Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:06-cv-00942-LJB

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DEFENDANT'S EXHIBIT 8

Case 1:06-cv-00942-LJB
0911212007 17'02 FAX 2025085858

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~00B/007 t~ i uJ J

~ilpatr:J.c Stockton

Munson, Catherine From: Applegate, Alexis Monday, April 23, 2007 10:36 AM Sent: To" Munson, Catherine Subjectr: RE: Complaints in Salt River and Passamaquoddy No there is no precise way- there is no time stamp on documents filed during the clerk's once business hours, iust the date. I had to drop them off with the intake clerk so she could process them and then come back for them. So even if I could remember what time I wen{ over there 0'11 check my ernails jUSt in case I sent one that shows when I got back) we would have no idea what t~me 1:he crerk ~tuatly, filed them in the DDC As for the CFC, I know I went over and we were missing something so I had to come baok to the office and get it, but I just don't know what time all of this happened, r[I forward you any emai!s in my sent box that I find in case that is helpful. From: Hunson, c~edne Sent: Honday, April 23, 2007 I0:20 AM To: Applegat~, Alexis Co: Harper, Keith Subject: Compiainl;s in Salt River and Passamaquoddy ,~Jexis, DO you know Of a way to find out what time the SR and P~ssamaquoddy cases were filed in tile CFC and DCt. on Dec. 29th? It is important. Thanks. Catherine

7/t 7/2007

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Kilpatric S~ockton

Munson, Catherine From: Applegate, Alexis Monday, April 23, 2007 10:37 AM Sent: To: Munson, Catherine Subject: FW'. The Tribal Trust Case Filings This isn't very precise, but from the below chain of emails to Bill il looks like I took them over to the D,DC. and picked them up again between 12:41 and 2:23. I think I went Io the CFC first, but I am nol certain about that. Sorry that is about all that I have. From; Applegates Alexis Senti Friday, December 29, 2006 2:23 PM To: Austin, Bill Subject: RE: The Tribal Trust Case Filings Just got back from the court,., leaving soon' have to get my time in before I leave,

From' Austin, Bill Sent:. Friday, December 29, 2006 1:49 PH To= Apptegate, Alexis Subject=, RE: The Tribal Trust C~se Filings Thanks for the update. When are you leaving the office?

From: Applegate, Alexis Sent: Friday, December 29, 2006 12:41 PM To: Austin, Bill Subject= RE: The Tribal Trust Case Filings sorry - we have filed them but I am w-~iting for the summons- we filed most of them today.

From: AusUn, Bill Sent: Friday, December 29, 2006 11:43 AM TO: Applegate, Alexis Subject: The Tribal Trust Case Filings Alexis-If you've not yet departed for Jekyll Island and the weekend of celebration and merriment to be hosted by Vance, would it be possible for you to e-mail me the complaints filed on Thursday in the district court and the court of federal claims? And please convey my best wishes to Vance-tell him he's greatly missed. Bill A. 7/17/2007

PAS00483

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DEFENDANT'S EXHIBIT 9

District of Columbia live database - Docket Report Case 1:06-cv-00942-LJB Document 20-3

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Page Page 5 of 20 1 of 6 STAYED, TYPE-E

U.S. Distriict Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: l:06-cv-02240-JR

PASSAMAQUODDY TRIBE OF MAINE v. KEMPTHORNE et al Assigned to: Judge James Robertson Case: .!_;04=~y~9_0_2_8~3__~JR Cause: 28:1331 Fed. Question Plaintiff PASSAMAQUODDY TRIBE OF MAINE

Date Filed: 12/29/2006 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

represented by Keith M. Harper KILPATRICK STOCKTON, LLP 607 14th Street, NW Suite 900 Washington, DC 20005 (202) 508-5844 Fax: (202) 585-0919 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED George William Austin, III KILPATRICK STOCKTON, LLP 607 14th Street, NW Suite 900 Washington, DC 20005 (202) 508-5858 Fax: 202-508-5858 Email: [email protected] ATTORNEY TO BE NOTICED

V°

Defendant DIRK KEMPTHORNE Secretary of the Interior

represented by Anthony P. Hoang United States Department of Justice Environment & Natural Resources Division P.O. Box 663 Washington, DC 20044-0663 (202) 305-0241 Fax: (202) 353-2021 Email: anthony.hoang@usdoj .gov

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ATTORNEY TO BE NOTICED Laura M.L. Maroldy UNITED STATES DEPARTMENT OF JUSTICE Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, DC 20044-0663 (202) 305-0241 Fax: (202) 353-2120 Email: [email protected] ATTORNEY TO BE NOTICED Martin J. Lalonde UNITED STATES DEPARTMENT OF JUSTICE Natural Resources Section P.O. Box 663 Washington, DC 20044 (202) 305-0247 Fax: 202-305-8271 Email: [email protected] ATTORNEY TO BE NOTICED Defendant ROSS O. SWIMMER Special Trustee

represented by Martin J. Lalonde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Anthony P. Hoang (See above for address) ATTORNEY TO BE NOTICED Laura M.L. Maroldy (See above for address) ATTORNEY TO BE NOTICED

Defendant HENRY M. PAULSON Secretary of the Treasury

represented by Martin J. Lalonde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Anthony P. Hoang (See above for address) ATTORNEY TO BE NOTICED

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Laura M.L. Maroldy (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/29/2006

#
]_k

Docket Text COMPLAINT against/)IRK KEMPTHORNE, ROSS O. SWIMMER, HENRY M. PAULSON ( Filing fee $ 350 receipt number 4616001251 .) filed by PASSAMAQUODDY TRIBE OF MAINE. (Attachments: # 1_ Civil Cover Sheet)(lc, ) (Entered: 01/03/2007) MAINE. Case related to Case No. 04-0283. (lc,) (Entered: 01/03/2007)

12/29/2006 12/29/2006

2 NOTICE OF RELATE[) CASE by PASSAMAQUODDY TRIBE OF
SUMMONS (5) Issued as to DIRK KEMPTHORNE, ROSS O. SWIMMER, HENRY/vl. PAULSON, U.S. Attorney and U.S. Attorney General (lc,) (Entered: 01/03/2007) 3 ENTERED IN ERROR ..... NOTICE of Appearance by Martin J. Lalonde on behalf of PASSAMAQUODDY TRIBE OF MAINE, ROSS O. SWIMMER, HENRY M. PAULSON (Lalonde, Martin) Modified on 2/23/2007 (lc,). (Entered: 02/22/2007)

02/22/2007

02/22/2007

4 Unopposed MOTION for Extension of Time to File Answer rel
Complaint, or Otherwise Respond to Complaint, and Proposed Order by PASSAMAQUODDY TRIBE OF MAINE, ROSS O. SWIMMER, HENRY M. PAULSON. (Attachments: # 1 Text of Proposed Order # Exhibit 1 - Current Tribal Trust Accounting and Trust Mismanagement Cases)(Lalonde, Martin) (Entered: 02/22/2007)

02/22/2007

5 NOTICE of Appearance by Anthony P. Hoang, Laura M.L. Maroldy,
Martin J. Lalonde on behalf of DIRK KEMPTHORNE, ROSS O. SWIMMER, HENRY M. PAULSON (lc,) (Entered: 02/23/2007)

02/23/2007

NOTICE OF CORRECTED DOCKET ENTRY: re 3 Notice of Appearance was entered in error because the wrong party represented was picked, and has been refiled correctly by the Court 5. (lc,) (Entered: 02/23/2007) MINUTE ORDER granting defendants' unopposed motion for extension of time 4- to March 13, 2007. Signed by Judge James Robertson on February 27, 2007. (MT) (Entered: 02/27/2007) ANSWER to Complaint by DIRK KEMPTHORNE, ROSS O. SWIMMER, HENRY M. PAULSON. Related document: 1_ Complaint filed by PASSAMAQUODDY TRIBE OF MAINE.(Maroldy, Laura) (Entered: 03/13/2007)

02/27/2007

03/13/2007

04/23/2007

7 Unopposed MOTION for Extension of Time to File Joint Preliminary
Status Report and to Serve Initial Disclosures by PASSAMAQUODDY TRIBE OF MAINE (Attachments: # ! Text of Proposed Order)(Harper, Keith) (Entered: 04/23/2007)

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04/23/2007 04/25/2007

ORDER granting _7 motion for extension of time. Signed by Judge James Robertson on 4/23/07. (Robertson, James) (Entered: 04/23/2007)

8_ NOTICE of Appearance by George William Austin, III on behalf of
PASSAMAQUODDY TRIBE OF MA1NE (Austin, George) (Entered: 04/25/2007)

05/16/2007

9 STATUS REPORT PURSUANT TO FED. R. CIV. P. 26ff) AND LOCAL
CIVIL RULE 16. 3 by PASSAMAQUODDY TRIBE OF MAINE, DIRK KEMPTHORNE, ROSS O. SWIMMER, HENRY M. PAULSON. (Attachments: # ! Text of Proposed Order # 2 Text of Proposed Order) (Harper, Keith) (Entered: 05/16/2007)

05/21/2007

NOTICE of Hearing: A Status Conference is scheduled in this case for 6/4/2007 at 11:00 A.M. in Courtroom 23,Annex Building, Fourth Floor before Judge James Robertson. (jwd) (Entered: 05/21/2007) Set Deadlines/Hearings: Status Conference scheduled for 6/4/2007 is VACATED. Status Conference is now RESCHEDULED to 6/6/2007 at 2:00 P.M. in Courtroom 23, Annex Building, Fourth Floor before Judge James Robertson. (jwd) (Entered: 05/22/2007) Minute Entry. Proceedings held before Judge James Robertson ¯ Status Conference held on 6/6/2007. (Court Reporter William McAllister.) (alr,) (Entered: 06/08/2(107) 10 TRANSCRIPT of Status Conference held on 6/6/2007 before Judge James Robertson. Court Reporter: William D. McAllister. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. Transcript filed with Case 06-2236. (lc,) (Entered: 06/18/2007)

05/22/20O7

06/06/2007

06/16/2007

06/18/2007

1!1 RESPONSE to DEFENDANTS' REQUEST TO DELAY THESE
PROCEEDINGS TO FILE A MOTION TO REMAND filed by PASSAMAQUODDY TRIBE OF MAINE. (Harper, Keith) (Entered: 06/18/2007)

06/18/2007

M 1_22 EMORANDUM re Status Conference by DIRK KEMPTHORNE, ROSS O. SWIMMER, HENRY M. PAULSON. (Martin, John) (Entered: 06/18/2007)

07/02/2007

13 ORDER STAYING CASE for 30 days from the date of this order;
directing that the govermnent has 30 days from the date of this order to file its anticipated remand motion in any or all of these cases; consolidating those cases, in which the government files such a motion,for limited purpose of the remand motion; staying the consolidated cases until tlhe remand motion is decided; directing that, in any case in which the government does not file such a motion, the government will be deemed to have waived its remand argument. Signed by Judge James Robertson on 7/2/07. (jeb,) (Entered: 07/02/2007)

07/31/2007

14 MOTION for Extension of Time to File Motion For Remand And For Extension Of Temporary Stay Of Litigation by DIRK KEMPTHORNE,

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ROSS O. SWIMMER, HENRY M. PAULSON (Attachments: # ! Exhibit # 2 Text of Proposed Order)(Maroldy, Laura) (Entered: 07/31/2007) 07/31/2007

155 ORDER granting defendants' motions for enlargement of time within
which to file remand motions; defendants to file remand motions in any or all of these cases by 8/10/07; extending the temporary stay of all proceedings until 8/10/07; directing that all other provisions of the Court's 7/2/07 Order shall remain in effect. (signed by Judge Richard W. Roberts for Judge James Robertson on 7/31/07.) (Entered: 07/31/2007)

08/10/2007

16 MOTION to Remand and for Stay of Litigation by DIRK
KEMPTHORNE, ROSS; O. SWIMMER, HENRY M. PAULSON (Attachments: # ! Text of Proposed Order)(Lalonde, Martin) (Entered: 08/10/2007)

08/10/2007

1_7 MEMORANDUM by DIRK KEMPTHORNE, ROSS O. SWIMMER,
HENRY M. PAULSON. (Attachments: # ! Exhibit Exhibit 1 - Sioux Tribe v. U.S., 12 Ind. C1. Comm. 541# 2 Affidavit Declaration of Ross O. Swimmer# 3 Affidavit Declaration of Dawn M. Boswell# 4_ Exhibit Part 1 - Attachment A to Boswell Decl.# 5 Exhibit Part 2 - Attachment A to Boswell Decl.# _6 Exhibit Part 1 - Attachment B to Boswell Decl.# _7 Exhibit Part 2 - Attachment B to Boswell Decl.# 8 Exhibit Part 3 Attachment B to Boswell Decl.# 9_ Exhibit Part 4 - Attachment B to Boswell Decl.# 10 Exhibit Part 5 - Attachment B to Boswell Decl.# 1!_1 Exhibit Part 1 - Attachment C to Boswell Decl.# !__2 Exhibit Part 2 Attachment C to Boswell Decl.# 1,3 Exhibit Part 3 - Attachment C to Boswell Decl.# 1__4 Exhibit Part 4 - Attachment C to Boswell Decl.) (Lalonde, Martin) (Entered: 08/10/2007)

08/23/2007

ORDER setting forth procedures for filing of principal briefs and reply briefs in regards to the government's motion for remand and stay; directing that the plaintiff tribes shall have to 10/1/07 to file one or more principal briefs in response to the motion for remand and stay; granting the government's motions for leave to late-file; granting motions of some of tribes for extensions of time to respond to the motion for remand and to stay; directing that eac, h tribe may have until 10/22/07 to file additional or supplemental briefs and government to 11/21/07 to file its reply brief (or reply briefs); granting in advance leave to exceed page limitations in advance for plaintiffs' principal brief or briefs and for any omnibus government reply; staying all other proceedings in these cases during the pendency of the governn'lent's remand motion. (See order for further details)(Signed by Judge James Robertson on 8/23/07) (Entered: 08/23/2007)

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DEFENDANT'S EXHIBIT 10

CM/ECF Live System, USCFC, DistrictDocument 20-3 Docket Report Version 3.0.5 Case 1:06-cv-00942-LJB Filed 09/28/2007

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US Court of Federal Claims United States Court of Federal Claims (COFC) CIVIL DOCKET FOR CASE #: 1:06-cv-00942-LJB
PASSAMAQUODDY TRIBE v. USA Assigned to: Judge Lynn J. Bush Referred to: Judge Marian Blank Horn Demand: $500,000,000 Cause: 28:1491 Tucker Act Plaintiff PASSAMAQUODDY TRIBE represented by Keith M. Harper Kilpatrick Stockton, LLP 607 14th Street, N.W. #900 Washington, DC 20005 (202) 508-5844 Fax: (202) 585-0007 Email: [email protected] LEAD ATTORNEY A TTORNEY TO BE NO TICED Date Filed: 12/29/2006 Jury Demand: None Nature of Suit: 504 Native American Jurisdiction: U.S. Government Defendant

V,

Defendant USA represented by Laura M. L. Maroldy U.S. Department of Justice 601 D Street, N.W. Washington, DC 20004 (202) 514-4565 Fax: (202) 305-0506 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/29/2006

#

Docket Text 1 COMPLAINT against USA ( Filing fee $250, Receipt number 065957), filed by THE PASSAMAQUODDY TRIBE.Answer due by 2/27/2007. (Attachments: # l_)(mij, ) (Entered: 01/03/2007) NOTICE of Assignment to Judge Lynn J. Bush (mij,) (Entered: 01/03/2007) _3 NOTICE of Assignment to Judge Christine O.C. Miller for ADR

12/29/2006 12/29/2006

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CM/ECF Live System, USCFC, District Version 3.0.5 - Docket Report Case 1:06-cv-00942-LJB Document 20-3 Filed 09/28/2007 Pilot proceedings. (miji,) (Entered: 01/03/2007) 12/29/2006 01/22/2007

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4 NOTICE of Designation of Electronic Case. (mij,) (Entered: 01/03/2007)

5

ORDER REASSIGNING CASE to Judge Marian B. Horn as the ADR Pilot Program Judge. Signed by Judge Edward J. Damich. (mpl,) (Entered: 01/22/2007)

01/22/2007

6 NOTICE of Reassignment. Case reassigned to Judge Marian Blank Horn for all further ADR Pilot Program proceedings. Judge Christine O.C. Miller no longer assigned to the case. (mij,) (Entered: 01/22/2007) 7 NOTICE of Appearance by Laura M. L. Maroldy for USA. (Maroldy, Laura) (Entered 02/21/2007)

02/21/2007 02/21/2007

_8

Unopposed MOTION for Extension of Time until 3/27/2007 to File Answer re 1_ Complaint, or Otherwise to Respond, and Proposed Order, filed by USA.Response due by 311212007. (Attachments: # 1_ Text of Proposed Order # 2 Exhibit 1 - Current Tribal Trust Accounting and Trust Mismanagement Cases)(Maroldy, Laura) (Entered: 02/21/2007) NOTICE (ORDER) granting _8 Motion for Extension of Time to Answer, Answer due by 3/27/2007. Signed by CLERK.(mij, ) (Entered: 02/22/2007)

02/22/2007

03/27/2007 05/15/2007 05/30/2007

9 ANSWER to 1_ Complaint, filed by USA.JPSR due by 512112007. (Maroldy, Laura) (Entered: 03/27/2007) 10 JOINT PRELIMINARY' STATUS REPORT. (Harper, Keith) (Entered: 05/15/2007) 11 NOTICE of Appearance by Keith M. Harper for PASSAMAQUODDY TRIBE To Enter Appearance of G. William Austin as Of Counsel. (Harper, Keith) (Entered: 05/30/2007) 12 CERTIFICATE OF SERVICE, filed by PASSAMAQUODDY TRIBE RULE 26(a)(1) Initial r)isclosures (Harper, Keith) (Entered: 06/05/2007) 13 CERTIFICATE OF SERVICE, filed by USA for Initial Disclosures Pursuant to RCFC 26(a) (Maroldy, Laura) (Entered: 06/05/2007) 14 STATUS CONFERENCE ORDER:Status Conference set for 7/19/2007 02:00 PM in Chambers (Telephonic) before Judge Lynn J. Bush. Signed by Judge Lynn J. Bush. (TQ) (Entered: 06/27/2007) 15 SCHEDULING ORDEIR:(1)Defendant shall PROPOUND DISCOVERY on the topic of 28 U.S.C. § 1500 and whether this statute bars plaintiffs claims in this court, on or before July 30, 2007;(2)Plaintiff shall RESPOND to defendants discovery

06/05/2007

06/05/2O07 06/27/2007

07/20/2007

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requests on or before August 14, 2007;(3)Defendant shall FiLE its motion to dismiss for lack of jurisdiction based on § 1500, on or before September 7, 2007; and(4)Further briefing on defendants motion shall be scheduled pursuant to the rules of this court. Signed by Judge Lynn J. Bush. (jb2) (Entered: 07/20/2007) 09/06/2007 MOTION for Extension of Time until September 24, 2007 to file Defendant's Motion To Dismiss Pursuant To 28 U.S.C. Section 1500, filed by USA.Response due by 9/24/2007.(Maroldy, Laura) (Entered: 09/06/2007) 17 ORDER granting 16 Motion for Extension of Time. Defendants Motion to Dismiss Pursuant to 28 U.S.C. § t500 shall be FILED on or before September 24, 2007. Signed by Judge Lynn J. Bush. 0b2) (Entered: 09/07/2007)

09/07/2007

09/21/2007

!8 Unopposed MOTION for Extension of Time until September 28,
2007 to File Defendant's Motion to Dismiss Pursuant to 28 U.S.C. 1500, filed by USA.Response due by 10/9/2007.(Maroldy, Laura) (Entered: 09/21/2007)

09/24/2007

19 ORDER granting 18 Motion for Extension of TimeDefendant's Motion to Dismiss pursuant to 28 USC Sec. 1500 due by 9/28/2007. Signed by Judge Lynn J. Bush, (TQ) (Entered: 09/24/2007)

PACER Service Center
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DEFENDANT'S EXHIBIT 11

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Case 1:06-cv-00942-LJB '~ Document 1;2 ..FiLo.d :!2/29/2006 Page 1 of 14

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

)
THE PASSAMAQUODDY TRIBE, Ptaintb~, v. )

:

~ U t',.

LU:J~,

) .)
) )

f ;

U.S. COURT i FEDERAL CLAIM8 t

) )
THE UNITED STATES, Defendant. )

,1-.',~ ,~-';;'e NO. .: :: ".-.,.-r~

)
)

)
COMPLAINT FOR DAMAGES FOR BREACH OF TRUST OBLIGATIONS 1.
~°

GENE.RAL NATULRE OF THE ACT1ON

This action is a,n action for money damages against the United States, brought to

redress gross breaches of trust by the UaitM States, acting by and tbzough Dirk Kempthome, Secretary of the Interior ("Kempthome"), Ross Swimmer, Speciai Trustee for American indians ("Swimmer"), and I-toniN M. Pauison, Secre'..ary oftt-e Treasury ("Paulson"), and their predecessors in office and subordinates, as trustee and trustee-delegates of !and, na~ral resources, and other assets imld for the benefit of the Passarnaquoddy T.,be t P~sarnaquouay ). As set forth more fuiiy below, ~is case arises cut of Defendant's continuing material breaches of statutory, regulatory, and fiduciary duties owed to the Passamaquoddy and the Passamaqu,oddy seeks damages for Defendant's mis:nmmgcment of the Passamaquoddy's assets. THE PARTIES 2. The Passamaquoddy is a federaily reeog.,nized Indian tribe and their reservation

lands a.,'e within the exterior boundaries of the State of Maine. The Passamaquoddy Indian Reservation ("Reservation") was recognized under the laws of the State of Maine, pursuant to the Act to Impiement the Maine Indian Claims Settlemenq M~. Rlzv. STA'i'. ANN. tit. 30, ~§

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DEFENDANT'S EXHIBIT 12

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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

)
) )

)
) AFFIDAVIT OF ALEXIS APPLEGATE The undersigned, Alexis Applegate, deposes and states as an affidavit the following: 1. I am over eighteen years of age and am competent to testify to the facts stated herein. I have personal knowledge of and state that the facts set forth herein are true and correct. 2. I am a paralegal at Kilpatrick Stockton LLP and have been working at Kilpatrick Stockton LLP since 2000. In my capacity as a paralegal at Kilpatrick Stockton LLP, I am responsible for filing pleadings in various courts, including the United States Court of Federal Claims and the United States District Court for the District of Columbia. 3. On December 29, 2006, I filed Complaints initiating the following actions in the United States Court of Federal Claims: Ak-Ctzin Indian Community v. United States, 06932L; Passamaquoddy Tribe v. United States, No. 06-942L; Salt River Pima-Maricopa Indian Community v. United States, No. 06-943L; and Tohono 0 'odham Nation v. United

PAS00383

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States, 06-944L (collectively, "Court of Federal Claims Actions"). (True and accurate copies of the Complaints I filed on December 29, 2006 in the Court of Federal Claims Actions are attached hereto as Exhibit A). 4. That same day, I filed a Complaint in the United States District Court for the District of Columbia initiating the action styled Passamaquoddy Tribe of Maine v. Dirk Kempthorne, Ross O. Swimmer and Henry 34. Paulson, Case No. l:06-cv-02240-JR ("Passamaquoddy District Court Action"). (A true and accurate copy of the Complaint I filed in the Passamaquoddy District Court Action on December 29, 2006 is attached hereto as Exhibit

B).
5. Keith M. Harper is Counsel of Record in the Court of Federal Claims Actions and Lead Counsel in the Passamaquoddy District Court Action. Mr. Harper is a partner at Kilpatrick Stockton LLP and my supervisor. 6. On the morning of December 29, 2006, Mr. Harper orally instructed me to file the Complaints initiating the Court of Federal Claims Actions at the earliest possible time on December 29, 2006. Mr. Harper explained that because I had successfully filed the Complaint in the action styled, Tohono O'odham Nation v. Dirk Kempthorne, Ross O. Swimmer and Henry M. Paulson, Case No. l:06-cv-02236-JR in the District Court on December 28, 2006, Mr. Harper was comfortable that he and I understood the necessary procedures to perfect the filing of a Complaint 1in the District Court. (A true and accurate copy of the Complaint I filed in Tohono O'od, ham Nation v. Dirk Kempthorne, Ross O.
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Swimmer and Henry M. Paulson, Case No. 1:06-cv-02236-JR on December 28, 2006 is attached here to as Exhibit C). 7. Mr. Harper further explained to me that because Mr. Harper and I had not yet filed any Complaints initiating actions in the Court of Federal Claims, he was not comfortable with the filing procedures in that Court. In addition, the person I spoke with at the Court of Federal Claims was unable to confirm that the Court of Federal Claims would not close early that day due to the upcoming holidays, which I conveyed to Mr. Harper. Mr. Harper instructed that I should file the Con-iplaint initiating the Court of Federal Claims Action as early as possible, which I understood to mean before filing the Complaint initiating the Passamaquoddy District Court Action, so that Mr. Harper and I would have sufficient time to cure any potential problems occurring in connection with filing the Complaint in the Court of Federal Claims Action. 8. To the best of my recollection, I followed Mr. Harper's instructions and I filed the Complaint in the instant action prior to filing the Complaint in the Passamaquoddy District Court Action. 9. It is my practice to follow instructions from my supervisors regarding filings. If it is necessary for me to depart from such instructions, it is my practice to report back to my supervisor and explain the reasons for the departure. I do not recall departing from Mr. Harper's direction regarding the filing of the Complaints in the Court of Federal Claims Actions and the Passamaquoddy District Court Action or any conversation with Mr. Harper

PAS00385

Case 1:06-cv-00942-LJB

Document 20-3

Filed 09/28/2007

Page 20 of 20

in which I explained that the filing of the Compla!nts in the Court of Federal Claims Actions and the Passamaquoddy District Court Action did not occur as he had instructed.

FURTHER AFFIANT SAYETH NOT.

Sworn to and subscribed before me this ,~ 4~ day of August, 2007, to certify which, witness my hand and official seal.

Notary Public My commission expires:

KRi~A A. MCCLEASE Pul~c Oistnctol Colmbla My Comm~s~ Expkes:Februay28.2010

PAS00386