Cobell v. Jewell

• Decision Date: 31 January 2017
• Docket Number: Case No. 96–cv–1285 (TFH/GMH)
• Citation: 234 F.Supp.3d 126
• Parties: Elouise Pepion COBELL, by and through Turk R. Cobell, as the personal representative of her estate, et al. Plaintiffs, v. Sally JEWELL, Secretary of the Interior et al. Defendants.
• Court: U.S. District Court — District of Columbia

234 F.Supp.3d 126

Elouise Pepion COBELL, by and through Turk R. Cobell, as the personal representative of her estate, et al. Plaintiffs,

v.Sally JEWELL, Secretary of the Interior et al. Defendants.

Case No. 96–cv–1285 (TFH/GMH)

United States District Court, District of Columbia.

Filed January 31, 2017

David C. Smith, Kilpatrick Townsend & Stockton, LLP, Washington, DC, Elliott H. Levitas, Kilpatrick Townsend & Stockton, LLP, Atlanta, GA, Mark Kester Brown, Los Angeles, CA, Richard A. Guest, Native American Rights Fund, Washington, DC, William E. Dorris, Kilpatrick Stockton LLP, Atlanta, GA, Justin Matthew Guilder, Dentons US LLP, Washington, DC, for Plaintiffs.

MEMORANDUM OPINION

G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE

Herein the Court will close what may be the final major dispute in two decades of hard-fought litigation. Plaintiffs, Native Americans whose lands were held in trust by the Department of the Interior, sought to remedy a century of wasteful trust mismanagement. They obtained a stunning victory which brought about trust reform and a significant recovery for the plaintiff class. Helping them in their quest was a team of attorneys whose dedication and tenacity deserve high commendation. One of those attorneys was Mark Brown. After this case settled in 2009, Plaintiffs' counsel moved for an award of attorney's fees and costs. Brown was omitted from the motion, as were the hours he spent litigating this matter. He now petitions this Court for his share of the fee award.

This matter was initially referred to the undersigned for a Report and Recommendation on Brown's petition for attorney's fees [Dkt. 3699]. The parties later consented to the undersigned's making a final determination of Brown's petition [Dkt. 4201]. After reviewing the parties' many filings and holding a five-day evidentiary hearing on the matter,¹ the Court will grant in part and deny in part Brown's petition.

BACKGROUND AND PROCEDURAL HISTORY

An abbreviated timeline of this case and the present fee petition will help place the rest of the decision in context. In the late nineteenth and early twentieth centuries, the United States had a policy of dividing Native American lands into smaller parcels, to be held in trust by the Department of the Interior for the benefit of individual Native Americans. See Plaintiffs' Amended Complaint [Dkt. 3671] ¶ 17. These parcels of land generated income, which was placed into what are commonly referred to as "Individual Indian Money" accounts. Id. ¶ 2. Plaintiffs filed this class action in 1996 against the Secretary of the Interior, alleging that the Department had mismanaged these accounts and the land it held in trust. Id. ¶ 3–4. Plaintiffs sought an accounting from the government and an order compelling the government to reform its trust practices. Id. ¶ 5.

After a bench trial in 1999, Judge Lamberth found that the government had violated several of its trust duties. See Cobell v. Babbitt , 91 F.Supp.2d 1, 6 (D.D.C. 1999). The Court of Appeals affirmed this finding in 2001. See Cobell v. Norton , 240 F.3d 1081, 1086 (D.C. Cir. 2001). The rest of this case's life has been spent overseeing the Department's accounting and the reform of its trust practices.

Following many years of hard fought litigation, the case ultimately settled in 2009. Because of its enormous size—in the billions of dollars—the settlement required congressional approval, which did not come until late 2010. See Plaintiffs' Motion for Preliminary Approval of the Settlement [Dkt. 3660] at 1. After Congress signed off on the settlement, the matter came back to this Court for final approval. Within the settlement agreement was a separate agreement on payment of class counsel's fees. Id. That agreement provided that Plaintiffs' counsel could apply for fees by motion and, most importantly, that neither party would appeal a fee award that fell within the range of $50–99.9 million. Id. at 15–16. Judge Hogan, who had inherited the case earlier in 2010, held a fairness hearing in June 2011 and approved the parties' settlement. See Final Order Approving Settlement [Dkt. 3850] at 4. Judge Hogan also awarded Plaintiffs' counsel $99 million in attorney's fees. Id. at 9–10. The Court of Appeals affirmed Judge Hogan's approval of the settlement in 2012. See Cobell v. Salazar , 679 F.3d 909, 913 (D.C. Cir. 2012).

But according to Brown, something was missing from Plaintiffs' fee application: his hours spent litigating the case. When Plaintiffs' counsel submitted their motion for an award of fees in January 2011, they did not name Brown among class counsel and did not seek compensation for the time he expended in the case. See Plaintiffs' Motion for Attorney's Fees and Expenses of Class Counsel [Dkt. 3678]. He intervened in the case a month later and asserted that he ought to be paid out of class counsel's fee award. See Petitioner's Response to Plaintiffs' Motion for Attorney's Fees [Dkt. 3699]. In his original petition, Brown sought compensation for approximately 11,500 hours of time, totaling about $5.5 million. See id. Judge Hogan tabled the dispute by placing in escrow the amount Brown claimed and awarding Plaintiffs' counsel the balance of the $99 million fee award. Final Order Approving Settlement [Dkt. 3850] at 9–10.²

After a series of unsuccessful mediations, Judge Hogan referred the matter to the undersigned for resolution of Brown's fee petition. May 12, 2015 Referral Order [Dkt. 4124]. The undersigned held a hearing, heard testimony from several witnesses, accepted hundreds of exhibits, and heard legal argument from Plaintiffs and Brown. On this robust record, the Court is now prepared to issue its decision.

FINDINGS OF FACT

The following findings of fact are based on the record adduced during the Court's five-day evidentiary hearing. Two introductory notes are in order. First, Brown filed objections to several affidavits Plaintiffs offered during the hearing.³ He also filed two motions in limine prior to the hearing—one regarding the affidavit of the late Elouise Cobell, lead class representative, and one regarding the testimony of Bill Dorris, a Kilpatrick Townsend & Stockton ("Kilpatrick Stockton") attorney who entered the case in 2004 and continues to represent Plaintiffs today.⁴ The Court sees little value in addressing each of the voluminous objections in detail here. Instead, it will overrule the objections except as stated otherwise in this decision. Most pertain to the weight, rather than the admissibility, of the evidence. And even to the extent some piece of evidence was partially or potentially objectionable – such as an item of evidence whose relevance was informed by context, or some statement that would be hearsay if offered for one purpose but not if offered for another—the Court accepted the evidence for what it was worth, disregarding objectionable portions. See Harris v. Rivera , 454 U.S. 339, 346, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981) ("In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions."); United States v. Microsoft Corp. , 253 F.3d 34, 101 (D.C. Cir. 2001) (upholding use of summary witnesses in bench trial despite danger of hearsay because the judge is presumed to ignore inadmissible evidence); Flanagan v. Islamic Republic of Iran , 190 F.Supp.3d 138, 173 n.22 (D.D.C. 2016) (noting that even if certain record evidence at a bench trial contained hearsay, there was no danger of the Court's being improperly influenced by it).

Second, almost every witness in this case had the potential to give biased testimony. Brown, who was his own primary witness, of course stands to win a large sum if he convinces the Court he is entitled to a fee award. But the Court also appreciates that, as was made clear at the hearing, every dollar not awarded to Brown will go from the escrow account to Kilpatrick Stockton, the firm that provides sole representation for Plaintiffs today. As such, several of Plaintiffs' witnesses, including Kilpatrick Stockton partners David Smith and Bill Dorris, have a direct financial interest in the outcome here. See 4/22 Tr. 139:12–22, 143:5–144:1, 199:11–25, 234:13–19; 5/25 Tr. 127:14–128:2. To be sure, some witnesses on each side do not have such an interest, like Dennis Gingold, who served as lead class counsel from the inception of the Cobell case until 2012, whose interest in this case Kilpatrick Stockton bought out when it took over as lead counsel. See 4/21 Tr. 261:5–20. Nevertheless, the Court took the testimony of each of the potentially biased witnesses for what that testimony was worth, considering the danger of possible bias, the witness's prior consistent or inconsistent statements, corroborating evidence, and the witness's demeanor during the hearing. See, e.g. , Cruise Connections Charter Mgmt. 1, LP v. Attorney General of Canada , 55 F.Supp.3d 156, 177 (D.D.C. 2014) (recognizing that one witness was interested in the outcome but that his testimony should be credited because it was "cogent and unequivocal"); Faison v. Dist. of Columbia , 893 F.Supp.2d 143, 149 n.5 (D.D.C. 2012) (concluding that the plaintiff was an interested witness and only partially credible because of her "tendency to exaggerate when it might help her case"). The Court's findings of fact based on that testimony and the entire record follow.

A. Brown's Engagement

Mark Brown has been an attorney since 1979. 4/20 A.M. Tr. 20:12–18. Prior to working on the instant case, he was employed as a partner in a respected Los Angeles law firm. Id. He met Dennis Gingold, lead class counsel, in the early nineties. Id. 20:23–21:11. After Plaintiffs won the first trial before Judge Lamberth in 1999, Gingold recommended to the lead class representative, Elouise Cobell, that she engage Brown to work on the case. See id. 22:11–21; 4/21 Tr. 227:15–18; Brown Ex. 1 at 1; Affidavit of Keith Harper [Dkt. 4204–1] ¶ 2. She agreed to do so. Brown Ex. 1 at 1. Brown accepted her offer to...