Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:06-cv-00942-LJB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) )

PASSAMAQUODDY MAINE, Plaintiff, v.

TRIBE

OF

Case No. 06-942LJB Judge Lynn J. Bush (Electronically Filed April 29, 2008)

THE UNITED STATES OF AMERICA, Defendant.

MOTION FOR LEAVE TO FILE NOTICE OF SUPPLEMENTAL AUTHORITY Plaintiff, the Passamaquoddy Tribe of Maine, respectfully moves this Court for leave to file the attached Notice of Supplemental Authority. The attached Notice informs the Court of the recent decision in Salt River Pima-Maricopa Indian Community v. United States, No. 06-943L (Fed. Cl. Apr. 24, 2008), issued by Judge Baskir, denying the Government's Motion to Dismiss Pursuant to 28 U.S.C. § 1500 based on the Court's finding that plaintiff the Salt River PimaMaricopa Indian Community demonstrated by a preponderance of the evidence that it filed its complaint in the Court of the Federal Claims prior to filing its District Court action. This opinion is bears directly on Defendant's Motion to Dismiss Pursuant to 28 U.S.C. Section 1500 currently pending before this Court. Ms. Applegate, the paralegal responsible for filing the Complaints in this action and in the Salt River action, testified before this Court and in two other evidentiary hearings in the Court of Federal Claims that she filed the Salt River and Passamaquoddy Court of Federal Claims Complaints at the same time and before filing both the Salt River and Passamaquoddy District Court Complaints, which she also filed at the same time. See Salt River Hrg. Tr. 20:5-15; Ak-Chin Hrg. Tr. 18:20-19:9; Passamaquoddy Hrg. Tr. 14:9-18. Indeed, in his opinion Judge Baskir specifically notes that the sequence of filing in Salt River is

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Case 1:06-cv-00942-LJB

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"factually similar" to the sequence of filing in this case. No. 06-943L (Fed. Cl. Apr. 24, 2008) at 5. Judge Baskir relied heavily on Ms. Applegate's credible testimony to make his determination denying the Government's motion to dismiss on Section 1500 grounds and found the Government's various attempts to undermine her credibility "unpersuasive." No. 06-943L (Fed. Cl. Apr. 28, 2008) at 13. See id. at 17 ("[T]he Court cannot accept the Government's theory over the consistent testimony presented by Ms. Applegate on three difference occasions"). Significantly, Judge Baskir concluded that Section 1500 applies, and divests the Court of Federal Claims' jurisdiction, only when ­ at the time of the Plaintiff's filing in this Court ­ there is another suit already pending in another court which presents the "same claims." Id. at 2-3 (citing Breneman v. United States, 57 Fed. Cl. 571 (2003); Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed. Cir. 1994)). When the Court concludes by deciding the sequence of filing that the complaint in the Court of Federal Claims has been filed first, Section 1500 does not apply and "a comparative analysis of the claims is not necessary." Id. at 3 (citing Breneman, 57 Fed. Cl. at 577). After carefully reviewing the evidence regarding the sequence-of-filing issue, Judge Baskir concluded: "[T]he Salt River CFC Complaint was filed first. Therefore, § 1500 does not apply and we must deny the Government's motion to dismiss." Id. at 3. Because the Complaints initiating the Passamaquoddy Tribe's actions in this Court and the District Court on December 29, 2006 were filed at the same time as Plaintiffs' pleadings in Salt River and in the same sequence, we urge that Judge Baskir's findings regarding the order-offiling in this other case be adopted here. We therefore respectfully request that the Court grant our request for leave to file the accompanying Notice of Supplemental Authority, and that the Court proceed to deny the Government's Motion to Dismiss for the reasons set forth in Judge Baskir's April 24, 2008 decision.

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This 29th day of April, 2008.

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 Email: [email protected] KILPATRICK STOCKTON LLP 607 14th Street, N.W. Washington, D.C. 20005 Phone: (202) 508-5800 Attorneys for Plaintiff Passamaquoddy Tribe of Maine

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