Free Response to Motion - District Court of Federal Claims - federal

Case 1:06-cv-00932-ECH

Document 39

Filed 11/12/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE AK-CHIN INDIAN COMMUNITY, ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ___________________________________ )

Case No. 06-09321 (ECH) Judge Emily C. Hewitt Electronically filed on November 12, 2007

PLAINTIFF'S RESPONSE TO DEFENDANT'S EMERGENCY MOTION FOR ENLARGEMENT OF TIME BY WHICH TO FILE ITS SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO 28 U.S.C. § 1500 In light of the additional facts revealed at the October 24, 2007 evidentiary hearing, this Court ordered that the parties submit supplemental briefing on Defendant's Motion to Dismiss Pursuant to 28 U.S.C. § 1500, regarding the factual issue of when, on December 29, 2006, Plaintiff the Ak-Chin Indian Community ("Ak-Chin") filed its Complaint in this Court and in the District Court. See October 25, 2007 Order. The Court ordered that both parties submit opening post-evidentiary hearing briefs on Friday, November 9, 2007 and that the parties file their respective replies to the opening briefs on Wednesday, November 14, 2007. See id. Pursuant to the Court's Order, on Friday, November 9, 2007, at 4:58 p.m., Ak-Chin filed its Opening Post-Evidentiary Hearing Brief. At approximately that same time, at 4:59 p.m., Mr. Larsen, counsel for Defendant, left a voicemail for Ms. Munson, counsel for Ak-Chin, explaining that because Ms. Maroldy, Defendant's counsel of record, had recently learned that her mother had passed away, Defendant was going to be unable to timely file its opening post-evidentiary hearing brief. Mr. Larsen stated that Defendant likely would move for a one-week extension and asked for Ak-Chin's position on the motion. At the time Mr. Larsen called, Ms. Munson already

Case 1:06-cv-00932-ECH

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had left her office for the day and Ms. Munson did not check her voicemail messages before Defendant filed its Emergency Motion at 5:45 p.m. Ak-Chin thus did not respond to Mr. Larsen's inquiry. Ak-Chin is very sorry to learn of Ms. Maroldy's loss. Under the circumstances, Ak-Chin does not oppose Defendant's request for an extension to submit its opening post-evidentiary hearing brief. The Court's October 25, 2007 Order, however, contemplated that the parties file their opening post-evidentiary hearing briefs concurrently, and that each side be given one opportunity to reply. Because Ak-Chin already filed and served its Opening Post-Evidentiary Hearing Brief, which Defendant now has the opportunity to review and address in its November 19th brief, Ak-Chin proposes that Defendant's November 19th brief be treated as a brief in opposition to Ak-Chin's Opening Post-Evidentiary Hearing Brief and that Ak-Chin, thereafter, be given an opportunity to file a reply to Defendant's November 19th opposition brief. Because of the intervening Thanksgiving holiday, Ak-Chin proposes that its reply be due on November 29, 2007. This briefing schedule is reasonable because it accommodates Defendant's request for an extension of time to file its opening post-evidentiary hearing brief, but without the prejudice to Ak-Chin resulting from Defendant having two opportunities to respond to Ak-Chin's arguments, when the Court's Order originally contemplated that each party only would have one such opportunity.1 A proposed Order is attached hereto as Exhibit A.

1

Ak-Chin submits this proposal with the assumption that Defendant's counsel already has read Ak-Chin's Opening Post-Evidentiary Hearing Brief. If Defendant's counsel is able to represent to Ak-Chin and the Court that Defendant's counsel has not reviewed Ak-Chin's Opening PostEvidentiary Hearing Brief and that Defendant would not do so prior to submitting its November 19th Brief, then Ak-Chin would not oppose the November 19th Brief being treated as Defendant's opening post evidentiary hearing brief, and that each party file their respective replies on November 29, 2007. Ms. Munson attempted to contact Mr. Larsen regarding this possibility and Ak-Chin's proposal, but as of the time of this filing, Ms. Munson had not heard back from Mr. Larsen.

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Respectfully submitted, this 12th day of November, 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 Tel: (202) 508-5800 Fax: (202) 505-5858 Attorneys for Plaintiff The Ak-Chin Indian Community

Case 1:06-cv-00932-ECH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE AK-CHIN INDIAN COMMUNITY, ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ___________________________________ )

Case No. 06-09321 (ECH) Judge Emily C. Hewitt Electronically filed on November 12, 2007

CERTIFICATE OF SERVICE I hereby certify that the foregoing Plaintiff's Unopposed Motion for Extension of Time to Respond to Defendant's Motion to Dismiss 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: Laura M.L. Maroldy, Esq. Trial Attorney United States Department of Justice Environment and Natural Resources Division 601 D Street, N.W., Room 3136 Washington, D.C. 20044 This 12th day of November, 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 Fax: (202) 505-5858

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Attorneys for Plaintiff The Ak-Chin Indian Community