Free Motion to Amend/Correct - District Court of Federal Claims - federal

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 1 of 105

Exhibit D

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 2 of 105

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:

1 through 90

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 35-6

Filed 12/21/2007

Page 3 of 105

UNITED STATES COURT OF FEDERAL CLAIMS
Place: Date: Washington, D.C. 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 35-6

Filed 12/21/2007

Page 4 of 105

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: Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 5 of 105

3 KEVIN J. LARSEN, Esquire JOHN MARTIN, Esquire LAURA M. L. MAROLDY, Esquire

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 6 of 105

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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 7 of 105

5 E X H I B I T S PLAINTIFF'S EXHIBITS: IDENTIFIED A B C D 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 35-6

Filed 12/21/2007

Page 8 of 105

6 E X H I B I T S DEFENDANT'S EXHIBITS: IDENTIFIED 1 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 35-6

Filed 12/21/2007

Page 9 of 105

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 35-6

Filed 12/21/2007

Page 10 of 105

8 E X H I B I T S DEFENDANT'S EXHIBITS: IDENTIFIED 20 21 22 24 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 35-6

Filed 12/21/2007

Page 11 of 105

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 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. Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 12 of 105

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 MS. MAROLDY: MR. MARTIN: THE COURT: MR. LARSEN: Good morning, Your Honor. Good morning, Your Honor. Good morning. 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 natives Mr. Larsen, do you

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

understanding about that.

Okay.

had to do with meta data, which the government had requested of the Plaintiff. Mr. Larsen, you did

request that with respect to the -Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 13 of 105

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 record. request? MR. LARSEN: THE COURT: No. Okay. That settles that, and MR. LARSEN: made a formal request. Your Honor, I don't think we There were some issues about

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

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 We'll set some schedules

here for, so we'll do that.

after 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. Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 14 of 105

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 matters. THE COURT: MR. LARSEN: housekeeping matter. Mr. Larsen, do you have any? Your Honor, just one As Your Honor is aware, the THE COURT: preliminary matters? MR. HARPER: We have no other preliminary Okay. Mr. Harper, any

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 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 Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 15 of 105

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 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. add. MS. MUNSON: MR. LARSEN: I don't, Your Honor. Your Honor, if I may? The I'm not sure if Ms. Munson has anything to

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 Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 16 of 105

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 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 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 Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 17 of 105

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 not purposely pursue because of administrative regulations in Federal Court, and I can reference 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 making representations. would be a 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 I think that that

is to hear representations from you all, and we'll see if we need something more formal than that, so are you prepared to call a witness? MR. HARPER: Yes, Your Honor.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 18 of 105

16 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. witness. as well. THE COURT: Thank you. Swear in the Ms. Weeman, Applegate. THE COURT: MS. MUNSON: Okay. We would like to call Alexis

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

Please raise your right hand.

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

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 Heritage Reporting Corporation (202) 628-4888

US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 19 of 105

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 Kilpatrick Stockton, LLP. Q

17

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 honors program. I then did an internship at the which

Environmental Law Institute here in D.C. at 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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 20 of 105

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

18

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 29th did you file

the Court of Federal Claims complaint? A Q A Shortly after 9:30. And how do you know that? I received an email from a colleague,

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.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 21 of 105

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 Q BY MS. MUNSON: If you would, please take a look at (The document referred to was marked for

19

identification as Plaintiff's Exhibit No. A.)

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

Can you identify the document

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 Winstonon our team.

Salem 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 the finalization of that

Guilder, was handling complaint. Q

And when was the Court of Federal Claims

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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 22 of 105

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 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

20

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 all

of Federal Claims complaint was ready and file

four of 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

District Court. Q Please describe for us each of the steps you

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 23 of 105

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

21

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 forthe CFC, walked that over and brought that back. Then we prepared the Ak-Chin District Court complaint. I took a cab over to District Court to The intake clerk stated

file the Ak-Chin complaint.

that she 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 35-6

Filed 12/21/2007

Page 24 of 105

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 Q A. Q. BY MS. MUNSON: I'm sorry for interrupting you. Go ahead. If you would, take a look at Exhibit B? A We had a lot to do that day. I had in my

22

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 version of

guy, Blaine Young, forwarding the final the Salt River complaint.

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

Can

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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 25 of 105

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 mail? Q District Court requirements. Q If the District Court complaint for Salt

23

River was ready to be filed on the evening of December 28th why did you the Court of Federal Claims complaints 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

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 And what did you do in response to the e-

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 26 of 105

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 A I called both clerks' offices.

24 The District The

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

the CFC stated that he didn't know of a

plan 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

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 I carried them out.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 27 of 105

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 Q please? A BY MS. MUNSON: Q A And how did you do that? If for some reason I wasn't able to carry

25

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

If you would turn to Plaintiff's Exhibit D, Can you identify that? Sure. It's an email string actually

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 file the DDC.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 28 of 105

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 Q BY MS. MUNSON: If you would, please turn to Plaintiff's Can you identify Q A Q And did you in fact do that? I did not.? And when did you receive this email or

26

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

preparing for discovery. this email came through.

floor 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. the time, at least, I didn't have In addition, at 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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 29 of 105

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 Q BY MS. MUNSON: cab receipts attached. They represent an a.m.

27

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 receipt? A I did later that day. It was year end so I And who made the a.m. notation on the

had to get all reimbursements and time in, in order to make sure the bills closed at the end of the day. Q How many additional trips did you make to

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 There's an indication that

receipt with

taxicabs.

it's the second trip of the day which would be my first trip with regards to Ak-Chin. Again, I made

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 30 of 105

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 Q BY MS. MUNSON: that notation that day and submitted them that day. Similarly, G is another petty cash receipt with more

28

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 A for Ak-Chin? The only time I have, it would have had to

have been before12:41. Q A How do you know that? I sent an email to Mr. Austin at 12:41

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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 31 of 105

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

29

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 It was memorable in several

I filed of the day.

senses ­ One, it was somewhat odd because I had to drop it off and then go back and pick it up. In

addition, I know that my last trip of the day was to the District Court, and the District Court sequentially numbers their case numbers, and the AkChin 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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 32 of 105

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 Q A Can you identify that for us, please? Q BY MS. MUNSON: Please turn to what the government has Q BY MS. MUNSON: Please turn to Exhibit I and identify that to Mr. Austin stating that everything was done.

30

(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 be served. \. (The document referred to was marked for identification as Defendant's Exhibit No. 3.)

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

It looks to be from the website notice down

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 33 of 105

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

31

regard to tthe 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: reconciling something. Objection, leading, Your Honor. I'm just asking her how she's My question doesn't in any way It

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

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:

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 34 of 105

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 Q Q

32

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 the docket sheet showing the actions initiated on December 29th? A I have, I reviewed 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.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 35 of 105

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 Q BY MS. MUNSON: If you would please take a look at Could you identify the Q A And how do these listing show that?

33

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.)

Plaintiff's Exhibit J?

documents included in Exhibit J ? A Sure. 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 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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 36 of 105

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 Q A BY MS. MUNSON: Okay. Sure. Q 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. MR. LARSEN:

34

Your Honor, just

for the record, the 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 filed after the Court was closed. (The document referred to was marked for identification as Plaintiff's Exhibit No. K.)

Now please take a look at Exhibit K.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 37 of 105

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 Q please? A Sure. The first coincides with what is on It's Beynum v. Clay. It was Can you identify those documents for us,

35

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 after those Notices of Removal filed? ? MR. LARSEN: Objection, Your Honor. This listed

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 speak for themselves as the only evidence really the Court has ordered. complaints. Ms. Applegate did not file these

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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 38 of 105

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

36

pleadings, and she's just telling us what

notations 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: the documents. You don't have to authenticate

They're self-authenticating. The documents speak for

MR. LARSEN: themselves. THE COURT: MS. MUNSON: to something else. THE COURT:

They do. All right. Well, let's go on

I assume you agree with their Okay.

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

Yes, thank you, Your Honor.

BY MS. MUNSON: As a paralegal employed by Kilpatrick

Stockton over the past six years, approximately how many in person filings have you done?

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 39 of 105

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 L? Q BY MS. MUNSON: If you would please take a look at Exhibit A Q filings? A They were almost always filed in the Hundreds. And at what time of day did you make these

37

afternoon 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.)

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. Q sentence? A Well, my first sentence, No there's no o And what was your response, the first

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 40 of 105

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 precise way. There's no time stamp on the documents

38

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 second was the Ak-Chin.

the 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 attorney in which I was missing

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 41 of 105

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 Q an element of the packet and had to return. Q

39

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

What else have reviewed since then regarding

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 (inaudible).

on your review of those materials? A That I filed

the Salt River CFC complaint

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

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 35-6

Filed 12/21/2007

Page 42 of 105

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 break. MR. LARSEN: Thank you. THE COURT: MR. LARSEN: MR. LARSEN: THE COURT: No objections. Okay. They'll be admitted.

40

(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. May I approach, Your Honor? THE COURT: MR. LARSEN: Yes, please. I've provided identical copies

for the Court, for the clerk and for Ms. Applegate.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 43 of 105

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 Q Q A Q CROSS-EXAMINATION BY MR. LARSEN: Good morning, Ms. Applegate. Good morning.

41

During the break, Ms. Applegate, you saw me

scribbling on the board here, and I did this just for demonstrative purposes. MR. LARSEN: Your Honor, is the writing

large enough for you to see? THE COURT: It's large enough, but there's

not 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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 44 of 105

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 Q Tohono O'odham. Again, I repeated the same abbreviations down here, and you'll see down toward the bottom of

42

the board 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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 45 of 105

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 Q Right. Okay.

43

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

and that was approximately 10:30 in the morning, correct? A Yes, but as I said, it's an estimation. I

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

And then you returned back to

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 Ak-Chin Tribe, correct? A Well, finally I took it to the District Returned later to file it

Court and dropped it off. once it was ready. Q Right. Okay.

But you'd agree that this is

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 46 of 105

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 Q BY MR. LARSEN: Okay. Now, I'd like to go through some of your best estimate? A Yes. (The document referred to was marked for

44

identification as Defendant's Exhibit No. 1.)

the 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. Is that correct?

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 47 of 105

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 A That is what the e-mail states, yes. And you also testified that sometime Q

45

Right.

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. true? A I'm not sure if he told me to forget. I Is that

don't remember ever hearing anything about the District Court being filedfirst, period. So but yes

he did orally instruct me to file the Court of Federal Claims first. Q 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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 48 of 105

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 Q BY MR. LARSEN: complaints themselves. I had prepared all the other

46

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? A Yes. (The document referred to was marked for identification as Defendant's Exhibit No. 4.)

If you would look at Defense 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?

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 49 of 105

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 Q BY MR. LARSEN: A Q Yes.

47

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 No. (The document referred to was marked for identification as Defendant's Exhibit No. 5.) Were you?

Now, I'd like you to look at Exhibit No. 5.

Do you recognize this document, Ms. Applegate? 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

testified to this one, no.

I'm familiar with it.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 50 of 105

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 Q Q A Q Okay. Do you recognize --

48

I'm not sure. Okay. And the document is an email from Is Justin Guilder an associate at

Justin Guilder. your firm? A Q

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.) Look at Exhibit No. 6 please, Ms. Applegate.

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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 51 of 105

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 p.m. to be that A Q Exhibit No. 5 is consumed in Exhibit 6? Right. And this appears to be a response at 1:28

49

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

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 that you testified that you filed the Ak-Chin complaint separately from the other three, and that

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 52 of 105

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 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.

50

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. Do you recall where

you were at 9:26 a.m. on the 29th? A In and near Mr. Guilder's office and at his

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

right there. Q Okay. Now, you testified on direct that you

have to file ­- I believe you testified on direct, but if I'm incorrect, please do correct me, but you

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 53 of 105

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

51

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

making copies? A Q I was in the copy room, yes. Okay. So you made the three, the seven

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 54 of 105

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 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

52

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 to do. Q A Okay. They are pretty state of the art, so it five to 10 minutes So we're staple and do everything you need them

couldn't have taken more than tops. Q

Five to 10 minutes?

at 9:36 at the very minimum if it's five to 10 minutes. A Q Yes. Now I'd like you to turn back to Exhibit 1 Exhibit 1 again is

and look it briefly for a minute. an email chain.

When we first discussed Exhibit 1, we

were talking about the 8:59 email, which you received from Mr. Harper. I'd like you to look actually at the

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 55 of 105

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 top email. It's an email that's actually dated see the email

53

December 29, 2006, at 2:24, and you

chain directly 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 Can you explain why they're part of this

email chain? A They are a part of the email chain because

they are a related tribal client that we did not end

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 56 of 105

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 yes. Q Okay. Now, in addition to getting checks, up filing a complaint for. Q Okay.

54

So your testimony is you already had

the checks? A I had prepared the checks prior to this,

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. true? A Q That is true. All right. So you got Mr. Harper to read Is that

through each complaint and sign that one original complaint before you made the copies, correct? A Q A Q A 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.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 57 of 105

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 11th. Q What floor is your office located A Q Q Okay. So it's probably 9:45.

55 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?

at 607 14th Street.

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

you were on? A The floor that I was on that day was the

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?

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 58 of 105

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 Q A MS. MUNSON: Objection, Your Honor. She's

56

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? It took me less than five minutes. 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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 59 of 105

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 that. Q BY MR. LARSEN: Okay. Please look at Exhibit No. 7. received it and walked back to the office? A That's correct. (The document referred to was marked for

57

identification as Defendant's Exhibit No. 7.)

Do you

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 Do you recall approximately, Ms. Applegate, how

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 60 of 105

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 Q

58

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. BY MR. LARSEN: Do you recall approximately how long you I'm sorry, Your Honor. Strike

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

at 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 Yes.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 61 of 105

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 Q Okay. So again, without going through all

59

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 -A Dropped off the CFC materials, picked up the

DDC materials and then walked back and got on the elevator. Q Okay. 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 Yes. Walked to the clerk's office.

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 62 of 105

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 A Q A Q Yes. And then stood in line. Not that I recall no. Okay. Was there a line?

60

And then you filed the complaints in

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?

in District Court. A

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

You then have thenotice of related cases, the civil cover sheet, the payment and a number of other items. Q Okay. 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 filing? Yes. And made your payment for filing fees? That's correct. And the cashier gave you a receipt per

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 63 of 105

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 Yes. Q Right. So you walked back to the intake Was there a line there? A Q She did.

61

And the file stamped copies of the complaint

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

clerk and got your filings. A so no. Q Okay. It's all the same.

It's all the same place,

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 Q A Q Five to 10 minutes. Five to 10 minutes? Okay.

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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 64 of 105

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 request for additional information was being made by the tribe's counsel to Ak-Chin? A No. The additional information was

62

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 Q Yes. And you said you prepared the records and

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

Heritage Reporting Corporation (202) 628-4888
US2000 10516880.1

Case 1:06-cv-00943-LMB

Document 35-6

Filed 12/21/2007

Page 65 of 105

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 questioning going beyond into the events well after the Salt River filings.

63

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: went into this Mr. Larsen? Your Honor, the Plaintiff's

entire filing sequence on direct is

clearly relevant, and since they 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. MS. MUNSON: It's not disputed that the Salt

River complaint in the Court of Federal Claim or the district court was filed befor