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Cobell v. Norton

October 16, 2001

ELOISE PEPION COBELL ET AL. PLAINTIFFS
v.
GALE A. NORTON SECRETARY OF THE INTERIOR, ET AL. DEFENDANTS



FOURTH REPORT OF THE COURT MONITOR

I. INTRODUCTION

On September 17, 2001, the Court Monitor submitted his Third Report to this Court. It addressed the status of the BIA Data Cleanup and Management (BIA Data Cleanup) subproject. That Report also reviewed and commented on the accuracy and completeness of the substance of the BIA Data Cleanup chapters in the past Quarterly Reports submitted to this Court pursuant to its Memorandum and Order, Cobell v. Babbitt, 91 F. Supp. 2d 1 (D.D.C. 1999) at 59.

In the Third Report, the Court Monitor concluded: "The Interior Defendants' Quarterly Reports have consistently failed to provide this Court with a truthful, accurate, and clear picture of the status of BIA Data Cleanup." Id. at 34.

As one example of the basis for that conclusion the Court Monitor quoted and addressed a statement in the BIA Data Cleanup and Management Chapter of the Seventh Quarterly Report: "The exact status of the BIA Data Cleanup and Management, including work performed by BIA personnel, will be in the next quarterly report." Id. at 30-31 and 34. The Court Monitor opined:

"If the Secretary of the Interior was concerned about why the Special Trustee was not satisfied with the completeness or the quality of the information in this Seventh Quarterly Report, she need only have read this one statement. In promising to provide in the next report the exact data cleanup status and work performed by BIA personnel, the subproject manager admitted that the previous six Quarterly Reports had not provided that "exact" status and had only reported what DataCom had accomplished with the tasks assigned to its personnel." Id. at 30, emphasis in original.

The Secretary of the Interior, in a memorandum dated August 29, 2001, entitled, "Seventh Quarterly Status Report to the Court," (Tab 1) had asked the Special Trustee for American Indians (Special Trustee) to give her a detailed explanation of his concerns as expressed in his Observations to Quarterly Status Report to the Court Number Seven (Seventh Quarterly Report). In her direction to him to supply her additional information about those concerns, she stated:

"In reviewing the draft seventh report, I was particularly drawn to your views as expressed in the section entitled 'Special Trustee's Observations'. I was pleased to note your assessment that 'The Secretary, the Special Trustee and the Assistant Secretary of Indian Affairs, are moving to strengthen the overall leadership and project management of the trust reform effort.'

However, in the final paragraph of the Observations, you noted a concern that '(t)he Special Trustee is not satisfied with the completeness or the quality of the information provided in this quarterly report.' Since I have not heard from you on this subject prior to my review of the draft, and since your office compiled the report, I assume your concerns were of insufficient severity or immediacy for you to recommend a delay in filing the report. If that assumption is incorrect and you believe that the draft report needs to be amended materially prior to filing, we need to know immediately. The Solicitor will call you later today regarding the immediacy of your concerns.

If your concerns are not of such a nature as to require a delay, I nevertheless want to address your concerns quickly. As I am committed to provide the Court with reports that are both complete and of high quality, please provide to me by close of business next Friday, September 8, 2001, a detailed explanation of your concerns regarding the deficiencies of the Seventh Quarterly Report. I welcome your thoughts for improving the readability and format of future reports. If there are weaknesses in the content of our reporting to the Court, please advise me of your recommendations of the actions we need to take. We may need to prepare a supplemental report that would further clarify the status of trust reform for the benefit of the Court.

In addition, we have been informed that the Department of Justice requires some level of certification of the contents of the seventh report prior to it being filed with the Court. We will seek certification from the subproject managers who contributed to the report. Id, emphasis added.

The operative full paragraph of his Observations (Tab 2) had stated:

"The Special Trustee is not satisfied with the completeness or the quality of the information provided in this quarterly report. As our investigations are carried further and we receive the analysis from EDS of all subprojects, we will implement changes to this report designed to improve the format, completeness, and content of future quarterly reports." Id. at 6.

The Special Trustee, in a September 10, 2001 memorandum entitled, "Seventh Quarterly Status Report to the Court," (Tab 3) responded to the Secretary of the Interior by stating that:

"Since assuming responsibility for compiling the Quarterly Reports for the Department with the third report, I have noted a number of concerns about specific areas of trust reform in the Special Trustee's Observations section of the Reports. Many of these concerns were expressed in terms of the serious and complex management problems faced by the Department. These concerns included, but are not limited to, the inability of the BIA subproject manager to obtain meaningful metrics to measure the progress of the BIA data cleanup effort and the continued failure of TAAMS to operate in an acceptable manner. The delays in some critical subprojects suggest that those people involved in those projects do not have or cannot get or will not acknowledge an accurate description of problems present in the projects. Therefore, the problems are either not addressed or addressed ineffectively. The successful reform of the Department's Indian trust asset management process depends on the objective analysis of the process, the candid communications of the results of that analysis, and the firm commitment to reshape the process where necessary." Id. at 31, citation omitted, emphasis added.

The Department of Justice (DOJ) submitted the Seventh Quarterly Report to this Court on August 31, 2001 as an exhibit to "Interior's Motion For An Extension Of Time To File Its Seventh Quarterly Report" (Tab 4). DOJ counsel to the Interior defendants, Ms. Sarah Himmelhoch, stated in that motion:

"Interior is requesting the additional time merely to allow for the concerns the Special Trustee has expressed generally to be detailed and fully resolved before the Seventh Quarterly Report is filed in final form...." Id. at 2.

On October 3, 2001, in a "Notice of Filing of Interior's Seventh Quarterly Report and Related Papers" (Tab 5), Ms. Himmelhoch stated:

As for the Seventh Quarterly Report, Interior and undersigned counsel conducted inquiries of each subproject manager to determine whether each subproject manager believed the report to be an accurate description of the status of the subproject under his or her supervision during the months of May, June, and July 2001. Certain subproject managers indicated that, in order to make that assurance to counsel, certain changes needed to be made to the Quarterly Report. Those changes are identified in the attached certifications or correspondence. Each of the other subproject managers has indicated either in writing or orally that the report as originally submitted was an accurate description of the status of the subproject under his or her supervision during the months of May, June, and July of 2001." Id. at 3.

The Seventh Quarterly Report has been amended and, according to the representation of the DOJ counsel representing the Interior defendants, has now been produced to this Court by the Interior defendants as an accurate description of the status of the subprojects reported therein.

This Fourth Report of the Court Monitor will be a review of that Quarterly Report with respect to the specific BIA Data Cleanup and Management Chapter that was the focus of part of the Third Report's discussion and conclusions. *fn1 However, this Report will first address the verification process carried out by the DOI at the request of the DOJ regarding the Seventh Quarterly Report.

II. THE VERIFICATION PROCESS OF THE SEVENTH QUARTERLY REPORT

A. Verification History

Prior to the submission of the motion for an extension of time in which to file the Seventh Quarterly Report, the DOJ had requested, in a letter to the Counselor to the Secretary, Michael Rossetti, dated August 27, 2001, entitled, "Cobell v. Norton, Civil Action No. 96-1285," (Tab 6) that the DOI return to the custom of verifying the Quarterly Report upon its submission to the DOJ. As stated by DOJ counsel in her letter:

"Because Justice has not had sufficient time or access to conduct its own verification of the contents of the various reports, it has relied upon Interior to verify those reports generally and assure Justice of their accuracy.

For the Third, Fourth, and Fifth Quarterly Reports, that assurance has been provided by a letter from Thomas Slonaker, Special Trustee for American Indians, who transmits the report with a letter that contains the statement: 'we require written input from all of our subproject managers, which is then edited and formatted. We use great care to verify the reports.' (A similar verification was provided by the Office of Policy, Management, and Budget for the First and Second Reports.)

As I stated in our telephone conversation last week, before the Justice Department can file the Seventh Quarterly Report, Justice needs a similar statement that Interior has taken the necessary steps to verify the accuracy of that report. This statement could come either from Mr. Slonaker (addressing the entire report), from another senior official (addressing the entire report), or from each of the individual project managers and Mr. Slonaker (each addressing his or her section of the report). Without such a statement, however, Justice will not be able to file the Seventh Quarterly Report (or future reports)." Id. at 1-2, citations omitted.

The Solicitor of the Department of the Interior, William G. Myers, and a subordinate attorney, Sabrina McCarthy, were sent copies of that letter.

On September 4, 2001, a memorandum from the Deputy Special Trustee, John M. Miller, entitled, "Extension of the Filing Deadline for the 7th Quarterly Report," (Tab 7) was sent to Ms. McCarthy. He stated:

"This is to recap and confirm our conversations of 8/31/01. I expressed the Special Trustee's opposition to the proposed motion to extend the filing deadline for the quarterly report based on the Special Trustee verifying the contents of the report. As I stated in a voice mail message and directly to you with Mike Smith present, the Special Trustee would not verify the report under any conceivable scenario encompassed by the proposed motion. As you are aware, I repeated this to the Solicitor when we met with him later in the afternoon. I have not seen what was filed, but I hope DOJ did not represent a contrary position to the Court." Id.

In an interview the Court Monitor held with the Special Trustee following submission of the Seventh Quarterly Report on October 3, 2001, he confirmed his subordinate's rendition of his opposition to delaying filing on August 31, 2001 the Seventh Quarterly Report in order to resolve his concerns and his refusal to verify it when submitted. He also expanded on his reasoning. He had seen no possibility that he or BIA senior management would be able to resolve his concerns expressed in his Observations and later memorandum response to the Secretary within the time period requested in the DOJ motion for an extension of time.

Also, he would not be able to verify the accuracy of some of the subproject managers' reports in the short term due to the management and communication problems that he had addressed in his memorandum response to the Secretary.*fn2 He had previously discussed his position and refusal to verify the Seventh Quarterly Report with Messrs. Rossetti and Myers when they first approached him requesting that he provide that verification some time before Miller's meetings with the Solicitor and Ms. McCarthy on August 31, 2001. *fn3

Following the Special Trustee's refusal to verify the Seventh Quarterly Report and his concomitant opposition to delaying the filing of the Seventh Quarterly Report, the Solicitor requested, by memorandum dated August 29, 2001, entitled, "Certification Regarding Status of Projects Reported in Seventh Quarterly Report Cobell v. Norton, Civil Action N0. 96-1285 " (Tab 8), that the Special Trustee's Chief of Staff send a "Certification Memorandum" to each subproject manager "presenting" an "opportunity" to each subproject manager to certify that he or she had provided complete and accurate information regarding the status of his or her project. The Chief of Staff complied with the Solicitor's request in a memorandum dated on the same day sent to all subproject managers enclosing the certification memorandum along with a copies of the Solicitor's memorandum request and the Special Trustee's draft Observations for the Seventh Quarterly Report (Tab 9).

In its motion for an extension of time to file the Seventh Quarterly Report, submitted to the Court on August 31, 2001, (see Tab 4) the DOJ stated, notwithstanding the Special Trustee's position on this representation provided to the Solicitor in writing and orally by either him or the Deputy Special Trustee, that:

"As of the time of this filing, the Special Trustee, 'is not satisfied with the completeness or the quality of the information provided in (the Seventh Quarterly Report).' Because additional review time is needed to allow for the filing of a verified report, Interior respectfully requests an extension of 30 days, to and including October 3, 2001, for the filing of the Seventh Quarterly Report...."

Interior is requesting the additional time merely to allow for the concerns the Special Trustee has expressed generally to be detailed and fully resolved before the Seventh Quarterly Report is filed in final form, and will file sooner than October 3, 2001 if possible. Id. at 1-2, citation omitted; emphasis added.

The Motion also noted (footnote 3) that the Solicitor's offering of an opportunity to certify the information provided by the subproject managers had only secured the necessary certifications from six of these managers. Id. Those certifications, however, included one by the BIA Data Cleanup and Management subproject manager that occasioned that Chapter's review in the Third Report of the Court Monitor.

Following submission of the motion to extend the time to file the Seventh Quarterly Report, the Solicitor again sought certification from each subproject manager in a memorandum sent on September 21, 2001, through the Assistant Secretaries for Policy, Management and Budget, Land and Minerals Management, Indian Affairs, and the Special Trustee (initialed by these officials) to all subproject managers (Tab 10). The memorandum stated in part:

"The Department of Justice requires certification of the reports prior to filing them with the Court. This requirement is found in the Federal Rules of Civil Procedure for the United States District Courts. The rule requires every attorney who presents a document to a federal district court to certify that the document is accurate "to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances." The rule applies not only to the 7th Quarterly Report, but to all future quarterly reports as well.

Prior to the filing deadline for the 7th Quarterly Report, the Office of the Solicitor worked through the Office of the Special Trustee for American Indians in seeking a statement from each Subproject Manager certifying that manager's portion of the Quarterly Report. Not all managers provided statements prior to the filing deadline, thus necessitating the need for the extension of time...."Id. at 1, emphasis added.

The memorandum included instructions for each subproject manager to follow: re-certify a past certification with the new attached certification; sign the new certification and include a detailed statement of the modifications made to the previous report; or, if he or she could not sign the statement, provide a detailed written explanation of why not. Id. at 3. *fn4

The memorandum required that it be read and responded to by all subproject managers. All subproject managers did not respond in writing or sign the certification. Five subproject managers did respond with the requested detailed explanations of why they would not sign the certification.

One memorandum, submitted by four subproject managers on September 27, 2001 (Tab 11), including the Principal Deputy Special Trustee, stated, in part:

ù In your memorandum you have not provided explanation or justification why Subproject Managers must 'certify.' As we read the memorandum, the requirement to certify under the Federal Rules of Civil Procedure rests with officers of the Court, not Subproject Managers.

....

ù The Motion filled by the Department of Justice on Interior's behalf seeking a delay in filing the 7th Quarterly Report stated that the reason for the delay in filing was to afford time needed to allow for the concerns that the Special Trustee expressed generally '...to be detailed and fully resolved before the Seventh Quarterly Report is filed in final form....' As we read the Motion it was not, as your memorandum suggests, the absence of certifications from all Subproject Managers that occasioned the delay. In other words, receipt of the requested certifications would not appear to resolve the reasons given for the delay and the actions promised to the Court.

ù Ethically, we are well aware of the Solicitor's role as the attorney and counselor to the Secretary. You and the Department of Justice represent Interior's interests. While not government attorneys, we must assume that each of us have some exposure to the possible legal consequences of the terms 'verify' and 'certify' in the Cobell litigation context. We simply are unwilling, given the litigation to date, to assume the attorney's responsibilities and stand 'in front' of them in the eyes of the Court....

ù Moreover, at its base your request appears to be a simple repeat of the earlier 'opportunity' to certify presented to Subproject Managers in late August, but possibly more intimidating. We chose then not to avail ourselves of that 'opportunity.'

....

ù Further, we cannot reconcile your order with the statement of the Special Trustee in the 7th Quarter Report that he is not satisfied with the completeness or the quality of the information provided in that Report. In respons e the Special Trustee was required to provide specific examples to the Secretary explaining some of his concerns with reporting in that Report. To our knowledge, the only response has been this request for certifications. Without an understanding of the Department's plans to improve reporting, our certifying the 7th Quarter Report would border on the foolhardy." Id. at 1-2.

The fifth subproject manager who refused to certify the Seventh Quarterly Report had a somewhat different but just as troubling reason. In an undated memorandum to the Solicitor (Tab 12) the Appraisal Subproject Manager stated:

"I will not be signing or submitting the certification requested by your office. The information submitted to the Office of the Special Trustee for the 7th Quarterly Report does not include or reflect my professional opinion regarding milestone (K) of the High Level Implementation Plan. A meeting was held by senior management, while I was on travel status, and a decision made without my input. I was not consulted for my comments prior to the decision made by senior management to not realign the appraisal line authority to Central Office.

In the 6th Quarterly Report, the BIA had outlined a plan to realign the appraisal program. I was in the process of working on the realignment plan as indicated in the 6th Quarterly Report, when I was informed by senior management to cease work in regard to this milestone. According to the information I had received, senior management had made a decision to obtain a legal examination of the realignment from the Solicitor's Office.... I was not involved in the development of the document, nor can I attest to the validity of the information that was gathered and analyzed, as I was not fully involved in the research or analysis of the information.

As the Sub-Project Manager and technical expert for the Appraisal Program, I would like the record to show, that I do not agree with the document or the decision made by senior management to leave the appraisal line authority with the Regional Directors and Agency Superintendents...." Id. *fn5

Faced with the refusal of five subproject managers to certify their reports in the Seventh Quarterly Report, the Solicitor's next proposed separate verification processes for the Seventh and subsequent Quarterly Reports. Both were outlined in the DOJ's Notice of Filing on October 3, 2001 (see Tab 5). The opposition by the subproject managers to the Solicitor's previous efforts to have them certify the reports was described as an "agreement on certain steps to improve the review of the Quarterly Reports:"

"Specifically, the 'surnaming' procedures for the Eighth and all future Quarterly Reports have been modified so that each subproject manager will review and surname his or her section of the Quarterly Report. As set forth in the Departmental Correspondence Handbook, the act of surnaming is a statement by that individual that he or she concurs with the 'content of the written document.' An individual who does not concur with the content of the written document must 'submit dissenting views in writing to the head of the Action office or Bureau stating the reason(s) for non-concurrence.' In addition, the Solicitor has informed undersigned counsel that, at the meeting of all subproject managers describe d in the preceding paragraph of this Notice, he advised all subproject managers that concurrence in the 'content' includes a belief that the document is accurate to the best of the individual's knowledge. *fn6 The Solicitor has informed the undersigned counsel that he intends to confirm his oral instructions in writing to the subproject managers as well as high-level managers who will be reviewing future Quarterly Reports....

As for the Seventh Quarterly Report, Interior and undersigned counsel conducted inquiries of each subproject manager to determine whether each subproject manager believed the report to be an accurate description of the status of the subproject under his or her supervision during the months of May, June, and July of 2001. Certain subproject managers indicated that, in order to make that assurance to counsel, certain changes needed to be made to the Quarterly Report.... Each of the other subproject managers has indicated either in writing or orally that the report as originally submitted was an accurate ...


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