United States District Court for the District of Columbia
March 15, 2004.
ELOUISE PEPION COBELL, et al., Plaintiffs,
GALE NORTON, et al., Defendants
The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge
MEMORANDUM AND ORDER
The Court has before it the task of deciding the Department of the
Interior's May 29, 2003 Motion to Disqualify ("Motion to Disqualify")
Special Master Balaran . Interior Defendants ask the Court to
recuse the Special Master from further participation in this case on the
grounds that the Master retained the services of a former Interior
contractor to assist with his investigation into allegations that
Interior filed a false and misleading Eighth Quarterly Report. Interior
is not joined by its co-defendant, the Department of the Treasury.
The Court, for the reasons set forth below, finds Interior Defendants'
Motion to Disqualify devoid of merit and concludes that the Special
Master engaged in no untoward conduct and demonstrated no bias or
On August 30, 2002, Native American Indian Distributors, Inc. ("NAID")
filed a Motion for a Temporary Restraining Order, Preliminary and
Permanent Injunctive Relief, protesting Interior's attempt "to punish
NAID for presenting accurate and unbiased information" for inclusion in
the Eighth Quarterly Report to the Court. The Court denied NAID's motion
September 24, 2002. In an effort "to ascertain," however, "whether
there is any validity to NAID's contention," the Court, on November 5,
2002, ordered Special Master Balaran "to investigate whether Interior
engaged in any  concealment" in the creation of the Eighth Quarterly
Report. Order dated Nov. 5, 2002 at 1.*fn1
The Special Master conducted his investigation and, on April 21, 2003,
filed the Interim Report of the Special Master Regarding the Filing of
Interior's Eighth Quarterly Report ("Interim Report"). The Interim Report
set out the following "preliminary" findings:
Interior withheld material information from the
Court in the Status Report to the Court Number
Eight, January 16, 2002 ("Final January Eighth
Quarterly Report") and that it did so to conceal
infirmities in the TAAMS system and misleading and
inaccurate representations in previous quarterly
submissions. . . . [N] either the Final January
Eighth Quarterly Report, nor the Interim Report
upon which it relied, was designed to provide the
Court with a candid assessment of the TAAMS
effort. Rather, they were contrived to present a
gilded portrait of the TAAMS system and avoid
adverse consequences arising from contempt
proceedings pending at the time.
Interim Report at 2.
One month after the Master issued the Interim Report, Interior filed
its Motion to Disqualify on the grounds that "the Special Master
prepared the Report with the direct assistance of a former NAID
employee, Mike S. Smith, one of the principal NAID witnesses to the
events described in the Interim Report." Motion to Disqualify at 2, 3
and n.2. Based solely on what it
characterizes as "extraordinary" conduct, id., Interior
urges the Court not only to recuse Special Master Balaran from further
participation in the investigation into the Eighth Quarterly Report and
accord his preliminary findings no weight, but to bar him "from serving
in any further capacity in this case." Id. at 2, n.2.
As discussed more fully below, the Court finds that: (1) no fully
informed objective observer could reasonably impute bias or prejudice to
the Special Master for his conduct during the Eighth Quarterly Report
investigation; (2) the Master cannot be recused pursuant to
28 U.S.C. § 455(a) and (b)(1) since his knowledge of disputed evidentiary
facts was not gained extrajudicially; (3) Interior's delay in seeking
the Master's disqualification constitutes a waiver; and (4) Interior has
failed to meet its burden of proving "bias in fact" pursuant to §
The Court will briefly recapitulate the facts underlying this
II. THE SPECIAL MASTER'S INVESTIGATION
A. Production of the "Administrative Record"
On October 7, 2002, the Special Master informed Interior that he was
preparing to investigate NAID's allegations that the Department of the
Interior concealed and withheld pertinent information from the Court in
the Eighth Quarterly Report. See Letter from Special Master
Alan L. Balaran to Justice Attorney Peter B. Miller (Oct. 7, 2002). To
facilitate that investigation, the Master requested that Interior
produce, among other documents, the administrative records for the Sixth
and Seventh Quarterly Reports and the November 2002 draft of the Eighth
Quarterly Report. The Special Master specified that the documents he
sought were located in room 5141 of the Main Interior Building in a
four-drawer filing cabinet; three-ring binders, and several marked and
labeled boxes. Id.
Interior responded two days later, requesting "a copy of the order
regarding this matter to avoid any misunderstanding regarding the scope
of your authority from the Court to conduct such an investigation."
Letter from Justice Attorney Phil Seligman to Special Master Alan L.
Balaran (Oct. 9, 2002). The next day, Mr. Seligman transmitted another
letter to the Master indicating that the agency had "initiated the
effort to secure the documents requested in your letter of October 7,
2002," but wished first "to examine an order from the Court identifying
the nature of, and authority for, your investigation. . . ." Letter from
Justice Attorney Phil Seligman to Special Master Alan L. Balaran
(Oct. 10, 2002).
On November 5, 2002, the Court issued an Order of Reference directing
the Special Master to investigate whether Interior withheld or concealed
information in its Eighth Quarterly Report to the Court, and, "at the
conclusion of his investigation, . . . [to] file with the Court, with
copies to defendants' and plaintiffs' counsel, his report and
recommendation detailing his findings and conclusions." Order dated Nov.
5 at 1-2.
When Interior did not produce the requested documents by January 2003,
the Special Master inquired into the status of the October 7, 2002
request for production. See Attachments to Interior
Defendants' Objections to "Interim" Report of the Special Master
Regarding the Filing of Interior's Eighth Quarterly Report (May 4,
2003). The agency responded on January 29, 2003, acknowledging that,
"[o]n November 5, 2002, the Court entered an order authorizing your
investigation into the allegations made by NAID" and assuring the
Special Master that it was "willing to produce . . . subject of course
to any necessary privilege assertions, any documents that . . . would
assist in [the] investigation." Letter from Justice Attorney Phil
Seligman to Special Master Alan L. Balaran (Jan. 29, 2003) at 1, 2.
Two days later, Interior reassured the Special Master that,
[a]s requested, Interior will copy the entire
collection of documents previously identified by
you and your assistant Shana Greatman, as being
possibly related to your investigation into the
allegations made by a representative of an
Interior contractor, Native American Industrial
Distributors. Interior will conduct a privilege
review of the documents in the collection and
produce non-privileged documents, accompanied by
a privilege log, on February 14, 2003.
Letter from Justice Attorney Phil Seligman to Special Master Alan L.
Balaran (Jan. 31, 2003).
Interior did not produce the requested documents as promised. Instead
the Department of Justice invited the Special Master to meet and confer
with then-former NAID employee Mike Smith in room 5141 of the Main
Interior Building on February 27, 2003 to jointly identify those
documents responsive to the Special Master's request.
On April 4, 2003, Interior provided "[t]he first of a projected series
of productions," consisting of approximately 2,310 documents "responsive
to [the Special Master's] request of October 7, 2002 for documents
related to [his] investigation of claims made by NAID." See
Letter from Phil Seligman to Special Master Balaran (Apr. 4, 2003)
(setting out Bates Numbers for the documents provided). This proved to
be Interior's only production until June 27, 2003, when, at the Master's
insistence, the Department of Justice turned over 12 boxes of documents
responsive to the October 7, 2002 request. See Letter from
Special Master Alan L. Balaran to Justice Attorney Phil Seligman at 1
(June 24, 2003) ("I am  directing you to produce these records before
the end of the month").
Justice attached the following correspondence with its production:
Enclosed are documents responsive to your request
of October 7, 2002 for documents related to your
investigation of claims made
by NAID, as authorized in the November 5, 2002
Order of the Court . . . A privilege log for those
documents for which Interior wishes to assert
privilege will be provided to you later . . . In the
meantime . . . we ask that Interior be given an
opportunity to assert a claim of privilege before
you disclose the information in any document.
Letter from Justice Attorney Phil Seligman to Special Master Alan L.
Balaran (June 27, 2003).
The Special Master responded that same day:
Thank you for producing the NAID documents to my
office. In response to your concern that I not
share these documents with any person affiliated
with NAID, please be advised that I have no
intention of doing so. Had this production, the
request for which was first initiated by letter to
Peter Miller dated October 7, 2002, been provided
in a more timely fashion, it would not have been
necessary to retain the services of an ex-NAID
employee and secure the documents used in the
Interim Report from outside sources. Your
production this date obviates the need for such
Letter from Special Master Alan L. Balaran to Justice Attorney Phil
Seligman (June 27, 2003).
B. The March and April 2003 Monthly Reports of the Special
On April 1, 2003, the Special Master filed the Monthly Report of the
Special Master, attaching his invoice for services rendered during March
2003. That invoice included 4 entries for work performed by "MSS" (Mike
S. Smith) during the month of February and 61 entries for work performed
during March 2003. The descriptions accompanying those entries reveal
that, between February 27, 2003 and March 31, 2003, MSS reviewed Eighth
Quarterly Report ("8QR") documents, chronology reports, the TAAMS
template, the Records Management Template, and the probate backlog
template, and he also compiled appraisal information. One of the entries
reveals that, on February 27, 2003, MSS "Reviewed files in DOI regarding
corresponding entry by the Special Master ("ALB") attached to the
February Monthly Report of the Special Master (Mar. 3, 2002), indicates
that, on February 27, 2003, the Master "[m]e[t] at Interior to review
NAID documents." Both entries reflect that MSS and the Special Master
each spent exactly one hour reviewing files and NAID documents at
Interior. Invoices attached to the March 2003 Monthly Report of the
Special Master also reveal that, in March, the Special Master spent no
fewer than eight days drafting the Interim Report, one day "reviewing
NAID documents" (3/21/03) and another "[r]eviewing NAID memoranda and
e-mails relating to creation of 8QR" (3/26/03). Another time entry
indicates that, on March 4, 2003, Special Master assistant Edward Volz
("EKV") conducted a "[m]eeting with Mike Smith regarding work
Interior filed no objections to the March 2003 monthly report, did not
ask the Special Master to identify "MSS," did not question the Special
Master's possession of NAID "documents, memoranda and e-mails," and did
not question the content of the time entries of MSS and the Special
Master that indicated a full months work evaluating documents Interior
had not yet provided.
On April 21, 2003, the Special Master submitted his Interim Report to
the Court and the parties. Footnote 1 of the Interim Report explains
that the Master labeled the report "Interim" as opposed to "Final"
because, at the time the report issued, he had "not  received the
bulk of the discovery he has repeatedly requested, [and was]
constrained to utilize documentation obtained outside of normal
channels and with which the parties may have no familiarity." Interim
Report at 1, n. 1. The Special Master assured the parties and the Court
that, "following receipt of
comments by the parties, receipt of documents already requested,
and oral testimony, he [would] issue a final report." Id.
On May 6, 2003, the Special Master filed the April Monthly Report of
the Special Master describing services he rendered in April 2003. The
invoices attached to the April report contain 14 time entries for
MSS two of which indicate that, on April 3 and 4, 2003, he
"Draft[ed] 8th QR analysis."
Interior filed its objections to the Interim Report on May 4, 2003.
Four days later, on May 8, 2003, Interior filed its Motion in Limine to
Exclude Testimony of Plaintiffs' Witness Michael S. Smith, voicing, for
the first time, its concern over the Special Master's retention of Mr.
Smith. In that motion, Interior argued that "[t]he Special Master did
not inform Interior before he hired Mike Smith, a witness to the events
being investigated, to assist him in his investigation of NAID's
claims." Id. at 3. The agency further insisted that "Mr. Smith
did more than just assist in the investigation. According to the
Special Master's billing information, Mr. Smith actually drafted
portions of the Interim Report." Id. In support, Interior
cited four of the time sheet entries filed in the Special Master's
March and April monthly reports the two mentioned above
(indicating that MSS "drafted 8QR analysis") and two attributable to
EKV (Edward Volz, the Special Master's assistant) (indicating that, on
April 15, 2003 Edward Volz "[a]ssisted the Special Master and Mike
Smith editing report on the 8th Quarterly Report" and, on April 16,
2003, "[a]ssisted Mike Smith editing and organizing materials for
report on the 8th Quarterly Report."). Id.
On May 13, 2003, Interior filed a Motion to Supplement its Objections
to the Interim Report of the Special Master Regarding the Filing of
Interior's Eighth Quarterly Report,
maintaining that, "[a]fter its Objections were filed, [it] learned,
based in part upon invoices submitted by the Special Master on May 6,
2003, the Special Master secretly hired one of the principal witnesses
to the events described in the Interim Report to assist with his
investigation and with the drafting of the Interim Report." On May 29,
2003, Interior filed its Motion to Disqualify.
On February 17, 2004, the Special Master filed his Motion for Leave to
File Special Master Balaran's Statement in Response to Interior
Defendants' Motion to Disqualify Him, which the Court granted the
following day and Interior responded to on March On March 8, 2004, the
Special Master filed his Consent to Interior Defendants' Motion to file
a Reply to His Statement, and his Motion for Leave to File a
Supplemental Statement which the Court granted on March 12, 2004.
III. GOVERNING LEGAL STANDARDS
Interior advances the argument that,
[t]he Special Master's contacts with Mr. Smith and
his decision to employ Mr. Smith would cause any
reasonable observer to question his impartiality
and demonstrate actual bias. A judicial officer
who purports neutrally to evaluate the conduct of
a defendant cannot conduct extensive ex
parte contacts with a complaining witness,
much less hire that person to help
prepare his report. And a Special Master who
prejudges a defendant in this fashion and then
stigmatizes it in a public report cannot properly
continue as judicial officer. Recusal is therefore
Motion to Disqualify at 2.
Before addressing the merits of Interior's claim, the Court notes
that, when confronted with a disqualification or recusal request, it
must begin its analysis 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"). This is because a judge, or in this instance, the
Special Master, is presumed qualified to hear a proceeding, Idaho
v. Freeman, 478 F. Supp. 33 (D. Idaho 1979), and must not be
disqualified under § 455 merely because a litigant equates an
adverse decision with a lack of impartiality. Idaho v. Freeman,
507 F. Supp. 706, 722 (D. Idaho 1981) (citing S.Rep.
No. 93-419, 93rd Cong., 1st Sess.1973, p. 5).
Interior, to overcome this presumption, must clearly and convincingly
demonstrate that Special Master conducted himself in a manner supporting
his disqualification. See Kinnear-Weed Corp. v. Humble
Oil & Ref. 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). Interior must also
demonstrate that the Special Master's prejudice is personal and arises
from extra-judicial matters. See Liteky v. United States,
510 U.S. 540 (1994) (recusal of judges for bias or prejudice under
28 U.S.C. § 455(a) and (b)(1) requires a showing that the impartiality
stemmed from an extrajudicial source).*fn2
The Court also notes that Interior misstates the standard governing
this Court's review. It is correct that judicial officers must be
disqualified pursuant to 28 U.S.C. § 455(a) from "any proceeding in
which his impartiality might reasonably be questioned." To sustain a
motion for judicial disqualification, however, requires more. It demands
that the judicial officer's impartiality "reasonably be questioned
by one fully apprised of the surrounding circumstances."
Cobell v. Norton, 334 F.3d 1128, 1143-44 (D.C. Cir. 2003)
(quoting 28 U.S.C. § 455(a)) (emphasis added). Stated
alternatively, recusal is an appropriate only if "an objective,
disinterested observer fully informed of the facts underlying the
grounds on which recusal was sought would entertain a significant doubt
that justice would be done in the case." Deluca v. Long Island
Lighting Co., 862 F.2d 427, 428-29 (2d Cir. 1988) (citing
Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985).
A necessary corollary to the objective "reasonable person" standard
inherent in 455(a) is that recusal not be based on frivolous,
speculative, or irrational grounds. See Hinman v. Rogers,
831 F.2d 937, 939-40 (10th Cir. 1987); United States v. Greenough,
782 F.2d 1556, 1558 (11th Cir. 1986); In re United States,
666 F.2d 690, 695 (1st Cir. 1981). On that score, a judge is duty bound not
to recuse when faced with meritless motions to do so. See Maier v.
Orr, 758 F.2d 1578, 1583 (Fed. Cir. 1985) ("Frivolous and improperly
based suggestions that a judge recuse should be firmly declined");
M.K. Metals, Inc. v. Nat'l Steel Corp., 593 F. Supp. 991,
993-94 (N.D. Ill. 1984) ("a judge once having drawn a case should not
recuse himself on an unsupported, irrational, or highly tenuous
This is the state of the law. Before applying it, however, "it is
critically important in a case of this kind to identify the facts that
might reasonably cause an objective observer to question [the judicial
officer's] impartiality." Liljeberg v. Health Services Acquisition
Corp., 486 U.S. 847, 865 (1988). The "facts" as presented by
Interior are: the Special Master engaged in ex parte
communications with Mr. Smith; the Special Master hired Mr. Smith to
assist him with the Eight Quarterly Report investigation; Mr. Smith's
interests were adversarial to the agency at the time he assisted the
Special Master; and Mr. Smith drafted the Interim Report. The Court will
address each in turn.
A. No Fully Informed Objective Observer Could Impute Bias or
Prejudice to the Special Master's Ex Parte
Communications with Mr. Smith.
Interior presses the argument that the Special Master's contacts with,
and decision to employ, Mr. Smith raise the specter of partiality. The
Court disagrees and finds that no fully informed objective observer
familiar with the legal and regulatory schema governing institutional
Special Masters, the history of this litigation, and the context in
which Mr. Smith and the Special Master interacted, would conclude
1. The Special Master's Authority to Conduct Ex Parte
Rule 53 grants special masters broad authority "to regulate all
proceedings in every hearing" and to "do all acts and take all measures
necessary or proper for the efficient performance of [their] duties."
Fed.R.Civ.P. 53. A careful reading of the rule reveals that the only
procedural requirement imposed on a special master requires that one who
conducts a hearing "make a record of the evidence offered and excluded
in the same manner and subject to
the same limitations as provided in the Federal Rules of Evidence
for a court sitting without a jury." Id.
Indeed, the history of Rule 53 supports an expansive interpretation of
a special master's authority to determine the appropriate procedures for
completing his assigned duties. Almost a century ago, former Equity
Rule 62 empowered the master to "regulate all the proceedings in every
hearing before him," and to "direct the mode in which the matters
requiring evidence shall be proved before him; and generally to do all
other acts, and direct all other inquiries and proceedings in the
matters before him." See Rules of Practice in Equity,
226 U.S. 628, 667 (1912). This grant of authority to "direct the mode"
accorded the special master discretion not only to determine the kind
of proof he required but also the manner in which he would receive it.
Former Equity Rule 65, entitled "Claimants Before Master Examinable by
Him," similarly established that the master was "at liberty to examine
any creditor or other person coming in to claim before him, either upon
written interrogatories or viva voce, or in both modes, as the
nature of the case [ ] appear[ed] to him to require." Id. at
668. Like Rule 62, this rule allowed the master to choose the "modes" of
accumulating evidence, thus explicitly rendering him exempt from the
procedural requirements imposed on district courts. See Cold Metal
Process Co. v. United Eng'g & Foundry Co., 92 F. Supp. 969,
970-71 (D. Pa. 1950) ("Following the practice under Equity Rule 62,
the master is given the power to regulate the proceedings before him
and take all measures necessary for the proper performance of his
duties under the order . . . [T]he court is generally loath to dictate to
the master how to conduct proceedings before him, since such
interference would tend to defeat the very purpose of reference")
(quoting Moore's Federal Practice, Vol. 3, at 3134, 3135).
These principles survive and speak with compelling application today.
Rule 53 grants special masters the same autonomy and discretionary
authority they enjoyed in equity. Indeed, at the time the Special Master
was consulting with Mr. Smith, the Supreme Court approved Revised
Rule 53 and codified the practice of utilizing institutional masters long
embraced by the courts. See Introduction to Advisory Committee
Notes on 2003 Amendments to Rule 53 (the Rule 53 revisions, while
"extensive," simply "reflect changing practices in using masters");
Advisory Committee Notes on Subdivision (a)(1) ("[t]he master's role in
enforcement may extend to investigation in ways that are quite unlike
the traditional role of judicial officers in an adversary system").
One of the "ways" institutional masters have traditionally
monitored compliance with court directives is through ex parte
communications. See, e.g., Alberti v. Klevenhagen,
660 F. Supp. 605, 609 (S.D. Tex. 1987) (masters could "communicate 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");
Thompson v. Enomoto, 815 F.2d 1323, 1326 n.7 (9th Cir. 1987)
(monitor may "interview, on a confidential basis or otherwise, any
person including any correctional staff member or inmate, affected
by the Consent Decree").
These are the principles that have guided this Court since it first
appointed the Special Master in February 1999.
2. The Court's Orders of Reference Authorizing the Special
Master to Engage in Ex Parte Communications.
On February 22 and 24, 1999, the Court empowered the Special Master 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 Feb. 24, 1999 at 2. With the consent of the parties, on August 12,
1999, the Court expanded the Special Master's duties to include an
institutional component, namely, the oversight of Interior's document
retention practices "through, among other things, on-site visits to any
location where IIM Records are not being protected from destruction or
threatened destruction." Order dated Aug. 12, 1999 at 2.
The Court's delineation of the Special Master's authority was clear:
"the Master could engage in ex parte communications in the
discharge of his obligations." Cobell v. Norton,
237 F. Supp.2d 71, 75 (D.D.C. 2003) (citing Mem. and Order
dated Mar. 29, 2002 at 7-8). In its March 29 Memorandum and Order,
the Court observed that the judicial branch has "uniformly
acknowledged the authority of institutional reform special masters
to uncover facts and collect evidence via ex parte contacts
with parties and counsel," and that a special master, in the context
of institutional reform, may engage in ex parte
communications. Citing a litany of legal precedent supporting the
"long-established practice for special masters to conduct confidential
interviews in the course of their capacity of ensuring compliance with
the court's decrees," id. at 81, the Court "expressly
permitted the Special Master to engage in ex parte
communications in the course of his various assignments." Id.
at 83. See also Mem. and Order dated Mar. 29, 2002 at 7-8 (the
Orders of Reference authorized the Special Master to engage in ex
parte communications, consistent with other courts that "have
uniformly acknowledged the authority
of institutional reform special masters to uncover facts and collect
evidence via ex parte contacts with parties and counsel").
On November 5, 2002, this Court ordered the Special Master to
investigate whether Interior filed a false and misleading Eighth
Quarterly Report in violation of the Court's December 21, 1999 Order
to "file with the court and serve upon plaintiffs quarterly status
reports." Cobell v. Babbitt, 91 F. Supp.2d 1, 56 (D.D.C.
1999). In that capacity, the Special Master was serving as the Court's
institutional master authorized to accumulate evidence either
on the record or through ex parte contacts. The Special
Master was limited only by the restriction that any report he filed
that was informed by off-the-record communications "cannot be
accorded the same level of deference as [those] based upon evidence
received during a more formalized proceeding." Cobell v.
Norton, 237 F. Supp.2d at 83 (citations omitted).
3. Interior's Approbation of the Master's
Ex Parte Communications.
Since the Special Master was first appointed, Interior has endorsed
the Special Master's authority to proceed ex parte. In
response to the August 12, 1999 Order authorizing the Special Master
to "oversee the Interior Department's retention and protection from
destruction of IIM Records," Order dated Aug. 12, 1999 at 2, for
example, Interior distributed memoranda to all agency and area offices
informing them that the Special Master was to be allowed unfettered
access to investigate the manner in which agency and area offices
safeguard individual Indian trust data. See July 12, 2000 Memorandum
to Bureau of Indian Affairs employees from then-Assistant Secretary
for Indian Affairs Kevin Gover (informing employees that the Special
Master, in the exercise of his responsibilities may be visiting
locations housing IIM records "with no advance notice" and
advising them to extend the Special Master "full cooperation.").
In accordance with his understanding that "full cooperation"
contemplated the ex parte exchange of information between the
Master and agency personnel, the Special Master visited dozens of agency
and area offices, interviewed employees, and published his findings in a
series of reports, many critical of the agency's record keeping
practices. See, e.g., Report of the Special Master Regarding
Site Visits to Area and Agency Offices (Oct. 29, 1999) (the Anadarko,
Concho, Crow, Northern Cheyenne, Fort Belknap, Fort Peck Agency,
Billings, Rosebud, and Pine Ridge Agency Offices); Third Report of the
Special Master Regarding Site Visits to Area and Agency Offices (Nov.
12, 1999) (the Fort Berthold and Fort Totten Agency Offices); Fourth
Site Visit Report of the Special Master to Area and Agency Offices
(Nov. 29, 2000) (reporting findings following visits to the Warm
Springs, Yakama Umatilla, Colville, Flathead, and Blackfeet Agency
Interior filed no objections to the Master's site visit reports and
never challenged the Master on the grounds that his conclusions were
based on interviews and conversations conducted outside the presence of
counsel. To the contrary, the record suggests the agency was apparently
so comfortable with the manner in which the Special Master conducted his
investigations that two years after it initially instructed its
employees to fully cooperate with the Special Master it reissued an
identical directive. See Mar. 2, 2001 Memorandum from
Deputy Commissioner of Indian Affairs Sharon Blackwell.*fn3
Interior similarly filed no objection to the Special Master's February
8, 2001 order to "distribute an appropriate memorandum informing all
employees that they may communicate directly with the Office of the
Special Master concerning any IIM records-related matter in
complete confidence and without fear of reprisal." See
Cobell v. Norton, 231 F. Supp.2d 315, 318 (D.D.C. 2002)
(emphasis added). Here too, the agency went to considerable lengths
to convince the Court it had complied with the Master's directive.
See Defendants' Response to Plaintiffs' Motion for Order to
Show Cause Why Secretary Norton and Her Counsel Should Not be Held in
Contempt and for Sanctions for Violating the Special Master's February
8, 2001 Order and the Court's Order of February 24, 1999 and
August 12, 1999 (Apr. 20, 2001).
The Court finds that, in light of this history, no fully informed
objective observer could impute prejudice or bias to the Special Master
for conferring with Mr. Smith on an ex parte basis.
B. No Fully Informed Objective Observer Could Impute Bias or
Prejudice to the Special Master's Decision to Retain the Services of Mr.
1. The Special Master's Right to Retain Experts.
Interior next imputes bias to the Special Master for not only
"communicating" with Mr. Smith, but for "hiring" him as well. Motion to
Disqualify at 2. This argument is also without merit and a fully
informed objective observer would recognize that, beyond his right
to conduct interviews and discussions outside the presence of
counsel, the Master was authorized, as a matter of law, to retain
the services of experts. This authority is a natural outgrowth of
the Court's authority,
to appoint persons unconnected with the court to
aid judges in the performance of specific judicial
duties, as they may arise in the progress of a
cause . . . by appointing, either with or without
the consent of the parties, special masters,
auditors, examiners, and commissioners. To take
and report testimony; to audit
and state accounts; to make computations; to
determine, where the facts are complicated and the
evidence voluminous, what questions are actually
in issue; to hear conflicting evidence and make
findings thereon are among the purposes for which
such aids to the judges have been appointed.
Ex Parte Peterson, 253 U.S. 300, 312-13 (1920).
See Lance Wilfred Shoemaker, The Use of Equitable
Tools in Freeway Construction Litigation, 28 Transp. L.J. 15,
26 (Fall 2000) ("in [the institutional] context, special masters may
have the authority to conduct site visits, hire expert consultants,
or collect and analyze data") (citation omitted). See also Fox
v. Bowen, 656 F. Supp. 1236 (D. Conn. 1987) (use of medical
experts to assist the master in making detailed findings of fact);
United States v. Michigan, 680 F. Supp. 928 (W.D. Mich.
1987) (use of experts to review proposed mental health service plans).
In the same spirit that special masters have traditionally utilized
the services of experts, the Special Master retained the services of Mr.
Smith. Mr. Smith's unique qualifications as an expert with respect
to the creation of the Eighth Quarterly Report is beyond question and is
underscored by the fact that he was the one individual Interior
designated to assist the Special Master with the identification of
records relevant to the Eighth Quarterly Report investigation. The
Special Master, recognizing that Mr. Smith possessed this unique
knowledge, retained his services in accordance with the authority
granted him by this Court to "do all acts and take all measures
necessary or proper for the efficient performance of [his]
duties." Order dated February 24, 1999 at 2.
This was not the first time the Special Master retained experts to
assist him. During his five-year tenure, the Special Master has
routinely retained the services of numerous individuals
and entities to assist him in the fulfillment of his duties.*fn4
Interior has neither questioned the Master's authority to do so nor
suggested that these appointments were subject to its pre-approval. In
fact, the only time Interior formally took issue with the Special
Master's decision to retain an expert was when he hired Joseph Christie,
a former employee of the Department of the Interior for 28 years and an
expert in the field of trust records. Interior's reaction to the
Christie hire is instructive and warrants a brief discussion.
Mr. Christie testified on behalf of plaintiffs during the Phase I
trial where he was designated an expert by the Court. By the time
the Special Master retained him to provide counsel concerning IIM
documentation, Mr. Christie had executed a declaration in support of
plaintiffs' Motion for Preliminary Injunction Against Retaliation
or Other Efforts to Influence Testimony or the Provision of Evidence
and had filed formal charges against Interior alleging retaliation
against him for testifying during the Phase I trial.
Interior learned of Mr. Christie's assistance to the Special Master
during its review of the Special Master's time sheets. See
Defendants' Motion to Rescind Hiring of Joseph Christie and Memorandum
of Points and Authorities in Support Thereof at 2. The invoices revealed
that Christie assisted the Special Master to prepare for his
investigation of the Office of Trust Records; worked on quarterly
reports; collected materials; prepared financial charges; and analyzed
contracts, e-mails and other "materials;" and conducted numerous
discussions with the Special Master. Id. at 3. Nonetheless,
Interior Defendants raised only the possibility that
Christie may be biased. At no time did they suggest the Special
Master acted improperly. They certainly did not seek his recusal.
2. The Special Master Was Constrained to Retain the Services
of Mr. Smith Due to Interior's Refusal to Comply With His Repeated
Directives to Produce Documents Necessary for His Investigation.
A fully informed objective observer would also recognize that the
Special Master was not only authorized to retain Mr. Smith as an expert,
but compelled to do so. A review of the facts leading to Mr. Smith's
hire reveals that Interior does not come to this Court with clean hands.
Interior Defendants never objected to the November 5 Order, never
questioned the authority of the Special Master to conduct this
investigation, and never argued that the Special Master's October
7, 2002 document request was improper or overbroad. Nonetheless,
they arrogated to themselves the right to ignore the Master's
repeated production requests for eight months obstructing the
Special Master from performing his duties pursuant to the very
Order it insisted on reviewing before it would provide any documents.
Based on the record before it, the Court finds that the Special
Master, confronted with Interior's resistance, was compelled to
retain Mr. Smith simply to carry out the Court's November 5
directive.*fn5 This is supported by the plain language of his June
27, 2003 letter to the
Department of Justice: "Had this production, the request for which
was first initiated by letter to Peter Miller dated October 7, 2002,
been provided in a more timely fashion, it would not have been
necessary to retain the services of an ex-NAID employee and secure
the documents used in the Interim Report from outside sources."
Interior has never refuted this statement.
3. There Is No Evidence Supporting Interior's Allegations That
While Assisting the Special Master, Mr. Smith's Interests Were Adverse
to the Agency.
Interior maintains that, while in the Special Master's employ, Mr.
Smith was a "complaining party or witness," Motion to Disqualify at 2, a
"principal NAID witness," id., an "adversary witness," and an
"interested witness." Interior Defs.' Reply Brief in Supp. of Mot. to
Disqualify Special Master Balaran at 3, 5 (Aug. 22, 2003) ("Interior's
Reply Brief). In support, Interior supplies a January 7, 2003 settlement
letter written by Mr. Smith in his capacity as NAID Vice President
to the Office of the Special Trustee, challenging the agency's
decision not to renew NAID's contracts. The Court finds this
evidence insufficient to support either contention both as a matter
of fact and as a matter of law.
Interior concedes that, at the time Mr. Smith assisted the Special
Master, he maintained no affiliation with NAID. Motion to Disqualify at
2. Yet it casts him as an adversary without setting forth any evidence
remotely suggesting that Mr. Smith's interests were antagonistic to
those of the agency; that Mr. Smith was a "party" to any pending
litigation against the agency; or that he maintained a financial
interest in the outcome of the Master's investigation.
The Court finds the absence of such evidence revealing. Were
Interior's allegations remotely supportable, the Court would expect
Interior to have presented evidence to the Court in documentary or
testimonial form. That did not happen. Instead, armed with only
the January 7,
2003 letter, colorful characterizations, and a host of
unsupportable inferences, Interior impugns Mr. Smith's ability to
impartially assist the Special Master. As emphasized above, it is
Interior that must clearly and convincingly prove to the Court that the
Special Master acted improperly by hiring Mr. Smith. Kinnear-Weed
Corp. v. Humble Oil & Ref. Co., 441 F.2d 631, 634
(5th Cir. 1971). It is not the Court's duty to connect dots that
Interior is incapable of connecting on its own.
As a practical matter, the Court is loath to believe that if Mr. Smith
were, as Interior insists, an "adversarial, complaining, interested
witness/party," Interior would have invited him to the February 27, 2003
ex parte conference with the Special Master to assist with the
identification of documents that might prove potentially damaging to the
agency. Having done so suggests that Interior believed Mr. Smith more
neutral than it now pretends.
4. NAID's Contract Dispute with Interior Did Not Prejudice the
Special Master's Investigation.
Interior argues that the Special Master acted improperly by retaining
Mr. Smith at a time when "NAID's financial interests were directly
linked to the charges being investigated by the Special Master."
Interior's Reply Brief at 3. This argument is also without substance.
In the first instance, NAID has never been a party to this litigation
and any contractual dispute pending between NAID and Interior has never
been before the Court. Indeed, NAID's request that this Court adjudicate
such a controversy was soundly rejected more than five months before the
Special Master retained Mr. Smith.
Beyond this, Interior's argument assumes a legal nexus between NAID's
claim of retaliation and the Special Master's investigation of
Interior's reporting practices, that simply
does not exist. In its August 30, 2002 Motion for Temporary
Restraining Order, NAID complained that the Department of the Interior
retaliated against it "for presenting accurate and unbiased information
and opinions" concerning Interior's compliance "with this Court's Orders
concerning reform of the Indian Trust Fund System." To prevail on its
claim, NAID need only demonstrate that its efforts to accurately depict
the state of trust reform directly resulted in the agency's refusal to
renew its contract, i.e., that it engaged in protected activity
that directly precipitated an adverse reaction. See Hazward v.
Runyon, 14 F. Supp.2d 120, 124 (D.D.C. 1998) (to establish a claim
for retaliation, a party must prove "(1) that he engaged in a statutorily
protected activity; (2) that the defendant took adverse personnel action;
and (3) that a causal connection existed between the two" (citations
omitted)). Whether or not Interior withheld information from the Court is
of no legal consequence to NAID's claims. See Glover v. S. C. Law
Enforcement Div., 170 F.3d 411, 414 (4th Cir. 1999) (protecting
against retaliation regardless of whether the statements prompting the
retaliation were reasonable,).
In short, the Special Master's investigation into Interior's creation
of the Eight Quarterly Report and NAID's allegations of retaliation are
two distinct concepts that do not intersect factually or legally.
Interior's efforts to impute bias to the Special Master by blending the
two is of no moment.
5. There is No Evidence Supporting Interior's Allegation that
Mr. Smith "Drafted" the Interim Report.
Finally, Interior argues that the Special Master must be disqualified
because "Mr. Smith actually drafted and edited portions of the Interim
Report." Motion to Disqualify at 7. In support of this contention, the
agency directs the Court to Mr. Smith's time entries for April 3 and 4,
2003 which state that, on each day, he "Draft[ed] 8th QR Analysis"
and to two entries by the Special Master's Assistant, Edward Volz:
"Assist the Special Master and Mike Smith editing report on the 8th
Quarterly Report" and "Assist Mike Smith editing and organizing materials
for report on the 8th Quarterly Report." The Court finds the agency's
interpretation of these invoices lacking in every respect.
In the first instance, the Interim Report represents a work of
considerable scholarship. It is 55 pages in length with 39 detailed
footnotes and five volumes of attachments containing 73 exhibits of
supporting documentation. And, as one would expect, the Special Master's
time sheets reflect the considerable time the Master expended in this
effort, namely, more than 135 hours drafting the Interim Report as
indicated by his entries: "Draft 8QR Report," "Draft Report to the Court
regarding 8QR," and "Draft Report regarding generation of Eight Quarterly
Report." Mr. Smith's April 3 and 4, 2003 time entries, in contrast,
simply indicate that Mr. Smith spent seven hours "Draft[ing] 8QR
analysis." These entries do not state, as Interior suggests, that Mr.
Smith "Drafted the Interim Report" or even "Drafted the 8QR Report."
Against the backdrop of the 79 time entries for March and April 2003,
describing more than 100 hours devoted to the review of a myriad of
documents, Mr. Smith's April 3 and 4 time entries are capable of only one
reasonable interpretation: the Special Master drafted the Interim Report
while Mr. Smith reviewed documents and, on April 3 and 4, created a
memorandum detailing his analysis. Nothing more.
Interior's argument that the Special Master's assistant Edward Volz
drafted the Interim Report is even more unavailing. Mr. Volz's time
entries reveal he did little more than assist Mr. Smith and the Master in
analyzing documents necessary to completing the Interim Report.
In sum, the Court finds that it was well within the ambit of the
Special Master's authority to communicate with Mr. Smith on an ex
parte basis and to retain his services to assist with the Eighth
Quarterly Report Investigation. The Court further finds no evidence
supporting Interior's position that, at the time he was retained by the
Special Master, Mr. Smith's interests were adverse to the agency; that
Mr. Smith drafted any portion of the Interim Report; or that NAID's
retaliation claim hinged on the Special Master's findings. The Court
finds, instead, that Interior's charges of impropriety are misdirected
and more properly should have been leveled at its own refusal to comply
with the Master's request for documents and for the manner in which it
deceived the Special Master into believing cooperation was forthcoming
when it was not. No fully informed objective observer would find
C. Interior Has Failed to Meet the Extrajudicial Source
Requirement Necessary to Support Recusal Pursuant to
28 U.S.C. § 455(a) and (b)(1).
Beyond the factual infirmities underlying
Interior's allegations, the agency has failed to demonstrate that the
preliminary findings of the Special Master stemmed from evidence secured
outside of the judicial process. Accordingly, Interior's claim that the
Special Master be recused under § 455 must fail, as a matter of law.
It is a well settled proposition that, for recusal to lie, there must
be evidence the judge "relied on knowledge acquired outside such
proceedings." See Liteky v. United States, 510 U.S. 540, 556
(1994). This jurisdiction "ha[s] long held that to be disqualifying, the
appearance of bias or prejudice must stem from an extrajudicial source."
United States v. Barry, 961 F.2d 260, 263 (D.C. Cir. 1992);
accord United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir.
1992) ("the district court could not be disqualified for bias, because
the bias alleged `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'" (emphasis added) (citation omitted));
United States v. Heldt, 668 F.2d 1238, 1272 (D.C. Cir. 1981)
("disqualification based on prejudice is required only if the
alleged prejudice stems from an extrajudicial source" (emphasis
added)). This principle was recently affirmed by the United States Court
of Appeals when, pursuant to § 455(a), it vacated the appointment of
the Special Master-Monitor on the grounds that he could not neutrally
perform his duties as Special Master since he "had a settled opinion
about what the Department should and should not do on remand to comply
with the order of the District Court, which opinion he developed
in his extrajudicial role as Court Monitor with access to the internal
deliberations of the Department regarding the lawsuit." Cobell
v. Norton, 334 F.3d 1128, 1144 (D.C. Cir. 2003) (emphasis added).
These concerns have no application here. At all times during the Eighth
Quarterly Report investigation, the Special Master was authorized to
communicate with Mr. Smith on an ex parte basis. By definition,
that exchange was not extrajudicial and the Master's findings were not
part of a record created outside the Master's proper exercise of his
judicial authority. This is confirmed by the Interim Report itself, an
examination of which reveals findings firmly rooted in evidence
accumulated by the Special Master while carrying out his institutional
responsibilities, as authorized by the November 5, 2002 Order. Every fact
is supported by one of the 73 exhibits the Special Master attached to his
report exhibits containing the very record Interior was ordered
to turn over to the Special Master, but did not. As none of these
findings were informed by extrajudicial sources, Interior's argument
that the Master be recused pursuant to §§ 455(a) and (b)(1) must fail.
Interior's collateral argument that the Master be recused for having
"prejudge[d] [the] defendant in this fashion and then stigmatizing it in
a public report," Motion to Disqualify at 2, is equally meritless.
Without more, florid rhetoric cannot substitute for the agency's
inability to demonstrate that the Special Master's "prejudgment" stemmed
"from an extrajudicial source and result[ed] in an opinion on the merits
on some basis other than what the [Special Master] learned from his
participation in the case." Pollard, 959 F.2d at 1031. And
labeling a report as "stigmatizing," without more, cannot support a
finding of bias. See Barry, 961 F.2d at 265 (D.C. Cir. 1992)
(holding that § 455(a) did not require the District Court's
disqualification for intemperate statements made during sentencing, in
light of the fact that there "was no trace of bias in this sentencing"
itself). The fact remains that every preliminary finding set out in the
Interim Report is amply supported by a voluminous and painstakingly
crafted record to which the Special Master invited comment and the
submission of additional evidence. That Interior took offense to these
preliminary findings is irrelevant. By issuing an "Interim Report" that
rendered only "preliminary findings" and invited comment, the Court finds
"no trace of bias."
In short, Interior cites to no finding or fact in the record remotely
suggesting that the Special Master's findings were based on
"extrajudicial" information. It cites no law to support the proposition
that a "stigmatizing" report warrants recusal. The Court finds these
shortcomings fatal to the agency's attempt to disqualify the Special
D. Interior's Delay in Challenging the Special Master for
Retaining Mr. Smith Constitutes a Waiver of its Claims under §
Interior did not seek to disqualify the Special Master until May 29,
2003-more than one month after the Interim Report issued. The record
reveals, however, that the agency was aware
the Special Master had retained the services of Mr. Smith on April
1, 2003, when the Special Master filed his March 2003 Monthly Report. As
set out below, Interior's delay in filing the Motion to Disqualify,
waives its right to do so now.
Interior maintains that only "[a]fter its Objections were filed, [it]
learned, based in part upon invoices submitted by the Special Master on
May 6, 2003, that the Special Master secretly hired one of the principal
witnesses to the events described in the Interim Report to assist with
his investigation and with the drafting of the Interim Report." Mot. to
Supplement its Objections to the Interim Report of the Special Master
Regarding the Filing of Interior's Eighth Quarterly Report at 1 (May 13,
2003). This assertion is contradicted by the record.
As detailed above, the Special Master, on April 1, 2003, filed the
March 2003 Report of Special Master, attached to which were time sheets
revealing no fewer than 65 entries for work performed by "MSS" during the
months of February and March 2003. These entries indicate that in March
MSS reviewed documents comprising the administrative record of the Eighth
Quarterly Report documents Interior had not yet provided to the
Special Master. These entries also reveal that, on February 27, 2003, MSS
"Reviewed files in DOI regarding 8QR"-the same day the Special Master
recorded his time entry: "Meeting at Interior to review NAID documents."
Again, this was the very meeting arranged by Interior. Both entries
record the identical time and both obviously correspond to the meeting
convened by Interior between the Master and Mr. Smith. And if those
entries were insufficiently detailed to place the agency on notice that
Mr. Smith was conferring with the Special Master, EKV's "[m]eeting with
Mike Smith regarding work objectives" on March 4, 2003, certainly was.
The Court finds that these invoices provided Interior with ample
disclosure on April 1, 2003, that the Special Master had retained the
services of Mr. Smith to assist him with the Eighth Quarterly Report
investigation. It is inconceivable that Interior simply overlooked these
entries. The Court need look no further than Interior's Motion for
Reimbursement of Improper Special Master Fees dated October 2, 2003 to
recognize the zeal with which the agency dissects every time entry in the
Special Master's invoices. Notwithstanding, the agency filed no objection
to the March 2003 monthly report; never questioned Mr. Smith's time
entries; never asked the Master to identify "MSS"; and never inquired how
the Master came to possess the very documents it refused to supply.
Instead, Interior waited until the Master issued the Interim Report to
cry foul. Its strategy is not without legal consequence.
The majority of courts interpreting § 455(a) hold that a party
having knowledge of facts indicating appearance of impropriety, that
continues its participation in the proceeding, and then waits until the
end of the proceeding to object, may have waived its right to do so.
See, e.g., United States v. Slay, 714 F.2d 1093, 1095
(11th Cir. 1983) (denying motion to disqualify based on appearance of
impropriety when raised on appeal for first time because party's counsel
had prior knowledge of relevant facts).*fn6 And while there is little
dispute that actual knowledge will support a finding of waiver, this
jurisdiction holds the view that judicial disqualification under §
455 may be waived by implication by a party possessing only constructive
knowledge of facts supporting an appearance-of-bias claim who fails to
object in a timely manner. See Jenkins v. Sterlacci,
849 F.2d 627, 634 (D.C. Cir. 1988) (finding that waiver of judicial
under 28 U.S.C. § 455 may be implied where the motion to
disqualify "came only after proceedings before the special master had
been completed and the special master's report had been filed").
This principle is best analogized to the rule of law that prohibits a
defendant from "hear[ing] the verdict before contesting the impartiality
of the jury and then attack[ing] the court's refusal to investigate his
allegation." United States v. Edwards, 696 F.2d 1277, 1282
(11th Cir. 1983). See also United States v. Breit, 712 F.2d 81,
83 (4th Cir. 1983) ("[a] defendant who remains silent about known juror
misconduct who, in effect, takes out an insurance policy against
an unfavorable verdict is toying with the court"). Here, Interior
waited for the Special Master's "verdict" before filing its Motion to
Disqualify. And like the disgruntled defendant who is found guilty and
later argues that the jury pool was tainted, the agency, after being put
on notice that Mr. Smith was assisting the Special Master, waited until
it received the Interim Report to argue that the Special Master was
biased. The Court finds Interior's failure to object promptly waived its
right to do so now.
E. The Agency Has Failed to Prove Bias Pursuant to
28 U.S.C. § 455(b)(1).
Interior alleges that the Special Master should be recused pursuant to
28 U.S.C. § 455(b)(1) on the grounds that, "[a] judicial officer who
publicly levels grave charges against a defendant on the basis of ex
parte communications with adverse parties has abandoned any pretext
of objectivity." Motion to Disqualify at 11. This, too, is an
Whereas § 455(a) is a catchall disqualification provision, §
455(b)(1) is more narrow in scope as it requires disqualification only
for "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);
see also Liteky v. United States, 510 U.S. 540, 548 (1994)
(describing § 455(a) as a "`catchall' recusal provision, covering
both `interest or relationship' and `bias or prejudice' grounds").
Unlike its complaint seeking recusal under § 455(a), where Interior
must demonstrate that the Special Master "appears" biased, under §
455(b)(1), the agency must prove the Special Master was "in fact"
biased. Indeed, the greater difficulty of proving bias in fact has led
courts confronted with claims under both subsections to ignore the
latter. See, e.g., United States v. Cooley, 1 F.3d 985 (10th
To evaluate Interior's claim under § 455(b)(1), this Court again
turns to Jenkins v. Sterlacci for guidance: "A party alleging
actual bias on the part of a judge must prove that claim by evidence of
the judge's extra judicial conduct or statements that are plainly
inconsistent with his responsibilities as an impartial decisionmaker."
849 F.2d at 634 (citing Liberty Lobby, Inc. v. Dow Jones &
Co., 838 F.2d 1287, 1301 (D.C. Cir. 1988)); United States v.
Haldeman, 559 F.2d 31, 132-34 & n.297 (D.C. Cir. 1976) (en
Just as Interior has failed to demonstrate the appearance of bias, it
has failed to prove its existence. Special Master Balaran's conduct in
the Eighth Quarterly Report investigation was at all times undertaken in
a manner consistent with his duties as an impartial institutional master.
The Interim Report itself is testament to that impartiality. It sets out
only "preliminary" findings; attaches every internally-referenced
document; scrupulously avoids undisclosed references; and invites
comments, documents and oral testimony. In light of Interior's conduct
throughout the investigation, the Special Master would have been
justified had he issued a final report with conclusive findings. He did
not. Instead, the Master gave Interior another opportunity to
produce the records he had been requesting for months as well as
the opportunity to refute his findings. This is not the conduct of a
biased or impartial special master.
F. The Department of the Treasury Has Not Joined Interior in
the Motion to Disqualify.
There are two federal agencies embroiled in this litigation the
Department of the Interior and the Department of the Treasury. On August
12, 1999, the Special Master assumed responsibility for ensuring that
both agencies complied with the Court's orders to preserve trust
documentation. In that capacity, he has visited numerous Federal Reserve
Banks and branches and set out his findings in a series of reports filed
with the Court. Not all of these reports have been flattering. See,
e.g., Recommendation and Report of the Special Master Regarding the
Delayed Disclosure of the Destruction Of Uncurrent Check Records
Maintained by the Department of the Treasury Hyattsville at 120 (Dec. 3,
1999) (finding destruction of documents "part of a greater pattern of
obfuscation"). See also Report of the Special Master Regarding
the Destruction of Eleven Boxes of Treasury Securities by the Fort Worth
Federal Records Center at 10 (Jan. 10, 2001) ("Treasury's lack of
oversight is profoundly troubling").
Notwithstanding these findings, many of which were informed by ex
parte communications between the Master and Treasury officials,
Treasury has never objected to, nor sought the removal of, the Special
Master. It has never accused the Master of engaging in "a wholly improper
willingness to pre-judge." Motion to Disqualify at 11. The Court takes
note of the trust reposed by Treasury in the Special Master's
impartiality as manifested by its refusal to collaborate in these
A request for disqualification of a judicial officer on the basis of
impartiality or bias is a serious matter that should be neither lightly
considered nor readily granted. Interior Defendants' Motion to Disqualify
the Special Master has not been lightly considered by this Court. After
reviewing the evidence, the Court finds the Motion to Disqualify Special
Master Balaran wholly insufficient. Interior has failed to set forth the
facts or evidence required to support its claim that the Special Master
acted in a manner inconsistent with his role as a judicial officer.
For the foregoing reasons, Interior's Motion to Disqualify Special
Master Balaran is denied.*fn7