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Mntte'tr States' Court o€ appears' 
FOR THE DISTRICT O F COLUMBIA CIRCUIT 
Decided July 18, 2003 Argued April 24, 2003 
NO. 02-5374 
ELOUISE PEPION COBELL, ET AL., 
APPELLEES 
V. 
GALE A. NORTON, SECRETARY OF THE INTERIOR, ET AL., 
APPELLANTS 
Appeal from the United States District Court 
for the District of Columbia 
(No. 96~~01285) 
Mark B. Stern, Attorney, U.S. Department of "clstice, 
argued the cause for appellants. With him on the briefs were 
Gregory G. Katsas, Deputy Assistant Attorney General, Rob- 
ert E. Kopp, Director, Thomas M. Bondy and Charles W. 
Scarborough, Attorneys, Roscoe C. Howard, Jr., U.S. Attor- 
ney, Mark E. Nagle and R. Craig Lawrence, Assistant U.S. 
Attorneys. B. Michael Rauh entered an appearance. 
Bills of costs must be filed within 14 days after entry of judgment. 
The court looks with disfavor upon motions to file bills of costs out 
of time. 2 
Elliott H. Levitas argued the cause for appellees. With 
him on the brief were Dennis M. Gingold and Keith M. 
Harper. George W. Austin entered an appearance. 
Before: GINSBURG, Chief Judge, and HENDERSON and 
RANDOLPH, Circuit Judges. 
Opinion for the Court filed by Chief Judge GINSBURG. 
GINSBURG, Chief Judge: Beneficiaries of Individual Indian 
Money trust accounts, as a class, sued the Secretary of the 
Interior and other federal officials, in their official capacities, 
for breach of fiduciary duty in the management of those 
accounts. In an earlier appeal, we affirmed the district 
court’s holding that the officials, who serve as trustee- 
delegates for the federal government, had breached their 
fiduciary duties, and we remanded the case to that court for 
further proceedings. Cobell v. Norton, 240 F.3d 1081 (2001) 
(“Co be1 1 VI”). 
In April 2001, with the consent of the parties, the district 
court appointed Joseph S. Kieffer I11 as “Court Monitor’’ and 
charged him to “monitor and review all of the Interior 
defendants’ trust reform activities and file written reports of 
his findings with the Court.)’ In April 2002 the court reap- 
pointed Kieffer as Court Monitor, this time over the defen- 
dants’ objection. On September 17, 2002, the court held Gale 
A. Norton, Secretary of the Interior, and Neal A. McCaleb, 
Assistant Secretary of the Interior for Indian Affairs, in 
contempt of court, elevated Kieffer to the status of “Special 
Master-Monitor,” and scheduled further proceedings. The 
Department contends that in so doing the district court not 
only erred, it took control of functions constitutionally re- 
served to the Executive Branch. We agree that the district 
court erred, and we reverse Kieffer’s reappointment and the 
citations for contempt. We lack jurisdiction, however, to 
consider the Department’s contention that the court has 
overstepped its authority. 
I. Background 
We recounted the long history of the Government’s trust 
responsibilities to Native Americans in Cobell VI, and we ~ 
3 
therefore provide only an abbreviated version of that history 
here. Pursuant to the General Allotment Act of 1887, ch. 119, 
24 Stat. 388 (formerly codified at 25 U.S.C. $5 331 et seq.), 
lands that had previously been set aside for Indian tribes 
were allotted to individual Indians in fixed amounts; “sur- 
plus” lands were opened to non-Indian settlement. The Act 
created a system in which allotted lands wouid be heid in 
trust by the United States for 25 years or more, during which 
period an individual account (“Individual Indian Money” ac- 
count or “IIM” account) would be created for each Indian 
WILII iili inteieest iii the dotted lands. The United States 
would manage the lands for the benefit of the allottees until 
the expiration of the trust, period, at which time each allottee 
would be issued a fee patent. The Indian Reorganization Act 
of 1934, di. 576, 48 Siai;. 984 (codified as amended at 25 
U.S.C. 8 461 et seq.), ended the practice of allotment but 
extended indefinitely the trust period for already-allotted 
lands. Through the operation of these two statutes, there- 
fore, the “niied States came to hold an estimated ii miiiion 
acres of land as trustee for, and with a fiduciary duty to, 
individual Indian beneficiaries. In 1994 the Congress enacted 
the Indian Trust Fund Management Reform Act, Pub. L. No. 
103-412, 168 Stat. 4239 (codified as amended at 25 U.S.C. 
§ 4001 et seq.) (“1994 Act”), recognizing these responsibilities 
and identifying some of the Government’s duties to ensure it 
meets them. The plaintiffs’ lawsuit alleges a breach of these 
divided the !itigatjon into t-w-o “phases.” Phase 1 was to 
--2&L 
res- _-,IL:I!LL puIlblUllILleS. 
The duties of the United States as trustee have been 
delegated to the Secretary of the Interior and the Secretary 
of the Treasury, see 25 U.S.C. 99 161-161a, 40014011, each 
of whom is assigned specific tasks. Also relevant to this 
appeal is the Office of the Special Trustee within the Depart- 
ment of the Interior (arid subordinate to the Secretary), 
which was created by the 1994 Act to oversee the trust 
reform activities of the Department. Id. 88 40424043. 
A. Previous Proceedings 
The plaintiffs filed this lawsuit in 1996. In 1998 the district 4 
address “fixing the system,” that is, “reforming the manage- 
ment and accounting of the IIM trust,” and Phase I1 would 
concern “correcting the accounts” by “performing a historical 
accounting of the IIM trust accounts.” In 1999 the district 
court held Secretary of the Interior Bruce Babbitt, Assistant 
Secretary Kevin Gover, and Secretary of the Treasury Law- 
rence Summers had breached their fiduciary duties. The 
court issued a declarator,y judgment to that effect and re- 
manded the case to the Interior and Treasury Departments 
for them to bring themselves into compliance with the law, 
and to take certain steps the court deemed necessary to 
provide an accounting of the IIM trust. Cobell v. Babbitt, 91 
F. Supp. 2d 1, 58 (D.D.C.) (“Cobell V”). In order to assure 
the defendants’ compliance; the court, rehined jiuisdictiOn 
and ordered the defendants to file quarterly status reports 
“setting forth and explaining the steps that defendants have 
taken to rectify” the breach. Id. at 59. Finally, the court 
certified its &&ior. fer iflter!e&=ry appeal p’;r&!fiafit to 28 
U.S.C. 9 1292(b). Id. 
In February 2001 we ,affirmed the order of the district 
court: The Government :indeed had breached its fiduciary 
duty. Among many other things, it “does not know the 
precise number of IIM trust accounts that it is to administer 
and protect,” and “it does not know the proper balances for 
each IIM account.” Cobell VI, 240 F.3d at 1089. Although 
we determined that the district court had mischaracterized 
some of the defendants’ actions - for instance, their failure to 
“retrieve and retain all information concerning the IIM trust 
that is necessary to render an accurate accounting” - 8s 
independent violations of a fiduciary duty, rather than as 
“support for the . . . court’s ultimate conclusion that appel- 
lants have unreasonably delayed the discharge of their fidu- 
ciary &lig&jor,s to II?;I bea&iay;@,” 243 F.3(-j at 1164, 1165, 
we upheld the district court’s “ultimate conclusion” as fully 
justified. Id. at 1105. ’We also held the district court’s 
remand of the matter to the agencies and its retention of 
j.Gi-;s&;ction were appropria,te i.eme(jies* id. i i(j7-09. 5 
B. The Orders on Appeal 
While Cobell VI was pending before us and thereafter, the 
Department and its officers took a number of steps relevant 
to this appeal. Beginning in March 2000 and continuing 
apparently to the present,, the Department filed the quarterly 
reports required by Cobell V. In April 2000 the Department 
published a notice in the ‘Federal Register proposing a meth- 
od for performing an historical accounting and seeking public 
comment thereon; and in December 2000 it chose statistical 
sampling as the method it would use. 
In April 2001 the district court appointed Kieffer as Court 
Monitor. As noted, the Department consented to this ap- 
pointment, regarding which it expressed the “hope that this 
will in fact. he a p0sit.i~~ s f . q fomarrl_ 80 that resc!~?rces can hp, 
more directed towards trust reform and less directed towards 
litigation.” The order appointing Kieffer stated he would 
“serve for at least 1 year from this date. Upon order of the 
Court; aft..er comment. 01 objection thereto hy the parties, his 
term of service may be extended for additional terms.” In 
April 2002 the district court “propose[d] to extend Mr. Kief- 
fer’s term of service for at least an additional year.” The 
Department nbjectec! tc! K:kffer’s req!pC!intrr?ent Iln!ess sever- 
al conditions were met. The district court accepted some but 
not all those conditions, and reappointed Kieffer. 
LL- J Z - L . 2 - L 
Four days later (April 19) Kieffer, with authorization from 
L I I ~ uisLricL COIN L, aLLenueu a meeting with Deputy Secretary 
of the Interior J. Steven Griles, the Special Trustee, and 
other departmental officials; the plaintiffs were not repre- 
sented at the meeting. The district court found this was one 
the meeting 
_ L L _ - - _ 1 - 3 
meetings Kieffer 
~~~~~~ 
_ _ -.*L 
of many. jiitei.ilai 
~~~~~~~~~~- 
was called at Griles’s request; it was a “heated meeting [that] 
resolved nothing.” The district court also found that at the 
meeting the Court Monit,or discussed with Interior officials 
nis concerns about the ~Nay they were doing their jobs - 
concerns that he was subsequently to report to the district 
court. The district court characterized Kieffer’s actions as 
“an effort to set the stage to convince the parties attending 
I _ r:.--i ~ - ~ ~ ~ - LL- LIK I I I ~ ~ L I K I ~ - -__Lz._- LU ii~iu surne way to work together.” 6 
On June 14 the Department moved the district court to 
revoke Kieffer’s appointment as, and to clarify the role of, the 
Court Monitor. The Department argued that its previous 
objections “presaged” the April 19 meeting, at which, the 
Department claimed, Kieffer demonstrated his intention and 
his ability to assert powers constitutionally reserved to the 
Executive Branch of the Government. 
Meanwhile the Monitor’s reports, which were, to say the 
least, unflattering to the DOI, had prompted the district court 
to order Secretary Norton and Assistant Secretary McCaleb, 
both of whom had taken (office in 2001, to “show cause why 
they should not be held in civil contempt of court in their 
official capacities” on five “specifications,” namely: 
c i j Faiiing to compiy with the Court’s Order of Decem- 
ber 21, 1999, to initiate a Historical Accounting Project. 
(2) Committing a fraud on the Court by concealing the 
Department’s true actions regarding the Historical Ac- 
counting Project during the period from March 2000, 
until January 2001. 
(3) Committing a fraud on the Court by failing to dis- 
the TF-LVS preject bet...,reer. c!oe the true ststus c!!- 
September 1999 and December 21,1999.[*’ 
(4) Committing a fraud on the Court by filing false and 
misleading quarterly status reports starting in March 
2000, regarding TMvIS and BiA [Bureau of Indian 
Affairs] Data Clean-up.‘**’ 
(5) Committing a fraud on the court by making false and 
misleading representations starting in March, 2000, re- 
garding computer security of IIM trust data. 
I ..__ I - L I - _ _ L _ ~ - - _ _ P _ - - _ _ L-- 1 - - 1 3 :-- L - - - - - L c--- rras - - - - ~ - - - L L - - - - L - : 
* TAAMS, the Trust Asset and Accounting Management System, 
is a new computer system expected to enable Interior better to 
LIXK LIW S L ~ L U S 01 propemy iieiu in LrusL lor i i i v i account aenericia- 
ries. 
** “BIA Data Clean-up” refers to Interior’s effort to remedy 
shortcomings in the data in1 the Department’s current computer 
systems so that those data can be transferred into TMXS. 7 
Cobell v. Norton, 226 F. Supp. 2d 1, 19-20 (D.D.C. 2002) 
(“Contempt Opinion”). The district court held a 29-day 
bench trial on the contempt charges. 
On September 17, 2002 the district court issued the three 
Orders that are the subject of this appeal. First, the court 
issued an Order that, among other things, held Secretary 
Norton and Assistant Secretary McCaleb “in civil contempt of 
court.” Cobell v. Norton, 226 F. Supp. 2d 161, 161 (D.D.C.) 
(“Contempt Order”). The Contempt Order was accompanied 
by and explained in the Contempt Opinion, released simulta- 
neousiy. Second, the district court issued a Memorandum 
and Order denying the defendants’ motion to revoke Kieffer’s 
appointment as Court Monitor. Cobell v. Norton, 226 F. 
Supp. 2d 163 (D.D.C.) (“Monitor Order”). Finally, the court 
issued an Order appoiming Kieffer to serve as “Speciai 
Master-Monitor” “[p]ursuant to Rule 53 of the Federal Rules 
of Civil Procedure.” Cobell w. Norton, 2002 US. Dist. LEXIS 
17354, at *1 (D.D.C.) (“Special Master-Monitor Order”). 
In the Contempt Ordeip, the court addressed each of the 
five specifications of contempt. With regard to the first 
count, the court described Norton’s and McCaleb’s failure to 
comply with its earlier order as “litigation misconduct.” In 
each of the other specifications, the court found Norton and 
McCaleb to have “committ[ed] a fraud on the Court.” 226 F. 
Supp. 2d at 161. The district court used some harsh words in 
the Contempt Opinion, expressing its dissatisfaction with the 
defendants’ conduct. See, e.g., 226 F. Supp. 2d at 125 (“The 
Department of Interior i s truly an embarrassment to the 
federal government in general and the executive branch in 
particular. The 300,000 individual Indian beneficiaries de- 
serve a better trustee-deiegate than the Secretary of interi- 
or”); id. at 113 (“The Court is both saddened and disgusted 
by the Department’s intransigence”). Of particular note are 
the district court’s state:ment that “Secretary Norton and 
Assistant Secretary IvicCaieb can now rightfully take their 
place alongside former-Secretary Babbitt and former- 
Assistant Secretary Gover in the pantheon of unfit trustee- 
delegates,” id. at 161, and the court’s invitation to Secretary 
pATortoli ol’ any. othei. iiy,dividuai at the Depadrneni who 8 
“feel[s] that as a result of l;h[e] Court’s ruling they are unable 
or unwilling to perform their duties to the best of their 
abiiity” to ”ieave the Department forthwith.” id. at i33. 
Turning to the questi0.n of relief, the court refused the 
plaintiffs’ request that it appoint a receiver to take over the 
IIM trust. The court did, however, determine that the relief 
it had ordered in Cobell V - remanding the case to the 
agencies to carry out their duties as instructed - “was and is 
insufficient,” id. at 147, and it therefore contemplated “grant- 
ing further injunctive relief.” Id. at 148. To that end the 
court scheduled further proceedings, which it called the 
“Phase 1.5 trial.” Id. In order to prepare for the Phase 1.5 
trial, the court required Interior to file “a plan for conducting 
a historical accounting of the IIM trust accounts” and “a plan 
for bringing themselves into compliance with the fiduciary 
obligations that they owe to the IIM beneficiaries.” Contempt 
Order, 226 F. Supp. 2d at 162. The court also permitted the 
plaintiffs (and the Department of the Treasury) to file such 
plans, and permitted each party to respond to any other 
party’s plan. Id. 
In the Monitor Order, .the court denied the Department’s 
” -Tllno 14 F.GtiGr! tc! revnke the 2ppointment of Col?rt Monitor UIl” 
Kieffer. The court found that Kieffer’s participation in the 
April 19 meeting was not inappropriate or beyond his authori- 
ty because it was “pursuant to the Secretary of the Interior’s 
gWn ,ron,llPat” 2nd “in cn!?fQE-ancp WIi;_th the Orders of the 
C!-yJrt Menitor 2nd 2s Specla] Master assumed 
of the district eoufi* 
’ ‘Y ”””-” 
2. 
Court.” 226 F. Supp. 2d at 169. Finally, in the Special 
Master-Monitor Order, the court sua sponte elevated Kieffer 
to the position of Special Master-Monitor; Kieffer retained 
his dl.t;e. 
new responsibilities for thle management of discovery. 2002 
U.S. Dist. LEXIS 17354, at *4-7. 
Secretary Norton and Assistant Secretary McCaleb appeal- 
ed three 
- - - L - - - - 9 , mi-_-- _ I _ _ L L - L LL- J:-L-:-L L _--_ J ---I--- 
argtle that the 
____I 
district court overstepped the bounds of judicial authority by 
declaring them “unfit” and by “seizing control of the process- 
es for creating and implementing plans for Indian trust 
reIorm. iney also ar-g-ut! LIM L I I ~ uisLricL CUUIL erreu w i i e ~ him Speciai Master-Monitor.* 
Y 
it held them in contempt of court, denied their motion to 
terminate Kieffer’s tenure as Court Monitor, and appointed 
I1 Analysis 
1x1, ..s.-l,*”+ns.-l +LA 17,.,-,-+ +- -L:-”+ e - el.--,. .-l:”L:...”+ 
V V C U l I U C l 3 L ~ l l U L l l C U U V C l l l l l l C l l L L U UUJCLL LU LlllCC UlBLlIICL 
aspects of the district court’s Orders in this case: (1) the 
court’s alleged overreaching through its “assum[ption of] 
control” over functions within the DOI; (2) the court’s deci- 
-:-.-- --_--A:-_ 
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holding Secretary Norton and Assistant Secretary McCaleb 
in contempt of court. Before we may reach these issues, 
however, we must confirm our jurisdiction over this interlocu- 
A -_... ___._ - - l Lory appeal. 
A. Jurisdiction 
The Department argues we have jurisdiction over this -__-- 1 _._--.---A c- 00 T T o r- c iono/-\/i\ T.- A L - -IA---~--A:--- appca1 p U I B u d l l L LU LO U.D u. y l.GJL(a)(l,l. 111 LIlt: alLeIIlaLIve 
it seeks a writ of mandamus. 
Section 1292(a)(l) provides that “the courts of appeals shall 
have jurisdiction of appeals from . . . [ilnterlocutory orders of 
the district courts of the LJnited States . . . granting, continu- 
ing, modifying, refusing or dissolving injunctions, or refusing 
to dissolve or modify injunctions.” As the Supreme Court 
stated in Carson v. American Brands, Inc., 450 U.S. 79, 84 
(1981), 3 1292(a)(l) provides jurisdiction over not just an 
injunction so-denominated, but over any order having the 
“practical effect” of an injunction if the order threatens a 
“serious, perhaps irreparable, consequence” and is of such a 
nature that it can be “effectually challenged only by immedi- 
ate appeal.” “An order by a federal court that relates only to 
the conduct or progress of litigation before that court ordi- 
narily is not considered an injunction and therefore is not 
* Norton and McCaleb also moved to present arguments in their 
individual capacities. Construing these as motions to appear as 
amici curiae, we grant them and dispose of other motions pending in 
L l L - - _ - _ :- -~ - ->--- :-- 
LIllS case 111 an uruel’ 1ssueu L- Lousy. -I1-- 10 
appealable under 3 1292(a)( l).” Gulfstream Aerospace Corp. 
2). Mayacamas Corp., 485 U S . 271,279 (1988). 
A writ of mandamus is “an extraordinary remedy, to be 
reserved for extraordinary situations.” Id. at 289. Manda- 
mus does not lie unless the petitioner’s right to relief is “clear 
and indisputable,” and there is “no other adequate means” by 
which the petitioner may attain the relief it seeks. I n re 
Sealed Case, 151 F.3d 105!3, 1063 (D.C. Cir. 1998). 
With these legal principles in mind, we consider our juris- 
dictinn Over e2ch nf the Dep2rtment’s three claims. 
1. Judicial Overreaching 
The Department argues we have jurisdiction over its claim 
of judicial overreaching pursuant to 9 1292(a)(1) because the 
district court’s rulings (1) imposed an injunction; or (2) had 
“the practical effect of an injunction”; or (3) worked “a 
modification of a declaratory judgment that the [district] 
court has [since] held to be indistinguishable from a mandato- 
ry injunction.” The gravamen of the Department’s argument, 
however expressed, is that the district court orders “both 
require[ ] action and implicitly enjoin[ ] the Secretary’s future 
exercise of discretion.’’ 
We disagree. As the plaintiffs demonstrate, the Orders 
and the Opinion were full of sound and fury, but they 
signified very little to be clone by the DOI. In the Contempt 
Order the court appointed a Special Master-Monitor, 226 F. 
Supp. 2d at 163 ll ll 13-16, and required the defendants, in 
anticipation of the Phase 1.5 trial, to “file with the Court , . . 
a plan for conducting a historical accounting of the IIM trust 
accounts” and to file a plan for “bringing themselves into 
compliance with [their] fiduciary obligations.” Id. at 162 
lI ll2, 3. It also held Secretary Norton and Assistant Secre- 
tary McCaleb in contempt, id. at 161 7 ll 1-5, and ordered 
them to pay the expenses the plaintiffs had incurred for the 
contempt trial. Id. at 162 ll ll9-10.* 
* In the Contempt Order the district court also entered a declara- 
tory judgment on an unrelated matter, see 226 F. Supp. 2d at 161- 
62 ii I, and referred certain matters LO another speciai master. id. 11 
None of this had the “practical effect” of an injunction. 
The Contempt Order compels the Department only to prepare 
for the Phase i.5 proceedings by making certain filings with 
the court. As such, we think it more akin to an “order . . . 
relat[ing] only to the conduct or progress of litigation,” Guy- 
stream Aerospace, 485 U.S. at 279, than to an injunction. 
The Department also points to the district court’s state- 
ment that it will order new relief following the Phase 1.5 trial 
rather than “simply remand[ing] the matter back to the 
agency,” Contempt Opinion, 226 F. Supp. 2d at 152, as 
evidence that the court intends to take over the management 
of trust reform. Such a claim is premature. To be sure, the 
district court stated it “has determined that it will grant 
further injunctive relief,” id. at 146 - specifically, “a structur- 
al injunction,” id. at 146 n.154 - presumably upon completion 
of the Phase 1.5 trial. Any such injunction, once issued, 
would be appealable under Q 1292(a)(1). But no such injunc- 
tion has yet issued. At worst, the district court has threat- 
ened to take action that, according to the Department, would 
violate the separation of powers. Until the district court 
takes such action, however, we are without power under 
§ 1292(a)(l) to review its decisions. 
Anticipating that the court might lack jurisdiction to hear 
the present appeal, the Department asks us in the alternative 
to issue a writ of mandamus providing equivalent relief. But 
we may not do that, either The Deprtrr,ent’s cha!!enge dees 
not meet the criteria for the writ; in particular, the Depart- 
ment has not shown that an appeal from the district court’s 
eventual entry of an injunction, if and when that occurs, 
would not provide it with adeqate relief. 
2. Kieffer’s Appointment as Monitor and as Special Mas- 
ter-Monitor 
The Department concedes that “[tlhe court’s order elevat- 
ing the Court Monitor to the judicial role of Special Master 
would not generally be immediately appealable.” Neverthe- 12 
less the Department claims that Kieffer’s appointment is 
subject to interlocutory review both because it “forms an 
integral part of the reiief the court beiieved was required“ 
and because it “has the effect of an injunction.” These claims 
are essentially a restatement of those we have already reject- 
ed as part of the Department’s claim of judicial overreaching. 
'fie see no need to revisit them under a new heading. 
The orders appointing Kieffer - first as Court Monitor, and 
later as Special Master-Monitor - and the order denying the 
Department’s motion to revoke Kieffer’s appointment as 
Court Monitor do, however, present an appropriate occasion 
for mandamus. First, as .we explain below (in Part II.B), the 
Department’s entitlement to relief is clear. Second, there is 
no other way for the Department to obtain effective relief on 
its claims that Kieffer should not have been appointed Special 
Master-Monitor, nor permitted to continue as Court Monitor. 
The ordinary route to relief from an adverse interlocutory 
erder is t G appeal frm the fins! judgxent. when the relief 
sought is recusal of a disqualified judicial officer, however, the 
injury suffered by a party required to complete judicial 
proceedings overseen by that officer is by its nature irrepara- 
ble. As the Supreme Caurt has explained: 
The remedy by appeal is inadequate. It comes after the 
trial and, if prejudice exist, it has worked its evil and a 
judgment of it in a reviewing tribunal is precarious. It 
goes there fortified by presumptions, and nothing can be 
more elusive of estimate or decision than a disposition of 
a mind in which there is a personal ingredient. 
R w p r 1,. T_~?.~iterJ States, 2.55 U.S. 32, 36 (1921); see 1% ye 
United States, 666 F.2d 690, 694 (1st Cir. 1981) (“A case 
involving a motion for disqualification is clearly distinguish- 
able from those where a party alleges an error of law that . . . 
may be fully addressed and rerr?edied 0” appeal”). The 
parties agree that after his elevation to Special Master- 
Monitor status, Kieffer was serving as a judicial officer. 
Although this court does not seem to have ruled upon the 
pl”pl;~Ly of see&ng the rec-usal of a J-u(jiciiti officer by -..,.”....,.+- 13 
petition for a writ of mandamus, every circuit to have ad- 
dressed the issue has found it proper. The First through 
Seventh Circuits and the ‘Tenth Circuit have each issued the 
writ for this purpose, see I n re Boston’s Children First, 244 
F.3d 164 (1st Cir. 2001); I n re ZBM COT., 45 F.3d 641 (2d 
Cir. 1995); In re Antar, 71 F.3d 97 (3d Cir. 1995); In re Sch. 
Asbestos Litig., 977 F.2d 764 (3d Cir. 1992); I n re Rodgers, 
537 F.2d 1196 (4th Cir. 1976); I n re Faulkner, 856 F.2d 716 
(5th Cir. 1988); In re Aetna Cas. & Sur. Co., 919 F.2d 1136 
(6th Cir. 1990) (en banc); I n re Hatcher, 150 F.3d 631 (7th 
Cir. 1998); I n re Edgar, 9’3 F.3d 256 (7th Cir. 1996); Nichols 
w. Alley, 71 F.3d 347 (10th. Cir. 1995), and the Eighth, Ninth, 
and Eleventh Circuits have suggested they would do so in an 
a,ppropriat,e c a p ; See Pfirrey, n c . 17. Loyd, 456 F.2d 532, 536- 
37 (8th Cir. 1972) (ho1d:ing mandamus is an appropriate 
avenue to review recusal decision but denying the writ on the 
facts presented); Cordoza v. Pac. States Steel Corp., 320 F.3d 
989, 999 (9th cir. zoa3: ;[sixikir); If& ye Lopez-LukZs, 113 
F.3d 1187, 1188 (11th Cir. 1997) (denying writ seeking review 
of recusal decision because “petitioners have not carried their 
burden of showing their right to issuance of a writ of manda- 
mi. . n. .I ...- I r i - - - : ~ 1 ~ ~I iii.usvj. irie r euerai u r c i m IOOKS to the law of the regional 
circuit in which the officer t o be recused sits. Baldwin 
Hardware COT. v. Frankl% Enter. COT., 78 F.3d 550, 556- 
57 (1996); I n re Solex Robotics, Inc., Misc. No. 725, 2003 US. 
App. LEXiS 1595 (Jan. 17, 2003) (unpublished). -We join the 
unanimous view of our sister circuits and hold that we will 
issue a writ of mandamus compelling recusal of a judicial 
officer where the party seeking the writ demonstrates a clear 
and indisputable right to relief. 
We also find it appropriate to issue the writ in order to 
clarify that the district court exceeded its authority when it 
reappointed I(ieffer as cO.ueL &,onitor Over the DepaI+menfs 
objection. As we discuss below, the Department’s right to 
relief is clear, and the injury it alleges - interference with the 
internal deliberations of a Department of the Government of 
the United States - cannot be remedied by an appeai from 14 
the final judgment. I n re Sealed Case, 151 F.3d at 1063.” 
3. Contempt Findings 
The district court styled the contempt in which it held the 
appellants civil in nature. In this circuit an order holding a 
party in civil contempt in an on-going proceeding is not 
appealable a.e a final ord-er, Ry?d 8. Ren.0, 180 F.3d 298 (D.C. 
Cir. 1999) (per curiam). In contrast, “[clriminal contempt 
judgments are immediately appealable pursuant to § 1291 
because they result from a separate and independent pro- 
ceeding . . . t,o vindicate the authority of the C G W t and are mt 
a part of the original cause.” Marrese v. Am. Acad. of 
Orthopaedic Surgeons, 470 U.S. 373, 379 (1985). As we 
explain below (in Part II.C.l), the district court’s findings of 
cnnt,empt. are fi_?nrt.ionally crim-inal rather than civil in nzture. 
Therefore, we have jurisdiction over this appeal from the 
contempt aspects of the Contempt Order. 
B. Court Monitor/Specia:l Master-Monitor Issues 
We turn now to the merits of the Department’s claim the 
district court erred by retaining Kieffer in this case. Specifi- 
cally, the Department argues both that the court had no 
authority to reappoint Rieffer as Court Monitor over its 
objection, and that Kieffer was disqualified from serving as 
Special Master-Monitor due to his personal knowledge of the 
case and the resulting appearance of partiality. 
1. Court Monitor 
Kieffer was appointed Court Monitor on April 16, 2001, 
with the consent of the parties, for a term of one year. In 
April 2002 the Government objected to Kieffer’s reappoint- 
mefit ufi!ess certair, cor,ditions were placed Epon the scope of 
* The plaintiffs contend we should not issue the writ because the 
Department did not file a separate petition for mandamus, which 
they claim is required by Federal Rule of Appellate Procedure 21 
and Circuit Rule 21. For its part, the Government points to our 
prior decision treating an improper interlocutory appeal as a peti- 
tion for mandamus, Ukiah Adventist Hosp. v. FTC, 981 F.2d 543, 
548 & n.6 (19929, in the light of which we deem the Government’s 
om~asion excusabie* 15 
his powers. On April 15, 2002, the district court reappointed 
him without regard to one of those conditions. The Depart- 
ment ciaims this was a ciear error. We agree. 
The district court claimed authority to appoint the Monitor 
in the first instance basedl upon the “consent of the [parties], 
and . . . the Court’s inherent powers.” The Government 
claims it did not consent to Kieffer’s reappointment, however, 
and neither the district court nor the plaintiffs point to any 
case or other authority suggesting a district court has inher- 
ent power to appoint a court monitor. Indeed, in their brief 
the plaintiffs, tellingly, do not address the Department’s 
argument that the district court could not appoint a court 
monitor over its objection. At oral argument the plaintiffs 
instead rested upon the assertion that the DOI’s consent to 
Kieffer’s original appointment as Court Monitor was tempo- 
rally unlimited and irrevocable. 
The plaintiffs’ position is untenable on the facts of this case. 
Firstj the distict cnurt di!j net prepnse O r p r p t , te appsint 
Kieffer permanently, so the DO1 had no occasion to consent 
to his having an unlimited tenure. As we noted earlier, the 
order appointing him stated that Kieffer would “serve for a t 
least 1 year from this d2t.e. up02 0rder of the court, after 
comment or objection thereto by the parties, his term of 
service may be extended for additional terms.” The plain- 
tiffs’ suggestion that this order, which explicitly grants the 
parties the right to object tc! Kieffer’s re.=pi!?tment, actm!!y 
served as consent to his unlimited tenure, is absurd. We 
conclude the Department effectively withheld its consent to 
the court’s reappointment of Kieffer as Monitor, which brings 
us to the questien wheth.er the district court hss iEhereEt 
power to appoint a monitor without the consent of the party 
to be monitored. 
A judicial claim to an “inherent power” is not to be 
indulged iightly, lest it excuse overreaching “[tlhe judiciai 
Power” actually granted to federal courts by Article I11 of the 
Constitution of the United States, and the customs and 
usages that inform the meaning of that phrase. Such a claim, 
L - - l 1--- 1 ? _-LL--- L - LL ____ P _.._ 
L I I ~ ~ ~ L O L ’ ~ , I I I U S ~ eimer ue uocumentea ~y nistoricai practice, 16 
see, e.g., Miner 21. Atlass, 363 U.S. 641, 64344 (1960) (reject- 
ing contention that federal court sitting in admiralty has 
inherent power to order taking of depositions for discovery 
because there was no historical record of courts ordering such 
depositions); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 
631 (1962) (noting court’s inherent power to dismiss suit for 
failure to prosecute dates to Hackstone’s Commentaries and 
“has long gone unquestion.ed”), or supported by an irrefutable 
showing that the exercise of an undoubted authority would 
otherwise be set to naught. See, e.g., Chambers v. NASCO, 
50; L1.S. 32, 43 (1931) (“It lias loiig been -Uiidei.stoo(j that 
certain implied powers must necessarily result to our Courts 
of justice from the nature of their institution, powers which 
cannot be dispensed with in a Court, because they are 
neceaaary to the of a:] &hers”); q< ’vs’i+s Act, 28 
U.S.C. 3 1651(a) (granting federal courts power to “issue all 
writs necessary or apprlopriate in aid of their respective 
jurisdictions and agreeable to the usages and principles of 
lm?). Ofter, the bJJ,.s go hand in hand. See, e,g,, Fisher c. 
Pace, 336 U.S. 155, 159 (1949) (“Historically and rationally the 
inherent power of courts to punish contempts in the face of 
the court without further proof of facts and without aid of 
j q is ggt =pen t= ques~or,. This atty;bEte of courts is 
essential to preserve their authority and to prevent the 
administration of justice from falling into disrepute”). In this 
case, however, we find nothing but the district court’s asser- 
tim it h2s inherent p””er tc! appc!int 2. mnitcr, which ear, 
hardly be self-supporting. Therefore, we hold the district 
court does not have inherent power to appoint a monitor - at 
least not a monitor with the extensive duties the court 
assigned tQ Kieffer - over 2 party’s substantia! ebjectign, here 
the Government’s objection that the appointment violated the 
separation of powers. As the foregoing sentence conveys, our 
holding is a narrow one, tethered to the peculiar facts re- 
counted below. 
In this case the Court Monitor was charged to “monitor 
and review all of the Interior defendants’ trust reform activi- 
ties” and to report to the district court on “any . . . matter 
[he] deerniedj peeLinent t,, ti.-ust i*efor-m*” “ne courf. aut’no- ~ ~ L 1 ~ -----L 
17 
rized the Monitor to engage in ex parte communications, and 
required the DO1 to “facilitate and assist” the Monitor, to 
“provide [nim] with access’ to any . . . offices or empioyees to 
gather information,” and to pay his hourly fees and expenses. 
In short, the Monitor acted as an internal investigator, not 
unlike a departmental Inspector General except that he re- 
ported not to the Secretary but to the district court. 
Although the Department initially consented to this ar- 
rangement, after a year’s experience it conditioned its re- 
newed consent upon a nal-rower and more specific definition 
of the Monitor’s role: The DO1 sought to limit the scope of 
the Monitor’s investigation to “steps taken by the Depart- 
ment to rectify the breaches of trust declared by the Court or 
steps taken that would necessarily delay rather than acceler- 
ate the uitimate provision of an adequate accounting.” it 
later augmented its objection to the Monitor’s role, arguing 
that the Monitor’s broad-ranging investigation interfered with 
the Department’s deliberative process privilege under Hinck- 
ley v. United States, i40 F.3d 277, 284-85 (D.C. Cir. i998j 
(describing privilege as protecting materials that are both 
“predecisional” and “deliberative”); see also Morgan v. Unit- 
ed States, 304 U.S. 1, 18 (1938) (“[Ilt was not the function of 
Lne cuurL to probe the mental processes of the Secretary in 
reaching his conclusions if he [did what] the law required”), 
and that the Monitor otherwise intruded unduly into the 
function of the Executive Branch. We need not decide, 
LL- n - - - - - - - L , - -L:--L:-- ._.__ :L-..: L ________- ---L-LL-- IIUWeVtX, W1lt:LIlW~ Lilt: U ~ p ) a l L I I l ~ I l L Y UUJtXLIUII Was: IIIIXILUII- 
ous; it is enough for present purposes that the objection was 
colorable. 
Regardless whether the district court has any inherent 
authority to appoint an agent to monitor the conduct of a 
party in litigation before it, it was surely impermissible to 
invest the Court Monitor with wide-ranging extrajudicial 
duties over the Government’s objection. The Monitor’s port- 
folio was truiy extraordinary; instead of resolving disputes 
brought to him by the parties, he became something like a 
party himself. The Monitor was charged with an investiga- 
tive, quasi-inquisitorial, quasi-prosecutorial role that is un- 
~~~~~~ KnuWn to o-ur. a(jversar.iai legal system. ‘$“nnen the p a ~ i e s Invoious reason aeniea its consent, nowever, tne aistrict court 
must confine itself (and its agents) to its accustomed judicial 
role. 
Although the plaintiffs did not bring it to our attention, we 
v. Estelle, 679 F.2d 1115, 1161-62 (5th Cir.) (prison reform), 
amended in part, reh’g dsnied in part on other grounds, 688 
F.2d 266 (5th Cir. 1982); Halderman v. Pennhurst State Sch. 
& Hosp., 612 F.2d 84, 111 (3d Cir. 1979) (en banc) (reform of 
I . 1 .1 1 3 ,I 
~ __..__.. .~.. 
. 1 1\ 
a i \ L U U ~ ) . rutting asiae tne question wnetner tnose cases 
shed any light whatsoever upon the propriety of a federal 
court authorizing its agent to interfere with the affairs of 
another branch of the federal government, we think the 
^^^_ L ^ ^ ^ ^ _ ^ ^ ^ l?--- L _ _ _ _ _ _ ^ 1 L L - _ ^ _ _ _ _ L..-- L l . _ L 1._- 
havlng found the defendant state department of corrections 
subjected inmates to cruel and unusual conditions, entered an 
injunction and appointed a special master, assisted by several 
“monitors,” 679 F.2d at 1159, “to monitor implementation of 
. , . , , . 0 
1. n 1 . . 
LL- _I:-L.I.-L 
---- -. 
I: -___ -LLL 
... 
appeal, tne mate arguea tne appointment was improper 
because there was no “exceptional condition” warranting it, as 
required by Rule 53. In rejecting that argument, the court of 
appeals approved the special master’s mandate, namely, “to ___- 1~ -- rcL- A ---- c---L,-~ 19 
court’s decree and to help implement the decree,” thereby 
“assum[ing] one of the plaintiffs’ traditional roles.” Id. a t 
iitii. 
The role of the special master in Ruix was not nearly as 
broad as the role of the Monitor in this case. There the 
master was specifically instructed “not to intervene in the 
administrative management of [the department] and . . . not 
to direct the defendants or any of their subordinates to take 
or to refrain from taking any specific action to achieve 
compliance.” Id. a t 1162. Most important, the court of 
appeals clarified that the special master and the monitors 
were “not to consider matters that go beyond superintending 
compliance with the district court’s decree,” thereby assuring 
the special master would not be an “advocate” for the plain- 
,.or- .. - - . ” . - 1 . . 
58. C’, 
_1--_-~---2 -1 -:,-,.:l-1- 
,, 
the district court’s decree,”’ but was instead ordered to “moni- 
tor and review all of the , . . defendants’ trust reform activi- 
ties,” including “the defendants’ trust reform progress and 
any other matter Mr. Kieffer deems pertinent to trust re- 
form.” Nor could the Monitor have been limited to enforcing 
a decree, for there was no decree to enforce, let alone the sort 
of specific and detailed decree issued in Ruix and typical of 
such cases. See Sandler &: Schoenbrod, above, at 9 (referring 
to ”court decrees that are as thick as phone books”). The 
case had been remanded to the Department “for further 
proceedings not inconsistent with” the opinion of the district 
court in order “[tlo allow defendants the opportunity to 
promptly come into compiiance.” Cobeii V, 91 F. Supp. 2d at 
e.g., Huldemnun, 612 F.2d at 111 (allowing special 
master to administer implementation of injunction and noting 
that “[mlasters are peculiarly appropriate in the implementa- 
tion of complex equitable decrees which require ongoing 
judicial supervision”). In this case, the district court’s ap- 
pointment of the Monitor entailed a license to intrude into the 
internal affairs of the Department, which simply is not per- 
---J--. 
UIIU~X UUI IIIIDWK auversanai system of justice and our constitutional system of separated powers. Accordingly, the 
district court should not h.ave reappointed the Court Monitor 
on April i5, 2002 over the Department’s objection. 
2. Special Master-Monitor 
In its June 14 motion tlo revoke Kieffer’s appointment and 
clarify the role of the Court Monit,or, t,he Depa.rt,ment, among 
other things complained that Kieffer’s actions at the April 19, 
2002 ex parte meeting had created an appearance of partiali- 
ty. The district court not only rejected the Department’s 
arguments! it supplemented Kieffer’s role by appointing him 
Special Master-Monitor. Again the Department claims this 
was clear error. Again we agree. 
The relevant standard is to be found at 28 U.S.C. 9 455(a): 
in judicial =ff;,cer must be (?isqda!ifed from “any i;rocez&;ng 
which his impartiality might reasonably be questioned,” that 
is, questioned by one fully apprised of the surrounding cir- 
cumstances. Sao Paulo State of the Federative Republic of 
Y RWfYm.’ I ws. L-” v. A?”. TGbaccG CG.’ I%C., 535 U.S. 229, 232-33 :2ao2: 
(per curiam). It is clear, notwithstanding the plaintiffs’ objec- 
tions, that in this Circuit the ethical restrictions of § 455 
apply to a special master. Jenkins v. Sterlacci, 849 F.2d 627, 
630-32 & n.? (D.C. Cir. l%?S>. so mach f G r the !aw; fsr the 
facts we rely solely upon the district court’s own recitation, 
which establishes that Kieffer’s prior role and personal in- 
volvement in this case :as Court Monitor would cause a 
reasonabk persor. to doubt his ability te remair, impartial 
while serving as Special Master. 
For instance, Kieffer was “permitted to make and receive 
ex parte communications with all entities,” Monitor Order, 
226 F. GJupp. &j at 165, and in fa& engaged in numerous ex 
parte communications with officials of Interior. Id. at 167. 
Moreover, in the course of his investigation Kieffer acquired 
information upon the basis of which he “apprised the Deputy 
~~-~ a disp-ute deveioping lDeWeen t-ne Secl-etalvy. tf& 
Secretary and the Special Trustee . . . regarding the appro- 
priate role of the Special Trustee.” Id. at 170. The Court 
Monitor was also present iit the “heated” ex parte meeting on 
---L::*L L- ___- 1-2 np111 A-.J 1.7, i n LUUL, 
onno a l J u u L ..L,..-A W l l n L l l Ilt: I - t l p U r L t l U to LL- L l l t : n---4 b U U I L I L _ L L I l d L 21 
“defendants were unwilling to fully accept the Congressional- 
ly-mandated role of the Special Trustee.” Id. at 171. At that 
1 . . <I ,. TI. I1c . .. - I 
~3pec1a1 II-USLW 
711nx1 
c!ea;.!j; 
merits of 
UI LIE UUVIUUS m K s racea ~y me aerenaanm 
in this litigation and the additional concerns he had regard- 
ing” some of the Secretary’s views, in “an effort to set the 
stage to convince the parties attending the meeting to find 
tr. .T7Amlr +Ann+h.-m ,..+L,, 
pariiculai- 
+La- ---A: ___- LL- :--A -____- 
LnaL KleIIer naa a Settlea opinion about what the Uepartment 
should and should not do ion remand to comply with the order 
of the district court, w:hich opinion he developed in his 
extrajudicial role as Court Monitor with access to the internal 
deliberations of the Department regarding the lawsuit. T’ne 
district court’s account also demonstrates that Kieffer’s opin- 
ion was based in part upon ex parte communications received 
in his extra-judicial capacity as Monitor. These facts so 
a shadQ-*- oiief &ffei*’s jiiipai~iality- that the 
district court abused its d:iscretion in appointing Kieffer to be 
Special Master (in addition to Monitor). 
The plaintiffs argue the April 19 meeting was not “extraju- 
diciai” because it took place with the knowledge and approval 
of the district court and of the parties. That does not change 
the key fact: The district court appointed Kieffer to a judicial 
role in a case in which he had significant prior knowledge 
obtained in his roie as a Court Monitor, on the basis of which 
he had formed and expres;sed opinions of continuing relevance 
to the litigation. A newly appointed judge may not hear a 
case in which he previously played any role. See 28 U.S.C. 
3 455@)(3j (a judge shall recuse himself “[wjhere he has 
served in governmental employment and in such capacity 
participated as counsel, adviser or material witness concern- 
ing the proceeding or ex.pressed an opinion concerning the 
iii controversy”); ABA iviodei 22 
Code of Judicial Conduct Canon 3(E)(l)(b) (a judge is disqual- 
ified when “the judge served as a lawyer in the matter in 
controversy, or a iawyer with whom the judge previously 
practiced law served during such association as a lawyer 
concerning the matter, or the judge has been a material 
witness concerning it”). Similarly here, Kieffer’s experience 
as Court ivionitor disqualified him from iater assuming a 
judicial role in this case. Accordingly, the order appointing 
Kieffer to be a Special Master-Monitor must be vacated.* 
C. Contempt Specifications 
The district court held. Secretary Norton and Assistant 
Secretary McCaleb in “civil contempt of court” (1) for having 
engaged in “litigation misconduct,” to wit, “failing to comply 
with the Court’s Order of December 21; 1999,” and (2-5) for 
having, in each of four ways, “committ[ed] a fraud on the 
Court.” Contempt Order, 226 F. Supp. 2d at 161. The 
Department claims the district court erred in two respects: 
by holding Norton and MlcCaleb in contempt (1) based upon 
conduct of their predecessors in office, and (2) without finding 
either officer had disobeyed a clear order of the court. The 
Department also argues the district court’s factual findings do 
not support its conclusion that there was a fraud on the court. 
In response the plaintiffs argue the district court correctly 
8 p&r,ti& 
* In light of this disposition we need not and do not pass upon the 
DOI’s objections to the propriety of Kieffer’s actions at the April 19 
meeting or at any other time prior to his appointment as Speciai 
Master-Monitor. The events of April 19 do, however, suggest the 
Department’s concerns about, the scope of the Court Monitor’s role 
were well-founded. The district court’s findings indicate that the 
C”urt *M”nitQr’. &ties \TJere ,so \\4.;,de-ranging as t= 
ly significant effect upon the DOI’s deliberative process. See 
Monitor Order, 226 F. Supp. 2d at 172 (Court Monitor’s presenta- 
tion was “an effort to set the stage to convince the parties attending 
the meeting to find some way to work together”); id. (Court 
Monitor “sought to . . . enable [DO1 officials] to better carry out 
[their] trust reform fiduciary obligations”); id. at 172 n.6 (Court 
Monitor, with authorization of district court, “attempt[ed] to facili- 
tate a resolution of the continuing dispute between the Secretary, 
the Deputy Secretary, and the Speciai Trustee”j. 23 
applied the law to the facts. We agree with the Department, 
although our analysis is somewhat different. 
1. Nature of the Contempt 
A contempt proceeding is either civil or criminal by virtue 
of its “character and purpose,” not by reason of the trial 
judge so denominating the proceeding. int’l Union, United 
Mine Workers v. Bagwell,, 512 U.S. 821, 827 (1994); Gompers 
v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911). Civil 
contempt is ordinarily used to compel compliance with an 
order of the court, Bagweli, 512 US. at 828, although in some 
circumstances a civil cont,empt sanction may be designed to 
“compensate[ ] the complainant for losses sustained.” Id. a t 
829. By contrast, criminal contempt is used to punish, that 
is, to ”vindicate the authority of the court” following a trans- 
gression rather than to coinpel future compliance or to aid the 
plaintiff. Id. at 828. 
In this case the nature nf the cmtempt is ebscured by the 
lack of any clear sanction. Although it did, under the heading 
“Further Relief,” expand tbe scope of the plaintiffs’ discovery, 
Contempt Opinion, 226 F., Supp. 2d at 159, the district court 
itself not,ed t,hat 
much of the relief granted is not dependent on the 
Court’s conclusion tha,t the defendants committed several 
frauds on the Court. Rather, the Court has fashioned 
much of the relief granted today (such as future proceed- 
ings and the appoint,ment of a special master) simply 
because of the current; status of trust reform. 
1- ~ R - ~ 1-- LA__= 
Id. at 135. i n fact, other than an award of expenses the 
plaintiffs incurred in the contempt trial, 226 F. Supp. 2d a t 
162 - which cannot be considered relief for the underlying 
contempt - the only relief granted that could conceivably be 
~laseu upon tne Iinaings of contempt are the initiation of the 
Phase 1.5 proceeding and the appointment of the Special 
Master. On its face, that is, the Contempt Order appears to 
find the defendants in contempt, and then to impose no 
sanction. 24 
Clearly, however, the district court did not intend its 
decision to be without effect. The exceedingly strong words 
it used in finding the defendants in contempt - in particular 
its statement that Secretary Norton was “unfit” - suggest the 
court intended the adjudication and accompanying opinion to 
serve as a reprimand to Secretary Norton and Assistant 
Seci-eiary ivic2aieb. Indeed, the defendants reasonably char- 
acterize the decision as having “impose[d] opprobrium” upon 
them. Norton and McCaleb in particular believed the district 
court’s adjudication to be so injurious to their reputations 
U I ~ L h e y engageu private counsel and sought to intervene as 
appellants and to present arguments in their respective per- 
sonal capacities. We see no reason a district court may not 
impose a reprimand as the sole sanction for an adjudication of 
contempt, psi-ticilldy when the contemnor is a pubiic official 
acting in her official capacity. 
+L c L--- __._--i. -1 ~~ 
Examining this sanction in light of the principles set forth 
in Gompers and Bagwell, therefore, it is clear the proceeding 
was, and should have been treated as being, for criminal 
contempt. In specifications two through five, the district 
court cites completed conduct of the defendants (or of their 
predecessors in office), making the proceeding criminal in 
nature. Bagweii, 512 U.S. at 829 (‘‘When a contempt involves 
the prior conduct of an isolated, prohibited act, the resulting 
sanction has no coercive effect” and is therefore punitive in 
nature); id. at 828 (describing a sanction as criminal “if it is 
imposed retrospectively for a ‘completed act of disobedience’ ” 
(quoting Gompers, 221 U.S. at 443)). Moreover, in each of 
those four specifications the district court held the defendants 
in contempt for “[c]ommit’ting a fraud on the Court,” Con- 
tempt Opinion, 226 F. Supp. Zd at 80, citing as authority a 
Supreme Court opinion assimilating fraud on the court to 
criminal rather than to civil contempt. Id. at 26 (citing 
Pendergast v. United States, 317 U.S. 412 (1943)). We have 
been unable to find any authority for, let alone any reason to 
believe, the proposition that fraud on the court constitutes a 
civil contempt. We therefore treat the district court’s con- 
tempt citations on specifications two through five as criminal 
..- .--L ~~~~~ in namre. 25 
We also note that, although the district court said in the 
Contempt Opinion it was :not “issu[ing] a contempt citation at 
this time with respect to Specification i,!’ id. a t ii8, the 
accompanying Contempt Order is ambiguous on this score 
and the court later interpreted it otherwise. The statement 
that the defendants had “engaged in litigation misconduct” 
appeared under the heading “Contempt Specifications.” 226 
F. Supp. 2d at 161. In a later opinion addressing a motion to 
disqualify the District Judge, Special Master-Monitor Kieffer, 
and another special master from participation in contempt 
proceedings against certain non-parties, the district court 
further muddied the waters, stating that on September 17 it 
indeed had held the defendants in contempt for, among other 
things, “engaging in litigation misconduct by failing to comply 
with the Court’s Order” as described in specification one. 
Memorandum and Order, at 5-6 (Jan. 17, 2003). We there- 
fore treat specification one as a finding of contempt, also 
criminal in nature. 
Although one may be held in civil contempt for refusing to 
comply with a court order, a sanction for one’s past failure to 
comply with an order is criminal in nature. Bagwell, 512 U.S. 
at 828-29; Gompers, 221 U.S. at 44344. The district court 
clearly intended to puni;sh the defendants for “failing to 
comply with the Court’s Order of December 21, 1999, to 
initiate a Historical Accounting Project,” Contempt Order, 226 
F. Supp. 2d at 1617 which is no doubt why its opinion lacks 
any suggestion that the defendants could yet comply and 
thereby purge themselves of the contempt. See Bagwell, 512 
U.S. at 828 (contempt is civil if “the contemnor is able to 
purge the contempt and obtain his release by committing an 
affirmative act, and thus carries the keys of his prison in his 
own pocket”). 
The contempt proceeding being criminal rather than civil in 
- - L __I- LL- -ll----ll-- :-- 
I-._ _ - _ _ _ _ _ _ L LL- n ____ L---L 
--A IlaLuI-t:! a 1 1 u L l l t : allegeuly C u l l L u I I l a C l u u ~ 
f ^__I 1^-1_--2-- 
U e I l a v I u I - UCCuI-I-IIlg 
outside the presence of the court, the defendants were enti- 
tled to the usual protections of the criminal law, such as trial 
by jury and proof beyond a reasonable doubt. Id. at 826-27. 
__I__ - - L D _L:-_L-J 
Dt:CLiUSt: Lllt: U ~ ~ ~ ~ L I I l ~ I l L IlaS IlUL UUJeCLt:U U ~ U l l aIly SUCIl procedural ground, however, and explicitly disavowed any 
such objection at oral argument, we treat the same as waived. 
In addressing the merits of the contempt specifications, we 
start with the elementayy principle that, subject to certain 
exceptions clearly not relevant here, and absent respondeat 
superior liability, one person cannot be held criminally liable 
for the conduct of another. We further note that a finding of 
criminal contempt “requii-es both a contemptuous act and a 
wrongful state of mind.” I n re Farquhar, 492 F.2d 561, 564 
(D.C. Cir. 19731.” 
With these principles in mind, we can dispose quite readily 
of some of the district court’s findings of contempt. Secre- 
tary Norton took office in January, Assistant Secretary 
McCaleb in July, 2001. Because specifications two and three 
concern conduct that took place prior to their taking office, 
the district court erred as a matter of law in holding either 
official in criminal contempt on those counts. The district 
court also erred in holding Assistant Secretary McCaleb in 
contempt on all five counts without having identified in the 
Contempt Opinion any specific act or omission whatsoever on 
his part. We address the other specifications of contempt, 
therefore, with reference to Secretary Norton alone. 
2. Specification One 
Specification one charged Secretary Norton with “[flailing 
to comply with the Court‘s Order of December 21, 1999, to 
initiate a Eistxicd Acceunting ?reject.” Cmtewqt @%%iG%, 
226 F. Supp. 2d at 20. The district court said with regard to 
this specification that Secretary Norton had committed litiga- 
tion misconduct, referring principally to its finding that “[ble- 
tweer! December 21, 1999 and July 10, 2001” the Dep.rtr;?ent 
had failed to take any steps toward completing an accounting. 
* Although we have grave doubts about respondeat superior 
liability for a criminal contempt, we need not resolve them in this 
case. Even assuming it is permissible to hold a master in criminal 
contempt based in part upon the action of a servant, the discussion 
below makes clear that the requirements of Farquhar, quoted 
above, as well as general principles of contempt, preclude a finding 
____L---L I- LL:- _r _-:-:--I 
U l C I - l l l l l l l a l CurlLeKllpL 111 LIUS cast!. 27 
Id. at 113. The court characterized the Department’s actions 
taken since that time as “‘too little, too late,” and stated that 
"interior cannot reiy on efforts undertaken” at the ”iate date” 
of June, 2001 “to avoid a contempt citation.” Id. at 115. In 
fact, the district court described its holding as being that “the 
defendants unreasonably delayed initiating the historical ac- 
counting project.” id. at ii8. 
,,- 
Because Secretary Norton cannot be held criminally liable 
for contempt based upon the conduct of her predecessor in 
office, her contempt coniviction cannot stand; she simply 
cannot be held criminally to account for any delay that 
occurred prior to her assuming office. Of the one and one- 
half year delay about which the district court was concerned, 
more than a year was on s80meone else’s watch. 
Moreover, the district court’s findings clearly indicate that 
in her first six months in office Secretary Norton took 
significant steps toward completing an accounting. By June 
Y V V l 9nn’ the Secretary had cGntracted ;t-;,th EDE, a nations! 
consulting firm, to evaluate the status of the TAAMS project, 
id. at 86, and by November 2001 the Department had pro- 
posed a reorganization plan aimed a t eliminating the prob- 
!ems EDS had ider,tified. Id. at 45. Ir, July 2001 Secretar,. 
Norton created the Office of Historical Trust Accounting, 
which has since made significant progress toward completing 
an accounting. Id. at 4445. Hence, the Court Monitor 
stated in h i 8 Fifth P,eI;ort, ‘“tjhere is no doubt the OHTA has 
made more progress . . . jn six months [July through Decem- 
ber, 20011 than the past administration did in six years.” 
These uncontested facts are inconsistent with a finding that 
Secretary Norton failed ‘to comply with the district court’s 
order of December 21, 1999. Therefore, we hold the district 
court erred as a matter of law in holding Secretary Norton in 
criminal contempt on specification one. 
3. Specification Four 
In specification four the Secretary was held in contempt for 
committing a fraud on the court. We note initially that fraud 
on the coiirt is a narrij-w- concept, lilliited to ‘‘the lliosi 28 
egregious conduct involving a corruption of the judicial pro- 
cess itself.” 11 Charles Alan Wright, Arthur R. Miller & 
Mary Kay Kane, Federai :Practice & Procedure 9 2870, at 4i8 
(2d ed. 1995). 
The district court held Secretary Norton in contempt for 
“filing false and misleading quarterly status reports starting 
in March 2000, regarding TAAMS and BIA Data Cleanup.” 
Contempt Opinion, 226 F’. Supp. 2d at 124. Of those eight 
reports, however, the first four were filed prior to Secretary 
Norton’s taking office, and she therefore cannot be held 
criminally liable for anything in them. The remaining reports 
do not rise to the level of fraud on the court. 
The court complained that the fifth report provided a 
“posit.ivP aSSeSSmPnt,” of t,hp st.at.l_.s of TA-AMS ‘‘hzsed on 
nothing more than speculation and wishful thinking.” Id. at 
80. Of the sixth report, the district court said the Depart- 
ment was “misleading” the court when it represented “it was 
mnving ever c h e r t n hei:ng ah!e tn implement fd!y the tit!e 
and realty portions of TAAMS,” and that it “had conducted 
specific tests that indicated that it was almost ready to deploy 
TAAMS.” Id. at 82. Regarding the seventh report, the 
court noted the Departm-ent’s cnncessinr! that it had nnt met 
certain goals and complained that the Department “presented 
a positive picture of TAAMS despite the fact that the agency 
was not ready to deploy or implement the land management 
system as scheduled, and . . . c!ear!y was not gnling tn he ah!!? 
to deploy or implement it anytime soon.’’ Id. at 83. The court 
also objected that “Interior did not provide the Court with 
anything close to what can be construed as a complete picture 
~ --------L L I - - L ~ 1 - 
of the system’s S t t U S . ’ ’ I!d. 
Finally, with regard to the eighth report - which was the 
first to be filed after Interior had received EDS’s assessment 
of the project - the court noted both Secretary Norton’s 
concession that previous reports had been inadequate, and 
the Secretary’s attempts to improve the quality of the re- 
ports. Id. at 84-85. The district court appeared to have no 
quarrel with the content of the eighth report. Instead, the 
------L :--r-------i r------ --il.-~-~!---- !-- LI- ~ -!-ILLI- cuurr; inIerreu Irurn aurnissiuns in me eignm reporr; ma6 me 29 
inadequacies of the previous reports were intentional and 
contumacious. See id. at 80 (completion dates in fifth report, 
“in light of the later filed quarterly status reports, [were] 
based on nothing more than speculation and wishful think- 
ing”); id. at 82 (sixth report “particularly misleading (and 
troubling) in light of the Department’s Eighth Report”); see 
also id. at 84 (quoting ;Secretary Norton’s testimony that 
seventh report gave “an hsufficient picture” and was “not a 
particularly good document”). 
, P C L , 2:-4-:-C ,:, ^^._Y 4 --_- C:C-A-,.. rnL- 
Illt: 
1x1- I2-A C L , v v t : l l l l U Lillt: l c ~ ~ u l l l l l g U’l L l l t : UISLillCL CUUI L IIIybLllyIIIg. 
court is surely correct in stating that the eighth report does 
not “absolve[ ] the defendants” of responsibility for any past 
wrongdoing. Id. at 126. But neither does the Secretary’s 
caridid &iq.ue of .pL.~oI* repor.ts, ma& in 
EDS’s evaluation, lead to the conclusion that those reports 
were intentionally false and misleading; the district court’s 
findings of fact simply do not support its conclusion that 
Secretary Norton committed a fraud on the court. To be 
sure, the earlier reports painted an overly sunny picture of 
the status of the TAAMS project and were misleading about 
the progress being made in ways painstakingly identified by 
the district court. The district court made no finding, howev- 
er, that Secretary Norton had any personal knowledge that 
the fifth, sixth, or seventh reports were false or misleading. 
L_-.--L J-L- 9’ 
light shed lDY 
Ir, light of the above, we conc!ude that the district court 
erred as a matter of law in holding Secretary Norton in 
criminal contempt on specification four. 
4. Specification Five 
In specification five, the district court found the Secretary 
committed a fraud on the court by making false and mislead- 
ing representations “regarding computer security of IIM 
LL-UYL ua~a. Id. at 100. The Department made representa- 
tions on that subject under Secretary Norton in April and 
May 2001. The district court’s findings as to those state- 
ments do not support its, conclusion that Secretary Norton 
committed a fraud on the court. 30 
The April representations appeared in the Department’s 
Opposition to the Plaintiffs’ Motion for Special Master Inves- 
tigation; in particular, the court identified the statement that 
the Department had “made security a top priority and ha[d] 
taken numerous steps to improve the security of the Reston 
facility since the Special Master’s visit,” id. at 106, and the 
Department’s outline of its completed and planned security 
improvements. Id. at 106-07. The district court also took 
issue with the Department’s May 2001 Opposition to the 
Plaintiffs’ Motion for a Temporary Restraining Order and 
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I i ciiiiiiiiary iiijuii~~iuii, iiiaurar aa LIIC ucrciiuaiiba ai gucu uic 
plaintiffs’ “position [was] wholly without merit.” Id. at 107. 
The district court apparently found these statements to be 
false based upon the Report on IT Security prepared by a 
speciai master (not Kiefferj, and upon “the Department’s 
failure to dispute any of the underlying facts” set out in that 
report. See id. a t 108. I11 the report, the special master had 
concluded the Department “has known about pervasive IT 
n-*t:n,l ,C th- n--,-t.-,.-+ .--+:-- 
We therefore conclude the district court erred as a matter 
of law in holding Secretary Norton in criminal contempt on 
_ _ _ _ _ _ _ :L- ~_r:_: _ _ _ _ :_- r_-- _______ LI _ _ _ _ - A _ _ - A _ 9 , . J - - - A r _____ 2 beeUIILy U e l l c l e I l c l e b lU1 111u1-e LIlaIl a uecaue, LU., anu lUU1lU 
the Department “has not taken necessary actions to correct 
its numerous and longstanding IT security deficiencies,” id. at 
109, which the special master chronicled at length. 
_ _ _ We see no finding of fact in the Report on IT Security, or 
in any opinion of the district court, that directly contradicts 
the statements in the Department’s April Opposition, which 
the court identified as part of a fraud on the court. Absent a 
direct contradiction, the facts of this case do not support the 
implicit inference that Secretary Norton “has acted with an 
intent to deceive or defraud the court.” United States v. 
Buck, 281 F.3d 1336, 1342 (10th Cir. 2002). With respect to 
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it inconceivable that a departmental secretary may be held to 
have committed a fraud on the court because an attorney 
representing her Department argued in an adversarial pro- 
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was “without merit.” 
specification five. 111. Conclusion 
The Contempt Order is vacated insofar as it relates to the 
appointment and duties o.f the Special Master-Monitor. The 
Special Master-Monitor Order is vacated. The Monitor Or- 
der, denying the defendants' motion to revoke the appoint- 
ment of Kieffer as Monitor, is vacated, and the district court 
is directed to enter an order granting that motion. 
The Contempt Order is vacated insofar as it sanctions the 
defendants on specifications one through five and directs the 
payTrieiii of iziid fees bicui-i*ed "v- the p]a;nt;ffs* The 
case is remanded to the district court for further proceedings 
consistent with this opinion. 
So ordered.