Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Elouise Pepion Cobell, et al v. Ken Salazar

October 5, 2011

ELOUISE PEPION COBELL, ET AL., PLAINTIFFS,
v.
KEN SALAZAR, SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas F. Hogan United States District Judge

MEMORANDUM OPINION

Pending before the Court are the following motions: (1) Plaintiffs' Unopposed Motion for Appeal Bond Pursuant to Federal Rule of Appellate Procedure 7 [Docket No. 3856], which seeks "that this Court require [Kimberly] Craven to post a bond or other security in the amount of $8,306,439.93 to ensure prompt payment of plaintiffs'-appellees' costs on affirmance of this Court's final judgment order," Pls.' First Mot. for Appeal Bond 1; (2) Plaintiffs' Second Unopposed Motion for Appeal Bond Pursuant to Federal Rule of Appellate Procedure 7 [Docket No. 3859], which makes a similar request that an $8,306,439.93 bond be imposed against the Harvest Institute Freedmen Federation, LLC, Leatrice Tanner-Brown, and William Warrior; (3) Plaintiffs' Unopposed Motion for Expedited Consideration of Plaintiff[s'] Second Unopposed Motion for Appeal Bond Pursuant to Federal Rule of Appellate Procedure 7 [Docket No. 3860]; and (4) Plaintiffs' Third Unopposed Motion for Appeal Bond Pursuant to Federal Rule of Appellate Procedure 7 [Docket No. 3869], which further requests that an $8,306,439.93 bond be imposed against Ortencia Ford and Donnelly Villegas. For the reasons set forth below, the Court will deny all four motions.

BACKGROUND

On August 6, 2011, Kimberly Craven filed a notice of appeal challenging this Court's final judgment approving a $3.412 billion settlement in this complex and contentiously-litigated case involving allegations that the United States breached its trust obligations by mismanaging the money, land and resource assets of more than 450,000 Indians. In response to Ms. Craven's appeal, the plaintiffs moved for the imposition of an $8,306,439.93 appeal bond pursuant to Rule 7 of the Federal Rules of Appellate Procedure ("Fed. R. App. P.") and argued that the following "costs" may be taxed against Ms. Craven under the Rule:

1. $33,523.02 for the costs of photocopying. Pls.' First Mot. for Appeal Bond 13, 19, Ex. 1, Chick Decl. ¶ 3.

2. $935.45 for the costs of binding documents. Id.

3. $2,526,981.46 for the fees of attorneys, paralegals and staff. Pls.' First Mot. for Appeal Bond 15, 19, Ex. 2, Smith Decl. ¶ 4.

4. $3,150,000.00 for post-judgment interest. Pls.' First Mot. for Appeal Bond at 16, 19.

5. $2,595,000.00 for the "increased cost of settlement administration." Pls.' First Mot. for Appeal Bond 19, Ex. 3, Keough Decl. ¶ 3.

The plaintiffs contend that Ms. Craven should be required to post an appeal bond that covers these costs because her appeal will "delay indefinitely class members' relief," Pls. First Mot. for Appeal Bond 4, the delay "means that more elderly and more inform class members will pass on without obtaining justice that they deserve," id. at 5, "she opposes settlement for personal and political reasons" that are not supported by the vast majority of the class members, id. at 6, she has retained a "professional objector" to advocate on her behalf, id. at 7, her appeal "obstructs the efforts of Secretary Salazar to implement meaningful reform because it blocks access to settlement funds appropriated by Congress to establish and operate a Secretarial Commission on Trust Reform," id. at 8, the "delay causes substantial financial loss by denying class members post-judgment interest on their settlement funds and by increasing materially their post-judgment administrative costs and legal fees and expenses," id., an appeal bond "furthers public policy and is not an impermissible condition on appellant's statutory right to appeal," id., and the bond "should be sufficient to cover the cost of defending the appeal before a three-judge panel, en banc, and the Supreme Court," id. at 10-11.

Although conceding that the Court may impose an appeal bond as "'security for payment of costs on appeal,'" Craven's Opp'n Br. 2 (quoting In re Am. President Lines, Inc., 779 F.2d 714, 716 (D.C. Cir. 1985) (per curiam)), Ms. Craven nevertheless opposes the plaintiffs' proposed appeal bond on the grounds that the "costs" referred to in Fed. R. App. P. 7 are limited to those identified in Fed. R. App. P. 39, the plaintiffs' exaggerate their photocopying and binding costs, attorneys' fees and the costs of delay are not taxable costs under Fed. R. App. P. 7, her appeal is not frivolous and was brought in good faith, and Ms. Craven's attorney is not a professional objector. Id. at 4-18. Ms. Craven further argues that she "does not have the financial means to post a multi-million-dollar appeal bond," id. at 18, 21, the appeal bond will "add[] another layer of complexity" that will further delay the appeal, id. at 20, and the plaintiffs' motion for an appeal bond was brought in bad faith so "the Court should give appropriate consideration to sanctioning the plaintiffs for failing to cite binding authority and for misquoting multiple citations," id. at 23.

Three days after filing the appeal-bond motion against Kimberly Craven, the plaintiffs filed a second motion requesting than an appeal bond also be imposed against the Harvest Institute Freedmen Federation, LLC, Leatrice Tanner-Brown, and William Warrior in response to an appeal they filed in June challenging this Court's decisions denying their motion to intervene and motion for reconsideration. See Docket No. 3859. The Harvest Institute Freedmen Federation, Leatrice Tanner-Brown, and William Warrior never responded to the plaintiffs' motion for an appeal bond and the deadline to do so has now passed. See LCvR7, available at http://www.dcd.uscourts.gov/dcd/local-rules. Yesterday the plaintiffs' filed their third motion for an appeal bond against Ortencia Ford and Donnelly Villegas.

With the exception of background that is fact specific, all three of the plaintiffs' appeal-bond motions are identical and raise the same legal arguments. Because the first two appeal-bond motions and the motion for expedited review are now ripe for this Court's consideration, and all three appeal-bond motions raise the very same legal arguments, including the motion filed yesterday, this memorandum opinion will address and dispose of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.