Cobell v. Norton, CIV.A. 96-1285(RCL).

• Citation: 237 F.Supp.2d 71
• Decision Date: 17 January 2003
• Docket Number: No. CIV.A. 96-1285(RCL).,CIV.A. 96-1285(RCL).
• Parties: Elouise Pepion COBELL, et al., Plaintiffs, v. Gale A. NORTON, Secretary of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

237 F.Supp.2d 71

Elouise Pepion COBELL, et al., Plaintiffs, v. Gale A. NORTON, Secretary of the Interior, et al., Defendants.

No. CIV.A. 96-1285(RCL).

United States District Court, District of Columbia.

January 17, 2003.

COPYRIGHT MATERIAL OMITTED

MEMORANDUM AND ORDER

LAMBERTH, District Judge.

This matter comes before the Court on thirteen separate motions to disqualify the presiding judge, Special Master Alan Balaran ("Master"), and Special Master-Monitor Joseph S. Kieffer, III ("Monitor") from participating in proceedings against 39 individuals, present or former employees of the United States government whose employment required them to participate in activities related to the individual Indian trust accounts at issue in the present action.¹ In the alternative, movants seek to take full discovery relating to alleged ex parte communications among the Master, the Monitor, other government employees, and the Court.² Because the motions and supporting memoranda are nearly identical in their factual statements and arguments, the Court will address all thirteen in this opinion.³ Upon consideration of the Recusal Motions, plaintiffs' consolidated opposition brief, movants' reply briefs, the applicable law in this case, and the entire record herein, the Court finds the Recusal Motions to be without merit.⁴

I. BACKGROUND

On February 22, 1999, this Court found defendants Secretary of the Interior Bruce Babbitt, Secretary of the Treasury Robert Rubin, and Department of the Interior Assistant Secretary, 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. Special Master Balaran was ordered to "oversee the discovery process in this case to ensure that discovery is conducted in the manner required by the Federal Rules of Civil Procedure." Order dated February 24, 1999, at 2. To fulfill his duties, the Court endowed Special Master Balaran with the authority 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." Id.⁵ With the consent of the parties, the Court subsequently expanded Mr. Balaran's order of reference to include oversight of "the Interior Department's retention and protection from destruction of IIM Records through, among other things, onsite visits to any location where IIM Records are not being protected from destruction or threatened destruction." Order dated August 12, 1999 at 2. On March 29, 2002, the Court clarified these orders of reference by holding that the Master could engage in ex parte communications in the discharge of his obligations. See Mem. and Order dated March 29, 2002 at 7-8 (noting that "courts have 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] Interior has never objected to any of the Master's reports chronicling those visits and assessing the evidence accumulated therefrom.").

On April 16, 2001, with the consent of both parties, the Court appointed Joseph S. Kieffer, III, to serve as court monitor in this action. Mr. Kieffer was directed to "monitor and review all of the Interior defendants' trust reform activities and file written reports of his findings," which were to include "a summary of the defendants' trust reform progress and any other matter [he] deems pertinent to trust reform." Order dated April 16, 2001 at 2. Defendants were ordered to "facilitate and assist Mr. Kieffer in the execution of his duties and responsibilities" and to provide him with "access to any Interior offices or employees to gather information necessary or proper to fulfill his duties." Id. The Court explicitly authorized Mr. Kieffer to "make and receive ex parte communications with all entities necessary or proper to effectuate his duties." Id.

On November 28, 2001, the Court issued an order directing Secretary Norton and Assistant Secretary McCaleb to show cause why they should not be held in contempt (1) for failure "to comply with the Court's Order of December 21, 1999, to initiate a Historical Accounting Project"; (2) for "committing a fraud on the Court by concealing the Department's true actions regarding the Historical Accounting during the period from March 2000 until January 2001"; (3) for "committing a fraud on the Court by failing to disclose the true status of the TAAMS project between September 1999 and December 21, 1999"; and (4) for "committing a fraud on the Court by filing false and misleading quarterly reports starting in March 2000, regarding TAAMS and BIA Data Cleanup." Order dated November 28, 2001 at 2. On December 6, 2002, a fifth specification was added, ordering Secretary Norton and Assistant Secretary for Indian Affairs Neal McCaleb to show cause why they should not be held on contempt for "[c]ommitting a fraud on the Court by making false and misleading representations starting in March 2000, regarding computer security of IIM trust data." Order dated Dec. 6, 2001 at 1.

The first four counts facing the Secretary and the Assistant Secretary were grounded in findings made by the Court Monitor in his reports, dated July 11, 2001 (Interior's statistical sampling project); August 9, 2001 (TAAMS); September 17, 2001 (the BIA Data Cleanup project); and October 16, 2001 (Interior's Seventh Quarterly Report). The fifth contempt count was premised upon the November 14, 2001 Report and Recommendation of the Special Master Regarding the Security of Trust Data at the Department of the Interior.

On September 17, 2002, following a trial, the Court held both Secretary Norton and Assistant Secretary of Indian Affairs Neal McCaleb in contempt of court for "engag[ing] in litigation misconduct by failing to comply with the Court's Order of December 21, 1999, to initiate a Historical Accounting Project.... Committ[ing] a fraud on the Court by concealing the Department's true actions regarding the Historical Accounting Project during the period from March 2000, until January 2001.... Committ[ing] a fraud on the Court by failing to disclose the true status of the TAAMS subproject between September 1999 and December 21, 1999.... Committ[ing] a fraud on the Court by filing false and misleading quarterly status reports starting in March 2000, regarding TAAMS and BIA Data Cleanup.... [and] committ[ing] a fraud on the Court by making false and misleading representations starting in March 2000, regarding computer security of IIM trust data." Order dated Sept. 17, 2002 at 1-2.

On the same date, the Court referred to the Master (1) plaintiffs' Motion for Order to Show Cause Why Interior Defendants and Their Employees and Counsel Should Not Be Held in Contempt for Violating Court Orders and for Defrauding This Court In Connection With Trial One, which had been filed on October 19, 2001, and (2) plaintiffs' Motion for Order to Show Cause Why Interior Alleged Contemnors and Their Counsel Should Not Be Held in Contempt for Destroying E-mail, which had been filed on March 20, 2002 (collectively, the "September 17 Referrals").⁶

In reference to the first motion, the Court directed the Master to "develop a complete record with respect to these 39 non-party individuals .... [and] upon completing his review of these matters, issue a report and recommendation regarding whether each individual should be ordered to show cause why he or she should not be held in (civil or criminal) contempt of court, or whether other sanctions are appropriate against such individuals." Mem. Op. dated Sept. 17, 2002 at 255. In reference to plaintiffs' March 2002 motion, the Court ordered "that the plaintiffs' motion for order to show cause why Interior defendants and their counsel should not be held in contempt for destroying e-mail ... shall be referred to Special Master Balaran. Special Master Balaran shall issue a report and recommendation on the issues raised in the plaintiffs' motion." Order dated Sept. 17, 2002 at 4. This latter referral stemmed from the Master's report and recommendation wherein he found that "defendant ha[d] ignored its duty to retain and preserve backup tapes of e-mail messages responsive to the Third Formal Request for Production of Documents" and noted that it would be "impossible to assess the impact that defendant's spoilation may have had on Phase I trial issues or what it may have on future proceedings which touch upon defendants' trust obligations. ..." Op. dated July 27, 2001 at 17, 18.

These referrals prompted movants to file their respective motions for recusal. Those motions articulate movants' concern that the Master and Monitor have engaged in secret, off-the-record communications with employees and officials of the Interior Department as well as with the Court, the substance of which they are not aware. See, e.g., Babbitt Motion at 7 ("Though the substance of the communications cannot be known with certainty, because they were not recorded, the sheer number of contacts and length of the contacts suggest the Court Monitor performed much of his work for this case ex parte and in secret."); Shuey Motion at 11 ("Special Master Balaran's invoices detail extensive substantive ex parte contacts that Special Master Balaran has engaged in with a wide range of entities and persons."). Movants assert that the Monitor's time records reference a number of meetings with employees and officials from the Interior Department, as well as meetings with the Court, and note that the Monitor's meetings with the Court have been acknowledged by the Court. Movants also point to the invoices of the Master reflecting time expended during meetings with the Court, with Special Trustee Tom Slonaker, with the former Chief Information...