51 (!:?_12; UNITED STATES DISTRICT COl JR1 .... -'' _; L ) . FOP. THE DISTRICT OF COLUMBiA I_, ,/L,; I I ! ;._ i i?_ ELOUISE PEPION COBELL, et al., Plaintiflk, Civil Action No 96 1285 (RCL) v. (Special Master Alan L. Balaran) GALE A. NORTON, ct aL, Defendants. REI'LY MEMORANDUM IN SUPPORT OF TIlE GOVERNMENT'S MOTION TO DISMISS PLAINTIFFS' MARCH 20, 2002 MOTION FOR ORDER TO SHOW CAUSE WHY INTERIOR DEFENDANTS AND TIIEIR EMPLOYEES AND COUNSEl, SIIOULD NOT BE HELD IN CONTEMPT IN CONNECTION WITH THE OVERWRITING OF BACKUP TAPES, AND "BILLS OF PARTICULARS" FILED BY PLAINTIFFS IN SUPPORT OF SUCH MOTION On January 6, 2003, the gnvernment moved to dismiss the "Bills of Particulars" filed by plaintiffs against defendants Gale Norton and Neal McCaleb _ and the seven non party respondents (collectively referred to as the "Named Individuals") in their official capacities for failure by the Department of the Interior's Office of Solicitor to preserve certain backup e-mail tapes. Plaintifl_' Bills of Particulars claimed that the Solicitor's backup e mail tapes were federal records and apparently attempted to allege that the Named Individuals committed civil or t Neal McCaleb has resigned his position as Assistant Secretary of the interior, ltowever, Plaintiffs' Bill of Particulars named Mr. McCaleb only in his official capacity as Assistant Secretary and his successor has been automatically substituted. Federal Rule of Civil Procedure 25(d)(1). Since all of thc other briefs referrcd to Mr. McCalcb, lot consistency, this reply brief will identily the defendants who are subject to thc Bills of Particulars solely in their official capacity as Gale Norton and Neal McCaleb. criminal contempt, or committed fraud on thc court in connection with the ovcrwfiting of Office of the Solicitor's backup e-mail tapes. The memorandum filed by the government in suppor[ of its lnotion to dismiss (the "Government Mcmorandum") contemted that: The Bills failed to allege essenthd elements of civiI contempt, criminal c{)ntempt under 18 U.S.C. § 401(3), or fraud on the court. Sovereign immunity precluded the imposition of civil monetary penalties or criminal sanctions itl ally lbrm against the Named hldividuals ill their official capacity. Plaintiffs' filings did not comply with directives of the Special Master2 and the Court 3 that Bills of Particulars state with specificity the conduct which allegedly constituted thc contempt charged. Plaintiffs had not presented a primafiwie case of contempt against any of the Named Individuals, either in an official or in a personal capacity, and had not presented evklentiary support lbr their charges that any of the Named Individuals destroyed federal records or covered up the destmcfion of federal records, The Bills violated thc civility provisions of the Revised Procedures Menloranduln. Plaintiffs' consolidated opposition to the motions by the government and the Named Individuals to dislniss thc Bills of Particulars ("Plaintiffs' Opposition"), filed February 19, 2003 is filled with the namecalfing and adolescent invective which are the unfortunate halhnarks of 2 Directing that plaintiffs subnfit bills of particulars which "articulate with specificity whether the conduct alleged against each of the Named individuals WalTants the imposifion of civil sanctions, criminal sanctions mid/or constitutes a fi'aud on the court." Cobell v. Norton, Civ. Action No. 96-1285(RCL), Memorandum of November 4, 2002 From Special Master Alan L. Balarml Regarding Revised Procedures and Schedule for Investigation Into Pbinfiffs' Motions for Orders to Show Cause (the "Revised Procedures Memorandum") at 2. 3 Directing plaintiffs to state "individual defendant by individual defendant" specific contempt charges and evidence supporting those charges. £'obell v. Norton, Civ. Action No. 96_ 1285(RCL), Transcript of March 15, 2002 Status Hearing, at 21:10-14 ("3/15/02 Tr."). 2- plaintiffs' memormlda. 4 PlaintilI§ Opposition, however, does not even attempt to address most of the substantive arguments presented by the govenmlent in support of its motiol_ to dismiss and similar arguments presented by the Named Individuals. Most strikingly, Plaintiflk' Opposition does not contest the government's argument that the Bills of Pariiculars do not allege essential elements of civil contempt, criminal contempt, or fraud on the court. The government argued that violation of a court older is ali essential element of both civil contempt and criminal contempt. Government Memormldum at 11-I2, 15. Plaintiffs' Opposition does not disagree. Plaintiffs' Opposition also docs not challenge the govermnent's statement that "the overwlSting of tfie backup tapes did not violate any court order, and plaintiffs no ]onger contend otherwise." Government Memorandum at 24. Since the government and plaintiffs agree thai violation of a specific court order is a prerequisite to both civil mad criminal contempt, and since plaintiffs have not shown that a Named individual violated rely court order in regards to the backup e-mail tapes, the Bills of Particulars must bc dismissed to the extent that they request orders to show cause why Named Individuals should not be held in contempt. The Bills of Parfieulars apparently also attempted to allege that Named Individuals Brooks, Findlay and Perlmutter had committed fraud on the court. The government pointed out that in order to support a claim for fraud on the court, plaintiffs must initially show, by clear and convincing evidence, that (1) a Named Individual committed a wrongful act directed to the judicial machinery itself, (2) the Named Individual acted with intent to deceive or intent to defraud the court, and (3) the wrongfid act prejudiced plaintillk in prescnting their case or affected a ruling by the court. Government Memorm_dum at 18 19. Plaintiffk' Opposition does not take issue with the 4 Despite the explicit directive of the Special Master that the respondents be referred to as "Named Individuals," plaintiffs call the respondents "Mal£casors.' Plaintiffs' insistence on continuing their practice of personal attacks needs to be farther addressed by the Special Master. government's statement of tim elements of a claim of fraud on the court. Thc goverrm_ent also demonstrated at length that the Bills oPP_iculars did not allege conduct on the part of Ms. Perlmutter or Messrs. Brooks and Findlay meeting any of the elements of a fraud on thc court. Government Memorandum at 28-40. Plaintiffs' Opposition still fails even to attempt to show that the conduct met the elements of frmtd on the court and still fails lo specify how any Nmned Individual's actions evidence an intent to deceive or defraud the court. Consequently, any claims that a Named Individual defrauded the court must also be dismissed, s PhdntitTs Opposition docs state, over and over again, that thc overwriting of thc c-mail backup tapes destroyed "federal records, "trust records," or "official records." But simply repeating a false statement does not make the statement tree - it is just as false the hundredth time it is stated as it is the first time. And plaintiffs' endlessly repeated assertion that the backup tapes were "federal records" is Indccd false. As the government pointed out in detail, Government Memorandum at 20-22, under the Federal Records Act, General Records Schedule 20 and other regulations implementing Ihe Federal Records Act, and Department of the Interior policy, e-mails and other data on Solicitor's Office backup tapes were not "fedcral records." E mails that were "federal records '_ were to be printed out and maintained in paper form. The printed out e-mails were the "federal records" and "ol'ficial records" that were to be preserved. The Department was not required to maintain the backup tapes, for purposes of fulfilling its obligations to retain "federal records." To the contrary, General Records Schedule 20 provides _(br deletion of e-mail 5 Moreover, although the matter is not completely cie:e, as is typical with plaintiffs' pleadings, plaintiffs appear to have abtmdoned claims that any Named Individual committed fraud on the court. Plaintifl_ now appear to be requesting civil and crinfinal contempt trials for the non- party Named individuals and civil contempt trials for the Named Individuals who are defendants. Phdntiffs' Opposition at 11. Plainfiffs' Opposition does not even request a finding that Named Individuals comnfitted fraud on thc court, let alone provide any facts that could justify such a finding. -4 _ records from thc c-mail system after they have been copied into a paper or other rccordkeeping system, and 36 C.F.R. § 1234.24(c) provides that backup tapes arc not to be used for recordkeeping purposes. See Govermnent Memorandum at 21.6 Plaintiffs do not attempt to address the government's discussion why the backup tapes are not federal records. Indeed, the plaintiffs do not even mention General Records Schedule 20. Instead, plaintifl_ simply assume that the backup tapes are federal records. The plaintiffs' limdamenta] assumption is false. The government's argument is therefore um'efilted. Plaintifl_ also argue that they are not botmd by thc directives of the Special Master and of the Courl to specify the conduct which allegedly constitutcd thc contcmpt or fraud on the court charged because they m'e really cringing constructive fraud against fiduciaries and therefore necd not comply with the specificity requirements of Federal Rule of Civil Procedure 9(b). Plaintiffs' Opposition at 9-10. Whether or not plaintiffs arc required to comply with Rule 9(b), they were required to comply with the directions of the Court and the Special Master which tohl plaintiffs what they needed to set forlh in Bills of Particulars. The Bills of Particulars do not comply with the Court's and the Special Master's directives, and (herefore musl be dismissed. Moreover, the constructive fraud doctrine as set forth in the case cited by plainfill§ (Plaintiffs' Opposition at 10), Rosalr,s v. A T& T Information Systems, Inc., 702 F. S upp. 1489, 1498 (D. Colo. 1988), is only relevant in a suit by a beneficiary against a fiduciary for breach of a fiduciary duty. The doctrine has no application to this or ,any other contempt procccding. Plaintilfs are not asking in the _' Plaintiffs' Opposition once again cites, at 6 n.8, Ibc provision in the Department of the hltcrior's Manual that official records are to remain in the custody of the Department until there is official authorization for disposal. Leaving aside that data on the backup tapes were not official records, Department employees were officially authorized to delete e-mails which constituted federal records from Iheir system after the e-mails were printed out, and the Archivist officially authorized the Department to destroy data on backup tapes. Governmcnt Mcmorandum at 21-22. - 5 - contempt proceedings lhr a determination that the Named Individuals violated a fiduciary dtuy owed to plaintiffi;. ? Rather, plaintiffs arc asking for findings of contempt or bindings of fraud on the court, for alleged violations of duties owed to the Court. Plaintiffs now assert that the Bills of Particulars were filed against former government officials only in their personal capacltics, Plaintiffs' Opposition at 5, n.6, ,mid request contempt trials against Named Individuals Schiller, Simon, Cohen and Perlmutter solely in thcir pcrsonal capacities. Id. at 1 I. fhe cunent assertion of who is and who is not charged In his or hcr official capacity is yet another change in theory by plaintiffs, continuing a pattern the government noted violated the due process rights of the Named Individuals. Government Memorandum at 5-8. Plaintiffs' current position appears to be an opportunistic attempt to take advantage of thc fact that some Named Individuals and the government called their briefiq motions to dismiss crud others used different titles. However, pbinti £1_s should be bound by their current representation that the Bills of Particulars were not filed against Named lndividuaIs Schi['l'er, Simon, Cohen and Perlmutter in their official capacities. An order should be entered granting as unopposed the govcrnment's motions to dismiss the Bills of Particulars against Named Individuals Schiller, Simon, Cohen ,and Perhnutter in their official capacities. Moreover, the Bills of Particulars against the former government officials in their personal capacities should be dismissed for the substantive reasons stated in the Govel_llent's Memorandum ,and the briefs filed by the Named Individuals. The United States has demonstrated that the Bills of Particulars against the remaining Named 7 Ifplaintifl_ arc requesting contempt findings for breach of a fiduciary duty, they have failed to show that any Named Individuals in a personal capacity has any fiduciary duties to phfintiffs, that overwriting of the backup e mail tapes constituted a breach ora fiduciary duty, or that contempt is a rcmcdy l_)r breach ora fiduciary duty. The constructive fi'aud claim in Rosales was dismissed for failure to allege sufficient facts to support a claim that defendmlt's alleged actions breached a fiduciary duty. 702 F. Supp. at 1499. - 6- hxlividuals, Brooks, Findlay ;hid Blackwell, are without merit and must be dismissed, s See Government's Menlorandum at 28-40, ,'md the Government's Response to Plaintittk' Bill of Particulars mid Supplemental Memorandum in Support of Plaintiffs' Motion lhr an Order to Show Cause Why Edith Blackwell Should Not Be Held in Contempt in Connection with the Overwriting of Backup Tapes filed Aug. 12, 2002. All of the Bills of Particulars are spurious and fatally dcllzctive, and they should all be dismissed, regardless of how Named Individuals entitled their opposition memormlda. hi the same opportunistic spirit, plaintiffs assert that the gnvemment's motion to dismiss Neal McCaleb ill his official capacity shoukl be denied, since he has resigned and the govcmment has not refiled the motion in tile name of his successor. Plathtifi_' Opposition at 5. The govermnent could use the stone argument against the plaintiffs, since they did not refile the Bill of Particulars against Mr. McCaleb's successor. The government will not do so, because plaintiffs' argnmcnt has no merit. Federal Rule of Civil Procedure 25(d)(1 ) provides that when public officer who is a party in his official capacity resigns, his successor is automatically substituted. The Rule also provides that "la]ny misnomer not aflbcting thc substantial rights of the parties shall be disregarded." The motion to dismiss showed that the Bill of Particuhtrs was insufficient to proceed against the government, and the motion is no less valid now than it was when the motion was filed. CONCLUSIOI_ PlaintJftk' Opposition is thc Iatcst of many spurious attempts by plaintill_ over a two and a half period to develop some justification for imposing sanctions, in addition to thc attorney's fees s ph'dntiffs' Opposition does not contest the government's m'gument that the docffinc of sovereign immunity precludes imposition of civil monetary pcnalties or criminal sanctions against theUnited States. Government's Memorandum at 15-18. recommended in the Special Master's July 27, 200i Ordcr and approved by the Court on March 29, 2002, 0or the overwriting of Solicitor's Office backup e-mail tapes. These cllbrts have wasted substantial resources, have unfairly slandered the Named Individuals, and have violated their due process rights. Calling the Plaintift]' Opposition fceble would bc unduly complimentaw. It is lime to bring down the curtain on this sideshow. The motions to dismiss should be granted. Respectfillly submitted, ROBERT D. McCALLIJM, JR. Assistant Attorney General STUART E. SCHWFER Deputy Assistant Attorney General MICIIAEL F. HERTZ Director Dodge-_W-eils Senior Trial Counscl D.C. Bar No. 425194 Tracy L. Ililmer D.C. Bar No. 421210 Trial Attorney Commercial l,itigation Branch Civil Division P.O. Box 261 Ben Franklin Station Washington, D.C. 20044 (202) 307-0474 DATED: March 5, 2003 -8- CERTIFICATE OF SERVICE I declare undcr pcnalty of perjury that, on March 5, 2003 I served the foregoing Reply Memorandum of the Government's Motion to Dismiss Plaintiffs' March 20, 2002 Motion for Order to Show Cause WIzy Interior Defendants and Their Employees and £_unsel Should Not be Ileld ln Contempt in Connection with the Ovet_vriting of Backup tapes, and "Bills of Particulars" Filed by Plainti_. in Support of Such Motion upon: By lhcsimile, pursuant to written agrccment: By first-class mail, postage prepaid, and/or by facsimile pursuant to written agreement: Keith Harper, Esq. Native American Rights Fund Amy Berman Jackson, Esq. 1712 N Street, N.W. Trout & Richards Washington, D.C. 20036-2976 1100 Connecticut Avenue, N.W. (202) 822-0068 Suite 730 Counsel for Plaintiff_' Washington, D.C. 20036 By Email to: abj(O_troutrJchards.com Dermis M Gingold, Esq. Counsel for Edith Blockwell Mark Kester Brown, Esq. 1275 Pennsylvania Avenue, N.W. William H. Bfiggs, Jr., Esq. Ninth Floor Marc E. Rindner, Esq. Washington, D.C. 20004 Ross, Dixon & Bell (202) 318-2372 2001 K Street, N.W. Counselfor Plainti_ Washington, D.C. 20006-1040 By Email to: bbriggsC_,rdblaw.com and by U.S. Mail upon: By Email to: mrindner_rdblaw.com Counsel fi_r Phillip Brook_' Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 B. Michael Rauh, Esq. Atlanta, GA 30309-4530 Julie Campbell, Esq. Counsel for Plaintiffs Manatt, Phelps & Phillips, LLP 1501 M Street, N.W. Copy by Facsimile and U.S. Mail upon: Suite 700 Washington, D.C. 20005 Joseph S. Kie ffer, Ill, Esq. By Email to: mrauh_nanatt.eom Special Master Monitor By Email to: jcampbell_manatt, com 420 7 th Street, N.W. Counsel for ]Veal Mc'Caleb Apartment 705 Washington, D.C. 20004 William Gardner, Esq. (202) 478-1958 Morgan, Lewis & Bockius 1111 Pennsylvania Avenue, N.W. Washington, D.C. 20004 By Fax: 202-739-3001 Counsel for Willa Perlmutter -1- Robert Luskin, Esq. Patton Boggs 2550 M St., Suite 500 Washington, D.C. 20037-1350 By Email to: RLuskin(_PattollBoggs.com Counsel for Edward Cohen, Bruce Babbitt and John Leshy Herbert Fenster, Esq. Jane Ann Neiswendcr, Esq. Daniel G. Jarcho, Esq. McKemla, Long & Aldridge, LLP 370 Seventccnth Street, Suite 4800 Denver, Colorado 80202 By Email to: hfenster_mckennalong.com By Email to: jneiswenderC_mckermalong.com By Email to: djarchoCCmckcnnalong.com Counsel for Gale Norton Jeffrey D. Robinson, Esq. Dwight Bostwick, Esq. Melissa McNiven, Esq. Baach, Robinson & Lewis One Thomas Circle, Suite 200 Washington, D.C. 20005 By Email to: jeffrey.robinson@baachrobinson.com By Email to: dwightbostwichC_baachr obinson.com By Email to: nmlissa.mcniven(aCb a achrobinson.com Counsel for Lois SchiJfer and Anne Shieldx Hamilton P. Fox m, Esq. Kathleen M. Devereaux, Esq. Gregory S. Smith, Esq. Sutherland, Asbill & Brennan LLP 1275 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2415 By Fax: 202-637-3593 Counsel for Charles Findlay Eugene R. Fidell, Esq. Matthew S. Freedus, Esq. Feldesman, Tucker, Leifur, Fidell & Bank LLP 2001 L Street, N.W., 2ndFloor __ _._A4ff*_ Washington, D.C. 20036 _ .,., By Email to: efidell_feldesmantucker.com By Email to: mfreedus@feldesmamucker.com l_evin P. l_ngstan f Counsel for James Simon -2-