The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
This matter comes before the Court on plaintiffs' motion for partial summary judgment as to the non-settlement of accounts and defendants' failure to perform the accounting, in whole or in part, ordered by this Court on December 21, 1999 [1777-1], which was filed on January 31, 2003. Upon consideration of plaintiffs' motion, defendants' opposition thereto, plaintiffs' reply brief, and the applicable law in this case, the Court finds that plaintiffs' motion should be granted in part and denied in part.
I. LEGAL STANDARD FOR SUMMARY JUDGMENT
Rule 56(c) of the Federal Rules of Civil Procedure provides, in relevant part, that summary judgment "shall be entered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Supreme Court explicated the words of this Rule in Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986):
In our view, the plain language of Rule 56(c) mandates
the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails
to make a showing sufficient to establish the
existence of an element essential to that party's
case, and on which that party will bear the burden of
proof at trial. In such a situation, there can be "no
genuine issue as to any material fact," since a
complete failure of proof concerning an essential
element of the nonmoving party's case necessarily
renders all other facts immaterial. The moving party
is "entitled to judgment as a matter of law" because
the nonmoving party has failed to make a sufficient
showing on an essential element of her case with
respect to which she has the burden of proof.
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242
, 250 (1986), the Supreme Court set forth the task of a court deciding a motion for summary judgment:
There is no requirement that the trial judge make
findings of fact. The inquiry performed is the
threshold inquiry of determining whether there is the
need for a trial — whether, in other words, there are
any genuine factual issues that properly can be
resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.
This same case made clear that "summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. On the issue of whether a dispute about a material fact is genuine, the Court has observed that
[w]hen the moving party has carried its burden under
Rule 56(c), its opponent must do more than simply show
that there is some metaphysical doubt as to the
material facts. In the language of the Rule, the
nonmoving party must come forward with "specific facts
showing that there is a genuine issue for trial."
Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving
party, there is no "genuine issue for trial.
Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574
, 586-87 (1986) (footnote and internal citations omitted) (emphasis in original).
Although the Justices in Celotex disagreed as to how the standard for summary judgment should have been applied to the facts of the case, they agreed on the nature of the burdens of proof involved in a summary judgment motion. The dissenting opinion authored by Justice Brennan summarized the applicable standards:
The burden of establishing the nonexistence of a
"genuine issue" is on the party moving for summary
judgment. This burden has two distinct components: an
initial burden of production, which shifts to the
nonmoving party if satisfied by the moving party; and
an ultimate burden of persuasion, which always remains
on the moving party. The court need not decide whether
the moving party has satisfied its ultimate burden of
persuasion unless and until the Court finds that the
moving party has discharged its initial burden of
production. The burden of production imposed by Rule
56 requires the moving party to make a prima facie
showing that it is entitled to summary judgment. The
manner in which this showing can be made depends upon
which party will bear the burden of persuasion on the
challenged claim at trial. If the moving party will
bear the burden of persuasion at trial, that party
must support its motion with credible evidence — using
any of the materials specified in Rule 56(c) — that
would entitle it to a directed verdict if not
controverted at trial. Such an affirmative showing
shifts the burden of production to the party opposing
the motion and requires that party either to produce
evidentiary materials that demonstrate the existence
of a "genuine issue" for trial or to submit an
affidavit requesting additional time for discovery. If
the burden of persuasion at trial would be on the
non-moving party, the party moving for summary
judgment may satisfy Rule 56's burden of production in
either of two ways. First, the moving party may submit
affirmative evidence that negates an essential element
of the nonmoving party's claim. Second, the moving
party may demonstrate to the Court that the nonmoving
party's evidence is insufficient to establish an
essential element of the nonmoving party's claim. If
the nonmoving party cannot muster sufficient evidence
to make out its claim, a trial would be useless and
the moving party is entitled to summary judgment as a
matter of law.
Celotex, 477 U.S. at 330-31 (Brennan, J., dissenting) (emphasis in original) (footnotes and internal citations omitted).
II. LEGAL ANALYSIS OF PLAINTIFFS' MOTION
Plaintiffs have moved for partial summary judgment on the issue of whether, to date, defendants have performed any accounting of the individual Indian money ("IIM") trust or any beneficiary's interest therein. Before turning to the merits of plaintiffs' motion, however, the Court must examine the threshold issues of whether the facts presented are material and whether plaintiffs' motion is ripe for consideration by this Court.
A. Materiality and Ripeness
In its September 17, 2002 memorandum opinion, the Court explained that it would hold a Phase 1.5 trial to consider whether "further injunctive relief with respect to the fixing the system portion of the case and the historical accounting project" was warranted. Cobell v. Norton, 226 F. Supp.2d 1, 148 (D.D.C. 2002). It further explained that "the Phase 1.5 trial will encompass additional remedies with respect to the fixing the system portion of the case, and approving an approach to conducting a historical accounting of the IIM trust accounts." Id. The Court ordered both parties to submit motions for summary judgment "with respect to the Phase 1.5 trial" no later than January 31, 2003. Id. at 149. Defendants presently allege that plaintiffs' motion for partial summary judgment "has absolutely nothing to do with the Phase 1.5 trial" because the issue of whether the General Accounting Office (GAO) performed any settlement of IIM accounts is not discussed in the plans filed by the parties on January 6, 2003. As to what constitute "material facts" for summary judgment purposes, the Supreme Court has stated that "the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. On September 17, 2002, the Court ordered defendants to file a plan for conducting a historical accounting of the IIM trust accounts. Therefore, the issue of whether any settlement of IIM accounts has occurred is certainly a material issue in the Phase 1.5 trial. The fact that defendants' plan does not discuss the issue of whether the GAO settled the IIM accounts does not render that issue immaterial. Rather, it simply means that plaintiffs, not defendants, possess the burden of persuasion at trial on the issue of whether or not the GAO ever settled the accounts. The implications of this burden will be explained below.
Defendants further argue that plaintiffs' motion raises issues that are not ripe for review because "it is entirely speculative at this time whether, in performing the accounting, Interior will rely on any GAO documents regarding these settlements, the issue of whether GAO settled accounts and of the proper use to be made of documents concerning such settlements is not ripe for decision." As explained above, however, the scope of the Phase 1.5 trial includes both the determination of additional remedies with respect to the fixing the system portion of this case, and the approval of an approach to conducting a historical accounting of the IIM accounts. Therefore, the issue of whether any settlement of these accounts has occurred is certainly ripe for determination by the Court. Accordingly, because the facts alleged not to be in dispute are material, and the issue of whether they are uncontroverted is ripe for decision by the Court, the Court will turn to the issue of whether plaintiffs have established that there is no genuine issue as to each of these facts.
B. The Evidence Submitted by Plaintiffs
As stated above, plaintiffs possess the burden of persuasion at trial on the issue of whether the GAO ever settled the IIM accounts. Therefore, plaintiffs must provide support on this issue in the form of credible evidence that would entitle them to a directed verdict at trial, if the evidence were not controverted. If they provide such evidence, they have satisfied their burden of production (although, as noted above, the burden of persuasion always remains with them). The burden of production then shifts to defendants, who must supply credible evidence demonstrating the existence of a genuine issue for trial on the facts alleged by plaintiffs. If defendants fail to provide such evidence, they have failed to satisfy their burden of production, and the Court may conclude that plaintiffs have prevailed on their burden of persuasion, entitling them to partial summary judgment.
The evidence that plaintiffs have submitted consists of two letters from GAO senior officials as the foundation for their motion for partial summary judgment. It will be useful to provide quotes from these letters as some length, in order to avoid the need for redundant quotations in conjunction with each allegedly undisputed factual statement.
The first letter, which is dated August 27, 1999, was sent by Gene Dodaro, principal assistant to the Comptroller General, to John Berry, Assistant Interior Secretary — Policy Management and Budget. In this letter, Dodaro stated that he was responding to Berry's letter of June 18, 1999 seeking the assistance of the GAO in evaluating a series of records that Berry believed "may contain Indian accounting records subject to disclosure in the Cobell litigation," and requesting any "historical information about the nature of any accounting regarding individual Indian accounts that was undertaken by GAO in the past, including the standards and procedures that GAO may have employed." Dodaro responded:
We have conferred with GAO's historian and with
officials and staff members in GAO's Accounting and
Information Management Division, the unit that has the
most recent knowledge of the Bureau of Indian Affairs
(BIA) accounting operations. Unfortunately, no one
currently employed at GAO participated in audits of
the IIM accounts, which took place at various times
from the 1920's through the 1950's. Given the number
of years that have passed, we have no direct knowledge
about the nature of any accounting regarding
individual Indian accounts previously undertaken by
GAO, or the standards or procedures used. Our research
has revealed a small amount of historical data on
GAO's involvement with Indian accounts or claims. For
example, GAO's annual report for 1931 listed
individual Indian monies as part of a summary of its
audit work with quasi-public funds. In at least one
instance, in 1928, Congress passed a specific
authorization requesting GAO to audit the fiscal
condition of Indian tribes as of June 30, 1928. GAO's
report to Congress, issued in February 1929, contains
a section on IIM accounts. In addition, we have
located GAO audit reports on Indian moneys for the
years of 1952 and 1955. We understand that the
Department of the Interior has copies of the reports
for 1929, 1952, and 1955. . . . Over the past several
weeks, GAO staff have had numerous telephone
conversations with members of your staff and attorneys
from the Justice Department, as well as a meeting with
Treasury officials, to answer questions and share
information. In response to questions, we have
explained that our records do not establish that GAO
conducted a "final" GAO comprehensive audit of IIM
accounts, nor do they establish any regular practice
of auditing IIM accounts.
Pls.' Mot. for Partial Summ. J. as to the Non-Settlement of Accounts and Defs.' Failure to Perform the Accounting, in Whole or in Part, Ordered by this Court on December 21, 1999 ("Pls.' Mot."), Ex. 1.
The second letter is from Anthony Gamboa, GAO general counsel, to Bert Edwards, the executive director of Interior's Official of Historical Trust Accounting, and is dated April 19, 2002. Gamboa explained that he was responding to two letters from Edwards requesting that the GAO "confirm [Edwards's] understanding that GAO, between 1921 and 1950, settled the accounts of the IIM Trust ...