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

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Exhibit B

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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: Date:

1 through 90 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]

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1 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 JOHN MARTIN, Esquire LAURA M. L. MAROLDY, Esquire Heritage Reporting Corporation (202) 628-4888

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

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3 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

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4 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 ECF PACER printout of Receipt No. 065958

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

19

66

87

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5 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

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6 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: Good morning, Your Honor.

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7 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 MR. MARTIN: THE COURT: MR. LARSEN: 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 -MR. LARSEN: made a formal request. Your Honor, I don't think we There were some issues about

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8 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 record. request? MR. LARSEN: THE COURT: No. Okay. That settles that, and 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. THE COURT: preliminary matters? MR. HARPER: We have no other preliminary Okay. Mr. Harper, any

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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 matters. THE COURT: MR. LARSEN: housekeeping matter. Mr. Larsen, do you have any? Your Honor, just one 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 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

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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 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 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.

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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 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 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.

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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 Applegate. 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: THE COURT: MS. MUNSON: Yes, Your Honor. 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

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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 25 Q A Q A that hard. witness. as well. THE COURT: Thank you. Swear in the Ms. Weeman,

13

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

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 I am a paralegal in the litigation group. Heritage Reporting Corporation (202) 628-4888 And what's your position at Kilpatrick

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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 25 Q

14

And describe your educational background for

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 I graduated in

science and a B.A. in German studies. the honors program.

I then did an internship at the

Environmental Law Institute after which 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 A before. Heritage Reporting Corporation (202) 628-4888 And do you remember what day that was? Yes. It was a Friday, the Thursday evening

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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 25 Q BY MS. MUNSON: If you would, please take a look at Q A Which of the complaints was filed first? I filed the Complaint in this Court, the

15

Court of Federal Claims, before District Court. Q And what time on a Thursday night 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 Lawson, that forwarded the final versions of the Salt River complaint in conjunction with tribe requirements. At that point we prepared them.

(The document referred to was marked for 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 Lawson to myself and a number of other individuals forwarding the Salt River and Ak-Chin CFC complaints. Q A our team. Heritage Reporting Corporation (202) 628-4888 And who is Katherine Lawson? Ms. Lawson is an attorney from the office on

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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 25 Q

16

And why did her email include a link to the

Passamaquoddy reference? A Another one of my colleagues checked on the

finalization of that complaint. Q And when was the Court of Federal Claims

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

Court of Federal Claims complaint for Ak-Chin? A Q A Q It forwards a final version. And was that actually finalized? It was not. It was sent back.

And when was that complaint, the Ak-Chin

Court of Federal Claims filed? 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 Federal Claims complaint was ready to be filed; all four of those Court of Federal Claims were ready? 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 complaints altogether did Heritage Reporting Corporation (202) 628-4888

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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 25 you file with the courts? A Seven.

17

Four in this Court and three in the

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

followed in filing those 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 when 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, the 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 What time did you start work that morning? I think it was 7:30. Heritage Reporting Corporation (202) 628-4888

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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 25 Q BY MS. MUNSON: I'm sorry for interrupting you. Go ahead. Q A Why the early start? We had a lot to do that day. I had in my

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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, Blaine Young, forwarding the PDF version of the Salt River complaint. (The document referred to was marked for identification as Plaintiff's Exhibit No. B.)

If you would, take a look at Exhibit B? identify it? A Sure.

Can you

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, the CD for the District Court requirement. Q If the District Court complaint for Salt

River was meant to be filed on the 28th why did you Heritage Reporting Corporation (202) 628-4888

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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 25 Q the CFC complaints first? A

19

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 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. Q A And when you -I called both clerks' offices. The District The

Court stated that there was no plan to do so.

clerk here at 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 What did you do with that information? I relayed it to Mr. Harper. Heritage Reporting Corporation (202) 628-4888

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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 25 Q A And how did he respond?

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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

complaint I had filed previous, but I had not filed complaints with CFC before, so we wanted to allow ourselves enough time to make any corrections if it was necessary. Q To your knowledge did Mr. Harper have a

problem with the complaints with 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 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 him? A My estimation again, there's no time stamp, Heritage Reporting Corporation (202) 628-4888

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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 25 Q please? A BY MS. MUNSON: but it's probably estimated around 10:30.

21 It took me

(inaudible) to get over to the District Court to file it. (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 (inaudible). Q A Q (Inaudible)? (Inaudible)? And when did you receive this email or

remember seeing it? 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. Miller and Mr. Harper and a number of other individuals preparing complaints. In

addition, at about that exact time I was calling the clerk's offices as they were opening to make sure they Heritage Reporting Corporation (202) 628-4888

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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 25 Q BY MS. MUNSON: If you would, turn to Exhibit E and take a Can you identify that for us? weren't closing. In addition, at the time they said

22

there was no Blackberry, so I wasn't checking my emails. (The document referred to was marked for identification as Plaintiff's Exhibit No. E.)

look at that. A

Sure.

It's a petty cash slip, which is what There are two

our firm uses for cash reimbursements. taxi cab receipts attached.

They represent an a.m.

notation, and anyway it was in the morning and my first trip of the day from our offices to the District Court. Q receipt? A I did later that day. We were in so I had And who made the a.m. notation on the

to get all of the reimbursements and file them. Q How many small 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 Heritage Reporting Corporation (202) 628-4888

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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 25 Q BY MS. MUNSON: Exhibit Nos. F and G.)

23

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 for a taxicab.

it's the second trip of the day which would be my first trip with regards to Ak-Chin. (inaudible) that day. Again,

Similarly, G is another petty Two are for It was

cash receipt with more taxi cab receipts.

the District Court with an Ak-Chin notation. 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 a trip for Ak-Chin? A Q A The only time I had it before it was 12:41. 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 that he was waiting for including (inaudible) all the filings that were waiting for the Court's (inaudible). (The document referred to was marked for identification as Plaintiff's Exhibit No. H.) Heritage Reporting Corporation (202) 628-4888

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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 25 Q BY MS. MUNSON:

24

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 about (inaudible), and (inaudible) filed and then I was waiting for a summons. Q For which Court complaint were you waiting

for the summons? A Q A I filed. Ak-Chin. And how do you know that? The Ak-Chin complaint was the last complaint It was notable for several reasons -- I had In

to drop it off and then go back and pick it up.

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

sequentially numbered the complaint? A I called the clerk's office to inquire

(inaudible). Q What time of day was your last trip to

District Court? Heritage Reporting Corporation (202) 628-4888

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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 25 Q BY MS. MUNSON: Would you turn to what the government has Q BY MS. MUNSON: Please turn to Exhibit I and identify that A

25

Well, I know it was between 12:41 and 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 stating I just got back

from the Court (inaudible) completed everything. (The document referred to was marked for identification as Defendant's Exhibit No. 3.)

marked as Exhibit 3? A Q A Well, the document has 3 on it? Can you identify that for us, please? It looks to be from the website -- a PACER

printout of the filings that were made on December 29, 2006. Q And what does this listing say with regard

to this Court's complaint -- Salt River and Passamaquoddy? Heritage Reporting Corporation (202) 628-4888

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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 25 Q A Q They are the first file of the day. And how do you reconcile the fact that

26

Passamaquoddy and Salt River were first 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

state what the answer to that question should be. I'll -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: What time of day did you file the Salt River

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

but it seems plausible to me that they were there (inaudible) due to the fact complaints aren't usually filed in my experience until later in the afternoon (inaudible). Heritage Reporting Corporation (202) 628-4888

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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 25 Q BY MS. MUNSON: If you would please take a look at Could you identify this? Q MR. LARSEN: THE COURT: Your Honor? It's based upon the witness's

27

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

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

docket sheet? A I haven't reviewed everything filed after

Ak-Chin through the PACER service. Q A And what does the filing show? It shows that after the Ak-Chin case, there

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

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

Plaintiff's Exhibit J? A Sure.

After the 15 that were filed in

person, there are five here -- Coleman (ph) is the first here. They are all marked with the received Heritage Reporting Corporation (202) 628-4888

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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 25 Q

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stamp, at an earlier date than when they were shown to be filed, so Coleman (ph) was received on December 11 and was not filed until December 29, Will (ph) was received on December 12 and filed on December 29 -Harris v Goings Jr. was received on November 29 and filed on December 29. Harley v Parole was received on October it looks like 13, 2006 and filed December 29, and the last was received November 27 and filed December 29. That indicates that the documents when they were received didn't have everything that they needed to have done to file and therefore (inaudible). MR. LARSEN: Your Honor, just for the

record, the witness has now just testifying as to random speculation as to why (inaudible). THE COURT: No, I understand. I understand.

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

with the pleadings listed on this docket sheet after stamps necessary -- that's on second page of Defendant's Exhibit 3? A The next five are a number of cases 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. Heritage Reporting Corporation (202) 628-4888

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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 25 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, (The document referred to was marked for

29

identification as Plaintiff's Exhibit No. K.)

Now please take a look at Exhibit K.

Defendant's Exhibit 3.

dropped in the depository box at 5:52; Department of Rehabilitation Services (ph) was dropped in at 5:53; and CS&Green (ph) was 5:52; Harper (ph) 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, one of those complaints listed in Defendant's Exhibit 3 that was listed after (inaudible)? MR. LARSEN: Objection, Your Honor. This

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. Ms. Applegate did not file these

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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 25 Q complaints. Ms. Applegate knows just as much as any

30

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 in specialized knowledge. She simply (inaudible)

pleadings, and she's just tying it with the notation on the documents themselves to 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 Heritage Reporting Corporation (202) 628-4888

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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 25 way. L? Q BY MS. MUNSON: If you would please take a look at Exhibit Stockton over the past six years, approximately how many in person filings have you done? A Q Hundreds. And at what time of day did you think you

31

filed those? A They were almost always filed in the

afternoon to give as much time as possible (inaudible). Q And prior to (inaudible), 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 to email 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 29. Q A And what was your response? Well, I at first said there's no precise

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

32

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 "Asking CFC..." It says, "Asking CFC, I know I

went over there and we were missing copies, 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 The

was to file the Salt River and Passamaquoddy. second was the Ak-Chin.

I referenced them, I said

something -- I believe I got that confused with an admissions packet that I had to run over in January 2007 in reference to Ak-Chin and another Kilpatrick document in which I was missing an element of the packet and had to return. Q And in your email response on April 23, what

do you say regarding the emails (inaudible)? A Q I forwarded an email from (inaudible). And did you (inaudible) email? Heritage Reporting Corporation (202) 628-4888

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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 25 THE COURT: MR. LARSEN: A Q A Q A I did. (Inaudible). When I forwarded them to -What else --

33

I have reviewed Court rules, both local and

federal, most other procedure I have reviewed the final email in addition to the emails that were produced in discovery (inaudible) this year, and I (inaudible) statements by (inaudible). Q When did you conclude the filing was

(inaudible). A I mean, I filed the Salt River CFC complaint

before I filed the (inaudible). MS. MUNSON: at this time. I have no additional questions

In light of the (inaudible), Exhibits A

through L be received in evidence. MR. LARSEN: THE COURT: No objections. Okay. They'll be admitted.

(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

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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 25 Q A Q break. MR. LARSEN: Thank you. of minutes before I start my cross-examination? that be okay? THE COURT: Sure.

34 Would

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 (inaudible). CROSS-EXAMINATION BY MR. LARSEN: Good morning, Ms. Applegate. Good morning. 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

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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 25 Q Q is. MR. LARSEN: THE COURT: MR. LARSEN: Okay.

35

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 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 Heritage Reporting Corporation (202) 628-4888

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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 25 Nation first, correct? A Q Yes.

36

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 Dick Kempthorne and various other defendants? A Q Yes, in the -Right. Excuse me. In the District Court,

and that was approximately 10:30 in the morning, correct? A Q A Q Yes, but as I said, it's an estimation. Right. Of how long it took. Right. Okay. 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 Complains 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 Heritage Reporting Corporation (202) 628-4888

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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 25 Q BY MR. LARSEN: Okay. Now, I'd like to go through some of

37

District Court and filed the District Court action for the Ak-Chin Tribe, correct? A Well, finally I took it to the District It was (inaudible). But you'd agree that this is

Court and dropped it off. Q Right. Okay.

your best estimate? A Yes. (The document referred to was marked for 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 have some questions to go over. Now, I'd

like you to first turn to the exhibit that's behind Tab No. 1, Defendant's 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 Heritage Reporting Corporation (202) 628-4888

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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 25 District Court action while we presume changes were being made to the Court of Federal Claims complaint. Is that correct? A Q I believe so. Right.

38

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. 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 filed (inaudible). 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 (inaudible)? A Q (Inaudible). 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 prepared all the other

complaints themselves.

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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 25 4? Q BY MR. LARSEN: necessary elements the day before (inaudible). Q Okay. And you know this because you

39

testified on direct that you received an email from an associate back in the offices, Ms. Katie Lawson, and transmitting the final versions of these complaints at approximately 9:26 a.m. on December 29? A Q Yes, sir. 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 Defendant's Exhibit No.

Ms. Applegate, this document, Defendant's Exhibit

No. 4, is this document 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 weren't ready for filing. They

were to be printed out and copied then filed. Q Right. (Inaudible), but you weren't at the

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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 25 Q BY MR. LARSEN: courthouse steps at 9:26 to present them for filing. Were you? A No. (The document referred to was marked for

40

identification as Defendant's Exhibit No. 5.)

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 one, no. Q A Q Okay. Do you recognize -I believe so. 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 -No. No. I don't think I testified to this

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? Heritage Reporting Corporation (202) 628-4888

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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 25 p.m. Q A Q Yes. So at 11:41 Mr. Guilder was saying can you

41

give me some information related to the Ak-Chin complaint, correct? A 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 Guilder. Q Thank you. Thank you. My mistake. Again, It's actually from Mr. Roybal to Justin

if you look down further in the email chain in reference to Exhibit No. 5, it looks to be that it could have been a response? A Q Yes. And this appears to be a response at 1:28

Do you know whether Mr. Guilder had gotten that

information prior to 1:28 p.m.? A filing. Q Okay. But do you know when that information was Heritage Reporting Corporation (202) 628-4888 Yes. He got that information regarding the

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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 25 time. Q you know? A Q Five minutes. Okay. But we do know at least that Mr. Pretty close? received? A It was pretty close to around the 11:41

42

Five minutes, 10 minutes, do

Guilder did not have it until 11:41, so now 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 would be Passamaquoddy, Salt River and the Tohono O'odham complaint 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 going to file them. you were at 9:26 a.m.? A In or near Mr. Guilder's office and at the Do you recall where

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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 25

43

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

one who notified me about (inaudible). Q A Q Okay. (Inaudible)?

(Inaudible). Okay. Okay. Now, I believe you testified

on direct, and 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, 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 Q (Inaudible). Okay. So you made 21 copies of three

complaints? A Q A did it. Q copies? A Q I was in the copy room. Okay. So you made the seven copies of these (Inaudible). Or seven copies -(Inaudible). It wasn't necessarily me that

There was a team working on this. Were you one of the people that were making

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

44

it's right next to (inaudible). 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 I can expect they were all used. Q A Okay. They are state of the art, so probably five

to 10 minutes. Q Five to 10 minutes? So we're at 9:36 at the

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

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

When we first discussed Exhibit 1, we

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

It's an email that's actually dated

December 29, 2006, at 2:24, and you can see the email chain directly below that from a Danya Stephens? Heritage Reporting Corporation (202) 628-4888

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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 25 A Q A Q Yes. Is Danya Stephens employed at your office? In another office of Kilpatrick Stockton. Okay. And you see the subject line says,

45

"need rush checks," and that email is as I understand it at 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 -A Q A Q They're not. Okay.

What are they?

They are for another matter (inaudible). Can you explain why they're part of this

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

they were related to a tribal client (inaudible). Q checks? A Q I had prepared the checks, yes. Okay. Now, in addition to getting checks, Okay. So your testimony is you already the

and you said you already had them and 21 copies of the complaints, had you previously prepared civil cover sheets? A Yes. Heritage Reporting Corporation (202) 628-4888

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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 25 Q Now, when you completed the copy process,

46

and you provided these final copies for Mr. Harper, you needed to have one original signed copy. true? A Q Yes. Okay. So you got Mr. Harper to read through Is that

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? Half a minute -- less than a minute. 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. A Q Yes. What floor is your office located on and Do you agree with that?

(inaudible). A Q A xeroxing. Q So approximately let's just say 9:40 in the We're on the ninth floor. (Inaudible)? The floor that I was on that day was

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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 25 Q A Q

47

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 know it takes me less than five minutes to

walk over, less than five minutes. Q So it took you less than five minutes to

walk roughly a quarter mile? A Q Yes. 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? It took me less than five minutes. Okay. You walked up to the court. You

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

Passamaquoddy, Salt River and Tohono O'odham? A Yes, I did. Heritage Reporting Corporation (202) 628-4888

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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 25 Q BY MR. LARSEN: Okay. Please look at Exhibit No. 7. Q

48

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 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.)

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 since these proceedings

(inaudible). 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

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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 25 Q that.

49

that you received when you filed the complaint in Salt River or -A Q Yes. Could I get you to look now at -- strike 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. 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 was not for very long I don't have a specific

because no one was there.

recollection of the length of the wait. Q Okay. And so then your testimony is your

filing was received, you got your Court-stamped copies and your receipts, you walked back to the office, and you discovered at that point that Passamaquoddy and the Salt River complaints were ready for filing? A Yes. Heritage Reporting Corporation (202) 628-4888

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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 25 Q Okay. So again, without going through all

50

the details, you went up to the seventh or the eighth or ninth floor, your officer -A Everything had been prepared for me already,

copies and (inaudible). Q So popped in the office, grabbed the

materials -A Dropped the CFC materials, picked up the DDC

materials and walked back (inaudible). 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 A Q A Q Yes. Walked to the clerk's office. Yes. And then stood in line. Not that I recall then. Okay. And then you filed the complaint in Was there a line?

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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 25 was approximately 10:30 in the morning? A Q Right. (Inaudible).

51

How many copies did you provide for a filing Do you recall?

in District Court. A

(Inaudible) an original and one copy and

notice of related cases, a civil cover sheet and (inaudible). 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? A Q She did. And the file stamped copies of the complaint Yes. And made your payment for filing fees? That's correct. And the cashier gave you a receipt per

and (inaudible)? A Q The cashier didn't (inaudible). Right. So you walked back to the intake Was there a line there? You just walk the same

clerk and got your filings. A place. It's all the same.

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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 25 Q Okay.

52

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 request for additional information was being made prior (inaudible) Ak-Chin? A No. The additional information was

requested by Mr. Guilder to the tribes. Q A Q Right. By (inaudible).

(Inaudible). So let's assume that Mr. Guilder got the

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

11:45 in the morning? Heritage Reporting Corporation (202) 628-4888

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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 25 A Q Yes, (inaudible).

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And then you needed to make seven copies of

the Ak-Chin complaint? A Q Right. And you said you prepared the records and

acquiring materials and you had a check, correct? A Q Yes. Again, you had Mr. Harper review the

complaint one last time and sign it? A Q (Inaudible). Now, Ms. Applegate, you testified -MS. MUNSON: Your Honor, we object to any We're going into the It's not

questioning going beyond direct.

events well after the Salt River filing.

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

witnesses entire filing sequence on direct is clearly relevant, and since they discussed the core and Ms. Applegate's credibility is essential to the (inaudible) 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 Heritage Reporting Corporation (202) 628-4888

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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 25 Q States should be able to examine Ms. Applegate's testimony with regard to everything she testified to on direct. MS. MUNSON:

54

It's not disputed that the Salt

River complaint in the Court of Federal Claim or (inaudible) filed before any of the filings in AkChin. This whole line of questioning is not relevant

to the very (inaudible) issue before this Court, which is which complaint was filed first? The Court of

Federal Claims complaint in 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 that you had already preprepared the final (inaudible) and cover sheets before the complaint was done, correct? A Q Yes. Okay. So then you walked back to the Court

of Federal Claims with the Ak-Chin complaint, and again (inaudible) take you about five minutes to walk the .4 miles. Was there a line at the security desk

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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 25 Q at that point? MS. MUNSON: Objection, Your Honor. He's

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saying again that it was .4 miles, which is counsel's testimony. Ms. Applegate has never stated that it's

.4 miles from Kilpatrick's office to the Court. MR. LARSEN: examination. THE COURT: MS. MUNSON: It is cross-examination. It is cross-examination, but Your Honor, this is cross-

(inaudible) she does not remember how far it is, and he's the one that's testifying. THE COURT: Ms. Munson, I know that Ms.

Applegate has said five minutes and not said how many miles it is, so the Court's not misled and the jury isn't either. MS. MUNSON: Thank you, Your Honor.

BY MR. LARSEN: Was there a line at the security your second

trip to the Court of Federal Claims? A Q Not that I recall. And at that point you walked into the Do you recall if there was a line at

clerk's office.

that point in the clerk's office? A Q No. No? No, I don't believe so. And you presented again the Ak-Chin

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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 25 complaint, the cover sheet, the filing fee to the clerk? A Q I did. And you received a receipt and the file-

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stamped complaint for the Ak-Chin? A Q Yes. Okay. Then you walked back to the office

with your file-stamped copy and receipt again for five minutes. A Q Yes. Took the elevator back up to your office,

and at some point thereafter, you were alerted that the District Court complaint and the Ak-Chin District Court action was then ready to be filed, correct? A the CFC. Q A to go. Q Okay. Do you recall your testimony in What do you mean by that, it was ready? The copies had been made, and it was ready It similarly was ready when I returned from

connection with the Ak-Chin hearing, Ms. Applegate, on October 24? A Q (Inaudible). And do you recall your testimony regarding

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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 25 Q BY MR. LARSEN: If I could have you turn to Exhibit 24 and for filing that afternoon? A (Inaudible). MR. LARSEN: Your Honor? THE COURT: MR. LARSEN: approach the witness. (The document referred to was marked for Yes. Actually, I don't need to May I approach the witness,

57

identification as Defendant's Exhibit No. 24.)

then go to page 40 of that exhibit?

I'm referring to

line 2 and just read that testimony in line 2 through 10 to yourself. and I apologize. I'm talking about lines 6 through 10, I think I was talking to you about

the District Court action. A Q Right. A minute ago you testified about the Court

of Federal Claims action. A Right. MR. LARSEN: Your Honor. THE COURT: MR. LARSEN: All right. I apologize for that. I'll withdraw the question,

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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 25 line. Q BY MR. LARSEN: You did testify you prepared the copies in

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the Court of Federal Claims action? A Yes, and I prefaced everything by saying we

had multiple people working on this simultaneously. Q Right. So then you took a cab back to the

District Court, and I think your testimony was you dropped that complaint off? A Q Yes. Was the District Court busy at the security

line and at the clerk's office for that Ak-Chin filing? A I don't specifically remember the security It was busy at the intake clerk's desk, which

is part of the reason they didn't have time to process it. Q complaint? A Q Yes, and went back to the office. All right. And this was after you filed the So you left the Ak-Chin District Court

Ak-Chin and walked to and from the Court of Federal Claims and filed the Ak-Chin complaint? A Q That's correct. And then you returned right back to your

office, took the elevator back up to your desk, and at Heritage Reporting Corporation (202) 628-4888

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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 25 Q Okay. some point thereafter sent an email at 12:41 p.m. to Mr. Austin saying that you had filed all the documents? A Right. (The document referred to was marked for

59

identification as Defendant's Exhibit No. 8.) Now, Ms. Applegate, I'd like you to

look at Exhibit 8 now, and I think you did testify that it was the last exhibit that you testified to on direct exam. You testified that you received this

email from Ms. Munson on April 23, 2007, at 10:36 in the morning? A Q I read it about the time I received it. Okay. And you testified on direct regarding

your recollection of the events surro