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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

THE PASSAMAQUODDY TRIBE OF MAINE,

) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________)

Case No. No. 06-cv-00942-LJB Judge Lynn J. Bush Electronically filed September 28, 2007

DEFENDANT'S MOTION TO DISMISS PURSUANT TO 28 U.S.C. § 1500

RONALD J. TENPAS Acting Assistant Attorney General LAURA M.L.MAROLDY United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 514-4565 Fax: (202) 353-2021 Attorneys for Defendant OF COUNSEL THOMAS KEARNS Office of the Solicitor United States Department of the Interior Washington, D.C. 20240 TERESA E. DAWSON Office of the Chief Counsel Financial Management Service United States Department of the Treasury Washington, D.C. 20227

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. II. FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. B. Applicable Legal Standards. . . . . . . . . . . . . . . . . . . . Plaintiff's Complaint Should be Dismissed Pursuant to 28 U.S.C. § 1500 . . . . . . . . . . . . . . . . . . . . . . . . . 1. Plaintiff's District Court Complaint was Pending When it Filed its Complaint in this Court . . . . . . . . .

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2. Plaintiff's District Court and CFC Complaints Are Based on the Same Operative Facts . . . . . . . . . . 13 a. The District Court Complaint . . . . . . . . . . 13

b. The Court of Federal Claims Complaint . . . . . 15 3. The District Court and CFC Complaints Contain Substantially Overlapping Claims for Monetary Relief . . III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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TABLE OF AUTHORITIES FEDERAL CASES Breneman v. United States, 57 Fed. Cl. 571 (1988) . . . . . . . . . . . . . . . . . 8, 10 British Am. Tobacco Co. v. United States, 89 Ct. Cl. 438 (1939) . . . . . . . . . . 7, 20 Dico, Inc. v. United States, 48 F.3d 1199 (Fed. Cir. 1995) . . . . . . . . . . . . . . . 10 Eastport S.S. Corp. v. United States, 372 F.2d 1002 (Ct. Cl. 1967) . . . . . . . . . . . 19 Firebaugh Canal Water Dist. V. United States, 70 Fed. Cl. 593 (2006) . . . . . . . . . 5 Forsgren v. United States, 73 Fed. Cl. 135 (2006) . . . . . . . . . . . . . . . . . . . 19 Harbuck v. United States, 378 F.3d 1324 (Fed. Cir. 2004) . . . . . . . . . . . . passim Harden v. Roadway Package Sys., Inc., 249 F.3d 1137 (9th Cir. 2001) . . . . . . . . . 5 Johns-Manville Corp. v. United States, 855 F.2d 1556 (Fed. Cir. 1988) . . . . . . . 7, 20 Keene Corp. v. United States, 508 U.S. 200 (1993) . . . . . . . . . . . . . . . . . 7, 13 Los Angeles Shipbuilding & Drydock Corp. v. United States, 152 F.Supp. 236 (Ct. Cl. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed. Cir. 1994) . . . . . 6, 7, 13 Maher v. United States, 314 F.3d 600 (Fed. Cir. 2002) . . . . . . . . . . . . . . . . . 5 Manville Sales Corp. v. Paramount Sys., Inc., 917 F.2d 554 (Fed. Cir. 1990) . . . . . . 5 Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746 (Fed. Cir. 1988) . . . . . 7, 13 Snyder v. United States, 63 Fed. Cl. 762 (2005) . . . . . . . . . . . . . . . . . . . . . 5 Toxgon Corp. v. BNFL, Inc., 312 F.3d 1379 (Fed. Cir. 2002) . . . . . . . . . . . . . . 5 United States v. County of Cook, Ill., 170 F.3d 1084 (Fed. Cir. 1999) . . . . . . . . . . 8 United States v. Phillip Morris, Inc., 116 F.Supp. 2d 131 (D.D.C. 2000) . . . . . . . . 19 UNR Indus. v. United States, 962 F.2d 1013 (Fed. Cir. 1992) . . . . . . . . . . . . . 6, 9 Wilson v. United States, 32 Fed. Cl. 794 (1995) . . . . . . . . . . . . . . . . . . . . . 5

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PENDING CASES Ak-Chin Indian Community v. Kempthorne, No. 06-cv-02245 (D.D.C. Dec. 29, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Ak-Chin Indian Community v. United States, No. 06-932L (Ct. Cl. Dec. 29, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11 Passamaquoddy Tribe of Maine v. Kempthorne, No. 06-cv-02240 (D.D.C. Dec. 29, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9 Salt River Pima-Maricopa Indian Community v. Kempthorne, No. 06-cv-02241 (D.D.C. Dec. 29, 2006) . . . . . . . . . . . . . . . . . . . .

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FEDERAL STATUTES AND RULES RCFC 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5 28 U.S.C. § 1500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 28 U.S.C. § 1631 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

OTHER AUTHORITIES Black's Law Dictionary (7th ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . 18

Restatement (First) of Restitution, § 4(f) (1937) . . . . . . . . . . . . . . . . . . . . 18

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DEFENDANT'S MOTION TO DISMISS Pursuant to RCFC 12(b)(1), Defendant, the United States, moves to dismiss Plaintiff's Complaint for lack of subject matter jurisdiction under 28 U.S.C. § 1500. As set forth in the following memorandum, it is a well-established rule of law that the United States cannot be compelled to defend a suit brought in this Court when the same claim is pending in another court. The Complaint filed in the United States District Court on December 29, 2006, demands the same monetary relief related to the Defendant's management and administration of Plaintiff's trust funds and assets that is requested by Plaintiff in its December 29, 2006, Complaint filed in this Court. The two Complaints seek overlapping relief based on substantially identical facts. Congress has expressly declined to provide this Court with jurisdiction to entertain a case containing claims that duplicate those in a pending case and therefore 28 U.S.C. § 1500 requires this Court to dismiss this case. MEMORANDUM OF LAW I. FACTUAL BACKGROUND On December 29, 2006, Plaintiff filed a complaint in the United States District Court for the District of Columbia (the "District Court Complaint") against the Secretaries of the Interior and the Treasury, as well as against the Special Trustee for American Indians (the "Government"). See District Court Complaint attached as Exhibit 1 hereto. The District Court Complaint seeks declaratory, injunctive and monetary relief based upon the Government's alleged breach of fiduciary duties with respect to its management of the Plaintiff's trust property (trust assets, funds and lands). See District Court Complaint ¶¶ 1, 4, 19-44. In Count One of the District Court Complaint, Plaintiff seeks a declaration that the Government is in breach of fiduciary duties owed to Plaintiff by "failing to provide the Tribe with a complete, accurate, and adequate accounting of

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the Tribe's assets as required by law." See District Court Complaint ¶ 38; also see ¶¶ 34-37. In Count Two of the District Court Complaint, Plaintiff seeks injunctive and monetary relief, including an injunction ordering the Government to "provide a complete, accurate, and adequate accounting of the Tribe's's trust assets. . ." Id. at ¶ 42. Notably, Plaintiff demands equitable monetary relief in the form of a "restatement of [its] trust fund balances in conformity with the ultimate and complete accounting, and to any additional equitable relief that may be appropriate (e.g., disgorgement, equitable restitution, or an injunction directing the trustee to take action against third parties)." Id. at ¶ 43; see also Prayer for Relief ¶ 6. On December 29, 2006, Plaintiff filed the Complaint in this case with this Court (the "CFC Complaint") (Docket # 1). As with the District Court Complaint, the CFC Complaint alleges that the "United States, as trustee, has never provided the Tribe a complete and accurate accounting of . . . the revenue the United States collected or was required to collect. . ." See CFC Complaint at ¶ 27; also see ¶ 32. Moreover, Plaintiff asserts that it is entitled to a monetary award against Defendant based on the purported breach of fiduciary duties related to its mismanagement of the Tribe's "trust land," natural resources, and management of judgment and settlement funds. See id. ¶¶ 1, 9-20, 24-40. Plaintiff specifically requests that this Court make a "determination that the Defendant is liable to the Passamaquoddy in damages for the injuries and losses caused as a result of Defendant's breaches of fiduciary duty." See id. Prayer for Relief ¶ 1. The District Court action was filed on December 29, 2006, as was the Court of Federal Claims action. In addition, as explained infra, it appears that the District Court action was filed earlier in the day than the Court of Federal Claims action. The District Court Clerk's office opens at 9:00 a.m. (See, e.g., the Court's website, at www.dcd.uscourts.gov/general). The District Court Clerk assigns case numbers to new actions in -2-

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the order in which those actions are filed.1/ The records of the District Court show that Plaintiff's District Court Complaint initiating Passamaquoddy Tribe of Maine v. Kempthorne, Civil Action No. 06-cv-02240, was the very first case filed in the District Court on December 29, 2006 (by any party). See Court's Docket, attached hereto as Exhibit 3. Meanwhile, communications generated by Plaintiff's office show that Plaintiff's lawyers were still working on Plaintiff's Court of Federal Claims Complaint during the morning of December 29, the date of filing.2/ More particularly, via an e-mail message at 8:59 a.m. on December 29, 2006, counsel of record Keith Harper, Esquire, told his colleague Alexis Applegate, the paralegal who was to file Plaintiff's District Court and Court of Federal Claims Complaints, that changes needed to be made to all the Court of Federal Claims Complaints while she filed the District Court Complaints: "Alexis, REDACTED in all the CFC Complaints. So we will have to run those copies again while you file the DDC."3/ (A hardcopy of that e-mail message, bearing document number PAS00211, is attached hereto as Exhibit 4).

See, e.g., Plaintiff's Responses And Objections To Defendant's First Set Of Interrogatories (hereinafter, "Plaintiff's Responses To Interrogatories"), Response to Interrogatory No. 11, at 13. (A copy of Plaintiff's Responses To Interrogatories is attached hereto as Exhibit 2). The Passamaquoddy's District Court action was one of three lawsuits filed by Plaintiff's counsel in the District Court on December 29. See Court's Docket, Exh. 3. Plaintiff's counsel also filed Salt River Pima-Maricopa Indian Community v. Kempthorne, Civil Action No. 06-cv-02241, and Ak-Chin Indian Community v. Kempthorne, Case No. 06-cv-02245. Exh. 3. The same individual, paralegal Alexis Applegate, filed all of those Complaints, as well as the Complaints filed in this Court by each of those parties, respectively. (See Exh. 2, Plaintiff's Responses To Interrogatories, Response No. 11 at 10-11). See also Exh. 2, Plaintiff's Responses To Interrogatories, Response No. 11, at 12, in which Plaintiff acknowledges that Plaintiff's counsel of record, Mr. Harper, instructed Ms. Applegate to file the District Court Complaints while changes were being made to the Complaints to be filed in the Court of Federal Claims. -33/ 2/

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Another member of Plaintiff's legal team, attorney Justin Guilder, e-mailed colleague Katherine Bosken, Esquire, a short time later (9:04 a.m.) on December 29, stating, "I will change the Passamaquoddy and [BLANK/REDACTED] CFC Complaints [BLANK/REDACTED] Can you [BLANK/REDACTED] and let me know when that is done? REDACTED." (A photocopy of that e-mail, bearing document number PAS000112, is attached as Exhibit 5 hereto). Another e-mail indicates Ms. Bosken circulated "document links" to certain versions of the Court of Federal Claims Complaints within Plaintiff's counsel's office at 9:26 a.m.4/ In that e-mail, Ms. Bosken stated that Mr. Guilder ("Justin") was "handling [BLANK/REDACTED] Passamaquoddy [BLANK/REDACTED]." (A photocopy of that e-mail, bearing document number PAS00484, is attached hereto as Exhibit 7). In short, the Passamaquoddy CFC Complaint was still being worked on, and was not filed until sometime after 9:26 a.m.5/

The 9:26 a.m. e-mail refers to certain Complaints (other than the Passamaquoddy CFC Complaint) as "final" versions. That reference should not be accorded any weight, because other evidence shows that at least one of the CFC Complaints referred to in the 9:26 a.m. e-mail as "final" had not, in fact, been finalized until hours later. More particularly, Plaintiff's responses to discovery in AkChin v. United States, Case No. 06-932 (CFC), state and show that as of 11:41 a.m. on December 29, Mr. Guilder was still gathering information to be included in the Ak-Chin's CFC Complaint. Accordingly, it is clear that in addition to the Passamaquoddy CFC Complaint, at least one of the other tribal trust CFC Complaints Ms. Applegate filed on December 29 was not, in fact, in "final" form as of 9:26 a.m. on December 29. (Photocopies of the pertinent portion of the written discovery responses from the Ak-Chin and the 11:41 a.m. e-mail are attached hereto as Exhibit 6, collectively. The pertinent portion of the written discovery response appears in Response No. 8, at the top of page 10 in Exh. 6.)
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Furthermore, in e-mails dated April 2007 and recently produced to Defendant, Ms. Applegate, who filed three Complaints in the District Court for various tribal trust plaintiffs on December 29, and filed four Complaints in the Court of Federal Claims that day for those plaintiffs (respectively) and for the Tohono O'Odham Nation, admitted to her colleague, Catherine Munson, Esquire, that she could not be sure whether she filed in the Court of Federal Claims first, nor what time the District Court or Court of Federal Claims filings occurred. In that regard, Ms. Applegate noted: "... even if I could remember what time I went over there ... we would have no idea what time the clerk actually filed them in the DDC. As for the CFC, I know I went over and we were missing something (continued...) -4-

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II.

ARGUMENT A. APPLICABLE LEGAL STANDARDS

The determination of whether this Court has subject matter jurisdiction to hear Plaintiff's claims is a question of law. Toxgon Corp. v. BNFL, Inc., 312 F.3d 1379, 1381 (Fed. Cir. 2002) (citing Harden v. Roadway Package Sys., Inc., 249 F.3d 1137, 1140 (9th Cir. 2001) and Manville Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544, 554 (Fed. Cir. 1990) ("the existence of subject matter jurisdiction is a question of law"); Maher v. United States, 314 F.3d 600, 603 (Fed. Cir. 2002) (noting that the Federal Circuit reviews de novo whether the Court of Federal Claims possessed jurisdiction because this is a question of law). Dismissal is appropriate under RCFC 12(b)(1) where the Court of Federal Claims lacks jurisdiction under 28 U.S.C. § 1500. See, e.g., Snyder v. United States, 63 Fed. Cl. 762 (2005) (granting government's motion to dismiss pursuant to 12(b)(1) for lack of jurisdiction under 28 U.S.C. § 1500 and pursuant to RCFC 17(a)); Wilson v. United States, 32 Fed. Cl. 794 (1995) (granting government's motion to dismiss pursuant to 12(b)(1) or 12(b)(4) for lack of jurisdiction under 28 U.S.C. § 1500); Firebaugh Canal Water Dist. v. United States, 70 Fed. Cl. 593 (2006) (granting government's motion to dismiss pursuant to 12(b)(1) for lack of jurisdiction under 28 U.S.C. § 1500).

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(...continued) so I had to come back to the office and get it, but I just don't know what time all of this happened." In a follow-up e-mail to Ms. Munson, Ms. Applegate further noted: "... it looks like I took them [the Complaints] over to the D.D.C. and picked them up again between 12:41 and 2:23. I think I went to the CFC first, but I am not certain about that." (Photocopies of those April 23, 2007, e-mails from Ms. Applegate to Ms. Munson, bearing document numbers PAS00482-483 are attached hereto, collectively, as Exhibit 8 (emphasis added)). -5-

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B.

PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED PURSUANT TO 28 U.S.C. § 1500

When this case was filed in this Court on December 29, 2006, Plaintiff already had a pending case in the District Court. See Exh. 3. The claims against Defendant in this case and the District Court case arise out of the same operative facts and, in both cases, Plaintiff is seeking monetary relief from the Defendant. Plaintiff's earlier filing of its district court case operates to divest this Court of jurisdiction under 28 U.S.C. § 1500 and, as a result, this case must be dismissed for lack of jurisdiction. Section 1500 of Title 28 provides: The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States. 28 U.S.C. § 1500. The purpose of the statute is to "force plaintiffs to choose between pursuing their claims in the Court of Claims or in another court" and to prevent the United States from having to litigate and defend against the same claim in both courts. UNR Indus. v. United States, 962 F.2d 1013, 1018, 1021 (Fed. Cir. 1992). Section 1500 forbids a plaintiff from filing in this Court a claim against the United States that is already pending in another court. The Federal Circuit has held that a claim is pending in another court if it was filed earlier, or simultaneous with, the claim asserted in the Court of Federal Claims. See Harbuck v. United States, 378 F.3d 1324, 1328 (Fed. Cir. 2004). Analyzing whether claims are the same or distinctively different "requires a comparison between the claims raised in the Court of Federal Claims and in the other lawsuit." Id. at 1329 (quoting Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1549 (Fed. Cir. 1994)) (internal quotation marks omitted). Such a

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comparison involves evaluating the Complaints filed in each Court. See Loveladies, 27 F.3d at 1553-54 (comparing district court and CFC complaints). Thus "[f]or the Court of Federal Claims to be precluded from hearing a claim under § 1500, the claim pending in another court must arise from the same operative facts, and must seek the same relief . . . [A] showing that the two claims arose from the same `operative facts' is necessary, but not sufficient, to preclude the Court of Federal Claims from hearing a case. To come within the proscription of § 1500, the claims must also seek the same relief." Loveladies, 27 F.3d at 1551-52 (emphases omitted). This Court has consistently defined the term "claim" for purposes of a Section 1500 analysis to turn on operative facts, rather than legal theories. See British Am. Tobacco Co. v. United States, 89 Ct. Cl. 438, 440 (1939); Los Angeles Shipbuilding & Drydock Corp. v. United States, 152 F.Supp. 236, 238 (Ct. Cl. 1957); Johns-Manville Corp. v. United States, 855 F.2d 1556, 1562 (Fed. Cir. 1988). Further, the operative facts pleaded need not be identical. Johns-Manville Corp., 855 F.2d at 1562-63. It is sufficient that they are substantially the same. See Keene Corp. v. United States, 508 U.S. 200, 212-14 (1993). Furthermore, just as the operative facts need not be identical for a claim to be the same, neither does the relief sought. Harbuck, 378 F.3d at 1329. It is enough that there is some overlap in the relief requested. Id. The Court should dismiss this case because the three essential elements for Section 1500 dismissal are present: (1) the District Court case was pending when the Complaint was filed in this Court; (2) the two Complaints involve essentially identical operative facts; and (3) Plaintiff is seeking overlapping monetary relief in both courts. 1. Plaintiff's District Court Complaint was Pending When it Filed its Complaint in this Court

Plaintiff bears the burden of establishing jurisdiction, Reynolds v. Army & Air Force Exch.

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Serv., 846 F.2d 746, 748 (Fed. Cir. 1988), which burden includes, in the context of 28 U.S.C. § 1500, establishing that the District Court case was not pending at the time Plaintiff filed its Complaint in this Court. For the purpose of a Section 1500 analysis, Plaintiffs' District Court Complaint was pending when the CFC Complaint was filed. First, although Defendant recognizes that this Court ruled otherwise in Breneman v. United States, 57 Fed. Cl. 571 (Fed. Cl. 2003), an action in another court should be deemed "pending" if it was filed on the same day as a complaint in this court. See, e.g., Harbuck v. United States, supra, 378 F.3d at 1328 (Fed. Cir. 2004). As the Federal Circuit held in Harbuck, "[T]he `filing' of the same claim simultaneously in the district court and the Court of Federal Claims by operation of § 1631 deprives the latter court of jurisdiction pursuant to § 1500." 378 F.3d at 1329, quoting United States v. County of Cook, Ill., 170 F.3d 1084, 1087-89 (Fed. Cir. 1999). Section 1631 provides that, if the conditions set forth in that statute are met, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. 28 U.S.C. § 1631. Considered in view of the purpose of § 1500 ­ to avoid forcing the United States to defend two cases concerning the same operative facts in two different fora ­ there is no reason to treat a same-day filing accomplished by delivery to the Clerk of a new Complaint differently from a transfer of an action pursuant to 28 U.S.C. § 1631. A same-day filing in a federal district court, like a transferred action or appeal, should be considered already "pending" for the purpose of 28 U.S.C. § 1500, and should operate to divest this Court of jurisdiction to entertain any CFC action filed the same day. -8-

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In summary, filings are "simultaneous" if they are filed the same day, regardless at what time each was filed; and therefore a same-day District Court action is deemed to have been "pending" at the time the Court of Federal Claims action was filed. This "same-day filing" rule makes sense because the purpose of Section 1500 is to make a plaintiff elect in which forum to proceed, so the United States does not have to defend the same claim in two courts at the same time. See, e.g., UNR Indus. v. United States, 962 F.2d at 1018 and 1021; Harbuck v. United States, 328 F.3d at 1328. Consistent with that statutory purpose, the focus of the Section 1500 enquiry in this case, where both actions were filed on the same day, should be on whether the claims and operative facts are the same, not on the precise time of day of the respective filings. The "same-day filing" rule makes sense also because, as the PACER docket sheets for this matter show, federal courts record the filing of pleadings and other documents by date only. See PACER Docket Sheet for Passamaquoddy Tribe of Maine v. Kempthorne, Case No. 06-cv-02240 (D.D.C.), attached hereto as Exhibit 9 and PACER Docket Sheet for this action, attached hereto as Exhibit 10. The date-stamp used by the Clerk's Office in the District of Columbia notes only the date, but not the time of filing. See Exh. 1. The Court of Federal Claims does not "time-stamp" documents filed in the Clerk's Office, as the record here reflects. (A photocopy of the first page of the Complaint in this case, bearing the Court's date-stamp, is attached hereto as Exhibit 11). The application of Section 1500 should be consistent with the record-keeping practices of the federal courts. Otherwise, federal courts would be required to change their record-keeping structure or evidentiary hearings would be required on all Section 1500 questions to ascertain, by written or oral testimony and the presentation of other evidence, the precise timing of same-day filings. Either way, an approach whereby the precise time of day two filings were made determines whether or not Section 1500 bars one of them, would unnecessarily complicate what should be a -9-

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relatively straightforward comparison of the two complaints in question. See Dico, Inc. v. United States, 48 F.3d 1199, 1203 (Fed. Cir. 1995) (noting that the application of Section 1500 is based on the well-pled allegations in the complaints). Moreover, adopting an approach that allows litigants to avoid the clearly stated purposes of Section 1500 by orchestrating the timing of their complaints so that the district court action is not deemed "pending" although it was filed the same day as the action in this court, would undermine the statute's purpose.6/ Although the United States maintains that the question of which of two filings was filed first on the same day does not matter for the purpose of Section 1500, the evidence shows that Plaintiff has not met its burden to establish that it filed the Court of Federal Claims action on December 29 before it filed the District Court action that same day. Accordingly, even under the rule this Court enunciated in Breneman v. United States (with which Defendant disagrees), Plaintiff's District Court action was pending when it filed its claim in this Court. 57 Fed. Cl. at 574-75 . In short, the Passamaquoddy Complaint was the first Complaint filed in the District Court on December 29. That is consistent with the fact that Plaintiff's counsel had directed paralegal Alexis Applegate to file the District Court Complaints first, while Plaintiff's Court of Federal Claims Complaint (and those of other tribal trust plaintiffs represented by Plaintiff's counsel) were being revised. Meanwhile, Plaintiff's Complaint in this Court was still being worked on at counsel's

On this last point, it should be noted that a plaintiff already can easily avoid Section 1500 by simply filing its Court of Federal Claims complaint on one day, and then filing its federal district court complaint on a later day. Although a plaintiff who elects this course still must face the possibility that claims filed in the federal district court may be transferred to this court, or the possibility that the United States may seek a stay of the claims filed in this court pending final resolution of the district court case, it is not difficult for a plaintiff to avoid the dismissal mandated by Section 1500. The fact that Section 1500 can easily be avoided by plaintiffs constitutes yet another reason why the court should reject Plaintiff's arguments in this case. - 10 -

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office well after 9:00 a.m., the time that the District Court Clerk's office opened.7/ All of these facts tend to show that the Passamaquoddy District Court Complaint ­ the first of the day filed after the District Court Clerk's Office opened at 9:00 a.m. ­ was filed before its Court of Federal Claims Complaint was finalized and filed in this Court. In an April 2007 e-mail message (recently and belatedly produced in discovery), Ms. Applegate acknowledged that she could not be sure in what order she filed the Complaints at issue. See Exh. 8. In her affidavit dated August 13, 2007, Ms. Applegate was unable to offer anything more definite than the assertion that her "best recollection" was that she filed Plaintiff's Court of Federal Claims Complaint before filing the District Court Complaint, the same day. (A photocopy of the affidavit is attached hereto as Exhibit 12; see the page bearing document number PAS00385, ¶ 8). That retrospective and unsupported assertion by Ms. Applegate is unpersuasive, especially in light of the documentary evidence, including the undisputed fact that Plaintiff's District Court Complaint was the first Complaint filed in the Court on the day in question. See Exh. 3. In its discovery responses, Plaintiff claims that its counsel orally countermanded his 8:59 a.m. instruction (set forth in an e-mail message), that the District Court complaints were to be filed

As noted, supra, e-mails produced by Plaintiff in discovery show that, consistent with Mr. Harper's 8:59 a.m. e-mail message that work needed to be done to the CFC Complaints, Plaintiff's legal team was still working on the Passamaquoddy CFC Complaint (and others), well after 9:00 a.m. See Exhs. 5 and 7. In fact, documents produced regarding the filing of the Court of Federal Claims Complaint in Ak-Chin Indian Community v. United States, No. 06-932L, by the same lawyers who represent Plaintiff in this case, show that Plaintiff's lawyers were still working on the Court of Federal Claims Complaint in that case at 11:41 a.m. on December 29. See Exh. 6. In addition, an e-mail regarding the Passamaquoddy's filings on December 29, and those filed by Plaintiff's counsel that day for the Salt River Pima-Maricopa Indian Community, indicates that the filings in this Court did not go entirely smoothly ­ at some point, Ms. Applegate had to leave the Court of Federal Claims, go back to her office, and then return to the Court of Federal Claims because "we were missing something so I had to come back to the office and get it." Exh. 8, at PAS00482. - 11 -

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while he made changes to Plaintiff's CFC Complaint (and the Court of Federal Claims Complaints of other tribal plaintiffs). That generalized and retrospective assertion, however, like the assertion about Ms. Applegate's "best recollection," is too weak and too vague to overcome the strong inference, based on documentary evidence, that the Passamaquoddy's District Court Complaint was filed before its CFC Complaint. The District Court's docket shows that Plaintiff's Complaint was the first Complaint filed in the District Court that day. Additional documentary evidence (e-mails attached hereto as exhibits) shows that Plaintiff's lawyers still were working on the CFC Complaint at their office well after 9:00 a.m. That evidence also shows that Ms. Applegate had to return to her office from the Court of Federal Claims to get some missing item in connection with the filings there, and then return to that Court before accomplishing one or more of the CFC filings. In light of such documentary evidence, the assertions by Plaintiff's counsel and paralegal about contrary oral instructions or "best recollection," make the totality of the evidence regarding the order of filing ambivalent, at best. As such, they (and the evidence as a whole) are not adequate to carry Plaintiff's burden to show that its District Court action was not pending at the time the Court of Federal Claims action was filed the same day. Accordingly, Plaintiff has not carried its burden affirmatively to show this Court has jurisdiction over this action. Moreover, Defendant notes that the difficulty of establishing which Complaint was filed first, when both are filed on the same day, underscores the awkwardness and artificiality of a regime that makes the Section 1500 enquiry turn on the time of day a case was filed, particularly when neither this court's nor other federal courts' filing systems routinely record or document that information. For all of these reasons, this Court should conclude that the District Court action was already pending when the above-captioned action was filed in this Court. Moreover, there can be no question that Plaintiff failed to carry its burden to show otherwise, as it must do to establish - 12 -

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jurisdiction over its claims in this Court. See, e.g., Reynolds, 846 F.2d at 748. 2. Plaintiff's District Court and CFC Complaints are Based on the Same Operative Facts

A comparative reading of the District Court and CFC Complaints confirms that they are based on substantially the same facts. See Loveladies, 27 F.3d at 1551-52; see also Keene Corp. v. United States, 508 U.S. 200, 212-14 (1993). Both complaints use essentially identical factual allegations, namely, that the United States, as trustee, breached fiduciary duties owed to Plaintiff by allegedly failing to properly manage Tribal trust funds and assets. Compare District Court Complaint ¶¶ 1-4, 12-31 with CFC Complaint ¶¶ 1, 14-39. Moreover, Plaintiff cites to identical provisions of law in support of its contention that the United States breached fiduciary duties owed to the Plaintiff. Compare District Court Complaint ¶ 16, with CFC Complaint ¶ 19. Consequently, the facts underlying these allegations are likely to be substantially the same in both cases. a. The District Court Complaint

In particular, in seeking an accounting in District Court, Plaintiff requests judicial review of the Government's past actions related to its management of (1) assets held in trust by the Government for the Plaintiff's benefit in the form of "[j]udgment funds .... includ[ing]" certain monies "awarded to the Tribe pursuant to the Maine Indian Claims Settlement Act;" and (2) Plaintiff's tribal trust lands, associated resources and income derived therefrom. See District Court Complaint ¶¶ 2-4, 13, 14. Moreover, Plaintiff seeks review of the Government's contemporaneous record-keeping, or an accounting of those actions. See id. ¶¶ 4(b), (e); 20(a), (b); 33-39. In the District Court Complaint, Plaintiff alleges that: Judgment funds constitute a substantial portion of the assets held by the United States in trust for the Tribe's benefit. This includes funds awarded - 13 -

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to the Tribe pursuant to the Maine Indian Claims Settlement Act, Pub. L. No. 96-240, 94 Stat. 1785 (codified as amended at 25 U.S.C. §§ 1721-35 (2000))("the Settlement Act"), the purpose of which was to resolve the Tribe's claims regarding the validity of a 1794 treaty that purportedly ceded up to 12.5 million acres of tribal land to the State of Massachusetts. See Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F. 2d 370, 373-74 (1st Cir. 1975); H.R. Rep. No. 96-1353 at 13-14. The Settlement Act created a $27 million Settlement Fund, one-half of which was held in trust by the United States for the benefit of the Tribe. 25 U.S.C. § 1724. Under the terms of the Settlement Act, the principal of the Settlement Fund could not be distributed to the Tribe or any of its members, and the Secretary of the Interior, who was charged with administering the trust, was to make quarterly payments to the Tribe consisting of the income earned through the investment of the trust funds. Id.. District Court Complaint, ¶ 13. Plaintiff further alleges: The Settlement Act also established the Maine Indian Claims Land Acquisition Fund. 25 U.S.C. § 1724 ( c )-(d) ("the Land Fund"). Under the terms of the Land Fund, the Secretary of the Interior initially held $26.8 million for the benefit of the Tribe and was required to spend those monies for the "purpose of acquiring land or natural resources for the Passamaquoddy Tribe ... and for no other purpose." § 1724(d) The Settlement Act further mandated that title to the first 150,000 acres of land acquired through the Land Fund would be held in trust by the United States, with the Tribe as the beneficial owner of the land and associated natural resources. Id. The lands so acquired and the income they produce, including from the development of timber and other natural resources, constitute the remainder of the Tribe's tribal trust assets. Id., ¶ 14. Among others, the breaches alleged by Plaintiff relating to the Government's management of judgment or settlement funds and lands and associated resources, include: (1) failure to provide and unconscionably delaying the performance of a complete, accurate and adequate accounting of trust property; (2) the failure to maintain adequate books and records with respect to the trust property, including but not limited to, records of leases and other contractual arrangements giving rise to income from the trust property and records of investments of tribal trust assets; (3) the - 14 -

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failure to take reasonable steps to preserve and protect trust property; (4) the failure to use reasonable skill and care to invest and deposit trust funds in such a way as to maximize the productivity of trust property within the constraints of law and prudence; and (5) the failure to ensure that trust assets are used for their highest and best use. District Court Complaint ¶ 20. Plaintiff contends that these breaches of fiduciary duties have limited its ability to know, or ascertain (1) the true state of its trust assets, including funds and related accounts holding such funds; (2) what amounts should have been credited to it and deposited into its accounts; (3) what amounts it should have been paid; (4) how much of its property has been diverted or converted to other uses; (5) to what extent the United States failed to maximize profits; or (6) whether the United States has attained fair market value for leases and sale of trust assets. District Court Complaint ¶ 21. Plaintiff alleges that the accounting that it receives in the District Court will illuminate the true state of its tribal trust assets and verify the accuracy of balances in its tribal trust fund accounts. See District Court Complaint, ¶¶ 1, 4 (f), 21, 34, 42-43. b. The Court of Federal Claims Complaint

As with the District Court Complaint, Plaintiff asserts that Plaintiff's tribal trust assets include judgment and settlement funds, lands, associated natural resources, and income derived therefrom. Compare CFC Complaint ¶¶ 14-16 with District Court Complaint ¶¶ 13-14. Much like in the District Court action, in the CFC Complaint in this case, Plaintiff demands judicial review of the Government's past action related to its management of (1) assets held in trust by the United States for Plaintiff's benefit in the form of "[j]udgment funds .... includ[ing]" certain monies "awarded to the Tribe pursuant to the Maine Indian Claims Settlement Act;" and (2) Plaintiff's tribal trust lands, associated resources and income derived therefrom. See CFC Complaint ¶¶ 1, 14-19, 23-39. - 15 -

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With respect to Defendant's management of assets such as judgment and settlement fund monies, Plaintiff asserts that Defendant failed properly to invest said monies and failed to obtain the maximum investment returns possible. Compare CFC Complaint ¶¶ 33 and 37-39 with District Court Complaint ¶¶ 4 ( c ) and (d), 13, 14, 19, 20-21. Plaintiff specifically challenges the adequacy of the compensation that it received from leases with respect to, and sales of, natural resources, asserting that the Defendant failed to "attain" or collect "fair market value" for the sale, lease, or use of the Community's natural resources. Compare CFC Complaint ¶ 28, with District Court Complaint ¶ 21. While the District Court Complaint anticipates that the accounting sought by Plaintiff in the District Court will provide the factual predicate for the alleged breach of fiduciary duties committed by the Federal Defendants, the CFC Complaint anticipates achieving the same result by way of an evidentiary hearing, in connection with Plaintiff's claims for money damages. See CFC Complaint ¶¶ 29, 34, and 40 (alleging Plaintiff's entitlement to damages "in an amount to be proven at trial"). Nevertheless, with respect to Plaintiff's natural resource trust asset claims and its non-natural-resource trust asset claims alike, the same operative facts underlie both the District Court and CFC Complaints. Examples of those common operative facts include what income was produced from the development of timber and other natural resources on "land acquired through the Land Fund;" and what funds were collected and deposited, and whether those collections and deposits of funds or proceeds were in an appropriate amount. Compare District Court Complaint ¶ 14, with CFC Complaint ¶ 16. Plaintiff's District Court Complaint contains allegations that uncollected or undercollected receipts ("what amounts should have been credited to the Community and deposited in these accounts") (District Court Complaint ¶ 21) are among the facts that must be addressed in the "full - 16 -

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and complete accounting" that Plaintiff seeks in the District Court. Meanwhile, in the instant CFC action, the same operative facts are at issue. For example, in ¶ 27 of the CFC Complaint, Plaintiff alleges that "[t]he United States, as trustee, has never provided the Passamaquoddy a complete and accurate accounting of management of the natural resources belonging to the Passamaquoddy and the revenue the United States collected or was required to collect, in managing the Passamaquoddy's natural resources"; and claims it is entitled to damages for such alleged mismanagement. The operative facts underlying both Plaintiff's accounting and damages claims are the same ­ namely, what funds were collected and deposited and when. Similarly, with respect to Plaintiff's judgment, settlement, and trust funds claims, the same operative facts ­ how the trust funds were administered, how and when they were invested, and the resources from which the Tribe received consideration, including but not limited to what land was acquired pursuant to the Settlement Act, what income it produced, and how those funds were managed ­ underlie the District Court and CFC cases alike. District Court Complaint ¶¶ 13-14, 19(f), 20(f), 21; CFC Complaint ¶¶ 16, 28, 31, 33. In sum, both cases concern the same historic management of the very same tribal trust funds. Thus, for the purpose of an analysis under 28 U.S.C. § 1500, both the District Court and CFC Complaints arise from the same operative facts. 3. The District Court and CFC Complaints Contain Substantially Overlapping Claims for Monetary Relief

The Complaints in the District Court and in the CFC cases both seek an initial judicial determination as to the nature and scope of the Defendant's fiduciary duties pertaining to the management and administration of its trust assets. Compare District Court Complaint ¶¶ 1, 4, 1931, 38-39, Prayer for Relief ¶¶ 1, 4, 6, with CFC Complaint ¶¶ 1, 24-40, Prayer for Relief ¶ 1. Also, the Complaints seek monetary relief against the Defendant arising from the same breach that

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Plaintiff hopes the courts will find. Under such circumstances, Section 1500 automatically divests this Court of jurisdiction where a Plaintiff has overlapping claims of this nature in more than one forum. See Harbuck, 378 F.3d at 1329. Despite its assertions to the contrary, in the District Court action Plaintiff requests more than an order for a simple equitable accounting. There, Plaintiff contends that the true balances of its trust accounts are inaccurate and, in addition to seeking a restatement of account balances, Plaintiff wants the Court to find other alleged breaches of trust, and to order payment of money in the form of "disgorgement" and "equitable restitution." See, e.g., District Court Complaint ¶¶ 19, 20, 43, and 44. Tellingly, some of the specific breaches alleged by Plaintiff include the failure to "maximize the productivity of trust property" and to "ensure that trust assets are used for their highest and best use." See id. ¶ 20 (f) and (g). Plaintiff asks the District Court to first define the scope of the Defendants' fiduciary duties related to the management and administration of its trust assets and subsequently to declare Defendants to be in breach of said duties. See id. ¶¶ 1, 4, 19-39, Prayer for Relief ¶¶ 1, 2, 4. Once armed with the District Court's declaration, the accounting will commence, and, Plaintiff hopes, ultimately culminate in an order from the District Court restating Plaintiff's trust fund account balances and/or awarding equitable restitution or disgorgement against the Government. See id. ¶¶ 33-43, Prayer for Relief ¶¶ 5-6. Restitution is a remedy that may come in the form of "a judgment at law or decree in equity for the payment of money, directly or by way of set-off or counterclaim" among other things. See Restatement (First) of Restitution, § 4(f) (1937). Disgorgement is defined as the "act of giving up something (such as profits illegally obtained) on demand or by legal compulsion." Black's Law Dictionary (7th ed. 1999); see also

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United States v. Phillip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000).8/ The request for monetary relief that Plaintiff asserts in this forum to redress what it contends are gross breaches of trust related to the management and administration of Plaintiff's trust property is already pending against the United States in the District Court. Compare CFC Complaint, ¶¶ 1, 29, 34, and 39 with District Court Complaint, Prayer for Relief, ¶ 6. The District Court claims for a restatement of trust fund account balances by way of restitution and/or disgorgement, in essence, seek a return to Plaintiff of the money that it contends the Government improperly possesses ­ the same result Plaintiff seeks in this Court. See Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1007 (Ct. Cl. 1967)(stating that non-contractual claims acceptable for consideration by this Court "can be divided into two somewhat overlapping classes-those in which the plaintiff has paid money over to the Government, directly or in effect, and seeks a return of all or part of that sum; and those demands in which money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury"). If this Court determines that Defendant in fact breached fiduciary duties owed to Plaintiff based on Defendant's management and administration of Plaintiff's trust funds and assets, by failing, for example, to achieve fair market value for sales of timber or "leases with respect to natural resources," (see CFC Complaint ¶ 28), or failing to collect receipts (see CFC Complaint, ¶ 27), Defendant could be ordered to disgorge money or pay restitution to Plaintiff to compensate for monies that Plaintiff

8/

Defendant does not agree that the District Court has jurisdiction to award the monetary relief that Plaintiff seeks in that Court. But the invalidity of Plaintiff's claim in the District Court should not be deemed relevant to the Court's determination under Section 1500, which requires only that the same claim be pending in another court at the time the CFC action is filed. It should be for the District Court to consider Defendant's assertions that the District Court does not have jurisdiction to award the monetary relief that Plaintiff seeks. Cf. Forsgren v. United States, 73 Fed. Cl. 135, 142 (2006) ("This court will not step into the shoes of a district court judge and create the fiction that the district court complaint is `deemed' dismissed."). - 19 -

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contends it should have always had. See District Court Complaint ¶ 4, and Prayer for Relief, ¶ 6. The same holds true for Plaintiff's claims related to judgment, settlement, and trust fund monies. See CFC Complaint ¶¶ 30-40. Plaintiff's pleadings in both courts thus assert overlapping claims for monetary relief based on the same set of facts. See British Am. Tobacco Co., 89 Ct. Cl. at 440. Not only are the operative facts the same in these parallel cases, but the quantum of monetary relief ­ a restatement of funds balance in the District Court and damages in the Court of Federal Claims ­ would be exactly the same. With the very same historic management and alleged errors and the very same trust funds at issue, the identical remedy should result from each case. This, too, shows how much they overlap. Congress explicitly deprived this Court of jurisdiction over these types of cases when it enacted 28 U.S.C. § 1500. See Johns-Manville, 855 F.2d at 1565. III. CONCLUSION For the foregoing reasons, this Court should dismiss Plaintiff's CFC Complaint pursuant to 28 U.S.C. § 1500.

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Respectfully submitted this 28th day of September, 2007, RONALD J. TENPAS ACTING ASSISTANT ATTORNEY GENERAL s/Laura Maroldy Laura M.L. Maroldy United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 514-4565 Fax: (202) 353-2021 Attorneys for Defendant OF COUNSEL THOMAS KEARNS Office of the Solicitor United States Department of the Interior Washington, D.C. 20240 TERESA E. DAWSON Office of the Chief Counsel Financial Management Service United States Department of the Treasury Washington, D.C. 20227

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