<< COB0000001 >>
	0 F~	~, L..
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
	)
ELGUISE PEPION COBELL, et al.,	)
		)
	Plaintiffs,	)	Civil Action No. 96-1285 (RCL)
	)
		 FILED
	)
GALE A. NORTON, et al.,	)	JAN 1 8 200?
	)
	Defendants.	)	NANCY MAYER WHITTINGION, CLERK
			     U.S. DISTRICT COURT
_____________________________________________________________________________)
DEFENDANTS' MOTION FOR JUDGMENT ON PARTIAL FINDINGS
FOR SPECIFICATIONS ONE, TWO AND THREE OF THE COURT'S
NOVEMBER 28, 2001 ORDER TO SHOW CAUSE
As stated in Court on January 10, 2002, and pursuant to Fed. R. Civ. P. 52(c),
Defendants Gale Norton, Secretary of the Interior, and Neal McCaleb, Assistant
Secretary of the Interior for Indian Affairs, (collectively "Interior Defendants"),
respectfully move pursuant to Rule 52(c) of the Federal Rules of Civil Procedure for
judgment on partial findings with respect to the first three specifications of contempt in
the Court's November 28, 2001 Order. Now that the plaintiffs have been fully heard on
the issues contained in the first three contempt charges, and because plaintiffs have
failed to sustain their heavy burden of demonstrating by clear and convincing evidence
conduct which could warrant a finding of contempt as a matter of law, the Interior
Defendants respectfully request that partial judgment be entered in their favor. A
<< COB0000002 >>
memorandum of points and authorities in support of this motion and proposed order
are submitted herewith.
Respectfully submitted,
ROSCOE C. HOWARES,JR/~"
D.C. Bar No. 246470
United States Attorney
	________	/7
~#4tz~E~7,
MARK E. NAGLE
D.C. Bar No. 416364
Assistant United States Attorney
R. CRAIG L WRENCE
D.C. Bar No. 171538
Assistant United States Attorney
SCOVFF S. HARRIS
D.C. Bar No. 449037
Assistant United States Attorney
555 Fourth Street, N.W. - ~0th Floor
Washington, D.C. 20530
(202) 307-0338
<< COB0000003 >>
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ELOUISE PEPION COBELL, et al.,	)
)
		Plaintiffs,	)	Civil Action No. 96-1285 (RCL)
			)
	v.		)
	)	 FILED
GALE A. NORTON, et al.,	)
	)	JAN182002
	Defendants.	NANCY MAYER WHITTlNGTO~J, CLERK
_______________________________________________)	U.S. DISTRICT COURT
DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT ON PARTIAL FINDINGS FOR
SPECIFICATIONS ONE, TWO AND THREE OF THE COURT'S
NOVEMBER 28, 2001 ORDER TO SHOW CAUSE
Defendants Gale Norton, Secretary of the Interior, and Neal McCaleb, Assistant
Secretary of the Interior for Indian Affairs, (collectively 'interior Defendants") submit
this memorandum in support of their motion for judgment on partial findings as to the
first three specifications in the Court's November 28, 2001 Order to show cause why
they should not be held in contempt. Stated simply, the record developed over the
course of the trial proceedings between December 10, 2001 and January 10, 2002 is
insufficient as a matter of law to permit the Court to sustain findings of contempt
against the Interior Defendants.
<< COB0000004 >>
ARGUMENT
I.	Legal Standards
	This Court undoubtedly has the inherent authority to enforce its orders through
the exercise of its contempt powers. See Shillitani v. United States, 384 U.S. 364 (1966);
Armstrong v. Lxecutlve ~.JfIwe of W~ rIeSIciclil I I'.JLi LLI-±, Iz.O~ ~jJ.C. ~,A1. ifl&). iikiL
authority, however, is to be exercised sparingly, with "restraint and discretion."
Chambers v. NASCO, Inc.. 501 U.s. 32, 44 (1991). As this Court has noted, "the
'extraordinary nature' of the remedy of civil contempt leads courts to 'impose it with
caution."' S.E.C. v. Life Partners, Inc., 912 F. Supp. 4, 11 (D.D.C. 1996), quoting loshi v.
Professional Health Services. Inc. 817 F.2d 877, 879 n.2 (D.C. Cir. 1987). Further, in light
of the severity of the contempt sanction, it should not be resorted to "if there are any
grounds for doubt as to the wrongfulness of the defendants' conduct." Life Partners
912 F. Supp. at 11, citing MAC Corp. v. Williams Patent Crusher & Pulverizer Co., 767
F.2d 882, 885 (Fed. Cir. 1985).
	The elements of contempt are well established. Specifically, a party seeking
contempt must show: (1) an order that is clear and reasonably specific; and (2) that the
alleged contemnor violated that order. Armstrong I F.3d at 1289; Food Lion v. United
Food & Commercial Workers Int'l Union. 103 F.3d 1007, 1016-17 (D.C. Cir. 1997);
Shuffler v. Heritage Bank. 720 F.2d 1141, 1146 (9th Cir. 1983). Furthermore, because the
contempt power is to be reserved for only clear violations of the Court's authority, the
burden of demonstrating conduct warranting its use is a heavy one. Washington-
-2-
<< COB0000005 >>
Baltimore Newspaper Guild v. The Washington Post. 626 F.2d 1029, 1031 (D.C. Cir.
1980). In contrast to the ordinary burden of persuasion used in the trial on the merits of
this case, Plaintiffs must prove the elements of contempt by clear and convincing
evidence. ~, ig~., NLRB v. Blevins Popcorn Cc. 659 F.2d 1173, 1183-84 (D.C. Cir.
1981); McGregor v. Chierico. 206 F.3d 13/6, 1583 (11" Lw. 2000). ApplyIng tne clear and
convincing standard requires the Court to "reach a firm conviction of the truth of the
evidence about which he or she is certain." See United States v. Montague 40 F.3d
1251, 1255 (D.C. Cir. 1994) (comparing the preponderance of evidence burden to the
clear and convincing evidence standard). When high government officials are the target
of contempt proceedings, the remedy must be reserved as a "last resort." In re Attorney
General of the U.S.. 596 F.2d 58. 65 (2d Cir.) ("holding the Attorney General of the
United States in contempt to ensure compliance with a court order should be a last
resort, to be undertaken only after all other means to achieve the ends legitimately
sought by the court have been exhausted"), cert. denied 444 U.S. 903 (1979).
	The second and third specifications of the order to show cause why the Interior
Defendants should not be held in contempt are denominated as alleged "frauds on the
Court." A fraud on the court occurs where it can be demonstrated - also by clear and
convincing evidence - "that a party has sentiently set in motion some unconscionable
scheme calculated to interfere with the judicial system's ability impartially to adjudicate
a matter by improperly influencing the trier or unfairly hampering the opposing party s
claim or defense." See Aoude v. Mobil Oil Corp. 892 F.2d 1115. 1118-19 (1st Cir. 1989);
-3-
<< COB0000006 >>
Transaero. Inc. v. La Fuerza Area Boliviana 24 F.3d 457, 460 (2d Cir. 1994) (fraud on the
court limited to "that species of fraud which does or attempts to defile the court itself,
or ... fraud perpetrated by officers of the court so that the judicial machinery cannot
perform in its usual manner its impartial task of adjudging cases"), quoting Ku pferman
V. ~onso1iaated i(esearch & lVltg. Lorp. 4c~ LAI 1u,Z, 1Ui~ (Zd ~ir. Ph 2); see also
Hazel-Atlas Glass Co. v. Hartford-Empire Co. 322 U.S. 238, 246 (1944) (emphasizing
that fraud in litigation cannot be tolerated because it is a "wrong against the institutions
set up to protect and safeguard the public"). "But the concept of fraud on the court ...
does not extend to an omission more fairly characterized as a 'mistake of judgment.'"
Greater Boston Television Corp. V. F.C.C. 463 F.2d 268, 278 n.16 (D.C. Cir. 1971)
(citations omitted).	-
II.	The First Specification Should Be Discharged
	The first specification of the show cause order alleges a failure "to comply with
the Court's Order of December 21, 1999, to initiate a Historical Accounting Project."
Any inquiry into this specification must, of necessity, begin with the plain language of
the Court's December 21, 1999 Order itself. See Project B.A.S.I.C. v. Kemp. 947 F.2d 11,
16-17 (ist Cir. 1991) ("For a party to be held in contempt, it must have violated a clear
and unambiguous order that left no reasonable doubt as to what behavior was expected
and who was expected to behave in the intended fashion. In determining specificity,
the party enjoined must be able to ascertain from the four corners of the order precisely
what acts are forbidden.") (emphasis added) (internal quotation marks omitted).
-4-
<< COB0000007 >>
	First, it bears emphasizing that the portion of the December 21, 1999 Order
apparently relied upon by Plaintiffs - set forth in Section II — is a declaratory judgment.
Compare Section II ("Pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, and
the Administrative Procedure Act, 5 U.S.C. §§ 702 & 706, the court HEREBY
VLt.~LA1(P~ that ... ) with Section 111 t~ tile court 1(Ukziz' tna( ... j. irns wsmlLAiofl i~
a vitally important one for the purposes of this case, as the D.C. Circuit has held
unambiguously that alleged noncompliance with a declaratory judgment cannot serve
as the foundation for a finding of contempt. ~ Armstrong v. Executive Office of the
President 1 F.3d 1274 (D.C. Cir. 1993), citing Steffel v. Thompson. 415 U.S. 452, 471
(1974). The D.C. Circuit has reasoned:
lElven though a declaratory judgment has "the force and effect of a
final judgment," 28 U.S.C. § 2201, it is a much milder form of relief
than an injunction. Though it may be persuasive, it is not
ultimately coercive; noncompliance with it may be inappropriate~
but is not contempt.
Id at	1290 (emphasis added); see also Perez v. Ledesma. 401 U.S. 82, 125-26 (1971).
Second, even if the operative language relied upon by Plaintiffs were not
contained in a declaratory judgment, the language itself does not direct Defendants to
"initiate a Historical Accounting Project." Rather, Section II sets forth a series of legal
conclusions concerning Defendant's noncompliance with the 1994 Act and statements
concerning what Defendants must do to come into compliance. Of most importance are
paragraphs 2, 3, 5 and 7 of Section II. Specifically, paragraphs 2-3 explain that the
Interior Defendants owe Plaintiffs the duties to:
-5-
<< COB0000008 >>
•	retrieve and retain all information concerning the IIM trust that is
necessary to render an accurate accounting of all money in the IIM trust.
•	establish the following written policies and procedures that are necessary
to render an accurate accounting:
	•	to collect missing information from outside sources;
	•	to retain IIIVI-related trust documentS;
	•	for computer and business systems architecture; and
	•	for the staffing of trust management functions.
Paragraphs 5 then finds that the Interior Defendants are not in compliance with those
duties, and paragraph 7 concludes that they "must promptly come into compliance by
establishing written policies and procedures not inconsistent with the courts
Memorandum Opinion that rectify the breaches of trust declared in subparagraphs
	Even assuming that these provisions had not been set forth in a declaratory
judgment, none of them specifically require the Interior Defendants to "initiate a
Historical Accounting Project." Rather, these are more targeted statements addressing
what the Interior Defendants must do in order to comply with their legal duties, j±..., to
collect missing information from outside sources, to retain IIM-related trust documents,
etc. Judged against the actual language of the Section II, the evidence submitted by
	Because paragraph 4 relates to duties owed by the Secretary of the
Treasury, it is not relevant to these contempt proceedings. Similarly, paragraph 1 sets
forth the purely legal principle that Defendants are obligated "to provide plaintiffs an
accounting of all money in the IIM trust held in trust for the benefit of plaintiffs,
without regard to when the funds were deposited."
-6-
<< COB0000009 >>
Plaintiffs themselves makes clear that contempt is inappropriate. Most obviously, the
Seven Quarterly Reports submitted to the Court by the Department - which have been
admitted into evidence as Plaintiffs' Exhibits 7-13 — narrate in detail the efforts that the
Department has taken to remedy these specific breaches. Where the plain language of
Section 11 ot the court s Urder sets iorth specitic oreacfles and declares it necessary to
remedy those breaches, and where the Plaintiffs' own evidence demonstrates that this
has occurred, contempt is not warranted.
	Third, it is a predicate for contempt that the order in question give sufficiently
precise direction such that the alleged contemnor can be held to have notice of what he
or she is required to do. International Longshoremen's Ass'n Local 1291 v. Philadelphia
Marine Trade Ass'n 389 U.S.~64, 76 (1967) (reversing contempt finding based on
violation of order that "did not state in 'specific. . . terms' the acts that it required or
prohibited"), quoting Fed. R. Civ. P. 65(d); Spallone v. United States 493 U.S. at 276-77
(reversing contempt finding against individual city council members where the
underlying decree to desegregate public housing did not direct them personally to take
any affirmative steps). In this case, there is nothing in the Court's December 21, 1999
Order setting forth a precise schedule for an accounting or explaining specific details —
other than the specific breaches listed above - of how that task should be accomplished.
Because the order in question is not explicit on how and when an accounting should
take place, the Court should resolve this contempt specification in favor of the Interior
Defendants. See United States v. Microsoft Corp., 980 F. Supp. 537, 541 (D.D.C. 1997),
-7-
<< COB0000010 >>
rev'd on other grounds 147 F.2d 935 (D.C. Cir. 1998), citing Common Cause v. Nuclear
Regulatory Comm'n 674 F.2d 921, 927-28 (D.C. Cir. 1982).
	This principle applies with particular force where the Court requires government
agencies to follow the law without specifying exactly what steps are required to avoid
possible exposure to contempt. In Armstrong br example, several government
agencies appealed from an order by Judge Richey holding them in contempt of a prior
order enjoining the Archivist of the United States to "take all necessary steps" to
preserve federal records and requiring the agencies not to remove, alter, or delete any
information until the Archivist took action to prevent the destruction of federal records.
See Armstrong I F.3d at 1277. Because the agency did not violate a clear order
requiring certain conduct, the Court of Appeals reversed and remanded. Id. at 1277,
1288-90. In holding that the District Court had abused its discretion, the Court of
Appeals emphasized that "civil contempt will lie only if the putative contemnor has
violated an order that is clear and unambiguous." Id. at 1289 (emphasis added),
quoting Project B.A.S.I.C. 947 F.2d at 16-17 (citations omitted; emphasis added).
	Finally, even if the Court had specifically ordered the Interior Defendants to
"initiate a Historical Accounting Project," the facts in the record do not support a
finding of contempt because steps have been taken to embark upon an accounting. For
instance, Mr. Thompson explained that the Interior Defendants have undertaken a
-8-
<< COB0000011 >>
reconciliation of the accounts of the five named Plaintiffs.2 He also explained that, since
its inception in July 2001, the Office of Historical Trust Accounting has been established,
obtained funding, and generated two reports planning for how the accounting will be
conducted.3 Mr Thompson also noted that other steps explained at trial and in the
Department's Quarterly Reports will contribute directly to the Department s atillty to
carry out such an accounting, such as planning for the collection of records necessary to
conduct the accounting.4 And the Interior Defendants' summary judgment motion
practice in March and September 2000 was an effort to define the temporal scope of the
accounting to be done. Although Plaintiffs have disputed the methods by which the
Interior Defendants have gone about the initial phases of performing the accounting,
and suggested that the effort has not been well coordinated, and in their view, not even
	2 See Tr. at 48, 11. 11-15 ("Arthur Andersen was doing work on the five
named plaintiffs. They had pulled data from the Interior Department to -- electronic
data to look at the accts [steti of the five named plaintiffs and try and do a reconciliation
of those accounts.")
	See Tr. at 1964-65; see ~ Notice of Filing Blueprint for the
Comprehensive Historical Accounting Plan (Sept. 12, 2001); Tr. at 338 ("the Secretary
established a separate office high in the Department to undertake a historical
accounting. That was a position OST had advanced earlier also. I think those are
positive steps towards a historical accounting."); Tr. at 1868-70 (describing funding
obtained from Congress for OHTA).
	See Tr. 1857 ("We were attempting to define what an accounting might
look like and where we could -- where we had documents in hand to complete such an
accounting. So most of the work in the first year was focused on extracting different
series and parsing out the types of accounts to see where the documentation was
sufficient that we had in hand."); see also Plaintiffs' Exhibits 6-13 (including reports on
breach projects); Tr. 361-62 (Department developed plans, recruited staff, detailed staff,
pulled in information, held meetings, "quite a bit of activity, in my book").
-9-
<< COB0000012 >>
started, those abstract notions fall far short of the sort of clear and convincing evidence
required for a finding of contempt.
II.	The Second Contempt Specification Should Be Discharged.
	The second specification of the Court's November 28 ~0Ol Order to Show Cause
alleges that the Interior Defendants committed a traud on the Court by conceal ~ingj
the Department's true actions regarding the historical accounting project" from March
2000 until January, 2001. Although the allegedly concealed actions are not enumerated
in the Order, Plaintiffs have relied chiefly upon their unfounded allegation that the
Interior Defendants carried out a "sham" Federal Register process addressing how the
agency might carry out a historical accounting. ~ Aug. 27, 2001 Contempt Motion, at
20.
	But Plaintiffs' position on this point is fundamentally flawed on several different
levels. First, to the extent that Plaintiffs are suggesting that the choice to utilize
statistical sampling was itself inconsistent with this Court's December 1999 ruling, see
Aug. 27, 2001 Contempt Motion, at 19-20, the plain language of that ruling and the
Court of Appeals' decision show otherwise. This Court stated explicitly:
It should be noted that the court is not ruling upon what specific
form of accounting, if any, the Trust Fund Management Reform Act
requires. For example, the court does not purport to rule on
whether an accounting accomplished through statistical sampling
would satisfy defendants' statutory duties.
Cobell v. Babbitt 91 F. Supp. 2d 1,40 n.32 (D.D.C. 1999); ~ Cobell v. Norton. 240
F.3d 1081, 1104 (D.C. Cir. 2001) ("The district court explicitly left open the choice of how
-10-
<< COB0000013 >>
the accounting would be conducted, and whether certain accounting methods, such as
statistical sampling or something else, would be appropriate").
	What is more, the Department fully disclosed to the Court that it would
undertake a Federal Register process, which it described as "an information gathering
process in the course 01 determIning the most reasonaole methoa to carry out an
accounting. See Tab 14 to Plaintiff's Exhibit 14, at 17521. The Department also never
hid from anyone - including this Court - its view that a transaction-by-transaction
accounting of every account potentially created serious challenges. ~ ~g±, Tab 14 to
Plaintiff's Exhibit 1, at 17526 ("Given the enormous scope and costs of an account-by-
account, transaction-by-transaction reconstruction, it is unlikely to expect that the
Congress would provide the Department with the staggering appropriations needed to
fund such a process."). The fact that DOI officials anticipated the possibility of some
form of statistical sampling as part of their efforts even before receiving public
comments is not only not "bad faith," but it is consistent with the Administrative
Procedure Act.
	And while Plaintiffs have alleged that Department officials purposely sought
either to mislead the Court about the Federal Register process, the facts do not support
such allegations of bad faith. Plaintiff's own witness, Mr. Thompson, testified:
Now, you know, I cannot think of one meeting or one
individual who would dare to try and deceive the Court.
There is no reason to do that particularly, in my mind.
There are people who at a moment may have not been as
forthcoming as they should be, but in my mind, today, I
don't know of any flat-out attempt to hide information from
- 11 -
<< COB0000014 >>
the Court. I believe that today, I believed it a year ago.
Tr. at 1866, 11. 14-20. Mr. Thompson also testified that Department officials sincerely
hoped that one or more financial institutions would propose methods or alternatives to
enable DOI to perform an efficient and effective accounting. See It. 731A3. Beyond the
tederal Negister notice provision, tue interi~~r VetenLiants suiiunavy juuginen fliuQuit
practice in March and September 2000 placed before the Court the DOL's view as to the
temporal scope of the accounting to be done. And Mr. Thompson's unchallenged
testimony shows that, until the August 2,2000 meeting, he understood it to be an open
question as to how to carry out an accounting.5 Once the results of that meeting were
finally reduced to the Secretary's December 29, 2000 memorandum, that memorandum
was promptly filed with the Court.
In short, the Interior Defendants have never hidden from the Court their
expectations concerning how a historical accounting would be carried out. At a bare
Q.	Do you believe at any point in time during the point
that the Federal Register notice was published and it
was provided to this Court and the United States
Court of Appeals for the D.C. Circuit there was a
reasonable chance that the Secretary would conduct a
transaction by transaction accounting from the
inception of the Trust?
A.	I have to say yes to that because the preparations for the
August meeting included work I did to try and locate
experts who could advise us on the best way to approach
historical accounting, including statistical sampling in some
cases, including transaction by transaction and others.
Ir. 248.
-12-
<< COB0000015 >>
minimum, there is no clear and convincing evidence to support the view that they
"sentiently set in motion some unconscionable scheme calculated to interfere with the
judicial system's ability impartially to adjudicate a matter by improperly influencing the
trier or unfairly hampering the opposing party's claim or defense." See A~ude 892
P.2d at 1116-19. As a result, the court snoulci discharge tne interior iietendants trom
the second specification of contempt.
III.	The Third Specification Should Be Discharged
	The third specification of the Court's November 28, 2001 Order to show cause
asserts that the Interior Defendants committed a fraud on the Court by failing to inform
the Court of TAAMS developments between September 1999 and the Court's decision
of December 21, 1999. Defendants have acknowledged — both in pleadings in this case
and in contemporaneous internal communications - that the delays in the TAAMS
project during the summer and fall of 1999 should have been disclosed to the Court.
Nevertheless, the failure to do so does not support a finding of contempt by means of
fraud on the Court.
	As noted above, it is a prerequisite to fraud on the Court that the alleged
perpetrator have "sentiently" set in motion an unconscionable scheme "calculated to
interfere" with the Court's ability to adjudicate the case. Id. As with the other
specifications, this very high standard must be established by clear and convincing
evidence. Id.
In this case, the uncontradicted testimony from every knowledgeable witness has
- 13 -
<< COB0000016 >>
been that Department officials made an affirmative decision on September 8, 1999 to
disclose developments since Trial One to the Court. ~ ~±gA. Tr. 157-60 (Testimony of
Thomas Thompson); Tr. 2550 (Testimony of Daryl White). For instance, Mr. Thompson
was questioned by both Plaintiffs' counsel and the Court about the September 8, 199~
nice ting:
Q.	Was there a significant amount of concern expressed by
those of you who attended this meeting?
A.	I think that's fair to say. The fact that it was a presentation to
the chief of staff is an indication of that. Also the level of
people attending.
Q.	Do you recall what the chief of staff stated in that regard?
A.	My take on the meeting, as I recall it, was that the decision was
made to inforntthe Court of this situation. I don't know that we
had an actual final draft of the actual information to be provided
the Court, but it was clear to me that steps were going to be taken
to inform the Court of these issues. and the chief of staff concurred
with that.
Q.	Were you aware that during this same period of time this was
being discussed that counsel for the defendants requested that the
Court appoint a mediator to mediate a resolution of this dispute
with regard to Trial 1?
A.	I recall in this time frame that there was mediation efforts going on.
Q.	Do you recall whether or not anyone suggested that disclosures not
be made because of the concern as to how the mediation would be
affected?
A.	I don't recall any conversations to that effect.
Q.	I'd like to point you to the category called Outside --
THE COURT: In fact, I take it from the way you've characterized the
- 14 -
<< COB0000017 >>
meeting, there was no one speaking out about not informing the
Court.
THE WITNESS: On the contrary, Your Honor. My sense, and I guess my
shock expressed earlier, was that you didn't receive that
information.	There was nobody who was, that I recall, who
sug~rested or thou?ht that the information should not be provided
to you.
THE COURT: We don't know whether it was the Solicitor or the Secretary
that decided I wouldn't be told. You don't know?
THE WITNESS: I do not know or whether it was just a bureaucratic
bungle.
Tr. 1171-72 (emphasis added). There has been no evidence suggesting any affirmative
decision not to file such a report, and, of particular relevance to this contempt
proceeding, no evidence of any intention to hide relevant information from the Court.
	At the time the Interior Defendants presented their oral motion for judgment on
partial findings, the Court inquired as to whether it could draw the inference that
Department officials intended to defraud the Court from the fact that the draft report
was never filed. See Tr. 2559. As the Court noted, it is undoubtedly true that the finder
of fact - in this case the Court — may draw reasonable inferences from the facts actually
presented. Where there is an absence of any affirmative evidence in the record of an
intent to defraud, and where there is affirmative evidence from several witnesses of an
intent to disclose, it is not a reasonable inference to presume that the Interior
Defendants actually intended to defraud the Court. Particularly where the relevant
legal question is whether Department officials "sentiently" set in motion an
unconscionable scheme" that was "calculated to interfere" with the Court's ability to
-15-
<< COB0000018 >>
adjudicate the case, and particularly where Plaintiffs must prove these elements by clear
and convincing evidence, the record as presented simply does not meet their high
burden of proof.
	Because the remedy sought by Plaintiffs' is the drastic sanction of contempt, it
also bears noting that delays that occurred in the months atter trial Une were ot exactly
the sort that several Department witnesses anticipated at the time of that trial. Indeed,
the Court has remarked on various occasions during this contempt proceeding that it
was cognizant that the schedule presented by the Interior Defendants during Trial One
was an aggressive one. The developments in the project in Fall 1999 were all in the
nature of delays of the sort that the Trial One testimony had contemplated, j±~, (a)
delays in having system actually used on pilot basis in Billings; (b) a two-week delay in
final system test; and (c) acceleration of deployment of title module, with leasing
module at a slower pace. See Tab 5B to Plaintiffs' Exhibit 2. Calculating a schedule for
software development is inherently subjective; a contempt finding for fraud on the
Court should be based on evidence of considerably more objective and affirmative
wrongdoing. See Oxxford Clothes )(X. Inc. v. Expeditors Int'l of Washington~ Inc., 127
F.3d 574, 578 (7"' Cir. 1997) (mischaracterization of evidence, as distinguished from
placing "bogus documents" before the court, does not amount to fraud on the court).
Other courts have rejected contempt where presented with allegations of misconduct
significantly more problematic than those presented here. Outen v. Baltimore County.
M4~. 177 F.R.D. 346 (D. Md. 1998) (county officials' allegedly false representatIons
-16-
<< COB0000019 >>
regarding severity of fiscal crisis did not amount to fraud on the court), ~ffA. 164 F.3d
625 (4~ Cir. 1998) (table); see also Weldon v. United States 225 F.3d 647, 2001 WL
1134358 (2d Cir. 2000) (mischaracterization of evidence and affidavits submitted to
court "does not risc to the level of fraud on the court"); In re Coordinated Pretrial
Proceedings in Antibiotic Antitrust Actions ~36 P.2d 1&i, 193-'9b (&~ (~jr. 19/b)
(allegations of "failure to investigate" certain facts which the Court found was "a
serious error in judgment," various misrepresentations of facts, and presentation of
legal arguments of questionable basis, taken together did not warrant a finding of civil
contempt), cert. denied, 429 U.S. 1040 (1977); United States v. International Tel. &
Telegraph Corp.. 349 F. Supp. 22, 29 (D. Conn. 1972) ("Less egregious misconduct, such
as nondisclosure to the court of facts allegedly pertinent to the matter before it, will not
ordinarily rise to the level of fraud on the court.") (citation omitted), aff'd without op.
sub nom. Nader v. United States. 410 U.S. 919 (1973).
CONCLUSION
	In light of the severity of the contempt sanction, the Court should not resort to it
"if there are any grounds for doubt as to the wrongfulness of the defendants' conduct."
Life Partners. 912 F. Supp. at 11, citing MAC Corp. v. Williams Patent Crusher &
Pulverizer Co. 767 F.2d 882, 885 (Fed. Cir. 1985). The Court's inquiry in the present
proceeding must carefully separate any legitimate frustration about the lack of progress
-17-
<< COB0000020 >>
6
in certain areas of trust reform from the question of whether contempt is appropriate.
While it is undoubtedly true that the Department has not made the progress that it had
expected at the time of Trial One, it is also undoubtedly true that Department officials
have undertaken determined efforts both to improve their accounting capabilities and,
equally importantly, to intorm the (ourt of those efforts. l-'aiting to reverse a legacy 01
problems and overcome obstacles to a historical accounting, however frustrating to the
parties and this Court, does not itself merit a finding of contempt. And as explained in
detail above, there simply is no factual or legal basis for such a finding upon the record
presented by Plaintiffs.
	6	As Mr. Thompson testified:
I mean there are certainly people who worked very hard. There are
some successes that can be pointed to, but overall you look at the
result and this is certainly not where we hoped and wanted to be
today.
Tr.at 154.
-18-
<< COB0000021 >>
Respectfully submitted,
ROSCOE C. HOWA D, JR.
D.C. Bar No. 246470
United States Attorney
	/	— ~
MARK E. NAGLE
D.C. Bar No.416364
Assistant United States Attorn y
R. CRAIG LA CE
D.C. Bar No. 171538
Assistant United States Attorney
SCOTF[ S. HARRIS
D.C. Bar No. 449037
Assistant United States Attorney
555 Fourth Street, N.W. - ~0th Floor
Washington, D.C. 20530
(202) 307-0338
-19-
<< COB0000022 >>
CERTIFICATE OF SERVICE
I hereby declare that, on January 18, 2002, I served the foregoing motion for
judgment on partial findings by facsimile only, in accordance with their written request
of October 31, 2001, upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Lorna Babby, Esq.	Mark Brown, Esq.
Native American Rights Fund	1275 l~ennsyIvania Avenue, N.VV.
1712 N Street, NW	Ninth Floor
Washington, D.C. 20036-2976	Washington, D.C. 20004
202-822-0068	202-318-2372
by facsimile and by U.S. mail upon:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Ave., N.W.
12th Floor
Washington, D.C. 20006
by U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
and by hand delivery upon:
Joseph S. Kieffer
Court Monitor
420 7th Street, NW
Apt 705
Washington, DC 20004
~4t
Scott S. Harris