Jicarilla Apache Nation v. United States

In The United States Court of Federal Claims
No. 02-25L
(Filed: February 23, 2015)
__________
JICARILLA APACHE NATION, *
formerly JICARILLA APACHE TRIBE, *
*
Plaintiff, *
* Stipulation; Procedure ordered; Stipulation
v. * to be comprehensive; Form and exhibits;
* Binding effect; Impact of noncompliance.
THE UNITED STATES, *
*
Defendant. *
*
*
*
*
___________
ORDER
___________
Steven D. Gordon, Holland & Knight, Washington, D.C., for plaintiff.
Stephen R. Terrell, Environmental and Natural Resources Division, United States
Department of Justice, Washington, D.C., with whom was Assistant Attorney General John C.
Cruden, for defendant.
ALLEGRA, Judge:
On October 20, 2014, this court issued a pre-trial order for phase two of this case. That
order required that, on or before February 17, 2015, the parties file a stipulation setting forth all
factual matters as to which they agree. The parties failed to file that stipulation.
The parties’ obligations and deadlines under this court’s October 20, 2014, order,
including the scheduled trial, are hereby STAYED. On or before March 20, 2015, the parties
shall file a stipulation of factual matters in accordance with the following requirements: 1
1
In drafting this order, the court has considered and been guided by the stipulation
provisions employed by the United States Tax Court. See Rules of Practice and Procedure of the
United States Tax Court, Rule 91. The mandatory stipulation process of the Tax Court has been
1. Stipulation Required. The parties shall stipulate, to the fullest extent to which
complete or qualified agreement can or fairly should be reached, all matters not
privileged, which are relevant to the pending case, regardless whether such
matters involve fact or the application of law to fact. Included in the matter
required to be stipulated are all facts, all documents, and papers or contents or
aspects thereof, electronically stored information (ESI), and all other evidence
which fairly should not be in dispute. Where the truth or authenticity of facts or
evidence claimed to be relevant by one party is undisputed, an objection on the
grounds of materiality or relevance may be noted by any other party in a separate
filing, but is not to be regarded as just cause to refuse to stipulate. The
requirement of stipulation will apply without regard to where the burden of proof
may lie with respect to the matters involved.
2. Stipulation to be Comprehensive. The fact that any matter may have
been obtained through requests for admission, any other form of
discovery, or through any other authorized procedure is not grounds for
omitting such matter from the stipulation. Prior discovery or other forms
of requests for admission should be regarded as aids to stipulation and
matters obtained through them must be set forth comprehensively in the
stipulation, in the context of all other provisions of the stipulation.
Documents, papers or other exhibits annexed to or filed with the
stipulation shall be considered to be part of the stipulation.
3. Form. The stipulation required by this order shall be executed by the parties or
their counsel. The stipulation shall be extensive, clear and concise; the matters
must be set forth in a logical order. Separate items shall be stated in separate
paragraphs and shall be appropriately lettered or numbered. While this court’s
normal electronic filing rules shall apply, in addition, an electronic copy of the
stipulation shall be filed with the court via CD-ROM or DVD.
4. Exhibits. Documents, papers, or other exhibits meeting the requirements of
paragraph one shall be filed with the stipulation, should be attached to the
stipulation and should be considered a part of the stipulation. The stipulation
should be in electronic searchable form, including exhibits. Documents or other
papers, that are the subject of stipulation in any respect and that the parties intend
to place before the court, shall be attached to or filed with the stipulation.
Exhibits attached to a stipulation shall be numbered serially, i.e., 1, 2, 3, etc.
5. Binding Effect. A stipulation shall be treated, to the extent of its terms, as a
conclusive admission by the parties to the stipulation, unless otherwise permitted
characterized as the “bedrock of Tax Court practice.” Branerton Corp. v. Comm’r of Internal
Revenue, 61 T.C. 691, 692 (1974); see also Farrell v. Comm’r of Internal Revenue, 136 F.3d
889, 893 (2d Cir. 1998).
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by the court or agreed upon by those parties. The court will not permit a party to
the stipulation to qualify, change, or contradict a stipulation in whole or in part,
except that the court may do so where justice requires. See generally Christian
Legal Soc. Chapter of the Univ. of Cal., Hastings College of Law v. Martinez, 561
U.S. 661, 676 (2010); Bates v. United States, 450 F.2d 886, 888 (Ct. Cl. 1971)
(adopting Trial Comm’r opinion). The stipulation shall be binding and have
effect only in phase 2 of this case, and not for any other purpose. The stipulation,
when filed, need not be offered formally to be considered in evidence.
6. Noncompliance by Party. Failure to comply with this order (including a refusal
or failure to make such a stipulation of any matter within the terms of this order)
will be viewed as grounds for the court to issue an order to show cause why
sanctions should not be imposed on the noncomplying party. Among the
sanctions that may be considered is a ruling that certain matters be admitted.
The parties are advised that the court will not reschedule trial in this case until the parties
file a joint stipulation of facts that fully complies with this order.
IT IS SO ORDERED.
s/Francis M. Allegra
Francis M. Allegra
Judge
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