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COBELL v. NORTON

May 21, 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 defendants' motion for reconsideration of the Court's March 5, 2003 order directing payment to Special Master Alan Balaran [1909-1], which was filed on March 19, 2003. Upon consideration of defendants' motion, plaintiffs' brief in opposition thereto, defendants' reply brief, and the applicable law in this case, the Court finds that defendants' motion should be denied.

I. BACKGROUND

  On February 22, 1999, this Court adjudged Interior Secretary Bruce Babbitt, Treasury Secretary Robert Rubin, and Interior Assistant Secretary for 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. The order of appointment specified that Special Master Balaran "shall be compensated at the prevailing market rate for his services and shall be reimbursed for all expenses incurred in connection with the appointment. The defendants shall bear these costs." Order dated February 24, 1999, at 1.

  On February 13, 2003, the 108th Congress hastily approved a consolidated appropriations bill for the fiscal year ending September 30, 2003, which the president signed into law on February 20, 2003. Contemporaneous news accounts reported that, owing to the haste with which the bill was passed, few Members realized the implications of the three-thousand-page bill that they were signing into law. David Obey (D-Wis.), the ranking Democratic member of the House Appropriations Committee, was quoted as stating: "Ninety percent of this package has never been debated on the floor before. All of the money that's in the bill is the result of a backroom deal." Jim VandeHei & Juliet Eilperin, Record Appropriations Bill Is Approved, WASH. POST, Feb. 14, 2003, at A5.*fn1

  Section 132 of the appropriations act provides:
None of the funds in this or any other Act for the Department of the Interior or the Department of Justice can be used to compensate the Special Master and the Special Master-Monitor, and all variations thereto, appointed by the United States District Court for the District of Columbia in the Cobell v. Norton

[263 F. Supp.2d 64]

      litigation at an annual rate that exceeds 200 percent of the highest Senior Executive Service rate of pay for the Washington-Baltimore locality pay area. Consolidated Appropriations Resolution, 2003, Pub.L. No. 108-7, 117 Stat. 11 (Feb. 20, 2003).

  Section 134 of the act provides:
The Secretary of the Interior may use discretionary funds to pay private attorneys fees and costs for employees and former employees of the Department of the Interior reasonably incurred in connection with Cobell v. Norton to the extent that such fees and costs are not paid by the Department of Justice or by private insurance. In no case shall the Secretary make payments under this section that would result in payment of hourly fees in excess of the highest hourly rate approved by the District Court for the District of Columbia for counsel in Cobell v. Norton.
Id.

  On March 19, 2003, defendants moved for reconsideration of this Court's March 5, 2003 order directing them to compensate Special Master Balaran in the amount of $38,623.77. Plaintiffs filed their opposition brief on April 2, and defendants submitted a brief in reply on April 14.

  II. LEGAL ANALYSIS

  "District courts have broad discretion to grant or deny a motion for reconsideration. The court may invoke its discretion and deny such a motion unless it finds an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice." Cobell v. Norton, 226 F. Supp.2d 175, 177 (D.D.C. 2002) (citations omitted). Defendants assert that section 132 of the Consolidated Appropriations Resolution represents an intervening change in controlling law that entitles them to a reconsideration of the Court's order directing them to pay Special Master Balaran for services that he rendered during the month of February 2003. Defendants are incorrect. Section 132 prohibits only the use of "funds in this or any other Act for the Department of the Interior or the Department of Justice" to compensate the Special Master. However, the order appointing the Special Master clearly states that "[t]he defendants [in this action] shall bear" all expenses incurred in connection with the Special Master's appointment. Section 132 places no restriction upon funds appropriated for the use of the Department of the Treasury, a named defendant in the present action. Therefore, if the Department of the Interior refuses to bear the expenses incurred by the Special Master, the Treasury Department will foot the bill for the services rendered by the Special Master.

  However, defendants claim that the Treasury Department cannot be ordered to comply with the plain language of the Special Master's appointment order, and advance two arguments in support of this claim. Their first argument, that the words "funds in this or any other Act for the Department of the Interior or the Department of Justice" somehow also includes funds appropriated for the use of the Department of the Treasury, is patently absurd. Section 132 makes no mention of ...


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