Free Supplemental Brief - District Court of Federal Claims - federal

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

PASSAMAQUODDY TRIBE, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

Case No. 06-942L Judge Lynn J. Bush Electronically filed on March 20, 2008

PLAINTIFF'S POST-HEARING BRIEF IN RESPONSE TO DEFENDANT'S MOTION TO DISMISS

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 Passamaquoddy Tribe

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On February 1, 2008, this Court held an evidentiary hearing during which Alexis Applegate, the paralegal responsible for filing the instant action and the District Court action on behalf of Plaintiff the Passamaquoddy Tribe ("Passamaquoddy"), testified about the filings she completed on December 29, 2006. In light of the additional facts revealed by Ms. Applegate's testimony, this Court ordered that the parties submit simultaneous post-hearing briefs on Defendant's Motion to Dismiss Pursuant to 28 U.S.C. § 1500, to address the factual issue of which Complaint Ms. Applegate filed first -- the Complaint initiating this action (the "CFC Complaint") or the Complaint initiating the District Court action ("District Court Complaint"). Ms. Applegate's unequivocal testimony that she filed the instant action prior to filing the District Court Complaint is convincing, candid, appropriately detailed, and corroborated by other evidence in the record. Rather than contesting this evidence, Defendant attacks Ms. Applegate's credibility based on minor discrepancies and points to other evidence which appears at first blush to be inconsistent with her testimony, but is in reality, easily reconciled. Ms. Applegate has consistently testified in three actions as to the events surrounding the seven filings she completed on December 29, 2006. In Ak-Chin Indian Community v. United States, No. 06-932L, Judge Hewitt relied upon Ms. Applegate's testimony to deny Defendant's Motion to Dismiss Pursuant to 28 U.S.C. § 1500. After conducting a lengthy and thoughtful analysis of Ms. Applegate's testimony and the supporting documentary evidence, which is also before this Court, Judge Hewitt found "Ms. Applegate to be a credible witness." Ak-Chin Indian Community v. United States, 80 Fed. Cl. 305, 313 (Fed. Cl. 2008). When reaching this

conclusion, Judge Hewitt considered and rejected nearly all of the arguments Defendant reprises here in an attempt to discredit Ms. Applegate's testimony. Because Defendant has not, and

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cannot, contest Ms. Applegate's testimony or the supporting evidence, Passamaquoddy has carried its burden to show that it filed the instant action prior to filing its District Court Complaint. It is well-settled that because jurisdiction is established at the time of filing, under § 1500, a later-filed district court action does not divest the Court of Federal Claims of jurisdiction that was earlier properly established. See Hardwick Bros. Co. II v. United States, 72 F.3d 883, 886 (Fed. Cir. 1995); Breneman v. United States, 57 Fed. Cl. 571, 575 (2003), aff'd, 97 Fed. Appx. 392 (Fed. Cir. 2004); Tecon Engineers, Inc. v. United States, 343 F.2d 943, 949 (Fed. Cl. 1965). Accordingly, Defendant's Motion to Dismiss should be denied. 1 STATEMENT OF THE CASE A. Ms. Applegate Testified That She Filed Passamaquoddy's CFC Complaint Prior To Filing The District Court Complaint.

Ms. Applegate filed seven Complaints on December 29, 2006, including the Complaint initiating this action and the Complaint initiating Passamaquoddy's District Court action styled Passamaquoddy Tribe of Maine v. Dirk Kempthorne, Ross O. Swimmer and Henry M. Paulson, Case No. 1:06-cv-02240-JR. (February 1, 2008 Hearing Transcript ("Passamaquoddy Hearing Tr.") 14:7-15:14; December 10, 2007 Hearing Transcript in Salt River Pima-Maricopa Indian Community v. United States, No. 06934L ("Salt River Hearing Tr.") 19:22-20:20; October 24, 2007 Hearing Transcript in Ak-Chin, ("Ak-Chin Hearing Tr.") 17:19-19:15; Affidavit of Alexis After the parties completed their briefing prior to the February 1, 2008 evidentiary hearing, Judge Hewitt issued an opinion in Ak-Chin which addressed the argument Defendant makes here that filings should be treated as simultaneous for the purposes of § 1500 simply because they were filed on the same day and regardless of which Complaint was in fact filed first. Judge Hewitt found that this argument was "without precedential authority" and denied Defendant's Motion to Dismiss Pursuant to 28 U.S.C. § 1500 on the ground that Ak-Chin's District Court action was not pending at the time Ms. Applegate filed Ak-Chin's CFC Complaint on the same day. Ak-Chin, 80 Fed. Cl. at 308, n. 4. 2
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Applegate ("Applegate Aff."), ¶¶ 3 and 4; Plaintiff's Responses and Objections to Defendant's First Set of Interrogatories ("Response to Interrogatories"), Response No. 11.) Regarding the Passamaquoddy Complaints, Ms. Applegate testified unequivocally that she "filed the Complaint for Passamaquoddy in this Court, the CFC, first." (Passamaquoddy Hearing Tr. 13:25-14:3.) In addition to the actions Ms. Applegate filed on behalf of Passamaquoddy on December 29, 2006, Ms. Applegate filed Complaints in the United States Court of Federal Claims styled Salt River Pima-Maricopa Indian Community v. United States, No. 06-943L; Tohono O'odham Nation v. United States, 06-944L; and Ak-Chin Indian Community v. United States, No. 06-932L (collectively, the "Court of Federal Claims Actions"). (Passamaquoddy Hearing Tr. 14:7-15:14; Salt River Hearing Tr. 20:2-21; Applegate Aff., ¶ 3; Response to Interrogatories, Response No. 11.) Ms. Applegate also filed Complaints in the District Court that day initiating the actions styled Salt River Pima-Maricopa Indian Community v. Dirk Kempthorne, Ross O. Swimmer and Henry M. Paulson, Case No. 1:06-cv-02241-JR, and Ak-Chin Indian Community v. Dirk Kempthorne, Ross O. Swimmer and Henry M. Paulson, Case No. 1:06-cv-02245-JR (collectively, the "District Court Actions"). (Passamaquoddy Hearing Tr. 14:7-15:14; Salt River Hearing Tr. 20:2-21; Response to Interrogatories, Response No. 11.) To accomplish all seven filings, Ms. Applegate made five separate trips to the clerks' offices of the Court of Federal Claims and District Court. (Passamaquoddy Hearing Tr.14:9-15:14; Salt River Hearing Tr. 20:2-21; Ak-Chin Hearing Tr. 17:19-19:15.) As to the order of all of the seven filings, Ms. Applegate has testified on numerous occasions that it is as follows: The first trip of the day, I walked here to the CFC to file three complaints ­ Passamaquoddy, Salt River and Tohono O'odham ­ then returned back to the office, at which point I discovered that the district court complaints in Passamaquoddy and Salt River were now ready. I took my first taxi to the district court and filed those two. 3

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I returned to the office, to find that the Ak-Chin CFC complaint was ready. I walked that over to here, came back to the office, to discover that the district court in Ak-Chin was ready. That is the one that I actually did two trips to the district court, seeing as the clerk was busy and didn't have time to complete what needed to be done for me in one trip. (Ak-Chin Hearing Tr. 18:3-16; see also id. 18:17-19:15; 33:19-34-9; Passamaquoddy Hearing Tr. 14:9-15:14; Salt River Hearing Tr. 20:2-21.) 2 B. Mr. Harper Instructed Ms. Applegate to File the CFC Complaints Prior to Filing the District Court Actions.

In addition to consistently testifying at three evidentiary hearings as to the order of the seven filings on December 29, 2006, Ms. Applegate has provided an appropriately detailed account of the events surrounding those filings, which is supported by contemporaneous evidence, beginning with the evening of December 28, 2006. Because the New Years holiday was the upcoming Monday, late in the evening of Thursday, December 28, 2006, Mr. Harper emailed Ms. Applegate and asked her to call the District Court and the Court of Federal Claims to determine if either of the Courts was closing early on Friday, December 29, 2006. (Passamaquoddy Hearing Tr. 15:15-16:4; Ex. 1; Salt River Hearing Tr. 22:11-20, Ex. C; Ak-Chin Hearing Tr. 13:13-15; 26:1-27:23, Ex. C; Response to Interrogatories, Response No. 11.) In response to Mr. Harper's instruction, the following morning, Ms. Applegate called both clerk's offices. (Passamaquoddy Hearing Tr. 15:15-17:3; Salt River Hearing Tr. 22:22-23:2; Ak-Chin Hearing Tr. 26:1-9.) While the District Court clerk confirmed that there was no plan to close the District Court early, the clerk at the Court of Federal Claims "stated that he didn't know of a plan but he was not in charge of what the Chief Judge decided." (Passamaquoddy Hearing Tr. 16:1517:3; Salt River Hearing Tr. 22:22-23:2; Ak-Chin Hearing Tr. 26:1-9.) Ms. Applegate provided

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For the Court's convenience, Passamaquoddy has included a summary listing of the order of filings and a time-line which is attached hereto as Exhibit. A. 4

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this information to Mr. Harper on the morning of December 29, 2006, and because the clerk at the Court of Federal Claims could not guarantee that the Court would not close early, Mr. Harper told Ms. Applegate to file the Court of Federal Claims Actions as early as possible and prior to filing the District Court Actions. (Passamaquoddy Hearing Tr. 17:4-10; Salt River Hearing Tr. 23:5-18; Ak-Chin Hearing Tr. 27:17-23; Response to Interrogatories, Response No. 11; Applegate Aff., ¶ 7.) In addition, because Mr. Harper and Ms. Applegate had successfully filed a Complaint in the action styled Tohono O'odham Nation v. Dirk Kempthorne, Ross O. Swimmer and Henry M. Paulson, Case No. 1:06-cv-02236-JR in the District Court the previous day, on December 28, 2006, and Mr. Harper practiced more regularly in the District Court, Mr. Harper was comfortable that he and Ms. Applegate understood the necessary procedures to perfect the filing of a Complaint in the District Court. (Passamaquoddy Hearing Tr. 17:6-10; Salt River Hearing Tr. 23:6-17; Ak-Chin Hearing Tr. 27:17-23; Response to Interrogatories, Response No. 11; Applegate Aff., ¶ 6 and Ex. C.) Mr. Harper and Ms. Applegate had not yet filed any Complaints initiating actions in the Court of Federal Claims, however, and Mr. Harper was not as familiar with the filing procedures in this Court. (Passamaquoddy Hearing Tr. 17:6-10; Salt River Hearing Tr. 23:6-17; Ak-Chin Hearing Tr. 27:17-23; Applegate Aff., ¶ 7; Response to Interrogatories, Response No. 11.) This additional uncertainty prompted Mr. Harper to instruct Ms. Applegate that she should file the Complaints initiating the Court of Federal Claims Actions as early as possible and before filing the Complaints she was planning to file in the District Court that day so that Mr. Harper and Ms. Applegate would have sufficient time to cure any potential problems occurring in connection with filing the Complaints in the Court of Federal Claims

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Actions.

(Passamaquoddy Hearing Tr. 20:3-15; Salt River Hearing Tr. 23:6-17; Ak-Chin

Hearing Tr. 27:17-28:6; Applegate Aff., ¶ 7; Response to Interrogatories, Response No. 11.) Mr. Harper also recalls that he orally instructed Ms. Applegate to file the Complaints initiating the Court of Federal Claims Actions at the earliest possible time on December 29, 2006, and prior to filing the Complaints initiating the District Court Actions. (Response to Interrogatories, Response No. 11.) 3 Ms. Applegate followed Mr. Harper's instructions and filed the Complaint initiating the Passamaquoddy Court of Federal Claims Action prior to filing the Complaint initiating the Passamaquoddy District Court Action. (Passamaquoddy Hearing Tr. 13:25-14:3; 17:11-17; Response to Interrogatories, Response No. 11; Applegate Aff., ¶ 8.) Ms. Applegate knows that she followed these instructions because if she had not followed them, she would have informed Mr. Harper and she knows that they had no such conversation. (Passamaquoddy Hearing Tr. 17:11-17; Salt River Hearing Tr. 23:18-24:1; Response to Interrogatories, Response No. 11.) C. Ms. Applegate Filed the Passamaquoddy, Salt River and Tohono O'odham Court of Federal Claims Complaints First.

On December 29, 2006, due to the large number of filings she anticipated completing that day, Ms. Applegate got into the office at 7:30 a.m. (Passamaquoddy Hearing Tr. 18:11-18; Salt River Hearing Tr. 20:22-21:4; Ak-Chin Hearing Tr. 22:19-23:1.) While the District Court

Complaint for Salt River was in final form as of the evening of December 28, 2006, because Mr. Harper instructed her the next morning to file the CFC Complaints first, Ms. Applegate filed the Passamaquoddy, Salt River and Tohono O'odham CFC Complaints before she filed the District

Mr. Harper did not give the instruction to file the Court of Federal Claims Actions prior to filing the District Court Actions out of a concern for issues related to 28 U.S.C. § 1500. (Response to Interrogatories, Response No. 11.) 6

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Court Complaints for Passamaquoddy and Salt River. (Passamaquoddy Hearing Tr. 19:1-22:19; Salt River Hearing Tr. 21:5-22:5, Ex. B; Ak-Chin Hearing Tr. 18:3-16.) While Ms. Applegate could not state precisely what time she filed the first round of Complaints at the Court of Federal Claims, since the Court of Federal Claims does not timestamp Complaints, she knows that she filed them shortly after 9:30 a.m. (Passamaquoddy Hearing Tr. 18:19-25; Salt River Hearing Tr. 17:22-19:3; Ak-Chin Hearing Tr. 20:9-14.). Ms. Applegate knows this because Katherine Bosken, an attorney at Kilpatrick Stockton LLP, sent Ms. Applegate a link to the final Salt River and Tohono O'odham Complaints at 9:26 a.m. (Passamaquoddy Hearing Tr. 19:1-19, Ex. 3; Salt River Hearing Tr. 17:22-19:3; 40:13-15, Ex. A; Ak-Chin Hearing Tr. 20:9-21:18, Ex. A.) The Passamaquoddy CFC Complaint was prepared by Justin Guilder, another Kilpatrick Stockton LLP attorney, and was completed simultaneously. (Passamaquoddy Hearing Tr. 19:12-19; Salt River Hearing Tr. 18:21-19:3; Ak-Chin Hearing Tr. 21:11-18.) At 9:26 a.m., when Ms. Bosken sent the e-mail with the final Salt River and Tohono O'odham CFC Complaints, Mr. Guilder notified Ms. Applegate, who was standing near his office, that he had received the final versions of those CFC Complaints. (Passamaquoddy Hearing Tr. 20:16-19; Salt River Hearing Tr. 47:10-48:1.) Mr. Guilder printed out these

Complaints, along with the Passamaquoddy CFC Complaint. (Passamaquoddy Hearing Tr. 20:18-20:21.) Mr. Harper signed each Complaint and several people made seven copies of each Complaint simultaneously, a process which took five to ten minutes. (Passamaquoddy Hearing Tr. 20:18-22; Salt River Hearing Tr. 48:2-8; 48:14-23; 49:16-20; 51:10-17.) The day before, Ms. Applegate already had prepared all other requisite documentation accompanying the CFC

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Complaints and District Court Complaints, including the checks for the filing fees and civil cover sheets. (Passamaquoddy Hearing Tr. 21:7-22; Salt River Hearing Tr. 43:13-14; 51:2-9.) After collecting the materials, Ms. Applegate walked from Kilpatrick Stockton LLP's offices to the Court of Federal Claims to file this action, the Salt River CFC Complaint and the Tohono O'odham CFC Complaint. (Passamaquoddy Hearing Tr. 21:23-22:4; Salt River Hearing Tr. 16:10-15; 52:7-14.) This walk only took about five minutes. (Passamaquoddy Hearing Tr. 22:5-7; Salt River Hearing Tr. 16:10-15; 52:7-14.) 4 When Ms. Applegate arrived at the Court of Federal Claims, she had no wait at security or at the clerk's desk. (Salt River Hearing Tr. 53:1220; Response to Interrogatories, Response No. 2.) Ms. Applegate handed the clerk the requisite number of copies of the Complaints, as well as civil cover sheets and checks for the accompanying filing fees. (Passamaquoddy Hearing Tr. 22:13-19; Salt River Hearing Tr. 53:1220; Response to Interrogatories, Response No. 2.) Ms. Applegate testified that the Court of Federal Claims processed the Complaints very quickly, and specifically remembers thinking that she and Mr. Harper should not have been so worried about the filing process in that Court because it was such an "easy process."
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At the December 10, 2007 evidentiary hearing in the Salt River CFC action during which Ms. Applegate testified, Defendant's counsel presumed that Ms. Applegate traveled 0.40 miles to file the CFC Complaints. (Salt River Hearing Tr. 52:7-19.) Ms. Applegate rejected Defendant's counsel's statement that she traveled 0.40 miles explaining that it only took her five minutes to walk between Kilpatrick Stockton LLP's offices and the Court of Federal Claims. (Salt River Hearing Tr. 52:7-19.) Defendant's counsel's subsequent insistence that Ms. Applegate traveled 0.40 miles to and from the Court of Federal Claims, likely is due to the fact that, according to www.mapquest.com, the distance to drive from Kilpatrick Stockton LLP to the Court of Federal Claims is 0.42 miles. (Attached hereto as Exhibit B.) Because certain roads close to the Court of Federal Claims are closed to traffic, and others are one-way (e.g., H Street) the route to walk to the Court of Federal Claims is far less circuitous than the route to drive to the Court of Federal Claims. To walk to the Court of Federal Claims, Ms. Applegate walked out of Kilpatrick Stockton LLP's offices, which are located on 14th Street between F and G, and walked up to G Street. (Passamaquoddy Hearing Tr. 21:25-22:4.) She then walked up G Street to 15th Street and crossed over Pennsylvania Avenue to the Court of Federal Claims. (Passamaquoddy Hearing Tr. 21:25-22:4.) 8

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(Passamaquoddy Hearing Tr. 22:13-19; Salt River Hearing Tr. 55:2-8.) Ms. Applegate walked back to the office with stamped copies of the Complaints and no other documents. (Response to Interrogatories, Response No. 2; Passamaquoddy Hearing Tr. 22:20-25:11.) Ms. Applegate explained that at the time she filed the CFC Complaints for Passamaquoddy, Salt River and Tohono O'odham, the Ak-Chin CFC Complaint had not yet been completed. (Passamaquoddy Hearing Tr. 20:3-15; Salt River Hearing Tr. 19:4-14: Ak-Chin Hearing Tr. 21:19-22:12.) Ms. Applegate did not wait for the Ak-Chin CFC Complaint to be completed to go to the Court of Federal Claims to file all four CFC Complaints at the same time because she did not want to adversely impact the clients whose Complaints were ready to be filed by delaying those filings. (Passamaquoddy Hearing Tr. 20:3-15; Salt River Hearing Tr. 19:15-21; Ak-Chin Hearing Tr. 20:3-8.) Ms. Applegate and Mr. Harper wanted to ensure that they would have time to cure any problems with the filing of the CFC Complaints. (Passamaquoddy Hearing Tr. 19:20-20:2.) D. Ms. Applegate Filed Passamaquoddy's District Court Complaint Shortly After Filing Passamaquoddy's CFC Complaint.

When Ms. Applegate returned to Kilpatrick Stockton LLP's offices after having filed the first round of CFC Complaints, the copies of the District Court Complaints for Passamaquoddy and Salt River "and whatnot" had already been prepared for her, meaning that Ms. Applegate only had to retrieve these materials and take a cab to the District Court. (Salt River Hearing Tr. 55:9-56:1; Ak-Chin Hearing Tr. 18:3-16.) Ms. Applegate estimates that this cab ride took five to ten minutes based on how long it usually takes her to take a cab to the District Court, which she does often. (Passamaquoddy Hearing Tr. 25:25-26:11; Salt River Hearing Tr. 56: 5-8.) Ms. Applegate walked through security and did not have to wait in line to file the two Complaints. (Salt River Hearing Tr. 56:14-15; 57:2-19; Ak-Chin Hearing Tr. 38:10-39:5.) Ms. Applegate provided materials to the intake clerk, paid the filing fees and received receipts and file stamped 9

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copies of the Passamaquoddy and Salt River District Court Complaints. (Passamaquoddy Hearing Tr. 26:12-23; Salt River Hearing Tr. 56:14-15; 57:2-19; Ak-Chin Hearing Tr. 38:1039:5.) Ms. Applegate estimates that she filed the District Court Complaints for Passamaquoddy and Salt River at 10:30 a.m. (Passamaquoddy Hearing Tr. 26:24-27:4; Salt River Hearing Tr. 24:2-7;40:16-41:2-5). This estimation is based on how long it took Ms. Applegate to complete the tasks necessary for filing the Salt River and Passamaquoddy District Court Complaints. (Passamaquoddy Hearing Tr. 26:24-27:4; Salt River Hearing Tr. 24:2-7.) Ms. Applegate then took a cab back to the office, which took five to ten minutes. (Passamaquoddy Hearing Tr. 27:510; Salt River Hearing Tr. 57:20-58:2.) When Ms. Applegate returned from having filed the District Court Complaints for Passamaquoddy and Salt River, she prepared the Ak-Chin CFC Complaint for filing. (Salt River Hearing Tr. 58:3-7.) An 11:41 a.m. e-mail from Mr. Guilder to Ed Roybal, Ak-Chin's other counsel, requesting information for the Ak-Chin CFC Complaint evidences that the Ak-Chin CFC Complaint was not yet complete at that time. (Passamaquoddy Hearing Tr. 27:11-20, Ex. 7; Salt River Hearing Tr. 58:8-15, Ex. 5; Ak-Chin Hearing Tr. 41:8-13; 42:22-25, Ex. H.) Ms. Applegate remembers that the information Mr. Guilder sought was public information, however, and that he quickly obtained it on his own. (Passamaquoddy Hearing Tr. 27:11-24; Salt River Hearing Tr. 58:18-21.) Because Ms. Applegate had prepared all of the other filing materials the day before, once the Ak-Chin CFC Complaint was completed, it only needed to be signed and copied. (Passamaquoddy Hearing Tr. 27:25-28:4; Salt River Hearing 58:22-59:6.) Ms.

Applegate had several people helping her with these copies. (Passamaquoddy Hearing Tr. 28:24; Salt River Hearing 64:2-6.)

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To file the Ak-Chin CFC Complaint, Ms. Applegate followed the same process as she did for the other three CFC Complaints. (Passamaquoddy Hearing Tr. 28:5-9.) She walked to the Court of Federal Claims, which took five minutes, encountered no lines at the Court of Federal Claims and presented the Ak-Chin CFC Complaint, cover sheet and filing fee to the clerk. (Passamaquoddy Hearing Tr. 28:5-9; Salt River Hearing Tr. 61:16-17:1.) Ms. Applegate walked back to Kilpatrick Stockton LLP's offices. (Passamaquoddy Hearing Tr. 28:12-18; Salt River Hearing 62:5-8.) When Ms. Applegate returned to the office, the Ak-Chin District Court Complaint had been copied and was ready to be filed. (Passamaquoddy Hearing Tr. 28:12-23; Salt River Hearing Tr. 62:9-17.) Ms. Applegate took a cab back to the District Court to file the Ak-Chin District Court Complaint. (Passamaquoddy Hearing Tr. 28:12-23; Salt River Hearing Tr. 64:710.) Ms. Applegate remembers that the clerk's desk was very busy when she arrived. (Ak-Chin Hearing Tr. 34:1-8.) The filing clerk told Ms. Applegate that she did not have time to process the Ak-Chin District Court Complaint, which included giving Ms. Applegate a summons, and instructed Ms. Applegate to leave the Complaint and the accompanying materials with the clerk. (Passamaquoddy Hearing Tr. 28:12-23; Salt River Hearing Tr. 64:11-24; Ak-Chin Hearing Tr. 20:16-21.) Ms. Applegate followed the clerk's instructions and took a cab back to her office. (Passamaquoddy Hearing Tr. 28:23; Salt River Hearing Tr. 65:1-5; Ak-Chin Hearing Tr. 20:1621.) After Ms. Applegate had returned to the office, at 12:41 p.m., Ms. Applegate sent G. William Austin, an attorney at Kilpatrick Stockton LLP, an e-mail explaining that all the Complaints had been filed, but she was waiting for the summons. (Passamaquoddy Hearing Tr. 29:21-30:23, Ex. 8; Salt River Hearing Tr. 26:21-28:9, Ex. H; Ak-Chin Hearing Tr. 43:12-20, Ex. 11

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J; Response to Interrogatories, Response Nos. 7 and 8.) Ms. Applegate knows that she was waiting for the Ak-Chin District Court Complaint to be completed because the District Court assigned that action the highest civil action number of the three District Court actions she filed that day, and the District Court assigns civil action numbers sequentially, based on the order of filing. (Passamaquoddy Hearing Tr. 30:10-23; Salt River Hearing Tr. 27:18- 28:9.) Because Ms. Applegate neither needed nor ever received a summons in connection with filing the CFC Complaints and did not have to return to the Court to retrieve a summons in the Passamaquoddy District Court Action, this e-mail evidences that Ms. Applegate had filed Passamaquoddy's CFC Complaint and the District Court Complaint by 12:41 p.m. (Id.) 5 After sending the 12:41 p.m. e-mail, Ms. Applegate returned to the District Court to complete the filing of the Ak-Chin District Court Complaint. (Passamaquoddy Hearing Tr. 31:11-16; Salt River Hearing Tr. 26:21-28:9; Ak-Chin Hearing Tr. 45:11-18; 44:13-15.) During this trip to the District Court, Ms. Applegate noticed that the District Court had "gotten significantly busier." (Ak-Chin Hearing Tr. 46:17-23.) Ms. Applegate paid the cashier and received a file-stamped copy of the Complaint, a receipt and executed summons. (Salt River Hearing Tr. 45:11-18; Ak-Chin Hearing Tr. 45:11-18.) Ms. Applegate knows that she completed this filing by 2:23 p.m. because at that time, she sent Mr. Austin another e-mail saying that she had returned from the Court and was getting ready to leave for the day. (Passamaquoddy Hearing Tr. 31:11-16, Ex. 9; Salt River Hearing Tr. 28:19-29:1, Ex. I; Ak-Chin Hearing Tr: 47:619, Ex. K.) Ms. Applegate testified that before she sent the 2:23 p.m. e-mail, she already had returned to the office and left the District Court Complaints and summonses for the process Under the RCFC 4, Passamaquoddy was not required to effectuate service of the CFC Complaint on the United States. See RCFC 4 ("Service of the complaint upon the United States shall be made through the delivery by the clerk to the Attorney General . . . of copies of the complaint . . . the date of service shall be date of filing with the clerk."). 12
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servers to retrieve. (Passamaquoddy Hearing Tr. 31:17-21; Salt River Hearing Tr. 28:19-29:1; Ak-Chin Hearing Tr. 47:6-48:14.) Ms. Applegate's three trips to the District Court on December 29, 2006 are documented by the cab receipts from these trips. Ms. Applegate made the following distinct handwritten notations on each of the receipts: "A.M." "second trip" and "Ak-Chin." (Passamaquoddy Hearing Tr. 31:22-33-5, Exs. 10-12; Salt River Hearing Tr. 25:13-26:20, Exs. E-G; Ak-Chin Hearing Tr. 34:10-37:12, Exs. E-G.) The cab receipt with the "A.M." notation is the cab receipt for Ms. Applegate's first trip to the District Court. Id. The receipt with the "second trip" notation reflects Ms. Applegate's second trip to the District Court and the receipt with the "AkChin" notation reflects her third and final trip to the District Court. Id. ARGUMENT Defendant made several factual arguments in its prior briefing to this Court and in connection with the evidentiary hearing to support its position that Passamaquoddy's District Court Complaint was filed prior to the instant action. The facts established by Ms. Applegate's testimony and supporting evidence defeat each of these arguments. A. The District Court Docket Sheet Is Consistent with Ms. Applegate's Testimony.

Defendant points to the fact that the Passamaquoddy District Court Complaint was the first action filed in the District Court on December 29, 2006 and to Ms. Bosken's 9:26 a.m. email conveying the final CFC Complaints, which Ms. Applegate filed along with the Passamaquoddy CFC Complaint, as purportedly demonstrating that Ms. Applegate filed the District Court Complaint prior to filing the CFC Complaint. Defendant's argument fails to take into account the substantial evidence in the record that Mr. Harper instructed Ms. Applegate to 13

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file the CFC Complaints prior to filing the District Court Complaints. Its argument also hinges on the unfounded assumption that the first filing of the day in the District Court on December 29, 2006 had to have occurred prior to 10:30 a.m., when Ms. Applegate estimates she filed the Passamaquoddy District Court Complaint. Ms. Applegate bases her estimate that she filed Passamaquoddy's District Court Complaint at 10:30 a.m. on the fact that she received final versions of the CFC Complaints for Salt River, Passamaquoddy and Tohono O'odham at 9:26 a.m. and the time it took her to file those Complaints and to travel to the District Court. (Passamaquoddy Hearing Tr. 26:24-27:4; Salt River Hearing Tr. 24:2-7.) By 9:26 a.m., per Mr. Harper's e-mail instructions, Ms.

Applegate already had called the Courts to see if they would be closing early due to the upcoming federal holiday and President Ford's death. (Passamaquoddy Hearing Tr. Ex. 1; Salt River Hearing Tr. Ex. C; Ak-Chin Hearing Tr. Ex. C.) The District Court assured Ms. Applegate that it would not be closing early, while the clerk at the CFC told Ms. Applegate that it could not control what the Chief Judge may decide to do. (Passamaquoddy Hearing Tr. 16:15-17:3; Salt River Hearing Tr. 22:22-23:2; Ak-Chin Hearing Tr. 26:1-9.) Mr. Harper and Ms. Applegate had never filed a Complaint in the CFC and were not as familiar with that Court's processes, whereas they had filed the Tohono O'odham Complaint in the District Court the day before and have practiced more regularly in the District Court. (Passamaquoddy Hearing Tr. 17:6-10; Salt River Hearing Tr. 23:6-17; Ak-Chin Hearing Tr. 27:17-23; Response to Interrogatories, Response No. 11; Applegate Aff., ¶ 7 and Ex. C.) Therefore, Mr. Harper instructed Ms. Applegate to file the CFC Complaints as early as possible and before filing the District Court Complaints, so they would have sufficient time to remedy any problems with those filings if a problem were to arise. (Salt River Hearing Tr. 23:5-18; Ak-Chin Hearing Tr. 27:17-23; Passamaquoddy Hearing Tr. 14

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17:4-10; Response to Interrogatories, Response No. 11; Applegate Aff., ¶ 7.) Mr. Harper also recalls these concerns, Ms. Applegate's calls to the courts and giving Ms. Applegate the oral instruction to file the CFC Complaints first. (Response to Interrogatories, Interrogatory No. 11.) This instruction did not cause any of the District Court filings to be unduly delayed because three of the CFC Complaints were final by 9:26 a.m. After Mr. Guilder received the 9:26 a.m. e-mail with the final versions of the CFC Complaints, Mr. Guilder printed the three CFC Complaints, including the Passamaquoddy CFC Complaint, for Ms. Applegate and Ms. Applegate, with the assistance of other lawyers and support personnel, quickly made copies of the Complaints for filing. (Passamaquoddy Hearing Tr. 20:18-22.) Ms. Applegate walked a few blocks to the CFC to file the CFC Complaints for Passamaquoddy, Salt River, and Tohono O'odham, which turned out to be a surprisingly quick and uneventful process, and walked back to the office. (Salt River Hearing Tr. 55:2-8.) When Ms. Applegate arrived back at the office, the Passamaquoddy and Salt River District Court Complaints were copied already and ready to go. (Salt River Hearing Tr. 55:9-56:1.) Ms. Applegate only needed to take a cab to the District Court. Based on the time it took Ms. Applegate to file the CFC Complaints shortly after 9:26 a.m. and then to travel to the District Court, Ms. Applegate estimates that she filed the Salt River and Passamaquoddy District Court Complaints at 10:30 a.m. (Passamaquoddy Hearing Tr. 26:24-27:4; Salt River Hearing Tr. 24:2-7.) Ms. Applegate's estimate that she filed the Passamaquoddy and Salt River District Court Complaints at 10:30 a.m. is consistent with the two complaints being the first filed that day. Lawyers being lawyers, there is no reason to be surprised that the first filing of the day on December 29, 2006 did not occur earlier than 10:30 a.m. In fact, Passamaquoddy's counsel visited the District Court clerk's office on a randomly selected day to observe when the first 15

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Complaint was filed in that Court. On that day, Passamaquoddy's counsel observed that the first Complaint was not filed in the District Court until 11:40 a.m. (Salt River Hearing Tr. 86: 1487:3.) Likewise, Ms. Applegate testified that during her six years as a paralegal, she has completed hundreds of filings in the District Court and she always made these filings in the afternoon "to give as much time as possible to work on the document." (Salt River Hearing Tr. 36:21-37:9.) The District Court Complaints Ms. Applegate filed for Passamaquoddy and Salt River were the first, and only, pleadings she has ever filed by 10:30 a.m. (Id.) Despite Defendant's suggestion to the contrary, there is nothing implausible about Ms. Applegate having filed the first two Complaints in the District Court at approximately 10:30 a.m. 6 B. The E-mails Relied Upon by Defendant Do Not Detract from Ms. Applegate's Credibility.

Defendant attempts to attack Ms. Applegate's credibility by pointing to Mr. Harper's December 29, 2006 8:59 a.m. e-mail and the April 23, 2007 e-mails exchanged between Ms. Applegate and Ms. Munson. These e-mails are easily reconciled with Ms. Applegate's

testimony. In fact, in Ak-Chin, Judge Hewitt considered and rejected the very same arguments Defendant makes again here. 1. Ms. Applegate Did Not See Mr. Harper's 8:59 a.m. E-mail on December 29, 2006 Because She Was Away From Her Desk Preparing Complaints for Filing.

Defendant argues that an e-mail Mr. Harper sent to Ms. Applegate at 8:59 a.m. on December 29, 2006, telling her to file the District Court Complaints while he made changes to the CFC Complaints, is dispositive of the timing issue. This argument is a complete "red

The timing of these filings is also consistent with what the intake clerk at the District Court told Passamaquoddy's counsel and Defendant's counsel ­ that you cannot make generalizations (such as the one Defendant is making here) about when the first Complaint of a day is filed. (Salt River Hearing Tr. 90:11-91:14.) 16

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herring." Ms. Applegate testified that she did not even see Mr. Harper's 8:59 a.m. e-mail on December 29th and thus could not have heeded this instruction. (Passamaquoddy Hearing Tr. 17:18-18:10; Ex. 2; Salt River Hearing Tr. 24:12-25:8, Ex. D; Ak-Chin Hearing Tr. 28:7-10; 30:6-20, Ex. D.) Ms. Applegate explained that at the time Mr. Harper sent the e-mail, she was away from her desk preparing the Complaints for filing and she did not have a Blackberry at the time. (Passamaquoddy Hearing Tr. 17:18-18:10; Salt River Hearing Tr. 24:12-25:8; Ak-Chin Hearing Tr. 28:7-10; 30:6-20.) The first time Ms. Applegate remembers reading the e-mail was in connection with collecting materials to produce in discovery served in the Ak-Chin CFC action. (Passamaquoddy Hearing Tr. 17:18-18:10; Salt River Hearing Tr. 24:21-25:8; Ak-Chin Hearing Tr. 30:6-20.) Ms. Applegate further explained that after Mr. Harper sent her the 8:59 a.m. e-mail, Ms. Applegate informed Mr. Harper that she was unable to confirm that the Court of Federal Claims would not be closing early that day for the holiday. (Salt River Hearing Tr. 42:22-43:8; Ak-Chin Hearing Tr. 26:1-9; 30:6-20.) This uncertainty, coupled with Mr. Harper's never having filed a Complaint in the Court of Federal Claims, prompted Mr. Harper to orally direct Ms. Applegate to file the Court of Federal Claims actions prior to filing the District Court actions. (Salt River Hearing Tr. 42:22-43:8; Ak-Chin Hearing Tr. 27:12-28:6.) It is this instruction that Ms.

Applegate followed. (Passamaquoddy Hearing Tr. 14:9-15:14; Salt River Hearing Tr. 41:22-24; Ak-Chin Hearing Tr. 18:3-9.) In fact, during the December 10th evidentiary hearing in the Salt River CFC action, on cross-examination, Ms. Applegate was emphatic that she did not "remember hearing anything about the District Court being filed first, period." (Salt River Hearing Tr. 41:22-24.)

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In Ak-Chin Indian Community v. United States, No. 06-932L, Judge Hewitt considered and rejected the same argument Defendant makes here, that based upon the 8:59 a.m. e-mail, Ms. Applegate's testimony cannot be believed. To reach the conclusion that the 8:59 e-mail is not dispositive of the timing issue, Judge Hewitt noted that Mr. Harper also recalled orally instructing Ms. Applegate to file the CFC Complaints at the earliest possible time and prior to filing the Complaint initiating the District Court action and "credit[ed] Ms. Applegate's testimony describing her activities the morning of December 29, 2006, in particular, that she was away from her desk and working to assemble the Complaints." Ak-Chin, 80 Fed Cl. at 310. 2. The April 23rd E-mails Are Consistent with Ms. Applegate's Testimony, Affidavit and Passamaquoddy's Interrogatory Responses.

Defendant also argues that two e-mails Ms. Applegate sent on April 23, 2007 demonstrate that Ms. Applegate is uncertain of which Passamaquoddy Complaint she filed first that day. (Def. Reply Brf. at 5.) To make this argument, Defendant misconstrues the e-mails and the context in which they were written. The first e-mail reflects Ms. Applegate's response to Ms. Munson's question, nearly four months after the filings, of how to determine what time the Complaints on behalf of Salt River and Passamaquoddy were filed. (Passamaquoddy Hearing Tr. Ex. 13; Salt River Hearing Tr. Ex. L; Ak-Chin Hearing Tr. Ex. 8.) Ms. Applegate responded that because the Complaints had no time-stamps, there is "no precise way" to determine what time she filed the Complaints in each court, which is fully consistent with her testimony in three separate actions. (Passamaquoddy Hearing Tr. 18:19-18:25; 33:22-34:2; Ak-Chin Hearing Tr. 20:9-14; 30:21-25; Salt River Hearing Tr. 24:2-7.) By arguing that this e-mail detracts from Ms. Applegate's credibility, Defendant is confusing the issue of what time the Complaints were actually filed -- which Ms. Applegate explained in the e-mail and to the Court that she does not know, because the Complaints are not 18

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time-stamped -- and the relative sequence of filings -- which Ms. Applegate does know, and which is legally dispositive. Ms. Applegate's statement that the Complaints have no time-stamps is a fact which is not in dispute and in no way undermines her credibility. What Ms. Applegate remembers, and what matters, is which of the two Passamaquoddy Complaints Ms. Applegate filed first. This e-mail also included the statement that: "As for the CFC, I know I went over and we were missing something so I had to come back to the office and get it, but I just don't know what time all of this happened." (Passamaquoddy Hearing Tr. Ex. 13; Salt River Hearing Tr. Ex. L; Ak-Chin Hearing Tr. Ex. 8.) Defendant points to this statement to argue that Ms. Applegate's testimony is not credible because she did not testify that she was "missing something" when she filed the CFC Complaints on December 29, 2006. Ms. Applegate explained at the February 1, 2008 hearing, however, that after having sent this immediate response to Ms. Munson's informal inquiry within minutes of receiving the e-mail, Ms. Applegate realized she had confused the trips she made to the Court of Federal Claims on December 29, 2006 to file the tribal trust Complaints, with a separate and completely unrelated trip to the Court of Federal Claims days later ­ in January 2007, during which she learned that she was "missing something." (Passamaquoddy Hearing Tr. 34:10-35:1; Salt River Hearing Tr. 36:13-37:2.) Ms. Applegate made this later and unrelated trip to the Court of Federal Claims in January 2007 to submit admissions packets for Mr. Austin and another Kilpatrick Stockton LLP attorney so that they could appear in this action and the other tribal trust cases Ms. Applegate filed in the Court of Federal Claims on December 29, 2006. (Passamaquoddy Hearing Tr. 45:23-46:9.) During that trip, Ms. Applegate had to return to the office because she was missing something.

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(Passamaquoddy Hearing Tr. 34:10-35:1). Ms. Applegate's visit to the Court of Federal Claims during which she learned she was "missing something" did not occur on December 29, 2006. Id. In the other April 23, 2007 e-mail pointed to by Defendant, Ms. Applegate follows up on Ms. Munson's inquiry by forwarding Ms. Applegate's December 29, 2006, 2:23 p.m. e-mail to Mr. Austin and stating that she "thinks she went to the CFC first, but [is] not certain about that." (Passamaquoddy Tr. Ex. 14; Salt River Hearing Tr. Ex. L; Ak-Chin Hearing Tr. Ex. 8.) Ms. Applegate sent this e-mail and the other e-mail approximately 15 minutes after having received Ms. Munson's inquiry and prior to having reviewed all the relevant contemporaneous evidence relating to the December 29th filings to refresh her recollection, which is what she did before she executed her Affidavit in this case and before testifying on February 1, 2008. (Passamaquoddy Hearing Tr. 35:11-36:13; see also Salt River Hearing Tr., at 35:18-36:21; 79:24-80:4.) During cross-examination at the February 1, 2008 Hearing, Ms. Applegate explained that she expressed that she was not certain when she sent the e-mail because she had not yet had a chance to review this evidence. (Passamaquoddy Hearing Tr. 44:5-45:11.) Ms. Applegate's review of the

relevant documentary evidence confirmed for Ms. Applegate that what she originally thought in fact was true -- she filed the Court of Federal Claims action first. (Passamaquoddy Hearing Tr. 36:8-13.) If anything, this e-mail bolsters Ms. Applegate's credibility because it shows that before conducting any internal investigation, Ms. Applegate independently remembered going to the CFC first. Defendant also attempted to cast doubt on Ms. Applegate's credibility based on these emails in the Ak-Chin case. Judge Hewitt explicitly rejected this argument, pointing to the fact that Ms. Applegate responded to Ms. Munson's inquiry within a matter of minutes and without having reviewed the contemporaneous evidence. Ak-Chin, 80 Fed. Cl. at 310. Judge Hewitt also 20

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was persuaded by the fact that the e-mails only stated that Ms. Applegate could not determine what time the Complaints were filed. Id. It does not state that she was unable to determine the order of filing, which is what matters here. See id. With regard to Ms. Applegate's statement in her April 23, 2007 e-mail that she was "missing something," Judge Hewitt adopted Ms. Applegate's explanation and specifically found that Ms. Applegate's testimony regarding the sequence of filing has "remained consistent." Id. at 311. C. Salt River's Counsel Has Never Argued that Ms. Applegate Was Missing Something When She Filed the Ak-Chin CFC Complaint.

During Defendant's cross-examination of Ms. Applegate, Defendant's counsel suggested that a brief filed by Passamaquoddy's counsel in the Ak-Chin Court of Federal Claims matter is inconsistent with Ms. Applegate's testimony. This argument is a product of a misreading of AkChin's brief and based on the false assertion that Ak-Chin took the position in the brief that Ms. Applegate was "missing something" when she filed the Ak-Chin CFC Complaint. Nothing could be further from the truth. It is useful to understand the context in which Ak-Chin filed the brief at issue. Despite never having raised the issue during its cross-examination of Ms. Applegate at the Ak-Chin October 24, 2007 evidentiary hearing, or in its prior two briefs filed in the Ak-Chin action, in its Post-Evidentiary Hearing Brief filed in that case, Defendant relied upon Ms. Applegate's statement that she was "missing something" in the April 23rd e-mail to introduce a new theory about Ms. Applegate's filings on December 29, 2006. For the first time, Defendant argued that based on the April 23rd e-mail, Ms. Applegate's filing of the Court of Federal Claims Complaints for Salt River, Passamaquoddy and Tohono O'odham did not go "smoothly" as she had testified.

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Because at the time there was no evidence in the record regarding Ms. Applegate's later trip to the Court of Federal Claims during which she attempted to submit attorney admissions, but was "missing something," Ak-Chin was unable to offer a full explanation for the statement in the April 23rd e-mail in its Response to Defendant's Post-Evidentiary Hearing Brief. So instead, Ak-Chin relied upon Ms. Applegate's testimony that she went to the Court of Federal Claims twice on December 29, 2006, once to file the Salt River, Passamaquoddy and Tohono O'odham Complaints and later, because she had to file the Ak-Chin Complaint. In other words, Ms. Applegate did not return to the Court of Federal Claims because she was "missing something." Ak-Chin's Response Brief thus explained: While Ms. Applegate initially recalled having to make a second trip to the Court of Federal Claims that day because she was "missing something" her first trip there, the reason Ms. Applegate was required to make a second trip to the Court of Federal Claims was because the Ak-Chin CFC Complaint was not ready when the other three Complaints were filed and it had to be delivered for filing later that same morning. (Passamaquoddy Hearing Tr. Ex. 24, at p. 12-13; Salt River Hearing Tr. Ex. 9, at p. 12-13). Defendant has taken the position in its prior briefing and during its cross-examination of Ms. Applegate at the February 1, 2008 Hearing that this passage is inconsistent with Ms. Applegate's testimony about the CFC filings she completed on December 29, 2006 because it purportedly states that Ms. Applegate was "missing something" in connection with the filing of the Ak-Chin CFC Complaint. That simply is not correct. Ak-Chin's brief argued just the opposite -- that Ms. Applegate was not "missing something" in connection with the Ak-Chin filing in the Court of Federal Claims or any other filing that day. Nor has Ms. Applegate ever testified that she was "missing something" in connection with her filings. In fact, while under cross-examination during the evidentiary hearing in this action and in Salt River, Ms. Applegate explained that the brief was consistent with her prior testimony that her reference in the e-mail to 22

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"missing something" referred to her later trip to the Court of Federal Claims. (Passamaquoddy Hearing Tr. 44:24-45:11; Salt River Hearing Tr. 71:6-23.) D. Defendant's Theory that Ms. Applegate Was Missing Something When She Filed the CFC Complaints Cannot Be Squared with the Evidence.

In a further attempt to cast doubt on Ms. Applegate's credibility, Defendant manufactures its own theory. Defendant argues in its briefing in this action that, based on the April 23, 2007 emails, Ms. Applegate forgot something in connection with the CFC filings requiring her to return to the office. (Def. Brf. In Support of Motion to Dismiss at 12; Reply Brf. p. 3.) Defendant recently made this same argument in Ak-Chin and Salt River and as support, Defendant took the position that the receipt numbers associated with the Complaints Ms. Applegate filed in the CFC on December 29, 2006 reflect the order in which Ms. Applegate filed the Complaints. Based on this false premise, Defendant has created a theory -- which Judge Hewitt previously rejected -that Ms. Applegate went to the CFC to file all four CFC Complaints after 11:14 a.m. (based on Mr. Guilder's 11:41 a.m. e-mail to Mr. Roybal showing that the Ak-Chin CFC Complaint was not yet final), realized that she was missing something, filed the Ak-Chin CFC Complaint, returned to Kilpatrick Stockton LLP's offices, and then returned to the CFC to file the three remaining CFC Complaints by 12:41 p.m. Importantly, Defendant fails to account for Ms. Applegate having to file the three District Court Complaints. impossible to square with the evidence in the record. 1. The Receipts Issued by the CFC In Connection with the Filing of a Complaint Do Not Reflect the Order of the Filing of those Complaints. Defendant's theory also is

First, Defendant's argument is based on the false premise that receipts issued by the CFC in connection with the filing of Complaints reflect the order of filing within any given day. Ms. Lisa Reyes, the CFC Chief Deputy Clerk, explained at the December 12, 2007 Status Conference 23

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held in the Salt River CFC action that the order in which a particular complaint is filed cannot be ascertained by looking at the receipt number, even when the filer of the Complaint receives a receipt at the time of filing. (December 12, 2007 Hearing Transcript in Salt River ("December 12th Hearing Tr.") 9:1-10; 14:14-22; 18:21-23; Passamaquoddy Hearing Tr. Ex. 35.) Ms. Reyes also explained that an unusual number of filings within a given day may cause a "back-log" which would account for receipt numbers associated with Complaints being out of order. (December 12th Hearing Tr. 8:1-25; 22:3-19.) When asked if 21 Complaints in a single day -the number of Complaints filed in the CFC on December 29, 2006 -- would be considered a significant number of Complaints, Ms. Reyes responded: Hearing Tr. 10:4-8.) Moreover, even if Ms. Reyes had testified that the CFC receipts associated with Complaints reflect the order of the filing of the Complaints within a given day when a filer receives a receipt at the time of filing, Ms. Applegate has testified -- and Passamaquoddy's Interrogatory Responses make clear -- that Ms. Applegate did not receive a receipt at the time she filed the CFC Complaints for Passamaquoddy, Salt River and Tohono O'odham. (Response to Interrogatories, Interrogatory No. 2; Passamaquoddy Hearing Tr. 22:23-25:11.) Ms. "For us, yes." (December 12th

Applegate testified that she knows she did not receive receipts at the time she filed those three CFC Complaints because when she received the receipts from the Court of Federal Claims, they had "post-it" notes on them reflecting judicial assignments. (Response to Interrogatories,

Interrogatory No. 2; Passamaquoddy Hearing Tr. 22:23-25:11; 57:12-14, Ex. 4 and 6.) Ms. Applegate knows that her team did not learn which judges had been assigned to the CFC actions until January 3, 2008, based on e-mail exchanges of that date wherein Mr. Harper asks if they had received judicial assignments yet and Ms. Applegate informs Mr. Harper that they received 24

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their first assignments that day. (Passamaquoddy Hearing Tr. 24:12-22, Ex. 5.) Ms. Reyes also confirmed at the December 12, 2007 Status Conference in Salt River that the CFC places the post-it notes with the judicial assignments on the receipts. (December 12th Hearing Tr. 30:4-16.) 2. Defendant's Theory Is Impossible to Square with the Evidence in the Record.

Second, Defendant's theory cannot account for Ms. Applegate's filing of the District Court actions, in particular her filing of the Ak-Chin District Court Complaint. In devising its theory, Defendant fails to take a position as to whether Ms. Applegate filed the Ak-Chin District Court Complaint before, or after, Ms. Applegate filed the four CFC Complaints and had to return to Kilpatrick Stockton LLP's offices because she was missing something. Upon review of the evidence, it is apparent that Defendant chose not to stake out a position on when Ms. Applegate filed the Ak-Chin District Court Complaint under its theory because -- whether she did it before or after -- Defendant's theory cannot be reconciled with undisputed evidence in the record. Defendant cannot argue under its theory that Ms. Applegate filed the Ak-Chin CFC Complaint and then returned to file the other three CFC Complaints before she filed the Ak-Chin District Court Complaint because she would not have had time to complete all of these filings within one hour. That is, based on contemporaneous e-mails, it is not disputed that the Ak-Chin CFC Complaint was not complete as of 11:41 a.m. and that by 12:41 p.m. Ms. Applegate had left all the Complaints with the CFC and District Court, but was waiting for a summons for the AkChin District Court Complaint. (Passamaquoddy Hearing Tr. 29:21-30:23, Ex. 7, 8; Salt River Hearing Tr. 26:21-28:9; Ak-Chin Hearing Tr. 43:12-20.) Therefore, if Ms. Applegate filed the Ak-Chin District Court Complaint after she filed the Ak-Chin CFC Complaint, she had to do so by 12:41 pm. Defendant is offering a scenario in which Ms. Applegate would not only had to complete the filing of the Ak-Chin CFC Complaint and leave the Ak-Chin District Court 25

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Complaint with the District Court between 11:41 a.m. and 12:41 p.m., but also had to have to filed the Salt River, Passamaquoddy and Tohono O'odham Complaints in an additional trip to the CFC due the fact that she purportedly was missing something. During cross-examination at the December 10, 2007 evidentiary hearing in Salt River, Ms. Applegate testified at length about the tasks required to complete the filing of the Complaints in the CFC and District Court and the time it took to complete those tasks. (Salt River Hearing Tr. 47-65.) While Ms. Applegate's testimony makes it clear that she worked quickly and efficiently to accomplish the filings of the Ak-Chin CFC Complaint and Ak-Chin District Court Complaint between 11:41 a.m. and 12:41 p.m., it is also evident from her testimony that she would not have been able to complete an additional and separate trip to the CFC during that hour, which is what Defendant's theory requires her to do. (Id.) Thus, Defendant's theory is not only unsupported, but it is also impossible to square with the evidence in the record. Defendant cannot argue that Ms. Applegate completed the Ak-Chin CFC filing after she filed the Ak-Chin District Court Complaint either. That theory requires this Court to reject Judge Hewitt's principal holding in Ak-Chin. That is, Judge Hewitt denied Defendant's Motion to Dismiss based on her finding that Ms. Applegate filed the Ak-Chin CFC Complaint before Ms. Applegate filed the Ak-Chin District Court Complaint. Judge Hewitt's finding in Ak-Chin that Ms. Applegate filed the Ak-Chin CFC Complaint before she filed the Ak-Chin District Court Complaint is based upon substantial evidence in the record. Defendant has never disputed Ms. Applegate's recollection that her last trip of the day in connection with filing a Complaint was to the District Court. Ms. Applegate's recollection is based, in part, on her remembering giving a security guard at the District Court a high five when 26

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she completed all of her filings that day. (Ak-Chin Hearing Tr. 12; 15-16.) This recollection is also supported by Ms. Applegate's December 29, 2006, 12:41 p.m. e-mail to Bill Austin explaining that she had finished the filings but had to retrieve a summons, a document only needed in the District Court. (Passamaquoddy Hearing Tr. Ex. 8.) Moreover, the District Court docket shows that the Ak-Chin District Court Complaint was the last District Complaint that Ms. Applegate filed on December 29, 2006. (Passamaquoddy Hearing Tr. Ex. 16.) These

undisputed facts lead to the inescapable conclusion that the last action Ms. Applegate filed on December 29, 2006 was the Ak-Chin District Court action, the action assigned the highest civil action number, which necessarily means that she filed Ak-Chin's District Court Complaint after she had filed the Ak-Chin CFC Complaint. In sum, Defendant's theory is so tenuous that it requires this Court to reject: (1) Ms. Reyes' statements to this Court at the December 12, 2007 Status Conference in Salt River that the receipts issued by the CFC do not reflect the order of filing of Complaints; (2) Judge Hewitt's holding that the Ak-Chin District Court action was not pending when Ms. Applegate filed the Ak-Chin CFC Complaint; (3) Ms. Applegate's live testimony in this action, Ak-Chin and Salt River as to the order of the seven filings; and (4) Passamaquoddy's Interrogatory Responses and the Interrogatory Responses filed by Ak-Chin and Salt River all of which Mr. Harper verified. In short, Defendant's theory is baseless. Defendant further fails to explain one obvious logical error in its theory. That is,

Defendant contends that Ms. Applegate went to the CFC to file all four CFC Complaints at the same time, but learned she was missing something, filed the Ak-Chin CFC Complaint and then returned later to file the CFC Complaints for Salt River, Passamaquoddy and Tohono O'odham. Defendant fails to explain, however, why Ms. Applegate would be able to file the Ak-Chin CFC 27

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Complaint, but not the other three CFC Complaints. What could Ms. Applegate possibly have needed for the Salt River, Passamaquoddy and Tohono O'odham CFC Complaints, but not for the Ak-Chin CFC Complaint? Considering that the only documents needed to file Complaints in the CFC consist of seven copies of the Complaints, a cover sheet and filing fee, all of which Ms. Applegate had prepared the day before, Defendant's theory simply does not make sense. (Passamaquoddy Hearing Tr. 21:7-22; Salt River Hearing Tr. 43:13-14; 51:2-9.) Lastly, Defendant's theory has been squarely rejected. At the hearing in the Salt River action, Ms. Applegate specifically denounced the possibility that she filed the CFC Complaints in the manner now proposed by Defendant. (Salt River Hearing Tr. 79:3-81:6.) In addition, in Ak-Chin, Judge Hewitt refused to adopt Defendant's theory that the order of filings can be linked to the CFC receipts. In rejecting this argument, Judge Hewitt pointed to Ms. Reyes' unequivocal testimony that the CFC receipts do not reflect the order of the filing of Complaints on any given day. Ak-Chin, 80 Fed. Cl. at 311. E. Ms. Applegate Testified about the Sequence of Filing In this Action Based on Her Memory and Supporting Documentation.

In its prior briefing and during cross-examination at the February 1, 2008 hearing, Defendant pointed to the fact that Ms. Applegate's Affidavit in this action stated that to the "best of [her] recollection" she "filed the Complaint in the instant action prior to filing the Complaint in the Passamaquoddy District Court action." (Passamaquoddy Hearing Tr. Ex. 19.)

Defendant's counsel contrasted this statement with Ms. Applegate's Affidavit filed in the AkChin matter stating that she was "certain" that she filed the Ak-Chin CFC Complaint prior to filing the Ak-Chin District Court Complaint. (Passamaquoddy Hearing Tr. Ex. 22.) Defendant's argument that based on these Affidavits, Passamaquoddy has not carried its burden of proof, fails for several reasons. 28

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First, that Ms. Applegate's Affidavit in Ak-Chin stated that she was "certain" does not change the fact that Ms. Applegate's Affidavit and testimony given in this action are properly based on her memory of the events of December 29, 2006 and contemporaneous evidence. Ms. Applegate explained that her Affidavit in Ak-Chin stated that she was "certain" because the filings for Ak-Chin were particularly memorable. Ms. Applegate described the filing of the AkChin District Court Complaint as unusual because she had to make two trips to the District Court to complete the filing. (Passamaquoddy Hearing Tr. 65:23-66:16.) In addition, Ms. Applegate knows that the last filing she completed that day was in the District Court and that based on the civil action numbers, the Ak-Chin District Court Complaint was the last Complaint she filed that day. (Passamaquoddy Hearing Tr. 65:23-66:16.) Second, Ms. Applegate's testimony in this action is based on her memory and is competent evidence. As Ms. Applegate explained, "to the best of my recollection is my

memory. It's the memory of what I had with the confirmations of the various documents that I ascertained . . . ." (Passamaquoddy Hearing Tr. 68:3-11.) 7 Significantly, Ms. Applegate's

memory also is corroborated by Mr. Harper's independent recollection that he directed Ms. Applegate to file the Court of Federal Claims action first. (Response to Interrogatories,

Response No. 11.) Defendant has failed to come forward with any evidence or legitimate argument controverting the memories of Ms. Applegate and Mr. Harper or the corroborating evidence. In fact, when considering almost all of the same arguments Defendant has made again here, Judge Hewitt held as follows:

Defendant's counsel also cross-examined Ms. Applegate about her saying, during the Salt River evidentiary hearing, that December 29th was a "confusing day." Ms. Applegate clarified, however, that she is not confused about the order in which she filed the Complaints and that she remembers filing Passamaquoddy's CFC Complaint before she filed the District Court Complaint. (Passamaquoddy Hearing Tr. 73:6-19.) 29

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The Court finds Ms. Applegate to be a credible witness. Plaintiff's time-line for the filing for the filing of plaintiff's Court of Federal Claims complaint and District Court complaint is not implausible or inconsistent with the record. Possible discrepancies between statements in e-mail and answers to interrogatories and testimonial evidence were explained. Ak-Chin, 80 Fed. Cl. at 313. F. There Is Overwhelming Evidence In the Record that Ms. Applegate Filed Passamaquoddy's CFC Complaint Prior to Filing the District Court Complaint.

The evidence in the record demonstrating that Ms. Applegate filed Passamaquoddy's CFC Complaint prior to filing its District Court Complaint is substantial. This evidence consists of Ms. Applegate's Affidavits, Passamaquoddy's Interrogatory Responses, Ms. Applegate's live testimony on October 24, 2007, December 10, 2007 and February 1, 2008, e-mails Ms. Applegate sent at the time of the filings, as well as other evidence generated from the filings. Defendant has not directly contested this evidence, some of which is as follows: · Mr. Harper sent an e-mail at 9:44 p.m. on Thursday, December 28, 2006, asking Ms. Applegate to determine if the Courts were closing early the next day because of President's Ford's death and December 29, 2006 was the Friday before New Years. (Passamaquoddy Hearing Tr. Ex. 1.) Mr. Harper and Ms. Applegate had filed an action in the District Court initiating an action on behalf of Tohono O'odham on December 28, 2006. (Passamaquoddy Hearing Tr. 17:6-10; Salt River Hearing Tr. 23:6-17; Ak-Chin Hearing Tr. 27:17-23; Response to Interrogatories, Response No. 11; Applegate Aff., ¶ 7 and Ex. C.) Ms. Applegate learned that the District Court would not close early, but the CFC did not guarantee that it would not. This uncertainty, coupled with their never having filed a complaint in the CFC, but having filed one in the District Court, prompted Mr. Harper to instruct Ms. Applegate to file the CFC Complaints first. (Passamaquoddy Hearing Tr. 16:15-17:3; Salt River Hearing Tr. 22:22-23:2; Ak-Chin Hearing Tr. 26:1-9.) Mr. Harper recalls orally instructing Ms. Applegate to file the CFC Complaint prior to filing the District Court action. (Responses to Interrogatories, Response No. 11.). Ms. Bosken conveyed final versions of the Salt River and Tohono O'odham CFC Complaint at 9:26 a.m. and Mr. Guilder printed out a final version of the Passamaquoddy CFC Complaint shortly thereafter. (Passamaquoddy Hearing Tr. 19:12-19, Ex. 3.) 30

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Ms. Applegate consistently represented that she followed Mr. Harper's instructions to file the Passamaquoddy CFC Complaint prior to filing the Passamaquoddy District Court act