!tht!i !tat!z !ourt of !ppi!al!
      FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 1 1, 2006             Decided July 11, 2006

                       No. 05-5269

            ELoulsE PEPI0N COBELL, ET AL.,
                        APPELLEES

                           V.

 DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR, ET AL.,
                       APPELLANTS

     Appeals from the United States District Court
             for the District of Columbia
                      (No. 96cv01285)

   Peter D. Keisler, Assistant Attorney General, U.S.
Department of Justice, argued the cause for appellants. With
him on the briefs were Kenneth L. Wainslein, U.S. Attorney,
Gregory G. Katsas, Deputy Assistant Attorney General, and
Robert E. Kopp, Mark B. Stern, Thomas M Bondy, Alisa B.
Klein, Mark R. Freeman, and I. Glenn Cohen, Attorneys.

   Keith M Harper argued the cause for appellees. With him
on the brief were Dennis M Gin gold, Elliott H. Levitas, G.
William Austin, III, and Mark I. Levy.

   Before:   TATEL     and BROWN,  Circuit Judges, and
SILBERMAN, Senior Circuit Judge.


   Opinion for the Court filed by Circuit Judge TATEL.

   TATEL, Circuit Judge: For the ninth time in six years we
consider an appeal in this longstanding dispute between
beneficiaries of Indian land trusts and their trustee, the United
States. In this most recent iteration, the government challenges
a district court order requiring that every mailing to trust
beneficiaries include a notice stating that "any" information
provided about trust matters "may be unreliable."  The
government also asks us to assign the case to a different district
judge. Because we agree with the government that the order
exceeded the district court's authority, we vacate and remand for
further proceedings. And for the reasons given in this opinion,
we instruct the chief judge of the district court to reassign the
case.

                          I.

   In the latter part of the nineteenth century, the United States
took title to Indian lands as trustee for individual Indians,
thereby assuming a fiduciary obligation to hundreds of
thousands of Indians.  We described the history of the
government's trust obligations, now delegated to the Secretaries
of Interior and Treasury, in Cobell v. Norton, 240 F.3d 1081,
1086-92 (D.C. Cir. 2001) ("Cobeli Vi").

   Ten years ago, five Indians--we shall refer to them as
"plaintiff-beneficiaries"--filed a complaint in the U.S. District
Court for the District of Columbia on behalf of themselves and
all other trust beneficiaries alleging the federal government had
breached its fiduciary obligations. Plaintiff-beneficiaries
claimed, among other things, that the government destroyed
critical records, failed to account to trust beneficiaries, and
either lost trust assets or converted them to government use.
Plaintiff-beneficiaries requested declaratory and injunctive relief


                   3

against Interior and Treasury officials "to force the government
to abide by its duty to render an accurate accounting" of the
assets held in Individual Indian Money (tIM) trust accounts.
Cobellv. Babbitt, 91 F. Supp. 2d 1,6-7 (D.D.C. 1999) ("Cobell
J/"). After certifying the case as a class action and conducting
"a lengthy trial, the district court concluded that the federal
government and its officers have been derelict in their duties."
Cobell VI! 240 F.3d at 1086. Accordingly, the court "ordered
them to come into compliance with their duties," and remanded
the case to Interior and Treasury. id. at 1094. The district court
nonetheless "retained continuing jurisdiction over the case for
the next five years" and required "quarterly status reports
summarizing the government's progress." Id.

   In Cobell VI, although we "generally affirm[ed]," we
"order[ed] the district court to modify the characterization of
some of its findings." Id. at 1086. We recognized that "[t]he
trusts at issue here were created over one hundred years ago
through an act of Congress, and have been mismanaged nearly
as long." Id. Although "[t]he level of oversight proposed by the
district court may well be in excess of that countenanced in the
typical delay case," we observed, "so too is the magnitude of
government malfeasance and potential prejudice to the
plaintiffs' class." Id. at 1109. We approved the district court's
plan "to wait until a proper accounting can be performed" and
then to "assess [the government'sI compliance with [its]
fiduciary obligations." Id. at 1110. Still, we made clear that we
"expect[ed] the district court to be mindful of the limits of its
jurisdiction" and therefore to refrain from unduly interfering
with Interior's "conduct in preparing an accounting." Id.

   Since Cobell VI, we have resolved six more appeals, plus
two more today. These appeals address not only the core issue
of how the accounting should be conducted, but also various
collateral matters ranging from contempt citations against senior


                            4

Interior officials to orders requiring the Department to
disconnect its computer systems from the internet. See Cobell
v. Kempthorne, No. 05-5388,    F.3d  (D.C. Cir. July 11,
2006) (computer disconnection); In re Kempthorne, No. 03-
5288,F.3d,2006WL 1563612(D.C. Cir. June 9, 2006)
(recusal of Special Master); Cobell v. Norton, 428 F.3d 1070
(D.C. Cir. 2005) ("CobellXVI]") (accounting); Cobell v. Norton,
392 F.3d 461 (D.C. Cir. 2004) ("!obell Xlii") (accounting);
Cobellv. Norton, 391 F.3d 251 (D.C. Cir. 2004) ("Cobell XI]")
(computer disconnection); In re Brooks, 383 F.3d 1036 (D.C.
Cir. 2004) (recusal of Special Master); Cobell v. Norton, 334
F.3d 1128 (D.C. Cir. 2003) ("Cobell VII]") (contempt citations).

  This appeal involves yet another collateral issue, which
arose when plaintiff-beneficiaries sought to require Interior to
include in every written communication with Indian trust
beneficiaries a notice stating that "[t]he Trustee-Delegates have
admitted that they do not know whether the information that
they are providing to you about your Trust assets is accurate and
complete" and that "the government is currently unable to
provide all individual Indian trust beneficiaries an accurate and
complete accounting of their trust assets and is unable to provide
a timetable for when that accounting will be rendered." Cobell
v. Norton, 229 F.R.D. 5, 19-20 (D.D.C. 2005) ("CobeliXY')
(quoting Pls.' Proposed Order).  According to plaintiff-
beneficiaries, the district court had authority to issue such an
order either under Federal Rule of Civil Procedure 23(d) or
pursuant to the court's inherent equitable powers. The
government opposed the motion. On July 12, 2005, the district
court, without holding a hearing, granted the motion but altered
the proposed text. In its order-we shall refer to it as the "July
12 order"-the district court required Interior to include the
following notice in all written communications to trust
beneficiaries:


                    5

   Evidence introduced in the Cobell case shows that any
   information related to the JIM Trust, tIM Trust lands,
   or other tIM Trust assets that current and former JIM
   Trust account holders receive from the Department of
   the Interior may be unreliable. Current and former
   IIM Trust account holders should keep in mind the
   questionable reliability of IIM Trust information
   received from the Department of the Interior if and
   when they use such information to make decisions
   affecting their IIM Trust assets.

Id. at 21-22. Reasoning that even communications that on their
face bear no relation to trust accounts "might influence an Indian
beneficiary's trust-related decisions," the district court directed
Interior to include the notice in all written communications with
beneficiaries "without regard to subject matter." Id. at 17. In
granting the motion, the district court relied on Rule 23,
emphasizing that the order "flow[ed] from the fact that this case
is a class action rather than from the Court's equitable powers."
See id. at 15 n.7.

   The government now appeals, asking that we vacate the
July 12 order as unauthorized by Rule 23. On the government's
motion, we stayed the July 12 order pending appeal. Cobell v.
Norton, No. 05-5269 (D.C. Cir. Sept. 2, 2005). Also, relying on
language in the July 12 opinion and a series of district court
rulings reversed by this court, the government moved to have
the case assigned to a different judge. We consolidated that
motion with this appeal. Cobell v. Norton, No. 05-5068 (D.C.
Cir. Sept. 15, 2005).

                    II.

   We begin with the July 12 Rule 23(d) order.    Before
addressing the government's challenge, however, we must
consider plaintiff-beneficiaries'  argument that we lack


                       6

jurisdiction because, according to them, the order is not
immediately appealable. The government contends that we do
have jurisdiction to review the July 12 order either because it is
an appealable injunction or pursuant to the collateral order
doctrine.  See 28 U.S.C.  1292(a)(l) (making injunctions
immediately appealable); Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 546 (1949) (laying out collateral order
doctrine). Alternatively, the government urges us to treat its
appeal as a petition for a writ of mandamus. Because we agree
that the order qualifies as an injunction, we need not address the
government's other two arguments.

   Under 28 U.S.C.  1292(a)(1), circuit courts have
jurisdiction to review "[i]nterlocutory orders . . . granting,
continuing, modifying, refusing or dissolving injunctions."
Regardless of how the district court may choose to characterize
its order, section 1292(a)(1) applies to any order that has "the
practical effect of granting or denying an injunction," so long as
it also "might have a serious, perhaps irreparable, consequence,
and . . . can be effectually challenged only by immediate
appeal." I.A.M Nat'l Pension Fund Benefit Plan A v. Cooper
Indus., Inc., 789 F.2d 21, 23-24 (D.C. Cir. 1986) (internal
quotation marks omitted). As both parties agree, to have "the
practical effect of granting or denying an injunction" an order
must be "directed to a party" and "enforceable by contempt."
Id. at 24 (internal quotation marks omitted). Quoting from
Wright and Miller, plaintiff-beneficiaries argue that to qualify
as an injunction an order must meet a third requirement: it "must
provide 'some or all of the substantive relief sought by a
complaint in more than temporary fashion." Appellees' Br. 9
(quoting 16 Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure  3922 (2d ed. 1996))
(Wright's internal quotation marks and footnote omitted). But
plaintiff-beneficiaries omit two key words-words that, as we
shall see, control this case. The treatise, like our precedent,


                           7

actually says that the definition of "injunction" includes orders
"designed to accord or protect some or all of the substantive
relief sought by a complaint in more than temporary fashion."
16 Wright, Miller & Cooper, supra,  3922 (emphasis added)
(internal quotation marks and footnote omitted); 1A.M. Nat'l
Pension Fund, 789 F.2d at 24 (same language).

  As noted above, it makes no difference that the district court
said the July 12 order "flow[ed] from the fact that this case is a
class action rather than from the Court's equitable powers,"
Cobell XV, 229 F.R.D. at 15 n.7. See Lightfoot v. District of
Columbia, No. 05-7028,   F.3d   , 2006 WL 1389559, at *3
(D.C. Cir. May 23, 2006) (per curiam) ("Although appellees
reiterate the district court's contention that it did not grant an
injunction, we rather easily conclude that the district court's...
order was just that."). The only question is whether the order
has "the practical effect of granting or denying an injunction."
Supra p. 6. Put another way, if the July 12 order looks like an
injunction and acts like an injunction, it's an injunction-at least
for jurisdictional purposes.

  To qualify as an injunction, then, an order must (I) be
"directed to a party"; (2) be "enforceable by contempt"; (3) be
"designed to accord or protect" substantive relief; and
(4) threaten "a serious, perhaps irreparable, consequence" and
be challengeable "only by immediate appeal." 1A.M Nat'l
Pension Fund, 789 F.2d at 24 (internal quotation marks
omitted). The parties agree that the July 12 order satisfies the
first two requirements: it is directed to a party-the Interior
Secretary-and is enforceable by contempt. The parties have
very different views as to whether the order satisfies the third
requirement: that it accord or protect substantive relief.
Plaintiff-beneficiaries see the order as merely procedural,
characterizing it as a "class-action case-management order
designed to provide a fair proceeding that preserves the


                   8

opportunity for effective judicial relief in the future."
Appellees' Br. 10. According to the government, "[t]he order
does not govern the conduct of the litigation; it is a substantive
order that aims to affect the primary conduct of the class."
Appellants' Br. 46.

  We agree with the government. Unlike a case-management
order, which would merely advance the litigation procedurally,
the July 12 order seeks to protect substantive rights during the
pendency of the litigation. The district court expressly meant
for the order to help class members make intelligent decisions
about trust assets, not to facilitate their participation in the
litigation: "The court-ordered accounting is designed to promote
class members' rights to make fully informed choices about
their trust assets. If there are no more informed decisions to be
made, or if all the trust assets are gone, then the court-ordered
accounting will be useless to the Indians." Cobell XV, 229
F.R.D. at 16. Plaintiff-beneficiaries themselves describe the
July 12 order as "serv[ing] to protect pendente lite Plaintiff-
Beneficiaries' interest in the trust accounts that are the subject
of the litigation and thus to ensure that the ultimate relief is not
nugatory or ineffective as to at least some of the members of the
class." Appellees' Br. 10 n.10. Protecting beneficiary rights
represents classic injunctive relief. See Dist. 50, United Mine
Workers ofAm. v. Int'l Union, United Mine Workers ofAm., 412
F.2d 165, 168 (D.C. Cir. 1969) ("The usual role of a preliminary
injunction is to preserve the status quo pending the outcome of
litigation.").

  We also agree with the government that the July 12 order
satisfies the final requirement, as it threatens "a serious, perhaps
irreparable, consequence" and "can be effectually challenged
only by immediate appeal." JAM. Nat'l Pension Fund, 789
F.2d at 24 (internal quotation marks omitted).  The order
requires a cabinet agency to confess its own unreliability notjust


                      9

in mailings relating to trust accounts, but in every mailing on
any subject. See CobellXV, 229 F.R.D. at 17 (requiring notice
in all mailings "without regard to subject matter"). This strikes
us as both serious and, if unjustified, not correctable at the end
of the litigation.

  Having confirmed our jurisdiction, we next consider
plaintiff-beneficiaries' argument that the government has
forfeited its challenge to the district court's authority to issue the
July 12 order by failing to raise the argument in the district
court. See Flynn v. Comm 'r, 269 F.3d 1064, 1068-69 (D.C. Cir.
2001) ("Generally, an argument not made in the lower tribunal
is deemed forfeited and will not be entertained absent
exceptional circumstances." (internal quotation marks omitted)).
According to plaintiff-beneficiaries, "the  district court
determined" that "Interior has previously conceded and does
not now dispute' the court's authority to enter the July 12 order
pursuant to Rule 23(d)." Appellees' Br. 15 (quoting CobellXV,
229 F.R.D. at 13). The district court determined no such thing.
The court actually said: "Interior has previously conceded and
does not now dispute this Court's authority to restrict Interior's
communications with Indian beneficiaries pursuant to Rule
23(d)." CobellXV, 229 F.R.D. at 13. The difference is critical.
Although, as the district court pointed out, the government never
challenged the court's authority to issue communications-related
orders in general, the government nowhere conceded that the
district court had authority to enter the July 12 order. Far from
it. The government expressly objected to the contents of the
order: "any notice," the government argued, "should only inform
class members of the existence of this litigation, of their
potential class membership, and of their right to consult with
class counsel." Defs.' Opp'n to PIs.' Mot. 7 (internal quotation
marks omitted). Because the government has preserved its
challenge to the July 12 order, we turn to the merits.


                       10

                       III.
   Although the July 12 order has the effect of an injunction,
the district court relied on authority drawn from Rule 23(d), not
on its equitable authority. See supra p. 5. In particular, the
court cited Rule 23(d)(3), which authorizes district courts to
issue orders "imposing conditions on the representative parties
or on intervenors." Fed. R. Civ. P. 23(d)(3); see CobellXV, 229
F.R.D. at 13 (relying on this language). But nothing in Rule
23(d)(3) supports the July 12 order. That order imposed a
condition not on a representative party or an intervenor, but on
the defendant.  Hardly a technicality, the limitation to
representative parties and intervenors stems from Rule
23(d)(3)'s purpose: ensuring proper representation of class
interests. See Fed. R. Civ. P. 23 advisory committee's note
(1966 amendment) ("Subdivision (d)(3) reflects the possibility
of conditioning the maintenance of a class action, e.g., on the
strengthening of the representation, and recognizes that the
imposition of conditions on intervenors may be required for the
proper and efficient conduct of the action." (citation omitted)).
The July 12 order had an entirely different purpose-to help
protect trust beneficiaries from making poor decisions based on
faulty information unrelated to the litigation itself

   Instead of defending the district court's flawed reliance on
Rule 23(d)(3), plaintiff-beneficiaries argue that the district court
had authority to issue the July 12 order under Rule 23(d)(2),
which, although the district court nowhere cited it, authorizes
orders

   requiring, for the protection of the members of the
   class or otherwise for the fair conduct of the action,
   that notice be given in such manner as the court may
   direct to some or all of the members of any step in the
   action, or of the proposed extent of the judgment, or of
   the opportunity of members to signify whether they


                    11

   consider the representation fair and adequate, to
   intervene and present claims or defenses, or otherwise
   to come into the action.

Fed. R. Civ. P. 23(d)(2). According to plaintiff-beneficiaries,
the July 12 order fits within the rule's authorization of notice
"for the protection of the members of the class or otherwise for
the fair conduct of the action." Appellees' Br. 17 (quoting Fed.
R. Civ. P. 23(d)(2)) (appellees' emphasis). Not until later in
their brief, however, do plaintiff-beneficiaries quote Rule
23(d)(2)'s second half, which makes clear that the rule
contemplates not substantive relief of the kind the court granted
here, see supra p. 8, but only notice of procedural matters-such
as "any step in the action, . . . the proposed extent of the
judgment," and "the opportunity of members to signify whether
they consider the representation fair and adequate, to intervene
and present claims or defenses, or otherwise to come into the
action," Fed. R. Civ. P. 23(d)(2). Rule 23's advisory committee
notes, though describing the rule's list of permissible subjects
for notice as "non-exhaustive," nowhere suggest that the rule
authorizes substantive, as opposed to procedural, notice. Fed. R.
Civ. P. 23 advisory committee's note (1966 amendment); see
also Fed. R. Civ. P. 23(d)(5) (authorizing orders "dealing with
similar procedural matters").

   None of the four cases plaintiff-beneficiaries cite supports
the proposition that Rule 23(d)(2) authorizes substantive relief.
Indeed, each case, even including one in which a Rule 23(d)
order was reversed, concerns communications relating to the
litigation's procedural posture, not its underlying merits. In In
reSchoolAsbestosLitigation, 842 F.2d 671,676 (3d Cir. 1988),
upon which plaintiff-beneficiaries rely most heavily, the Third
Circuit affirmed a notice that "identifie[d] the member
companies of the SBA, note[dj that those member companies
'principally fund' the SBA, state[d] that those companies [were]


                  12

defendants in the underlying class action and that all public and
private, elementary and secondary schools [were] plaintiffs in
the litigation," and provided "the names, addresses and
telephone numbers of lead counsel for the plaintiff class"-all
procedural information. So too in Great Rivers Cooperative of
Southeastern Iowa v. Farmland Industries, Inc., 59 F.3d 764,
765 (8th Cir. 1995), where the Eighth Circuit reversed an order
requiring defendants to print in a newsletter a rebuttal to an
article that "as a whole appear[ed] to constitute an implied
solicitation to potential class members to opt out of this
litigation if and when a class is certified and notice given" and
"to refrain from communicating anything in the future that could
reasonably be taken as an invitation to opt out." Likewise, in
Barahona-Gomez v. Reno, 167 F.3d 1228, 1236 (9th Cir. 1999),
the Ninth Circuit affirmed an order requiring "the government
to provide notice of the pending action and the injunction" the
district court had issued, and in In re Synthroid Marketing
Litigation, 197 F.R.D. 607, 610 (N.D. Ill. 2000), the district
court ordered notice "sent to the class members . . . providing
them with correct information about what they need to do if they
wish to either participate in, object to or opt out of the proposed
settlement." Four cases, four procedural notices.

  As these cases demonstrate, Rule 23(d)(2) authorizes notice
to protect class members' right to participate in the litigation; it
does not authorize substantive orders protecting the very rights
class members seek to vindicate.  To keep class members
informed of this litigation, the district court here could have
simply ordered notice of the pendency of the litigation, the
rulings it had already issued, and beneficiaries' right to contact
class counsel-exactly the type of order the government
recommended, see Defs.' Opp'n to PIs.' Mot. 7; supra p. 9.

  But the district court went much further.  Rather than
merely informing class members of the litigation's progress or


                        13

of facts already established, the district court required Interior to
attest to facts it disputed. To make matters worse, the notice's
broad indictment of Interior's reliability, accentuated by the
emphasis on the word "any," extends well beyond trust account
information: "any information related to the IIM Trust, TIM
Trust lands, or other IIM Trust assets that current and former
IIM Trust account holders receive from the Department of the
Interior may be unreliable." CobellXV, 229 F.R.D. at 21-22.
To be sure, we have no doubt Interior's trust account
information has serious reliability problems. See, e.g., Cobell
VI, 240 F.3d at 1089 ("Not only does the Interior Department
not know the proper number of accounts, it does not know the
proper balances for each tIM account, nor does Interior have
sufficient records to determine the value of tIM accounts."). But
nothing in the record reveals any problems with other
information such as land appraisals. The district court thought
that Interior's "more complicated calculations, such as land
appraisals" could not "be trusted" given deficiencies in the trust
accounts, CobellXV, 229 F.R.D. at 16, but it pointed to nothing
in the record indicating that trust account problems might infect
Interior's calculations in other areas.

     Exacerbating the notice's overbreadth is its wide
distribution.  Noting that trust information could affect all
decisions by trust beneficiaries, the district court ordered Interior
to send the notice with every written communication. Id. at 17
n.10. The notice's inclusion in mailings unrelated to trust
accounts (such as those regarding health care or education),
especially given the notice's sweeping language, suggests that
any Interior mailing "may be unreliable"-a conclusion both
unsupported by the record and likely quite harmful to the
Department and its programs. Because the July 12 order seeks
to protect substantive rights and inflicts substantive harm on
Interior, it falls outside Rule 23(d)(2)'s scope.


                  14

                  Iv.
  This brings us to the government's motion to assign the
case to a different judge. In support, the government cites two
types of evidence: language from the opinion accompanying the
July 12 order and "[r]epeated reversals" of district court rulings.
Appellants' Br. 55.

             The July 12 Opinion

  Because the government relies so heavily on the district
court's language, and because it is important to read that
language in context, we quote at length.  The opinion's
"Background" section begins:

     At times, it seems that the parties, particularly
  Interior, lose sight of what this case is really about.
  The case is nearly a decade old, the docket sheet
  contains over 3000 entries, and the issues are such that
  the parties are engaged in perpetual, heated litigation
  on several fronts simultaneously. But when one strips
  away the convoluted statutes, the technical legal
  complexities, the elaborate collateral proceedings, and
  the layers upon layers of interrelated orders and
  opinions from this Court and the Court of Appeals,
  what remains is the raw, shocking, humiliating truth at
  the bottom: After all these years, our government still
  treats Native American Indians as if they were
  somehow less than deserving of the respect that should
  be afforded to everyone in a society where all people
  are supposed to be equal.

     For those harboring hope that the stories of
  murder, dispossession, forced marches, assimilationist
  policy programs, and other incidents of cultural
  genocide against the Indians are merely the echoes of


                   15

a horrible, bigoted government-past that has been
sanitized by the good deeds of more recent history, this
case serves as an appalling reminder of the evils that
result when large numbers of the politically powerless
are placed at the mercy of institutions engendered and
controlled by a politically powerful few. It reminds us
that even today our great democratic enterprise remains
unfinished. And it reminds us, finally, that the terrible
power of government, and the frailty of the restraints
on the exercise of that power, are never fully revealed
until government turns against the people.

  The    Indians who brought this case are
beneficiaries of a land trust created and maintained by
the government. The Departments of the Interior and
Treasury, as the government's Trustee-Delegates, were
entrusted more than a century ago with both
stewardship of the lands placed in trust and
management and distribution of the revenue generated
from those lands for the benefit of the Indians. Of
course, it is unlikely that those who concocted the idea
of this trust had the indians' best interests at
heart-after all, the original General Allotment Act
that created the trust was passed in 1887, at a time
when the government was engaged in an "effort to
eradicate Indian culture" that was fueled, in part, "by
a greed for the land holdings of the tribes[.]" Cobell v.
Babbitt ("Cobell V'), 91 F. Supp. 2d 1, 7-8 (D.D.C.
1999).  But regardless of the motivations of the
originators of the trust, one would expect, or at least
hope, that the modern Interior department and its
modern administrators would manage it in a way that
reflects our modern understandings of how the
government should treat people. Alas, our "modern"
Interior department has time and again demonstrated


                              16

  that it is a dinosaur-the morally and culturally
  oblivious hand-me-down of a disgracefully racist and
  imperialist government that should have been buried a
  century ago, the last pathetic outpost of the
  indifference and anglocentrism we thought we had left
  behind.

CobellXV, 229 F.R.D. at 7 (alteration in original). The district
court next outlined the "Factual History," first asserting that
"Interior's management of the Indian trust has been a nightmare
from the beginning," id., and then briefly chronicling Interior's
trust management failings, which have been well-documented
both in this litigation and elsewhere, id. at 8; Misplaced Trust:
The Bureau of Indian Affairs' Mismanagement of the Indian
Trust Fund, H.R. Rep. No. 102-449 (1992). Finding that "[t]he
ignominious record speaks for itself," CobellXV, 229 F.R.D. at
8, the court recited many of its previous findings of
mismanagement.  !'The problems that result from Interior's
inability to maintain complete and accurate records of the tIM
trust," the court continued, "are compounded and made more
intractable by the penchant of Interior's employees, officials,
and litigation counsel to be less than forthcoming with the
Court." Id. at 9. In support of this statement, the court noted
that it had on several occasions cited officials for contempt or
referred government attorneys to the Committee on Grievances.
Id.

  "Add vindictiveness to dishonesty and managerial
ineptitude," the court went on, giving as the primary example of
"vindictiveness" Interior's alleged violation of the court's order
forbidding retaliation against Interior officials who cooperated
with plaintiff-beneficiaries. Id. at 9-10. According to the
district court, Interior violated that order by taking "severe
adverse employment actions" against an Interior official, Mona
Infield, who had provided an affidavit to assist plaintiff-


                  17

beneficiaries. See id. at 10. Although "the matter was later
settled to the Court's satisfaction," the court found it
"illustrative enough of the depths to which Interior has sunk that
the Court found it necessary to issue a general anti-retaliation
order in the first place; but Interior's subsequent willful
retaliation against its own employee in the face of such an order
betrays a truly Machiavellian guile." Id.

  "As if the Infield business was not enough," the court
continued, "Interior's wrath was turned on the Indian
beneficiaries themselves in the wake of the Court's September
29, 2004 order restricting communications between Interior and
class members concerning sales of Indian trust land (the
'land-sales order')." Id. "'[B]etween October 1, 2004 and
October 8, 2004," the court explained, "a number of individual
Indian trust beneficiaries were denied either their trust checks or
information regarding their trust checks by BIA employees who
cited this Court's [land-sales] Order as justification," even
though "the Court had previously made clear at a hearing held
on October 1, 2004, that the land-sales order had no effect
whatsoever on Interior's ability to distribute trust checks." Id.
(quoting Cobell v. Norton, 355 F. Supp. 2d 531, 542 (D.D.C.
2005)) (alteration in original). "Apparently," according to the
court, "Interior's withholding of trust checks or information
about trust checks from the Indians was one outward
manifestation of a period of Byzantine maneuvering within the
department in an attempt to either evade or, failing that,
mischaracterize and vilify this Court and the land-sales order."
Id. at 11. "In light of the record in this case," the court found it
"more likely that the Secretary's actions constituted willful
misconduct" than that she was "grossly negligent." Id. (internal
quotation marks omitted).


                          18

  The court's "Factual History" concludes:

     But these are only examples. The entire record in
  this case tells the dreary story of Interior's degenerate
  tenure as Trustee-Delegate for the Indian trust-a story
  shot through with bureaucratic blunders, flubs, goofs
  and foul-ups, and peppered with scandals, deception,
  dirty tricks and outright villainy-the end of which is
  nowhere in sight. Despite the breadth and clarity of
  this record, Interior continues to litigate and relitigate,
  in excruciating fashion, every minor, technical legal
  issue. This is yet another factor forestalling the final
  resolution of the issues in this case and delaying the
  relief the Indians so desperately need. It is against this
  background of mismanagement, falsification, spite, and
  obstinate litigiousness that this Court is to evaluate the
  general reliability  of the information Interior
  distributes to IIM account holders.

Id. (citation omitted).

  After recounting the "Procedural History," the court began
its "Discussion," see Id. at 11-12, dropping the following
footnote:

  Interior's tongue-in-cheek summary of its responses to
  the plaintiffs' motion-"The Proposed Notice is the
  wrong notice at the wrong time to the wrong group of
  recipients paid for, and sent out by, the wrong party[,]"
  Defs.' Opp. at 2-typifies the level of respect that
  Interior generally accords both the Indian beneficiaries
  and this Court. The puerile reference is not lost on the
  Court, but Interior's misguided attempt at levity in the
  context of litigating an issue of immense importance to
  500,000 members of a historically oppressed people is


                    '9

   disgraceful. Unfortunately, it is also unsurprising from
   a defendant that this Court has charged with "setting
   the gold standard for arrogance in litigation strategy
   and tactics." [Cobell v. Norton, 357 F. Supp. 2d 298,
   307 (D.D.C. 2005).] This Court has played host to
   countless pleadings from clinically insane litigants and
   prison inmates but has rarely seen such a disrespectful
   tenor in a court filing.

Id. at 13 n.5 (first alteration in original).

   Turning to the merits, the district court stated:

      Interior does not dispute the factual predicates of
   the plaintiffs' argument. Interior concedes that all
   trust-related information Interior communicates to
   Indian beneficiaries is inherently unreliable. Of
   course, anything other than a concession of this point
   would be laughable in light of the record in this case.
   The factual record, composed of the accumulated
   detritus of nine years spent examining Interior's odious
   performance as Trustee-Delegate for the Indian trust,
   is certainly clear enough and smattered with a
   sufficient number of specific abuses to satisfy the .
   standard for relief under Rule 23(d). If Interior cannot
   even ascertain the number of existing tIM account
   holders, how can any of its more complicated
   calculations, such as land appraisals, be trusted? If
   Interior is willing to deceive this Court, why would
   anyone think that Interior would hesitate to lie to the
   Indians?

Id. at 16. After resolving several matters not at issue here, the
court concluded:


                   20

  While it is undeniable that Interior has failed as a
Trustee-Delegate, it is nevertheless difficult to conjure
plausible hypotheses to explain Interior's default.
Perhaps Interior's past and present leaders have been
evil people, deriving their pleasure from inflicting
harm on society's most vulnerable. Interior may be
consistently populated with apathetic people who just
cannot muster the necessary energy or emotion to
avoid complicity in the Department's grossly negligent
administration of the Indian trust. Or maybe Interior's
officials are cowardly people who dodge their
responsibilities out of a childish fear of the magnitude
of effort involved in reforming a degenerate system.
Perhaps Interior as an institution is so badly broken
that even the most well-intentioned initiatives are
polluted  and warped by the   processes of
implementation.'5 The government as a whole may be

'! This hypothesis may be the most plausible, as there
 is some evidence to substantiate it. Tn June, 2002,
 Interior filed with the Court a report generated by
 Interior's Office of Inspector General ("OIG")
 following an investigation of "seven specific issues
 relating to allegations that senior managers and
 attorneys of the Department of the Interior .
 engaged in misconduct." See Notice [1355] of Filing
 the Office of Inspector General's Report: Allegations
 Concerning Conduct of Department of the Interior
 Employees Involved in Various Aspects ofthe Cobell
 Litigation ("OIG Rep."), June 25, 2002, exec. summ.
 at 1. This investigation was conducted during the
 pendency of the 2002 contempt trial mentioned
 above. In the course of investigating Interior, the
 OIG    "uncovered bad judgment, unfocused
 management, a myriad of definitional issues, and
 extreme hostility among the players and entities{,]"


                21

inherently incapable of serving as an adequate
fiduciary because of some structural flaw. Perhaps the
Indians were doomed the moment the first European
set foot on American soil. Who can say? It may be
that the opacity of the cause renders the Indian trust
problem insoluble.

  On numerous occasions over the last nine years,
the Court has wanted to simply wash its hands of
Interior and its iniquities once and for all.  The
plaintiffs have invited the Court to declare that Interior
has repudiated the Indian trust, appoint a receiver to
liquidate the trust assets, and finally relieve the Indians
of the heavy yoke of government stewardship. The
Court may eventually do all these things-but not yet.
Giving up on rehabilitating Interior would signal more
than the downfall of a single administrative agency. It

 and "found factions with extremely myopic views of
 and approaches to the very complex issues at hand."
 OIG Rep., exec. summ. at 2. The OIG noted that in
 its decades of oversight of Interior, "we have often
 observed . . . a Department whose components are
 blinded by clouded judgment and crippled by
 distrust[,]" id. at 6, characterized by a "bunker
 mentality" in which Interior employees generally
 "begin by protecting [their] own Bureau or office, to
 the detriment of other Bureaus or offices if necessary;
 then protect the Department, and/or the institution or
 position it has advanced; [and] finally, protect the
 public interests. . . ." Id. The OlG found that while
 Interior's various entities and employees are "fueled
 by a multitude of motivations, many of which were
 weII-intentioned[,]" Id. at 2, one of the least prevalent
 motivations "was to protect and advance the interests
 of Individual Indian Trust account holders." Id.


               22

would constitute an announcement that negligence and
incompetence in government are beyond judicial
remedy, that bureaucratic recalcitrance has outpaced
and rendered obsolete our vaunted system of checks
and balances, and that people are simply at the mercy
of governmental whim with no chance for salvation.
The Court clings to a slim and quickly receding hope
that future progress may vitiate the need for such a
grim declaration.

  This hope is sustained in part by the fact that the
Indians who brought this case found it in themselves to
stand up, draw a line in the sand, and tell the
government: Enough is enough-this far and no
further. Perhaps they regret having done so now, nine
years later, beset on all sides by the costs of protracted
litigation and the possibility that their efforts may
ultimately prove futile; but still they continue. The
notice requirement established by the Court today
represents a significant victory for the plaintiffs. For
the first time in the history of this case, the majority of
Indian beneficiaries will be aware of the lawsuit, the
plaintiffs' efforts, and the danger involved in placing
any further confidence in the Department of the
Interior. Perhaps more importantly, the Indians will be
advised that they may contact class counsel for
guidance on their trust-related concerns. This likely
will bring to light a wealth of new evidence concerning
Interior's mismanagement of the trust; it will also open
an avenue to relief for individuals throughout Indian
country whose suffering might otherwise be buried
forever in a bureaucratic tomb.

  Real justice for these Indians may still lie in the
distant future; it may never come at all. This reality


                  23

  makes a statement about our society and our form of
  government that we should be unwilling to let stand.
  But perhaps the best that can be hoped for is that
  people never forget what the plaintiffs have done here,
  and that other marginalized people will learn about this
  case and follow the Indians' example.

Id. at 22-23 & n.15 (omissions and alterations in original).

                Reversals

  Since Cobell VI, this court has heard eight appeals in this
case, each time setting aside a district court order or other action
against Interior. According to the government, this pattern
provides further evidence of the need to assign the case to a
different judge.

  In the first of these eight opinions, Cobell VIII, we reversed
contempt citations against the Secretary and Assistant Secretary
of Interior, finding the district court's reasoning on one point
"mystifying." Cobell VIII, 334 F.3d at 1149. We also issued a
writ of mandamus directing the removal of a "Special Master-
Monitor" whom the district court had appointed over the
government's objection. Id. at 1135-36, 1142. Among other
things, we found the district court had given the Monitor "an
investigative, quasi-inquisitorial, quasi-prosecutorial role that is
unknown to our adversarial legal system." Id. at 1142.

  In the second opinion, In re Brooks, we issued another writ
of mandamus, this time directing the district court to disregard
reports from a Special Master who "had been performing
investigative and adjudicative tasks that entailed ex pane
communications with witnesses and third parties." In re Brooks,
383 F.3d at 1044. We found "the nature and extent of [the
Special Master's] cx parte contacts would lead an informed
observer reasonably to question his impartiality." Id. at 1046.


                  24

The district court's action, we explained, was as if "a judge
presiding over a criminal proceeding" had "dispatch[ed] his law
clerk to visit the scene of the crime, take fingerprints, interview
witnesses, and report back to the judge about his findings." Id.

   In CobeliXil, we vacated an order requiring "disconnection
of substantially all of the Department of the Interior's computer
systems from the Internet." Cobeil XII, 391 F.3d at 253. We
found the district court had impermissibly "shift[ed] the burden
of persuasion to the Secretary to show why disconnecting most
of interior's IT systems was unnecessary," id. at 259, and
"abused its discretion by not holding an evidentiary hearing
before issuing the . . . injunction," id. at 262.

   In Cobell XIII, we largely vacated a "historical accounting"
injunction requiring Interior to create a plan for fulfulling its
fiduciary obligations and "identify any portions of the plan that
might be deemed inconsistent with the common law trust duties
previously identified by the district court, and explain why the
identified portion or portions should not be considered
inconsistent with these duties." Cobell XIII, 392 F.3d at 469.
We explained that "the court's innovation of requiring
defendants to file a plan and then to say what 'might' be wrong
with it turns the litigation process on its head," id. at 474, and
that "the court may not micromanage court-ordered reform
efforts undertaken to comply with general trust duties
enumerated by the court, and then subject defendants to findings
of contempt for failure to implement such reforms," id. at 478.

   in Cobell XVII, we set aside another historical accounting
injunction, noting that "[e]ven the plaintiffs agree[d] that the
injunction should not stand because they believe[d] it to be
impossible to perform." Cobell XVII, 428 F.3d at 1072. The
district court had "completely disregarded relevant information
about the costs of its injunction," id. at 1077, and, in rejecting


                        25

the government's   plan to use statistical    sampling,
"acknowledged the extra burden in time and money but saw that
singular burden as outweighed simply by the beneficiaries'
preferences." Id. at 1078.

    In In re Kempthorne, we issued yet another writ of
mandamus, this time ordering the district court to strike several
Special Master reports from the record.    Charged with
investigating a contractor's allegation that, among other things,
Interior had withheld critical information from the court, the
Special   Master  hired an employee      of that very
contractor-indeed, an employee who would "likely be a
witness in [the contractor's] case against the Department." In re
Kempthorne, 2006 WL 1563612, at *5* We thought it "difficult
to imagine a more biased way of conducting and reporting upon
an investigation." Id.

    Today, we set aside two more orders against Interior. In
No. 05-5388, we again vacate an order requiring disconnection
of virtually all Interior computers from the internet, finding that
"the district court glossed over the immensity of the disruption
that would occur to Interior's operations."   Cobell v.
Kempthorne, No. 05-53 88, slip op. at 28. And in this appeal, we
set aside an order requiring Interior to confess its own
unreliability in every mailing to trust beneficiaries on any
subject.  As we explained above, the district court again
undervalued the potential harm to Interior, and then exacerbated
that harm by requiring notice more sweeping than the record can
support. See supra p. 13.

                        V.

    We have authority to assign a case to a different district
judge under "our general supervisory power to 'require such
further proceedings to be had as may be just under the
circumstances."  United States v! Microsoft Corp., 56 F.3d


                         26

1448, 1463 (D.C. Cir. 1995) (per curiam) (Microsoft I) (quoting
28 U.S.C.  2106). Because unfavorable rulings are "[a]lmost
invariably . . . proper grounds for appeal, not for recusal," we
exercise this authority only in extraordinary cases. Liteky v.
United States, 510 U.S. 540, 555 (1994).

  Reassignment requests usually arise from accusations that
ajudge engaged in improper outside communications. See, e.g.,
Microsoft I, 56 F.3d at 1463-65 (instructing district court to
reassign case where judge relied on a book that was not in
evidence); United States v. Microsoft Corp., 253 F.3d 34, 46
(D.C. Cir. 2001) (en bane; per curiam) (ordering reassignment
where trial judge "engaged in impermissible exparte contacts
by holding secret interviews with members of the media and
made numerous offensive comments about Microsoft officials
in public statements outside of the courtroom"). Indeed, earlier
in this litigation, the government sought to remove the judge on
that basis, claiming that he had received information gathered by
Special Masters outside the adversarial process. In re Brooks,
383 F.3d at 1041. Accepting the judge's statement that "he did
not receive ex pane communications substantively related to
[pending contempt] proceedings," we denied the government's
request. Id. at 1038.

  Today, the government advances a different argument.
Alleging no improper outside communications, the government
instead claims the July 12 opinion's language, together with this
court's repeated reversals of the district court's decisions,
warrants reassignment.  "No reasonable observer," the
government argues, "would believe that a court that has
viciously and baselessly denounced a cabinet department and its
leadership as villainous racists could properly oversee its
activities and adjudicate further claims." Appellants' Br. 53.


                  27
   To prevail, the government has a heavy burden. As the
Supreme Court observed in Liteky v. United States, although
"[t]hejudge who presides at a trial may, upon completion of the
evidence, be exceedingly ill disposed towards the defendant,
who has been shown to be a thoroughly reprehensible person,"
still "the judge is not thereby recusable for bias or prejudice,
since his knowledge and the opinion it produced were properly
and necessarily acquired in the course of the proceedings, and
are indeed sometimes (as in a bench trial) necessary to
completion of the judge's task." Liteky, 510 U.S. at 550-51.
Removal for bias is appropriate "even though [the judge's
opinion] springs from the facts adduced or the events occurring
at trial" only when "it is so extreme as to display clear inability
to render fair judgment." Id. at 551.

   Applying Liteky is a delicate task. First and foremost, we
must take special care to avoid undermining the ability of
district judges to perform their responsibilities. Particularly in
hard-fought litigation dealing with controversial issues, district
judges must sometimes take strong actions and use strong
words. Presiding over such challenging cases would become
even more difficult if districtjudges had to worry that appellate
courts would routinely review their decisions not just for legal
error, but for bias as well. See United States v. Roach, 108 F.3d
1477, 1484 (D.C. Cir. 1997) ("In a controversial, sharply
contested case presided over by an experienced district judge,
strongly stated judicial views rooted in the record should not be
confused with judicial bias."), vacated in part on other grounds,
136 F.3d 794 (D.C. Cir. 1998). For this reason, and because
except in the most unusual circumstances we trust judges to put
their personal feelings aside, recusal must be limited to truly
extraordinary cases where, as Liteky puts it, the judge's views
have become "so extreme as to display clear inability to render
fair judgment," Liteky, 510 U.S. at 551.


                      28

   In the rare case that meets the Liteky standard, however,
removal is essential to "preserve[] both the appearance and
reality of fairness, 'generating the feeling, so important to a
popular government, thatjustice has been done." Marshall v.
Jerrico,  Inc., 446 U.s. 238, 242 (1980) (quoting Joint
Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 172 (1951)
(Frankfurter, J., concurring)). The appearance of partiality cuts
at the heart of the judicial system. See Bridges v. California,
314 U.S. 252, 282 (1941) (Frankfurter, J., dissenting) ("The
administration ofjustice by an impartial judiciary has been basic
to our conception of freedom ever since Magna Carta."). Just as
reassignment is necessary if reasonable observers could believe
that improper outside contacts influenced ajudicial decision, see
Microsoft I, 56 F.3d at 1463, so too is reassignment necessary if
reasonable observers could believe that a judicial decision
flowed from the judge's animus toward a party rather than from
the judge's application of law to fact.

   With these principles in mind, we turn to the case before us,
beginning with the language of the July 12 opinion.  The
government believes that "the court's moral condemnation has
caused it to depart fromjudicial norms" and that the court has an
"unshakeable view that Interior is guilty of global malfeasance,
and that the court's duty is to ferret out the evidence of its
misdeeds." Appellants' Br. 55. Plaintiff-beneficiaries have a
very different view of the July 12 opinion. They insist that
"[w]hile forcefully worded, the district court's rulings are
founded entirely on the evidence of record set forth in more than
nine years of litigation and over 200 days of evidentiary
hearings." Appellees' Br. 31.

   Although the July 12 opinion contains harsh-even
incendiary-language, much of that language represents nothing
more than the views of an experienced judge who, having
presided over this exceptionally contentious case for almost a


                  29

decade, has become "exceedingly ill disposed towards [al
defendant" that has flagrantly and repeatedly breached its
fiduciary obligations. Liteky, 510 U.S. at 550. We ourselves
have referred to Interior's "malfeasance," "recalcitrance,"
"unconscionable delay," "intransigen[ce]," and "hopelessly
inept management." Cobell VI, 240 F.3d at 1096, 1109; Cobell
XII, 391 F.3d at 257; Cobell XIII, 392 F.3d at 463.

  Yet portions of the July 12 opinion go further. Most
seriously, although no one, not even the government, doubts that
racism ran rampant at Interior a century ago, see Appellants'
Reply Br. 19 (acknowledging that "a government expert witness
  agreed. . . that Commissioner of Indian Affairs Sells, who
held office in the early part of the last century, believed that
white people were superior to Indians"), the July 12 opinion
extends beyond historical racism and all but accuses current
Interior officials of racism.   "[Ojur 'modern' Interior
department," the opinion declares, is "a dinosaur-the morally
and culturally oblivious hand-me-down of a disgracefully racist
and imperialist government that should have been buried a
century ago, the last pathetic outpost of the indifference and
anglocentrism we thought we had left behind." CobellXV, 229
F.R.D. at 7. Other statements reinforce the district court's
apparent belief that racism at Interior is not just a thing of the
past: "our government still treats Native American Indians as if
they were somehow less than deserving of the respect that
should be afforded to everyone in a society where all people are
supposed to be equal." Id. The opinion also dismisses the
possibility that "the stories of murder, dispossession, forced
marches, assimilationist policy programs, and other incidents of
cultural genocide against the Indians are merely the echoes of a
horrible, bigoted government-past that has been sanitized by the
good deeds of more recent history." Id.


                          30

   To be sure, Interior's deplorable record deserves
condemnation in the strongestterms. Words like "ignominious"
and "incompeten[t]" (the district court's) and "malfeasance" and
"recalcitrance" (ours) are fair and well-supported by the record.
Even drawing inferences of racism might well have been
appropriate were Interior's motives relevant, as they would be
in a discrimination case, for such inferences would be
"necessary to completion of the judge's task," Liteky, 510 U.s.
at 551. Here, however, Interior's motive had nothing to do with
the issue pending in the district court-whether inaccuracies in
trust information require notice to Indian beneficiaries. Indeed,
the district court made clear that it viewed the facts relevant to
that inquiry as uncontested. See CobellXV, 229 F.R.D. at 16
("Interior does not dispute the factual predicates of the
plaintiffs' argument.").

   Other passages in the July 12 opinion are also troubling.
The opinion describes Interior as an agency whose "spite" has
led it to turn its "wrath" on trust beneficiaries and engage in
"willful misconduct," "iniquities," "scandals," "dirty tricks," and
"outright villainy."  Id. at 10, 11, 22. Words like these,
especially given the limited issue the July 12 order resolves,
suggest the district court has condemned not just Interior's
particular failures as trustee, but the Department as an
institution.

   We have little doubt that this parade of serious charges, all
unconnected to the issue before the district court, could
contribute to a reasonable observer's belief that Interior stands
no chance of prevailing whatever the merits of its position. But
we need not decide whether such charges, standing alone,
require reassignment, for the charges do not stand alone.
Rather, they follow an unbroken string of reversed district court
orders, all directed against Interior.  As we have held,
"[a]lthough a legal ruling may not itself serve as the basis for a


                     31

motion to disqualify, a particularjudicial ruling can be evidence
of. . . bias or prejudice." United States v. Barry, 938 F .2d 1327,
1340 (D.C. Cir. 1991) (citations and internal quotation marks
omitted).

  Here, there is not just one "particular judicial ruling," but
eight.  In two, the district court imposed an inappropriate
evidentiary burden on Interior(Cobe//XIIandXIIJ). In three, it
underestimated the harmful effects its orders would have on the
government (Cobell XVII and the two cases decided today).
And in three others, it both assumed the mantle of a prosecutor
and authorized biased investigations (Cobell VIII, In re Brooks,
and In re Kempthorne). In four cases, we found abuses of
discretion (Cobell XII, XIII, XVII, and No. 05-5388), in three
(the mandamus actions) we found Interior had a clear and
indisputable right to relief (Cobell VIII, In re Brooks, and In re
Kempthorne), and in one we found the district court had used a
procedural rule to accomplish a substantive goal (this case). We
set aside contempt citations against the Secretary and other
senior Interior officials (Cobell VIII), and twice found that the
district court awarded injunctive relief without the required
evidentiary hearing (Cobell XII and XVII). Ten judges of this
court have heard one or more of these appeals. Not one has
dissented.

  Plaintiff-beneficiaries insist the record is not as one-sided
as the foregoing summary suggests. In a footnote, they assert
that "[n]otably, the district court has ruled against plaintiffs or
limited their relief sought." Appellees' Br. 41 n.39. "Notably,"
however, they provide no citation to any such action. Asked at
oral argument for examples of significant relief the district court
had denied plaintiff-beneficiaries, counsel first cited the court's
rejection of their request for a trial date on the adequacy of
Interior's accounting for the named plaintiffs. But the district
court denied that motion without prejudice because it


                            32

"conclude[d] that the pendency of appellate review of the issues
surrounding the defendants' accounting duties at issue in this
litigation render[ed] it inappropriate to set a date for trial on
those issues at [that] time," Cobell v. Norton, No. 96-1285
(D.D.C. June 3, 2005)-hardly a crushing blow. Counsel also
cited the district court's 1998 denial of plaintiff-beneficiaries'
request for interim relief.   Given plaintiff-beneficiaries'
sweeping victory in the subsequent bench trial, however, we
hesitate to ascribe much significance to that decision. Finally,
counsel observed that the district court has repeatedly refused to
place the trust assets into receivership. But as the July 12
opinion makes clear, those refusals stem not from any sympathy
for Interior, but rather from the district court's concern that
placing   assets in receivership "would constitute an
announcement that negligence and incompetence in government
are beyond judicial remedy." CobelIXV, 229 F.R.D. at 22.

  Plaintiff-beneficiaries' challenge to the uniformity of this
court's reversals fares no better. Their only example of a break
in the constant stream of reversals is our dismissal with
prejudice of a government appeal. They neglect to mention,
however, that the order they cite did not affirm on the merits, but
instead responded to the government's motion for voluntary
dismissal. See Cobell v. Norton, No. 03-5063, 2003 WL
22136383 (D.C. Cir. Sept. 9, 2003)).

  In short, in case after case the district court granted
extensive relief against Interior, and in case after case we
reversed, even under highly deferential standards of review. To
be sure, repeated reversals, without more, are unlikely tojustify
reassignment. But here there is more. For one thing, on several
occasions the district court or its appointees exceeded the role of
impartial arbiter by issuing orders without hearings and by
actively participating in evidence-gathering. For another, the
July 12 opinion levels serious charges against Interior and its


                  33

officials, charges that not only bear no relationship to the issue
pending before the court, but also go beyond criticizing Interior
for its serious failures as trustee and condemn the Department as
an institution.

   From all of this evidence, "an objective observer is left with
the overall impression," Microsoft 1, 56 F.3d at 1463, that the
district court's professed hostility to Interior has become "so
extreme as to display clear inability to render fair judgment,"
Liteky, 510 U.S. at 551. What distinguishes this case from one
in which a judge has merely become "exceedingly ill disposed
towards [a party which] has been shown to be . . . thoroughly
reprehensible," Id. at 550-51, is, most certainly, not any
redeeming aspect of Interior's behavior as trustee. Rather, what
distinguishes this case is the combination of the content of the
July 12 opinion and the nature of the district court's actions.
Given these seemingly unique circumstances, and given that
"justice must satisfy the appearance ofjustice," Offutt v. United
States, 348 U.S. 11, 14 (1954)-that is, reasonable observers
must have confidence that judicial decisions flow from the
impartial application of law to fact, not from ajudge' s animosity
toward a party-we conclude, reluctantly, that this is one of
those rare cases in which reassignment is necessary.

                  VI.

   We close with a warning to the parties. In Cobell VI, we
recognized that "the federal government has failed time and
again to discharge its fiduciary duties," resulting in a serious
injustice that has persisted for over a century and that cries out
for redress. Cobell VI, 240 F.3d at 1086. Yet today, five years
later, no remedy is in sight, this case continues to consume vast
amounts ofjudicial resources, and growing hostility between the
parties distracts from the serious issues in the case.


                  34

  Our ruling today presents an opportunity for a fresh start.
As the litigation proceeds, the government must remember that
although it regularly prevails on appeal, our many decisions in
no way change the fact that it remains in breach of its trust
responsibilities. In its capacity as trustee and as representative
of a!! Americans, the government has an obligation to rise above
its deplorable record and help fashion an effective remedy. For
their part, counsel for plaintiff-beneficiaries, as counsel to a
large class of Indians and as officers of the court, would more
ably advance their worthy cause by focusing their energies on
legal issues rather than on attacking the government and its
lawyers.

  The July 12 order is vacated and the matter remanded to the
chiefjudge of the district court with instructions to reassign the
case. We expect both parties to work with the new judge to
resolve this case expeditiously and fairly.

                               So ordered.