<< COB0000001 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ELOUISE PEPION COBELL ~	)
	)	No. 1:96CV01285
Plaintiffs,	)	(Judge Lamberth)
v.	)
	)
GALE A. NORTON, Secretaiy of	)
the Interior, ~ al	)
Defendants.	)
INTERIOR DEFENDANTS' MOTION FOR ADJUSTMENT OF THE
JUNE 2002 COMPENSATION REQUEST OF THE COURT MONITOR
	The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior
Defendants") respectfully move for the adjustment of the Court Monitor's compensation request,
which seeks the sum of $34,202.33 for his professional fees and expenses from June 1 through
June 30.
	Interior Defendants respectfully submit that adjustment to the compensation request is
necessary because it is not reasonable or proper for the following reasons: (1) the request fails to
provide sufficiently detailed information about the work performed; and (2) charges on the
invoice reflect activities beyond the scope of the Court Monitor's appointment orders. Interior
Defendants further object to the compensation request because its lack of specificity precludes
them from being able to fully assess or object to the Court Monitor's fees.
	Therefore, Interior Defendants respectfully move this Court to direct the Court Monitor to
revise his June 2002 invoice to include sufficiently detailed information about his work and to
remove any charges for activities beyond the scope of his appointment orders. In addition,
Interior Defendants request an opportunity to review and object to the Court Monitor's revised
<< COB0000002 >>
June 2002 invoice. Counsel for Interior Defendants conferred with counsel for Plaintiffs about
this motion, and counsel for Plaintiffs stated that Plaintiffs oppose this motion.
Dated: July 17, 2002	Respectfully submitted,
ROBERT D. MeCALLUM, JR.
Assistant Attorney General
STUART E. SCHIFFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOHN
Director
Deputy Director
JOHN T. STEMPLEWICZ
Senior Trial Counsel
D.C. Bar No. 261495
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
<< COB0000003 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ELOUISE PEPION COBELL et al.,	)
		)	No. l:96CV01285
	Plaintiffs,	)	(Judge Lamberth)
	v.	)
		)
GALE A. NORTON, Secretary of	)
the Interior et al	)
	Defendants.	)
_______________________________________________________________________)
INTERIOR DEFENDANTS' MEMORANDUM IN SUPPORT OF
MOTION FOR ADJUSTMENT OF THE
JUNE 2002 COMPENSATION REOUEST OF THE COURT MONITOR
	This Court issued an Order, dated July 2, 2002, directing the Department of the Interior to
pay the Court Monitor the sum of $34,202.33 to compensate him for his professional fees and
expenses from June 1 through June 30. In the Order, the Court noted that it reviewed the
compensation request and found it to be reasonable. However, the Court also provided that
"[a]ny requests for adjustments to this compensation request must be received by this Court
within ten days from the date of this Order." Order, July 2, 2002 at 1.
	The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior
Defendants") respectfully move this Court for adjustment of the Court Monitor's compensation
request on the following grounds: (1) it is not reasonable or proper because it fails to provide
sufficiently detailed information about the work performed and instead provides vague
descriptions ~vhich neglect to explain the subject matter addressed by such work; and (2) it is not
reasonable or proper because certain charges reflect activities beyond the scope of the Court
Monitor's appointment orders. Interior Defendants further object to the compensation request
<< COB0000004 >>
because its vague descriptions constrain the Interior Defendants' ability to fully assess or object
to the Court Monitor's fees.
	Thus, the Interior Defendants respectfully request that this Court direct the Court Monitor
to revise his invoice to include sufficiently detailed information about his work and to remove
charges for activities beyond the scope of his appointment orders. In addition, the Interior
Defendants seek an opportunity to review and object to the Court Monitor's revised June 2002
invoice.
ARGUMENT
I.	The Compensation Request Is Not Reasonable Or Proper Because It Fails To
Provide Sufficiently Detailed Information About The Work Performed And
Such Vague Descriptions Constrain Interior Defendants' Ability To
Adequately Assess Or Object To The Court Monitor's Fees.
	The Court Monitor's compensation request fails to provide sufficiently detailed
information about the work he has performed and, therefore, is improper and unreasonable. In
commenting upon the United States Supreme Court's grant of fees and expenses to a Special
Master, Justice Blackmun noted that:
fees and expenses charged by a Special Master, when allowed by this Court, represent our
assurance to thc parties that the charges arc reasonable and proper. A party's consent to
the allowance of fees and expenses does not absolve this Court of its duty to make that
determination.
Kansas v. Colorado, 498 U.S. 933, 934 (1990) (Justice Blackmun commenting on the Court's
order granting motion of Special Master for interim fees and expenses, but reserving his formal
dissent). Similarly, in Texas v. New Mexico, 475 U.S. 1004 (1986), Chief Justice Burger, joined
by Justice Blackmun and Justice Rehnquist, dissented from the Court's grant of interim fees and
2
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expenses to a Special Master on the ground that the information provided in support of the fee
request was lacking, stating:
I am unwilling to act without being provided with at least as much information as private
clients routinely receive from their privately retained counsel. . . I would defer action on
the application for interim fees until adequate information is provided. Without such
data, this Court cannot protect the legitimate public interests implicated.
Id. at 10051 (finding that the Special Master omitted any information concerning the experience
levels of the four attorneys working with him and information regarding the specific hourly rates
of the Special Master and each of the four attorneys).
	Analogously, with respect to attorney fee applications, this Circuit requires that such
applications contain sufficiently detailed information about the hours logged and the work
performed, as "it is insufficient to provide the District Court with very broad summaries."
National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 (D.C. Cir.
1982) (per curiam). Although the fee application need not present the "exact number of minutes
spent nor the precise activity to which each hour was devoted nor the specific attainments of each
attorney," "the application must be sufficiently detailed to permit the District Court to make an
independent determination whether or not the hours claimed are justified." Id. (advising that
"[t]he better practice is to prepare detailed summaries based on contemporaneous time records")
(quoting in part Cot'eland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)).
~' Chief Justice Burger, quoting from his dissent in Louisiana v. Mississippi, 466 U.S. 921
(1984), reiterated that "[a] Special Master of this Court is a surrogate of the Court and in that
sense the service performed is an important public duty of high order in much the same way as is
serving in the Judiciary. I do not suggest that Special Masters should serve without
compensation, as for example, Senior Federal Judges have done for a number of years in such
cases, but I believe the public service aspect of the appointment is a factor that is not to be wholly
ignored in determining the reasonableness of fees charged in a case like this." Texas, 475 U.S. at
1005 (dissent).
3
<< COB0000006 >>
	The Court Monitor's June 2002 invoice fails to satisfy this standard because it provides
only vague descriptions of his activities which prohibit any appraisal of the reasonableness of the
requested fees. For example, throughout the invoice, the Court Monitor itemizes fees in very
broad and vague terms, including: "Review documents," "Review pleadings," "Review
correspondence," "Prepare for DOT officials interviews," "Prepare for and meet with DOT
officials," "Prepare for and meet with Cowl," "Telcon with third parties and DOT officials,"
"Prepare for DOT interviews," "Telcon with DOT officials," "Review documents and draft
summary report," "Prepare for and meet with third parties," "Telcons with third parties," "Telcon
with Court official," "Draft summary report for Court," "Review trial transcripts," "Redraft
summary report for Court," "Review documents and court opinions," "Review documents,
opinions, and pleadings," "Draft memorandum," "Redraft memorandum," "Review court file,"
and "Prepare memorandum to Court." See Letter and Invoice from Joseph S. Kieffer to Hon.
Royce C. Lamberth, dated July 2, 2002, attached to Order, July 2, 2002 ("Kieffer Invoice") at 1-
6.	These ambiguous descriptions lack any notation of the subject matter under the Court
Monitor's consideration or the areas or aspects of trust reform under his review.
	Moreover, Interior Defendants cannot not fully assess or object to the reasonableness of
the Court Monitor's charges for these activities from such vague descriptions as: review
documents, review pleadings, review trial transcripts, review correspondence, telcon with DOI
officials, and review court file. See Kieffer Invoice at 1 -6. The invoice fails to identify the
topics, subject matters, or aspects of trust reform being monitored by the Court Monitor and the
participants in such discussions and meetings. For example, the invoice includes charges for
"Telcons with third parties" and "prepar[ing] for and meet[ing] with third parties." ~
4
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(entries dated June 7, 10, 11, 17, 19). Such descriptions are not only inadequate to permit a
determination of the reasonableness of the fees, but suggest that the charges are not within the
scope of the Court Monitor's appointment orders because contact with "third parties" cannot be
construed as "monitor[ing] and review[ingj . . . [D]efendants' trust reform activities." Order,
April 15, 2002 at 2; see Section II, infra. Detailed descriptions of the Court Monitor's work are
necessary to ensure that the work performed is properly within the scope of the Court Monitor's
authority, especially in light of Interior Defendants' recent claim that the Court Monitor is
intruding improperly into Executive Branch functions (thereby exceeding both constitutional and
statutory constraints on his jurisdiction). S~ Dcfs.' Mot. To Revoke The Appointment Of
Joseph S. Kieffer, III, And To Clarify The Role And Authority Of A Court Monitor, filed June
14, 2002.
	The Court Monitor's June invoice stands in stark contrast to the invoices submitted by the
Special Master, Alan L. Balaran. ~ Order, May 3, 2002 at 1 (ordering the defendants to pay
the Law Office of Alan Balaran the sum of $55,770.25 no later than May 31, 2002); April 2002
Report of the Special Master (Attachment 6 - May 1, 2002, Invoice #2 for $55,770.25 ); Order,
July 2, 2002 at I (ordering the defendants pay the Law Office of Alan Balaran the sum of
$43,438.65 no later than July 31, 2002); June 2002 Report of the Special Master (Attachment 3 -
July 1, 2002 Invoice #7 for $43,438.65). Throughout these invoices, the subject matters and
issues under the Special Master's review are consistently described, including the topics
discussed in meetings and correspondence and subject matters being addressed through
documents reviews and interviews. See. e.g., June 2002 Report of the Special Master,
Attachment 3 ("Draft letter to J. Warshawsky (DOJ) regarding CLO interviews," "Draft letter to
5
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Peter Miller (DOJ) regarding production of Ruffm/Rushing e-mails related to OJiRM security,"
"Conference with Cason et al. regarding status of IT systems and pending requests; Records;
draft memo to file," "Conference with Rob Frazier/IBM reviewing pending requests; outstanding
assessments and reports," "Review CSEAT report and documentation contained in other reports
in preparation for K. Lyons-Burke Deposition," "Conference with J. Christie and T. Wadnum
regarding programmatic changes for Records Program; draft report," "Conference with records
management specialists; records researchers both individually and collectively regarding
problems impacting trust records and OTR programs; draft memo to file listing issues,"
"Conference with OSM employees regarding potential LIM data on systems," "Review Contempt
and Trial Transcripts in preparation for depositions of senior OST officials," "Review Pleadings
regarding Plaintiffs' Motion to Compel Seventh Formal Request for Production," "Review
Plaintiffs' Consolidated Emergency Motion for TRO and P1," "Draft Report regarding OTR
Training.").
	Thus, not only do the descriptions of the work performed by the Court Monitor fail to
include sufficient detail to provide an assurance that the fees charged are reasonable and properly
within the scope of his appointment orders, the lack of specificity precludes the Interior
Defendants from adequately reviewing or objecting to such fees. Accordingly, the Court Monitor
should be directed to revise his June 2002 invoice to provide sufficient detail regarding his work
and the Interior Defendants should be provided an opportunity to review and object to his revised
June 2002 invoice.
6
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II.	The Compensation Request Is Not Reasonable Or Proper Because The Court
Monitor Includes Charges For Activities That Are Beyond The Scope Of His
Appointment Orders.
	To the extent that it is possible to ascertain the activities of the Court Monitor from his
June 2002 invoice, it appears that it includes charges for activities beyond the scope of his
appointment orders. A party should not be required to pay for activities which are not within the
order of reference of a special master or court monitor. See. e.g.. Reed v. Cleveland Bd. of
~, 607 F .2d 737, 748 (6th Cir. 1979) (concluding that defendants should not be required to
pay for 322.5 hours charged by a consultant to the court and the special master because these
hours were spent on activities which were not included in the statement of his appointment).2
	In this matter, the initial appointment order of the Court Monitor directs that "Mr. Kieffer
shall be compensated at a rate of not less than 5250.00/hour for his services and shall be
reimbursed for all expenses incurred in connection with his appointment." ~ Order, April 16,
2001 at ¶ 6. This provision regarding the Court Monitor's compensation was not modified by the
Court's subsequent appointment order. See Order, April 15, 2002. The scope of the Court
Monitor's appointment is to "monitor and review all of the Interior [D]efendants' trust reform
activities and file written reports of his findings with the Court," and the reports are to "include a
summary of the defendants' trust reform progress and any other matter Mr. Kieffer deems
pertinent to trust reform" Id see also Order, April 16, 2001 at¶ 2.
	The June 2002 invoice improperly includes charges for activities that are not within the
scope of the Court Monitor's appointmcnt ordcrs. Spcaking engagements are not within the
~' In Reed the coUrt found that the authority to appoint "expert advisors or consultants to the
special master and the court" derived from Federal Rule of Civil Procedure 53 or from the
inherent power of the court. 607 F.2d at 746.
7
<< COB0000010 >>
Court Monitor's role to "monitor and review all of the Interior defendants' trust reform activities
and file written reports of his findings with the Court." Order, April 15, 2002 at 2. The invoice
includes a charge for "prepar[ing] remarks for Special Trustee's Advisory Committee meeting."
This charge should be removed from the Court Monitor's invoice. See Kieffer Invoice (entry
dated June 23: "Prepare remarks for Special Trustee's Advisory Committee meeting"- $125).
	Further, as noted in Section I, sunra, the invoice includes charges for "Telcons with third
parties" and "preparEing] for and meet[ing] with third parties." See Kieffer Invoice (entries dated
June 7, 10, 11, 17, 19). These charges are not properly within the scope of the Court Monitor's
appointment orders because contact with "third parties" cannot be construed as "monitor[ing]
and review[ing] . . [Diefendants' trust reform activities." See Order, April 15, 2002 at 2.
Therefore, these charges should also be removed from the June 2002 invoice.
CONCLUSION
	For the aforementioned reasons, the Interior Defendants respectfully request that this
Court adjust the Court Monitor's June 2002 compensation request by directing him to revise it to
include sufficiently detailed information about his work and to delete all charges for activities
beyond the scope of his appointment orders. Further, Interior Defendants request an opportunity
S
<< COB0000011 >>
to review and object to the Court Monitor's revised June 2002 invoice because the current
invoice is vague and constrains Interior Defcndants' ability to fully review or object to it.
Dated: July 17, 2002	Respectfully submitted,
ROBERT D. McCALLUM, JR.
	Assistant Attorney General
	STUART E. SCHIFFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOHN
	Director	-
j
C>
	SANDRA P. SPOONER
Deputy Director
JOHN T. STEMPLEWICZ
Senior Trial Counsel
D.C. Bar No. 261495
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
9
<< COB0000012 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. 1:96CV01285
)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior, et at,)
)
	Defendants.	)
ORDER
	Upon consideration of the Interior Defendants' Motion For Adjustment Of The Court
Monitor's June 2002 Compensation Request, Plaintiffs' responses thereto, and the entire record
in this case, it is hereby ORDERED that Interior Defendants' motion is GRANTED; and
	IT IS ORDERED that the Court Monitor shall revise Invoice #14 (June 1 - June 30, 2002)
to provide sufficiently detailed infom~ation about the work performed and remove all items and
charges for activities beyond the scope of his appointment orders; and
	IT IS ORDERED that the Court Monitor shall provide the Interior Defendants with a
copy of his revised June 2002 invoice; and
	IT IS ORDERED that the Interior Defendants will have ten (10) days from receipt of the
Court Monitor's revised invoice to submit any objections to such invoice.
SO ORDERED this _____ day of	,2002.
ROYCE C. LAMB ERTH
United States District Judge
<< COB0000013 >>
cc:
Sandra P. Spooner
John T. Stemplewicz
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
Fax (202)514-9163
Dennis M Gingold, Esq.
Mark Brown, Esq.
1275 Pennsylvania Avenue, N.W.
Ninth Floor
Washington, D.C. 20004
Fax (202) 318-2372
Keith Harper, Esq.
Native American Rights Fund
1712 N Street, NW
Washington, D.C. 20036-2976
Fax (202) 822-0068
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Joseph S. Kieffer, [II
Court Monitor
420 - 7th Street, N.W.
Apartment 705
Washington, D.C. 20004
<< COB0000014 >>
CERTIFICATE OF SERVICE
I declare under penalty of perjury that, on July 17, 2002 I served the Foregoing Interior
Defendants 'Motion for Adjustment of the June 2002 Compensation Request of the Court Monitor
and Interior Defendants 'Memorandum in Support of Motton for Adjustment of the June 2002
Compensation Request of the Court Monitor, by facsimile in accordance with their written request
of October31, 2001 upon:
Keith Harper, Esq.		Dennis M Gingold, Esq.
Native American Rights Fund		Mark Kester Brown, Esq.
1712 N Street, N.W.		1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976		Ninth Floor
202-822-0068		Washington, DC. 20004
		202-318-2372
By U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
By Facsimile and U.S. Mail:
Alan L. Balaran, Esq.
Special Master	/
1717 Pennsylvania Avenue, N.W.
12th Floor
Washington, D.C. 20006
(202) 986-8477
Courtesy Copy by Hand Dclivcry:
Joseph S. Kieffer, Ill
Court Monitor
420 - 7th Street, N.W.
Apartment 705
Washington, D.C. 20004