IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
) 
) ELOUISE PEPION COBELL, et al., 
) 
) Plaintiffs-Appellees, 
V. No 0 2 - 5 3 7 4 
) 
) 
, 
I 
) GALE A. NORTON, 
Secretary of the Interior, et al., ) 
Defendants-Appellants. 
OPPOSITION TO PLAINTIFFS-APPELLEES' 
MOTION TO STRIKE 
Defendants-appellants, the Secretary of the Interior, et 
al., respectfully respond to plaintiffs-appellees' motion to 
strike their opening brief. 
1. Plaintiffs argue that the brief was untimely because it 
was filed together with a motion to expedite before the Court had 
set a briefing schedule. Contrary to plaintiffs' understanding, 
parties may seek expedition by motion and are not barred from 
attaching their opening brief together with their motion in an 
effort to obtain timely review. The Court, of course, retains 
discretion as to the timing of future filings and its own 
consideration of the case. However, a motion for expedition that 
attaches an opening brief is not "untimely" and does not "ignore 
orders of the Court." P1. Mot. at 2. 
2. The government has invoked this Court's appellate 
jurisdiction and has explained why this case may be heard as of 
right in its response to plaintiffs' motion to dismiss our appeal. As we explained in that response, and in our brief, 
jurisdiction would, in the alternative, be available under 28 
U.S.C. § 1651. 
In their present motion, plaintiffs appear to urge that the 
Court cannot exercise its mandamus jurisdiction unless it also 
has jurisdiction under 28 U.S.C. § 1291 or 28 U.S.C. § 1292. P1. 
Mot. at 3. As our response to plaintiffs' motion to dismiss 
demonstrates, that contention is baseless and, unsurprisingly, 
plaintiffs cite no authority for this position. 
Plaintiffs next argue that this Court may not exercise its 
mandamus authority because the government invoked mandamus 
jurisdiction in its brief as an alternative basis of jurisdiction 
and has not filed a separate petition for a writ of mandamus. 
This Court has not elevated form over substance and, consistent 
with the practice of other circuits, has treated an appeal as a 
petition for mandamus when it determines that no appeal of right 
exists but that review is appropriate under 28 U.S.C. § 1651. 
See Ukiah Adventist Hospital v. E, 981 F.3d 543, 548 & n.6 
(D.C. Cir. 1992) (citing Sierra Rutile Ltd. v. K a t z , 937 F.3d 
743, 749 (2d Cir. 1991); Beard v. Carrollton R.R., 893 F.3d 117, 
120 (6th Cir. 1989)). Indeed, inasmuch as plaintiffs state in 
their response to our motion for expedition that expedition is 
"vital" to any issues that survive their motion to dismiss, PI. 
Response at 2, any delay would be particularly inappropriate. 
- 2 - Finally, plaintiffs briefly suggest that the issues 
presented can properly be addressed on appeal from final 
judgment. As we show in our response to plaintiffs' motion to 
dismiss and in our brief, the district court's ruling has the 
effect of an injunction or a modification of an injunction and is 
appealable as of right. As we also explained, the Court should 
plainly exercise its supervisory jurisdiction to determine 
whether the district court's conclusion that a sitting Cabinet 
Secretary is unfit to execute her statutory responsibilities, and 
its consequent decision to assume responsibility for a broad 
range of trust matters, are not based on error. Similarly, when 
a court appoints as a judicial officer a person who has had 
extensive ex parte contacts with both the parties and the 
district court, and has formed strongly and publicly expressed 
opinions about the case, this Court should ensure that the 
In re: Edqar, 93 F.3d mechanisms of justice do not run awry. 
256 (7th Cir. 1996). 
- 3 - CONCLUSION 
For the foregoing reasons, the Court should deny plaintiff- 
appellees Motion to Strike. 
ROSCOE C. HOWARD, JR. 
United States Attorney 
MARK E. NAGLE 
R. CRAIG LAWRENCE 
Assistant U.S. Attorneys 
U.S. Attorney's Office 
Washinqton, D.C. 20001 
DECEMBER 2002 
Respectfully submitted, 
ROBERT D . McCALLUM , JR . 
Assistant Attorney General 
GREGORY G. KATSAS 
Deputy Assistant Attorney General 
i c,<~- 4 
ROBERT E. KOPP 
MARK B. STERN ,: 
THOMAS M. BONDY (.-&4 c. 
CHARLES W. SCARBOROUGH L' b- 
SAMBHAV N. SANKAR 
(202) 514-5089 
Attorneys, Appellate Staff 
Civil Division, Room 9108 
Department of Justice 
601 D Street, N.W. 
Washinqton, D.C. 20530 
- 4 - CERTIFICATE OF SERVICE 
I hereby certify that on this 23rd day of December, 2002, 
I am causing copies of the foregoing opposition to be sent to the 
Court and to be served on the following by hand delivery: 
The Honorable Royce C. Lamberth 
United States District Court 
United States Courthouse 
Third and Constitution Ave., N.W. 
Washington, D.C. 20001 
Dennis M. Gingold 
1275 Pennsylvania Avenue, N.W. 
9th Floor 
Washington, D.C. 20004 
and to be served by fax upon: 
Elliott H. Levitas 
1100 Peachtree Street 
Suite 2800 
Atlanta, Georgia 30309-4530 
and to be served by regular mail upon: 
Keith Harper 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
CHARLES W. SCARBOROUGH 
Attorney, Department of Justice