Cobell v. Norton

• Decision Date: 27 May 2004
• Docket Number: Civ.A. No. 96-1285(RCL).
• Citation: Cobell v. Norton, 319 F.Supp.2d 36 (D. D.C. 2004)
• 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

319 F.Supp.2d 36

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

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

United States District Court, District of Columbia.

May 27, 2004.

COPYRIGHT MATERIAL OMITTED

Dennis M. Gingold, Elliott H. Levitas, Kilpatrick Stockton, LLP, Keith M. Harper, Richard A. Guest, Native American Rights Fund, Mark Kester Brown, Washington, DC, for Plaintiffs.

Earl Old Person, Browning, MT, pro se.

Brian L. Ferrell, Charles Walter Findlay, III, Cynthia L. Alexander, Henry A. Azar, Jr., J. Christopher Kohn, Jennifer R. Rivera, John Thomas Stemplewicz, Jonathan Brian New, Sandra Peavler Spooner, Seth Brandon Shapiro, Dodge Wells, Gino D. Vissicchio, John R. Kresse, John Joseph Siemietkowski, John Warshawsky, Michael John Quinn, Phillip Martin Seligman, Timothy Edward Curley, Tracy Lyle Hilmer, Amalia D. Kessler, U.S. Department of Justice, Mark E. Nagle, Robert Craig Lawrence, U.S. Attorney's Office, Christina M. Carroll, Daniel Gordon Jarcho, Michael James Bearman, McKenna Long & Aldridge, LLP, Robert D. Luskin, Patton Boggs LLP, John T. Richards, Jr., Trout & Richards, PLLC, B. Michael Rauh, Manatt, Phelps & Phillips, L.L.P., Washington, DC, John Charles Cruden, U.S. Department of Justice, Annandale, VA, Terry M. Petrie, U.S. Department of Justice, Herbert Lawrence Fenster, McKenna Long & Aldridge, LLP, Denver, CO, for Defendants.

Lawrence H. Wechsler, Janis, Schuelke & Wechsler, Donald Michael Barnes, Porter, Wright, Morris & Arthur, David Booth Beers, Shea & Gardner, Pamela J. Marple, Manatt, Phelps & Phillips, L.L.P., Timothy Patrick Garren, John Warshawsky, U.S Department of Justice, Erik Lloyd Kitchen, Steptoe & Johnson, L.L.P., Martha Purcell Rogers, Ober, Kaler, Grimes & Shriver, Amy Berman Jackson, Trout & Richards, P.L.L.C., Michael R. Bromwich, Fried, Frank, Harris, Shriver & Jacobson, Roger Eric Zuckerman, Zuckerman Spaeder, LLP, Stephen M. Byers, Crowell & Moring, L.L.P., Leslie B. Kiernan, Zuckerman Spaeder, LLP, Lenard Barrett Boss, Cozen O'Connor, P.C., John Francis Hundley, Plato Cacheris, Baker & McKenzie, Sydney Jean Hoffmann, The Law Offices of Plato Cacheris, Barbara Ann Van Gelder, Wiley Rein & Fielding, LLP, Laura C. Zimmitti, Marc Evan Rindner, William H. Briggs, Jr., Ross, Dixon & Bell, LLP, Thomas Edward Wilson, Berliner, Corcoran & Rowe, L.L.P., Mary Lou Soller, Miller & Chevalier, Chartered, Jeffrey D. Robinson, Melissa Heitmann McNiven, Dwight Phillip Bostwick, Baach Robinson & Lewis PLLC, John Albert Gibbons, Steven John Roman, Dickstein, Shapiro, Morin & Oshinsky, L.L.P., Lisa Freiman Fishberg, Coburn & Schertler, L.L.P., E. Lawrence Barcella, Jr., Paul, Hastings, Janofsky & Walker, L.L.P., Alessio D. Evangelista, David Sidney Krakoff, Beveridge & Diamond, P.C., Michael D. Goodstein, Resolution Law Group, PC, Bradley Stuart Lui, Morrison & Foerster, LLP, Andrew Dewald Herman, Stanley M. Brand, Brand & Frulla, P.C., Marshall L. Matz, Olsson, Frank & Weeda, P.C., Brian Michael Privor, William Leonard Gardner, Morgan, Lewis & Bockius, L.L.P., Hamilton Phillips Fox, III, Sutherland, Asbill & Brennan, L.L.P., Christopher J. Lovrien, Robert Christopher Cook, Jones Day, Robert A. Salerno, Piper Rudnick LLP, George Joseph Hughes, Hughes & Bentzen, PLLC, Bruce Allen Baird, Michael X. Imbroscio, Nicole Jo Moss, Covington & Burling, Alan I. Baron, Holland & Knight LLP, Howard Christopher Bartolomucci, Hogan & Hartson, L.L.P., Judith Lynne Wheat, Shaw, Bransford, Veilleux & Roth, William M. Sullivan, Jr., Winston & Strawn LLP, Jonathan K. Tycko, Tycko Zavareei LLP, Richard Lee Cys, Davis Wright Tremaine, Christopher B. Mead, London & Mead, Jill Elise Grant, Nordhaus, Haltom, Taylor, Taradash & Bladh, LLP, Kathleen Elizabeth Voelker, Dennis M. Gingold, Washington, DC, William Aaron Dobrovir, Sperryville, VA, Larry Allen Nathans, Robert W. Biddle, Nathans & Biddle, LLP, Baltimore, MD, John Kenneth Zwerling, Lisa Bondareff Kemler, Zwerling & Kemler, P.C., Alexandria, VA, Emily M. Yinger, Hogan & Hartson, McLean, VA, Nathaniel D. Owens, Remedies Legal Service, P.C., Anniston, AL, Neil James Ruther, Towson, MD, for Movants.

Eddie Jacobs, Oklahoma City, OK, pro se.

Amy S. Koch, Cameron McKenna, Charles Allen Hobbs, Hobbs, Straus, Dean & Walker, Washington, DC, Stephen R. Ward, Conner & Winters, P.C., Jason B. Aamodt, Tulsa, OK, Geoffrey D. Strommer, Hobbs, Sraus, Dean & Walker, Portland, OR, for Amicus.

Albert Lee Bynum, Gadsden, AL, pro se.

MEMORANDUM AND ORDER

LAMBERTH, District Judge.

Before the Court are: 1) Plaintiffs' Request for Award of Attorney's Fees and Related Expenses Based Upon Findings Establishing Defendants' Litigation Misconduct [2399], filed on November 26, 2003; 2) Plaintiffs' Bill of Cost [2428], filed December 16, 2003; 3) Plaintiffs' Request for an Award of Attorney's Fees and Expenses Pursuant to the Equal Access to Justice Act [2328], filed on October 9, 2003. Related to these filings are Plaintiffs' Motion for Enlargement of Time [2336], filed on October 15, 2003, Plaintiffs' Motion to Amend Their Bill of Costs [2436], filed on December 23, 2003, and Plaintiffs' Motion for Enlargement of Time Within Which to File Supporting Attorney and Expert Witness Documentation re EAJA Fee Application [2345], filed on October 23, 2003. The Court will examine each motion in turn.

I. Plaintiffs' Request for Award of Attorney's Fees and Related Expenses Based Upon Findings Establishing Defendants' Litigation Misconduct [2399] ("Motion for Litigation Misconduct Fees").

Plaintiffs seek fees and expenses due to defendants'"litigation misconduct," as described by the Court in its opinion following the second contempt trial, Cobell v. Norton, 226 F.Supp.2d 1, 152-155 (D.D.C.2002). Plaintiffs acknowledge that the Court's opinion was vacated on appeal, see 334 F.3d 1128 (D.C.Cir.2003), yet maintain that nothing in the D.C. Circuit's decision prevents this Court from awarding attorneys fees due to defendants' litigation misconduct. Mot. for Litigation Misconduct Fees at 1-7, 13-20. Plaintiffs are incorrect. The Court ordered defendants to pay the plaintiffs' reasonable expenses, including attorneys' fees, "as a result of the defendants' contumacious conduct." 226 F.Supp.2d at 153. However, the contumacious conduct in issue included: (1) failing to comply with the Court's Order of December 21, 1999, to initiate a Historical Accounting Project; (2) committing a fraud on the Court by concealing the [Interior] Department's true actions regarding the Historical Accounting Project during the period from March 2000 until January 2001; (3) committing a fraud on the Court by failing to disclose the true status of the Trust Asset and Accounting Management System project ("TAAMS") between September 1999 and December 21, 1999; (4) committing a fraud on the Court by filing false and misleading quarterly status reports, starting in March 2000, regarding TAAMS and data cleanup by the BIA; and (5) committing a fraud on the Court by making false and misleading representations starting in March 2000, regarding the computer security of IIM trust data. Cobell v. Norton, 334 F.3d at 1135. Each of these findings were subsequently overturned by the Circuit which held: "[t]he Contempt Order is vacated insofar as it sanctions the defendants on specifications one through five and directs the payment of expenses and fees incurred by the plaintiffs." 334 F.3d at 1150.

The Court's finding of misconduct was tied directly to those five counts which the Circuit overturned and for which the Circuit explicitly denied Plaintiffs the right to collect fees. Plaintiffs' request for fees arising from the second contempt trial is denied.

Plaintiffs also request that this Court order "a broad compensatory award of attorney's fees" as sanction for defendants'"well-documented history of litigation misconduct from the outset." Mot. for Litigation Misconduct Fees at 9-10. Plaintiffs have not, however, identified specific instances of misconduct nor detailed any costs or expenses they incurred as a result. This failure is fatal to plaintiffs' request and it therefore shall be denied, except as discussed below.

II. Plaintiffs' Bill of Cost [2428].

Plaintiffs also seek to have costs assessed against defendants for the Phase 1.0 trial and the Phase 1.5 trial pursuant to Federal Rule of Civil Procedure 54(d) which provides that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Defendants contest plaintiffs' bill of costs as premature. Defendants are only partially correct. LCvR 54.1(c) provides that, "[t]he Clerk shall tax costs after the judgment has become final or at such earlier time as the parties may agree or the court may order." (Emphasis added). These rules vest the Court with discretion to award costs before final judgment. See Friends For All Children, Inc. v. Lockheed, 725 F.2d 1392, 1396 (D.C.Cir.1984) ("Nor do we doubt the discretionary power of a trial judge to order payment of costs pendente lite, in an appropriate case, in favor of a party properly designated as a prevailing party. We are of the view, however, that to qualify as a prevailing party, and thus be eligible for an interlocutory award of costs, one must establish a right or entitlement to some relief on the merits of one or more of his claims"). It is clear plaintiffs have prevailed on those issues related to the Phase 1.0 trial both in this Court and on appeal. Cobell v. Babbitt, 91 F.Supp.2d 1 (D.D.C.1999), affirmed, 240 F.3d 1081 (D.C.Cir.2001). Defendants, for their part, concede that "Plaintiffs probably are prevailing parties for the Phase 1 trial." Defs.' Opp'n to Pls.' Req. for an Award of Attorney's Fees and Expenses Pursuant to the Equal Access to Justice Act at 11 (Oct. 24, 2003) [2346] ("Defs.' Opp'n to Pls.' EAJA Motion"). The Court hereby awards plaintiffs fees and costs from the Phase 1.0 trial,...