Arter v. United States

In the United States Court of Federal Claims

No. 23-282

(Filed: December 4, 2025)

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HARRY E. ARTER, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

*

Defendant. *

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Milton C. Johns, Executive Law Partners, PLLC, Fairfax, VA, counsel for Plaintiff.

Daniel D. Falknor, U.S. Department of Justice, Civil Division, Washington, DC, counsel for

Defendant. With whom was Tyler Winkleman, Assistant Deputy General Counsel, DFAS Office

of General Counsel, and Thomas Kersey, Assistant General Counsel, U.S. Department of

Defense.

OPINION AND ORDER

DIETZ, Judge.

Harry E. Arter, a civilian employee of the United States Department of Defense (“DoD”),

claims he was wrongfully denied premium pay and other cash payments while deployed to

Baghdad, Iraq from 2020 to 2022. He also claims that he was wrongfully assessed a debt, which

resulted in the garnishment of his wages and that he was improperly deprived of administrative

leave. Mr. Arter seeks the restoration of unscheduled leave, payment of uncompensated earnings,

liquidated damages, and unspecified legal fees and court costs. The government moves for

partial summary judgment and Mr. Arter cross-moves for summary judgment under Rule 56 of

the Rules of the United States Court of Federal Claims (“RCFC”). For the reasons explained

below, the Court GRANTS the government’s motion for partial summary judgment and

DENIES Mr. Arter’s cross-motion for summary judgment.

I. BACKGROUND

Civilian employees who perform intelligence work for the DoD are entitled to several

types of pay. See 10 U.S.C. § 1601 (authorizing the Secretary of Defense to establish civilian

intelligence positions); id. § 1602(b) (“The Secretary of Defense may, consistent with section

5341 of title 5, adopt such provisions of that title as provide for prevailing rate systems of basic

pay and may apply those provisions to positions for civilian employees [covered] . . . by section

5342(a)(2)(A) of that title.”). In addition to basic pay under the General Schedule (“GS”), see 10

U.S.C. § 1602, these employees may receive premium pay and cash payments authorized in title

5 of the United States Code. 10 U.S.C. § 1603. Premium pay includes overtime pay, 5 U.S.C. §

5542; night differential pay, id. § 5545(a)-(c); Sunday pay, id. § 5546(a); and holiday pay, id. §

5546(b). Cash payments include an “allowance, differential, bonus, award, or other similar cash

payment.” See 5 U.S.C. § 5307(a)(1).

There are limits, however, on the amount of premium pay and cash payments such

employees may receive. Under 5 U.S.C. § 5547(b)(2), no employee may receive premium pay

under the provisions of law cited in subsection (a) if, in any calendar year, the sum of his basic

pay plus his premium pay is more than “the maximum rate of basic pay payable for GS-15” or

“the rate payable for level V of the Executive Schedule.” See 5 U.S.C. § 5547(a) (specifically

limiting the types of premium pay referred to in 5 U.S.C. §§ 5542, 5545(a)-(c), 5546(a)-(b), and

5550). Further, under 5 U.S.C. § 5307(a)(1), no employee may receive cash payments if, in any

calendar year, the sum of his basic pay plus his cash payments “exceed the annual rate of basic

pay payable for level I of the Executive Schedule, as of the end of such calendar year.” However,

where § 5547 limits the amount of premium pay an employee may receive in any given calendar

year, § 5307 merely defers cash payments to the employee if the total amount of basic pay plus

cash payments exceeds the statutory limit. Under § 5307(b)(1), “[a]ny amount which is not paid

to an employee in a calendar year because of the limitation . . . shall be paid to such employee in

a lump sum at the beginning of the following calendar year.”

In the Fiscal Year (“FY”) 2009 National Defense Authorization Act (“NDAA”),

Congress empowered executive agencies to waive the statutory limitations on premium pay and

cash payments during calendar year (“CY”) 2009. Duncan Hunter NDAA for FY 2009, Pub. L.

No. 110–417, § 1101, 122 Stat. 4356, 4615-16 (2008). Congress stated:

(a) WAIVER AUTHORITY.—During [CY] 2009, and

notwithstanding section 5547 of title 5, United States Code, the head

of an Executive agency may waive the premium pay limitations

established in that section up to the annual rate of salary payable to

the Vice President under section 104 of title 3, United States Code,

for an employee who performs work while in an overseas location

that is in the area of responsibility of the Commander of the United

States Central Command, or an overseas location that was formerly

in the area of responsibility of the Commander of the United States

Central Command but has been moved to the area of responsibility

of the Commander of the United States Africa Command, in direct

support of, or directly related to—

(1) a military operation, including a contingency operation;

or

(2) an operation in response to a national emergency

declared by the President.

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(b) APPLICABILITY OF AGGREGATE LIMITATION ON

PAY.—Section 5307 of title 5, United States Code, shall not apply

to any employee in any calendar year in which that employee is

granted a waiver under subsection (a).

Id. § 1101(a)-(b), 122 Stat. 4615. In subsequent years, through the annual NDAA, Congress

continued to allow executive agencies to extend the waiver. See, e.g., William M. (Mac)

Thornberry NDAA for FY 2021, Pub. L. No. 116-283, § 1105, 134 Stat. 3388, 3890 (2021)

(amending § 1105 of the FY 2020 NDAA by replacing “through 2020” with “through 2021”). In

its FY 2019 NDAA, Congress amended the language relating to the applicability of § 5307 as

follows:

(b) APPLICABILITY OF AGGREGATE LIMITATION ON

PAY.—In applying section 5307 of title 5, United States Code, any

payment in addition to basic pay for a period of time during which

a waiver under subsection (a) is in effect shall not be counted as part

of an employee’s aggregate compensation for the given calendar

year.

John S. McCain NDAA for FY 2019, Pub. L. No. 115-232, § 1104(b), 132 Stat. 1636, 2001

(2018).

On May 10, 2021, the Acting Under Secretary of Defense issued a memorandum waiving

the “premium pay limitation in [] § 5547 . . . for [CY] 2021 for eligible DoD employees who

perform work in direct support of, or directly related to, a military operation, including a

contingency operation or an operation in response to a national emergency declared by the

President, for a period of 42 consecutive days.” App. To Def.’s Mot. for Partial Summ. J. [ECF

23-1] at 2. The memorandum provided:

Covered DoD employees are entitled to premium payments only to

the extent the employee’s combined payable amount of basic pay

and premium pay for CY 2021 does not exceed the annual rate of

salary payable to the Vice President under 3 U.S.C. § 104, which is

$255,800. Moreover, the aggregate pay limitation in [] § 5307

continues to apply, although any pay in addition to basic pay during

the waiver period is exempted when applying this limitation.

***

For employees covered by the premium pay waiver, the aggregate

limitation on pay in [] § 5307 still applies during CY 2021, but any

pay in addition to basic pay received during the waiver period is not

counted as compensation in applying the aggregate pay limitation.

Payments, other than basic pay, in excess of the aggregate limitation

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must be deferred and generally will be paid as a lump-sum payment

at the beginning of the following CY.

Id. at 2, 4.

Mr. Arter began working for the DoD as a civilian employee in 2009. App. to Pl.’s Mot.

Summ. J. [ECF 24-1] at 6 (joint statement of undisputed facts). He “was deployed to the United

States Central Command Area of Responsibility from September 2020 until February 2022.” Id.

During his deployment, “Mr. Arter remained at a qualifying location for at least 42 consecutive

calendar days and performed work in direct support of, or directly related to, a response to a

national emergency declared by the President or a military operation.” Id. He was therefore

“eligible for the DoD’s waiver of annual pay limitations during his deployment.” Id. In CY 2021,

Mr. Arter received a total of $255,800.04 in basic pay plus premium pay. Id. at 7. However, he

earned a total of $321,681.23 in basic pay plus premium pay and “forfeited at least $65,881.19[]

of premium pay[.]” Id. Mr. Arter was also paid $47,422.00 in post differential pay and

$42,422.00 in hazardous pay, which brought his total pay for CY 2021 to $350,971.40. 1 App. to

Def.’s Resp. [ECF 27-1] at 3-4. In CY 2022, he was assessed two debts totaling $34,960.16. Id.

The debts stemmed from an overpayment of hazardous, post differential pay, and overtime pay

to Mr. Arter. [ECF 24-1] at 7; [ECF 27-1] at 32.

On February 23, 2023, Mr. Arter filed the instant complaint challenging the DoD’s non-

payment of premium pay and issuance of debt notices, as well as its handling of his

administrative leave. Compl. [ECF 1] at 1-2; see also [ECF 24-1] at 5. On October 25, 2024, the

government moved for partial summary judgment on Mr. Arter’s claim for additional premium

pay. Def.’s Mot. for Partial Summ. J. [ECF 23]. The government did not seek summary

judgment as to Mr. Arter’s claims regarding the debt notices or administrative leave on the belief

that “those issues [could] be resolved through negotiations after the Court’s summary judgment

decision.” [ECF 23] at 11 n.4. On the same day, Mr. Arter cross-moved for summary judgment

on all his claims. Pl.’s Mot. for Summ. J. [ECF 24]; see [ECF 24-1] at 5. After the motions were

fully briefed, see [ECFs 27, 28, 29, 30], the Court held oral argument on August 13, 2025, see

[ECF 31]. During oral argument, Mr. Arter conceded that genuine issues of material fact

preclude summary judgment with respect to his claims regarding the debt notices and

administrative leave. Oral Argument at 11:06-11:09, Arter v. United States, No. 23-282 (Fed. Cl.

Aug. 13, 2025). Therefore, summary judgment on these claims is not appropriate, and the only

issue before the Court is whether either party is entitled to summary judgment on Mr. Arter’s

claim for additional premium pay in CY 2021.

II. STANDARD OF REVIEW

Summary judgment may be entered on part of a claim if there is no genuine issue of

material fact, and the moving party is entitled to judgment as a matter of law. RCFC

56(a); Hansen Bancorp, Inc. v. United States, 367 F.3d 1297, 1308 (Fed. Cir. 2004). An issue is

1

During oral argument, Mr. Arter conceded that he was paid approximately $350,00 for CY 2021 and that this

amount was reflected on his W2 tax form. Oral Argument at 10:44-10:45, Arter v. United States, No. 23-282 (Fed.

Cl. Aug. 13, 2025).

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genuine “if the evidence is such that a reasonable [trier of fact] could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material

if it “might affect the outcome of the suit under the governing law[.]” Id. “The moving party

bears the burden of demonstrating the absence of genuine issues of material fact.” Dairyland

Power Co-op. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994) (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986)). “To establish ‘that a fact cannot be or is genuinely disputed,’

a party must ‘cite[ ] to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations, stipulations . . . ,

admissions, interrogatory answers, or other materials.’” Shea v. United States, 136 Fed. Cl. 95,

102 (2018) (alterations in original) (quoting RCFC 56(c)(1)(A)). “The moving party, however,

need not produce evidence showing the absence of a genuine issue of material fact but rather

may discharge its burden by showing the court that there is an absence of evidence to support the

nonmoving party’s case.” Dairyland Power Co-op., 16 F.3d at 1202 (citing Celotex Corp., 477

U.S. at 325). “[A]ll evidence must be viewed in the light most favorable to the nonmoving party,

and all reasonable factual inferences should be drawn in favor of the nonmoving party.” Id.

(citing Anderson, 477 U.S. at 255).

On cross-motions for summary judgment, “each motion is evaluated on its own merits

and reasonable inferences are resolved against the party whose motion is being considered.”

Marriott Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968-69 (Fed. Cir. 009) (citing Mingus

Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)). “[A]t the summary

judgment stage[,] the judge’s function is not . . . to weigh the evidence and determine the truth of

the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.

“Cases involving only questions of law are particularly appropriate for summary judgment.”

Raytheon Co. v. United States, 92 Fed. Cl. 549, 555 (2010) (citing Dana Corp. v. United States,

174 F.3d 1344, 1347 (Fed. Cir. 1999)).

III. DISCUSSION

In its motion for partial summary judgment, the government argues that “Mr. Arter

indisputably received $255,800.04 in basic pay plus premium pay in CY 2021, which was the

Vice President’s salary,” and that “[d]ue to Congress’s restrictions, the United States cannot pay

Mr. Arter any more premium pay for CY 2021.” [ECF 23] at 11. Mr. Arter responds in his cross-

motion for summary judgment, arguing that the government misinterprets the controlling

statutes. [ECF 24-1] at 8. He asserts that the amendment in the FY 2019 NDAA “stipulates that

any pay in addition to basic pay shall not be counted as part of an employee’s aggregate

compensation for the calendar year” and that this “result[s] in a policy in which the premium

payments made to [Mr. Arter] would not count towards the cited premium cap so long as the

requirements of working under the waiver found in subsection (a) are satisfied.” Id. at 9

(emphasis in original). Thus, Mr. Arter contends that a plain reading of the statute “shows that

[he] both earned the money and has the legal right to be paid for his work,” instead of his earned

premium pay being forfeited. Id. at 17. The Court finds that there are no genuine issues of

material fact regarding Mr. Arter’s claim for additional premium pay in CY 2021 and that he is

not entitled to additional premium pay.

5

It is undisputed that Mr. Arter was covered by the May 10, 2021, memorandum waiving

§ 5547’s premium pay limitation for CY 2021. [ECF 24-1] at 6. Therefore, under the waiver, Mr.

Arter was entitled to receive “premium payments only to the extent [his] combined payable

amount of basic pay and premium pay for CY 2021 d[id] not exceed the annual rate of salary

payable to the Vice President . . . which [was] $255,800.” [ECF 23-1] at 2. According to the

parties, in CY 2021, Mr. Arter earned a total of “at least $321,681.23” in basic pay and premium

pay. [ECF 24-1] at 7. However, he received $255,800.04, 2 id., which was comprised of

$171,490.80 in basic pay and $84,309.24 in premium pay, see [ECF 27-1] at 3-4. Since the

combined amount of basic pay and premium pay Mr. Arter earned in CY 2021 exceeded

$255,800—the total amount permitted under the waiver—Mr. Arter was not entitled to, nor did

he receive, additional premium pay for CY 2021. Any additional premium pay to Mr. Arter for

CY 2021 would have violated the statutory maximum established by § 5547, as waived under the

FY 2009 NDAA waiver authorization and the May 10, 2021, waiver memorandum. See Sullivan

v. United States, 229 Ct. Cl. 82, 87 (1981) (stating that “[S]ection 5547[] provide[s] a maximum

compensation for the position held by [the plaintiff], which compensation he has received in full

[and that] Section 5547 does not deprive [the plaintiff] of any vested rights or otherwise take

anything away from him”); see also Brinkman v. United States, 158 Fed. Cl. 282, 291 (2022)

(“The annual cap applies despite any perceived unfairness in its application because ‘[a] cap on

premium pay, by definition, prevents individuals from earning premium pay for certain hours

that would have otherwise qualified. At some point, then, no additional premium pay can be

earned.’” (quoting Lubow v. U.S. Dep’t of State, 923 F. Supp. 2d 28, 37 (D.D.C. 2013), aff’d,

783 F.3d 877 (D.C. Cir. 2015))).

While Mr. Arter agrees with the government’s application of the limitation on the amount

of basic pay and premium pay under § 5547 and the waiver under the FY 2009 NDAA, [ECF 28]

at 4-5, he contends that any premium pay in addition to basic pay is exempted when applying the

limitation and that, under § 5307, his excess premium pay should have been paid in a lump sum

in CY 2022. [ECF 24-1] at 10 (“While the cap may be waived up to $255,800, the subsequent

sentence states that any pay in addition to basic pay, which is precisely the kind of pay that this

case is centered on, is exempt when applying this limitation.” (emphasis in original)); id. (“[I]t

was not the intent of the agency to simply stop paying employees altogether for their essential

work overseas that qualified for this exemption under the law[, and] the agency directs deferment

of the payments until the following year.”); [ECF 28] at 5 (“What Defendant failed to

acknowledge and discuss with this Court is [that] section (b)(1) of [§] 5307 [] clearly states that

Mr. Arter was eligible for a lump-sum payment of any amount not paid during the calendar year

at the beginning of the following calendar year.”). To make this argument, Mr. Arter relies on the

FY 2019 NDAA, where Congress amended the language relating to § 5307 and on the May 10,

2021, waiver memorandum. [ECF 24-1] at 9-10; [ECF 28] at 5-6. The Court is not persuaded.

The Court begins by “apply[ing] settled principles of statutory construction under which

[the Court] must first determine whether the statutory text is plain and unambiguous.” Carcieri v.

Salazar, 555 U.S. 379, 387 (2009) (citing United States v. Gonzales, 520 U.S. 1, 4 (1997)). “If

[the statutory text is plain and unambiguous], [the Court] must apply the statute according to its

terms.” Id.; accord Barnhart v. Sigmon Coal Co., 534 U.S. 438, 459 (2002) (“As in all statutory

2

The additional four cents received by Mr. Arter apparently results from rounding by the DoD. [ECF 27-1] at 32.

6

construction cases, we begin with the language of the statute.”); Consumer Prod. Safety Comm’n

v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) (“We begin with the familiar canon of statutory

construction that the starting point for interpreting a statute is the language of the statute itself.

Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be

regarded as conclusive.”). In relevant part, the FY 2019 NDAA states: “In applying section 5307

of title 5, United States Code, any payment in addition to basic pay for a period of time during

which a waiver under subsection (a) is in effect shall not be counted as part of an employee’s

aggregate compensation for the given calendar year.” § 1104(b), 132 Stat. 2001 (emphasis

added). The May 10, 2021, waiver memorandum that implemented the waiver states: “[T]he

aggregate pay limitation in 5 U.S.C. § 5307 continues to apply, although any pay in addition to

basic pay during the waiver period is exempted when applying this limitation.” [ECF 23-1] at 2

(emphasis added). Thus, by their plain language, these clauses govern the application of § 5307

and do not affect the premium pay limitation in § 5547. Significantly, § 5307(a)(1) applies a

limitation on the payment of any “allowance, differential, bonus, award, or similar cash

payments . . . in a calendar year . . . when added to the total basic pay paid or payable to [an]

employee.” It provides that, to the extent such cash payments exceed the limitation in a calendar

year, “any amount which is not paid to an employee in a calendar year because of the limitation”

is paid “in a lump sum at the beginning of the following calendar year.” 5 U.S.C. § 5307(b)(1).

Thus, § 5307 allows an employee to avoid forfeiture of cash payments that exceed the § 5307(a)

limitation and to instead receive the amount of such cash payments that exceeds the limitation as

a lump sum in the following calendar year. This deferred payment arrangement, however, does

not apply to premium payments that exceed the limitation under § 5547. Compare 5 U.S.C.

§ 5547 (discussing the limitations on premium payments) with 5 U.S.C. § 5307 (discussing

limitations on cash payments). Further, there is nothing in the FY 2019 NDAA or the May 10,

2021, waiver memorandum that allows an employee to avoid forfeiture of premium payments

that exceed the applicable limitation or to receive such excess premium payments in the

following calendar year.

Mr. Arter makes several other unavailing arguments in support of his contention that he

is entitled to additional premium pay. 3 First, Mr. Arter contends that the government “appears to

show that [he] received over $350,000 in CY 2021,” and that this cannot be correct because it

means that he would have been paid more than $255,800, the limitation for that year. [ECF 30] at

2. Mr. Arter misunderstands the relevant statutes. Under § 5547, as waived by the FY 2009

NDAA and the May 10, 2021, waiver memorandum, Mr. Arter was “entitled to premium

payments only to the extent [his] combined payable amount of basic pay and premium pay for

CY 2021 [did] not exceed the annual rate of salary payable to the Vice President . . . which [was]

$255,800.” [ECF 23-1] at 2. In CY 2021, Mr. Arter received $171,490.80 in basic pay and

$84,309.20 in premium pay, which when combined reached the limitation. See [ECF 24-1] at 7;

3

The Court notes that these additional arguments were first raised by Mr. Arter in his reply brief and that arguments

first raised by a movant in a reply brief are typically treated as waived. See Novasteel SA v. U.S., Bethlehem Steel

Corp., 284 F.3d 1261, 1274 (Fed. Cir. 2002) (“Raising the issue for the first time in a reply brief does not suffice;

reply briefs reply to arguments made in the response brief—they do not provide the moving party with a new

opportunity to present yet another issue for the court’s consideration. Further, the non-moving party ordinarily has

no right to respond to the reply brief . . . . As a matter of litigation fairness and procedure . . . we must treat this

argument as waived.”) (emphasis in original). While the Court views these arguments as waived, it nevertheless

addresses them.

7

[ECF 27-1] at 3-4. However, this limitation did not apply to cash payments. Rather, cash

payments are governed by § 5307, which limits the amount of cash payments, which when added

to basic pay, may be paid to an employee in a given calendar year. 5 U.S.C. 5307. Notably,

under the FY 2019 NDAA and the May 10, 2021, waiver memorandum, while § 5307’s

limitation on cash payments continued to apply in CY 2021, “any pay in addition to basic pay

during the waiver period [was] exempted when applying this limitation.” [ECF 23-1] at 2. Thus,

for CY 2021, Mr. Arter was entitled to receive cash payments in that calendar year that he would

not otherwise have received. In other words, for CY 2021, in addition to his basic pay and

premium pay of $255,800, Mr. Arter appropriately received $95,171.36 in cash payments, for a

total of $350,971.36. See [ECF 27-1] at 3-4; see also Oral Argument at 10:44-10:45, Arter v.

United States, No. 23-282 (Fed. Cl. Aug. 13, 2025) (Mr. Arter conceded that his W2 tax form

reflected that he received approximately $350,00 for CY 2021).

Next, Mr. Arter contends that the government mischaracterizes the “post differential” and

“danger” pay he seeks as premium pay and therefore improperly subjects it to a cap. See [ECF

30] at 4. The record does not support Mr. Arter’s argument. Mr. Arter’s Defense Finance and

Accounting Service audit indicates that he received $47,422.00 in danger pay and $47,422.00 in

post differential pay. [ECF 27-1] at 3-4. Further, in a July 28, 2023, email, Mary Major,

Operations Planner and Analyst with the DoD, identifies the various types of premium pay Mr.

Arter earned in CY 2021, and notes—for each type of premium pay—the dollar amount paid,

and the dollar amount forfeited. Id. at 32. Ms. Major does not include danger pay or post

differential pay in her list of the various types of premium pay Mr. Arter earned that year.

Further, as explained above, these amounts were treated as cash payments under § 5307 and

were therefore not subject to any limitation during the waiver period under the FY 2019 NDAA

waiver of § 5307. 4

Lastly, Mr. Arter argues that the government “does not indicate if [his] overtime is

through the application of the Fair Labor Standards Act (“FLSA”) or if [he] is considered exempt

from the FLSA and receives his overtime under Title 5.” [ECF 30] at 5. He asserts that, “if the

[excess] overtime was pursuant to FLSA, such payments would be excluded from premium pay,”

and therefore not subject to the limitation on premium pay. Id. While Mr. Arter is correct that the

May 10, 2021, waiver memorandum provides that premium pay “excludes overtime pay paid to

employees under the [FLSA],” [ECF 23-1] at 6, his claim that the DoD does not indicate the

nature of his overtime is contradicted by the record. In her July 28, 2023, email, Ms. Major

classified Mr. Arter’s overtime pay for CY 2021 as premium pay. [ECF 27-1] at 32. Specifically,

she explained the Mr. Arter was paid $81,166.58 in overtime premium pay and that he forfeited

$65,606.46 in overtime premium pay “due to the fact that [he] exceeded the VP max authorized.”

Id. Therefore, the DoD indicated that Mr. Arter’s overtime was treated as premium pay and was

properly subjected to the limitation on premium pay. 5

4

The FY 2019 waiver of § 5307 was extended to cover CY 2021 as part of the FY 2020 NDAA. See § 1105, 134

Stat. 3890 (amending § 1105 of the FY 2020 NDAA by replacing “through 2020” with “through 2021”).

5

Mr. Arter does not argue, in his complaint or otherwise, that the DoD improperly classified his overtime hours.

8

IV. CONCLUSION

For the reasons stated above, the government’s motion for partial summary judgment

[ECF 23] is GRANTED and Mr. Arter’s cross-motion for summary judgment [ECF 24] is

DENIED. The parties SHALL CONFER AND FILE a joint status report on or before

January 7, 2026, proposing a schedule for further proceedings.

IT IS SO ORDERED.

s/ Thompson M. Dietz

THOMPSON M. DIETZ, Judge

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