Joint Status Report

Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
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SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER
BAIRD, WILLIAMS & GREER, L.L.P.

6225 NORTH 24TH STREET, SUITE 125
PHOENIX, ARIZONA 85016
TELEPHONE (602) 256-9400
FACSIMILE (602) 271-9308
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James B. Reed (AZ Bar No. 014015)

Attorney for Plaintiff Jay Anthony Dobyns
UNITED STATES COURT OF FEDERAL CLAIMS
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JAY ANTHONY DOBYNS,
NO. 08-700c
Plaintiff,
JOINT STATUS REPORT
vs.
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(Judge Francis M. Allegra)

THE UNITED STATES,
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(Judge John M. Facciola Special

Master)
Defendant.
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Pursuant to the Courts order dated April 7, 2015, plaintiff Jay Anthony Dobyns
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and defendant, the United States, submit this joint status report addressing a potential
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discovery schedule, a hearing date, a hearing location, and a schedule for pre-hearing
and post-hearing filings before the Special Master to investigate the specific subject
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matter requiring discovery as identified by the Special Master in the April 7, 2015 order.
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See Dkt. No. 348 at 12.
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on all aspects of the future proceedings in this matter, they have set forth their
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positions separately.
Because the parties have not been able to reach agreement
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1.
Discovery.
a. Plaintiffs proposal.
i.
Written discovery.
Plaintiff requests fifteen requests for production, thirty non-uniform interroga-
tories and forty requests for admission. Plaintiff submits that the following are examples
of essential records and information regarding the events at issue that require
identification and production through discovery: (a) reports and interviews of relevant
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witnesses by the Office of Professional Responsibility, the Office of Inspector General,

Civil Division, by ATF investigative divisions and by ATFs Office of Chief Counsel, and
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by the office of James Cole; (b) all investigative files created or maintained by ATF and
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DOJ, including all criminal investigative files, related to this topic; and (c) emails, texts,
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correspondence, memoranda, transcripts.

Plaintiffs proposed schedule for written discovery and depositions will require
an extension of time beyond the May 29, 2015 date set by the Court for filing the
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Special Master report. However, Plaintiffs proposed timeframe is appropriate given
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the gravity of the allegations, and is consistent with the Courts orders and opinions
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regarding this matter.
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The Courts orders and opinions specifically allow written discovery.
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Paragraph 4 of the Courts February 9, 2015 Order states: the special master
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will exercise the full range of authority permitted by the courts rules, to and including:
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(i) the taking of discovery of all forms, including depositions and all forms of
electronically stored information (ESI). Paragraph 17 of the Special Master
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Order states in relevant part:

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17.
(A)
(B)
(C)
Pursuant to RCFC 53(c)(1), the special master may:

regulate all proceedings;
take all appropriate measures to perform
the assigned duties fairly and efficiently; and
exercise the assigned judges power to
compel, take, and record evidence, including
the resolution of any issues regarding the
admissibility of evidence.
Paragraph 22 of the Special Master Order states in relevant part: Consistent with this
mandate, the central functions of the special master are to:
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(A) Gather evidence to include documents of all forms

(including all forms of electronically store (sic)
information (EDS)); audio recordings, the taking of oral
or video depositions to include the depositions of any
attorney, or other government officer or other individuals
subject to this order; and the taking of oral testimony; and
Finally, page six of the Courts December 1 Indicative Ruling, paragraph 3, states:
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If the Federal Circuit remands the action, the court will allow
both parties an opportunity to present argument, as well as
relevant evidence and other testimony, before ruling on a
motion for reconsideration under RCFC 60. See Hazel-Atlas
Glass Co., 322 U.S. at 251; 11 Wright & Miller, supra, at
2870. (emphasis supplied)
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The circumstances and allegations call for written discovery
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Plaintiff believes that DOJs exclusive goal is to protect its attorneys, and
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therefore, Plaintiff does not trust limited, voluntary production of documents by the
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Justice Department. Written discovery is, from Plaintiffs perspective, necessary to
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overcome the fact that Civil Division has a documented willingness to withhold critical
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documents and make material false misrepresentations about the reasons, whether
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because DOJ claims that it lost the documents, i.e., the two unlawful audio recordings
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made of Plaintiff that DOJ failed to produce, or because DOJ falsely claims the
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documents are not relevant, i.e., DOJs misrespresentations as to the contents and
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conclusions of the October 11, 2012 Internal Affairs Division Report of Investigation.
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As for the inclusion of OPR documents within the scope of written discovery,
Plaintiff anticipates that OPR suspended the investigation of these allegations in part
because it discovered facts so detrimental to DOJ, that OPR was concerned that its
investigation would damage the defenses of the attorneys under investigation by Judge
Allegra and by the Special Master. Plaintiff intends to determine if anyone at Civil
Division instructed Charles Higman to intimidate Christopher Trainor and who at DOJ
or ATF ordered the shut-down of the criminal investigation into Charles Higmans
threats against Christopher Trainor. The OPR reports are relevant to that inquiry and
should be produced.
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ii.
Depositions.
Plaintiff requests to take the following depositions, each to last not more than
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two (2) hours with respect to Plaintiffs questioning time, with time added for objections
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or argument to the Court, excepting the witnesses set forth below, whose testimony is
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anticipated to require up to three (3) hours, again, for Plaintiffs questioning time only. It
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is understood that Defendants questioning time would be additional to that.
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If the Special Master attends the depositions, then Plaintiff submits that a final
hearing may prove unnecessary. If the Special Master does not attend the
depositions, or if other reasons support the conduct of a final hearing, then Plaintiff
proposes the conduct of a final hearing as of the dates set forth below.
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Two prefatory comments regarding witnesses Charles Higman and Veronica

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Onyema are necessary.

The United States unreasonably opposes the deposition of Charles Higman, the
individual who made the threats against Christopher Trainor. Defendants opposition to
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the deposition of Charles Higman is a clear indication of the value of Higmans

testimony and the potentiality that his deposition would reveal that Civil Division
attorneys cooperated with the strategy of witness intimidation. Plaintiffs specific
allegations are that (1) the safety and lives of a main witness and his children were
threatened, (2) DOJ attorneys twice threatened Christopher Trainors career if he
reported the threats to Judge Allegra, and (3) ATF shut down the criminal investigation
of Charles Higman so as not to compromise the governments defense of Jay Dobyns
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lawsuit and so that Plaintiff would not find out about the threats. DOJ was complicit in
threats against a federal agent and his children if DOJ encouraged Higman to make
the call to Trainor, which Plaintiff believes he will prove based upon, inter alia,
Higmans use of the phrase case law when referring to the jurisdiction of ATF to
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investigate the arson.

Plaintiff Dobyns worked in the Tucson office of the Phoenix Field Division where
Charles Higman was stationed, and to Plaintiffs knowledge, Higman did not use and
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would have used the phrase case law ever - it was more likely supplied to him by
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David Harrington and possibly other DOJ attorneys. Plaintiff has already explained in
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his reply memorandum that the legalistic terminology and legal arguments used by
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Higman in his voicemail to Trainor to challenge ATFs jurisdiction to respond to the
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August 10, 2008 arson betray the preparatory influence of Civil Division lawyers. The
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transcript of the July 2, 2013 telephone call between Charles Higman and Christopher
Trainor states in relevant part:
I dont know if you are aware Chris but they cant, dont
seem to have any jurisdiction in that matter. There is plenty
of case law out there that showed that we dont have
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any jurisdiction for house fires, residential fires.

(emphasis added)
Charles Higman is not a lawyer and his statement about the case law regarding the
jurisdiction of ATF appears to have been rehearsed with a Department of Justice
attorney; otherwise, Higman would appear to be one of the few Tucson ATF agents
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who would have ever referred to, on the subject of ATF lacking jurisdiction for arson
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investigations, plenty of case law out there.

Moreover, the recklessness with which Higman acted in leaving a voicemail
threatening Trainor and his children and leaving a road construction cone stuffed up
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the tailpipe of Trainors SUV is inconsistent with the training and, as Plaintiff has
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elsewhere characterized it, the street smarts of Higman. It would appear that instead,
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Higman was acting out of a desperation that was motivated by someone whose
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identity and means Plaintiff and the Special Master should discover. And the answer is
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simple the Justice Department was desperate to overcome the devastating testimony
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of Christopher Trainor during the Tucson phase of the trial, and so they informed
Higman that unless Trainor were to alter or temper his report of investigation regarding
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Higman, that Civil Division would have to deal with the obvious perjury implications of
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Higmans testimony.
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That adversity between DOJ and a retired ATF agent such as Higman could
have cost Higman his retirement pension. Thus, Higman acted out of direction by, and
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fear of, David Harrington and Civil Division lawyers. And to keep the information from
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Judge Allegra, on a telephone call with Trainor, Harrington, Corrine Niosi and Veronica
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Onyema, one that was listened to by Daniel Machonis, David Harrington twice
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threatened the career of Trainor. Those pieces all fit together. Also very unreasonably,
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defendant opposes the deposition of trial attorney Veronica Onyema, who was on the
telephone call with trial attorneys David Harrington and Corrine Niosi when Harrington
twice threatened the career of Christopher Trainor if Trainor reported the threats by
Higman to Judge Allegra. To oppose the deposition of a material eye witness to
complicity in Higmans threats and additional threats against a witness is patently
unreasonable.
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Plaintiff submits that all depositions should take place in Washington DC.
Non-attorney deponents / hearing witnesses:
1)
IAD Lead Investigating Agent Christopher Trainor (3 hours)
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Chief, ATF Office of Professional Responsibility (OPR) Daniel Machonis

(listened to telephone call with Trainor and David Harrington, had
conversations with Trainor as to threats from Higman and Harrington)
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ATF Deputy Director Thomas Brandon (may have been aware of or

involved in a decision to use Higman to pressure Trainor, along with
decision to close down criminal investigation of Charles Higman)
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Person(s) responsible for closing down ATFs criminal investigation into

the threats by Charles Higman Rule 30(b)(6) / the person(s) most
knowledgeable (3 hours)
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Retired Tucson Group Supervisor Charles Higman (3 hours) (resides in

Arizona, but in-person deposition in Washington DC)
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ATF Director B. Todd Jones (may have been aware of or involved in a

decision to use Higman to pressure Trainor, along with decision to close
down criminal investigation of Charles Higman)
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ATF Assistant Director for OPR Michael Gleysteen (may have been
aware of or involved in a decision to use Higman to pressure Trainor,
along with decision to close down criminal investigation of Charles
Higman)
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ATF Assistant Director for Field Operations Ron Turk (may have been
aware of or involved in a decision to use Higman to pressure Trainor,
along with decision to close down criminal investigation of Charles
Higman)
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Attorney deponents / hearing witnesses:
1. DOJ lead trial attorney David A. Harrington (3 hours)
2. Former DOJ lead trial attorney Kent C. Kiffner (resides in Ohio, telephonic)
(Kent Kiffner, despite no longer being lead counsel, is anticipated to have had
conversations with Harrington and Bouman regarding the Higman-Trainor
events)
3. Former ATF attorney Rachel Bouman (3 hours)
4. Former DOJ Director of Commercial Branch Jeanne E. Davidson (3 hours)
5. DOJ case supervising attorney Donald E. Kinner
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6. DOJ assistant trial attorney Corrine A. Niosi

7. DOJ assistant trial attorney P. Davis Oliver
8. DOJ assistant trial attorney Veronica Onyema
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9. DOJ supervising attorney Bryant G. Snee

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10. DOJ former supervising attorney and current Asst. Atty. Gen. Stuart Delery.
11. DOJ Deputy Attorney General James Cole (Trainor incident referred to him)
12. United States Attorney John Leonardo (resides in Arizona, telephonic)
13. United States Attorney General Eric Holder (regarding (1) any participation in
misconduct decisions relating to the Trainor incident, and (2) communications
with ATF Director B. Todd Jones, Deputy Attorney General James Cole, Stuart
Delery, Jeanne Davidson or other DOJ personnel regarding the incident)
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All short form depositions of 2-3 hours listed by Plaintiff are warranted
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Meet and confer objections by the Justice Departments to particular witnesses
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preliminarily listed by Plaintiff were unpersuasive for the reasons which follow.
First, Jeanne Davidson
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was intimately involved in and signed off on the conduct of David Harrington. Jeanne
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Davidsons own February 8, 2013 letter to Plaintiffs counsel states that:

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Dear Mr. Reed:

This letter responds to your various e-mail communications
alleging improprieties by David Harrington, counsel of record
for the United States in this matter. I have reviewed your email messages, correspondence, pretrial materials and other
documents, including the recording of the early meeting of
counsel and the report of investigation in the pending
personnel action. Additionally, I have met with Mr.
Harrington, as well as Donald Kinner (the immediate
supervisor on the case) and Corinne Niosi (a trial attorney
assisting with the case).
Because we take seriously any allegation of potential
impropriety, however unfounded, I have considered your
complaints and discussed them with officials within the Civil
Division. [] Mr. Harrington has always kept his supervisors
appropriately
apprised
about
case
developments
[.] Based upon my review, as described above, I believe
that your complaints are without merit and that no
inappropriate conduct has occurred.
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As for Kent Kiffner, David Harrington stated at the first day of trial that he and
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Kent Kiffner are good friends. Based on that, and Kiffners likely continuing interest in
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the progress of the case, Plaintiff anticipates that Harrington and Bouman provided
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Kiffner with updates of the case, particularly regarding Charles Higman, whose
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depositions Kiffner twice-defended. In no sense are those disclosures to Kiffner
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privileged, and therefore such conversations represent a vulnerability against which
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Plaintiff anticipates the Justice Department is trying to protect.
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the October 24, 2014 order barring the seven attorneys, Judge Allegra had received
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updates from James Cole, the OIG, and/or OPR, regarding an investigation of
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Higmans threats against Trainor; Judge Allegra referred the threats to Cole on
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September 17, 2014. Accordingly, Plaintiff intends to discover why Judge Allegra
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included Bryant Snee, given that Judge Allegras decision to do so may have been
motivated by updates from Cole, OIG or OPR.
Stuart Delery was significantly involved in this lawsuit, and given his
documented proximity to the issues involving Valerie Bacons attempted obstruction of
a criminal arson investigation in the form of two read receipts for emails identifying the
Valerie Bacons attempted obstruction of justice as the subject line, stayed involved in
the lawsuit with respect to all sensitive matters. If Delerys deposition early on
establishes that he knows nothing about the events, then it can terminate quickly. But
if he has any awareness of the events, then he must testify truthfully and fully, so as to
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lead to other avenues of proof.

U.S. Attorney John Leonardo was presented with multiple requests by plaintiff to
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investigate Charles Higman and instead refused. Plaintiff anticipates that John
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Leonardo received instructions to do so from someone equal to or senior to his status
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at DOJ; who that person is and what they told John Leonardo as to why he must stand
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down from any investigations, are topics which Plaintiff is entitled to discover, as it may
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lead to additional avenues of discovery and proof regarding whether DOJ asked
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Higman to pressure Trainor with the phone call, and whether DOJ attorneys
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participated in a cover up afterwards by influencing ATF to shut down the criminal
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investigation of Higman.
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James Cole is the attorney who received the referral from Judge Allegra
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regarding Christopher Trainors report of physical threats by Charles Higman and
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career threats by Civil Division attorneys David Harrington, Corrine Niosi and Veronica
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Onyema. James Cole should testify regarding what he knows about these events.
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It is difficult to imagine that ATF immediate past Director B. Todd Jones and
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ATF current Acting Director Thomas Brandon were not consulted as to the events
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regarding Charles Higman and Christopher Trainor, and particularly the decision to
shut down the criminal investigation of Charles Higman, for reasons stated to
Christopher Trainor that were primarily to defend against Jay Dobyns lawsuit. In other
words, it is hard to imagine that Jones and/or Brandon were not, at the very least,
complicit in any cover up and obstruction of justice, if such occurred, by prematurely
shutting down the criminal investigation into the threats which Charles Higman issued
to Trainor. If Jones and/or Brandon were complicit in that investigative shut-down, then
they would logically have been first told DOJs motivation to have them do so. Plaintiff
suspects that that motivation was the likelihood that Higman, when questioned, would
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have disclosed that he made the threats at the request of Civil Division attorneys, most
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likely David Harrington.
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To Plaintiffs understanding, Eric Holder told slain Border Patrol Agent Brian
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Terrys family that he is familiar with the Dobyns lawsuit and maintains his own
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separate file on it. Since Eric Holder was almost certainly consulted by James Cole
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regarding the Higman threats following the referral from Judge Allegra to Cole, and
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because Holder may have been consulted by Jeanne Davidson or Stuart Delery as
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well, Eric Holder is a prime deposition candidate.
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Plaintiff believes that any order to terminate the criminal investigation into
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Charles Higmans threats against Christopher Trainor and his family had to come from
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a high level whether from ATFs senior manager B. Todd Jones, Thomas Brandon,
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Michael Gleysteen or Ron Turk, or whether from Eric Holder and could have been
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motivated by a desire to avoid Charles Higman informing ATF that he was put up to the
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threat against Christopher Trainor by Civil Division. Given the gravity of the allegations
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in context, death and violence threats against an agent and his children, and a cover-
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up afterwards by closing the criminal investigation - Eric Holders testimony is relevant

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to this proceeding if he is aware of the foregoing facts; questioning him is the only way
to find out.
b. Defendants proposal.
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i.
Written discovery.
The United States submits that the parties should exchange those documents
and other materials that are relevant to the subject matter requiring discovery as
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identified by the Special Master in the April 7, 2015 order: Mr. Trainors allegations
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related to the conduct of certain Department of Justice attorneys. Dkt. No. 348 at 12.
The United States will produce documents and other materials related to the subject
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matter identified in the Special Masters order after expediently resolving, with the aid
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of the Special Master, issues related to the United States attorney-client privilege and
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attorney work product doctrine. We further anticipate that the subsequent document
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production will occur on a rolling basis, and that we will provide the Special Master with
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a copy of those materials when they are produced to plaintiff.
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We do not anticipate releasing any documents that have been generated as a

result of an ongoing inquiry, such as the one initiated by the Office of Professional
Responsibility. OPR has clearly informed the Court that, while it is not taking certain
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actions because of the pendency of this proceeding, its inquiry is not concluded. Dkt.
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No. 329. Plaintiff has provided no valid basis to obtain documents generated from that
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inquiry.
At the same time, the United States anticipates serving a discrete set of
document requests on plaintiff, Mr. Dobyns, related to the same subject matter and
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Rule 60. We anticipate filing those document requests by April 16, 2015, and request
that plaintiff respond by April 27, 2015.
The United States opposes the other forms of written discovery sought by
plaintiff (fifteen requests for production, thirty non-uniform interrogatories and forty
requests for admission). The subject matter defined by the Special Master is discrete
and narrow, and interrogatories and requests for admissions are not necessary to fully
develop the evidence on that subject matter.
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In addition, the United States believes that the discovery plan regarding Mr.
Trainors allegations should reflect the Courts instruction in its February 23, 2015 order
that the Special Masters report shall be filed on or before May 29, 2015. While the
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Court did allow that the Special Master may request an extension of that deadline as
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appropriate, the discovery plaintiff proposes would take this matter well past that
deadline. The United States believes that with an appropriate scope of discovery, we
can allow the Special Master to meet the May 29 deadline or, more realistically, come
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close to it. Accordingly, the United States requests that written discovery be limited to
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tailored requests for the production of documents consistent with the April 7 order.
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ii.
Depositions.
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The United States concurs with plaintiff that the depositions of the following five
individuals is appropriate.
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a.
Christopher Trainor;
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b.
Daniel Machonis (who has recently left ATF);
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c.
David Harrington;
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d.
Corinne Niosi; and

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e.
Rachel Bouman.
We also concur with plaintiff regarding the stated length of the depositions of Mr.
Machonis, Mr. Harrington, Ms. Niosi, and Ms. Bouman, but understand that those times
are good faith estimates and are not rigid. The United States reserves the right to also
question these witnesses and, should plaintiff use most or all of his requested time for
questioning a witness, the United States reserves the right to extend the deposition
beyond that requested time to complete our questioning. We also request that Mr.
Trainors deposition be scheduled for approximately seven hours, in light of the central
role he plays regarding this subject matter.
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Beyond those five depositions, we additionally propose to depose plaintiff, Jay

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Dobyns, related to Rule 60 issues and his interactions with Mr. Trainor. We anticipate
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that Mr. Dobyns deposition can be scheduled for two hours.

Like plaintiff, we believe the relevant depositions should be conducted in
Washington, D.C. We further concur with plaintiff that the Special Master should
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attend each of the scheduled depositions, to promote the efficient resolution of this
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matter.
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The United States otherwise objects to the depositions identified by plaintiff.
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Specifically, for the reasons set forth in section III.B. of the United States March 13
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filing, Dkt. No. 342 at 44-45, we request that the Special Master prohibit the
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depositions of the Attorney General, the former Deputy Attorney General, the former
ATF Director, the U.S. Attorney from Arizona, the current Acting Associate Attorney
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General, Branch Director Jeanne Davidson, and Branch Deputy Director Bryant Snee.
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Also, as plaintiff readily acknowledges, Kent Kiffner who left the Department of
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Justice in April 2012 now resides in Ohio and was not with the Department at the
time of the conduct alleged by Mr. Trainor. He can offer no first-hand information
regarding any of the allegations. Similarly, other Civil Division attorneys plaintiff has
listed have no first-hand information to provide regarding the allegations. None of
these witnesses should be required to participate in this discovery.
Furthermore, the United States requests that the Special Master prohibit the
depositions of individuals to the extent they are based on plaintiffs bald suspicion that
Mr. Higman may have been used to pressure Mr. Trainor, or to explore why ATFs
investigation of Mr. Higmans voicemail message to Mr. Trainor was closed. There is
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no factual basis for that discovery and it is outside of the discovery contemplated by
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the April 7 order, which stated that [i]t appears that, if there was an attempt to induce
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Trainor not to testify as he did, it failed, and limited discovery to the behavior of the
DOJ attorneys who may have learned of the Higman threat. Dkt. No. 348 at 12.
The United States anticipates that the six depositions could be taken shortly
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after the conclusion of document production and, barring any significant scheduling
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conflicts with a witness, could be conducted during the course of a single week.
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2.
Hearing
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a. Plaintiffs Proposal
At the close of written discovery and depositions, Plaintiff asks that the Special
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Master conduct a status conference with the parties to hear argument on whether to
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conduct a final evidentiary hearing, at which time the Special Master could determine
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how many witnesses each side could present, and whether the parties may present, in
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final briefing, and Special Master may rely upon deposition transcript testimony from
any witnesses not appearing at a final hearing.
If the Special Master determines not to conduct a final hearing, then Plaintiff
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requests that the parties be permitted to submit final briefing on the issue(s) before the
Court, similar to motions for summary judgment, not to exceed forty pages.
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In the event that the Special Master conducts a final evidentiary hearing, Plaintiff
proposes that such a hearing commence on July 20, 2015, and continue to conclusion
through Thursday, July 23, 2015, with closing argument to occur on Friday, July 24,
2015, for ninety minutes for each side, to be supplemented by closing briefs due
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twenty-eight (28) days later, not to exceed forty pages per side.
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b. Defendants Proposal
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The United States concurs with plaintiff that the Special Master should conduct
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a status conference with the parties after the conclusion of depositions to hear
argument on whether to conduct a final evidentiary hearing. This could occur
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immediately at the conclusion of the last scheduled deposition. We further agree that,
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should the Special Master decide not to conduct a final evidentiary hearing, the parties
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should be permitted to submit filings similar to motions for summary judgment on the
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specific issues identified in the April 7, 2015 order.
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We disagree with plaintiff regarding the schedule for any evidentiary hearing,
should the parties and/or the Special Master determine that a hearing is appropriate.
The hearing should be scheduled as soon as practical to comply as closely as possible
with the Courts instruction that the Special Masters report should be filed by May 29,
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2015.
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3.
Schedule
The parties were unable to agree upon a schedule of proceedings and present
their respective proposals below:
a. Plaintiffs Proposal
At the time Judge Allegra ordered the May 29, 2015, production date of the
Special Masters report, neither the Court nor Plaintiff contemplated the scenario that
Civil Division (a) directed Charles Higman to call Christopher Trainor and pressure,
intimidate or threaten Trainor, or (b) caused ATF to shut down the criminal
investigation of Higman because Higman would have revealed that Civil Division
caused him to contact Trainor. These new allegations of Civil Division misconduct call
for more discovery and investigation by Plaintiff and the Special Master.
Such discovery and proceedings are appropriate given the focus of the Special
Masters investigation. the allegations at issue are of ethical violations that, if proven,
should result in monetary sanctions against defendant in favor of plaintiff, which would
increase plaintiffs damages. If Justice Department attorneys committed ethical
infractions and criminal conduct in the context of this lawsuit, then it is appropriate for
the Special Master to explore the issue thoroughly, which requires time beyond May
29, 2015.
Plaintiff proposes that the Court adopt the following pretrial schedule:
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Last day to serve written discovery
April 27, 2015
Last day to respond to written discovery,

with copies of responses served
simultaneously on the Special Master
May 18, 2015
Status conference to resolve any

outstanding written discovery disputes
May 22, 2015

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Week 1 of depositions
June 8-12, 2015
Week 2 of depositions
June 15-19, 2015
If evidentiary hearing is conducted,

Plaintiff files his final witness list, final
exhibit list, and Memorandum of
Contentions of Fact and Law
June 26, 2015

Defendant files its final witness list, final
exhibit list, and Memorandum of
Contentions of Fact and Law
June 30, 2015
If hearing, date for any motions in limine
July 6, 2015
Responses to motions in limine are filed
July 10, 2015
Replies in support of motions in limine are

filed
July 14, 2015
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Pre-hearing Conference
July 17, 2015
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If no evidentiary hearing occurs, then

final briefs are due, forty pages per side
July 27, 2015
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If no evidentiary hearing occurs, then

simultaneous responses to final briefs are
due
August 11, 2015
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witness testimony is taken
July 20-23, 2015
If evidentiary hearing, date of closing

argument, ninety minutes per side
July 24, 2015
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If evidentiary hearing, post-hearing

briefs due, forty pages per side
August 28, 2015
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If evidentiary hearing, then simultaneous
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final post-hearing response briefs are due
September 11, 2015
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b. Defendants Proposal
The United States believes that much of the discovery proposed by plaintiff is
unnecessary and inconsistent with the Courts instructions and the Special Masters
April 7, 2015 order. Because we propose a much more limited discovery process, our
suggested schedule is notably different than plaintiffs pretrial schedule. The United
States proposes that the Court adopt the following schedule, which should be subject
to reasonable requests for extensions of time as may become appropriate:
Completion of Document Production
April 27, 2015
Depositions Conducted
May 4-11, 2015
Dispositive Motions Filed
May 18, 2015
Reply briefs on dispositive motions filed
May 27, 2015
If an evidentiary hearing is conducted,

final witness list and exhibit list filed
May 15, 2015

hearing (with 45-minute closing
arguments) held
May 20-22, 2015

simultaneous post-hearing briefs filed
May 29, 2015
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4. Final Arguments.
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a. Plaintiffs argument.
If the Department of Justice prepared Charles Higman to apply pressure to
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Christopher Trainor, then that is almost certainly why the Justice Department does not
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want Plaintiff to depose anyone involved in the shut-down of the criminal investigation
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of Higman. If Civil Division directed Higman to attempt to pressure or intimidate a ATF
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agent and witness in a federal proceeding, in the form of Trainor altering his report by
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including a statement from Higman, with Trainors report of investigation already

admitted into evidence as an exhibit and concerning which Trainor had already
testified, it may ultimately result in a monetary sanction in favor of Plaintiff. And if any
Justice Department attorneys participated in or encouraged the closing of the Higman
criminal investigation for improper reasons would represent obstruction of a criminal
investigation and call for the imposition monetary sanctions in favor of Plaintiff.
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As a result, if there were only five to six witnesses, as Defendant claims (a claim
which Plaintiff obviously opposes), whose depositions were required by the facts of this
investigation, those witnesses would be (1) Charles Higman, (2) Christopher Trainor,
(3) David Harrington, and every person who listened to David Harringtons telephone
call to Trainor in which Harrington twice threatened Trainors career; Plaintiff
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understands those other persons to be (4) Daniel Machonis, (5) Corrine Niosi and (6)
Veronica Onyema. A thorough investigation of the facts of any direction to Higman to
make the call to Trainor and DOJs role in the shut-down of the criminal investigation of
Higman by ATF, requires witnesses in addition to those six.
Plaintiff agrees with Defendants meet-and-confer statement, that the behavior
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of the DOJ attorneys who may have learned of the Higman threat is in fact at
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issue. But the behavior of those attorneys in possibly encouraging and assisting
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Higman to make the threatening call to Trainor, and the attorneys behavior in
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potentially directing, suggesting or encouraging the closing of the criminal investigation

into Higmans threat against Trainor, is not merely relevant to the investigation of the
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Special Master; it is the heart and soul of this Rule 60 fraud proceeding.
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Given the circumstances, Plaintiff submits that the Justice Department cannot
be entrusted to undertake a proper investigation of this matter. It is left to this Court to
ensure the integrity of its own proceedings by investigating the conduct of this issue
thoroughly, in part by allowing Plaintiff to conduct the necessary discovery and present
those findings to the Special Master.
b. Defendants argument.
The United States will not provide extensive argument in this, a joint status
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report. We instead rely principally upon our positions stated above, as well as the
argument and legal authority cited in our March 13, 2015 filing with the Special Master,
Dkt. No. 342, as our response to plaintiffs arguments.
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One argument raised by plaintiff bears a more specific response. To justify his
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onerous discovery plan and the ordering of Mr. Higman to Washington for a deposition,
plaintiff now relies heavily on what he terms new allegations that the Civil Division
directed Charles Higman to call Christopher Trainor and threaten him, or caused ATF
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to shut down the criminal investigation of Higman because Higman would have
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revealed that Civil Division caused him to contact Trainor. These allegations,
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however, are based solely on the fact that Mr. Higman used the phrase case law in
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his telephone conversation with Mr. Trainor and plaintiffs mere speculation that the
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phrase was more likely supplied to him by David Harrington and others, and appears
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to have been rehearsed with a Department of Justice attorney. That speculation,
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much like plaintiffs allegations of Department of Justice involvement in recent
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threatening phone calls and an assault on the Chicago Jetway, falls far short of a
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colorable claim of fraud that could justify discovery under Rule 60. That ungrounded
speculation, however, now shapes much of plaintiffs proffered discovery plan.
Finally, counsel for the United States can be available at the Special Masters
convenience for oral argument that the Special Master may deem helpful before ruling
on the appropriate breadth of discovery and the ultimate schedule in this matter.
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Respectfully submitted,
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/s/ James B. Reed

JAMES B. REED
Baird Williams & Greer, LLP
6225 North 24th St., Suite 125
Phoenix, Arizona 85016
Telephone: (602) 445-7720
Facsimile: (602) 271-9038
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Attorneys for Plaintiff
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BENJAMIN C. MIZER
Acting Assistant Attorney General
s/ Robert E. Kirschman, Jr.

ROBERT E. KIRSCHMAN, JR.
Director
Commercial Litigation Branch
Civil Division
Department of Justice
Ben Franklin Station
P.O. Box 480
Washington, D.C. 20044
(202) 616-0465
(202) 305-7644 (fax)
e-mail: robert.kirschman@usdoj.gov
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April 10, 2015
Attorneys for Defendant
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that, on April 10, 2015, a copy of the foregoing
Joint Status Report was served on counsel for Defendant electronically to Robert
Kirschman, Commercial Litigation Branch, Civil Division, United States Department of
Justice, PO Box 480, Ben Franklin Station, Washington DC 20044.
/s/ James B. Reed

James B. Reed
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Case 1:08-cv-00700-FMA

BAIRD, WILLIAMS & GREER, L.L.P.

James B. Reed (AZ Bar No. 014015)

UNITED STATES COURT OF FEDERAL CLAIMS

JAY ANTHONY DOBYNS,

JOINT STATUS REPORT

(Judge Francis M. Allegra)

(Judge John M. Facciola Special

See Dkt. No. 348 at 12.

Because the parties have not been able to reach agreement

Plaintiff requests fifteen requests for production, thirty non-uniform interroga-

witnesses by the Office of Professional Responsibility, the Office of Inspector General,

correspondence, memoranda, transcripts.

Special Master report. However, Plaintiffs proposed timeframe is appropriate given

regarding this matter.

The Courts orders and opinions specifically allow written discovery.

Order states in relevant part:

Pursuant to RCFC 53(c)(1), the special master may:

mandate, the central functions of the special master are to:

(A) Gather evidence to include documents of all forms

The circumstances and allegations call for written discovery

Justice Department. Written discovery is, from Plaintiffs perspective, necessary to

is understood that Defendants questioning time would be additional to that.

Two prefatory comments regarding witnesses Charles Higman and Veronica

Onyema are necessary.

the deposition of Charles Higman is a clear indication of the value of Higmans

attorneys cooperated with the strategy of witness intimidation. Plaintiffs specific

threatened, (2) DOJ attorneys twice threatened Christopher Trainors career if he

of Charles Higman so as not to compromise the governments defense of Jay Dobyns

investigate the arson.

Higman in his voicemail to Trainor to challenge ATFs jurisdiction to respond to the

any jurisdiction for house fires, residential fires.

investigations, plenty of case law out there.

Higman to Judge Allegra. To oppose the deposition of a material eye witness to

complicity in Higmans threats and additional threats against a witness is patently

IAD Lead Investigating Agent Christopher Trainor (3 hours)

Chief, ATF Office of Professional Responsibility (OPR) Daniel Machonis

ATF Deputy Director Thomas Brandon (may have been aware of or

Person(s) responsible for closing down ATFs criminal investigation into

Retired Tucson Group Supervisor Charles Higman (3 hours) (resides in

ATF Director B. Todd Jones (may have been aware of or involved in a

Attorney deponents / hearing witnesses:

1. DOJ lead trial attorney David A. Harrington (3 hours)

3. Former ATF attorney Rachel Bouman (3 hours)

4. Former DOJ Director of Commercial Branch Jeanne E. Davidson (3 hours)

5. DOJ case supervising attorney Donald E. Kinner

6. DOJ assistant trial attorney Corrine A. Niosi

9. DOJ supervising attorney Bryant G. Snee

Meet and confer objections by the Justice Departments to particular witnesses

Davidsons own February 8, 2013 letter to Plaintiffs counsel states that:

Dear Mr. Reed:

depositions Kiffner twice-defended. In no sense are those disclosures to Kiffner

privileged, and therefore such conversations represent a vulnerability against which

Plaintiff anticipates the Justice Department is trying to protect.

motivated by updates from Cole, OIG or OPR.

documented proximity to the issues involving Valerie Bacons attempted obstruction of

lead to other avenues of proof.

Leonardo received instructions to do so from someone equal to or senior to his status

participated in a cover up afterwards by influencing ATF to shut down the criminal

regarding Christopher Trainors report of physical threats by Charles Higman and

complicit in any cover up and obstruction of justice, if such occurred, by prematurely

likely David Harrington.

well, Eric Holder is a prime deposition candidate.