Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:99-cv-00550-ECH

Document 199

Filed 03/13/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE OSAGE NATION AND/OR TRIBE OF INDIANS OF OKLAHOMA, ) ) ) Plaintiff, ) ) v. ) ) ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________)

No. 99-550 L (into which has been consolidated No. 00-169 L) Judge Emily C. Hewitt Electronically Filed March 13, 2006

PLAINTIFF'S MOTION FOR LEAVE TO SUPPLEMENT ITS REVISED EXHIBIT LIST WITH, AND FOR JUDICIAL NOTICE OF, THREE DOCUMENTS In accordance with the Court's scheduling order of February 17, 2006, plaintiff is today filing a Revised Exhibit List that includes documents produced by the defendant after September 1, 2005. By this motion, plaintiff seeks the Court's permission to supplement its Revised Exhibit List with three additional documents, not produced by defendant, that are directly responsive to queries by the Court at the pretrial conference on February 16, 2006. At the conference, the Court asked about the United States' disbursement processes in situations analogous to the Osage Trust.1 In response to those inquiries, the Osage Nation wishes to add to its Revised Exhibit List

1

The Court commented: [T]he United States says, we were permitted by our superiors over at the Department of Treasury to create accounts, which are disbursement accounts, and for 50 some years to now, and before then, I'm sure, those disbursement accounts did not get interest, something of that sort. So, it's the responsible agency argument. What happens to Social Security when this occurs? Does the United States take the use of that money until the money is -- . . . [Government counsel interrupts and responds.] How about pensioner's checks? [Government counsel responds.] One of the things that the Court is interested in here is analogous situations, because the argument of the United States is only as good as covering every possible analogy. The minute one of the analogies goes away, you have a situation, in which the

Case 1:99-cv-00550-ECH

Document 199

Filed 03/13/2006

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three documents describing disbursement policies in analogous government trust situations. The documents are: (1) Social Security Administration Actuarial Note Number 142, "Social Security Trust Fund Investment Policies and Practices," January 1999; (2) December 13, 1985 Memorandum from Comptroller General to Chairman, House Subcommittee on Commerce, Transportation, and Tourism and Chairman, House Subcommittee on Social Security re: Redemption of Railroad Retirement Account Investments; and (3) General Accounting Office Report to Chairman, House Committee on Post Office and Civil Service, "Civil Service Fund: Improved Controls Needed Over Investments," May 1987. These documents are responsive to the Court's comments and will assist in the resolution of issues presented by this case. Copies of the documents are attached. The Osage Nation further moves the Court to take judicial notice of the documents' contents. Under Federal Rule of Evidence 201, a court can take judicial notice of any fact "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." The attached documents meet FRE 201's requirements. They are governmental reports describing governmental procedures and are available to the public on the official websites of the Social Security Administration and the General Accounting Office.2 See, e.g., Bannum, Inc. v. United States, 404 F.3d 1346, 1352 n.2 (Fed. Cir. 2005) (taking judicial notice of a Policy Letter from the Office of Federal Procurement Policy posted on the Internet).

trust issue starts to eat away at the agency[-]does[-]it[-]this[-]way issue. . . What's the level of flexibility here to meet various types of concerns and interests? Pretrial Conference Transcript 279:21 ­ 281:11 (Feb. 16, 2006). 2 The documents are available at http://www.ssa.gov/OACT/NOTES/pdf_notes/note142.pdf; http://archive.gao.gov/d12t3/128706.pdf; and http://archive.gao.gov/d28t5/133173.pdf.

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Respectfully submitted March 13, 2006. /s/Wilson K. Pipestem WILSON K. PIPESTEM Pipestem Law Firm, P.C. 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036 Telephone: (202) 419-3526 Fax: (202) 659-4931 [email protected] Attorney for The Osage Nation

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Case 1:99-cv-00550-ECH

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INDEX TO EXHIBITS Exhibit A: Social Security Administration Actuarial Note Number 142, "Social Security Trust Fund Investment Policies and Practices," January 1999. Exhibit B: December 13, 1985 Memorandum from Comptroller General to Chairman, House Subcommittee on Commerce, Transportation, and Tourism and Chairman, House Subcommittee on Social Security re: Redemption of Railroad Retirement Account Investments. Exhibit C: General Accounting Office Report to Chairman, House Committee on Post Office and Civil Service, "Civil Service Fund: Improved Controls Needed Over Investments," May 1987.