<< COB0000001 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
	ELOUISE PEPION COBELL ~j	)
		)	No. 1:96CV01285
	Plaintiffs,	)	(Judge Lamberth)
	v.	)
		)
	GALE A. NORTON, Secretary of	)
	the Interior et al	)
)
	Defendants.	)
__________________________________________________________________)
INTERIOR DEFENDANTS' MOTION FOR ADJUSTMENT OF THE
JULY 2002 COMPENSATION REOUEST OF THE COURT MONITOR
	The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior
Defendants") respectfully move for the adjustment of the Court Monitor's July 2002
compensation request, seeking the sum of $45,530.48 for professional fees and expenses
rendered from July 1, 2002 through July 31~ 2002.
	Adjustment to the compensation request is necessary because it is not reasonable or
proper. Specifically, the request fails to provide sufficiently detailed information about the work
performed and charges on the invoice reflect activities beyond the scope of the Court Monitor's
appointment orders. Further, Interior Defendants object to the compensation request because its
lack of specificity precludes them from being able to assess fully or object to the Court Monitor's
fees.
	Therefore, Interior Defendants respectfully move this Court to direct the Court Monitor to
revise his July 2002 invoice to include sufficiently detailed information about his work and to
remove any charges for activities beyond the scope of his appointment orders. In addition,
Interior Defendants request an opportunity to review and object to the Court Monitor's revised
<< COB0000002 >>
July 2002 invoice. Counsel for Interior Defendants conferred with counsel for Plaintiffs about
this motion, and counsel for Plaintiffs stated that Plaintiffs oppose this motion.
Dated: August 6, 2002	Respectfully submitted,
ROBERT D. McCALLUM, JR.
	Assistant Attorney General
	STUART E. SCHIIFEER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOHN
	Director
	S	RA P. SPOONE
Deputy Director
D.C. Bar No. 261495
JOHN T. STEMPLEWICZ
Senior Trial Counsel
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
<< COB0000003 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
	ELOUISE PEPION COBELL, ~ aL,	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. I :96CV0 1285
)	(Judge Lainberth)
GALE A. NORTON, Secretaiy of the Interior, et ~L~)
		)
	Defendants.	)
ORDER
	Upon consideration of the Interior Defendants' Motion For Adjustment Of The Court
Monitor's July 2002 Compensation Request, Plaintiffs' responses thcreto, and the entire record
in this case, it is hereby ORDERED that Interior Defendants' motion is GRANTED; and
	IT IS ORDERED that the Court Monitor shall revise Invoice ft 15 (July 1 - July 31, 2002)
to provide sufficiently detailcd information about the work performed and remove all items and
charges for activities beyond the scope of his appointment orders; and
	IT IS ORDERED that the Court Monitor shall provide the Interior Defendants with a
copy of his revised July 2002 invoice; and
	IT IS ORDERED that the Interior Defendants will have ten (10) days from receipt of the
Court Monitor's revised invoice to submit any objections to such invoice.
SO ORDERED this _____ day of	,2002.
ROYCE C. LAMBERTH
United States District Judge
<< COB0000004 >>
cc:
Sandra P. Spooncr
John T. Stemplewicz
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
Fax (202)514-9163
Dennis M Gingold, Esq.
Mark Brown, Esq.
1275 Pennsylvania Avenue, N.W.
Ninth Floor
Washington, D.C. 20004
Fax (202) 318-2372
Keith 1-larper, Esq.
Native American Rights Fund
1712 N Street, NW
Washington, D.C. 20036-2976
Fax (202) 822-0068
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Joseph S. Kieffer, m
Court Monitor
420 - 7k" Street, N.W.
Apartment 705
Washington, D.C. 20004
<< COB0000005 >>
IN THE UNiTED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
	ELOUISE PEPION COBELL et al	)
		)	No. l:96CV01285
	Plaintiffs,	)	(Judge Lamb erth)
	v.	)
		)
	GALE A. NORTON, Secretary of	)
	the Interior, et aL,	)
)
	Defendants.	)
_________________________________________________________________)
INTERIOR DEFENDANTS' MEMORANDUM IN SUPPORT OF
MOTION FOR ADJUSTMENT OF THE
JULY 2002 COMPENSATION REOUEST OF THE COURT MONITOR
	On August 1, 2002, this Court issued an Order directing the Department of the Interior to
pay the Court Monitor the sum of $45,508.48 for his professional fees and expenses rendered
from July 1, 2002, through July 31, 2002. In the Order, the Court stated that it reviewed the
compensation request and found it to be reasonable. However, the Court also provided that
"[a]ny requests for adjustments to this compensation request must be received by this Court
within ten days from the date of this Order." Order, August 1, 2002 at 1.
	The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior
Defendants") respectfully move this Court for adjustment of the Court Monitor's July 2002
compensation request on the following grounds: (1) it is not reasonable or proper because it fails
to provide sufficiently detailed information about the work performed and instead provides vague
descriptions which neglect to explain the subject matter addressed by such work; and (2) it is not
reasonable or proper because certain charges reflect activities beyond the scope of the Court
Monitor's appointment orders. Further, Interior Defendants object to the compensation request
<< COB0000006 >>
because its vague descriptions constrain the Interior Defendants' ability to assess fully or object
to the Court Monitor's fees.
Therefore, the Interior Defendants respectfully request that this Court direct the Court
Monitor to revise his invoice to include sufficiently detailed information about his work and to
remove charges for activities beyond the scope of his appointment orders. In addition, the
Interior Defendants seek an opportunity to review and object to the Court Monitor's revised July
2002 invoice.
ARGUMENT
I.	The Compensation Request Is Not Reasonable Or Proper Because It Fails To
Provide Sufficiently Detailed Information About The Work Performed And
Its Vague Descriptions Constrain Interior Defendants' Ability To Adequately
Assess Or Object To The Court Monitor's Fees.
	The Court Monitor's July 2002 compensation request fails to provide sufficiently detailed
information about the work he has performed and, therefore, is improper and unreasonable. In
commenting upon the United States Supreme Court's grant of fees and expenses to a Special
Master, Justice Blackmun noted that:
fees and expenses charged by a Special Master, when allowed by this Court, represent our
assurance to the parties that the charges are reasonable and proper. A party's consent to
the allowance of fees and expenses does not absolve this Court of its duty to make that
determination.
Kansas v. Colorado 498 U.S. 933, 934 (1990) (Justice Blackmun commenting on the Court's
order granting motion of Special Master for interim fees and expenses, but reserving his formal
dissent). Similarly, in Texas v. New Mexico 475 U.S. 1004 (1986), Chief Justice Burger, joined
by Justice Blackmun and Justice Rebnquist, dissented from the Court's grant of interim fees and
2
<< COB0000007 >>
expenses to a Special Master on the ground that the information provided in support of the fee
request was lacking, stating:
I am unwilling to act without being provided with at least as much information as private
clients routinely receive from their privately retained counsel . . . I would defer action on
the application for interim fees until adequate information is provided. Without such
data, this Court cannot protect the legitimate public interests implicated.
Texas, 475 U.s. at 1005' (finding that the Special Master omitted any information concerning the
experience levels of the four attorneys working with him and information regarding the specific
hourly rates of the Special Master and each of the four attorneys).
	By analogy, this Circuit requires that attorney fee applications contain sufficiently
detailed information about the hours logged and the work performed, as "it is insufficient to
provide the District Court with very broad summaries." National Ass'n of Concerned Veterans
v. Secretary of Defense, 675 F.2d 1319, 1327 (D.C. Cir. 1982). Although the fee application
need not present the "exact number of minutes spent nor the precise activity to which each hour
was devoted nor the specific attainments of each attorney," "the application must be sufficiently
detailed to permit the District Court to make an independent determination whether or not the
hours claimed are justified." 14. (advising that "[tihe better practice is to prepare detailed
summaries based on contemporaneous time records") (quoting in part Copeland v. Marshall, 641
F.2d 880, 891 (D.C. Cir. 1980)).
11 Chief Justice Burger, quoting from his dissent in Louisiana v. Mississippi, 466 U.S. 921
(1984), reiterated that "[al Special Master of this Court is a surrogate of the Court and in that
sense the service performed is an important public duty of high order in much the same way as is
serving in the Judiciary. I do not suggest that Special Masters should serve without
compensation, as for example, Senior Federal Judges have done for a number of years in such
eases, but I believe the public service aspect of the appointment is a factor that is not to be wholly
ignored in determining the reasonableness of fees charged in a case like this." Texas, 475 U.S. at
1005 (dissent).
3
<< COB0000008 >>
	The Court Monitor's July 2002 invoice fails to satisfy this standard because it provides
only vague descriptions of his activities which preclude any appraisal of the reasonableness of
the requested fees. For example, throughout the invoice, the Court Monitor itemizes fees in very
broad and vague terms, including: "Review correspondence and prepare responses," "Telecons
with third parties and Court Official," "Telecons with third parties," "Telecon with DOI official,"
"Telecon with Court Official," "Review pleadings," "Prepare for and meet with Court," "Review
documents and pleadings," "Review documents," "Prepare draft memoranda," "Redraft and
finalize memoranda," "Telecons and meetings with Court Officials," "Review correspondence,"
"Draft memorandum," "Telecon with DOI officials and third parties," "Redraft memorandum,"
"Prepare for interviews of DOI officials and third parties," "Finalize memorandum," "Review
pleadings re: contempt," "Review Reports of Court Monitor, pleadings and contempt trial
testimony," and "Conduct interview of third party." See Letter and Invoice from Joseph S.
Kieffer, ill, Court Monitor, to Hon. Royce C. Lamberth, United States District Judge (July 31,
2002). attached to Order, August 1, 2002 ("Kieffer Invoice") at 1-7. These ambiguous
descriptions lack any notation of the subject matter under the Court Monitor's consideration or
the general areas or aspects of trust reform under his review.
	Moreover, Interior Defendants cannot fully assess or object to the reasonableness of the
Court Monitor's charges for these activities from such vague descriptions as: review documents,
review pleadings, review correspondence, telecon with third parties, prepare draft memoranda,
prepare for interviews of DOI officials and third parties, and conduct interview of third party. Id.
The invoice fails to identify the topics, subject matters, or aspects of trust reform being
monitored by the Court Monitor and the participants in such discussions and meetings. For
4
<< COB0000009 >>
example, the invoice includes charges for approximately 14 hours spent on "Telcons with third
parties," "Telecons with third parties and Court Official," "Prepar[ing] for interviews of DOI
officials and third parties," "Prepar[ing] for and interview[ing] DOI officials and third parties,"
and "Conduct[ing an] interview of[aJ third party." ~ Kieffer Invoice (entries dated July 1, 2,
8, 10, 11, 16, 17, 18, 19, 24, 28, 29, 30, 31). Such descriptions are not only inadequate to permit
a determination of the reasonableness of the fees, but also suggest that the charges are not within
the scope of the Court Monitor's appointment orders because contact with "third parties" cannot
be construed as "monitor[ing] and review[ing] . . . [Diefendants' trust reform activities." Order,
April 15, 2002 at 2 see Section II, infra. Detailed descriptions of the Court Monitor's work are
necessary to ensure that the work performed is properly within the scope of his authority. See
Defs.' Mot. To Revoke The Appointment Of Joseph S. Kieffer, III, And To Clarify The Role
And Authority Of A Court Monitor, filed June 14, 2002.
	The Court Monitor's July invoice stands in stark contrast to the invoices submitted by the
Special Master, Alan L. Balaran. See Order, May 3, 2002 at 1 (ordering the defendants to pay
the Law Office of Alan Balaran the sum of $55,770.25 no later than May31, 2002); April 2002
Report of the Special Master (Attachment 6 - May 1, 2002, Invoice #2 for $55,770.25 ); Order,
July 2, 2002 at 1 (ordering the defendants pay the Law Office of Alan Balaran the sum of
$43,438.65 no later than July 31, 2002); June 2002 Report of the Special Master (Attachment 3 -
July 1, 2002 Invoice #7 for $43,438.65). Throughout these invoices, the subject matters and
issues under the Special Master's review are consistently described, including the topics
discussed in meetings and correspondence and subject matters being reviewed through
documents reviews and interviews. See. e.g.. June 2002 Report of the Special Master,
5
<< COB0000010 >>
Attachment 3 ("Draft letter to J. Warshawsky (DOJ) regarding CIO interviews," "Draft letter to
Peter Miller (DOJ) regarding production of Ruffin/Rushing e-mails related to OLRM security,"
"Conference with Cason et al. regarding status of IT systems and pending requests; Records;
draft meno to file," "Conference with Rob Frazier/IBM reviewing pending requests; outstanding
assessments and reports," "Review CSEAT report and documentation contained in other reports
in preparation for K. Lyons-Burke Deposition," "Conference with J. Christie and T. Wadnum
regarding programmatic changes for Records Program; draft report," "Conference with records
management specialists; records researchers both individually and collectively regarding
problems impacting trust records and OTR programs; draft memo to file listing issues,"
"Conference with OSM employees regarding potential ILM data on systems," "Review Contempt
and Trial Transcripts in preparation for depositions of senior OST officials," "Review Pleadings
regarding Plaintiffs' Motion to Compel Seventh Formal Request for Production," "Review
Plaintiffs' Consolidated Emergency Motion for TRO and P1," "Draft Report regarding OTR
Training.").
	Thus, not only do the descriptions of the work performed by the Court Monitor fail to
assure that the fees charged are reasonable and proper, but also the lack of specificity precludes
the Interior Defendants from adequately reviewing or objecting to such fees. Accordingly, the
Court Monitor should be directed to revise his July 2002 invoice to provide sufficient detail
regarding his work and the Interior Defendants should be provided an opportunity to review and
object to his revised July 2002 invoice.
6
<< COB0000011 >>
11.	The Compensation Request Is Not Reasonable Or Proper Because The Court
Monitor Includes Charges For Activities That Are Beyond The Scope Of His
Appointment Orders.
	To the extent that it is possible to ascertain the activities of the Court Monitor from his
July 2002 invoice, it appears to include charges for activities beyond the scope of his
appointment orders. A party should not be required to pay for activities which are not within the
order of reference of a special master or court monitor. See, e.g.. Reed v. Cleveland Bd. of
Educ., 607 F.2d 737, 748 (6~" Cir. 1979) (concluding that defendants should not be required to
pay for 322.5 hours charged by a consultant to the court and the special master because these
hours were spent on activities which were not included in the statement of his appointment).2
	In this matter, the initial appointment order of the Court Monitor directs that "Mr. Kieffer
shall be compensated at a rate of not less than $250.00/hour for his services and shall be
reimbursed for all expenses incurred in connection with his appointment." Order, April 16, 2001
at ¶ 6. This provision regarding the Court Monitor's compensation was not modified by the
Court's subsequent appointment order. See Order, April 15, 2002. The scope of the Court
Monitor's appointment is to "monitor and review all of the Interior [Diefendants' trust reform
activities and file written reports of his findings with the Court," and the reports are to "include a
summary of the defendants' trust reform progress and any other matter Mr. Kieffer deems
pertinent to trust reform." Id. at 2; see also Order, April 16, 2001 at ¶ 2.
	The July 2002 invoice improperly includes charges for activities that are not within the
scope of the Court Monitor's appointment orders. Speaking engagements are not within the
In B~~jI, the court found that the authority to appoint "expert advisors or consultants to the
special master and the court" derived from Federal Rule of Civil Procedure 53 or from the
inherent power of the court. 607 F.2d at 746.
7
<< COB0000012 >>
Court Monitor's role to "monitor and review all of the Interior defendants' trust reform activities
and file written reports of his findings with the Court." Order, April 15, 2002 at 2. The invoice
includes a charge for "[r]eview[ing] notes and documents and prepar[ing] talking paper."
Kieffer Invoice at 5 (entry dated July 24). It is unclear where the Court Monitor presented this
"talking paper;" however, if this charge is associated with the Court Monitor's participation in a
speaking engagement, it should be removed from the July invoice.
	Further, as noted in Section 1, supra, the invoice includes charges for "Telcons with third
parties," "Telecons with third parties and Court Official,"3 "Prepar[ing] for interviews of DOT
officials and third parties," "Preparfing] for and interview[ing] DOI officials and third parties,"
and "Conduct[ing an] interview of[a] third party." Kieffer Invoice (entries dated July 1, 2, 8,
10, II, 16, 17, 18, 19, 24, 28, 29, 30, 31). These charges are not properlywithin the scope of the
Court Monitor's appointment orders because contact with "third parties," including interviewing
third parties, cannot be construed as "monitor[ing] and review[ing] . [D]efendants' trust
reform activities." Order, April 15, 2002 at 2. Therefore, these charges should also be removed
from the July 2002 invoice.
CONCLUSION
	For the aforementioned reasons, the Interior Defendants respectfully request that this
Court adjust the Court Monitor's July 2002 compensation request by directing him to revise it to
include sufficiently detailed information about his work and to delete all charges for activities
~' Certainly contact with the Court is within the scope of the Court Monitor's appointment orders.
Nonetheless, it remains unclear from such a description whether this phone conference between
the Court Monitor, a Court Official and third parties is properly within the scope of the Court
Monitor's duties.
8
<< COB0000013 >>
beyond the scope of his appointment orders. Further, Interior Defendants request an opportunity
to review and object to the Court Monitor's revised July 2002 invoice because the current invoice
is vague and constrains Interior Defendants' ability to fully review or object to it.
Dated: August 6, 2002	Respectfully submitted,
ROBERT D. McCALLIJM, JR.
	Assistant Attorney General
	STUART E. SCHIFFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOI{N
	Director
	SANDRA P. SPOONER
Deputy Director
D.C. Bar No. 261495
JOHN T. STEMPLEWICZ
Senior Trial Counsel
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 2004zk0875
(202) 514-7194
9
<< COB0000014 >>
CERTIFICATE OF SERVICE
	I declare under penalty of perjury that, on August 6, 2002 I served the foregoing, Interior
Defendants 'Motion for Adjustment c/the July 2002 Compensation Request c/the Court Mon itor
and Interior Defendants 'Memorandum in Support of Motion for Adjustment of the July 2002
Compensation Request of the Court Monitor, by facsimile in accordance with their written
request of October 31, 2002 upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Kester Brown, Esq.
1712 N Street, N.W.	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
	Washington, D.C. 20004
By U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
By facsimile and U.S. Mail upon:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Avenue, N.W.
12th Floor
Washington, D.C. 20006
Courtesy Copy By Hand Delivery upon:
Joseph S. Kieffer, m
Court Monitor
420 - 7k" Street, N.W.
Apartment 705
Washington, D.C. 20004
Kevin P. King~ioh