UCLRG Status Report 1/23/13

A brief revue of the organization:

Several retirees have asked why all of us are not included in the law suit and why it isn’t a class action suit so it is time to remind you who we are and how we got here.

UCLRG is a group of mostly LLNL retirees who retired prior to Jan 1 2008 and for whom we have email addresses. We also have some other interested people on the list. You would be a member of UCLRG if it had memberships. Communications are almost exclusively by email because UCLRG don’t have the resources for additional means of communication.

UCLRG Legal Defense Fund is an Unincorporated Association formed under California law. It consists of four officers, President, Vice President, Secretary and Treasurer. It was originally created to handle the funds for the UC lawsuit to assure proper financial accountability. Since it met the requirements for a tax-exempt organization, it applied for and received tax exempt status thereby making all donations tax deductible. It is the organization that Solicits funds and enters into contracts with our lawyers.

The lawsuit was filed on the behalf of 4 affected retirees, the plaintiffs, and it petitioned for a Writ of Mandate forcing UC to take back responsibility for the medical benefits they shifted to LLNS. The approach was taken with the intent of avoiding a long expensive class action suit and getting a quick resolution of the issue. The theory was that if UC were required to reinstate the plaintiffs, they would know they had the same liability to the other retirees and would reinstate them as well. As you can see, the lawsuit has been neither inexpensive nor quick. Worse yet, UC has shown that they have no interest in being fair to their retirees.  

Now that we have won our appeal, we will have to wait to see if UC wants to contest the Appeals court ruling or not. The details of the options UC has is given below UC has already missed the deadline for asking the Appeals Court to reverse its self. The next deadline, on Feb. 11, Is for asking the California Supreme Court to review the Appeals Court ruling. If UC asks, the Supreme Court can decide whether or not to review it. Under normal circumstances, it would be very unlikely for them to do so. However, because of the Orange County ruling, the Supreme Court may see an issue in our case that would give them a chance to clarify some point(s) of Orange County. That increases the chance of their intervening. 

If none of the above happens, the normal course of action would be for us to go back to the Alameda Court and pick up where we left off. We suspect there may be other options but we have not had a chance to talk to our lawyers about them. When we do, we may not be able to tell you about them for fear of breaching lawyer client privilege.

Our intent is and has always been to provide a solution for all affected retirees, not just the plaintiffs.

The Alameda Superior Court and the Court of Appeal

Below is our lawyers’ summary of the situation.

As you all know, on August 10, 2011, Joe Requa, Wendell G. Moen, Jay Davis, and Donna Ventura (the “Retirees”) filed suit in Alameda County Superior Court, asking the court to compel the Regents to continue to provide Livermore Retirees with University-sponsored health care. After providing University sponsored group health insurance to all University retirees for more than 50 years, in January 2008, the Regents terminated these benefits for retirees who worked at Lawrence Livermore National Laboratory and transferred responsibility to the new private sector entity (Lawrence Livermore National Security).

The Retirees alleged they had a contract based on the Regents repeatedly assuring them they would receive University-sponsored health care during retirement. They also argued that the Regents were “estopped” (or legally barred) from denying their claims. They alleged that an express and/or implied contract arose based on UC’s repeated assurances that they would receive University-sponsored health care throughout retirement. They accepted UC’s offer of work under these terms by working at Livermore for many years.

The Regents moved to dismiss the case on the grounds that, even if the allegations were true, the Retirees still could not prove there was a contract or that the Regents were estopped. The Alameda Superior Court agreed with the Regents and dismissed the lawsuit.

The Retirees appealed. While the appeal was pending, the California Supreme Court decided the Orange County case, which was very helpful. Orange County holds that public employees can establish a right to retiree benefits based on an implied contract.

On December 31, 2012, the Court of Appeal reversed Alameda Superior Court and reinstated the case. The Court of Appeal rejected the Superior Court’s reasoning and criticized the Regents’ lawyers for some of the arguments they made.

Next Steps: Court of Appeal and Supreme Court

The Regents have a right to file a “Petition for Rehearing” in the Court of Appeal. We believe they are likely to do so. This Petition is due by January 15, 2013. If the Regents do file a Petition for Rehearing, the Court may ask the Retirees to respond. The Retirees do not have an automatic right to respond and may only do so if the Court asks for a response. The Court of Appeal must make a decision with respect to a Petition for Rehearing within 30 days, that is, by January 30, 2013. The vast majority of Petitions for Rehearing are summarily denied.

Regardless of whether the Regents file a Petition for Rehearing, they are entitled to file a Petition for Review in the California Supreme Court. Unlike the Court of Appeal, there is a right to file an Answer to a Petition for Review. Although an Answer is not required, the Retirees will definitely want to file one (assuming the Regents ask the Supreme Court to review the case). An Answer is due 20 days after a Petition for Review is filed. If the Regents file on Monday, February 11, the Retirees will have until Monday, March 4, 2013, to file an Answer.

The Supreme Court has complete discretion to accept a case for review or let the Court of Appeal opinion stand. The Supreme Court has 60 days for the filing of a Petition for Review to decide to decide whether to hear the case, although the Court may extend the time by another 30 days. The vast majority of Petitions for Review in the California Supreme Court are denied.

Return of Case to Alameda Superior Court

After proceedings in the Court of Appeal and the Supreme Court are concluded, the case is returned to the Alameda Superior Court by way of a “Remittitur,” which is normally issued within 30 days of a final decision in the Court of Appeal or the Supreme Court.

After the case is returned to the Superior Court, the Retirees can ask for “discovery” of documents and information relating to the decisions that are at issue in the lawsuit. There may be motions involving “discovery.” There may then be a motion for summary judgment and/or a motion for a peremptory writ of mandate.

A tentative Timetable is given below. Many of the dates can change if the Court of Appeal or the Supreme Court grants review, or if the Regents do not file one or both Petitions, or file on different dates.

Additional Funds Will Be Needed

The Regents are likely to file a Petition for Rehearing and a Petition for Review. If the Regents do file, there will likely be additional work in the Court of Appeal and or the California Supreme Court. We will need to work out with the attorneys what the costs are likely to be for legal work following the Court of Appeal Opinion issued December 31, 2012, and what it is likely to cost for work in the Alameda Superior Court.

Monday, December 31, 12	Court of Appeal Opinion filed	0 days
Tuesday, January 15, 13	Petition for Rehearing due	15 days
Wednesday, January 30, 13	Court of Appeal Opinion final	30 days
Saturday, February 9, 13	40 days after Court of Appeal Opinion filed	40 days
Monday, February 11, 13	Petition for Hearing in Cal. Supreme Court due	42 days
Sunday, March 3, 13	20 days after last day to file Petition for Review	20 days
Monday, March 4, 13	Answer to Petition for Hearing	21 days
Friday, April 12, 13	60 days after Petition for Hearing in Cal Supreme Court	60 days