Cobell v. Norton
| Decision Date | 15 March 2004 |
| Docket Number | No. CIV.A.96-1285(RCL).,CIV.A.96-1285(RCL). |
| Citation | 310 F.Supp.2d 102 |
| Parties | Elouise Pepion COBELL, et al., Plaintiffs, v. Gale NORTON, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Alan Lee Balaran, Washington, DC, pro se.
Dennis M. Gingold, Elliott H Levitas, Keith M. Harper, Mark Kester Brown, Richard A. Guest, 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 Charles Cruden, John Thomas Stemplewicz, Jonathan Brian New, Mark E. Nagle, Robert Craig Lawrence, 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, Terry M. Petrie, Timothy Edward Curley, Tracy Lyle Hilmer, Amalia D. Kessler, U.S. Department of Justice, Christina M. Carroll, Daniel Gordon Jarcho, Herbert Lawrence Fenster, Michael James Bearman, McKenna Long & Aldridge, LLP, Robert D. Luskin, Patton Boggs LLP, Elizabeth Wallace Fleming, John T. Richards, Jr., Trout & Richards, P.L.L.C., B. Michael Rauh, Manatt, Phelps & Phillips, L.L.P., Washington, DC, for Defendants.
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 [2078]. 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 partiality.
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 on 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 1.1
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.
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 § 455(b)(1).
The Court will briefly recapitulate the facts underlying this decision.
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) ().
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...
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