Free Notice (Other) - District Court of Federal Claims - federal

Case 1:06-cv-00936-TCW

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Filed 05/30/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________________________________ UNITED KEETOOWAH BAND OF ) CHEROKEE INDIANS IN OKLAHOMA, ) ) Plaintiff, ) ) ) v. ) ) UNITED STATES, ) ) Defendant. ) _____________________________________ )

No. 06-936 L Judge Thomas J. Wheeler

DEFENDANT'S NOTICE OF FILING ITS RESPONSE TO COURT'S INQUIRY CONCERNING THE GOVERNMENT'S POTENTIAL ASSERTION OF A JURISDICTIONAL DEFENSE BASED UPON 28 U.S.C. § 1500 Pursuant to the Court's directive to the Defendant during the course of the May 2, 2008 telephone status conference in this case, Defendant hereby submits this notice of filing of its response to the Court's inquiry as to whether the Defendant intends to assert the jurisdictional defense of 28 U.S.C.§ 1500 - - which response the Court directed be submitted within 30 days of May 2, 2008. Defendant has carefully considered the possibility of filing a jurisdictional defense specifically because it implicates the Court's jurisdiction. E.g., Tohono O 'odham Nation v. United States, 79 Fed. Cl. 645, 647 (2007) (§ 1500 divests the CFC of jurisdiction to consider claims where the same claims are pending in another court). Defendant has concluded it should file a motion to dismiss under Section 1500. In support of the filing of said motion, Defendant requests 45 days of limited discovery into information Plaintiff and other parties might have on the time of filing of the Eastern District of Oklahoma case (United Keetoowah Band of Cherokee Indians in Oklahoma v. United States, No. CIV 06-559-RAW) See e. g., Ak-Chin Indian Community v. United States, No. 06-

Case 1:06-cv-00936-TCW

Document 16

Filed 05/30/2008

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932 L, Order of May 30, 2007), Paragraph No. 2). Defendant would propose to file its motion within 30 days of receipt of all of Plaintiff's responses to the discovery request or the lapse of 45 days, whichever is earlier. Dated this 30th day of May, 2008.

Respectfully submitted,

/s/ James M. Upton JAMES M. UPTON Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 Ph.: (202) 305-0482 Fax: (202) 353-2021 E-mail: [email protected] Attorney for Defendant

OF COUNSEL: Tom Bartman, Esq. Office of the Solicitor U.S. Department of the Interior Washington, D.C. 20240 Teresa Dawson, Esq. Office of Chief Counsel Financial Management Services U.S. department of the Treasury Washington, D.C. 20277 2

Case 1:06-cv-00936-TCW

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Filed 05/30/2008

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CERTIFICATE OF SERVICE I hereby certify that on May 30, 2008, I electronically transmitted the foregoing Defendant's Notice of Filing its Response to the Court's Inquiry Concerning the Government's Assertion of a Potential Jurisdictional Defense Based Upon 28 U.S.C. § 1500 to the Clerk of the Court using the ECF system for filing and transmittal of a Notice of Electronic Filing to the plaintiff's counsel (who are ECF registrants) at the following address:

James C. McMillin, Esq. Tamara Schiffner Pullin, Esq. McAfee & Taft 10th Floor, Two Leadership Square 211 North Robinson Oklahoma City, Oklahoma 73102-7103

/s/ james M. Upton James M. Upton