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COBELL v. NORTON

January 17, 2003

ELOUISE PEPION COBELL, et al., Plaintiffs
v.
GALE A. NORTON, Secretary of the Interior, et al., Defendants.



The opinion of the court was delivered by: ROYCE C. LAMBERTH, United States District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on thirteen separate motions to disqualify the presiding judge, Special Master Alan Balaran ("Master"), and Special Master-Monitor Joseph S. Kieffer, III ("Monitor") from participating in proceedings against 39 individuals, present or former employees of the United States government whose employment required them to participate in activities related to the individual Indian trust accounts at issue in the present action.*fn1 In the alternative, movants

[237 F. Supp.2d 74]

      seek to take full discovery relating to alleged ex parte communications among the Master, the Monitor, other government employees, and the Court.*fn2 Because the motions and supporting memoranda are nearly identical in their factual statements and arguments, the Court will address all thirteen in this opinion.*fn3 Upon consideration of the Recusal Motions, plaintiffs' consolidated opposition brief; movants' reply briefs, the applicable law in this case, and the entire record herein, the Court finds the Recusal Motions to be without merit.*fn4

[237 F. Supp.2d 75]

     

I. BACKGROUND

  On February 22, 1999, this Court found defendants Secretary of the Interior Bruce Babbitt, Secretary of the Treasury Robert Rubin, and Department of the Interior Assistant Secretary, Indian Affairs Kevin Gover to be in civil contempt of the Court's discovery orders of November 27, 1996 and May 4, 1998. Two days later, in accordance with Rule 53 of the Federal Rules of Civil Procedure and with the consent of both parties, this Court appointed Alan Balaran to serve as a special master in this litigation. Special Master Balaran was ordered to "oversee the discovery process in this case to ensure that discovery is conducted in the manner required by the Federal Rules of Civil Procedure." Order dated February 24, 1999, at 2. To fulfill his duties, the Court endowed Special Master Balaran with the authority to "do all acts and take all measures necessary or proper for the efficient performance of the master's duties, as set forth in this order." Id.*fn5 With the consent of the parties, the Court subsequently expanded Mr. Balaran's order of reference to include oversight of "the Interior Department's retention and protection from destruction of LIM Records through, among other things, on-site visits to any location where LIM Records are not being protected from destruction or threatened destruction." Order dated August 12, 1999 at 2. On March 29, 2002, the Court clarified these orders of reference by holding that the Master could engage in ex parte communications in the discharge of his obligations. See Mem. and Order dated March 29, 2002 at 7-8 (noting that "courts have uniformly acknowledged the authority of institutional refirm special masters to uncover facts and collect evidence via ex parte contacts with parties and counsel. . . . [and that] Interior has never objected to any of the Master's reports chronicling those visits and assessing the evidence accumulated therefrom.").

  On April 16, 2001, with the consent of both parties, the Court appointed Joseph S. Kieffer, III, to serve as court monitor in this action. Mr. Kieffer was directed to "monitor and review all of the Interior defendants' trust reform activities and file written reports of his findings," which were to include "a summary of the defendants' trust reform progress and any other matter [he] deems pertinent to trust reform." Order dated April 16, 2001 at 2. Defendants were ordered to "facilitate and assist Mr. Kieffer in the execution of his

[237 F. Supp.2d 76]

      duties and responsibilities" and to provide him with "access to any Interior offices or employees to gather information necessary or proper to fulfill his duties." Id. The Court explicitly authorized Mr. Kieffer to "make and receive ex parte communications with all enlities necessary or proper to effectuate his duties." Id.

  On November 28, 2001, the Court issued an order directing Secretary Norton and Assistant Secretary McCaleb to show cause why they should not be held in contempt (1) for failure "to comply with the Court's Order of December 21, 1999, to initiate a Historical Accounting Project"; (2) for "committing a fraud on the Court by concealing the Department's true actions regarding the Historical Accounting during the period from March 2000 until January 2001"; (3) for "committing a fraud on the Court by failing to disclose the true status of the TAAMS project between September 1999 and December 21, 1999"; and (4) for "committing a fraud on the Court by filing false and misleading quarterly reports starting in March 2000, regarding TAAMS and BIA Data Cleanup." Order dated November 28, 2001 at 2. On December 6, 2002, a fifth specification was added, ordering Secretary Norton and Assistant Secretary for Indian Affairs Neal McCaleb to show cause why they should not be held on contempt for "[c]ommitting a fraud on the Court by making false and misleading representations starting in March 2000, regarding computer security of IIM trust data." Order dated Dec. 6, 2001 at 1.

  The first four counts racing the Secretary and the Assistant Secretary were grounded in findings made by the Court Monitor in his reports, dated July 11, 2001 (Interior's statistical sampling project); August 9, 2001 (TAAMS); September 17, 2001 (the BIA Data Cleanup project); and October 16, 2001 (Interior's Seventh Quarterly Report). The fifth contempt count was premised upon the November 14, 2001 Report and Recommendation of the Special Master Regarding the Security of Trust Data at the Department of the Interior.

  On September 17, 2002, following a trial, the Court held both Secretary Norton and Assistant Secretary of Indian Affairs Neal McCaleb in contempt of court for "engag[ing] in litigation misconduct by failing to comply with the Court's Order of December 21, 1999, to initiate a Historical Accounting Project. . . . Committ[ing] a fraud on the Court by concealing the Department's true actions regarding the Historical Accounting Project during the period from March 2000, until January 2001. . . . Committ[ing] a fraud on the Court by failing to disclose the true status of the TAAMS subproject between September 1999 and December 21, 1999. . Committ[ing] a fraud on the Court by filing false and misleading quarterly status reports starting in March 2000, regarding TAAMS and BIA Data Cleanup. . . . [and] committ[ing] a fraud on the Court by making false and misleading representations starting in March 2000, regarding computer security of IIM trust data." Order dated Sept. 17, 2002 at 1-2.

  On the same date, the Court referred to the Master (1) plaintiffs' Motion for Order to Show Cause Why Interior Defendants and Their Employees and Counsel Should Not Be Held in Contempt for Violating Court Orders and for Defrauding This Court In Connection With Trial One, which had been filed on October 19, 2001, and (2) plaintiffs' Motion for Order to Show Cause Why Interior Alleged Contemnors and Their Counsel Should Not Be Held in Contempt for Destroying E-mail, which had been filed on March 20, 2002 (collectively, the "September 17 Referrals").*fn6

  In reference to the first motion, the Court directed the Master to "develop a

[237 F. Supp.2d 77]

      complete record with respect to these 39 non-party individuals. . . . [and] upon completing his review of these matters, issue a report and recommendation regarding whether each individual should be ordered to show cause why he or she should not be held in (civil or criminal) contempt of court, or whether other sanctions are appropriate against such individuals." Mem. Op. dated Sept. 17, 2002 at 255. In reference to plaintiffs' March 2002 motion, the Court ordered "that the plaintiffs' motion for order to show cause why Interior defendants and their counsel should not be held in contempt for destroying e-mail . . . shall be referred to Special Master Balaran. Special Master Balaran shall issue a report and recommendation on the issues raised in the plaintiffs' motion." Order dated Sept. 17, 2002 at 4. This latter referral stemmed from the Master's report and recommendation wherein he found that "defendant ha[d] ignored its duty to retain and preserve backup tapes of e-mail messages responsive to the Third Formal Request for Production of Documents" and noted that it would be "impossible to assess the impact that defendant's spoilation may have had on Phase I trial issues or what it may have on future proceedings which touch upon defendants' trust obligations. . . ." Op. dated July 27, 2001 at 17, 18.

  These referrals prompted movants to file their respective motions for recusal. Those motions articulate movants' concern that the Master and Monitor have engaged in secret, off-the-record communications with employees and officials of the Interior Department as well as with the Court, the substance of which they are not aware. See e.g. Babbitt Motion at 7 ("Though the substance of the communications cannot be known with certainty, because they were not recorded, the sheer number of contacts and length of the contacts suggest the Court Monitor performed much of his work for this case ex parte and in secret."); Shuey Motion at 11 ("Special Master Balaran's invoices detail extensive substantive ex parte contacts that Special Master Balaran has engaged in with a wide range of entities and persons."). Movants assert that the Monitor's time records reference a number of meetings with employees and officials from the Interior Department, as well as meetings with the Court, and note that the Monitor's meetings with the Court have been acknowledged by the Court. Movants also point to the invoices of the Master reflecting time expended during meetings with the Court, with Special Trustee Tom Slonaker, with the former Chief Information Officer for the Bureau of Indian Affairs, and with a number of former Interior Department employees.

  Beyond demanding the recusal of the Master and Monitor from any and all proceedings concerning the September 17 referrals, movants urge the Court to recuse itself from these proceedings pursuant to 28 U.S.C. § 455(a) and (b)(1).*fn7 Movants argue that although the communications between the Court and its special masters were "not improper in the context of the

[237 F. Supp.2d 78]

      underlying litigation," for the purposes of the underlying contempt proceedings, the Master and the Monitor "furnished the Court with extrajudicial knowledge" about the current litigation, mandating the recusal of all three. Babbitt Motion at 18. In the alternative, movants seek to conduct discovery upon the Master and Monitor to ascertain the substance of these communications.

  As demonstrated below, movants' attempt to recuse the Master, the Monitor and this Court from officiating in the September 17 referrals on the basis of alleged ex parte communications is without merit. Movants have misconstrued the scope of Court's referral of the contempt allegations to the Master, misapplied the legal standards in this jurisdiction and misstated the facts concerning the nature of the contacts among the Master, Interior employees, the Monitor, and the Court. As further discussed below, the Master and Monitor have conducted their activities and acquitted their responsibilities well within applicable legal and ethical bounds. They have neither received nor used ex parte communications in a manner that would undermine the ability of the Master to investigate the underlying allegations in an unbiased manner or the ability of the Court to render a fair adjudication. In other words, movants have failed to meet their burden for disqualifying the Master, the Monitor, or this Court in conjunction with the contempt allegations raised by plaintiffs.

  II. MOTION TO DISQUALIFY THE SPECIAL MASTER

  A. Standard of Review

  The discretion of this Court in considering the sufficiency of a motion to remove a judicial officer pursuant to 28 U.S.C. § 455(a) is broad. See James v. District of Columbia, 91 F. Supp.2d 44, 46-47 (D.D.C. 2002). Under federal law, a judge may be disqualified in two situations that are relevant to the instant motions: (1) where his or her "impartiality might reasonably be questioned," 28 U.S.C. § 455(a), and (2) where he or she possesses "a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." 28 U.S.C. § 455(b)(1). Whereas section 455(a) "sets out an objective standard for recusal, creating the so-called `appearance of justice' rule," DeLuca v. Long Island Lighting Co., 862 F.2d 427, 428 (2d Cir. 1988) (citation omitted), section 455(b)(1) has been interpreted to mean any "alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583 (1966).

  In confronting a challenge under either provision, the Court must begin its analysis of the allegations supporting such a request with a presumption against disqualification. See Tripp v. Executive Office of the President, 104 F. Supp.2d 30, 34 (D.D.C. 2000) ("Judges are presumed to be impartial."); McCann v. Communications Design Corp, 775 F. Supp. 1506, 1522 (D. Conn. 1991) ("The judge to whom a recusal motion is addressed is presumed to be impartial."). To overcome that presumption, movants must demonstrate by clear and convincing evidence that the

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      Master has conducted himself in a manner supporting his disqualification. See Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 634 (5th Cir. 1971) (clarifying that a party must produce clear and convincing evidence that a judge should be disqualified pursuant to section 455); cf. C & W Fish Co. v. Fox, 931 F.2d 1556, 1564-65 (D.C. Cir. 1991) (declaring that an agency administrator should be disqualified from rulemaking on account of prejudice only upon a "clear and convincing showing" of an "unalterably closed mind on matters critical to the disposition of the proceeding").

 
B. The Nature of the Court's September 17, 2002 Referral of the Contempt Allegations to the Special Master
  On September 17, 2002, the Court directed the Master to "develop a complete record with respect to these 39 non-party individuals. . . . [and] upon completing his review of these matters, issue a report and recommendation regarding whether each individual should be ordered to show cause why he or she should not be held in (civil or criminal) contempt of court, or whether other sanctions are appropriate against such individuals." Mem. Op. dated September 17, 2002 at 255. The Court further directed the Master to investigate the destruction of e-mail backup tapes and to file a report and recommendation with the Court. Order dated September 17, 2002 at 4.

  In so doing, the Court instructed the Master to review the allegations lodged by plaintiffs in their show cause motions dated October 19, 2001 and March 20, 2002, and to file a report and recommendation after investigating those claims. The Court did not ask the Master to adjudicate any of the issues raised in plaintiffs' contempt motions, and did not bestow on the Master any authority to render any decision as to whether contempt should lie. Rather, the Court directed the Master to assess whether the thirty-nine individuals had violated the Court's orders: (1) to retain trust records in the form of e-mail backup tapes and (2) to report candidly to the Court concerning the progress of trust reform initiatives. This direction was not without precedent: the Court had previously ordered the Master to assess whether the Interior Department was complying with its order to retain and protect IIM Records from destruction. See Order dated August 12, 1999 at 2. As discussed below, it is a permissible — indeed, necessary— function of special masters to conduct these types of investigations in order to ensure that defendants follow judicial directives, and it is expected that masters will engage in ex parte contacts in the course of such investigations. The September 17 Referrals to Special Master Balaran are no different.

  C. Analysis

  Movants maintain that Special Master Balaran must be disqualified from performing his investigatory functions pursuant to the September 17 Referrals because he occupies a position "functionally indistinguishable from that of a judge" and, as such, is proscribed from adjudicating matters regarding which he has been privy to information obtained outside the presence of counsel. Although movants' arguments seem compelling at first glance, they are incorrect as a matter of fact and as a matter of law.

 
1. An Institutional Master May Engage in Ex Parte Communications in the Discharge of His Obligations
  The original Order of Reference appointing the Master provided that "[t]he

[237 F. Supp.2d 80]

      special master has and shall exercise the power to regulate all proceedings in every hearing before the master and to do all acts and take all measures necessary or proper for the efficient performance of the master's duties, as set forth in this order." Order dated February 24, 1999 at 2 (emphasis added). On August 12, 1999, the Court signed a consent order drafted by both parties that authorized the Master "to oversee the Interior Department's retention and protection from destruction of IIM Records through, among other things, on-site visits to any location where IIM Records are not being protected from destruction or threatened destruction, he may recommend to the Department that it take reasonable steps to protect IIM Records found to be in jeopardy of destruction. He may also recommend to the Court such remedial action as he deems appropriate pursuant to Rule 53, Federal Rules of Civil Procedure." Order dated August 12, 1999 Order at 2.

  While the initial order of reference was designed to appoint a special master for the dual purpose of resolving discovery disputes and ensuring compliance with the Court's discovery orders in this regard,*fn8 the August 12 Order focused more specifically on "the need for [a] special master[] . . . in the context of institutional reform litigation, specifically during its remedial states, i.e., efforts to mend constitutional and statutory defects in the structures and practices of [an] institution[]." Special Project. The Remedial Process in Institutional Reform Litigation, 78 COLUM. L. REV. 784, 788 (1978). It is well established that in such instances, "special masters play an essential role, providing a judicial presence at the institution while freeing the judge to attend to other matters." Note, Rule 53. Inherent Powers, and Institutional Reform, 66 N.Y.U.L. REV. 800, 820 (1991). See also Ruiz v. Estelle, 503 F. Supp. 1265, 1389 (S.D. Tex. 1980) ("Supervision and monitoring of the defendants' effectuation of the decree to be entered in this civil action will require the appointment of one or more special masters . . . . [because] [t]he court does not have the resources necessary effectively to superintend the day-to-day details of the execution of the program to be set out in the decree."), aff'd in part. rev'd in part, 679 F.2d 1115 (5th Cir. 1982).

  Although Rule 53(d)(1) of the Federal Rules of Civil Procedure permits a special master to proceed ex parte only where necessary to provide notice when "a party fails to appear at the time and place appointed," courts have acknowledged the need for special masters serving in cases involving institutional reform to engage in ex parte contacts with both parties and counsel. See, e.g., Alberti v. Klevenhagen, 660 F. Supp. 605, 609 (S.D. Tex. 1987) (authorizing communicat[ions] with counsel for the parties from time to time in his discretion (including ex parte) concerning any matters as to which the Fact Finding Special Master deems such communications to be appropriate in understanding the issues and performing his duties as a Master."). In the instant case, defendants contemplated that such off-the-record communications would take place. See July 12, 2000 Mem. to Bureau of Indian Affairs Employees from Assistant Secretary for Indian Affairs Kevin Gover ("[P]lease admit Mr. Balaran to all areas within your control that contain IIM records and provide him with all necessary cooperation and courtesy attendant to the exercise of his authority under the Court's orders."); March 2, 2001 Mem. from Deputy Commissioner of Indian Affairs Sharon

[237 F. Supp.2d 81]

      Blackwell (same); see also, February 23, 2001 Letter from Richard L. Gregg, Commissioner, Financial Management Service and Van Zeck, Commissioner, Bureau of Public Debt to All Federal Reserve Banks and Branches (requesting that "senior Bank or Branch records officer[s] meet with Special Master Balaran and any officials accompanying him and extend to him and those with him every courtesy").

  It has also been a long-established practice for special masters to conduct confidential interviews in the course of their capacity of ensuring compliance with the court's decrees. See Thompson v. Enomoto, 815 F.2d 1323, 1326 n. 7 (9th Cir. 1987) (permitting the special master to "interview, on a confidential basis or otherwise, any person, including any correctional staff member or inmate, affected by the Consent Decree"); National Org. for Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 539 (9th Cir. 1987) (authorizing the special master to "interview, on a confidential basis or otherwise, any CAMP director, supervisor, or team member, or any person assisting in the implementation of the CAMP program"); Ruiz v. Estelle, 679 F.2d 1115, 1170 ("The Special Master may conduct confidential interviews and meetings at the institution to which they are confined with any prisoner or group of prisoners under the jurisdiction of the Texas Department of Corrections."), amended in part, vacated in part, 688 F.2d 266 (5th Cir. 1982); Reed v. Cleveland Bd. of Educ., 607 F.2d 737, 741 (6th Cir. 1979) (granting the special master "free access" to all employees and staff of defendant school boards); Alberti, 660 F. Supp. at 610 (authorizing the special master "to conduct unimpeded confidential interviews with any County employee possessing relevant information, any member of the Sheriff's staff or any inmate. They shall have the unrestricted right to tape-record any interview, and shall have the right to attend any institutional meetings or proceedings . . ."); Young v. Pierce, 640 F. Supp. 1476, 1489 (E.D. Tex. 1986) (noting that the special master had been granted plenary authority to interview employees and staff of defendant federal agency), vacated on other grounds, 822 F.2d [368 (5th Cir. 1987); Toussaint v. McCarthy, 597 F. Supp. 1388, 1420 (N.D. Cal. 1984) (authorizing the special master to interview confidentially anyone affected by the court's permanent injunction, including correctional staff members and inmates), aff'd in part, rev'd in part, vacated in part, 801 F.2d 1080 (9th Cir. 1986). Perhaps the most cogent explanation of the need for these off-the-record communications was provided by Chief Judge Posner who, in responding to a challenge of "procedural irregularities, in particular the fact that the master engaged in ex parte communications with the plaintiffs lawyers," explained: "[t]he reason is practical, and is connected once again with the managerial character of institutional reform litigation in the remedial phase. The master is not a judge, and the judicializing of his role would slow him down and thus further protract this litigation, already in its tenth year." People Who Care v. Rockford Bd. of Educ., School Dist. No. 205, 171 F.3d 1083, 1088 (7th Cir. 1999).*fn9 In accordance with these prerogatives — and with the Interior Department's explicit acknowledgment of the Master's authority to conduct unsupervised visits to all locations within the control of the Department of the Interior which house trust data — the Master has engaged in numerous ex parte

[237 F. Supp.2d 82]

      confidential interviews with Interior and Treasury Department employees.

  Any concern expressed by movants that the Master's ex parte contacts might affect his ability to fairly adjudicate the issues raised by the September 17 Referrals is therefore nonsensical. Their arguments misconstrue the very nature of the Court's September 17 Referrals, which are manifestly not directives to adjudicate, or to render decisions upon, the ultimate issues involved. Instead, these referrals issued for the same reason that the judges in the above-mentioned cases, recognizing the need to utilize the services of special masters to monitor compliance with their orders, issued similar referrals. The sheer volume of the issues raised by plaintiffs necessitate that plaintiffs file bills of particulars and that a trusted special master be dispatched to report on whether movants have complied with the orders that led to the contempt findings against the Secretary of the Interior and the Assistant Secretary for Indian Affairs, and whether they have violated its orders to preserve and retain individual Indian trust data.

 
B. A Special Master Is Functionally Distinguishable From a Judge in Several Critical Aspects.
  An assignment to investigate compliance with judicial directives does not automatically vest a special master with the authority of an Article III judge. For although Article III judges may render dispositions on contested substantive issues, the ability to make such determinations lies beyond the authority that may properly be referred to special masters. See In re Bituminous Coal Operators' Ass'n Inc., 949 F.2d 1165, 1169 (D.C. Cir. 1991) ("[I]t is the function of the district judge, in a non-jury civil case, to decide dispositive issues of fact and law genuinely disputed by the parties. The judge may not impose on the parties, over the objection of at least one of them, a magistrate or master as `a surrogate judge' to try the controversy and determine liability."); In re United States, 816 F.2d 1083, 1092 (6th Cir. 1987) (finding that the "reference of dispositive motions to the special master will deprive the parties of their right to have the basic issues heard by a district judge").

  However, in the instant proceedings, the Master has not been asked to decide whether a finding of civil or criminal contempt should lie. Nor has he been directed to resolve any dispute central to the merits of the underlying litigation. Instead, the Master has been charged with (1) investigating whether officials of the Interior Department, and their counsel, violated Court orders and (2) issuing a report and recommendation that sets forth his findings as to whether there is sufficient evidence that would merit further oral or evidentiary hearings on plaintiffs' motions. The Master's ability to make use of ex parte contacts in performing these functions ...


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