying is our motion was based on, it's a bit of an odd case because I think in confidential informant cases typically the allegations are based on an implied fact contract, that there's no written.

[00:27:55] Speaker 03:
Please continue the thought if it's not finished.

[00:27:58] Speaker 03:
So his allegation was that in fact there was an actual written agreement.

[00:28:04] Speaker 03:
An express contract.

[00:28:05] Speaker 03:
So we called that into question and produced what he actually spied.

[00:28:10] Speaker 05:
Well, the government, as I saw it, never denied that there was no written agreement.

[00:28:17] Speaker 05:
You're just saying, you know, you're too late.

[00:28:19] Speaker 05:
Go away.

[00:28:20] Speaker 05:
You're not entitled to discover what's in our records.

[00:28:25] Speaker 03:
No.

[00:28:27] Speaker 03:
In our motion before the trial court, we said there was a written agreement.

[00:28:33] Speaker 03:
We produced it.

[00:28:35] Speaker 03:
In other words, that was signed by him and ICE, but it did not reflect what he alleged.

[00:28:41] Speaker 02:
Counsel, this is Judge Stoll.

[00:28:43] Speaker 02:
Do I remember correctly that in fact, the court of federal claims considered your argument that there had not been a contract proven of the type that was alleged by Mr. Doe?

[00:28:55] Speaker 02:
I'm sorry, could you repeat the question?

[00:28:57] Speaker 02:
I thought that there was a trial below or at least a hearing below

[00:29:02] Speaker 02:
before the Court of Claims, and one of the issues was whether, in fact, the agreement alleged by Mr. Doe existed or not, and whether, in fact, Mr. Doe had proved the existence of the alleged written contract.

[00:29:17] Speaker 02:
Am I correct in understanding that, or do I misunderstand the record?

[00:29:23] Speaker 03:
No, what was that issue was he alleged the existence of a written agreement, expressed agreement,

[00:29:31] Speaker 03:
which reflects the terms, as he alleged in his complaint, how the trial court treated.

[00:29:40] Speaker 03:
But the government produced the actual document that was signed by Mr. Doe and ICE.

[00:29:51] Speaker 03:
And Mr. Doe argued that, in fact, there was a difference or an additional agreement.

[00:29:58] Speaker 03:
So the trial court

[00:30:00] Speaker 03:
noted all of this and said that the parties disagree as to the actual terms.

[00:30:05] Speaker 03:
And then the court addressed the matter and accepting the allegations as true as the existence of a contract, as alleged by Mr. Doe, found that it was time part.

[00:30:19] Speaker 03:
So that's how the court treated it.

[00:30:21] Speaker 03:
And that's what's before the court here today.

[00:30:25] Speaker 05:
Okay, any more questions for Mr. Pixley?

[00:30:28] Speaker 01:
No.

[00:30:31] Speaker 05:
Okay, thank you.

[00:30:32] Speaker 05:
Mr. Morris, you have your rebuttal time.

[00:30:35] Speaker 01:
Yes, thank you so much.

[00:30:37] Speaker 01:
I'd like to just kind of work my way backwards on them arguments that were made by Mr. Pixley.

[00:30:41] Speaker 01:
The first one is this notion that the only thing we pled was the written agreement that was provided.

[00:30:46] Speaker 01:
He was given a written agreement that laid out the rules of confidential informant.

[00:30:51] Speaker 01:
But in our complaint at Appendix 17, we also alleged that he was provided a written agreement that provided for payment, the payment parameters, and that that agreement was not given to him for safety reasons.

[00:31:03] Speaker 01:
And so that's one of the things that we're looking to discover.

[00:31:06] Speaker 01:
So the express contract was not only the CI rules, but the written agreement that was not provided that he signed, which laid out the parameters of payments.

[00:31:14] Speaker 01:
And then if you look at Appendix 14 through 17,

[00:31:19] Speaker 01:
going back, or working our way up, we allege very clearly that he was told that as each of these new investigations arise, that he would be paid for the information, the secondary and third tertiary investigatory information and seizures that he was responsible for.

[00:31:39] Speaker 04:
And, um, this is a very good story.

[00:31:44] Speaker 04:
But the problem is that the burden of truth is on your client, isn't it?

[00:31:51] Speaker 01:
Oh, it totally is.

[00:31:52] Speaker 01:
And that's why we're... Oh, go ahead.

[00:31:54] Speaker 04:
I'm sorry.

[00:31:54] Speaker 04:
And there is no documentation of this contract payment.

[00:32:00] Speaker 01:
Well, right.

[00:32:01] Speaker 01:
But again, we're at the pleading stage.

[00:32:05] Speaker 01:
And so he pled that he was given a written contract and that the written contract laid out the parameters of payments.

[00:32:12] Speaker 01:
And then I think it's important to know that he was questioned, that he questioned, okay, what happened?

[00:32:19] Speaker 01:
What's going on?

[00:32:21] Speaker 01:
And he was told, hey, you got to wait.

[00:32:23] Speaker 01:
This guy's been turned into a CI.

[00:32:24] Speaker 02:
This is Judge Stoll, counsel.

[00:32:26] Speaker 02:
This is Judge Stoll.

[00:32:28] Speaker 02:
In your complaint, do you explain or allege that the written agreement that Mr. Doe did not, was not given a copy of either did or did not defer payment?

[00:32:41] Speaker 02:
What did it say about when payment was due?

[00:32:46] Speaker 01:
Well, I think he doesn't know exactly what the written part of it was, but he was told that payments would have to wait until the forfeitures are done.

[00:32:55] Speaker 02:
After the agreement.

[00:32:57] Speaker 02:
After he signed the agreement, right?

[00:32:59] Speaker 02:
There was a written agreement.

[00:33:00] Speaker 01:
As part of the agreement.

[00:33:03] Speaker 01:
As part of the agreement, it was like, here's the, you're going to get X amount for kilo, X amount for this, 25% of cash, but you got to wait.

[00:33:11] Speaker 02:
Where does it say in your complaint that as part of the alleged written agreement, it said he had to wait?

[00:33:23] Speaker 01:
Let's see.

[00:33:25] Speaker 01:
I think I would defer the court to Appendix 17, where it reads, should someone be arrested on information?

[00:33:34] Speaker 01:
And this is paragraph 26.

[00:33:36] Speaker 01:
When plaintiffs inquired about his commission, he was told that a member had been turned into a CI.

[00:33:40] Speaker 02:
I understand, but that was after the alleged written agreement as discussed in paragraph 23 of your complaint on the same page, correct?

[00:33:52] Speaker 01:
Correct.

[00:33:53] Speaker 01:
So I think we look at appendix 17 and it reads, should someone be arrested based on information provided by plaintiff and that person gives up their supplier or other pertinent information that leads to more seizures,

[00:34:08] Speaker 01:
plaintiff would have been tied up to compensation and commission for mill seizures all the way down the line.

[00:34:13] Speaker 02:
Correct.

[00:34:13] Speaker 02:
But it doesn't say anything about deferral of any payments or anything like that, right?

[00:34:19] Speaker 02:
I'm just, I guess, I understand the alleged near complaint.

[00:34:24] Speaker 01:
Right.

[00:34:25] Speaker 01:
It's just that it's going to take a lot of time.

[00:34:27] Speaker 01:
Where does it say that?

[00:34:29] Speaker 02:
23 and describing the agreement.

[00:34:31] Speaker 02:
You're just saying that you have to infer that, that you have to infer that

[00:34:37] Speaker 02:
there will be additional payments and you have to infer that those additional payments, all of the payments will be held up until all action has been taken, right?

[00:34:48] Speaker 02:
Is that what you're saying?

[00:34:49] Speaker 01:
Well, not only that those for a particular discrete event, those payments would be held up, but as more investigations yielded more forfeitures and more seizures, that those then would also take time and the due process forfeiture proceedings would have to take time and appeals and all that stuff.

[00:35:07] Speaker 02:
I don't see that in paragraph 23.

[00:35:09] Speaker 02:
I don't see that.

[00:35:10] Speaker 02:
Did you at any point attempt to amend your complaint?

[00:35:17] Speaker 01:
I don't think so.

[00:35:18] Speaker 01:
No, I don't think so.

[00:35:20] Speaker 01:
We didn't amend the complaint yet.

[00:35:22] Speaker 01:
We weren't given leave to amend.

[00:35:24] Speaker 02:
Did you ask for leave to amend?

[00:35:27] Speaker 00:
Yes.

[00:35:31] Speaker 01:
What did you ask to amend?

[00:35:33] Speaker 02:
What did you want to amend in the complaint?

[00:35:37] Speaker 01:
Well, I certainly would have amended to like more facts about the actual parameters of the agreement as far as payment procedures and payment timelines.

[00:35:45] Speaker 02:
Where is that motion?

[00:35:47] Speaker 02:
Do you have a docket number for the case below where you made that motion?

[00:35:54] Speaker 00:
I don't have that at my fingertips, Your Honor.

[00:35:57] Speaker 00:
I apologize.

[00:35:58] Speaker 00:
Let me look through quickly.

[00:36:07] Speaker 04:
Council, your basic problem, one final point question, is if your client thought he was not being treated properly according to what was agreed to, he didn't wait a year, or two years, or five years.

[00:36:23] Speaker 04:
He waited 11 years before suing.

[00:36:29] Speaker 01:
No, that is a problem.

[00:36:31] Speaker 01:
I mean, I can't run from the fact that it's 11 years old.

[00:36:35] Speaker 01:
I have to embrace that.

[00:36:36] Speaker 01:
But I mean, from the perspective of my client, he had been put in hiding because of what happened.

[00:36:43] Speaker 01:
I mean, he was burned in the CI.

[00:36:45] Speaker 01:
His life was threatened.

[00:36:47] Speaker 01:
He went into hiding.

[00:36:49] Speaker 01:
He actually moved out of the country and was afraid.

[00:36:51] Speaker 01:
And I think, you know, if you look at those facts and say, OK, is there a way for this guy's claims to be revived?

[00:37:00] Speaker 01:
You should also take into account the context of the delay.

[00:37:03] Speaker 01:
which was this guy's been hiding, he's afraid, you know, he's got his wife and kids, and he didn't want to raise this issue, and he only raised it when he called me and said, hey, is there any chance?

[00:37:14] Speaker 01:
Well, you know, it's 11 years, but yeah, I think there's a chance because, you know, you're the one who was told that this thing's going to take forever, and you haven't raised it, and that's why it took so long.

[00:37:25] Speaker 01:
But yes, it's 11 years, and I have to embrace that and recognize that it's a long time.

[00:37:29] Speaker 05:
It is a long time.

[00:37:31] Speaker 05:
equitable tolling aspect, but certainly it seems that this focuses on the problem which seems to have concerned Judge Smith as well.

[00:37:43] Speaker 05:
You go back six years from the date that this complaint was filed and everything seemed to be very quiet, whatever breaches had occurred.

[00:37:56] Speaker 05:
accepting that there may well have been breaches occurred before the date of filing minus six years.

[00:38:06] Speaker 05:
And how does the court overcome that?

[00:38:15] Speaker 01:
Well, I think you have to determine whether or not he was actually put on notice.

[00:38:21] Speaker 05:
Well, whatever might have been an event,

[00:38:25] Speaker 05:
within that six-year period to have kept the claim alive?

[00:38:30] Speaker 01:
I'm not sure I understand the court's inquiry.

[00:38:35] Speaker 01:
I think the claim, when he inquired about his commissions and he inquired about what was happening, he was told, hey, this guy's been turned into a CI.

[00:38:45] Speaker 01:
It's going to take a long time.

[00:38:47] Speaker 01:
And so that's why he didn't pursue any claims when he was deactivated.

[00:38:52] Speaker 01:
And again, the deactivation didn't say repudiation or we're refusing to pay for anything that you've done or any of the proceeds of the tendrils of the information you've given us.

[00:39:02] Speaker 01:
It was just you are hereby deactivated.

[00:39:04] Speaker 01:
Um, had he known that they were going to then disclaim any of the claims, any of the compensation that was due to him there or due to him in the future, I think he definitely would have pursued it or thought about it.

[00:39:15] Speaker 01:
But yes, remember he is, his identity had been Burt.

[00:39:19] Speaker 01:
He was scared and he was in hiding.

[00:39:21] Speaker 01:
So that becomes part of the problem.

[00:39:23] Speaker 01:
I realize there's no equitable tolling, but I think the context, the overall context of somebody who goes into service for the government and puts themselves at risk should also be taken into account when deciding whether or not these claims should be revived and allow us just to do discovery.

[00:39:38] Speaker 01:
We don't know if there's something that's within that, assuming a six-year period applies from the date of filing of the complaint, but I think that he's entitled to at least know.

[00:39:46] Speaker 01:
And we don't know, but I think he's entitled to at least discover.

[00:39:49] Speaker 01:
And then we can fight about whether or not those claims should survive on a summary judgment motion.

[00:39:53] Speaker 01:
But at this stage in the proceeding with what's gone on, I think my client is at least entitled to know.

[00:40:00] Speaker 05:
Yes.

[00:40:01] Speaker 05:
OK.

[00:40:02] Speaker 05:
So any more questions for Mr. Morris?

[00:40:04] Speaker 02:
No.

[00:40:05] Speaker 02:
No.

[00:40:06] Speaker 05:
All right.

[00:40:07] Speaker 05:
Thank you.

[00:40:08] Speaker 05:
Thanks to both counsel.

[00:40:09] Speaker 05:
The case is taken under submission.

[00:40:12] Speaker 02:
The court will pause.