<< COB0000001 >>
N THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. 1:96CV01285
	)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior,	)
et al	)
	)
Defendants.	)
INTERIOR DEFENDANTS' MOTION TO REVOKE
THE APPOINTMENT OF JOSEPH S. KIEFFER, III, AND TO
CLARIFY THE ROLE AND AUTHORITY OF A COURT MONITOR
	The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior
Defendants") respectfully move for an order revoking the appointment of Joseph S. Kieffer, III,
as Court Monitor. This motion is required because the Court Monitor's recent activities have
exceeded the constitutional and statutory limits of the Court's jurisdiction and the authority
delegated him in this Court's orders, and because the Court Monitor has demonstrated a lack of
impartiality that requires his disqualification from further participation in this case.
	In the event the Court determines that a continuing role for a court monitor is appropriate
in this case, Interior Defendants request that the Court clarify the proper limits on the role and
authority of any future court monitor to minimize the likelihood that the problems with the
current Court Monitor will recur. Accordingly, in addition to requesting the vacation of Mr.
Kieffer's appointment, Interior Defendants request that the Court clarify its previous orders
regarding the role and authority of a court monitor to make them consistent with the
constitutional and statutory limits on the Court's jurisdiction and to ensure in the future that the
<< COB0000002 >>
court monitor's activities will conform to these limits and to the proper role ofajudicial officer.
In support of this motion, the Interior Defendants rely upon the attached exhibits, the
memorandum in support filed simultaneously herewith, and the record herein.
Counsel for the Interior Defendants conferred with counsel for the Plaintiffs concerning
this motion. Counsel for Plaintiffs stated that the Plaintiffs oppose this motion.
Respectfully submitted,
ROBERT D. McCALLUM, JR.
Assistant Attorney General
STUART E. SCHIFFER
Deputy Assistant Attorney General
J.	CHRISTOPHER KOHN
Director
Dated:	June 14, 2002
Deputy Director
D.C. Bar No. 261495
JOHN T. STEMPLEWICZ
Senior Trial Counsel
CYNTHIA L. ALEXANDER
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
-2-
<< COB0000003 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUlSE PEPION COBELL, et aL,	)
		)
	Plaintiffs,	)
		)
	V.	)	CaseNo. I:96CV01285
	)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior,	)
		)
	Defendants.	)
INTERIOR DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION
TO REVOKE THE APPOINTMENT OF JOSEPH S. IUEFFER,, III, AND TO
CLARIFY THE ROLE AND AUTHORITY OF A COURT MONITOR
	The Secretary of the Interior ("Secretary") and the Assistant Secretary - Indian Affairs
("Interior Defendants") submit this memorandum in support of their motion to revoke the
appointment of Joseph S. Kieffer, III, as Court Monitor and to clarify the role and authority of a
court monitor. Mr. Kieffer's appointment should be revoked because he has failed to respect the
constitutional and statutory limits of this Court's jurisdiction and the limits on his own judicial
authority by intruding impermissibly in the internal affairs of the Department of the Interior
("Interior") and has demonstrated a lack of impartiality that requires his disqualification from
further participation in this case. The Interior Defendants did not consent to Mr. Kieffer's
reappointment under the conditions set out in the order reappointing him for a second one-year
term. Indeed, the reservations Interior Defendants expressed in their response to the Court's
request for the views of the parties on the Court Monitor's proposed reappointment presaged
recent events which have demonstrated that the Court Monitor does not recognize and will not
<< COB0000004 >>
adhere to the limits on this Court's jurisdiction. His actions threaten public confidence in the
integrity and impartiality of our court system.
	In addition, in the event the Court determines that a continuing role for a court monitor is
appropriate in this case, Interior Defendants request that the Court clarify the proper limits on the
role and authority of any future court monitor to ensure that his or her actions will be consistent
with the constitutional and statutory limits on the Court's jurisdiction and the proper role of a
judicial officer.
BACKGROUND
I.	Prior Proceedings.
A.	December 21, 1999 Order and Appeal.
	In its December 21, 1999 Opinion and Order, this Court declared that the Interior
Defendants and the Secretary of the Treasury are required to provide the Plaintiffs with an
"accurate accounting of all money in the TIM trust held in trust for the benefit of [P]laintiffs,
without regard to when the funds were deposited." Cobell v. Babbitt, 91 F. Supp. 2d 1, 58
(D.D.C. 1999). Thc Court further declared that the Interior Defendants breached a duty to
retrieve and retain all information necessary to render an accurate accounting of money in the
LIM trust, and a duty to establish written policies and procedures on a number of issues related to
rendering the accounting. Id. The Court remanded to the agency "[t]o allow defendants the
opportunity to promptly come into compliance through the establishment of the appropriate
written policies and procedures." Id.
	The Court retained jurisdiction over this action for five years, and ordered the Interior
Defendants to "file with the [C]ourt.. . quarterly status reports setting forth and explaining the
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<< COB0000005 >>
steps that [they] havc taken to rectif~, the breaches of trust declared [by the Court] and to bring
themselves into compliance with their statutory trust duties... ." 91 F. Supp. 2d at 59.
"Through [the] mechanism" of the quartcrly reports, the Court sought to "ensure defendants'
future compliance with their trust duties... 'without having to speculate over the possibility of
further agency delays,"' and without "unduly intruding into the role of the Executive branch." Id.
at 55 (quoting In re Center for Auto Safety, 793 F.2d 1346, 1354 (D.C. Cir. 1986)). In
compliance with this Order, the Interior Defendants have filed nine quarterly reports.
	Although the Plaintiffs requested that the Court place the LIlA trust under court
supervision and sought, among other things, appointment of a court monitor or special master,
the Court declined to make such an appointment at that time. 91 F. Supp. 2d at 52-56. The
Court noted that "defendants legitimately point out that more intrusive court involvement may
lead to conflicting directions and thereby create a drag on defendants' discharge of their duties."
Id. at 56. The Court stated its intent to "be diligent in its effort to ensure that trust reform is
successfully completed but to exercise its power judicially and with appropriate deference and
respect for the other two branches of govemment." Id.
	In February 2001, the Court of Appeals affirmed this Court's holding that an accounting
was required, but noted that the "district court explicitly left open the choice of how the
accounting would be conducted, and whether certain accounting methods, such as statistical
sampling or something else, would be appropriate." Cobell v. Norton, 240 F.3d 1081, 1104
(D.C. Cir. 2001). Such decisions, the Court of Appeals held, "are properly left in the hands of
administrative agencies." Id. Thus, the Court of Appeals warned that:
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<< COB0000006 >>
[W]e expect the district court to be mindful of the limits of its
jurisdiction. It remains to be seen whether in preparing to do an
accounting the Department takes steps so defective that they would
necessarily delay rather than accelerate the ultimate provision of an
adequate accounting, and the detection of such steps would fit
within the court's jurisdiction to monitor the Department's
remedying of the delay; beyond that, supervision of the
Department's conduct in preparing an accounting may well be
beyond the district court's jurisdiction.
Id. at 1110. As no court monitor had yet been appointed, the Court of Appeals did not address
whether or for what purposes the appointment of a court monitor might be appropriate.
B.	Initial Appointment of the Court Monitor.
	In March 2001, the Court proposed the appointment of a court monitor after Plaintiffs
raised questions about the accuracy of information provided to the Court in Interior Dcfendants'
quarterly reports. After a series of conferences with the Court, the Interior Defendants consented
to appointment of a court monitor for one year. The Interior Defendants agreed to appointment
of a court monitor "so that resources can be more directed towards trust reform and less directed
towards litigation" about trust reform. Status Hearing, April 16, 2001 ("Status Hearing") at 5
(Exhibit A).
	In an April 2001 Order, entered "in accordance with the Court's inherent powers," the
Court appointed the present Court Monitor, Mr. Joseph S. Kieffer, m, for a period of one year to
"monitor and review all of the Interior [D]efendants' trust reform activities and file written
reports of his findings with the Court." Order, April 16, 2001 ("April 200 lOrder") at I &  2
(Exhibit B). The order did not limit the monitoring of "trust reform activities" to the breaches of
trust identified by the Court or make clear the purpose to be served by the "monitor[ingJ and
review[ing]." Nor did the Order clarify jurisdictional or other limits on the Court Monitor's
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<< COB0000007 >>
authority and activities. The Order pennitted the Court Monitor to make and receive ex parte
communications to the extent "necessary or proper to effectuate his duties" Id at  3, and
dircctcd thc Intcrior Defendants to provide the Court Monitor with "access to any Interior offices
or employees to gather information necessary or proper to fulfill his duties." Id. at  4. In the
event the Court Monitor had problems "with access to information or persons," he was directed
to resolve them "informally" and, if that proved impossible, to bring them "to the attcntion of the
Court." Id.
	Shortly after the Court Monitor was appointed, the Secretary advised all employees of the
Department of the Interior "that Mr. Kieffer must be provided access to records and documents
of the Department, its bureaus and offices, as well as to any officer and employee of the
Department and to any of its offices, bureaus or contractors that he deems necessary for the
accomplishment of his duties to review and monitor the trust reform efforts of the Department."
Memorandum from Sccretary Norton to All Employees of the Department of the Interior (April
24. 2001) at 1-2 (Exhibit C). The Secretary further advised her employees to read the directive
"broadly." liL at 2. Under the terms of his first appointment, the Court Monitor prepared six
reports on trust reform issues.
C.	Reappointment of the Court Monitor.
	On April 4, 2002, the Court requested the views of the parties with respect to extension of
the Court Monitor's term for an additional year. Order, April 4, 2002. The Interior Defendants
responded by asserting that limitations should be imposed on the Court Monitor's powers in
order to protect the government's privileges and allow the Interior Defendants "candidly to
consider and debate the proper course of future trust reform efforts." Interior Defendants'
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<< COB0000008 >>
Response To Court Order Dated April 3, 2002 Regarding Court Monitor (April 11, 2002)
("Response Regarding Court Monitor") at 3. The Interior Defendants expressly conditioned their
consent on the following conditions: "(1) [that] the Court Monitor's actions and reports [be]
given no greater deference or status tha[n] those set out in Federal Rule of Civil Procedure 53,
(2) [that] his reports [be] limited to reporting on steps taken by the Department to rectify the
breaches of trust declared by the Court or steps taken that 'would necessarily delay rather than
accelerate the ultimate provision of an adequate accounting,' Cobell v. Norton, 240 F.3d 1081,
1110 (D.C. Cir. 2001). and (3) [that] his findings of fact submitted to the Court [be] based upon
witness testimony from on-the-record statements given under oath with an opportunity for cross-
examination by the parties." Id. at 1-2.
	On April 15, 2002, the Court extended the Court Monitor's term for an additional year,
but rejected one of the conditions of the Interior Defendants' consent, i.e. that the Court
Monitor's reports must be limited to steps taken to rectify the breaches declared by the Court or
steps taken that would necessarily delay the provision of an adequate accounting. See Order,
April 15, 2002 ("April 2002 Order") (Exhibit D). Instead, the Court ordered that the Court
Monitor's duty to "monitor and review all of the Interior [Diefendants' trust reform activities"
remained unchanged. Thus, the Court Monitor has been serving since April 15, 2002, without
the consent of the Interior Defendants.
II.	The Court Monitor's Recent Activities.
A.	The Seventh Report Of The Court Monitor.
The Seventh Report Of the Court Monitor ("Seventh Report"), filed May 2, 2002,
focused on the Secretary's evaluation and supervision of the Special Trustee's job performance
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<< COB0000009 >>
from November 14, 2001, through May 2, 2002. Because this area of inquiry is constitutionally
off-limits to the Court Monitor, the Interior Defendants objected to the Seventh Report in its
entirety and requested that the Court reject it. The Interior Defendants' objections are set forth in
detail in their Response To The Seventh Report Of The Court Monitor, filed May 16, 2002,
("Interior's Response to the Seventh Report") and are incorporated by reference herein.
B.	Meeting with Interior Officials.
	On April 19, 2002, shortly after the Special Master issucd reports critical of the Special
Trustee's performance but before the Seventh Report was filed, the Court Monitor met with
Deputy Secretary J. Steven Griles. Associate Deputy Secretary James E. Cason, Office of Indian
Trust Transition Director Ross Swimmer, Special Trustee for Indian Affairs Thomas Slonaker,
and (by phone) Principal Deputy Trustee for Indian Affairs Tom Thompson. ~ Declaration of
J. Steven Griles, June 4, 2002 ("Griles Dccl.") (Exhibit E); Declaration of James E. Cason, June
4, 2002, ("Cason Deci.") (Exhibit F); Declaration of Ross 0. Swimmer, May 30, 2002,
("Swimmer Dccl.") (Exhibit G). Near the beginning of the April 19, 2002, meeting, the Court
Monitor told those attending the meeting that it was "cx pane," Griles Dccl.  4, that they were
not to take any notes, Cason DecI.  4, Griles Dccl.  4, Swimmer Decl. II 4, and that they were
not to reveal or repeat the discussion held at the meeting to anyone. Cason Dccl.  4. In
addition, the Court Monitor, who happens to be an attorney, observed that they were not getting
good legal advice.' Griles Dccl.  6.
	Echoing this comment, the Seventh Report is replete with the Court Monitor's personal
opinions about the adequacy of Interior Defendants' legal representation. See Seventh Report at
44, 53, 54, 66, 68-73, 75-79, 81-83.
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<< COB0000010 >>
	The Court Monitor said that he wished to discuss recent memoranda between the
Secretary and the Special Trustee and that there had been an effort to misrepresent the actions of
the Special Trustee to the Secretary. Griles Dccl.  5; Swimmer Deci.  5; Cason Deci.  5. He
stated that Interior had a major problem involving the relationship between the Special Trustee
and the senior management team, and that the senior management team was undermining the
Special Trustee's efforts to provide trust reform oversight. Cason DecI.  5. He stated that the
Secretary had made a serious mistake by writing a memorandum criticizing the Special Trustee.
Swimmer DecI.  5.
	The Court Monitor then issued an ultimatum, giving these high-level Interior officials the
choice between complying with his view rcgarding how the Department should manage its trust
responsibilities, or declining to do so and suffering adverse consequences. Cason Dccl.  6, 7,
15; Griles Dccl.  9; Swimmer Deci.  6. In particular, the Court Monitor said that he wanted
senior management to work more closely with the Special Trustee and to establish in writing that
certain oversight and operational authority would be reserved to the Special Trustee. Cason
Dccl.  6; Griles Dccl.  7. If senior officials failed to do as he directed, the Court Monitor stated
that his Seventh Report would target them for criticism. Cason Dccl.  6, 7, 12; Griles Dccl. 
9; Swimmer Dccl.  6. Based upon the statements the Court Monitor made during the meeting,
the Interior officials concluded that the Court Monitor had "chosen sides" and that "the senior
management team had been put on notice that [they] must accept the Court Monitor's point of
view or suffer unpleasant consequences." Cason DecI. 1 15. The Court Monitor also advised
those present that appeals will be futile in this case because of a social relationship between the
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<< COB0000011 >>
district court judge and one of the judges in an appellate court. Cason Dccl.  13; Swimmer
Deci.  3, Griles Dccl.  6.
C.	Tribal Task Force Meeting
	On May 20, 2002, the Court Monitor publicly expressed his views on trust reform and his
opinions regarding certain Interior officials at a meeting of the Task Force On Trust Management
Reform in Bloomington, Minnesota. See Transcript of Remarks of Joseph Kieffer at May 20,
2002 Task Force on Trust Management Reform Meeting ('Task Force Transcript") (Exhibit H).
ARGUMENT
	It is with great reluctance that the Interior Defendants request that this Court revoke the
appointment of Joseph S. Kieffer, m, as Court Monitor. Their initial consent to his appointment
was predicated upon their understanding that his appointment would permit the government's
resources to be "more directed towards trust reform and less directed towards litigation," Status
Hearing at 5 (Exhibit A), and their expectation that the Court Monitor would observe the
constitutional and jurisdictional limits on his authority and perform his duties with the
impartiality required of a judicial officer.
	Unfortunately, since his reappointment, the Court Monitor has taken actions that have
created the very situation the Court was determined to avoid. He has deliberately intruded
"unduly... into the role of the Executive [B]ranch," Cobell v. Babbitt, 91 F. Supp. 2d at 55,
failed to "exercise [his] power judicially and with appropriate deference and respect for [the
Executive Branch]," hL at 56, and created a serious "drag on [Interior] [D]efendants' discharge
of their duties," id. The Court Monitor is not reporting as a neutral judicial observer on steps
taken by the Interior Defendants in remedying the breaches of duty declared by the Court, but
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<< COB0000012 >>
instead is seeking to interfere with  and even control  sensitive agency decision-making that is
at the heart of the constitutional prerogative of the Executive Branch. He has, moreover,
demonstrated a lack of impartiality that requires his disqualification from further participation in
this case.
	Because it is clear from his actions that the Court Monitor does not recognize and will not
adhere to the limits on this Court's jurisdiction, and because his actions threaten public
confidence in the integrity and impartiality of our court system, the Interior Defendants
respectfully request that the Court revoke the appointment of Joseph S. Kieffer, m, as Court
Monitor. In addition, in the event the Court determines that a continuing role for a court monitor
is appropriate in this case, Interior Defendants request that the Court clarify the proper limits on
the role and authority of any future court monitor to ensure that his or her actions will be
consistent with the constitutional and statutory limits on the Court's jurisdiction and the proper
role of a judicial officer.
I.	The Court Monitor's Order Of Appointment Must Be Vacated.
A.	The Court Monitor Has Improperly Intruded In Executive Branch Functions
In Violation Of The Constitutional And Statutory Constraints On The
Court's Jurisdiction.
	A court-appointed judicial officer cannot assume powers that exceed constitutional and
statutory bounds on the jurisdiction of the Court itself. The Court Monitor has overstepped the
bounds of the constitutional separation of powers doctrine, the waiver of sovereign immunity
provided by the Administrative Procedure Act ("APA"), 5 U.S.C.  701-706, and his mandate
to report on matters concerning trust reform by inserting himself into the agency's deliberations
to try to influence, and even control, decisions which are properly within the purview of the
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<< COB0000013 >>
Department of the Interior. While the Department of the Interior has afforded the Court Monitor
unprecedented access to its deliberative process, the Court Monitor's use of the information he
has obtained is constrained by the jurisdiction of this Court. The Court Monitor has apparently
confused the access to the deliberative process that Interior Defendants have provided to
facilitate his reporting function with an invitation to become an active participant in the decision-
making process.
	As this Court recognized, "the judicial branch must consider not only the parties' rights
and correlative obligations, but also constitutional concerns such as separation of powers[;]....
[t]he [Clourt cannot simply take over the role of the agency or bring all actions of [Interior
Defendants] under its authority." Cobell v. Babbitt. 91 F. Supp. 2d at 53-54. The separation of
powers into three distinct and co-equal branches of government is a fundamental component of
our constitutional framework as a "self-executing safeguard against the encroachment or
aggrandizement of one branch at the expense of the other." Buckley v. Valeo, 424 U.S. 1, 122
(1976). The Constitution provides that the three branches of government are to be "entirely free
from the control or coercive influence, direct or indirect, of either of the others." Hum lire 's
Executor v. United States, 295 U.S. 602, 629 (1935). The President has the exclusive authority
to "take Care that the Laws be faithfully executed." U.S. Const. art. II,  3. This "broad power"
is "conspicuously not granted to [courts] by the Constitution." INS v. Legalization Assistance
Proiect, 510 U.S. 1301, 1304 (1993). Courts "'are not charged with general guardianship against
all potential mischief in the complicated tasks of govermnent."' Sierra Club v. Army Corps of
Engineers, 701 F.2d 1011, 1048 (2d Cir. 1983) (quoting FCC v. Pottsville Broadcastin2 Co.. 309
U.S. 134, 146 (1940)).
11
<< COB0000014 >>
	The APA, which provides the waiver of sovereign immunity for this action, is consistent
with the limitations imposed by the Constitution. Congress has recognized that an agency's
substantive decisions are largely discretionary and not subject to review by the courts. Sierra
Club v. Army Corps of Engineers, 701 F.2d at 1044. Consistent with the limitations imposed by
APA review, both this Court and the Court of Appeals have recognized that courts "cannot
~become... enmeshed in the minutiae' of agency administration." Cobell v. Norton, 240 F.3d at
1108 (quoting Cobell v. Babbitt, 91 F. Supp. 2d at 54, in turn quoting Bell v. Wolfish, 441 U.s.
520, 562 (1979)). Rather, "[ut is proper for a court to allow the government 'the opportunity to
cure the breaches of trust declared' by the court." Id. at 1108-09 (quoting Cobell v. Babbitt, 91
F. Supp. 2d at 54).
	Certainly, a court monitor may not exercise more control over a federal agency than a
district judge can permissibly exercise. In Sierra Club v. Army Cows of En2ineers, the Second
Circuit made clear that a special master "may not control the internal operations of federal
administrative agencies." 701 F.2d at 1042 (citing Vermont Yankee Nuclear Power Corn. v.
Natural Resources Defense Council, 435 U.S. 519, 542-49 (1978); FPC v. Transcontinental Gas
Pine Line Corp.. 423 U.S. 326, 333 (1976); FCC v. Pottsville Broadcasting Co., 309 U.S. 134
(1940)). While this issue has rarely arisen because courts have only rarely appointed a court
monitor or special master to report on the internal affairs of another branch of the federal
government, courts have raised similar concerns in other contexts. See. e.g., Ruiz v. Estelle, 679
F.2d 1115, 1162 (5th Cir.) (directing that special master and court monitors "are not to consider
matters that go beyond superintending compliance with the district court's decree," and stating
that "the powers of the court's appointed agents should not intrude to an unnecessary extent on
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<< COB0000015 >>
prison administration"), amended in part, vacated in part, 688 F.2d 266 (5th Cir. 1982); Feliciano
v. Barcelo, 672 F. Supp. 591, 624-25 (D.P.R. 1986) (directing that "Court Monitors and other
persons operating on the Court's behalf shall not intervene in the administrative management of
the [Puerto Rican prison administration]," and "shall not be empowered to direct defendants or
any of their subordinates to take or to refrain from taking any specific action to achieve
compliance").
	By his actions in preparing and filing his Seventh Report, and in the actions he took to
promote its conclusions both before and after its publication, the Court Monitor has
demonstrated his unwillingness to respect the limits on the Court's  and by extension his own 
authority. In the Seventh Report, the Court Monitor goes beyond a review and report of
Interior's trust reform activities and seeks to intrude into internal affairs of the agency and
interfere with internal agency deliberation and decision making. The Seventh Report focuses
almost exclusively on internal agency deliberations concerning sensitive matters that cannot,
consistent with this Court's jurisdiction, be the subject of judicial review. As noted in Interior's
Response to the Seventh Report, the Report advances as established and controlling fact the
Court Monitor's own view on the competency of Interior personnel and the appropriate
assignment of management responsibilities, and generally seeks to make the agency's sensitive
internal deliberations about personnel issues into matters for public comment and judicial review.
By critiquing Secretary Norton's assessment of the performance of the Special Trustee,
defending the Special Trustee against any criticism or concern about his performance, and
endorsing an expanded role for the Special Trustee, the Court Monitor infringes upon the
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<< COB0000016 >>
Secretary's authority as the top official of the Department of the Interior.2 As the Special Trustee
reports to the Secretary, their relationship and her comments regarding his performance are
internal personnel matters not within the province of the judiciary. The Court Monitor's review
of and comment upon such matters intrudes into the administration of an Executive Branch
agency3 and demonstrates that the Court Monitor either misunderstands or refuses to accept his
role and the limits of his authority. As the Court Monitor is not an Executive Branch official
charged with management of the Department of the Interior, but rather a judicial officer
	2 The Seventh Report also brings the Court Monitor into conflict with the Special Master.
The Court Monitor filed the Seventh Report on May 2, 2002, just a few weeks after the Special
Master issued two reports that criticized the performance of the Special Trustee and his office.
See Second Investigative Report of the Special Master Regarding the Office of Trust Records
(April 11, 2002); Emergency Report of the Special Master Regarding Defendant's [sic] Proposed
Relocation of Records to the Lee's Summit Federal Records Center (April 17, 2002). Yet,
remarkably, the Court Monitor makes no mention in his Seventh Report of the serious concerns
raised by the Special Master about the performance of the Special Trustee, even though the
Seventh Report is devoted largely to a discussion of the Special Trustee's performance, and even
though the Special Master's concerns were clearly an important factor in the decision of the
Secretary to investigate the Special Trustee's performance.
	By arguing that the Secretary and Deputy Secretary criticized the Special Trustee's
performance in an effort to avoid a contempt finding, rather than an effort to address the concerns
raised in the Special Master's reports, the Seventh Report attempts to insulate the Special Trustee
from any negative consequences that might result from the Special Master's reports. In this way,
the Court Monitor not only violates constitutional limits on his authority as ajudicial officer, but
also places the Department of the Interior in the untenable position of having to answer to two
court-appointed officials  acting on behalf of the same judge  who offer radically different
conclusions about the obstacles to trust reform. In other words, it is because the Interior
Defendants sought to address the serious concerns raised by the Special Master about the
performance of the Special Trustee that they find themselves under attack by the Court Monitor
in the Seventh Report.
	~ It is not clear whether the Court Monitor's Seventh Report undertakes its strenuous
defense of the Special Trustee as a personnel issue see Seventh Report at 53-55, or a policy
issue, see Id. at 81-85, or both, but the Court Monitor's motivation for intervening in matters of
Executive Branch policy making and administration is irrelevant.
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<< COB0000017 >>
appointed by the Court, even his seemingly broad mandate to monitor "trust reform activities"
cannot authorize him to assume functions inconsistent with this Court's jurisdiction, which is
circumscribed by the constitutional doctrine of separation of powers as well as the APA.
	The Court Monitor's lack of respect for the limits on his authority is also demonstrated by
the statements he made during the meeting with senior Interior officials on April 19, 2002
described above  a meeting in which he made explicit that the purpose of the Seventh Report
was to protect the Special Trustee. In this meeting, held just two weeks before the Seventh
Report was filed, the Court Monitor advised high-level Interior officials that the senior
management team was undermining the Special Trustee's efforts to provide trust reform
oversight, and stated that unless the senior management team deferred to the Court Monitor's
view regarding the role and authority of the Special Trustee, the Court Monitor would file a
Seventh Report critical of the senior management team. While the Court Monitor is permitted to
meet ex parte with Interior officials, he has quite plainly exceeded the scope of his authority by
asserting that those officials should take specific actions and by threatening adverse
consequences if they do not alter their behavior as requested. The Court Monitor's duty is to
gather and report information to the Court, not to formulate policy and coerce decisions by a co
equal branch of the government with the responsibility to make them.
	The Court Monitor followed up his improper attempts to investigate and influence the
decisions of agency officials with respect to the Special Trustee with a document production
request4 that reveals his continuing intent to pursue his unconstitutional review of the Secretary's
	~	Neither the April 16, 2001 Order initially appointing the Court Monitor nor the April
15, 2002 Order reappointing the Court Monitor conferred upon him the authority to order or
(continued...)
-15-
<< COB0000018 >>
performance evaluation of the Special Trustee, in spite of the objections lodged by the Interior
Defendants in their Response to his Seventh Report. Many of the discovery requests evince a
post-hoc fishing expedition to substantiate the unsubstantiated allegations contained in the
Seventh Report (indeed the requests frequently cite pages of the Seventh Report to which the
document requests relate), and to intrude further into the Secretary's review of the Special
Trustee's job performance. Among many other documents, the Court Monitor has requested:
Any and all documents and correspondence maintained in the Office of
Special Trustee (OST) or by the OST employees regarding or relating to
the receipt and/or the preparation of the response to the Secretary of the
Interior's (Secretary) memorand[um] dated April 17, 2002 [to the Special
Trustee, which expresses concern about the Special Trustee's
performance] ....;
	Any and all documents and correspondence maintained in the Office of the
Secretary or Office of the Solicitor or by the employees of these offices regarding
or relating to the preparation of the [Secretary's April 17, 2002 memorandum to
the Special Trustee];
	Any and all memoranda, summaries of briefings, or other correspondence and
documents which the Secretary reviewed or relied on to prepare the [Secretary's
April 17, 2002 memorandum to the Special Trustee];
	Any and all lists or notes of meetings and/or other compilations of the attendees at
those meetings regarding preparation of the [Secretary's April 17, 2002
memorandum to the Special Trustee] including any at which the Secretary, the
Deputy Secretary of the Interior (Deputy Secretary), the Associate Deputy
Secretary, the Solicitor, or other DOI attorneys or employees attended;
	Any and all documents and correspondence regarding or relating to any actions
taken, recommendations or decisions made by the Deputy Secretary or his staff
regarding the Secretary's direction to him, discussed in her April 17, 2002
memorandum to the Special Trustee. that he review the "relative performance
of OST."
4(...continued)
conduct formal discovery.
-16-
<< COB0000019 >>
Letter from Joseph S. Kieffer, m, Court Monitor, to Sandra P. Spooner, Deputy Director,
Department of Justice (May 22, 2002) at 2-5 (Exhibit 1).
	That the Court Monitor has chosen to interfere in this manner in the daily management of
an Executive Branch agency demonstrates that he is either ignorant of the constitutional doctrine
of separation of powers and the statutory limits on this Court's jurisdiction, or that he is willfully
violating these fundamental principles. Either way, he has demonstrated that he is unfit to
perform the significant responsibilities assigned to the Court Monitor in this case and that the
Court must therefore revoke his appointment.
B.	The Court Monitor Lacks The Impartiality Required Of A Judicial Officer.
	The Court Monitor, as a judicial officer of this Court, is subject to the Code of Conduct
For United States Judges. See In re Joint Eastern and Southern Districts Asbestos Litig., 737 F.
Supp. 735, 739-40 (E.D.N.Y. and S.D.N.Y. 1990) (citing Belfiore v. New York Times Co., 826
F.2d 177, 185 (2d Cir. 1987)). The Code of Conduct for United States Judges ("Code of
Conduct") provides that "[a]nyone who is an officer of the federal judicial system performing
judicial functions is a judge for the purpose of this Code." Compliance with the Code of
Conduct. All of the Code of Conduct's provisions, except certain provisions relating to potential
conflicts arising from outside financial interests, are applicable. See Compliance with the Code
of Conduct,  B. This Circuit has specifically held that a "special master must hold himself to
the same high standards applicable to the conduct ofjudges." Jenldns v. Sterlacci, 849 F.2d 627,
632 (DC. Cir. 1988).
	Section 455 of title 28, United States Code, though it does not refer expressly to court
monitors or special masters, is applicable to such judicial officers in the D.C. Circuit. 849 F.2d
- 17 -
<< COB0000020 >>
at 630-3 1. Section 455 requires disqualification "1) where 'impartiality might reasonably be
questioned,'. . . and 2) where there is 'a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the proceedings."' In re Joint
Eastern and Southern Districts Asbestos Litin., 737 F. Supp. at 740 (quoting 28 U.S.C.  455).
These provisions "promote public confidence in the impartiality of the judicial process by saying,
in effect, if there is a reasonable factual basis for doubting the [court monitor's] impartiality, he
should disqualifyhimself... ." United States v. Werner. 916 F.2d 175, 178 (4th Cir. 1990)
(quoting H.R. Rep. No. 1453, 93d Cong., 2d Sess. 1, reprinted in 1974 U.S.C.C.A.N. 6351,
6355). The impartiality of a judicial officer charged with reporting on events can easily become
clouded when that judicial officer injects himsclf into those very events while they are
happening, and the Court Monitor's recent activities demonstrate that this risk is not theoretical.
The Court Monitor's activities since his reappointment on April 16, 2002 reveal a lack of
impartiality that requires his disqualification from further participation in this case.
	Section 455(b)(1) of Title 28, which requires a judicial officer to disqualif~' himself when
"he has a personal bias or prejudice concerning a party," looks to the individual's actual state of
mind. In contrast, Section 45 5(a) requires a judicial officer to recuse himself "in any proceeding
in which his impartiality might reasonably be questioned." The appearance of impartiality is
judged by an objective standard; the relevant question is whether a reasonable person would
question the judicial officer's impartiality. See. e.g. Liteky v. United States, 510 U.S. 540, 548
(1994) (stating that Section 45 5(a) requires "evaluat[ion] on an objective basis" (emphasis in
original)); United States v. Heldt, 668 F.2d 1238, 1271 (D.C. Cir. 1981) (holding that "we join
our sister circuits in concluding that a showing of an appearance of bias or prejudice sufficient to
- 18-
<< COB0000021 >>
permit the average citizen reasonably to question a judge's impartiality is all that must be
demonstrated to compel recusal under section 455[(a)]" and that such an appearance is to be
"judged by an objective standard"). In applying Section 455, courts may look not so much to
"the specifics of particular conversations" in which the judge made remarks alleged to
demonstrate bias or its appearance, but rather to the totality of the remarks and "their cumulative
effect." United States v. Microsoft Corp., 253 F.3d 34, 109 (D.C. Cir. 2001). The Court Monitor
has demonstrated repeatedly and in a variety of ways that he lacks the impartiality required of a
judicial officer.
1.	The Court Monitor Has Revealed His Bias In Public And Private
Remarks About Trust Reform.
	The Court Monitor has made several off-the-record remarks which, in their totality, either
suggest that he is, in fact, biased or prejudiced in favor of the Special Trustee and against senior
Interior officials, or would cause a reasonable person to doubt his impartiality toward these
officials and, as a consequcnce, toward the efforts they are making to implement trust reform.
The Court Monitor made these remarks in the April 19, 2002 meeting with high-level Interior
officials, described above, and during a May 20, 2002 meeting of the Task Force on Trust
Management Reform.5
	~	Although bias or~the appearance of bias is more likely to be found pursuant to Section
455 if the remarks at issue were made by the judicial officer in an extrajudicial context, the
Supreme Court has held that there is ~ requirement that remarks establishing bias or its
appearance be extrajudicial. See Liteky v. United States. 510 U.S. at 554 (stating that "neither
the presence of an extrajudicial source necessarily establishes bias, nor the absence of an
extrajudicial source necessarily precludes bias"). The remarks made by the Court Monitor at
both the April 19, 2002 and May 20, 2002 meetings, however, were extrajudicial in that they
were not made on the record, with an opportunity for all parties, represented by their counsel, to
respond. Cf. United States v. Microsoft Corp.. 253 F.3d at 115 (observing that if the judge had
(continued...)
- 19-
<< COB0000022 >>
	The circumstances of the April 19 meeting indicate that the Court Monitor is not, as
required by law, impartially observing the facts, but is instead seeking to use his status as a
judicial officer to force the Department of the Interior to manage its trust responsibilities as he
sees fit. The Court Monitor made his remarks to high-level agency officials, outside of the
presence of their counsel, told them not to take notes and not to discuss the meeting with others,
and stated that Interior was not getting good legal advice. Taken together, those remarks
suggested that the Interior officials should neither discuss the meeting with their counsel, nor
seek their counsel's advice on what to do. The Court Monitor told these officials that if they did
not take steps consistent with his agenda, he would write a hostile report about their actions. He
also said that appeals in this case will be futile because of a social relationship between the
district court judge and one of the judges in an appellate court, implying that no appeal taken by
the Interior Defendants will be decided on the merits. These remarks made under these
circumstances would, at a minimum, cause a reasonable person to believe that the Court Monitor
is not impartial in reporting on trust reform  indeed, that he is determined that his own views on
trust reform should prevail in the Department of the Interior.
	The Court Monitor also made remarks revealing his bias for the Special Trustee and
against senior Interior officials, or creating an objective appearance of such bias, during the May
20, 2002 meeting of the Task Force on Management Reform.6 First, he stated, "I have a great
5(...continued)
made comments suggesting bias against Defendant Microsofi "from the bench," "Microsofi
would have had an opportunity to object, perhaps even to persuade, and the Judge would have
made a record for review on appeal").
6 That the Court Monitor's remarks at this meeting revealed bias or would create an
(continued...)
- 20 -
<< COB0000023 >>
deal of respect for the Special Trustee and what the Special Trustee has attempted to do...~"
Transcript of Remarks of Joseph Kieffer at May 20, 2002 Task Force on Trust Management
Reform Meeting ("Task Force Transcript") at 10-11. In vouching for the Special Trustee in this
maimer, the Court Monitor offered himself as a fact witness, presenting as evidence his own
personal opinion of the Special Trustee's character and job performance. Under the reasonable
person standard, this statement creates an appearance of bias in favor of the Special Trustee and
against the senior Interior officials who (along with the court-appointed Special Master) have
questioned the Special Trustee's performance. Indeed, the Court Monitor later stated: "I'm
he[re] to say at the top of the totem pole things are not working fine... ." Id. at 60.
	Second, the Court Monitor said that, in writing his reports to the Court, he always tried to
shield Assistant Secretary - Indian Affairs Neal McCaleb from any negative consequences that
might follow from the reports because Mr. MeCaleb supported the Special Trustee: "The
defendants in the case is [sic] the official defendants in the Cobell litigation, and that changes as
the administration changes, and now it's Secretary Norton and Mr. McCaleb. In all my reports I
have specifically excluded talking about Mr. McCaleb's performance because I think he has gone
out of his way to try to support the Special Trustee, to work with the Special T~stee... ." Task
Force Transcript at 10. In these remarks, the Court Monitor once again demonstrated that he is
biased in favor of the Special Trustee  and by implication against the Secretary and her
.continued)
appearance of bias in the mind of any reasonable bystander is suggested by the following
comment made by Ron Allen, Chairman of the Jamestown SKIallam Tribe, after the Court
Monitor had delivered his remarks: "[O]ne of the concerns I have is in your remarks you become
a bit of an apologist for this Office of Special Trustee." Task Force Transcript at 55.
-21-
<< COB0000024 >>
immediate staff. In addition, he indicated that he was seeking to use his power as a court-
appointed officer to benefit those who support the Special Trustee.
	Third, although the Court has yet to rule on whether it will accept jurisdiction over
various tribal-trust cases which have been referred to it as matters relating to Cobell, the Court
Monitor opined that the Court may well assume jurisdiction and that he, the Court Monitor,
therefore has an interest in these cases and in any decisions made by the Task Force that might
affect tribal-trust beneficiaries: "[1]n the near future, the judge should be making a decision on
whether he will accept those [tribal-trust] cases or pass them off to other judges to handle. So in
some ways my interest in what happens here at the Tribal Task Force is more than limited just to
the individual beneficiaries, but since the Court may soon have jurisdiction over at least five of
the tribal accounting cases, obviously I'm interested in what happens here. ." Task Force
Transcript at 8. In making this statement, the Court Monitor implicitly pre-judged a matter
pending before the Court, suggesting that the tribal-trust cases would be deemed related matters,
and further implied that when this happened, he would be appointed to a similar monitoring
function in those cases.7
	~	The June 10, 2002 issue of the Washington Times periodical "Insight on the News"
contains an article which quotes extensively from the Court Monitor's Seventh Report and which
includes the following passage:
A court-appointed official familiar with the Indian trust accounts
who asks not to be identified tells Insight that "this is a business
that the government never should have been in. No one ever
conceptualized that the government overseeing this would go on in
perpetuity. It's just impossible to administer, and the government
doesn't have the wherewithal to do it and it just isn't a normal role
of government."
(continued...)
- 22 -
<< COB0000025 >>
	In their totality, the Court Monitor's remarks at the April 19, 2002 and May 20, 2002
meetings suggest that he has a "personal bias or prejudice" in favor of the Special Trustee and
against the Secretary and her immediate staff, or at a minimum, that his impartiality "might
reasonably be questioned." He should, thcrcforc, be disqualified pursuant to 28 U.S.C.  455(a)
and (b)(l).
7(.. .continued)
According to the official, "There is no doubt that the government
has screwed it up and there is no responsibility in this case, but
they also inherited a mess. The problem is that this constituency
[American Indians] doesn't get presidents elected, it doesn't have
direct money connections to anyone and there's 100 years of data
that in some cases were written on napkins. It is a totally
decentralized system and the government isn't prepared to do the
accountability."
If the DOI has resorted to name-calling and retaliation and the
government isn't equipped to do the accounting of the trust
account, what's the answer? "Give the Indians back the land," the
official says, "and let them run it themselves. From what I know of
programs they've handled themselves, they've done remarkably
well."
Kelly Patricia O'Meara, DOI Speaks With Forked Tonaue, Insight on the News, June 10, 2002,
at 17 (Exhibit J). Canon 3A(6) of the Code of Conduct requires federal judges (and, by
extension, their appointees) to "avoid public comment on the merits of [] pending or impending"
cases. United States v. Microsoft, 253 F.3d at 107. The "court-appointed official familiar with
the Indian trust accounts" who made these remarks to the press, if they were reported accurately,
breached his duty under this canon and should be recused. See id. at 107-117. It is not clear that
the Court Monitor is responsible for these remarks, but the Court should immediately undertake
an investigation of the matter and take appropriate action regarding the "court-appointed official"
who is responsible.
-23 -
<< COB0000026 >>
2.	The Court Monitor Is Not Reporting On Interior Defendants' Trust
Reform Efforts In The Neutral, Objective Manner Required Of A
Judicial Officer.
	The Court Monitor's Seventh Report demonstrates conclusively that he does not
recognize his obligation to report to the Court in a neutral fashion on the progress of trust reform.
"[B]ecause he is the court's agent, he can and should perform his duties objectively." Ruiz v.
i~i~ile 679 F.2d at 1161-62. However, instead of providing the Court with a report addressing
in an objective manner the steps the Interior Defendants are taking to implement trust reform, the
Court Monitor has taken it upon himself to assess the credibility of the statements of certain
government officials and their counsel, to infer motivation, and to opine about the veracity of
statements by certain individuals. While some of these statements are characterized as
"opinions," they are, for the most part, based upon little if any information contained in the
report, are largely speculative, and address matters that the Interior Defendants should have a full
opportunity to litigate if and when they are properly before the Court.
	For example, the Court Monitor quotes extensively from an April 17, 2002 memorandum
from the Secretary of the Interior to the Special Trustee. Seventh Report at 33-35. The Court
Monitor then opines that "it is doubtful that the Secretary of the Interior compiled any part of it."
Id. at 35. He concludes that the memorandum "reveals a critical lack of understanding of the
history of trust reform under the past and present administrations and a lack of appreciation for
and a misunderstanding of the role of the Special Trustee." Id. Later in his Report, he makes the
extraordinary claim that the memorandum contains "patently false assertions and
misinterpretation of past events." Id. at 55 n.16. The Court Monitor is not authorized by his
appointing orders to hold hearings, hear evidence, weigh the credibility of witnesses or detennine
- 24 -
<< COB0000027 >>
the reliability of documentary evidence. The Interior Defendants have no opportunity to present
evidence or even to know in advance the subject of the Court Monitor's reports. Reports based
upon "'observations and investigations in the absence of a formal hearing' ... not only
transcend[] the powers traditionally given [to Special Mastersi by courts of equity, but den[y] the
parties due process." Ruiz v. Estelle, 679 F.2d at 1162-63.
	Equally disturbing are the Court Monitor's unauthorized legal conclusions. For example.
the Court Monitor's critique of the Secretary in the Seventh Report is based, in large part, on his
opinion of the statutory relationship between the Secretary and the Special Trustee. Citing the
1994 Reform Act, 25 U.S.C.  4042, the Court Monitor opines that the Special Trustee must
report directly to the Secretary, and cannot perform his duties if he is required to report to the
Deputy Secretary. Seventh Report at 3 5-36. Indeed, he concludes that by. requiring the Special
Trustee to report to the Deputy Secretary, the Secretary has "directly violat[ed] the 1994 Reform
Act." Id. at 82.
	Similarly, the Court Monitor has improperly prejudged approximately forty government
employees as "contemnors" when the Court has not even issued a show cause order or held a
hearing regarding contempt allegations made by the Plaintiffs, let alone issued a finding that any
of these employees should be held in contempt. Indeed, inasmuch as Plaintiffs have not yet
specified the allegedly contemptuous actions these employees have taken, the Court Monitor has
drawn a conclusion about the guilt of these individuals without even knowing the specific
allegations against them. Moreover, the Court Monitor has refused to remove these prejudicial
references from his report despite having received a written request from the Interior Defendants'
-25-
<< COB0000028 >>
counsel that he do so. See Interior Defendants' Motion to Strike Portions of the Seventh Report
of the Court Monitor that Refer to Government Employees as "Contemnors," filed May 23, 2002.
	While these legal conclusions have been refuted in Interior's Response to the Seventh
Report see Interior's Response to the Seventh Report at 26-30, 4 1-45, such intrusions into areas
solely within the jurisdiction of the district court are inappropriate. These matters have not been,
and cannot be, delegated to the Court Monitor. "A district court has no discretion to delegate its
adjudicatory responsibility in favor of a decision maker who has not been appointed by the
President and confirmed by the Senate." Prudential Ins. Co. v. United States Gypsum Co., 991
F.2d 1080, 1086 (3d Cir. 1993) (citing La Buvv. Howes Leather Co., 352 U.S. 249, 256 (1957)).
The "findings" and "conclusions" contained in the Seventh Report go far beyond any neutral
reporting and provide further evidence of the Court Monitor's lack of objectivity. His behavior
leaves the public impression that he has chosen to take sides with the Plaintiffs and cannot
monitor and report on trust reform activities in a neutral manner as he is obligated to do.
	Furthermore, as discussed in more detail in Interior's Response to the Seventh Report,
filed May 16, 2002 and the Interior Defendants' Motion to Strike, the Court Monitor's Seventh
Report contains innuendo and ad horn inem comments that are inappropriate for a judicial officer,
disrespectful of the many government employees involved with trust reform, and generally
demonstrate the lack of a professional manner that "promotes public confidence in the integrity
and impartiality of the judiciary." Code of Conduct, Canon 2(A).
-26-
<< COB0000029 >>
3.	The Court Monitor Has Violated Defendants' Fundamental
Right To Communicate With Their Litigation Counsel in
Confidence.
	As the Interior Defendants explained to the Court in their May 31, 2002 Motion for
Protective Order Regarding Privileged Documents Referenced In The Seventh Report of the
Court Monitor and supporting memorandum (collectively, the "Motion for Protective Order"),
the Court Monitor published in his Seventh Report six documents as to which the Interior
Defendants claim privileges. The Court Monitor did not obtain those documents through
Interior's trial attorneys at the Department of Justice, but, instead, apparently obtained them
directly from employees of the Department of the Interior. Even though the documents are, on
their face, privileged in nature, the Court Monitor did not even ask the Department of Justice
lawyers whether the Interior Defendants wished to maintain the privileges, nor did he give them
advance notice that he planned to disclose the documents in a public filing.8 Rather, the Court
Monitor simply attached the privileged documents as exhibits to the Seventh Report and
discussed their substance in its text. The Motion for Protective Order demonstrates that the six
documents are covered by the attorney-client and work product privileges, Memo. In Supp. of
Mot. for Prot. Order at 4-7, and that those privileges have not been waived id at 7-13. The
communications at issue are concerned directly with the current litigation  specifically,
responses to the Special Master's document requests, 14 at 4-7  and their production should be
treated as a court-compelled disclosure, 14 at 7-13.
	8 Interior Defendants previously produced most of the same documents in camera to
the Special Master and included them on a privilege log.
- 27 -
<< COB0000030 >>
	The Court Monitor's cavalier mistreatment of the Interior Defendants' fundamental right
to consult with their litigation counsel in confidence9 risks harm to the "broader public interests
in the observance of law and administration ofjustice" that the recognition of privileges is
designed to protect. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); see also In reSealed
Case 146 F.3d 881, 884 (D.C. Cir. 1998) ("By ensuring that lawyers can prepare for litigation
without fear that opponents may obtain their private notes, memoranda, correspondence, and
other written materials, the [work product] privilege protects the adversary process.").
4.	The Court Monitor Has Improperly Commented Upon
Evidence In A Matter That Has Been Tried To The Court and
Is Pending For A Decision
	The Court Monitor's Seventh Report goes to great lengths to characterize and comment
upon the evidence before the Court in the contempt proceeding which has been fully tried and is
now pending before the Court for a decision.'0 The District Court has before it extensive
proposed findings and conclusions that analyze the contempt trial testimony and its import. It is
	~	See. e.g., Coastal States Gas Corp. v. Department of Ener~v, 617 F.2d 854, 863 (D.C.
Cir. 1980) (when "the Government is dealing with its attorneys as would any private party
seeking advice to protect personal interests, [it] needs the same assurance of confidentiality so it
will not be deterred from full and frank communications with its counselors").
	'~ ~, ~ Seventh Report at 15-19, 21 (quoting with approval the Special Trustee's
contempt trial testimony); 14 at 24-27 (quoting and characterizing the contempt trial testimony of
the Secretary and Deputy Secretary); id. at 28-3 1, 39 n.9, 42 n.13, 48-51 (quoting and crediting
the contempt trial testimony of the Special Trustee regarding his preparation of and refusal to
verif~' quarterly reports and his involvement in statistical sampling decisions); 14.. at 37 (quoting
and characterizing the Secretary's contempt trial testimony regarding the Special Trustee); id. at
40 (quoting and discrediting Secretary's contempt trial testimony that she had read most of the
Court Monitor's reports); 14 at 45 n. 14 (quoting and characterizing Special Trustee's contempt
trial testimony about funding for TAAMS and other projects); 14 at 51-52 (quoting and
characterizing Deputy Secretary's contempt trial testimony about the role of the Special Trustee);
id. at 80 n.24 (quoting and characterizing Special Trustee's contempt trial testimony as
"highlight[ing]" an "obvious concern [with] retaliation").
-28-
<< COB0000031 >>
inappropriate for the Court Monitor to comment on and assess the witnesses' testimony and draw
inferences regarding matters pending before the Court.
	First, these matters are outside the scope of his authority, which extends only to reporting
on Interior's current efforts to accomplish trust reform and not to commenting on trial testimony
and the weight it should be given. Second, it is a violation of fundamental principles of judicial
conduct for the Court Monitor to comment publicly on a matter pending before the Court.'1 See
Code of Conduct, Canon 3A(6) ("A judge should avoid public comment on the merits of a
pending or impending action, requiring similar restraint by court personnel subject to the judge's
direction and control."). The contempt trial concluded with closing arguments on February 21,
2002; proposed findings and conclusions were filed on February 28, 2002. As of May 2, 2002,
when the Court Monitor filed his Seventh Report, the Court had yet to enter judgment  and
indeed, still has not. Thus, as of the filing of the Seventh Report, the contempt trial was a
pending action. Because the Seventh Report was filed as a public document, and because the
contempt trial was then (and remains) a pending action, the Court Monitor, as "personnel subject
to the judge's direction and control," was forbidden from commenting on the evidence presented
at trial in the Seventh Report.12 See also United States v. Microsoft Corn.. 253 F.3d at 112
(holding that judge who, while an action was pending, publicly "disclosed his views on the
	" Pursuant to Canon 3A(6) of the Code of Conduct, an action is deemed pending "until
completion of the appellate process." Code of Conduct, Canon 3A(6) cmt.
	12 The Court Monitor was not authorized by the Court to issue a report and
recommendation concerning the contempt trial, and indeed, his Seventh Report does not purport
to be such a report and recommendation. The Court Monitor's unsupported opinions concerning
matters at issue in the contempt trial cannot be considered by the Court because they are not
"evidence" admitted into the record.
-29-
<< COB0000032 >>
factual and legal matters at the heart of the case"  including "opinions about the credibility of
witnesses, the validity of legal theories, the culpability of the defendant, [and] the choice of
remedy"  had violated Canon 3A(6)).
	The actions of the Court Monitor discussed above clearly demonstrate that he will not
respect the constitutional and statutory limits on this Court's jurisdiction and that he lacks the
impartiality required of a judicial officer.'3 He has improperly sought to make himself a
participant in the events he is charged with monitoring, and is actively advocating and promoting
his views regarding how trust reform should be implemented and who should manage the effort.
For all of the reasons set forth above, the Court Monitor can no longer serve the Court as a
neutral and objective reporter on trust reform issues and his appointment should be revoked.
II.	If A Court Monitor Is Appropriate In This Case, The Court Should Clarify
Its Previous Orders Regarding The Authority Of The Court Monitor To
Ensure That The Role Of The Court Monitor Is Consistent With This
Court's Jurisdiction And The Proper Judicial Role.
	Court monitors, which are closely related to special masters, are appointed only rarely and
when the court has clearly documented the existence of extraordinary circumstances. Federal
Rule of Civil Procedure 5 3(b), which governs special masters, provides that a reference to a
master "shall be the exception and not the rule." See. e.g., Sierra Club v. Army Corps of
Engineers, 701 F.2d at 1042 (reversing order appointing special master due to absence of
13 The conduct of the Court Monitor discussed above should also be considered in light
of the Plaintiffs' having moved for his appointment as receiver. See Plaintiffs' Consolidated
Motion To Amend Their Motion To Reopen Trial One In This Action To Appoint A Receiver
And Memorandum Of Points And Authorities In Support Thereof and 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, and the accompanying proposed Order at 4 (filed Oct. 19, 2001).
-30-
<< COB0000033 >>
extraordinary circumstances); see also Code of Conduct, Canon 3(B)(4) ("A judge should not
make unnecessary appointments.. .
	A court monitor appointed under the court's inherent authority is appointed even more
rarely and is subject to the same restrictive requirements.'4 The activities of court monitors are
typically limited to monitoring compliance with previous court orders. See. e.g., United States v.
Microsoft Corn., 147 F.3d 935, 954 (D.C. Cir. 1998) (well-established tradition allowing use of
special masters to oversee compliance) (citing Apex Fountain Sales. Inc. v. Kleinfeld, 818 F.2d
1089, 1097 (3d Cir. 1987)); Ruiz v. Estelle, 679 F.2d at 1161. Here, the Court has ordered the
Interior Defendants to provide an accounting of ITM funds to the Plaintiffs. Presumably the
purpose of appointing a court monitor in this case was to monitor the Interior Defendants'
compliance with this order. However, as the Court of Appeals pointed out, "supervision of the
Department's conduct in preparing an accounting [with the possible exception of detecting "steps
so defective that they would necessarily delay rather than accelerate the ultimate provision of an
adequate accounting"] may well be beyond the district court's jurisdiction." Cobell v. Norton,
240 F. 3d at 1110. In contrast to the so-called "institutional reform" cases in which court
monitors are typically appointed to monitor the implementation of specific and detailed remedies
over time, in this case the maimer of implementing the Court's order is expressly left to the
discretion of the Interior Defendants. See Id. at 1104 (noting that "[t]he district court explicitly
	" Although the district court appointed the Court Monitor under its "inherent authority,"
it is not clear that such inherent authority exists in this context. It has been have held that the
term "court monitor" is simply another name for a special master and that court monitors are
governed by the standards for special masters set forth in Fed. R. Civ. P. 53. ~ Juan F v
YL~kker 37 F.3d 874, 880 (2d Cir. 1994).
-31-
<< COB0000034 >>
left open the choice of how the accounting would be conducted, and whether certain accounting
methods. . . would be appropriate").
	Based on the experience of the past fourteen months with the present Court Monitor, the
Court should seriously consider whether the appointment of any court monitor is appropriate in a
setting in which the separation of powers doctrine requires each branch of government to remain
"entirely free from the control or coercive influence, direct or indirect, of either of the others,"
Humnhrey's Executor v. United States, 295 U.S. at 629, and in which the Court's jurisdiction
prevents it from "'becom[ing] . . . enmeshed in the minutiae' of agency admininstration," Cobell
v.	Norton, 240 F.3d at 1108 (quoting Cobell v. Babbitt, 91 F. Supp. 2d at 54, in turn quoting B~li
v. Wolfish, 441 U.S. at 562). Where, as here, the manner of implementing the Court's order is
expressly left to the discretion of the Interior Defendants, the policy-making activities necessary
to plan and implement the Court's order should not be subject to the day-to-day supervision of a
court monitor.
	However, in the event the Court determines that a court monitor is appropriate in this
case, Interior Defendants request that the Court clarify the proper limits on the role and authority
of any future court monitor to minimize the likelihood that the problems with the current Court
Monitor will recur. Supervision of a court monitor rests solely with the District Court, at least in
the first instance. It is, therefore, the District Court that determines whether a court monitor has
complied with the order of reference, the law, and the high standards of conduct required of a
judicial officer. See. e.g., Code of Conduct, Canon 3(B)(2) ("A judge should require court
officials, staff, and others subject to the judge's direction and control, to observe the same
standards of fidelity and diligence applicable to the judge.") Unlike ajudge whose conduct is
- 32 -
<< COB0000035 >>
subject to the provisions of 28 U.S.C.  372(c) and local rules governing judicial misconduct,
see. e.g., Rules of the Judicial Counsel for the District of Columbia Circuit Governing
Complaints of Judicial Misconduct or Disability, Rule 1(c), a court monitor's conduct is subject
to supervision by the District Court.
	Accordingly, the Court should clarify that the court monitor's only legitimate function is
to report to the Court the steps taken by the Interior Defendants to comply with the Court's
December 21, 1999 Order. The court monitor's activities should not be more extensive than the
allegations in the complaint and proofs of the parties. Sec Webster Eisenlohr. Inc. v. Kalodner,
145 F.2d 316, 319 (3d Cir. 1944). Similarly, the court monitor's functions must be limited to
those within this Court's jurisdiction. Id. Furthermore, because reports based upon
"'observations and investigations in the absence of a formal hearing' . . . not only transccnd[] the
powers traditionally given [to Special Masters] by courts of equity, but den[y] the parties due
process," any "reports, findings, [or] conclusions" submitted by a court monitor cannot be
accorded any presumption of correctness." Ruiz v. Estelle, 679 F.2d at 1162-63. Therefore, the
Court should clarify that, in any proceeding before the Court, the reports, findings, and
conclusions of the Court Monitor will be reviewed de novo after the Interior Defendants have
been afforded an opportunity to be heard and present evidence regarding such reports, findings,
or conclusions.
	Interior Defendants submit that the following clarifications to the Court's orders would
assist in ensuring that the court monitor's role is properly circumscribed. The Court should:
	(1) Clarify that the court monitor's reports must be limited to actions taken by the
Interior Defendants with respect to matters identified in the Court's December 21, 1999 Order;
-33-
<< COB0000036 >>
	(2)	Clarify that the court monitor may not intrude into the management of the
Department of the Interior and may not advise the Interior Defendants or any of their employees
to take any specific action with regard to trust reform;
	(3)	Clarify that the court monitor may not interfere or become involved in any manner
with matters that are the subject of agency deliberations and as to which no final agency decision
has been rendered;
	(4)	Clarify that the court monitor's reports may not disclose or rely upon information
as to which the Interior Defendants assert a privilege or which is subject to a protective order;
	(5)	Clarify that the court monitor may not comment on evidence submitted to the
Court;
	(6)	Clarify that the court monitor may submit reports based upon on-the-record
statements of witnesses and non-privileged documents;
	(7)	Clarify that the court monitor may not conduct discovery;
	(8)	Clarify that the court monitor may not conduct hearings or render legal decisions
or conclusions of law;
	(9)	Clarify that, in any proceeding before the Court, the reports, findings, and
conclusions of the Court Monitor will be reviewed de novo after the Interior Defendants have
been afforded an opportunity to be heard and present evidence regarding such reports, findings,
or conclusions; and
	(10)	Clarify that the court monitor is a judicial officer who must comply with the Code
of Conduct for United States Judges.
- 34 -
<< COB0000037 >>
CONCLUSION
	In view of the Court Monitor's failure to conform to the acceptable limits of his role and
his lack of impartiality, the Interior Defendants request an order revoking his appointment. In
addition, in the event the Court determines that a continuing role for a court monitor is
appropriate in this case, the Interior Defendants request that this Court clarify its previous orders
to ensure in the future that the court monitor's activities are consistent with the limits on the
Court's jurisdiction and the proper role of a judicial officer.
Respectfully submitted,
ROBERT D. McCALLUM, JR.
Assistant Attorney General
STUART E. SCHTFFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOHN
Director
Dated: June 14,2002	,~
SANDRA P. SPOONER
Deputy Director
D.C. Bar No. 261495
JOHN T. STEMPLEWICZ
Senior Trial Counsel
CYNTHIA L. ALEXANDER
Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
-35-
<< COB0000038 >>
IN THE UMTED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. l:96CV01285
)	(Judge Lambertli)
GALE NORTON, Secretary of the Interior, al., )
		)
	Defendants.	)
ORDER
	Upon consideration of the Interior Defendants' Motion To Revoke The Appointment Of
Joseph S. Kieffer, m, And To Clarify The Role And Authority Of A Court Monitor and
supporting memorandum, the oppositions filed, and the materials and record herein,
	IT IS ORDERED that the Interior Defendants' motion is GRANTED; and
	IT IS FURTHER ORDERED that the Court's April 15, 2002 Order reappointing Joseph
S. Kieffer, III, as Court Monitor is hereby vacated; and
	IT IS FURTHER ORDERED that the role and authority of the court monitor in this case
is clarified as follows:
1.	The court monitor's reports shall be limited to actions taken by the Interior
Defendants with respect to matters identified in the Court's December 21, 1999
Order;
2.	The court monitor shall not intrude into the management of the Department of the
Interior and shall not advise the Interior Defendants or any of their employees to
take any specific action with regard to trust reform;
<< COB0000039 >>
3.	The court monitor shall not interfere or become involved in any manner with
matters that are the subject of agency deliberations and as to which no final
agency decision has been rendered;
4.	The court monitor's reports shall not disclose or rely upon information as to
which the Interior Defendants assert a privilege or which is subject to a protective
order;
5.	The court monitor shall not comment on evidence submitted to the Court;
6.	The court monitor may submit reports based upon on-the-record statements of
witnesses and non-privileged documents;
7.	The court monitor shall not conduct discovery;
8.	The court monitor shall not conduct hearings or render legal decisions or
conclusions of law;
9.	In any proceeding before the Court, the reports, findings, and conclusions of the
court monitor shall be reviewed de novo after the Interior Defendants have been
afforded an opportunity to be heard and present evidence regarding such reports,
findings, or conclusions;
10.	The court monitor is a judicial officer who must comply with the Code of Conduct
for United States Judges.
SO ORDERED this _____ day of	, 2002.
	ROYCE C. LAMBERTH
United States District Judge
<< COB0000040 >>
cc:
Sandra P. Spooner
John T. Stemplewicz
Cynthia L. Alexander
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
Fax (202)514-9163
Dennis M Gingold, Esq.
Mark Brown, Esq.
1275 Pennsylvania Avenue, N.W.
Ninth Floor
Washington, D.C. 20004
Fax (202) 318-2372
Keith Harper, Esq.
Native American Rights Fund
1712 N Street, NW
Washington, D.C. 20036-2976
Fax (202) 822-0068
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Joseph S. Kieffer, m
Court Monitor
420 - 7~' Street, N.W.
Apartment 705
Washington, D.C. 20004
<< COB0000041 >>
CERTIFICATE OF SERVICE
	I declare under penalty of perjury that, on June 14, 2002 1 served the Foregoing Interior
Defendants 'Motion To Revoke the Appointment of Joseph S. Kieffer, III, and to Clarify the Role
and Authority of a Court Monitor and the attached Memorandum in Support of Interior
Defendants Motion To Revoke the Appointment of Joseph S. Kieffer, III, and to Clarify the Role
and Authority of a Court Monitor, by hand upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Kester Brown, Esq.
1712 N Street, N.W.	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
	Washington, D.C. 20004
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Avenue, N.W.
12th Floor
Washington, D.C. 20006
Joseph S. Kieffer, m
Court Monitor
420 - 7"' Street, N.W.
Apartment 705
Washington, D.C. 20004
By U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
F~evmP. Kin~'gsYon