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) 
ELOUISE PEPION COBELL, &, 1 
1 
Plaintiffs, ) 
) 
V. ) Case No. 1:96CV01285 
) (Judge Lamberth) 
GALE A. NORTON, Secretary of the Interior, a al.,) 
) 
Defendants. 1 
) 
DEFENDANTS’ CONSOLIDATED REPLY IN SUPPORT OF 
(1) MOTION FOR RECONSIDERATION OF MARCH 5,2003 ORDER DIRECTING 
PAYMENT TO SPECIAL MASTER ALAN L. BALARAN; AND 
(2) MOTION FOR RECONSIDERATION OF MARCH 5,2003 ORDER DIRECTING 
PAYMENT TO SPECIAL MASTER-MONITOR JOSEPH S. KIEFFER, 111 
In separate motions filed on March 19,2003, Defendants seek reconsideration of the 
Court’s March 5, 2003 Orders directing payment to the Special Master and the Special Master- 
Monitor (collectively “masters”) in light of an intervening change in controlling law effected by 
Section 132 of the Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, 117 Stat. 
1 1 (Feb. 20,2003). Defendants’ Motion For Reconsideration Of March 5,2003 Order 
Directing Payment To Special Master-Monitor Joseph S. Kieffer, III (Mar. 19, 2003) (“Special 
Master-Monitor Motion”); Defendants’ Motion For Reconsideration Of March 5,2003 Order 
Directing Payment To Special Master Alan L. Balaran (Mar. 19,2003) (“Special Master 
Motion”). Plaintiffs’ Consolidated Opposition to these motions (1) argues that Section 132 of 
the Consolidated Appropriations Resolution should be interpreted to impose a “cap” on total 
compensation rather than a new annual “rate” of compensation; (2) argues that funds This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
appropriated for the Department of the Treasury may be used to compensate Special Master 
Balaran in excess of amounts permitted by Section 132; and (3) asserts that Section 132 is an 
unconstitutional “bill of attainder.” Plaintiffs’ arguments cannot be reconciled with the statute or 
its legislative history, as explained below. 
I. Section 132 Is Best Interpreted To Set A New “Annual Rate” Of Compensation For 
the Special Master and Special Master-Monitor. 
Plaintiffs submit that Section 132 imposes a fiscal-year “cap” rather than a new annuaI 
“rate” on compensation that may be paid to the masters. Defendants acknowledge in their 
moving briefs that a possible interpretation of Section 132 would cap each master’s 
compensation at $285,000 for fiscal year 2003. Special Master-Monitor Motion at 2 n.2; 
Special Master Motion at 2 n.2. However, as noted in the moving briefs, expenditures made 
under the continuing resolutions that preceded the Consolidated Appropriations Resolution 
should count toward such a cap. Matter of: Treasury Withdrawal of Appropriation Warrants 
for Programs Operating Under Continuing Resolution, 62 Comp. Gen. 9, 11 (1982). Under this 
interpretation, compensation paid to each master would exceed the cap in the immediate future, 
as each has already been paid in excess of $220,000 for work performed between October 1, 
2002 and February 28,2003.’ 
Plaintiffs offer no authority to support their interpretation of Section 132, which 
apparently would permit each master to be paid an additional $285,000 for the period February 
’ When the Special Master-Monitor is paid in accordance with the Court’s April 10, 
2003 Order, he will have received in excess of $307,000 for work performed this fiscal year. 
When the Special Master is paid in accordance with the Court’s April 2,2003 Order, he will 
have received just short of $285,000 for work performed this fiscal year. 
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20,2003 through September 30,2003.’ Such an interpretation cannot be reconciled with the 
intent of Congress. In its report on the House appropriationsbill (which contained the provision 
that became Section 132 in the Consolidated AppropriationsResolution), the House Committee 
on Appropriations explained: 
The Committee notes that the Special Master and the Court 
Monitor appointed by the Court to review various aspects of trust 
reform at the Department are receiving compensation for their 
activities that exceed those of the Chief Justice and the Vice 
President of the United States. The Committee believes that, by 
any measure, the current level of compensation is excessive. 
Therefore, given current fiscal and budgetary constraints, the 
Committee has included a general provision that caps the 
Compensation for each of these Court Officers at no more than 200 
percent of the highest Senior Executive Service rate of pay. 
H.R. Rep. No. 107-564, at 90 (2003). The Chief Justice receives an annual salary of $192,600; 
the Vice President of the United States is paid $198,600. Indeed, the masters’ current 
compensation levels exceed that of the President, whose annual salary is $400,000. In light of 
However, passages such as the following in Plaintiffs’ Consolidated Opposition appear 
to concede that amounts paid during the period of the continuing resolutions must count toward 
the cap: 
Indeed, the only authority defendants cite is for a proposal thev do 
not adopt - the more logical and constitutionallypermissible 
interpretation,discussed below, that the compensation limitation is 
a “cap” for the entire fiscal year.” See [Dlefendants’ Kieffer 
Motion for Reconsideration at 2, n.2 (discussingMatter 08 
Treasury Withdrawal of Appropriation Warrantsfor Programs 
Operating Under Continuing Resolution, 62 Comp. Gen. 9, 11 
(1982)). 
Plaintiffs’ Consolidated Opposition at 3 (emphasis in original). The cited Comptroller General 
opinion states that “to the extent possible, obligations incurred or expenditures made under the 
continuing resolution are to be charged against the funds provided by the regular appropriation 
act.” 
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the House Report’s express characterization of current compensation levels as excessive in 
comparison with those of the Chief Justice and Vice President, and its citation to fiscal and 
budgetary constraints, interpreting Section 132 to permit each master to receive over $500,000 in 
compensation this fiscal year seems plainly inconsistent with congressional intent. 
The interpretation Defendants propose in their moving briefs would neither unemploy the 
masters in the foreseeable future nor contravene the intent of Congress. To the contrary, 
Defendants’ interpretation would give effect to the language of the statute, which imposes a 
maximum “annual rate” of compensation. As explained in Defendants’ moving briefs, an annual 
rate of compensation can be converted to hourly, daily, weekly, or biweekly rates for purposes of 
calculating the maximum compensation permitted for a particular period (such as the period at 
issue, February 20,2003 through February 28,2003). Plaintiffs’ argument that an annual rate 
cannot be so converted unless the rate applies to a federal employee, see Plaintiffs’ Consolidated 
Opposition at 8-9, is without merit.3 
Finally, Plaintiffs’ suggestion that Defendants’ interpretation of Section 132 assumes 
implicitly that the masters will work throughout all future periods of this litigation, seePlaintiffs’ 
Consolidated Opposition at 10, is in~orrect.~ The new statutory annual rate is a maximum rate of 
In their moving briefs, Defendants use the calculation in 5 U.S.C. 9 5504(b) to convert 
the maximum annual rate of compensation to a rate applicable to the shorter period of time at 
issue here. While this statute is specifically directed to the pay rates of federal employees, it 
provides a mathematical formula that is universally applicable to convert yearly compensation 
rates to hourly, daily, weekly, or biweekly rates. 
Plaintiffs’ accompanying argument that the Court should impose sanctions on 
Defendants and individuals for the purpose of “compensat[ing] its judicial officers as it sees fit,” 
Plaintiffs’ Consolidated Opposition at 10-11, is outrageous and should not be countenanced by 
the Court. 
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compensation,not a guaranteed rate of compensation;each master will be compensated at the 
appropriate rate for the amount of work he performs. 
11. Funds Appropriated For The Department of the Treasury Cannot Be Used To 
Compensate The Special Master In Excess Of the Statutory Rate. 
Plaintiffs’ contention that Special Master Balaran may be compensated in excess of the 
maximum statutoryrate from finds appropriated for the Department of the Treasury is 
inconsistent with the language of the statute. The Consolidated Appropriations Resolution 
provides: 
None of the fbnds in this or any other Act for the Department of 
the Interior or the Department of Justice can be used to compensate 
the Special Master and the Special Master-Monitor, and all 
variations thereto, appointed by the United States District Court for 
the District of Columbia in the Cobell v. Norton litigation at an 
annual rate that exceeds 200 percent of the highest Senior 
Executive Service rate of pay for the Washington-Baltimore 
locality pay area. 
Consolidated Appropriations Resolution 9 132. The statute restricts all funds appropriated in the 
Consolidated Appropriations Resolution as well as those appropriated in “any other Act for the 
Department of the Interior or the Department of Justice.” Id. In other words, no funds 
appropriated in the Consolidated Appropriations Resolution, whether for the Department of the 
Treasury or any other department, can be used to compensate the masters in excess of the 
statutoryrate. Moreover, if any other Act “for the Department of the Interior or the Department 
of Justice” also provides hnds for the Department of the Treasury, funds appropriated by such an 
Act are similarlyrestricted. 
A further difficulty with Plaintiffs’ argument is that the Court did not - and could not 
consistent with its authority -require the Department of the Treasury to pay the Special Master 
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for overseeing the Department of the Interior’s participation in the discovery process, for 
administering the Department of the Interior’s document productions, for assessing the 
Department of the Interior’s compliance with Court orders, or for exercising any other authority 
with regard to the Department of the Interior. Costs properly charged against one agency’s 
appropriations cannot be taxed against the appropriations of another agency, nor can an agency 
use its appropriations to augment the appropriations of another agency. See 3 1 U.S.C. 5 1301(a) 
(“Appropriations shall be applied only to the objects for which the appropriations were made 
except as otherwise provided by law.”). 
111. The Consolidated Appropriations Resolution Is Not A Bill Of Attainder. 
Plaintiffs’ characterization of Section 132 as an unconstitutional bill of attainder, see 
Plaintiffs’ Consolidated Opposition at 4-6, is absurd. A bill of attainder is “a law that 
legislatively determines guilt and inflicts punishment upon an identifiable individual without 
provision of the protections of a judicial trial.” Nixon v. Administrator of Gen. Servs., 433 US. 
425,468-69 (1977). As Section 132 neither “determines guilt” nor “inflicts punishment” upon 
an identifiable individual, it is not a bill of attainder. 
Whether a statute inflicts a “punishment” under the Bill of Attainder Clause depends on: 
“(1) whether the challenged statute falls within the historical meaning of legislative punishment; 
(2) whether the statute ‘viewed in terms of the type and severity of burdens imposed, reasonably 
can be said to further nonpunitive legislative purposes’; and (3) whether the legislative record 
‘evinces a congressional intent to punish.”’ Selective Sew. SYS.v. Minnesota Pub. Interest 
Research Group, 468 U.S. 841, 852 (1984) (quoting Nixon, 433 U.S. at 473,475-76,478); see 
-also Navegar, Inc. v. United States, 192 F.3d 1050, 1066 (D.C. Cir. 1999); BellSouth Corp. v. 
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Federal Communications Comm’n, 162 F.3d 678,684 (D.C. Cir. 1998). None of these inquiries 
can result in a finding that Section 132 inflicts “punishment” on the masters. 
The “historical meaning of legislative punishment includes a death sentence, 
imprisonment, banishment, confiscation of property and legislative bars to participation by 
individuals and goups in specific employments or professions.” Navem, 192 F.3d at 1066. 
Section 132 simply restricts the use of appropriated funds to compensate the masters at an annual 
rate that exceeds twice the highest Senior Executive Service rate of pay. It does not condemn the 
masters to death, imprisonment, or banishment. It does not confiscate property, as the masters 
have no property interest in any expectation of future payments fi-om the government. cf. 
W m e r v. United States, 573 F.2d 447,454 (7th Cir. 1978) (holding that a tax lien could not 
attach to future wages because such wages were “contingent on. . . continued employment and 
thus did not represent an existing property right”); Baratt v. United States, 585 F.2d 1041, 1048- 
49 (Ct. C1. 1978) (“[Wle know of no case that has held that a federal employee has a property 
interest in a wage formula by which his hture wages will be determined.”). Nor does the statute 
bar anyone from specific employments or professions. Accordingly, Section 132 does not fall 
withn the historical meaning of legislative punishment. 
Moreover, Section 132, “viewed in terms of the type and severity of burdens imposed, 
reasonably can be said to further nonpunitive legislative purposes.” Nixon, 433 U.S. at 475-76. 
The legitimate nonpunitive legislative purposes of the statute are readily apparent in the House 
Report, which, noting that the masters’ current compensation exceeds that of the Chief Justice 
and the Vice President, describes the current level of compensation to the masters as “by any 
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measure ...excessive,” and cites “current fiscal and budgetary constraints” to justify the 
restriction on appropriated funds. H.R. Rep. No. 107-564, at 90 (2003). 
Finally, the legislative record evinces no congressional intent to punish. See Nixon, 433 
U.S. at 478. Nothing in the statute or its legislative history contains the slightest hint that 
Congress intended to punish either the Special Master or the Special Master-Monitor, much less 
the requisite “unmistakable evidence of punitive intent.” Selective Sen. SYs., 468 US. at 855 
n. 15 (finding that legislative statements did not constitute “the unmistakable evidence of punitive 
intent which .. .is required before a Congressional enactment of this kind may be struck down”); 
Navegar, 192 F.3d at 1067 (“The case law instructs that under [the final prong of the Nixon test], 
appellants must show unmistakable evidence of punitive intent.” (internal quotations omitted)); 
BellSouth C o p v. Federal Communications Comm’n, 144 F.3d 58,67 (D.C. Cir. 1998) 
(requiring “‘smoking gun’ evidence of congressional vindictiveness” to justify finding punitive 
intent). The statute and the legislative history “cast no aspersions on [the masters’] personal 
conduct and contain no condemnation of [their] behavior as meriting the infliction of 
punishment.” Nixon, 433 U.S. at 479. Thus, there is no evidence whatsoever that “Congress 
was intent on encroaching on the judicial function of punishing an individual for blameworthy 
offenses.” Id. 
Because Section 132’s restriction on the use of appropriated funds does not fall within the 
historical meaning of legislative punishment, exhibit a purely punitive purpose, or manifest a 
congressional intent to punish the masters, it is not an unconstitutional bill of attainder. See 
Navegar, 192 F.3d at 1068. “[Wlhile the Bill of Attainder Clause serves as an important 
‘bulwark against tyranny,’ . . . it does not do so by limiting Congress to the choice of legislating 
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for the universe, or legislating only benefits, or not legislating at all.” Nixon, 433 U.S. at 471 
(quoting United States v. Brown, 381 US. 437,443 (1965)). 
Conclusion 
For all of the reasons set forth above and in their moving briefs, Defendants respectfully 
request that the Court reconsider its March 5,2003 Orders in light of the intervening change in 
controlling law. 
Dated: April 14,2003 Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOKN 
Director 
Deputy irector 
D.C. Bar No. 261495 
JOHN T. STEMPLEWICZ 
Senior Trial Attorney 
CYNTHIA L. ALEXANDER 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 5 14-7194 
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CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on April 14,2003 I served the foregoing Defendants’ 
Consolidated Reply in Supporr of ( I ) Motionfor Reconsideration of March 5, 2003 Order 
Directing Payment to Special Master Alan L. Balaran; and (2) Motion for Reconsideration of 
March 5, 2003 Order Directing Payment to Special Master-monitor Joseph S. Kiefer, III by 
facsimile in accordance with their written request of October 31 ,2001. 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 822-0068 
By U.S. Mail upon: 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
By facsimile and U.S. Mail upon: 
Alan L. Balaran, Esq. 
Special Master 
1717 Pennsylvania Avenue, N.W. 
12th Floor 
Washington, D.C. 20006 
(202) 986-8477 
By Hand upon: 
Joseph S. Kieffer, III 
Special Master Monitor 
420 7* Street, N.W. 
Apartment 705 
Washington, D.C. 20004 
(202) 478-1958 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
(202) 318-2372