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