Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 1 of 98

UNITED STATES COURT OF FEDERAL CLAIMS
SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY, Plaintiff, v. UNITED STATES Defendant. ) ) ) ) ) ) ) ) ) )

No. 06-943L

Live Tape

(The following transcript was transcribed from a digital recording provided by the United States Court of Federal Claims to Heritage Reporting Corporation on 12/10/07.)

Pages: Place:

1 through 90 Washington, D.C.

HERITAGE REPORTING CORPORATION
Official Reporters 1220 L Street, N.W., Suite 600 Washington, D.C. 20005-4018 (202) 628-4888 [email protected]
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 2 of 98

UNITED STATES COURT OF FEDERAL CLAIMS
Date: December 10, 2007

HERITAGE REPORTING CORPORATION
Official Reporters 1220 L Street, N.W., Suite 600 Washington, D.C. 20005-4018 (202) 628-4888 [email protected]
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 3 of 98

2
UNITED STATES COURT OF FEDERAL CLAIMS SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY, Plaintiff, v. UNITED STATES Defendant. ) ) ) ) ) ) ) ) ) )

No. 06-943L

Monday, December 10, 2007

Live Tape

(The following transcript was transcribed from a digital recording provided by the United States Court of Federal Claims to Heritage Reporting Corporation on 12/10/07.)

APPEARANCES: On behalf of Plaintiff: KEITH M. HARPER, Esquire WILLIAM G. AUSTIN, III, Esquire CATHERINE F. MUNSON, Esquire On Behalf of Defendant: KEVIN J. LARSEN, Esquire

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 4 of 98

3
JOHN MARTIN, Esquire LAURA M. L. MAROLDY, Esquire

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 5 of 98

4
C O N T E N T S WITNESSES: For the Plaintiff: Alexis Applegate 14 34 75 --DIRECT CROSS REDIRECT RECROSS VOIR DIRE

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 6 of 98

5
E X H I B I T S PLAINTIFF'S EXHIBITS: A B C D IDENTIFIED 15 18 19 21 RECEIVED 33 33 33 33 DESCRIPTION 9:26 a.m. email from Lawson to Applegate Email from Applegate to Mr. Young Email from Applegate to Mr. Young 9:59 a.m. email string from Keith Harper to Applegate and others Petty cash receipt with taxi cab receipts attached Petty cash receipt with taxi cab receipt attached Taxi cab receipts 12:41 p.m. email from Applegate to Austin 2:23 p.m. email Cases filed with dates Pleadings 4-23-07 email string between Applegate and Munson

E

22

33

F

22

33

G H I J K L

22 23 25 27 29 31

33 33 33 33 33 33

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 7 of 98

6
E X H I B I T S DEFENDANT'S EXHIBITS: 1 IDENTIFIED 37 RECEIVED 87 DESCRIPTION 12-29-06 8:59 a.m. email from Harper to Applegate PACER printout of the 12-29-06 filings 9:26 a.m. email Email from Guilder to Roybal 12-29-06 email at 1:28 p.m. from Roybal to Guilder Copy of Salt River filing receipt 4-23-07 email at 10:36 a.m. from Munson to Applegate Plaintiff's response to Defendant's first evidentiary hearing brief in support of government's motion to dismiss 11-29-07 Court of Federal Claims receipt for an Ak-Chin filing Court of Federal Claims Recipt No. 065957 Court of Federal Claims Receipt No. 065959

3 4 5 6

25 39 40 41

87 87 87 87

7 8

48 59

87 87

9

61

87

10

60

87

11

68

87

12

70

87

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 8 of 98

7
19 66 87 ECF PACER printout of Receipt No. 065958

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 9 of 98

8
E X H I B I T S DEFENDANT'S EXHIBITS: 20 21 22 24 IDENTIFIED 68 69 70 57 87 87 87 RECEIVED DESCRIPTION ECF PACER printout of Receipt No. 065946 Civil Docket Sheet Receipt No. 065957 Civil Docket Sheet Receipt No. 065959 Excerpts from Applegate's testimony in the District Court action

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 10 of 98

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
P R O C E E D I N G S THE CLERK: The United States Court of Federal

Claims is now in session, the Honorable Lawrence M. Baskir presiding. Salt River Pima-Maricopa Indian

Community v. United States, Case No. 06-943L comes before the Court today, Monday, December 10, 2007, for an evidentiary hearing regarding the Defendant's motion to dismiss pursuant to 28 U.S.C. ' 1500. THE COURT: Good morning, everybody. Should

we start by having you all identify yourselves, please? MR. HARPER: Good morning, Your Honor. Keith

Harper for the Salt River Pima-Maricopa Indian Community. MR. AUSTIN: MS. MUNSON: Bill Austin for Plaintiff. Good morning, Your Honor.

Catherine Munson for the Plaintiff. THE COURT: MR. LARSEN: Good morning. Good morning, Your Honor. Kevin

Larsen, Department of Justice for the United States. Here with me is co-counsel, Mr. John Martin and Laura Maroldy, also from the Department of Justice. MS. MAROLDY: MR. MARTIN: THE COURT: Good morning, Your Honor. Good morning, Your Honor. Good morning.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 11 of 98

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
request? MR. LARSEN: And Mr. Thomas Barton for the

.Department of Interior. THE COURT: Good morning, sir. There are a

few preliminary matters.

There's a motion by the

Plaintiff to include in this record the record of the proceedings before Judge Hewitt. have a problem with that? MR. LARSEN: Your Honor, I think the Mr. Larsen, do you

Plaintiffs in this litigation between the parties and the briefing in that case doesn't necessarily oppose the admissions which last week that Your Honor had ruled on at the status conference. However, the United States

would request to be able to cross-examine whatever witness, including Ms. Applegate, that may fully bear on any relevant issues related to the timing of the case. THE COURT: Right. I think we are in The second matter had

understanding about that.

Okay.

to do with meta data, which the government had requested of the Plaintiff. respect to the -MR. LARSEN: a formal request. Your Honor, I don't think we made Mr. Larsen, you did request that with

There were some issues about that

that we raised in the brief. THE COURT: So you have not made a formal

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 12 of 98

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
matters. THE COURT: MR. LARSEN: Mr. Larsen, do you have any? Your Honor, just one housekeeping matters? MR. HARPER: We have no other preliminary record. MR. LARSEN: THE COURT: No. Okay. That settles that, and then

I guess finally there was a request for reducing or supplemental briefing based upon the testimony that we're going to have today. MR. HARPER: THE COURT: Is that right, gentlemen?

Yes, Your Honor. Seems to me that's a good idea

since the briefing at the present time won't include what we hear today? That is sort of not what we're here We'll set some schedules after

for, so we'll do that.

we conclude with the evidentiary hearing, so I have no other preliminary matters, so let me ask, Mr. Austin, do you have any other matters? MR. AUSTIN: THE COURT: there by the way? No, Your Honor. Who will be lead counsel over Mr. Austin?

Mr. Harper?

MR. HARPER:

Your Honor, I'm counsel of

Ms. Munson will be doing the principal

examination this morning. THE COURT: Okay. Mr. Harper, any preliminary

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 13 of 98

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
matter. As Your Honor is aware, the parties filed

respective notices with the Court on Friday afternoon with regard to at least in part some of the issues that came up at the November 9 status conference with regard to some of the inquiries that Your Honor had raised with regard to some of the filings practices in the District Court. Certainly, I can say that I spoke with Ms. Munson and Mr. Austin about this by telephone on Friday afternoon, and there was a contemplation as to the parties potentially presenting some additional evidence before the client in the form of live witness testimony, at least that's the United States' request. I understand that Mr. Austin and Ms. Munson may have similar requests. MR. HARPER: Your Honor, we do have an

additional live witness to offer, Ms. Jennifer Romero, but I think it's a little bit different from what the government is offering. My understanding is that the

government witness's testimony is solely about hearsay matters, so that would be an issue. Our witness is

actually going to be giving testimony about direct observations that she made at the District Court, so I think there may be a little bit of a distinction there. I'm not sure if Ms. Munson has anything to add.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 14 of 98

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
MS. MUNSON: MR. LARSEN: I don't, Your Honor. Your Honor, if I may? The

parties discussed actually on Friday the possibility of being able to present this Court with a joint statement to the Court, and after our conversation on Friday afternoon, the parties agreed that we could not provide the Court with a joint statement to the Court. However, the Plaintiffs went ahead and filed it with their notice. They filed the statement, which the United States would say is hearsay with regard to a conversation Ms. Munson had with the District Court Clerk, and the United States did not tender or proffer its evidence and asks for the opportunity perhaps at the conclusion of the hearing if the Court feels it's necessary to at least allow the United State to proffer such evidence or present this evidence in the form of live witness testimony. I realize Mr. Harper's objection, and certainly we could be prepared to address that at the conclusion here. THE COURT: Let's wait. I had hoped of course

that you all could make a common statement, which apparently is not so. I would be prepared to take

representations by counsel rather than having counsel or

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 15 of 98

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
a witness come and testify as to conversations. MR. LARSEN: THE COURT: Okay. And I would be prepared to take You of

that from both sides if you have no objection.

course would lose the right to cross examine on this matter, but it doesn't seem to me that weighty. MR. LARSEN: Certainly, Your Honor. I

certainly can be prepared to make representations to what I know or what I personally witnessed, but, Your Honor, there is the additional issue as to the formal -- you indicated the government's position is there is potentially some additional relevant information out that there that may be relevant to this Court's jurisdiction that the United States did not purposely pursue because of administrative regulations in Federal Court, and I can address that. THE COURT: generalities. We're talking in abstracts and

I don't exactly know what you are

specifically referring to. MR. HARPER: Your Honor, we understand the

Court has an interest in these factual matters, and we understand there may be things within knowledge of counsel on our side and counsel on Defendant's side both that are hearsay in actuality, and we don't mind trying to make either some kind of a joint stipulation or both

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 16 of 98

15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
well. THE COURT: Thank you. Swear in the witness. Applegate. making representations. fair way to proceed. I think anything beyond that obviously if the Court thought it was necessary, we wouldn't have an objection, but at this juncture, we don't see the need for it in light of this live testimony taken here. THE COURT: Okay. So my current preference is I think that that would be a

to hear representations from you all, and we'll see if we need something more formal than that, so are prepared to call a witness? MR. HARPER: THE COURT: MS. MUNSON: Yes, Your Honor. Okay. We would like to call Alexis you

Your Honor, this is a notebook of

Plaintiff's exhibits I've handed Defendant's counsel. May I approach? THE COURT: MS. MUNSON: Just give it to Ms. Weeman. We have a copy for Your Honor as

Please raise your right hand.

Ms. Weeman, are you

prepared to swear in the witness? THE CLERK: Whereupon, ALEXIS APPLEGATE. No.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 17 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q A Q A that hard. having been duly sworn, was called as a witness and was examined and testified as follows: THE COURT: Thank you very much. It's not

16

Go ahead, Ms. Munson. DIRECT EXAMINATION BY MS. MUNSON: Please state your name for the record. Alexis Applegate. And where do you work? I work in the Washington, D.C. Office of

Kilpatrick Stockton, LLP. Q Were is that office located in relationship to

this Court? A 607 14th Street, which is just a couple of

blocks from here. Q Stockton? A Q I am a paralegal in the litigation group. And describe your educational background for And what's your position at Kilpatrick

us after high school. A After high school I went to a small Quaker

school in Greensboro North Carolina by the name of Guilford College. I obtained a B.S. in political

science and a B.A. in German studies graduating from the

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 18 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
honors program. I then did an internship at the

17

Environmental Law Institute here in D.C. at

which point

I stayed in D.C. to take a position at Kilpatrick Stockton. During that tenure at Kilpatrick Stockton I

completed my Masters in public policy at George Washington University in December of 2005. Q Turning now to the filing of the complaints,

who was responsible for filing the complaints on behalf of the Salt River Pima-Maricopa Indian Community in the Court of Federal Claims and District Court? A Q A I was. And when did you file those complaints? On December 29, 2006. I can't be precise of

the time due to the fact that there are no time stamps. Q And do you remember what day of the week was?

December 29, 2006 A Year's. Q A Yes.

It was a Friday, the Friday before New

Which of the complaints was filed first? I filed the Complaint in this Court, the Court

of Federal Claims, before District Court. Q And what time on December 29
th

did you file

the Court of Federal Claims complaint? A Shortly after 9:30.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 19 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q BY MS. MUNSON: If you would, please take a look at Can you identify the document Q A And how do you know that? I received an email from a colleague,

18

Katherine Bosken, that forwarded the final versions of the Salt River complaint in conjunction with two of our other tribal clients. And at that point we prepared

them and brought them over for filing. (The document referred to was marked for identification as Plaintiff's Exhibit No. A.)

Plaintiff's Exhibit A? for us, please? A

It's the 9:26 email I just referenced from

Katherine Bosken to myself and a number of other individuals forwarding the Tohono O'odham, Salt River and Ak-Chin CFC complaints. Q A And who is Katherine Bosken? Ms. Bosken is an attorney in our Winston-Salem on our team.

office who is Q

And why didn't her email include a link to the

Passamaquoddy Court of Federal Claims Complaint? A Another one of my colleagues, Justin Guilder, the finalization of that complaint.

was handling

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 20 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q And when was the Court of Federal Claims

19

complaint for Passamaquoddy finalized? A Q Simultaneously. What does Ms. Bosken's email say about the

Court of Federal Claims complaint for Ak-Chin? A Q A It forwards a final version. And was that actually the final version? It was not. It turned out we needed some

further information. Q And when was that complaint, the Ak-Chin Court

of Federal Claims final? A Q A Q It was after 11:40. And when did you file that complaint? Later in the afternoon. Why didn't you wait until the Ak-Chin Court of all four of

Federal Claims complaint was ready and file

the Court of Federal Claims Complaints at the same time? A clients. Well, we represent obviously several tribal I didn't want to adversely impact their

interest in filing these complaints due to the fact that we had been delayed on another. Q How many tribal trust complaints altogether

did you file on December 29th? A Seven. Four in this Court and three in the

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 21 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
complaint. District Court. Q Please describe for us each of the steps you those

20

took to complete the filing of each of complaints? A Sure.

We prepared, as I mentioned earlier,

the Salt River, the Tohono O'odham, and the Passamaquoddy, CFC complaints first. I brought those

over, I walked them over, filed them, obtained a receipt, and then walked back to the office. I arrived

and the District Court complaints for Salt River and Passamaquoddy were ready. I took a cab over to the

District Court, filed those with the intake clerk and took a cab back to the offices from the District Court at which point we prepared the Ak-Chin complaint for the CFC, walked that over and brought that back. Then we prepared the Ak-Chin District Court I took a cab over to District Court to file The intake clerk stated that she

the Ak-Chin complaint.

was too busy to complete the filing while I waited, so I returned to the office to return later to complete the filing . Q A Q What time did you start work that morning? I think it was like 7:30. Why the early start?

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 22 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q A. Q. BY MS. MUNSON: I'm sorry for interrupting you. Go ahead. If you would, take a look at Exhibit B? Can A We had a lot to do that day. I had in my

21

career not filed seven complaints in one day, so I wanted to insure there was enough time to get everything done. Q When was the District Court complaint for Salt

River ready to be filed? A Q A Actually, the night before on the 28th. Okay. How do you know that?

There was an email from myself to our IT guy, version of the Salt

Blaine Young, forwarding the final River complaint.

(The document referred to was marked for identification as Plaintiff's Exhibit No. B.)

you identify it? A Sure. It's an email from myself to Mr. Young,

the one I just mentioned forwarding an attachment of the PDF version of the Salt River complaint, so that he could put it on a CD per the District Court requirements.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 23 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q Q

22

If the District Court complaint for Salt River

was ready to be filed on the evening of December 28th why did you file the Court of Federal Claims first? A Mr. Harper instructed me to do it that way. (The document referred to was marked for identification as Plaintiff's Exhibit No. C.) If you would please turn to Exhibit C. Can complaints

you identify that document for us? A Sure. It's a 9:44 p.m. email on the evening

of the 28th from Keith Harper to our team, specifically it asks me to make sure the two Courts are not closing early. Q And why was there concern about the Court

closing early? A It was the day before both the New Year's

holiday and President Ford had passed away so there was another holiday. He wanted to make sure the Courts were

not closing early for those holidays. Q A And what did you do in response to the e-mail? I called both clerks' offices. The District The clerk

Court stated that there was no plan to do so. here in

the CFC stated that he didn't know of a plan

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 24 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
but he was not in charge of what the Chief Judge decided. Q A Q A What did you do with that information? I relayed it to Mr. Harper. And how did he respond? He asked me to file the CFC complaints first

23

both because of this comment by the clerk and because we had already filed the District Court complaint the day before and were familiar and comfortable with that process as we had done them before as well. The CFC

complaints, I had filed pleadings, but I had not filed complaints in the CFC before, so we wanted to allow

ourselves enough time to make any corrections if it was necessary. Q To your knowledge had Mr. Harper ever filed a

Complaint in the CFC? A Q Not to my knowledge. How did you respond to Mr. Harper's

instructions? A Q A I carried them out. And how did you do that? If for some reason I wasn't able to carry out

his instructions, I would have notified him of that, and I don't recall any such conversation with him, so I

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 25 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q please? A BY MS. MUNSON: If you would turn to Plaintiff's Exhibit D, Can you identify that? Sure. It's an email string actually

24

carried it out in the manner in which he instructed me. Q What time on the 29th did you file the

District Court complaint for Salt River? A My estimation again, there's no time stamp, It took me

but it's probably estimated around 10:30.

that amount of time to get them ready and then to get over to the District Court to file them. (The document referred to was marked for identification as Plaintiff's Exhibit No. D.)

specifically at 8:59 there's an email from Mr. Harper to myself and a number of other individuals saying that while we prepared the CFC complaints I should go the DDC. Q A Q And did you in fact do that? I did not.? And when did you receive this email or file

remember seeing this e-mail? A I don't remember seeing it until we started I was not at my desk when this

preparing for discovery.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 26 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q BY MS. MUNSON: If you would, please turn to Plaintiff's Can you identify email came through. I was upstairs on another floor

25

working with Mr. Guilder and Mr. Harper and a number of other individuals on preparing the complaints. In

addition, at about that exact time I was calling the clerk's offices as they were opening to make sure they weren't closing. didn't have In addition, at the time, at least, I

a Blackberry, so I wouldn't have been

checking my emails. (The document referred to was marked for identification as Plaintiff's Exhibit No. E.)

Exhibit E and take a look at that. that for us? A Sure.

It's a petty cash slip, which is what

our firm uses for cash reimbursements with two taxi cab receipts attached. They represent an a.m. notation,

meaning that it was in the morning and my first trip of the day from our offices to the District Court at 333 Constitution. Q A And who made the a.m. notation on the receipt? I did later that day. It was year end so I

had to get all reimbursements and time in, in order to

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 27 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
with Q BY MS. MUNSON: make sure the bills closed at the end of the day. Q How many additional trips did you make to

26

District Court that day? A Two additional, I made three total. (The documents referred to were marked for identification as Plaintiff's Exhibit Nos. F and G.)

If you would please take a look at Exhibits F

and G and identify those documents for us please? A Sure. Exhibit F is again a petty cash receipt There's an indication that it's the

taxicabs.

second trip of the day which would be my first trip with regards to Ak-Chin. Again, I made that notation that Similarly, G is

day and submitted them that day.

another petty cash receipt with more taxi cab receipts to and from the District Court with the Ak-Chin notation stating that it was another trip for the Ak-Chin

complaint. Q What time of day was the taxi trip notated

with the second trip, which you testified was the first trip for Ak-Chin? A The only time I have, it would have had to

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 28 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q BY MS. MUNSON: have been before12:41. Q A How do you know that? I sent an email to Mr. Austin at 12:41

27

stating that I had completed dropping off all the filings, but was waiting for the clerk to finish the summons and prepare it all for filing. (The document referred to was marked for identification as Plaintiff's Exhibit No. H.)

Could you please turn to Plaintiff's Exhibit H

and identify that document? A Sure. This is again a string of emails. My

12:41 email that I just referenced is there from myself to Mr. Austin apologizing for just getting back to him as I was preparing and filing complaints, that we had filed them all but I was waiting for a summons. Q For which District Court complaint were you

waiting for the summons? A Q A Ak-Chin. And how do you know that? The Ak-Chin complaint was the last complaint I It was memorable in several senses ­

filed of the day.

One, it was somewhat odd because I had to drop it off

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 29 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q BY MS. MUNSON: Please turn to Exhibit I and identify that and then go back and pick it up. In addition, I know

28

that my last trip of the day was to the District Court, and the District Court sequentially numbers their case numbers, and the Ak-Chin was the last of the ones I filed that day. Q How do you know that the District Court

sequentially numbers the complaints? A I myself called the clerk's office to inquire

as did some of my colleagues. Q What time of day was your last trip to the

District Court? A Well, I know it was between 12:41 and I think

it's 2:23. There was another email that I sent to Mr. Austin stating that everything was done. (The document referred to was marked for identification as Plaintiff's Exhibit No. I.)

document for us? A It is the 2:23 email. It states I just got

back from the Court leaving soon, have to get my time in before I leave.So at that point in time I had completed everything and had given them to the process server to

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 30 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q A Can you identify that for us, please? It looks to be from the website notice down Q BY MS. MUNSON: be served. \. (The document referred to was marked for

29

identification as Defendant's Exhibit No. 3.)

Please turn to what the government has marked

as Exhibit 3 in support of the Motion to Dismiss, it's the last document in the notebook with tab 3?

here -- a PACER printout of the initial filings that were made on December 29, 2006. Q And what does this listing reflect with regard

to the District Court complaints for Salt River and Passamaquoddy? A Q They are the first filed of the day. And how do you reconcile the fact that

Passamaquoddy and Salt River were first two filed in the District Court when you testified that you had filed complaints in the Court of Federal Claims prior to filing these? MR. LARSEN: MS. MUNSON: Objection, leading, Your Honor. I'm just asking her how she's

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 31 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q Q reconciling something. My question doesn't in any way

30

suggest what the answer to that question should be. is not a leading question. MR. LARSEN: THE COURT: Your Honor?

It

I'm not sure how the witness is in

a position to reconcile it at all. MS. MUNSON: THE COURT: MS. MUNSON: Okay. Why don't you rephrase it. Okay.

BY MS. MUNSON: What time of day did you file the Salt River

and Passamaquoddy complaints? A As I mentioned earlier it was around 10:30 in

the day; 10:30 in the morning. It seems plausible to me that they would therefore be the first two of the day, due to the fact complaints aren't usually filed in my experience until later in the afternoon so you have a full day to prepare MR. LARSEN: THE COURT: Your Honor? It's based upon the witness's

experience, and so I'll just take it like that. MR. LARSEN: Okay.

BY MS. MUNSON: Have you reviewed any of the filings listed on

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 32 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q Exhibit J? Exhibit J ? A Sure. BY MS. MUNSON: the docket sheet showing the actions initiated on December 29th? A I have, I reviewed

31

everything filed after Ak-

Chin through the PACER service provided by the Court system. Q A And what do these filings show? They show that after the Ak-Chin case, there

were only nine cases that were filed in person during business hours. Q A And how do these listing show that? They have the same file stamp as those that

were filed during business day for ours. (The document referred to was marked for identification as Plaintiff's Exhibit No. J.)

If you would please take a look at Plaintiff's Could you identify the documents included in

After the 15 that were filed in person,

there are five here ­ Coleman v. Lappin ) is the first here. They are all marked with the received stamp, at

of earlier date than when they were filed, so Coleman v. Lappins was received on December 11 and was not filed

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 33 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q MR. LARSEN: Your Honor, just for the record, the

32

until December 29, Wills. v. D.C. Jail (ph) was received on December 12 and filed on December 29 -- Harris v Goins Jr. was received on November 29; filed on December 29. Harley v. U.S. Parole Commission was received on October it looks like 13th, 2006; filed December 29th, and the last was received November 27th and received December 29th. That indicates that the

documents when they were received didn't have everything that they needed, perhaps not the filing fee, and therefore had to be held until they were ready.

witness has now just testifying as to random speculation as to why the Complaints weren't filed. THE COURT: No, I understand. I understand.

BY MS. MUNSON: Referring you back to Defendant's Exhibit 3,

what do the pleadings listed on this docket sheet after Stamps versus Secretary show -- that's on second page

of Defendant's Exhibit 3? A The next five are a number of Notices of

Removal that were filed in the after hours depository box that all have a time stamp that shows that they were

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 34 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q A Q please? A Sure. The first coincides with what is on It's Beynum v. Clay. It was BY MS. MUNSON: Okay. Sure. Can you identify those documents for us, Now please take a look at Exhibit K. filed after the Court was closed. (The document referred to was marked for

33

identification as Plaintiff's Exhibit No. K.)

Defendant's Exhibit 3.

dropped in the depository box at 5:53; Ruffin. Department of Youth Rehabilitation Services ( was dropped in at 5:53; and Wilson-Green ( was 5:52; CruzPacker was 5:51 and Davis was 5:58, indicating that they were all filed in the after hours depository box. Q And based on the pleadings that you just

reviewed in Exhibit K, e when were the complaints listed in Defendant's Exhibit 3 that were Notices of Removal filed? ? MR. LARSEN: Objection, Your Honor. This listed after those

witness does not have first-hand knowledge of any of this evidence that she's testifying to. The documents

can speak for themselves, in fact the documents can

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 35 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
documents. speak for themselves as the only evidence really the Court has ordered. complaints. Ms. Applegate did not file these

34

Ms. Applegate knows just as much as any of

us in this courtroom about what happened to the filings. MS. MUNSON: All she's doing Your Honor is

she's not offering any sort of expert testimony here or specialized knowledge. She simply going through the notations

pleadings, and she's just telling us what

on the documents themselves say about what time they were filed. MR. LARSEN: MS. MUNSON: Your Honor? We're simply going through and

authenticating the documents to get them into the record. THE COURT: You don't have to authenticate the

They're self-authenticating. MR. LARSEN: The documents speak for

themselves. THE COURT: MS. MUNSON: something else. THE COURT: I assume you agree with their Okay. They do. All right. Well, let's go on to

admission and we'll grant that motion. MS. MUNSON:

Yes, thank you, Your Honor.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 36 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q BY MS. MUNSON: Q BY MS. MUNSON:

35

As a paralegal employed by Kilpatrick Stockton

over the past six years, approximately how many in person filings have you done? A Q filings? A They were almost always filed in the afternoon Hundreds. And at what time of day did you make these

to give as much time as possible to work on the document. Q And prior to December 29th, how many in person

filings had you done by 10:30 in the morning? A None that I recall. (The document referred to was marked for identification as Plaintiff's Exhibit No. L.)

If you would please take a look at Exhibit L?

Can you identify that document for us? A It's an email string between yourself and

myself, you had e-mailed me asking me: do you know of a way to find out what time the SR and Passamaquoddy cases were filed in the CFC and the District Court on December 29th.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 37 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q sentence? A Well, my first sentence, No there's no o And what was your response, the first

36

precise way.

There's no time stamp on the documents

filed during the clerk's office business hours, just the date. Q Now, the second sentence in your April 23

response referred to your having "dropped them off at the intake clerk so she can process them." that about? A That was the Ak-Chin complaint that I What was

referenced earlier. Q And let me direct your attention to the

sentence in your the April 23 response that begins with "As for the CFC..." It says, "As for the CFC, I know I

went over there and we were missing something, so I had to come back to the office and get it." Please explain

for us how many trips you made to CFC and why? A Again, I made two trips to CFC. The first was

to file the Salt River, O'odham.

Passamaquoddy and Tohono I referenced the

The second was the Ak-Chin.

missing something, -- I believe I got that confused with admissions packets that I had to bring over in January 2007 for Mr. Austin and another Kilpatrick Stockton

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 38 of 98

APPLEGATE - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
this time. Q What else have reviewed since then regarding attorney in which I was missing an element of the

37

packet and had to return. Q And in your email response on April 23, what

do you say regarding the emails in your sent box? A I said I would forward you any emails from my

sent box that I found. Q A And did you review those emails? I did and I forwarded them to you

the filings? A I have reviewed Court rules, both local and I have reviewed my

federal, Rules of Civil Procedure, e-mails

in addition to the emails that were produced in

discovery with regard to this issue. And I have reviewed pleadings filed in the case regarding this issue. Q

What have you concluded based on your review of those materials? A (inaudible). the Salt River CFC complaint

That I filed

before I filed the District Court Complaint.. MS. MUNSON: I have no additional questions at

I would like at this point to move Exhibits

A through L into evidence.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 39 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
break. MR. LARSEN: Thank you. THE COURT: MR. LARSEN: MR. LARSEN: THE COURT: No objections. Okay. They'll be admitted.

38

(The documents referred to, previously identified as Plaintiff's Exhibit Nos. A through L, were received in evidence.) Mr. Larsen? Your Honor, may I have a couple Would

of minutes before I start my cross-examination? that be okay? THE COURT: Sure.

We'll take a five-minute

(Whereupon, a short recess was taken.) THE COURT: MR. LARSEN: Mr. Larsen, are you ready? Yes, Your Honor. Thank you.

Your Honor, just like the Plaintiff, the government also has a binder of exhibits I've shared with counsel. I approach, Your Honor? THE COURT: MR. LARSEN: Yes, please. I've provided identical copies May

for the Court, for the clerk and for Ms. Applegate. CROSS-EXAMINATION

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 40 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q Q A Q BY MR. LARSEN: Good morning, Ms. Applegate. Good morning. During the break, Ms. Applegate, you saw me

39

scribbling on the board here, and I did this just for demonstrative purposes. MR. LARSEN: enough for you to see? THE COURT: It's large enough, but there's not Your Honor, is the writing large

enough contrast, so why don't you explain what it is. MR. LARSEN: THE COURT: MR. LARSEN: Okay. The record can't see it either. Sure, Your Honor. Sure.

BY MR. LARSEN: What I went ahead and did was try to create

the series of events that you testified to on direct, and I used some abbreviations because some of the tribal names are rather long, but the letter PMQ I've abbreviated for the tribe Passamaquoddy Tribe of Maine v. United States. The abbreviations SRPM stands for

Salt River Pima-Maricopa Indian Community, TO is Tohono O'odham. Again, I repeated the same abbreviations down here, and you'll see down toward the bottom of the board

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 41 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q

40

the Ak-Chin and Ak-Chin, and then off to the right-hand side you see the abbreviation CFC. That means the Court

of Federal Claims, DDC the United States District Court for the District of Columbia. BY MR. LARSON: Ms. Applegate, you testified that on the

morning of December 29, 2006, that you filed the complaints in this Court for tribal plaintiffs Passamaquoddy Tribe of Maine and Salt River PimaMaricopa Indian Community and the Tohono O'odham Nation first, correct? A Q I did. You testified that that was somewhere in the

ball park of about 9:30 a.m. A Q Shortly after 9:30. Okay. You then went to the District Court,

and you testified that after you had gone back to the office and done what you needed to do over there, you took a taxi to District Court and filed complaints in the Passamaquoddy Tribe of Maine and the Salt River

Indian Community, both of these versus Dirk Kempthorne and various other defendants? A Q Yes. Dirk Kempthorne. Excuse me. In the District Court, and

Right.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 42 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q BY MR. LARSEN: Okay. Q Right. Okay. And then you returned back to that was approximately 10:30 in the morning, correct? A Yes, but as I said, it's an estimation. I

41

figure out how long it would have taken me to do the actions I needed to do and estimated it was 10:30, yes.

your office, and I think your testimony was that you said that you discovered that the Ak-Chin Court of Federal Claims complaint was then ready. You prepared

that complaint, walked down to this Court and filed it, and then finally you took a cab back to the District Court and filed the District Court action for the AkChin Tribe, correct? A Well, finally I took it to the District Court Returned later to file it once it

and dropped it off. was ready. Q Right.

Okay.

But you'd agree that this is

your best estimate of the sequencing? A Yes. (The document referred to was marked for identification as Defendant's Exhibit No. 1.)

Now, I'd like to go through some of the

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 43 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

42

evidence that some of these documents you may have seen before, and I'll go through them, and they may have a different government or Defense exhibit, but I certainly you have any questions feel free to go over it. Now,

I'd like you to first turn to the exhibit that's behind Tab No. 1, the Government's Defense Exhibit No. 1 in the government's folder. A Q Yes. And I believe you did testify to this exhibit

with Ms. Munson, so at 8:59 in the morning on December 29, you received this email, or least your email system received this email directing you from Keith Harper that you're to file the complaint in the District Court action while we presume changes were being made to the Court of Federal Claims complaint. A Is that correct? Q

That is what the e-mail states, yes.

Right.

And you also testified that sometime after

Mr. Harper's 8:59 email on December 29 that you were orally countermanded by Mr. Harper. He told you forget

the instructions he gave you earlier that day and file the Court of Federal Claims action. A Is that true? I don't

I'm not sure if he told me to forget.

remember ever hearing anything about the District Court being filed first, period. So but yes he did orally

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 44 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
instruct me to file the Court of Federal Claims first. Q

43

And that was the action in this case, the Salt

River Pima-Maricopa Indian Community? A Q Yes. And so your understanding was that you were to

file then the complaints in this Court first? That was your testimony? A Q Yes. Now, you agree that 8:59 in the morning on

December 29 that the Court of Federal Claims complaints were not yet prepared to be filed? A No. There will still changes being to the I had prepared all the other

complaints themselves.

necessary elements the day before and throughout the week before. Q Okay. And you know this because you testified

on direct that you received an email from an associate in one of your firm's other offices, Ms. Katie Bosken, and transmitting the final versions of these complaints at approximately 9:26 a.m. on December 29? A Q That's true. And then I believe you also testified that

another associate at your firm was working on the Passamaquoddy complaint at 9:26 a.m?

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 45 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q BY MR. LARSEN: Now, I'd like you to look at Exhibit No. 5. Q BY MR. LARSEN: If you would look at Defense Exhibit No. 4? A Yes. (The document referred to was marked for

44

identification as Defendant's Exhibit No. 4.)

Ms. Applegate, this document, Defense Exhibit No. 4, is this document the e-mail that you were just discussing, the transmitting the final copies of the complaints? A Q Yes. And these at 9:26 were not ready for filing.

Is that true? A At 9:26 they were ready for filing. filed. They were

to be printed out and copied to be Q Right.

We'll go through that, but you weren't

at the courthouse steps at 9:26 to present them for filing. A Were you? No. (The document referred to was marked for identification as Defendant's Exhibit No. 5.)

Do you recognize this document, Ms. Applegate?

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 46 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q Okay. And the document is an email from A Q Roybal. direct. A Q A I do. It's an email from Justin Guilder to Edward I think you testified to this document on Isn't that true? I did. And the document -Actually, no. No. I don't think I actually

45

testified to this one, no. Q Okay.

I'm familiar with it.

Do you recognize --

Justin Guilder. firm? A Q

Is Justin Guilder an associate at your

He is in the DC office. Right. And Edward Roybal, he's an outside

counsel for the Ak-Chin Indian Community? A Q Yes. And so at 11:41 Mr. Guilder was saying can you

give me some information related to the Ak-Chin complaint, correct? A That's correct. (The document referred to was marked for identification as Defendant's Exhibit No. 6.)

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 47 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q Look at Exhibit No. 6 please, Ms. Applegate.

46

It's also an email from Justin Guilder to Mr. Roybal, and that's Friday, December 29 at 1:28 p.m. A It's actually, to correct you, it's from Mr.

Roybal to Justin Guilder. Q Thank you. Thank you. My mistake. Again, if

you look down further in the email chain it looks to be that Exhibit No. 5 is consumed in Exhibit 6? A Q Right. And this appears to be a response at 1:28 p.m.

Do you know whether Mr. Guilder had gotten that information prior to 1:28 p.m.? A Yes. It was a piece of information we were

able to find elsewhere. Q Okay. received? A It was pretty close to around the 11:41 time But do you know when that information was

when we were were trying to find it at the same time we e-mailed Mr. Roybal. Q you know? A Q I don't know. Okay. But we do know at least that Mr. Pretty close? Five minutes, 10 minutes, do

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 48 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Guilder did not have it as of 11:41, so now let's look back at Exhibit No. 4 just turning your attention back to Exhibit 4, let's just assume for purposes of your testimony here that aside from the Ak-Chin complaint

47

that you testified that you filed the Ak-Chin complaint separately from the other three, and that would be Passamaquoddy, Salt River and the Tohono O'odham complaints that you just testified it was at least 11:41 in the morning that the last one was filed. Let's go back to 9:26 a.m., and I would like to walk you through the steps you took that morning starting at 9:26 a.m. when this email had come in transmitting these three or four complaints that you say you were ready for filing. at 9:26 a.m. on the 29th? A In and near Mr. Guilder's office and at his Do you recall where you were

secretary's station right outside his office. Q Do you know when you received this email or

were notified that complaints were ready to be filed? A Pretty simultaneously. Mr. Guilder was the

one who notified me about and he received the e-mail at 9:26. Q A Okay. Within a few minutes?

. If not at the same time, right, we were

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 49 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
right there. Q Okay. Now, you testified on direct that you

48

have to file ­- I believe you testified on direct, but if I'm incorrect, please do correct me, but you testified that each complaint in the Court of Federal Claims required you to make seven copies of each complaint. A. Q. That's correct. And you were going to file as of 9:26 in the

morning, you knew you had to file the Passamaquoddy, Salt River Pima-Maricopa and the Tohono O'odham complaints, so you needed to make 21 copies of the complaints? A I needed to make 21 copies of a less than 20-

page document, yes. Q Okay. So you made 21 copies of three

complaints? A Q A I did. Or seven copies -Let me rephrase. It wasn't necessarily me

that did it.

There was a team working on getting all

this together, there were several of us getting these together simultaneously. Q Were you one of the people though that were

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 50 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
making copies? A Q I was in the copy room, yes. Okay.

49

So you made the three, the seven copies

of each of the three complaints, and is the copy machine near your desk or on another floor? A Again, I wasn't anywhere near my desk, but

it's right next to Mr. Guilder's office, yes. Q Okay. Okay. And do you recall about how long

it took to run the 21 copies of the three different complaints? A I don't recall specifically. I know that we

have multiple machines and that I can expect they also automatically do. Q A Okay. They are pretty state of the art, so it five to 10 minutes tops. So we're at 9:36 at the staple and do everything you need them to

couldn't have taken more than Q Five to 10 minutes?

very minimum if it's five to 10 minutes. A Q Yes. Now I'd like you to turn back to Exhibit 1 and Exhibit 1 again is an

look it briefly for a minute. email chain.

When we first discussed Exhibit 1, we were

talking about the 8:59 email, which you received from

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 51 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Mr. Harper. email. I'd like you to look actually at the top

50

It's an email that's actually dated December 29, see the email chain directly

2006, at 2:24, and you

below that from a Danya Stephens? A Q A Yes. Is Danya Stephens employed at your office? She's in another office, but she's employed

with Kilpatrick Stockton. Q Okay. And you see the subject line it says,

"need rush checks," and that email is time-stamped 10:09 a.m.? A Q Yes. At least we know that you have the copies of Are these rush checks

the other checks you needed.

referring to the filings fees-A Q A They're not. Okay. What are they? They

They are another matter completely.

don't have anything to do with Passamaquoddy, Salt River, Tohono O'odham or Ak-Chin. Q chain? A They are a part of the email chain because Can you explain why they're part of this email

they are a related tribal client that we did not end up

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 52 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
filing a complaint for. Q Okay. So your testimony is you already had

51

the checks? A Q I had prepared the checks prior to this, yes. Okay. Now, in addition to getting checks, and

you said you already had them and 21 copies of the complaints, had you previously prepared civil cover sheets? A Q I had. For both courts. Now, when you completed the copy process, and

you provided these final copies for Mr. Harper, you needed to have one original signed copy. A Q That is true. All right. So you got Mr. Harper to read Is that true?

through each complaint and sign that one original complaint before you made the copies, correct? A Q A Q A Q Yes. Is Mr. Harper's office near the copy room? It was at the time, yes. Was it a couple of minutes away? Not even -- less than a minute away. Okay. So it's probably 9:45. We know it's at

least 9:36 before you were ready to walk down to the Court of Federal Claims. Do you agree with that?

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 53 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q What floor is your office located A Q were on? A Q at 607 14th Street.

52

We're at the nine through 11th floors. And what floor ­ Do you recall what floor you

The floor that I was on that day was the 11th. So approximately let's just say 9:40 in the

morning you got on the elevator and walked down the street, and you walked to the Court of Federal Claims, which is approximately only a half a mile? A Q A No. Absolutely, not.

Four tenths of a mile? I don't know. I know it takes me less than

five minutes to walk here today. Q So it took you less than five minutes to walk

roughly 0.4 miles? A Q Yes, if you look it up on Google, sure. So you traveled about four-tenths of a mile in

five minutes? MS. MUNSON: Objection, Your Honor. She's

already testified she doesn't know how far it is, and that it took her less than five minutes. BY MR. LARSEN: Did it take you four minutes?

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 54 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
BY MR. LARSEN: A It took me less than five minutes.

53
I can't, I

don't know. Q Okay. You walked up to the court. You stood

in line at the -- was there a line at security? A Q A Q No. You walked straight to the clerk's office? I did. Okay. And then you filed your three

complaints in Passamaquoddy, Salt River and Tohono O'odham? A Q I did. And you took these 21 copies, and you filed

them, correct? A Q I did. And you provided the intake clerk with copies

of the complaints, the civil cover sheet, the filing fees, and I think you testified on direct that you then received a file-stamped copy of the complaint received it and walked back to the office? A That's correct. (The document referred to was marked for identification as Defendant's Exhibit No. 7.)

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 55 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q Okay. Please look at Exhibit No. 7. Do you

54

recognize this document? A Q document. A Yes. Okay. I've seen it before. Well, how do you recognize the

You said you've seen this before? I've seen it in these proceedings for

discovery purposes. Q Okay. Could you just read into the record the

Bates label number at the bottom right-hand corner? A Q SR00014. Okay. Would this be the copy of the receipt

that you received when you filed the complaint in Salt River Pima-Maricopa Indians Community Case? -A Q It looks to be, yes. Could I get you to look now at -- strike that.

Do you recall approximately, Ms. Applegate, how long it took you to stand in line, file the complaint, get copies of the complaints in order to be ready to walk out the door? MS. MUNSON: Objection, Your Honor. She's

already testified that she did not have to stand in line. MR. LARSEN: the standing in line. I'm sorry, Your Honor. Strike

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 56 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
-A Dropped off the CFC materials, picked up the Q BY MR. LARSEN:

55

Do you recall approximately how long you were

at the Court of Federal Claims? A I recall that it did not take me very long at They processed my

all, there no one was there.

complaints very quickly, in fact, I have a specific recollection of thinking why Keith and I were so

worried about this because it was a very easy process. Q Okay. And so then your testimony is once you

completed your filing, you got your Court-stamped copies and your receipts, you walked back to the office, and you discovered that at that point that the Passamaquoddy and the Salt River complaints were ready for filing? A Q Yes. Okay. So again, without going through all the

details, you went up to the seventh or the eighth or ninth floor, in your office -A Went to the 11th floor to find that everything

had been prepared for me already, the copies and what not had been made and returned back down to catch a cab. Q So popped in the office, grabbed the materials

DDC materials and then walked back and got on the

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 57 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
elevator. Q Okay.

56

And then you took a cab to the District

Court, correct? A Q Yes. Do you recall about how long it took you to

take a cab to District Court on December 29? A I do it regularly. It usually takes five to

10 minutes. Q And when you got to the District Court, you

then went through security? A Q A Q A Q Yes. Walked to the clerk's office. Yes. And then stood in line. Not that I recall no. Okay. And then you filed the complaints in Was there a line?

Passamaquoddy and Salt River, and you testified that was approximately 10:30 in the morning? A Right. Yes, I got there and did that around

10:30 is my estimation. Q How many copies did you provide for a filing Do you recall? You

in District Court. A

It's, I believe it's an original and one.

then have the notice of related cases, the civil cover

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 58 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Yes. Q Right. sheet, the payment and a number of other items. Q Okay.

57

And so you provided those materials to

the intake clerk? A Q Yes. Okay. Did you at some point thereafter visit

the cashier? A Q A Q A Q Yes. And made your payment for filing fees? That's correct. And the cashier gave you a receipt per filing? She did. And the file stamped copies of the complaint

and (inaudible)? A The cashier didn't but the intake clerk did.

So you walked back to the intake clerk Was there a line there? It's all the same place,

and got your filings. A so no. Q Okay.

It's all the same.

And then you took a cab back from the

District Court, which is located at 333 Constitution Avenue, N.W. approximately 1.2 miles back to your office, and you said it took you about five minute. A Five to 10 minutes.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 59 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q A Q Five to 10 minutes? Okay.

58

That's what it usually takes. And when you got back to the office, then your

testimony is that you discovered that the Ak-Chin complaint for the Court of Federal Claims was ready at that point? A Q We were working on it at that time. Right. And as the evidence demonstrates so

far and your testimony is at least 11:41 when a request for additional information was being made by the tribe's counsel to Ak-Chin? A No. The additional information was requested

by Mr. Guilder to the tribes. Q A Q Right. Right. So let's assume that Mr. Guilder got the By your firm, right?

information he needed in about four minutes so -A Q It was public information, so it was quick. Okay. So we know it would have been about

11:45 in the morning? A Q Yes, I think along those lines. And then you needed to make seven copies of

the Ak-Chin complaint? A Yes.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 60 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
into this Q And you said you prepared the records and

59

filing materials and you had a check, correct? A Q Yep. Again, you had Mr. Harper review the complaint

one last time and sign it? A Q I did. Now, Ms. Applegate, you testified -MS. MUNSON: Your Honor, we object to any

questioning going beyond into the events well after the Salt River filings. It's not relevant to the time of

the filings of the Salt River complaint in the Court of Federal Claims or the District Court (inaudible). THE COURT: MR. LARSEN: Mr. Larsen? Your Honor, the Plaintiff's went

entire filing sequence on direct is clearly

relevant, and since as we discussed the core and Ms. Applegate's credibility is essential to the determination of the Court's jurisdiction. She had set

forth a timeline, which includes the filing of not only the Salt River and Passamaquoddy complaint in the District Court, but also the Ak-Chin complaint, and the United States should be able to examine Ms. Applegate's testimony with regard to everything she testified to on direct.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 38-2

Filed 01/04/2008

Page 61 of 98

APPLEGATE - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Q MS. MUNSON: It's not disputed that the Salt

60

River complaint in the Court of Federal Claim or the district court was filed before any of the filings in Ak-Chin were done. This whole line of questioning is

not relevant to the very narrow issue before this Court, which is which complaint was filed first? The Court of

Federal Claims complaint for Salt River or the District Court. THE COURT: No. I think you opened the door

to this by talking about the sequence of events in filing the last Ak-Chin complaints, so I think it's open to Mr. Larsen to explore that, too. BY MR. LARSEN: Ms. Applegate, you just testified a moment ago filing fees and

that you had already preprepared the

cover sheets before the complaint was done, correct?