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Case 1:06-cv-00943-LMB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

THE SALT RIVER PIMAMARICOPA INDIAN COMMUNITY, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

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Case No. 06-943 Judge Lawrence M. Baskir (Electronically Filed December 7, 2007)

NOTICE OF EVIDENCE SUBMITTED IN RESPONSE TO COURT'S INQUIRY REGARDING DEFENDANT'S MOTION TO DISMISS During the Status Conference on November 9, 2007, the Court expressed an interest in obtaining additional information regarding the listing of filings made on December 29, 2006 and how that listing relates to the filings made by Alexis Applegate on December 29, 2006. The Court specifically asked whether it was unusual to have the first case filed in United States District Court to come in at 9:00 a.m., 10:00 a.m. or 11:00 a.m. (Transcript from November 9, 2007 Hearing at p. 16 ("Hearing Tr.") The Court also observed that "two dozen cases were filed in the hours after Ak-Chin," which Ms. Applegate testified was filed in the early afternoon, and requested an "explanation for that." (Hearing Transcript at p. 12).

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In an effort to respond to the Court's inquiry, counsel for the Salt River Pima-Maricopa Indian Community, Catherine Munson, spoke with the in-take clerk at the District Court who handled civil filings. Ms. Munson asked the clerk whether it would be usual for the first filing of the day to be at 10:00 a.m. or so. The clerk responded that she could not generalize and that every day was different. In addition, Salt River has reviewed the pleadings listed on the docket as having been filed in the District Court on December 29, 2006. See docket listing from December 29, 2006, attached hereto as Exhibit A. This examination revealed that, at most, there were only 15 in-person filings on December 29, 2006, meaning that there were only 9 in-person filings made during District Court hours following the filing in Ak-Chin. This conclusion was reached based upon the notations the District Court makes on certain filings showing when the pleadings are received by the Court. For example, the District Court made notations on the 16th through the 20th filings showing that these filings were received by the Court prior to December 29th. See Cover pages, reflecting notations, of Coleman v. Lappin, 1:06-cv-02255-RMC; Wills v. Smith, 1:06-cv-02256RJL; Harris v. Goins, 1:06-cv-02257-CKK; Harley v. U.S. Parole Comm'n, 1:06-cv-02258-RMU; and Stamps v. Secretary of Treasury, 1:06-cv-22592
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UNA, attached hereto collectively as Exhibit B. Based on these notations, these filings were not made in person on December 29, 2006. In addition, there were a significant number of after-hour filings on December 29th. The first after-hours filing of that day appears to be the 21st filing, which was a Notice of Removal time-stamped as having being received by the Court at 5:53 p.m., nearly two hours after the District Court had closed. See Exhibit A and Notice of Removal filed in Beynum v. Clay, 1:06-cv-02260-RWR, Ruffin v. Dep't of Youth Rehabilitation Services, 1:06cv-02261-RWR; Wilson-Greene v. Dep't of Youth Rehabilitation Services, 1:06-cv-02262-RJL; Cruz-Packer v. Dep't of Youth Rehabilitation Services, 1:06-cv-02263-RWR; and Davis v. Dep't of Youth Rehabilitation Services, 1:06-cv-02264-GK, attached hereto collectively as Exhibit C. The four subsequent filings (22nd filing through the 25th filing) also have timestamps showing that the filings were left in the "speedy filing box" after the District Court had closed. See id. Because the District Court assigns civil action numbers based upon the order the filings are received, the last twelve of the 32 filings on December 29th, also had to have been filed after the District Court had closed. See Federal Rule of Civil Procedure 79(a) ("Actions shall be assigned consecutive file numbers . . . All papers filed with the clerk . . . shall be entered chronologically . . . .")
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Based on these pleadings, the last "in person" filing on December 29, 2006 appears to have been the 15th filing processed that day. See Exhibit A. Thus, the record indicates that after Ms. Applegate filed the Ak-Chin Complaint, only nine subsequent filings were processed before the District Court closed at 4:00 p.m. The Ak-Chin Complaint -- the sixth filing -- was filed a little earlier than mid-way through the filings completed during the District Court's hours. This evidence is consistent with the Ak-Chin District Court action having been filed in the early afternoon. Plaintiff is prepared to submit testimony and evidence regarding these pleadings at the evidentiary hearing on December 10, 2007. This the 7th day of December, 2007.

Respectfully submitted,

/s/ Keith Harper KEITH HARPER D.C. Bar No. 451956 E-mail [email protected] G. WILLIAM AUSTIN D.C. Bar No. 478417 E-mail [email protected] CATHERINE F. MUNSON Georgia Bar No. 529621 E-mail [email protected] KILPATRICK STOCKTON, LLP 607 14th Street, N.W. Washington, D.C. 20005 Phone: (202) 508-5800
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Attorneys for Plaintiff The Salt River Pima-Maricopa Indian Community

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE SALT RIVER PIMAMARICOPA INDIAN COMMUNITY, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) )

Case No. 06-943L Judge Lawrence M. Baskir Electronically filed on December 7, 2007

CERTIFICATE OF SERVICE I hereby certify that the foregoing was electronically filed using the Court's ECF system and that the below-listed counsel are ECF users and will be served via the ECF System: Kevin J. Larsen, Esq. Natural Resources Section Environment and Natural Resources Division United States Department of Justice P.O. Box 663 Washington, D.C. 20044-0663

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This 7th day of December, 2007. /s/ Keith Harper KEITH HARPER D.C. Bar No. 451956 E-mail [email protected] G. WILLIAM AUSTIN D.C. Bar No. 478417 E-mail [email protected] CATHERINE F. MUNSON Georgia Bar No. 529621 E-mail [email protected] Kilpatrick Stockton LLP 607 14th Street, N.W. Washington, D.C. 20005 Phone: (202) 508-5800 Attorneys for Plaintiff The Salt River Pima-Maricopa Indian Community

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