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In re Brooks

September 14, 2004

IN RE: PHILLIP A. BROOKS PETITIONER


On Petitions for Writ of Mandamus (No. 96cv01285)

Before: Ginsburg, Chief Judge, and Henderson and Randolph, Circuit Judges.

The opinion of the court was delivered by: Ginsburg, Chief Judge

Argued March 15, 2004

Before us are five petitions for writs of mandamus filed by 11 current and former officials and employees of the Departments of the Interior (DOI) and of Justice. Each of the petitioners was the subject of an investigation, initiated by the district court, to determine whether that individual should be ordered to show cause why he or she should not be held in contempt for conduct relating to the litigation over the DOI's handling of monies held in trust for individual Indians.

The petitioners originally sought the recusal of District Court Judge Royce Lamberth, Special Master Alan Balaran, and Special Master-Monitor Joseph Kieffer III based upon alleged ex parte communications they made or received in the course of that litigation. Special Master Balaran has since resigned and we ordered Special Master-Monitor Kieffer removed in Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003). The petitioners still seek to recuse Judge Lamberth and to suppress the reports and recommendations written (but not filed with the district court) by Special Master Balaran before he resigned.

We now deny the petition to recuse Judge Lamberth from the pending contempt proceedings because he has stated he did not receive ex parte communications substantively related to those proceedings from either Balaran or Kieffer, and we have no reason to conclude he abused his discretion by refusing to recuse himself. We do, however, vacate Balaran's proposed reports and recommendations relating to the contempt proceedings.

I. Background

The present petitions and the contempt proceedings to which they relate arise from the ongoing litigation over the DOI's mishandling of the "Individual Indian Money" trust accounts created for each Indian having an interest in certain allotted lands. See Cobell, 334 F.3d at 1133. Because the petitioners are not parties to that case, the facts and the procedural history relevant here may be recounted without laying waste the better part of a forest.

In February 1999 the district court held then-Secretary of the Treasury Robert Rubin, then-Secretary of the Interior Bruce Babbitt, and then-Assistant Secretary of the Interior Kevin Gover, in their official capacities, in civil contempt for violating two discovery orders issued in the trust reform litigation. See Cobell v. Babbitt, 37 F. Supp. 2d 6 (D.D.C. 1999). The district court, with the consent of the parties, then appointed Alan Balaran to serve as a special master pursuant to Rule 53 of the Federal Rules of Civil Procedure in order to "oversee the discovery process in this case." In August 1999 the district court additionally authorized Balaran to make "on-site visits to any location where [trust account] Records are maintained" in order to protect such records "from destruction or threatened destruction."

In April 2001 the district court, again with the consent of the parties, appointed Joseph Kieffer to serve for one year as a "court monitor," with a mandate to "monitor and review all of the Interior defendants' trust reform activities and file written reports of his findings with the Court." Kieffer was "permitted to make and receive ex parte communications with all entities necessary and proper to effectuate his duties." By October Kieffer had issued four reports. The reports were "unflattering to the DOI" and "prompted the district court to order Secretary Norton and Assistant Secretary McCaleb ... to `show cause why they should not be held in civil contempt of court in their official capacities,' " Cobell, 334 F.3d at 1135; see also Cobell v. Norton, 226 F. Supp. 2d 1, 19 (D.D.C. 2002) ( Contempt Referrals ).

The order to show cause set out five possible reasons (or "specifications") for holding Norton and McCaleb in contempt: four were based upon Court Monitor Kieffer's reports and addressed the DOI's noncompliance with court orders relating to trust reform; the fifth was based upon a report issued in November 2001 by Special Master Balaran concerning the destruction of email records by officials and employees of the DOI. See Cobell, 334 F.3d at 1135; see also Cobell v. Norton, 237 F. Supp. 2d 71, 76 (D.D.C. 2003) ( Order Denying Recusal ). On September 17, 2002 the district court held both Norton and McCaleb in civil contempt of court upon all five specifications. Contempt Referrals, at 161, rev'd, 334 F.3d at 1145-50 (vacating contempt charge against Norton because specifications either did not support such a charge or were based upon "conduct of her predecessor," and vacating contempt charge against McCaleb because court did not identify any "specific act or omission whatsoever on his part"). At the same time the district court referred to Balaran (1) the plaintiffs' October 2001 "Motion for Order to Show Cause Why Interior Defendants and Their Employees and Counsel Should Not Be Held in Contempt for Violating Court Orders and for Defrauding This Court ...," and (2) their March 2002 "Motion for Order to Show Cause Why Interior Alleged Contemnors and Their Counsel Should Not Be Held in Contempt for Destroying E-mail." See Order Denying Recusal, at 76; see also Contempt Referrals, at 155.

With respect to the first motion, the court instructed Balaran to

develop a complete record with respect to these 37 nonparty individuals [and], upon completing his review of these matters, issue a report and recommendation regarding whether each individual should be ordered to show cause why he or she should not be held in (civil or criminal) contempt of court, or whether other sanctions are appropriate against such individuals.

Contempt Referrals, at 155. With respect to the second motion, the court instructed him to "issue a report and recommendation regarding the issues raised." Id. at 155-56.

Thereafter, 16 of the 37 non-parties named in the September 17 referrals filed motions in the district court to recuse Judge Lamberth, Special Master Balaran, and Special Master-Monitor Kieffer from participating in the contempt proceedings.*fn1 They argued that "although the communications between the Court and its special masters were not improper in the context of the underlying litigation," they were inconsistent with participation in the contempt proceedings because "the Master and the Monitor furnished the Court with extra-judicial knowledge about the current litigation." Order Denying Recusal, at 77-78. In the alternative, the movants sought discovery regarding the substance of the ex parte communications Balaran and Kieffer had with employees and officials of the DOI and with the district judge. The district court denied the motions in their entirety.

In February 2003, 11 of the 16 movants petitioned this court for writs of mandamus providing the same relief.*fn2 Their petitions were held in abeyance while the court decided Cobell, 334 F.3d 1128, in which we concluded, among other things, that Kieffer's appointment as Special ...


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