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TN THE UMTED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al	)
)
	Plaintiffs,	)
	v.		)
			)
GALE A. NORTON, Secretary of the	)	No. 1:96CV01285
	Interior, et al		)	(Judge Lamberth)
		Defendants.	)
INTERIOR DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO
INTERIOR DEFENDANTS' MOTION FOR RECONSIDERATION OF THE
MAY 31. 2002 ORDER TO PAY THE COURT MONITOR THE SUM OF $54307.34
The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior
Defendants") submit this Reply to Plaintiffs' Opposition to their Motion For Reconsideration Of
The May 31, 2002 Order To Pay The Court Monitor The Sum Of $54,307.34 ("Motion for
Reconsideration").
	The Court should grant Interior Defendants' Motion for Reconsideration for the reasons
set forth in the motion: (I) Interior Defendants were deprived of an opportunity to review or
object to the Court Monitor's compensation request; (2) the compensation request is not
reasonable or proper because it fails to provide sufficiently detailed information about the work
performed; and (3) the compensation request is not reasonable or proper because numerous
charges are for activities and expenses not within the scope of Court Monitor's appointment
order or the Court's jurisdiction.
	The Court may treat Interior Defendants' Motion for Reconsideration as conceded
because Plaintiffs did not timely file their Opposition to the motion. Local Civil Rule 7.1(b)
provides that a memorandum in opposition to a motion must be filed "[w]ithin 11 days of the
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date of service" and that "[i]f such a memorandum is not filed within the prescribed time, the
court may treat the motion as conceded." LCvR 7.1(b). Interior Defendants filed their Motion
for Reconsideration, and served it by hand delivery upon Plaintiffs, on June 14 2002 See Defs.'
Mot. for Recons., dated June 14, 2002 (serving lead attorney Dennis Gingold by hand). Plaintiffs
filed and served their Opposition on June 28, 2002, fourteen days after the receipt of Interior
Defendants' motion, thus exceeding the eleven-day filing deadline provided in the Local Rules.
Plaintiffs did not move for an enlargement of time within which to file their Opposition. They
have, therefore, waived their opportunity to respond to Interior Defendants' motion, and the
Court may treat the motion as conceded.
	Even if the Court decides to consider Plaintiffs' Opposition, it fails on the merits. The
one and one-half page Opposition simply asserts that Interior Defendants consented to the Court
Monitor's fees and that the Court Monitor's work relating to the Seventh Report of the Court
Monitor, formal discovery requests, legal research, and tribal meetings is within the scope of his
authority. As explained below, these assertions are incorrect. Furthennore, Plaintiffs do not
address - much less oppose - Interior Defendants' argument that reconsideration of the May 31,
2002 Order is warranted because the Court Monitor's compensation request does not provide
sufficient detail regarding the work performed and, consequently, is not reasonable or proper.
ARGUMENT
I.	Interior Defendants Are Entitled To Review And Object To The Court
Monitor's Compensation Requests.
	Plaintiffs contend that Interior Defendants consented to the payment of the Court
Monitor's fees and should not have the opportunity to review or object to his compensation
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requests. Specifically, Plaintiffs assert that "[i]n consenting to Mr. Kieffer's original
appointment order, defendants asked for no mechanism to review and object to fees[;] [jinstead,
they gave blanket consent to Mr. Kieffer's appointment and his fees," and, when Mr. Kieffer was
reappointed, "they again made no request to review the fees charged." See Pis.' Opp'n at 23
(emphasis in original).
	Whether or not an appointment order contains a provision for review, comment, and/or
objection to a judicial officer's fees, the party obligated to pay for these services is entitled to an
opportunity to object. ~ Defs.' Mot. For Recons. at 3-4 (citing Casey v. Lewis 43 F.3d 1261,
1272 (9~ Cir. 1994), rev'd in part on other arounds, 518 U.s. 343 (1996)). In Casevv. Lewis
defendants requested an opportunity to object to the fees, costs, and expenses of a special master.
43 F.3d at 1272. The Ninth Circuit Court of Appeals held that "it would be unfair to order
[d]efendants to pay the fees without an opportunity to object," and remanded the order of
reference to the district court to incorporate defendants' request. Id. Thus, the lack of a
provision in a judicial officer's appointment order allowing objection to fees does not foreclose a
party's entitlement to make such objections. Plaintiffs cite no case law to the contrary (indeed,
they cite no ease law at all). Nor do Plaintiffs address or even acknowledge the Supreme Court's
direction that the "rights of those who ultimately pay [the compensation of a master] must be
carefully protected." Defs.' Mot. for Recons. at 3 (quoting Newton v. Consol. Gas Co., 259 U.S.
101, 105 (1922)). Accordingly, although the Court Monitor's appointing orders do not include
an express provision stating that the Interior Defendants can object to his fees, such an
opportunity must be provided in the interest of fairness and to protect the rights of the Interior
Defendants.
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II.	Reconsideration Of The Court's Order Is Warranted Because The Court
Monitor's Compensation Request Is Not Sufficiently Detailed.
	Plaintiffs fail to refute, or even respond to, Interior Defendants' argument that the Court
Monitor's compensation request is improper and unreasonable because it does not provide
sufficiently detailed information about the work performed, but instead provides only vague
descriptions that do not identify the subject matters addressed by the Court Monitor or allow an
assessment of the reasonableness of his fees. See Defs.' Mot. for Recons. at 4-8. Plaintiffs also
fail to address the stark contrast between the level of detail in the Special Master's invoices and
the lack of detail in the Court Monitor's invoices. See id. at 7-8. For the reasons set forth in
Interior Defendants' Motion for Reconsideration, the Court should require the Court Monitor to
revise his invoice to provide detailed descriptions of his activities sufficient to provide assurance
that the fccs charged are reasonable and properly within the scope of the Court Monitor's
appointment orders.
III.	The Court Monitor's Invoice Seeks Compensation For Activities That Are
Inconsistent With The Separation Of Powers Doctrine And This Court's
Jurisdiction Under the Administrative Procedure Act.
	Plaintiffs assert that "the Seventh Report was clearly within the scope of [the Court
Monitor's] authority to report on 'any other matter Mr. Kieffer deems pertinent to trust reform"'
and, therefore, fees for preparation of the report are "plainly proper." See Pis.' Opp'n at 23.
Plaintiffs fail to recognize that the Court Monitors s seemingly broad mandate to include in his
reports "a summary of the defendants' trust reform progress and any other mailer Mr. Kieffer
deems pertinent to trust reform," Order, April 15, 2002 at 2; Order, April 16, 2001 at ¶ 2, does
not authorize him to disregard the constitutional doctrine of separation of powers or the bounds
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of this Court's jurisdiction under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. As
demonstrated in Interior Defendants' Motion for Reconsideration, fees for the preparation of the
Seventh Report should be excluded from the compensation request because the Report intrudes
impermissibly into the internal affairs of the Department of the Interior and the authority of the
Secretary of the Interior. See Defs.' Mot. For Recons. at 9-10; Defs.' Response To The Seventh
Report Of The Court Monitor, filed May 16, 2002; Defs.' Mot. To Revoke The Appointment Of
Joseph S. Kieffer, m, And To Clarify The Role And Authority Of A Court Monitor, filed June
14, 2002, at 10-17.
IV.	The Court Monitor's Invoice Seeks Compensation For Activities That
Exceed The Bounds Of His Authority.
Plaintiffs misunderstand the plain language of the Court Monitor's appointing orders
when they contend that he should be compensated for formal discovery pursuant to Rule 53. legal
research, and "attend[ing] and report[ing] on meetings with tribal leaders whenever and wherever
he sees fit." PIs.' Opp'n at 24. As explained in Interior Defendants' Motion for Reconsideration,
a party should not be required to pay for activities that are outside the scope of the order
appointing a special master or court monitor. See Defs.' Mot. For Recons. at 8-9 (citing Reed v.
Cleveland Bd. of Educ.. 607 F.2d 737, 748 (6th Cir. 1979)). The Court Monitor's appointment
orders circumscribe his authority as follows:
He shall monitor and review all of the Interior [Diefendants' trust
reform activities and file written reports of his findings with the
Court. These reports shall include a summary of the defendants'
trust reform progress and any other matter Mr. Kieffer deems
pertinent to trust reform.
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See Order, April 16, 2001 at ¶ 2; Order, April 15, 2002 at 2 (emphasis added). Thus, activities
beyond "rnonitor[ing] and review[ing] .. Interior [Diefendants' trust reform activities" are
outside the scope of the Court Monitor's appointment orders.
	Accordingly, even if "[t]he concern of tribes with respect to trust reform is a matter Mr.
Kieffer deems pertinent to trust reform " see Pis.' Opp'n at 24, his attendance at every tribal
forum in which trust fund issues are discussed is not necessarily within the scope of his authority.
Because his appointment orders direct that he "monitor and review.. . Interior [Djefendants'
trust reform activities," the Court Monitor's attendance at a Tribal Task Force on Trust
Management Reform meeting is probably in accordance with his appointment orders, as he may
observe Interior Defendants' efforts to consult with Tribes regarding the creation of a new
organization to manage trust systems. The Court Monitor's attendance at InterTribal Monitoring
Association meetings, in contrast, is not within the purview of his appointment because Interior
Defendants have no official role in these meetings and the Court Monitor does not attend them to
~'monitor and review" the Inteijor Defendants' trust reform efforts. Furthermore, fees for
preparing speeches and speaking at any tribal forum are not within the Court Monitor's
"monitoring" role and are not compensable.
	Nor is it clear that the appointment orders authorize the Court Monitor to conduct legal
research. As Plaintiffs recognize, "his mandate is to report on trust reform." See Pls.' Opp'n at
24.	Reporting on actions taken by Interior Defendants and the progress of trust reform would not
ordinarily necessitate legal research — it simply requires monitoring certain actions and then
reporting them. The Court Monitor's sphere of responsibility does not require him to conduct
legal research to determine Interior Defendants' legal duties and "what standards apply," ~ PIs.'
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Opp'n at 24, as such issues are reserved to the adjudicatory authority of this Court. See. e.g.,
Prudential Ins. Co. v. United States Gypsum Co., 991 F.2d 1080, 1086 (3rd Cir. 1993) ("A district
court has no discretion to delegate its adjudicatory responsibility in favor of a decision maker
who has not been appointed by the President and confirmed by the Senate.").
	Finally, Plaintiffs erroneously contend that the Court Monitor may propound formal
discovery pursuant to Rule 53. See Pis.' Opp'n at 23-24. Although the April 15, 2002 Order
reappointing the Court Monitor provided that "the Court Monitor's reports shall be given no
greater deference than those set out in Federal Rule of Civil Procedure 53," the Court did not
reappoint the Court Monitor pursuant to Rule 53, but instead reappointed him "in accordance
with the Court's inherent powers." ~ Order, April 15, 2002 at 2; compare Order, Feb. 24, 1999
("Pursuant to Rule 53 of the Federal Rules of Civil Procedure, the court HEREBY APPOINTS
Alan L. Balaran to serve as special master") ~yjfl~ Order, April 15, 2002 at 1-2 ("By Order dated
April 16, 2001,. . in accordance with the Court's inherent powers, the Court appointed Joseph
S. Kieffer, 111 to serve as Court Monitor.. .ORDERED that, pursuant to the Court's Order of
April 16, 2001, Mr. Kieffer's term of service as Court Monitor is extended for one year.").
Consequently, the Court Monitor does not possess the powers endowed on a Rule 53 special
master, including the power to order document production or the examination of witnesses in an
adjudicatory capacity. ~ Fed. R. Civ. P. 53(c).
	Nor does the provision in the April 15, 2002 Order stating that "to the extent the Court
Monitor's findings of fact submitted to the Court are based upon witness statements, those
statements should be developed from on-the-record testimony given under oath with an
opportunity for cross-examination by the parties," Order, April 15, 2002 at 2-3, transform the
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Court Monitor into a Rule 53 special master with the power to require the production of evidence
or the authority to examine witnesses for evidence development. As explained in Interior
Defendants' Motion for Reconsideration, this provision simply allows the Court Monitor, if he
wishes to rely upon certain witness statements in his reports, to confirm those particular
statements in recorded, sworn interviews.
	Furthermore, the April 15, 2002 Order reappointing the Court Monitor did not alter the
initial appointment order's direction regarding the Court Monitor's fact-gathering process.
Specifically, the initial appointment order directed that "Mr. Kieffer is permitted to make and
receive ex parte communications with all entities necessary or proper to effectuate his duties,"
"Interior shall also provide Mr. Kieffer with access to any Interior offices or employees to gather
information necessary or proper to fulfill his duties," and "Mr. Kieffer shall bring to the attention
of the Court any problems with access to inform~tion or persons that cannot be resolved
informally." See Order, April 15, 2001 at ¶¶ 3-4. Interior Defendants have assisted the Court
Monitor in his fact-gathering on the informal basis contemplated by the initial appointment order
and intend to cooperate with such fact-gathering even if it is conducted in a formal process. See
Letter from Sandra P. Spooner to Joseph S. Kieffer 1111, May 22, 2002 at 1 ("As the Court
Monitor embarks upon a formal information-gathering process, it is important to note that the
Appointing Order does not authorize the Court Monitor to issue directives, such as orders to
provide or permit discovery. This is not intimate any intent to not cooperate.") (Attachment 1).
However, a formal fact-gathering process cannot include investigatory proceedings or evidence
development, as those activities are beyond the scope of the appointment orders. Therefore, the
Court Monitor should not be remunerated for such activities.
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CONCLUSION
	For the reasons set forth above and in Interior Defendants' Motion for Reconsideration,
Interior Defendants respectfully request that the Court reconsider its May 31, 2002 Order, allow
Interior Defendants to object to the Court Monitor's invoice, and direct the Court Monitor to
revise his invoice to include sufficiently detailed information about his work and to delete all
charges for activities outside the scope of the Court Monitor's appointment orders or the
jurisdiction of this Court.
Dated: July 11, 2002	Respectfully submitted,
ROBERT D. McCALLUM, JR.
	Assistant Attorney General
	STUART E. SCHIFFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOUN
Director
		.L.
	S	P. SPOONER
Deputy Director
JOHN T. STEMPLEWICZ
Senior Trial Counsel
CYNTHIA L. ALEXANDER
Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
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CERTIFICATE OF SERVICE
I declare under penalty of perjury that, on July 11, 2002 I served the foregoing Interior Defendants'
Peply to Plaint jffs' Opposition to Interior Defendants' Motion for Reconsideration of the? May 31,
2002 Order to Pay the Court Monitor the Sum of $54,307.34, by facsimile in accordance with their
written request of October 31, 2001 upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Kester Brown, Esq.
1712 N Street, N.W.	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
202-822-0068	Washington, D.C. 20004
	202-318-2372
By U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
By Facsimile and U.S. Mail:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Avenue, N.W.
12th Floor
Washington, D.C. 20006
(202) 986-8477
Courtesy Copy by U.S. Mail:
Joseph S. Kieffer, Ill
Court Monitor
420 - 7~ Street, N.W.
Apartment 705
Washington, D.C. 20004