IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
In re: GALE A. NORTON, SECRETARY 
OF THE INTERIOR IN HER OFFICIAL CAPACITY, 
Petitioner. 
ON PETITION FOR WRIT OF MANDAMUS TO THE UNITED 
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 
BRIEF FOR THE PETITIONER 
PETER D. KEISLER 
Assistant Attornev General 
KENNETH L. WAINSTEIN 
United States Attornev 
GREGORY G. KATSAS 
DeRutv Assistant Attornev General 
ROBERT E. KOPP 
MARK B. STERN 
THOMAS M. BONDY 
ALISA B. KLEIN 
MARK R. FREEMAN 
I. GLENN COHEN 
(202) 514-5089 
Attornevs, Amellate Staff 
Civil Division, Room 7531 
Department of Justice 
950 Pennsvlvania Ave., N.W. 
Washinoton, D.C. 20530-0001 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 
Pursuant to Circuit Rule 28(a)(1), undersigned counsel 
certifies as follows: 
A. Parties and Amici: 
The petitioner is Gale A. Norton, Secretary of the Interior, 
in her official capacity. The defendants-appellants in the 
underlying litigation are Secretary Norton; the Assistant 
Secretary of Interior-Indian Affairs; and John W. Snow, as 
Secretary of Treasury. The named plaintiffs-appellees in this 
class action are Elouise Pepion Cobell; Earl Old Person; Penny 
Cleghorn; Thomas Maulson; and James Louis Larose. The district 
court has certified a plaintiff class consisting of present and 
former beneficiaries of Individual Indian Money accounts, 
excluding those who had filed their own actions prior to the 
filing of the complaint in this case. 
B. Rulincrs Under Review: 
This mandamus petition arises out of the class action 
litigation in Cobell v. Norton, No. 96-1285 (Lamberth, J.) . On 
May 29, 2003, the government moved in district court for the 
recusal of then Special Master Alan Balaran. On October 17, 
2003, the government filed a mandamus petition in this Court 
seeking the Special Master’s recusal. On March 15, 2004, the 
district court denied the government’s recusal motion. The 
district court‘s decision is reported at 310 F. Supp. 2d 102 
(D.D.C. 2004) (JA 53). Mr. Balaran resigned as Special Master on 
April 5, 2004. C. Related Cases: 
In In re Brooks, 383 F.3d 1036 (D.C. Cir. 2004), issued 
a f t e r Mr, Rala.ran’s resignation, this C n r z r t b a r r e d t h e r e l e a s e cf 
reports that had been prepared by Mr. Balaran in connection with 
pending individual contempt proceedings, holding on mandamus 
petitions filed by eleven current and former government employees 
that Mr. Balaran should have been disqualified from those 
proceedings in light of his ex parte contacts in the litigation. 
This Court has issued four other decisions in appeals 
arising out of this litigation. See Cobell v. Norton, 392 F.3d 
461 (D.C. Cir. 2004); Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 
2004); Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003); and 
Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001). Two additional 
appeals are currently pending. $ee Cobell v. Norton, No. 05-5068 
(scheduled for oral argument on September 16, 2005); Cobell v. 
Norton, No. 05-5269 (notice of appeal filed on July 25, 2005). 
ALISA B. KLEIN 
Attorney TABLE OF CONTENTS 
CEK'I'IFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 
GLOSSARY 
Pase 
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . 1 
STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . 1 
STATUTES AND REGULATIONS . . . . . . . . . . . . . . . . . . . 2 
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2 
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . 5 
I. General Background Of This Litigation . . . . . . . . 5 
11. The Involvement Of Special Master Balaran . . . . . . 9 
A. Mr. Balaran's Appointment By The District 
Court . . . . . . . . . . . . . . . . . . . . . 9 
B. Mr. Balaran's Retention Of A NAID Officer 
To Assist In His Investigation Of NAID's 
Allegations Of Government Misconduct . . . . . . 9 
C. The Government's Motion To Disqualify 
Mr. Balaran And The District Court's 
Eventual Ruling Denying The Motion . . . . . . 13 
D. Mr. Balaran's Resignation As Special Master . 17 
E. This Court's Subsequent Decision In In 
re Brooks, Barring Use Of Mr. Balaran's 
Work Product In The Individual Contempt 
Proceedings . . . . . . . . . . . . . . . . . 18 
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 19 
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . 22 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 22 
I. Mr. Balaran‘s Conduct As Special Master 
Required His Disqualification Under 28 U.S.C. 
455(aj And 455ibj (ij . . . . . . . . . . . . . . . 22 
A. The Ethical Restrictions Of 28 U.S.C. 455 
?? I i r r i y 
n n n l ~ ~ TG Special ??lasters . . . . . . . . . . . LL 
B. The Facts Upon Which The Government Based 
Its Recusal Motion Are Uncontested And 
Compelled Disqualification . . . . . . . . . . 24 
C. The Government Did Not Consent To Mr. 
Smith’s Retention Or Waive Its Right To 
Object.. . . . . . . . . . . . . . . . . . . 27 
D. The Reasoning Of The District Court And 
Special Master Reflects Premises Rejected 
By This Court . . . . . . . . . . . . . . . . 31 
11. Mr. Balaran’s Work Product Should Be Vacated In 
Light Of The Facts Requiring His Disqualification . 36 
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 42 
CERTIFICATE OF COMPLIANCE 
CERTIFICATE OF SERVICE 
ADDENDUM TABLE OF AUTHORITIES 
Pacre Cases : 
+ in re Brooks, 383 F.3d 1036 (U.C. Cir. 
2 0 0 4 ) . . . . . . . . . . . . . . 2,5,18,21-23,31-33,40,41 
CGbell v. Norton, J J L 2a9 F.3d 461 (D.C. Cir. 2004) . . . . . 2 , 8 
Cobell v. Norton, 3 9 1 F . 3 d 2 5 1 (D.C. Cir. 2 0 0 4 ) . . . . . . 2 , 8 
* Cobell v. Norton, 334 F . 3 d 1128 (D.C. Cir. 
2 0 0 3 ) . . . . . . . . . . . . . . . 2 , 3 , 7 , 1 0 , 1 5 , 2 2 , 2 3 , 3 3 - 3 5 
Cobell v. Norton, 240 F . 3 d 1081 (D.C. Cir. 
2 0 0 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . 2 , 6 
Cobell v. Norton, 310 F. Supp. 2 d 1 0 2 (D.D.C. 
2 0 0 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . 15 
Cobell v. Norton, 2 8 3 F. Supp. 2 d 66 (D.D.C. 
2 0 0 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . 7 
Cobell v. Norton, 237 F. Supp. 2 d 7 1 (D.D.C. 2 0 0 3 ) . . . . 33 
Cobell v. Norton, 226 F. Supp. 2 d 1 (D.D.C. 
2 0 0 2 ) . . . . . . . . . . . . . . . . . . . . . . 6 , 9 , 1 0 , 2 4 
Cobell v. Babbitt, 9 1 F. Supp. 2 d 1 (D.D.C. 
1 9 9 9 ) . . . . . . . . . . . . . . . . . . . . . . . . . . 6 
In re Edqar, 93 F . 3 d 2 5 6 (7th Cir. 1 9 9 6 ) . . . . . . . . . 32 
Lilieberq v. Health Servs. Acquisition Corp., 
486 U.S. 847 ( 1 9 8 8 ) . . . . . . . . . . . . . . . . . 2 2 , 4 0 
Litekv v. United States, 510 U.S. 540 ( 1 9 9 4 ) . . . . . . 2 3 
United States v. Microsoft CorD., 2 5 3 F.3d 3 4 
(D.C. Cir.) , cert. denied, 534 U. S. 952 
( 2 0 0 1 ) . . . . . . . . . . . . . . . . . . . . . . D . 2 2 , 3 9 
Ward v. Villaqe of Monroeville, 409 U.S. 57 
22 ( 1 9 7 2 ) . . . . . . . . . . . . . . . . . . . . . . 
* Authorities upon which we chiefly rely are marked with asterisks. Statutes: 
krtericdrl I I i C j l i d I i Tr u s i Fund Mdriayement Reform A c t , 
Pub . L . N o . 103-412, 108 S t a t . 4239 . . . . . . . . . . . 6 
S e c t i o n 1 0 2 ( a ) . . . . . . . . . . . . . . . . . . . . . . 6 
2 5 U . S . C . 1 6 2 a . . . . . . . . . . . . . . . . . . . . . . 6 
* 28 U.S.C. 4 5 5 ( b ) . . . . . . . . . . . . . . . 2.4.13.22.23. 26 
* 28 U.S.C. 455 . . . . . . . . . . . . . . . . 2.22.23.28.33. 35 
* 28 U.S.C. 4 5 5 ( a ) . . . . . . . . . . . . . . . . 2.4.13.22. 26 
28 U.S.C. 4 5 5 ( e ) . . . . . . . . . . . . . . . . . . 21.28. 29 
2 8 U . S . C . 1 3 3 1 . . . . . . . . . . . . . . . . . . . . . . - 1 
28 U.S.C. 1361 . . . . . . . . . . . . . . . . . . . . . . . 1 
28 U.S.C. 1651 . . . . . . . . . . . . . . . . . . . . . . . 1 
Rules : 
F e d e r a l R u l e s of C i v i l P r o c e d u r e . 
Rule 53 . . . . . . . . . . . . . . . . . . . . 23.33. 34 
Rule 5 3 ( a ) (2) (Dec . 2 0 0 3 ) . . . . . . . . . . . . . . 23. 33 
Rule 5 3 ( b ) ( 2 ) ( B ) . . . . . . . . . . . . . . . . . . . . 3 4 
. iv . APA 
IIM Accounts 
Interim Report 
NAID 
TAAMS 
GLOSSARY 
Administrative Procedure Act 
Individual Indian Money Accounts 
Interim Report of the Special Master 
Regarding the Filing of Interior’s Eighth 
Quarterly Report (April 21, 2003j (JA 93) 
Native American Industrial Distributors, Inc. 
Trust Asset and Accounting Management System [ORAL ARGUMENT SCHEDULED FOR OCTOBER 14, 20051 
IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
NO. 0 3 - 5 2 8 8 
In re: GALE A. NORTON, SECRETARY 
OF THE INTERIOR IN HER OFFICIAL CAPACITY, 
Petitioner. 
ON PETITION FOR WRIT OF MANDAMUS TO THE UNITED 
STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 
BRIEF FOR THE PETITIONER 
STATEMENT OF JURISDICTION 
Plaintiffs invoked the district court's jurisdiction under 
28 U.S.C. 1331 and 1361, inter alia. This petition invokes this 
Court's mandamus jurisdiction under 28 U.S.C. 1651. 
STATEMENT OF THE ISSUES 
In this ongoing class action involving individual Indian 
money ("IIM") trust funds, this proceeding concerns the conduct 
of former Special Master Alan Balaran. While serving as Special 
Master, Mr. Balaran, without notice to the government, hired an 
officer of a firm that had alleged government wrongdoing to 
assist him in investigating and reporting on the firm's 
allegations. After the government filed this mandamus petition 
seeking his disqualification as Special Master, Mr. Balaran 
resigned, charging that the disqualification motion was a sham to 
prevent him from issuing reports of his investigations. The 
questions presented are: 1. Whether Mr. Balaran's conduct as Special Master required 
his disqualification from this case under 28 U.S.C. 455(a) and 
4 4 4 ( h ) (1); and. 
2. Whether, in light of the facts establishing actual bias, 
this Court should bar prospective reliance on the Special 
Master's work product and direct that his reports be vacated. 
STATUTES AND REGULATIONS 
The text of the judicial disqualification statute, 28 U.S.C. 
455, is reproduced in the addendum to this brief. 
STATEMENT OF THE CASE 
This class action involving individual Indian funds held in 
trust by the United States has been before this Court on numerous 
occasions. See Cobell v. Norton, 392 F.3d 461 (D.C. Cir. 2004); 
Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004); In re Brooks, 
383 F.3d 1036 (D.C. Cir. 2004); Cobell v. Norton, 334 F.3d 1128 
(D.C. Cir. 2003); Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 
2001). Two appeals are currently pending, as we discuss below. 
See Cobell v. Norton, No. 05-5068; Cobell v. Norton, No. 05-5269. 
At issue on this mandamus petition is the conduct of former 
Special Master Alan Balaran. The district court first appointed 
Mr. Balaran in 1999 to oversee specified discovery matters. Over 
time, the district court assigned Mr. Balaran additional duties. 
In 2002, a government contractor, Native American Industrial 
Distributors, Inc. ("NAID") sought to intervene in this 
litigation to pursue a contract dispute with the government in 
connection with its work on the Trust Asset and Accounting 
2 Management System (“TAAMS”), a computer system for tracking the 
status of property held in trust for IIM account holders. 
JA 175, 184, NAIn claimed. thst the Department of the Interior 
had shifted work to another contractor in retaliation for NAID’s 
unfavorable assessment of the progress of TAAMS, and that 
Interior had intentionally disregarded NAID‘s assessment of TAAMS 
in a quarterly report to the district court. JA 184-96. At the 
time, the purported inaccuracy of the government‘s quarterly 
reports regarding the status of TAAMS was at issue in pending 
contempt proceedings that had been the subject of a lengthy 
trial. See Cobell, 334 F.3d at 1135, 1148-49. 
The district court denied NAID‘s intervention request, 
JA 197, but directed Special Master Balaran to investigate NAID‘s 
charge that Interior had withheld material information that 
should have been disclosed in the quarterly report. JA 212-13. 
In April 2003, Mr. Balaran issued an “Interim Report” endorsing 
NAID’s contentions, concluding that Interior had withheld 
material information from the quarterly report to conceal 
infirmities in the TAAMS system. JA 93. 
A footnote at the outset of the Interim Report stated that 
the Special Master’s findings were based on documentation 
“obtained outside of the normal channels and to which the parties 
may have no familiarity.” JA 93 n.1. The government 
subsequently learned that Mr. Balaran had, without notice to the 
government, hired a NAID Vice President and complaining witness, 
3 Mike Smith, to assist in the investigation of NAID’s allegations 
of government misconduct. JA 6-7, 20-27, 221-47. 
When the government learned of the Special Master’s conduct, 
7l 1 I L - . . -.I- 
it filed a motion in district court to disqualify Mr. Balaran as 
Special Master uilder 28 U.S.C. 4 5 5 i a ) and 455(b) (1). P,ILI~VULJI~ 
the government repeatedly sought expedited consideration of the 
motion, the district court did not issue a ruling and, in October 
2003, the government filed this mandamus petition in this Court. 
The Special Master eventually responded to the government‘s 
disqualification motion, admitting the essential facts on which 
the motion was based, but asserting that disqualification was not 
required. JA 1. On March 15, 2004, the district court denied 
the disqualification motion, concluding that the Special Master 
had “engaged in no untoward conduct and demonstrated no bias or 
partiality.” JA 53. 
This Court originally set the government’s mandamus petition 
for oral argument on April 8, 2004. On April 5, 2004, 
Mr. Balaran submitted his resignation as Special Master, which 
the district court accepted on April 6. JA 87. The Special 
Master‘s resignation letter charged that the recusal motion was 
frivolous and was actually a sham to prevent the Special Master 
from issuing reports of his investigations. JA 88-90. 
Plaintiffs have continued to cite Mr. Balaran‘s reports, 
including the Interim Report on the NAID investigation, in the 
underlying litigation. See pp. 38-39, infra. 
4 In September 2004, after Mr. Balaran’s resignation, this 
Court decided In re Brooks, 383 F.3d 1036 (D.C. Cir. 2004). 
There eleven gnT.TPrnm.ent em.plnyees had. filed. mand.2.m.u petitinns 
seeking Mr. Balaran’s disqualification from individual contempt 
proceedings pending against them in this case. This Court held 
that Mr. Balaran’s resignation did not moot the question of his 
disqualification, explaining that if Mr. Balaran “should have 
been recused from the contempt proceedings, then any work product 
produced pursuant to the [contempt] referrals must also be 
‘recused‘ - that is, suppressed.” - Id. at 1044. This Court 
ultimately concluded that Mr. Balaran’s ex parte contacts as 
Special Master should have disqualified him from playing any role 
with respect to the petitioners‘ contempt proceedings, and 
“[tlherefore any reports, recommendations, or other work product 
Balaran prepared pursuant to the [contempt] referrals may not be 
submitted to the district court or otherwise disseminated in any 
manner.” - Id. at 1046. 
STATEMENT OF FACTS 
I . G e n e r a l B a c k g r o u n d Of T h i s L i t i g a t i o n . 
The history of the underlying litigation is set out at 
length in the government’s briefs on the pending appeal from the 
district court‘s structural injunction. See No. 05-5068, 
Briefly, the Department of the Interior holds approximately $400 
million in trust for the benefit of individual Indians. As of 
December 31, 2000, these funds were maintained in approximately 
260,000 separate Individual Indian Money accounts. In 1994, Congress enacted the American Indian Trust Fund Management Reform 
Act, Pub. L. No. 103-412, 108 Stat. 4239. Section 102(a) 
provides that \\ [t ] h e Secretary 5ha.11 a c ~ ~ l ~ n t f ~ r the d a i l y 2nd 
annual balance of all funds held in trust by the United States 
for the benefit of an Indian tribe or an individual Indian which 
are deposited or invested pursuant to the Act of June 24, 1938 
(25 U.S.C. 162a).” 
Plaintiffs brought this class action in 1996. In December 
1999, the district court issued a declaratory judgment holding 
that defendants had an enforceable duty to account for the 
balances in IIM accounts. Cobell v. Babbitt, 91 F. Supp. 2d 1, 
28-31, 56 (D.D.C. 1999). In February 2001, this Court largely 
affirmed, holding that agency action had been unreasonably 
delayed. Cobell v. Norton, 240 F.3d 1081, 1108 (D.C. Cir. 2001). 
This Court noted that the district court had properly remanded 
the matter to Interior, leaving to the agency the choice of how 
the accounting would be conducted while requiring the agency to 
file quarterly reports. Id. at 1104, 1109. 
In September 2002, the district court held Secretary Norton 
and an Assistant Secretary in contempt because they had 
purportedly failed, among other things, to report accurately on 
the progress of the “TAAMS” computer system in quarterly reports. 
Cobell v. Norton, 226 F. Supp. 2d 1, 161 (D.D.C. 2002). Based on 
its contempt findings, the district court terminated the remand 
to the agency, see id. at 152, and declared that it would issue 
6 structural injunctions governing the performance of accounting 
activities and trust management. See id. at 148-49. 
Ji.117 r - - - - - - - - . - I 2f77_?, this C n i 2 - t xw72c2tpd the cc)~te_mnt r i t a t i n n s 
including the citation for the purported failure to report 
accurately on the progress of TAAMS. Cobell v. Norton, 334 F.3d 
1128, 1148-49 (D.C. Cir. 2003). In the same opinion, this Court 
vacated orders appointing Joseph S. Kieffer I11 as Court Monitor 
and Special Master-Monitor, observing that Mr. Kieffer had been 
"charged with an investigative, quasi-inquisitorial, quasi- 
prosecutorial role that is unknown to our adversarial legal 
system." - Id. at 1142. 
In September 2003, notwithstanding this Court's decision 
vacating the contempt citations, the district court issued a 
structural injunction encompassing the performance of an 
accounting and the implementation of a broad program of trust 
reform. Cobell v. Norton, 283 F. Supp. 2d 66 (D.D.C. 2003). 
Congress responded to the injunction with legislation enacted in 
November 2003, as part of the FY 2004 Interior appropriations 
statute, Pub. L. No. 108-108. The legislation removed any legal 
requirement to perform historical accounting activities before 
the legislation's expiration on December 31, 2004. On December 
10, 2004, this Court vacated all aspects of the structural 
injunction, except for a single filing requirement in the non- 
7 accounting portion of the injunction. Cobell v. Norton, 392 F.3d 
461 (D.C. Cir. 2004).l 
In Febrmry 2 n n c l i the d - i s t r i c t c n l l r t i acting S’l2 SCOrltP, 
reissued the accounting portion of the structural injunction 
without modi€ication. The government’s appeal from the reissued 
structural injunction is now pending. See No. 05-5068 ( o r a l 
argument scheduled for September 16, 2005). This Court granted 
the government’s request for a stay pending appeal and expedited 
briefing. 
On July 12, 2005, the district court issued an order 
requiring Interior to include in all written communications to 
class members a notice declaring that all of Interior‘s trust- 
related information is of “questionable reliability.” JA 480. 
The opinion purported to announce Interior’s ”near wholesale 
abdication of its trust duties,” JA 484, and declared Interior a 
“degenerate” trustee, JA 492. The government‘s appeal from the 
July 12 order, and motion for a stay pending appeal, are pending. 
See No. 05-5269. On July 28, 2005, this Court granted an 
administrative stay of the July 12 order. 
In an opinion issued on December 3, 2004, this Court also 
vacated a separate injunction ordering Interior to disconnect 
computer systems from the Internet, explaining among other things 
that the district court had failed to hold an evidentiary 
hearing. See Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004). 
On July 29, 2005, the district court concluded a 59-day 
evidentiary hearing on plaintiffs’ charge that Interior‘s 
electronic data is vulnerable to corruption. 
8 11. The Involvement Of Special Master Balaran. 
--I-- 
A. M r . Balaran’s Appointment By The District Court. 
In February 1999, the district court appointed Alan Balaran 
to serve as Special Master to oversee discovery. See Order of 
r ) ~ A A \ 
~ 3 , ~ ~ U L U ~ L Y I l r r r nnn ( d ~ I 7 - n I ~ r u ~ . The district court later authorized 
Mr. Balaran to oversee the government’s “retention and protection 
from destruction of IIM records through, among other things, on- 
site visits to any location where IIM Records are maintained.” 
Order of August 12, 1999 (JA 152). Subsequently, the district 
court assigned Mr. Balaran specified responsibilities with 
respect to Interior’s information technology and the security of 
individual Indian trust data. Order of December 17, 2001 
(JA 167). On September 17, 2002, the district court referred to 
Special Master Balaran, for reports and recommendations, motions 
seeking to hold 37 current and former government employees in 
contempt. See Cobell, 226 F. Supp. 2d at 155. 
B. Mr. Balaran‘s Retention Of A NAID Officer 
To Assist In His Investigation Of NAID’s 
Allegations Of Government Misconduct. 
In August 2002, NAID, a government contractor, moved to 
intervene in this litigation to pursue a contract dispute with 
the government. JA 175. NAID is an information technology firm 
that was retained by Interior to provide assistance with the 
TAAMS computer system. JA 187. NAID claimed that it had 
provided unfavorable reports on the progress of the TAAMS 
project, and that Interior had retaliated against it by shifting 
some of its work to another contractor, Electronic Data Systems 
9 Corporation. JA 184-96. NAID alleged that Interior had 
purposefully disregarded its assessment of the progress of the 
TAAMS project in preparing its Eiqhth Quarterly Report filed with 
the district court. JA 184-96. 
At the time that NAID sought to intervene, the district 
court had recently concluded its 29-day contempt trial on, among 
other things, alleged inadequacies in the government’s quarterly 
reporting with regard to the progress of TAAMS. See Cobell, 334 
F.3d at 1135, 1148-49. On September 17, 2002, the district court 
issued its ruling holding the Secretary and an Assistant 
Secretary in contempt. Cobell, 226 F. Supp. 2d 1. A few days 
later, the district court denied NAID’s intervention motion on 
procedural grounds, remitting NAID to its remedies under the 
Contract Disputes Act. Sept. 24, 2002 Order (JA 197). However, 
on October 7, 2002, the district court asked Special Master 
Balaran, in an off-the-record communication, to investigate 
NAID’s charge that Interior had withheld information in its 
Eighth Quarterly Report. JA 199-202; JA 55. After the 
government declined to produce documents requested by the Special 
Master in the absence of an order authorizing the investigation, 
the district court issued an order of appointment: 
The Court wishes to ascertain whether there is any 
validity to NAID’s contention that the Department of 
the Interior withheld information from the Court that 
should have been disclosed in the Eighth Quarterly 
Report; and is directing the Special Master to 
investigate whether Interior engaged in any such 
concealment. 
10 November 5, 2002 Order, at 1 (JA 212). The order directed the 
Special Master to prepare a report detailing his findings and 
conclusions. See id. at 1-2 (JA 212-13). 
On April 21, 2003, Special Master Balaran issued an 
\\ 0 interim” report regarding his investigation into NAIDi s 
allegations. See Interim Report of the Special Master Regarding 
the Filing of Interior’s Eighth Quarterly Report (“Interim 
Report”) (JA 93). The Interim Report concluded that Interior had 
“withheld material information” in its Eighth Quarterly Report, 
and “that it did so to conceal infirmities in the TAAMS system 
and misleading and inaccurate representations in previous 
quarterly submissions.” JA 94 (footnote omitted). The Interim 
Report declared that the Eighth Quarterly Report was not 
“designed to provide the [district court] with a candid 
assessment of the TAAMS effort,” but was “contrived to present a 
gilded portrait of the TAAMS system and avoid adverse 
consequences arising from contempt proceedings pending at the 
time.” JA 94. 
Although the report was dubbed an “interim” report, the 
Special Master never released a final report on the NAID 
investigation. The Interim Report was issued three days before 
this Court‘s oral argument on the appeal from the contempt ruling 
against Secretary Norton and Assistant Secretary McCaleb. 
Plaintiffs immediately filed the Interim Report with this Court 
as evidence of the government’s “contumacious” conduct in the 
preparation of its quarterly reports. JA 219-20. 
11 Of special relevance here, the Interim Report advised at the 
outset that the Special Master’s findings were based on 
u u b u L L L L ~ ~ ~ ~ L ~ ~ ~ * UULUIIILU 
n L q - n - 1 - - - A 
V U L ~ L U G VL L I I L i i u ~ i i t a i ~ i i a i i i i c ~ a aiiu t- c u r l r \ c q , m o n t ~ t ; nn \ \ n h i - 3 4 nnrl n 7 ~ t - 4 A n n F th- n n - m - 1 
which the parties may have no familiarity.” JA 93 n.1. Although 
the reference was not immediately apparent, an examination of the 
Mr. Balaran’s billing records revealed that from February 27, 
2003 through April 16, 2003, the Special Master had employed an 
individual with the initials “MSS” to assist in the 
investigation. JA 221-47. 
The government subsequently learned that ”MSS” was 
Mike Smith, who, as of January 2003, had been serving as NAID’s 
Executive Vice President and who was a complaining witness in 
NAIB’s dispute with the government. JA 214-15. On January 7, 
2003, in his capacity as a senior corporate officer, Mr. Smith 
had sent a letter to Interior - copied to the Special Master - in 
connection with NAID’s contract claim. JA 214-15. The letter 
reiterated NAID‘s demand for monetary relief and declared that 
NAID had ”retained the services of counsel because we are dealing 
with a government agency that is refusing to negotiate with us in 
good faith. Rather, we have been the target of retaliation; 
allegations of which are still under investigation by the Court 
Appointed Special Master.” JA 214. 
As Mr. Balaran eventually confirmed, he had retained 
Mr. Smith to assist in his investigation of NAID’s allegations. 
See JA 6-7, 20-27, 221-47 (billing records showing nearly 110 
hours of work by “MSS”). 
12 On October 30, 2003, after Special Master Balaran had issued 
his Interim Report endorsing NAID‘s allegations, NAID wrote to 
Intericr reaffirming t h a t Xr. Smith was a NAIE \:ice PresideEt 
with “full authority to settle” NAID’s pending contract claim. 
JA 307. 
C . The G o v e r n m e n t ’ s Motion To D i s q u a l i f y 
M r . B a l a r a n And T h e D i s t r i c t C o u r t ’ s 
E v e n t u a l R u l i n g D e n y i n g T h e Motion. 
1. On May 29, 2003, within weeks of learning of 
Mr. Balaran’s retention of Mr. Smith, the government moved in 
district court for Mr. Balaran’s disqualification as Special 
Master pursuant to 28 U.S.C. 455(a) and 455(b) (1). Docket #2078. 
The motion explained that disqualification was required in light 
of Mr. Balaran‘s undisclosed retention of a NAID officer and 
complaining witness to assist in the investigation of NAID‘s 
allegations of government misconduct. On June 24, 2003, the 
government moved for expedited consideration. Docket #2115. On 
September 26, 2003, the government again moved for expedited 
consideration, and informed the district court that it would seek 
review in this Court if no ruling was forthcoming by October 15, 
2003. JA 301. On October 17, 2003, the government filed this 
petition for writ of mandamus with this Court, seeking the 
Special Master’s disqualification. 
2. On February 17, 2004, nearly nine months after the 
government had moved for his disqualification, the Special Master 
submitted a responsive statement in district court. JA 1. In 
the response, Mr. Balaran conceded that he had hired Mr. Smith to 
13 assist in the investigation of NAID's charges. JA 24-27. As 
stated by Mr. Balaran, "Mr. Smith worked about 110 hours for the 
Special Master in the spring of 2003," JA 25; Mr. Smith 
"assisted" in the NAID investigation "by analyzing the relevant 
UULUlllt:IlL3, - inc:.Gding Iiiaterial LI- -L T . - I - .-1 
L I M L i I 1 L e : L L o r had filed with the A,-.*..-,.-t 
Court," JA 15; "Smith's work was consumed with records analysis," 
JA 26; and Mr. Smith's time entries "reflect Mr. Smith's 
memorializing of his efforts to organize and record his analysis 
of the relevant documents," JA 26.* 
Mr. Balaran saw nothing improper in his retention of 
Mr. Smith to gather and analyze evidence of the allegations made 
by NAID. Mr. Balaran maintained that "[als a master performing a 
court-ordered investigation," he "was entitled to talk to, and 
retain as staff, any necessary individuals." JA 7. Thus, Mr. 
Balaran believed that he "had every right to consult with Mr. 
Smith ex parte and to retain his services." JA 6. Mr. Balaran 
stated that his "need for Mr. Smith's assistance" was 
"heightened" by Interior's asserted delay in responding to his 
document requests, but declared that he "was authorized to retain 
Smith in any event." JA 6. 
* In a supplemental statement, the Special Master did not 
dispute that Mr. Smith had returned to NAID after working for the 
Special Master, but asserted that Mr. Smith was not a NAID 
employee while he worked for the Special Master. See JA 47. 
Although nothing turns on the point, we note that no record 
evidence supports this assertion. As of the date of the filing 
of this brief, NAID's website indicates that Mr. Smith has served 
as a Vice President since 2002, and identifies no break in 
service. See http://www.naid.com/msmith.htm (last visited Aug. 
10, 2005). 
14 Although Mr. Balaran did not suggest that he had informed 
- L - L ----L 
the government of Mr. Smith's retention or given the government 
an opportunity to object, he also maintained that Interior had 
waived any objection to the retention. JA 33. In a supplemental 
bLdLelItttIlL, Mr. Balaran argued that the references to "iviSS" in his 
April 1, 2003 billing record should have put the government on 
notice that he had hired Mr. Smith a month earlier. JA 43-44. 
3. On March 15, 2004, the district court issued its 
decision denying the government's motion to disqualify 
Mr. Balaran. Although the district court did not question the 
facts underlying the motion, the district court concluded that 
Mr. Balaran had "engaged in no untoward conduct and demonstrated 
no bias or partiality." JA 53. The district court accepted all 
arguments advanced by Mr. Balaran, echoing its defense of the 
conduct of former Special Master-Monitor Kieffer, whose 
appointment had previously been vacated by this Court. See 
Cobell v. Norton, 310 F. Supp. 2d 102 (D.D.C. 2004); Cobell, 334 
F. 3d at 1142-45. 
The district court reasoned that, as Special Master, 
Mr. Balaran "was authorized, as a matter of law, to retain 
experts," JA 70, and concluded that Mr. Balaran "was not only 
authorized to retain Mr. Smith as an expert, but compelled to do 
so" in light of what the court regarded as Interior's delay in 
responding to Mr. Balaran's document requests. JA 73. 
The district court did not perceive the evidence as 
"remotely suggesting that Mr. Smith's interests were antagonistic 
15 to those of the agency” or that he “maintained a financial 
interest in the Master‘s investigation.” JA 74. The district 
ccurt saw nc relaticnship between t h e Special Master’s 
investigation into NAID’s charges and NAID’s pending contract 
claim. See JA 75-76. 
Apart from these “factual infirmities,” JA 78, the district 
court concluded that the disqualification motion failed as a 
matter of law under the “extrajudicial source’’ doctrine. JA 78- 
80. The district court reasoned that Mr. Smith had been retained 
as part of an investigation authorized by the district court, 
JA 78-79, and concluded that Mr. Balaran’s findings were ”amply 
supported by a voluminous and painstakingly crafted record,” 
JA 80. 
Like Mr. Balaran, the district court concluded that the 
government had waived the right to object to Mr. Smith’s 
retention because the ”MSS” notations in the Special Master‘s 
April 1, 2003 billing records should have put the government on 
notice that the Special Master had hired Mr. Smith a month 
earlier. JA 80-83. In summary, the district court concluded 
that “it was well within the ambit of the Special Master’s 
authority to communicate with Mr. Smith on an ex parte basis and 
to retain his services to assist with the Eighth Quarterly Report 
Investigation.” JA 78. The district court declared that the 
government‘ s “charges of impropriety” were “misdirected” and 
”more properly should have been leveled at“ Interior’s own 
conduct. JA 78. 
16 D. Mr. Balaran‘s Resignation As Special Master. 
On April 5, 2004, three days before this Court was 
originally scheduled to hear oral argument on this mandamus 
petition, Mr. Balaran submitted his resignation as Special 
nn- L v l d b ~ e ~ . -c - -- JA 87-90. In ihis resignation letter, ivir. Balaran 
declared that the district court had been correct in finding the 
government‘s recusal motion “frivolous” and in ”suggesting that 
it was Interior that acted improperly by impeding my 
investigation and that Interior had an ulterior motive for 
seeking my removal.” JA 88. The resignation letter charged not 
only malfeasance but corruption. It asserted that Mr. Balaran 
was on the verge of uncovering evidence that Interior was 
systematically “putting the interests of private energy companies 
ahead of the interests of individual Indian beneficiaries,” 
JA 89, and that Interior, “supported by the Department of 
Justice,” JA 90, filed a “frivolous” recusal motion with the 
”ulterior motive” of stifling his investigations, JA 88. His 
revelations would have been intolerable to the government, Mr. 
Balaran maintained, because they “could cost the very companies 
with which senior Interior officials maintain close ties, 
millions of dollars.” JA 89. His investigation, Mr. Balaran 
asserted, “might well result in energy companies being forced to 
repay significant sums to individual Indians. Interior could not 
let this happen.” JA 90. 
The district court accepted Mr. Balaran’s resignation on 
April 6, 2004, and ordered that the resignation letter be made 
17 part of the record. JA 87. In a separate order, the district 
court directed the government to pay Mr. Balaran's fees, 
motion and petition for mandamus. JA 91.3 
E. This Court's Subsequent Decision In In re Brooks, 
Barring Use Of Mr. Balaran's Work Product In The 
Individual Contempt Proceedings. 
As explained above, the district court in 2002 had referred 
plaintiffs' motions seeking to hold in contempt 37 current and 
former government employees to Special Master Balaran. In 
September 2004, in a ruling issued after Mr. Balaran's 
resignation, this Court barred the release of any reports, 
recommendations, or other work product prepared by Mr. Balaran 
pursuant to that referral, holding that Mr. Balaran's ex parte 
contacts in the litigation disqualified him from playing any role 
with respect to the individuals' contempt proceedings. In re 
Brooks, 383 F.3d 1036, 1044-46 (D.C. Cir. 2004). 
Ruling on mandamus petitions filed by eleven of the 
individuals concerned, this Court explained that "Balaran's four- 
year involvement in the trust reform litigation entailed 
innumerable contacts with witnesses and third parties likely to 
have information relevant to the contempt proceedings." - Id. at 
The district court also ordered payment of fees to 
Mr. Balaran through April 30, 2004. Cumulatively, Mr. Balaran 
has received over $1,775,000 in fees, exclusive of expenses and 
payment for assistants and experts. The total bill for his 
services has exceeded $3,800,000. 
18 1045. "Because Special Master Balaran had ex parte contacts that 
may have given him personal knowledge of disputed evidentiary 
facts r e l e ~ ~ 7 ~ c t to t h e r,Gr,teqt preceedir,gs, these n r n c n n A ; n m - yL V k L L U L I I Y LJ 
should never have been referred to him." - Id. at 1046. It 
followed, this Court concluded, that "any reports, 
recommendations, or other work product Balaran prepared pursuant 
to the [contempt] referrals may not be submitted to the district 
court or otherwise disseminated in any manner." Ibid.4 
SUMMARY OF ARGUMENT 
The facts on which this mandamus petition is based are 
simple and undisputed. NAID, a government contractor working on 
the TAAMS computer system, sought to intervene in this 
litigation, alleging government misconduct and seeking to protect 
its government contracts. Although the district court denied the 
intervention motion on procedural grounds, remitting NAID to 
other remedies, it ordered Special Master Balaran to determine 
whether NAID's allegations might demonstrate a contemptuous 
failure by the government to provide a complete quarterly report 
to the court. Without notice to the government, the Special 
Master then hired NAID's vice president and complaining witness, 
Mike Smith, to gather and analyze evidence of the misconduct that 
NAID had alleged. The Special Master then released an "interim" 
report endorsing NAID's charges, which plaintiffs immediately 
In the same ruling, this Court also denied the 
individuals' request to disqualify the district court judge from 
the contempt proceedings. See 383 F.3d at 1041-44. 
19 forwarded to this Court as evidence of the government's 
"contumacious" conduct. 
While Mr. Balaran's response to the disqualification motion 
did not dispute these facts, it exhibited no appreciation of 
4-L.-4 L l l c ~ r signif icanze . Mr. Baiaran aind the district court believe 
that judicial officers may assess allegations of fraud by hiring 
the accusing party to gather and analyze the evidence of his own 
assertions. Indeed, they intimate that such conduct is routine. 
It is not. Judicial officers do not hire complaining 
witnesses to analyze the merits of their own charges and then 
release their findings with the laconic notation that the 
findings are based on material "obtained outside of normal 
channels and to which the parties may have no familiarity." 
JA 93 n.1. The attempts of Mr. Balaran and the district court to 
excuse this conduct only underscore the extent to which the most 
basic tenets of fairness and impartiality have been left in the 
dust. 
Mr. Balaran does not claim to have given the government any 
advance notice of his decision to hire Mr. Smith or any 
opportunity to object. Nonetheless, Mr. Balaran insisted and the 
district court found that the government "waived" its right to 
object to Mr. Smith's retention because references to "MSS" in 
the Special Master's billing records should have put the 
government on notice that Mr. Smith had been hired more than a 
month earlier. But the disqualification statute requires full 
disclosure, on the record, of a basis for disqualification. 28 
20 U.S.C. 455(e). Cryptic clues in billing records of actions 
already taken plainly do not suffice. 
. I 
- _ I n - % - n r - T 7 7 7 =f r.nnA77ni- 
b"IIL4UbL y 0 ~ 7 ; L Y L U L I I b b L G y U I I I l l y Ir, t h e face ef e~~7er+,7helr,ip~- A n n - - 
his disqualification, the Special Master resigned, three days 
before this Court was originally set to hear oral argument on 
this petition. While Mr. Balaran's resignation mooted the 
question of his further participation in the case, it did not 
obviate the impact of his reports in this ongoing litigation. 
Two years after Mr. Balaran's resignation, plaintiffs continue to 
cite these reports, including the Interim Report on the NAID 
investigation, as evidence of government misconduct. 
This petition establishes not only the appearance of bias 
but actual bias, a point underscored by the resignation letter's 
unrepentant attitude and cavalier assertion of new, wholly 
unsubstantiated charges. In In re Brooks, 383 F.3d 1036, 1044 
(D.C. Cir. 2004), this Court held that the facts requiring 
Special Master Balaran's recusal from pending individual contempt 
proceedings also required that his work product in those contempt 
proceedings be suppressed, notwithstanding his intervening 
resignation. That reasoning applies here with equal force. At a 
minimum, therefore, applying In re Brooks, this Court should 
vacate the Special Master's Interim Report and any other reports 
issued after his hiring of Mr. Smith. This Court should also ban 
any prospective reliance on those reports. The Interim Report 
was the product of Mr. Balaran's collaboration with Mr. Smith and 
is clearly tainted for that reason. The collaboration with Mr. 
21 Smith provided the basis for disqualification and the Special 
Master's subsequent reports thus never should have been issued. 
"A writ of mandamus is 'an extraordinary remedy, to be 
reserved for extraordinary situations."' In re Brooks, 383 F.3d 
at 1041 (quoting Cobell, 334 F.3d at 1137). "Nonetheless," this 
Court "'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.'" - Id. at 1041 (quoting 
Cobell, 334 F.3d at 1139). 
ARGUMENT 
I. Mr. Balaran's Conduct As Special Master Required His 
Disqualification Under 28 U.S.C. 455(a) And 455(b) (I). 
A. The Ethical Restrictions Of 28 U.S.C. 455 
Apply To Special Masters. 
Every litigant has a basic right to "a neutral and detached 
judge." Ward v. Villase of Monroeville, 409 U . S . 57, 62 (1972). 
Disqualification is required whenever a judge's impartiality 
"might reasonably be questioned." 28 U.S.C. 455(a). This 
provision requires neither a showing of subjective bias nor a 
showing that actual bias exists. "The standard for 
disqualification under § 455(a) is an objective one[;] [tlhe 
question is whether a reasonable and informed observer would 
question the judge's impartiality." United States v. Microsoft 
Corp., 253 F.3d 34, 114 (D.C. Cir.), cert. denied, 534 U.S. 952 
(2001); see also Lilieberq v. Health Servs. Acquisition Corp., 
486 U.S. 847, 860 (1988) (judge need not even be aware of the 
22 facts creating an appearance of impropriety \\so long as the 
public might reasonably believe that he or she knew" of such 
facts). 
Section 455(b) requires recusal whenever a judge "has a 
n - , - ~ - = - l 
In re 
per-onal hias o r prejudice concerning 2 n = v + - 1 7 or pGL a w i i a i rUL ~y r 
knowledge of disputed evidentiary facts concerning the 
proceeding[.]" 28 U.S.C. 455(b) (1). This provision requires 
recusal where the official has "a favorable or unfavorable 
disposition or opinion that is somehow wrongful or inappropriate, 
either because it is undeserved, or because it rests upon 
knowledge that the subject ought not to possess . . . or because it 
is excessive in degree." Litekv v. United States, 510 U . S . 540, 
550 (1994). 
As this Court has twice confirmed in this litigation, "'the 
ethical restrictions of § 455 apply to a special master."' 
Brooks, 383 F.3d 1036, 1044 (D.C. Cir. 2004) (quoting Cobell, 334 
F.3d at 1128). The same principle was codified in the 2003 
amendments to Rule 53 of the Federal Rules of Civil Procedure. 
"A master must not have a relationship to the parties, counsel, 
action, or court that would require disqualification of a judge 
under 28 U.S.C. § 455 unless the parties consent with the court's 
approval to appointment of a particular person after disclosure 
of any potential grounds for disqualification." Fed. R. Civ. P. 
53(a) (2) (Dec. 2003). 
2 3 B. The Facts Upon Which The Government Based 
Its Recusal Motion Are Uncontested And 
Compelled Disqualification. 
The facts mderlyirlg t h e recusal F L S t i G r , ;re simple arid 
uncontested. Indeed, Mr. Balaran confirmed the essential facts 
in the statements that he filed in response to the motion. 
NAID sought to intervene in this litigation to pursue a 
contract dispute. JA 175. NAID alleged that it had provided 
unfavorable reports on the progress of TAAMS and that Interior 
had retaliated against it by shifting some of its work to another 
contractor. JA 184-95. To support the claim of retaliation, 
NAID charged that Interior’s Eighth Quarterly Report had 
intentionally disregarded NAID’s assessment of TAAMS. JA 189-91. 
At that point, the district court had recently concluded the 
contempt trial on, among other things, the government’s alleged 
failure to disclose all problems related to TAAMS in quarterly 
reports. On September 17, 2002, the district court issued its 
ruling holding the Secretary and an Assistant Secretary in 
contempt. Cobell, 226 F. Supp. 2d 1. A week later it denied 
NAID’s intervention motion on procedural grounds, remitting NAID 
to its remedies under the Contract Disputes Act. JA 197-98. But 
the district court directed Special Master Balaran to investigate 
NAID’s allegations and to prepare a report detailing his findings 
and conclusions. JA 212-13. 
From February 27 through April 16, 2003, Special Master 
Balaran employed Mike Smith, who was serving as NAID’s Executive 
Vice President as of January 2003 and who returned to NAID after 
24 his period of employment with the Special Master. JA 214-15; 
JA 307.5 Mr. Balaran did not inform the government that he was 
p : 7 i r , . ; a W A I D ezpleq‘ee te help evaluate NAIE’ s accusatiGns. 
Mr. Balaran has not suggested that he failed to appreciate who 
Mr. Smith was or the nature of NAID’s interest in the matter. 
Instead, Mr. Balaran proclaimed that he “was entitled to talk to, 
and retain as staff, any necessary individuals.” JA 7. Thus, he 
readily acknowledged that Mr. Smith gathered and analyzed 
evidence regarding his own firm‘s allegations. a, e.a., JA 15 
(Mr. Smith “assisted” in the Special Master’s investigation “by 
analyzing the relevant documents, including material that 
Interior had filed with the Court”) ; JA 26 (”Smith‘s work was 
consumed with records analysis”) ; ibid. (time entries “reflect 
Mr. Smith’s memorializing of his efforts to organize and record 
his analysis of the relevant documents”). 
On April 21, 2003, three days before this Court was to hear 
oral argument on the contempt appeal involving Secretary Norton 
and an Assistant Secretary, Mr. Balaran released an “interim” 
report concluding that the government had withheld material 
information in its Eighth Quarterly Report in order to conceal 
infirmities in the TAAMS system. JA 93. Plaintiffs immediately 
filed the report with this Court as evidence of the government’s 
“contumacious” conduct. JA 219-20. On October 30, 2003, NAID 
As noted above, Mr. Smith may have remained a NAID Vice 
President even while he worked for the Special Master. See 
note 2, supra. 
25 wrote to Interior reconfirming that Mr. Smith was a NAID Vice 
President with “full authority to settle” NAID’s pending contract 
claim. JA 307. 
The case for recusal is incontrovertible. Until this case, 
it would have been inconceivable that a judicial officer 
assessing a charge that information had been fraudulently 
concealed would hire the very person making the charge to gather 
and analyze the evidence of its accuracy. Any reasonable person 
would conclude that a judicial officer engaging in such conduct 
had surrendered all semblance of impartiality. A judicial 
officer who collaborates with an accusing party to determine the 
accuracy of the party’s accusations cannot under any objective 
standard be thought impartial. See 28 U.S.C. 455(a), 455(b) (1). 
Even the Special Master did not suggest that a judge could 
have engaged in the type of conduct at issue here. Such conduct 
would prompt any objective observer to conclude that the judge 
had determined a priori that one party to the controversy was to 
be trusted and relied upon in preference to the other. That 
conclusion is confirmed in this case by Mr. Balaran’s decision to 
issue his report before allowing the government to see and 
respond to the evidence and analysis provided by its accuser. 
The impropriety is underscored by the likelihood that any 
findings in NAID’s favor might be advantageous to Mr. Smith and 
his firm in pressing its contract claim against Interior in other 
venues. See JA 307 (October 30, 2003 letter reaffirming that Mr. 
26 Smith was a Vice-president of NAID with full authority to settle 
NAID’ s pending contract claim) . 
C . T h e G o v e r n m e n t D i d N o t C o n s e n t To M r . S m i t h ‘ s 
R e t e n t i o n Or Waive Its R i g h t T o O b j e c t . 
Special Master Balaran did not inform the government that he 
was hiring Mr. Smith or give the government any opportunity to 
object to his proposed course of conduct. Nonetheless, both 
Mr. Balaran (JA 33, JA 43-44) and the district court (JA 80-83) 
suggested that consent could be inferred and any objection could 
be deemed waived. 
They cannot. By the time of Mr. Smith’s retention, the 
government had made abundantly clear that it would object to the 
Special Master’s hiring of any individuals with interests adverse 
to the government. 
In 2001, Special Master Balaran hired a former Interior 
employee, Joe Christie, as a technical consultant, 
notwithstanding the fact that Mr. Christie had testified on 
plaintiffs’ behalf at trial. As the Special Master acknowledged, 
Mr. Christie was hired over the qovernment‘s obiection. JA 23; 
-- see also JA 308-15 (3/29/02 opinion denying motion to rescind the 
hiring of Joseph Christie). 
In late 2002, Mr. Balaran informed the government of his 
intent to hire an attorney, Anne Fraser, to assist him in 
evaluating orders to show cause. The government objected on the 
ground that Ms. Fraser was representing a party in a pending but 
unrelated administrative action against the government. JA 203- 
27 11. The government urged that Ms. Fraser’s retention ”would 
raise serious issues as to whether the Special Master could 
contin12e to evalnate the motions f o r o r d e r s te shm: cause./’ 
JA 206. The government noted further that neither the Special 
Master nor Ms. Fraser had made the full disclosure, on the 
record, of the basis for the disqualification, as required by 28 
U.S.C. 455 and the Code of Judicial Conduct. JA 207; see also 28 
U.S.C. 455(e) (waiver of grounds for disqualification, even where 
permitted, may be accepted only if “it is preceded by a full 
disclosure on the record of the basis for disqualification“). 
Mr. Balaran receded in that dispute and did not hire 
Ms. Fraser. Four months later, Mr. Balaran chose to hire 
Mr. Smith, who not only had interests generally adverse to the 
government (like Ms. Fraser), but whose interests were adverse 
with specific regard to the task for which he was employed. See 
JA 214-15 (1/7/03 letter). This time, Mr. Balaran proceeded in 
secret, without giving the government any opportunity to object. 
Given this background, there could be no plausible 
contention that consent could be inferred. Instead, Mr. Balaran 
and the district court insisted that the right to object was 
waived because the Special Master “did not conceal his decision 
to hire Smith,” JA 25 n.18; JA 81-82. What is meant by this 
statement is that the billing records that Special Master Balaran 
filed on April 1, 2003, indicated that an individual with the 
initials “MSS“ had been working for the Special Master since 
February 27, 2003. See JA 43-44. The apparent theory is that 
28 the billing records gave the government “constructive knowledge” 
of Mr. Smith’s retention, JA 82, because Mr. Smith had been 
present when Mr. Balaran inspected a collection of documents at 
Interior on February 27. See JA 81; JA 44. 
..-IIVU &..& n l thniirjh the g07~7ernment disputes certain aspects of 
Mr. Balaran’s account of the February 27 meeting with Mr. Smith, 
the undisputed fact is that government counsel was present as 
well. JA 24. Mr. Balaran has not suggested that he notified the 
government that he would be engaging in ex parte contacts with 
Mr. Smith, much less that he would be putting Mr. Smith on the 
payroll to assist in investigating and reporting on Mr. Smith‘s 
own claims of government wrongdoing. 
Plainly, the Special Master could not insulate his conduct 
from review by providing cryptic clues in his billing records of 
actions he had already taken. The government had no reason to 
suspect the Special Master‘s improper conduct until the Special 
Master announced in his Interim Report that his findings were 
based on information “obtained outside of the normal channels and 
to which the parties may have no familiarity.” JA 93 n.1. But 
in any event, initials noted in billing records hardly constitute 
the type of “full disclosure on the record” required by the 
disqualification statute. 28 U . S . C . 455(e). 
Mr. Balaran and the district court alternatively suggested 
that the government’s previous consent to specified ex parte 
contacts by the Special Master waived the right to object to all 
future ex parte contacts. In that regard, Mr. Balaran and the 
29 district court cited an August 1999 order authorizing Mr. Balaran 
to make "site visits" in connection with his oversight of 
I n t e r i o r ' 3 d.ncum.ent retention practices. ;m 10; JA 68. The47 
also noted a February 2001 order directing Interior to inform 
employees that they could communicate with the Special Master 
regarding IIM records-related matters in confidence and without 
fear of reprisal. JA 11; JA 70. 
On their face, these orders had no application outside the 
specific context to which they were addressed. Clearly, they had 
no bearing on the 2003 investigation into NAID's allegations.6 
Just as clearly, nothing in these orders could remotely be 
construed to allow Mr. Balaran to put hostile witnesses on his 
payroll to analyze evidence. Indeed, Mr. Balaran's invocation of 
these orders underscored his fundamental failure to appreciate 
the extent of his improper conduct. The problem is not merely 
that the Special Master engaged in significant ex parte contacts 
without notice or consent, although that alone would be 
sufficient to require recusal. The Special Master not only 
obtained ex parte evidence from Mr. Smith; he made him part of 
the decision-making apparatus. Mr. Smith not only supplied ex 
parte evidence, he supplied the analvsis of that evidence. JA 
Even in the document-retention context, the issue of 
Special Master Balaran's ex parte contacts became the subject of 
much dispute and resulted in the government's motion to preclude 
his use of ex parte contacts. See Interior Defendants' Motion 
For An Order Directing The Special Master To Conform His Conduct 
To Limits Stated By the Court of Appeals; To Vacate Or Clarify 
Existing Orders As Appropriate; And To Act On This Motion on an 
Expedited Basis (Docket #2295). 
30 15, 25-27. That is why Mr. Smith was not only a witness but a 
paid assistant. Moreover, the decision to employ Mr. Smith would 
before reviewing the evidence. NAID’s potential financial 
interest in the outcome of the Special Master‘s investigation 
underscores the extent to which far more than the taking of ex 
parte evidence was at issue. 
D. The Reasoning Of The District Court And 
Special Master Reflects Premises Rejected 
31 
By This Court. 
There can be no serious contention that Special Master 
Balaran acted properly in hiring Mr. Smith to gather and analyze 
evidence of his own accusations. The response of Mr. Balaran and 
the ruling of the district court on the recusal motion rest on 
premises that have been flatly rejected by this Court. 
Mr. Balaran suggested that his retention of Mr. Smith was 
not improper because the findings in his Interim Report would be 
reviewed de novo by the district court. JA 20, 21. But as this 
Court stressed in In re Brooks, de novo review cannot cure the 
fact that Mr. Balaran’s “compilation of the record for the 
district court’s review, not to mention his reports and his 
recommendations, would be subject to selection bias[.]” 383 F.3d 
at 1046. “[Alt the very least, an observer apprised of all the 
facts would reasonably question his impartiality.” Ibid.7 
The district court has not, in any event, shown a 
(continued. . * ) For the same reason, it is irrelevant that Mr. Balaran 
purported to support his findings with attached exhibits, JA 79, 
and that the government c,nij.lcl o b j e c t to those findings, pm 8Q. 
As this Court explained, the "concern is with information that 
'leaveis] no trace in the record,' . . . that may reasonably be 
expected to color the way [the Special Master] approaches his 
task, and ultimately his reports and recommendations to the 
district court [ .I" In re Brooks, 383 F.3d at 1046 (quoting In re 
Edsar, 93 F.3d 256, 259 (7th Cir. 1996)). The assistance that 
Mr. Balaran obtained from Mr. Smith was without question 
"extrajudicial," because it was obtained outside of the 
Ibid. ; adversarial process and left "'no trace in the record."' 
-- see also In re Edclar, 93 F.3d at 259 ("The point of 
distinguishing between 'personal knowledge' and knowledge gained 
in a judicial capacity is that information from the latter source 
enters the record and may be controverted or tested by the tools 
of the adversary process. Knowledge received in other ways, 
which can be neither accurately stated nor fully tested, is 
'extra j udicial . ' " ) . 
As the district court's decision made clear, its defense of 
Mr. Balaran ultimately rested on the same assumptions about the 
proper scope of a special master's authority that have "guided 
[the district court] since it first appointed the Special Master 
I ( . . .continued) 
a, e.cr., JA 217 (describing the Interim Report as "the Special 
willingness to review Mr. Balaran's reports in a de novo fashion. 
Master's report on whatever the latest lie is"). 
32 in February 1999.'' JA 66. In essence, the district court 
perceived no ethical restrictions on the exercise of that 
authority. The district court has repeatedly declared "'the 
authority of institutional reform special masters to uncover 
f a c t s and collect evidence via ex parte contacts with parties and 
counsel. ' ' I Cobell v. Norton, 237 F. Supp. 2d 71, 75 (D.D.C. 
2003) (quoting 3/29/02 Order (JA 314)). In denying the 
government's motion to recuse Mr. Balaran, the district court 
endorsed not only ex parte contacts but the undisclosed retention 
of an accusing party. Thus, in the district court's view, the 
Special Master had what amounted to unlimited "discretion not 
only to determine the kind of proof he required but also the 
manner in which he would receive it." JA 65. 
This Court, however, has twice held in this liticration that 
the ethical restrictions of § 455 apply to a special master. See 
In re Brooks, 383 F.3d at 1044; Cobell, 334 F.3d at 1128. 
Although the district court and Special Master invoked the 2003 
amendments to Rule 53, those amendments removed any doubt that a 
master is subject to the restrictions of § 455. Fed. R. Civ. 
P. 53(a) (2) (Dec. 2003) ("A master must not have a relationship 
to the parties, counsel, action, or court that would require 
disqualification of a judge under 28 U.S.C. § 455 unless the 
parties consent with the court's approval to appointment of a 
particular person after disclosure of any potential grounds for 
disqualification."). Amended Rule 53 further required that "the 
circumstances - if any - in which the master may communicate ex 
33 parte with the court or a party” be set forth in the order 
appointing the master and defining his duties, which is subject 
to objection by the parties. Fed, R.= Ci1.7; p = 53(h) (2) (13) - 8 
Nothing in the amendments or their history suggests in any way 
that masters may hire witnesses to analyze the evidence in 
support of their own allegations. 
This Court has made equally clear that the district court’s 
1999 declaratory judgment ruling did not allow the district court 
to charge its agents “with an investigative, quasi-inquisitorial, 
quasi-prosecutorial role that is unknown to our adversarial legal 
system.” Cobell, 334 F.3d at 1142. As this Court explained in 
vacating the appointment of Court Monitor Kieffer, the Monitor’s 
role could be likened to the role of a special master 
appointed pursuant to Rule 53 to supervise the implementation of 
a court order, see ibid., “for there was no decree to enforce,” 
- id. at 1143. 
These pronouncements should have had particular force in the 
context of the NAID investigation, which was, for all practical 
purposes, a contempt investigation. Having just concluded a 
contempt trial on (inter alia) the government’s allegedly 
misleading discussion of TAAMS in its quarterly reports, see 334 
The Advisory Committee Notes to the 2003 amendments to 
Rule 53 further cautioned that ”[iln most settings . . . ex parte 
communications with the parties should be discouraged or 
prohibited,” observing that they may be appropriate in limited 
contexts such as “seeking to advance settlement,’’ or in “in 
camera review of documents to resolve privilege questions.” Note 
to subdivision (b). 
34 ,-.I‘ ----I-- -& ~ u ~ ~ L u ~ t t a ~ ~ ~ ~ ~ LULIUULL. 
F.3d at 1148-49, the district court directed the Special Master 
to ascertain whether Interior had withheld material information 
about TAAMS from the Eighth Quarterly Report. Plaintiffs filed 
the Interim Report itself with this Court as evidence of the 
government I s \’nn-t,--- - 4 - 3 - ;A 220. In tihat context, 
it is unfathomable that the protections of § 455 would not apply. 
-- See also Cobell, 334 F.3d at 1140 (noting that the district 
court’s contempt findings were “functionally criminal rather than 
civil in nature”). 
Finally, the suggestion that the Special Master was 
“compelled” to hire Mr. Smith because of perceived delays in the 
government’s document production, JA 73, is absurd. Even by 
Mr. Balaran’s own account, he hired Mr. Smith after the 
government had made the requested documents available for 
inspection. See JA 24. More fundamentally, if Mr. Balaran was 
dissatisfied with the pace of the government’s document 
production, he could have sought an order from the district court 
compelling production on a different schedule. He was manifestly 
not free to hire the complaining witness to obtain information 
and analysis directly from that source.’ 
The district court and Mr. Balaran thought it significant 
that this petition was styled in the name of the Secretary of the 
Interior rather than in the name of both Interior and Treasury. 
This petition represents the position of the United States, not 
just the position of one agency of the United States. 11. Mr. Balaran’s Work Product Should Be Vacated In 
Light Of The Facts Requiring His Disqualification. 
In the face of overwhelming evidence of conduct requiring 
his recusal, Special Master Balaran submitted his resignation on 
April 5, 2004, three days before this Court was scheduled to hear 
oral argument on this petition seeking his disqualification. 
Since that time, plaintiffs have repeatedly moved to dismiss the 
petition as moot. But while Mr. Balaran’s resignation mooted the 
question of his further participation in the case, it did not 
obviate the ongoing impact of his voluminous reports, which 
Mr. Balaran continued to issue even after the government moved to 
disqualify him for bias. 
In the course of this litigation, Mr. Balaran essentially 
functioned as a prosecutor and grand jury - a role “unknown to 
our adversarial legal system,” 334 F.3d at 1142 - creating 
evidence and issuing indictments with regard to any matter that, 
in his view, had some relationship to trust accounting. Echoing 
the district court, the Special Master proclaimed his right \\‘to 
uncover facts and collect evidence via ex parte contacts with 
parties and counsel.’N Site Visit Report of the Special Master 
to the Dallas, Texas Office of the Minerals Revenue Management 
Division of the Department of the Interior’s Minerals Management 
Service, at 1 (Sept. 29, 2003) (JA 294) (quoting 3/29/02 District 
Court Order (JA 314)). 
The Special Master‘s reports charged the government with 
malfeasance. In the September 29, 2003 report on his visit to 
36 the Texas Office of the Minerals Revenue Management Division 
(JA 294), Mr. Balaran purported to find mismanagement with regard 
to Interior's oversight of oil leases, In an _r\_i-i..gi~.st 20, 2003 
report on his visit to the Office of Appraisal Services in 
Gallup, New iviexico (JA 2 5 3 j , he purported to find mismanagement 
with regard to appraisals of rights-of-way on Indian lands, and 
charged present officials with malfeasance even though the 
appraisals that he purported to review were completed before they 
took office. In the Interim Report on the NAID investigation - 
prepared, as we have shown at length, in concert with the 
accusing party - Mr. Balaran purported to find contumacious 
conduct. 
In his resignation letter, made part of the record by the 
district court, Mr. Balaran charged that the recusal motion was a 
sham intended to prevent him from issuing additional reports on 
his various investigations. The resignation letter declared that 
the district court had been correct in finding the recusal motion 
"frivolous" and in "suggesting that it was Interior that acted 
improperly by impeding my investigation and that Interior had an 
ulterior motive for seeking my removal." JA 88. Mr. Balaran 
claimed that his recent "findings" had "implicated the agency's 
systemic failure to properly monitor the activities of energy 
companies leasing minerals on individual Indian lands," JA 89. 
He declared that his findings "could cost the very companies with 
which senior Interior officials maintain close ties, millions of 
dollars," JA 89. And he charged that the government's reasons 
37 for seeking disqualification "bear no relationship to the reasons 
it offers in its recusal motion, but rather to my discovery of 
significant problems in its appraisal and record-keeping 
practices." JA 90. His investigation into these matters, Mr. 
Baiaran insisted, "might weli resuit in energy companies being 
forced to repay significant sums to individual Indians. Interior 
could not let this happen." JA 90. 
Mr. Balaran's resignation did not remove the string of 
indictments placed in the record, their consequences in this 
litigation, or the seeds of mistrust that his reports have sown 
among trust beneficiaries and the public generally. The district 
court's opinion denying recusal declared that Mr. Balaran's 
conduct was unobjectionable and indeed, commendable. Plaintiffs 
have continued to cite Mr. Balaran's reports - and even his 
resignation letter - to the district court. See, e.q., JA 318 & 
n.15 (citing the August 20, 2003 appraisal report in support of 
motion to compel deposition of former Chief Appraiser of BIA's 
Navajo Regional Appraisal Office); JA 317 & n.13 (citing the 
resignation letter in asserting that Mr. Balaran had "uncovered 
powerful evidence of misconduct in the administration of the 
Trust, including without limitation document destruction, fraud, 
abuse, and waste of Trust assets"). 
Mr. Balaran's findings and activities were a prominent 
feature of plaintiffs' presentation in the recent evidentiary 
38 hearing on the security of Interior’s electronic rec0rds.l’ In 
that regard, plaintiffs specifically invoked the conclusions of 
the Interim Report on the NAID investigation. a, e.q., Tr. 
7/20/05 PM, at 18 (“Are you aware that at about this point in 
time, the special mmster had found that the agency - that t h e 
department had withheld salient data from its quarterly reports 
to the Court?”); id. at 21 (“Do you remember the special master 
found that Secretary Norton had withheld information from the 
Eighth Quarterly Report?”); Tr. 7/29/05 PM, at 80 (arguing that 
the government had sought to remove the Special Master because he 
“had just penetrated BLM, he also just filed the report that the 
Secretary had misrepresented things to this Court in the eighth 
quarterly report”). Plaintiffs’ counsel likewise quoted at 
length from Mr. Balaran‘s resignation letter at the hearing. See 
- id. at 19. All of Mr. Balaran‘s reports are posted for public 
consumption on the website maintained by plaintiffs’ counsel.11 
The disqualification statute assigns to the judiciary the 
task of fashioning the remedies that will best serve the 
statute’s purposes. See United States v. Microsoft Corp., 253 
lo See, e.cr., Tr. 5/12/05 PM, at 10-18, 32-33; Tr. 5/13/05 
AM, at 11-14, 22-23; Tr. 5/13/05 PM, at 6-13; Tr. 5/20/05 PM, at 
61, 65; Tr. 5/23/05 PM, at 58-59; Tr. 5/25/05 PM, at 9-10; Tr. 
5/30/05 AM, at 84-90; Tr. 6/6/05 PM, at 82-83; Tr. 6/9/05 AM, at 
22-23; Tr. 6/9/05 PM, at 9-10; Tr. 6/10/05 AM, at 30-33, 71-72, 
81; Tr. 6/14/05 PM, at 86-92; Tr. 7/18/05 PM, at 9-17; Tr. 
7/19/05 AM, at 89-90; Tr. 7/19/05 PM, at 56, 61-68, 98-109; Tr. 
7/20/05 AM, at 4-33. 
l1 See http://www.indiantrust.com/index.cfm?FuseAction= 
- PDFTvpes.Home&PDFTvpe id=2&IsRecent=l (last visited Aug. 10, 
2005). 
39 F.3d 34, 116 (D.C. Cir. 2001). Prospective disqualification of 
the judicial officer from further participation in the 
proceedings of course is required. See ibid. In determining 
whether the officer's decisions should also be vacated, this 
Court considers "'the risk of injustice to the parties in the 
particular case, the risk that the denial of relief will produce 
injustice in other cases, and the risk of undermining the 
public's confidence in the judicial process.'" Ibid. (quoting 
Lilieberq v. Health Services Acauisition CorD., 486 U.S. 847, 864 
(1988)). 
In In re Brooks, this Court explained that if Special Master 
Balaran should have been recused from the pending individual 
contempt proceedings in this case, "then any work produced 
pursuant to the [contempt referrals] must also be 'recused' - 
that is, suppressed." 383 F.3d at 1044. This Court thus 
proceeded to consider the arguments for disqualification. This 
Court determined that Mr. Balaran should have been disqualified 
from the petitioners' contempt proceedings, and that "[tlherefore 
any reports, recommendations, or other work product Balaran 
prepared pursuant to the September 17 referrals may not be 
submitted to the district court or otherwise disseminated in any 
manner." - Id. at 1046. 
The reasoning of In re Brooks applies here with equal force. 
As we have shown, Mr. Balaran's retention of NAID Vice President 
Mike Smith to assist in the investigation of NAID's allegations 
of government misconduct required his disqualification as Special 
40 Master. The retention of Mr. Smith revealed Mr. Balaran's bias, 
it did not create it. At a minimum, under In re Brooks, this 
Court should therefore vacate the NAID report issued by Mr. 
Balaran, as well as the additional reports issued by Mr. Balaran 
after he hired Mr. Smith. This Coi~.rt should. also bar any 
prospective reliance on those reports. The NAID report was the 
product of Mr. Balaran's collaboration with Mr. Smith and is 
plainly tainted for that reason. Mr. Balaran should have been 
disqualified in light of h i s retention of Mr. Smith, and his 
subsequent reports thus never should have issued. This petition 
establishes not only the appearance of impropriety, but actual 
bias. The depth of that bias is underscored by Mr. Balaran's 
resignation letter, which deemed the disqualification motion 
"frivolous"; declared it a sham to suppress the results of his 
investigations; and cavalierly charged not only malfeasance but 
corruption. JA 88-90. The work of a biased Special Master 
should not be allowed to infect this litigation indefinitely. 
41 z 
AUGUST 2005 
CONCLUSION 
For the foregoing reasons, Mr. Balaran’s conduct as Special 
Master required his disqualification from this case. This Court 
should issue a mandate which includes, at a minimum, the vacating 
of the Interim- R.eport and the Special Msster’s reports subsequent 
to the hiring of Mr. Smith, and a prohibition against any future 
reliance on those reports. 
Respectfully submitted, 
PETER D. KEISLER 
Assistant Attornev General 
KENNETH L. WAINSTEIN 
United States Attorney 
GREGORY G. KATSAS 
Deputv Assistant Attornev General 
ROBERT E. KOPP 
MARK B. STERN 
THOMAS M. BONDY 
ALISA B. KLEIN 
MARK R. FREEMAN ‘ 
Civil Division, Room 7531 
Department of Justice 
950 Pennsvlvania Ave., N.W. 
Washinston, D.C. 20530-0001 
42 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) (7) (c) 
OF THE FEDERAL RULES OF APPELLATE PROCEDURE 
I hereby certify pursuant to Fed. R. App. P. 32(a) (7) (C) 
that the foregoing brief contains 9,713 words, according to the 
count of Core1 Wordperfect 9. 
,- 
ALISA B. KLEIN (202) 785-4166 
(404) 815-6450 
CERTIFICATE OF SERVICE 
I hereby certify that on this 10th day of August, 2005, I 
caused copies of the foregoing brief to be sent to the Court and 
to 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 
Douglas B. Huron 
Heller, Huron, Chertkof, Lerner, Simon & Salsman 
1730 M Street, NW 
Suite 412 
Washington, D.C. 20036 
(202) 293-8090 
Keith M. Harper 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
G. William Austin 
Kilpatrick Stockton 
607 14th Street, N.W., Suite 900 
Washington, D.C. 20005 
(202) 508-5800 
and to the following by federal express, overnight mail: 
Elliott H. Levitas 
Law Office of Elliott H. Levitas 
1100 Peachtree Street 
Suite 2800 
Atlanta, GA 30309-4530 
and to the following by regular, first-class mail: 
Dennis Marc Gingold 
607 14th Street, N.W. 
Washington, D.C. 20005 Earl O l d Person (pro se) 
Blackfeet Tribe 
P . O . Box 850 
Browning, MT 59417 
,- 
ALISA B. KLEIN ADDENDUM STAT-"-TOEy pEO-"-i s iO-N-s : 
2 8 U . S . C . § 4 5 5 . . . . . . . . . . . . . . . . . . . . . la 
INDEX 
Pacre 28 U . S . C . § 455 provides: 
5 455. Disqualification of justice, judge, or magistrate judge 
(a) Any justice, judge, or magistrate jiidcp of t h e United States shi!! disqua!if;l himself in ~ n y 
proceeding in which his impartiality might reasonably be questioned. 
(bj He shaii aim disquaiify himseii in the foiiowing circumstances: 
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of 
disputed evidentiary facts concerning the proceeding; 
( 2 ) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with 
whom he previously practiced law served during such association as a lawyer concerning the 
matter, or the judge or such lawyer has been a material witness concerning it; 
(3) Where he has served in governmental employment and in such capacity participated as 
counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning 
the merits of the particular case in controversy; 
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his 
household, has a financial interest in the subject matter in controversy or in a party to the 
proceeding, or any other interest that could be substantially affected by the outcome of the 
proceeding ; 
( 5 ) He or his spouse, or a person within the third degree of relationship to either of them, or the 
spouse of such a person: 
(i) Is a party to the proceeding, or an officer, director, or trustee of a party; 
(ii) Is acting as a lawyer in the proceeding; 
(iii) Is known by the judge t o have an interest that could be substantially affected by the 
outcome of the proceeding; 
(iv) Is to the judge's knowledge likely to be a material witness in the proceeding. 
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a 
reasonable effort to inform himself about the personal financial interests of his spouse and minor 
children residing in his household. 
(d) For the purposes of this section the following words or phrases shall have the meaning indicated: 
(1) "proceeding" includes pretrial, trial, appellate review, or other stages of litigation; 
(2) the degree of relationship is calculated according t o the civil law system; 
(3) "fiduciary" includes such relationships as executor, administrator, trustee, and guardian; 
(4) "financial interest" means ownership of a legal or equitable interest, however small, or a 
relationship as director, adviser, or other active participant in the affairs of a party, except that: 
(i) Ownership in a mutual or common investment fund that holds securities is not a "financial 
interest" in such securities unless the judge participates in the management of the fund; 
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a 
"financial interest" in securities held by the organization; 
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a 
mutual savings association, or a similar proprietary interest, is a "financial interest" in the 
organization only jf the outcome of the proceeding could substantially affect the value of the 
interest ; 
(iv) Ownership of government securities is a "financial interest" in the issuer only if the outcome 
of the proceeding could substantially affect the value of the securities. 
- la - (e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of 
any ground for disqualification enumerated in subsection (b). Where the ground for disqualification 
arises only under subsection (a), waiver may be accepted provided i t is preceded by a full disclosure 
on the record of the basis for disqualification. 
(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, 
or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial 
judicial time has been devoted t o the matter, because of the appearance or discovery, after the 
matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse 
or minor child residing in his or her household, has a financial interest in a party (other than an 
interest that could be substantially affected by the outcome), disqualification is not required if the 
justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, 
divests himself or herself of the interest that provides the grounds for the disqualification. 
- 2a -