<< COB0000001 >>
UMTED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
	ELOUISE PEPION COBELL, et al.,	)
)
		Plaintiffs,	)	Civil Action No. 96-1285 (RCL)
			)
	v.		)
)
GALE A. NORTON, et al.,	)
)
	Defendants.	)
THE GOVERNMENT'S RESPONSE TO PLAINTIFFS' BILL OF
PARTICULARS AND SUPPLEMENTAL MEMORANDUM IN SUPPORT OF
PLAINTIFFS' MOTION FOR AN ORDER TO SHOW CAUSE WHY EDWARD
B. COHEN SHOULD NOT BE HELD IN CRIMINAL CONTEMPT
	On behalf of Edward B. Cohen, in his official capacity, the United States hereby responds
to and moves to dismiss the "Bill of Particulars for Edward B. Cohen in Support of Plaintiffs'
Motion for Order to Show Cause Why Interior Defendants and Their Counsel Should Not Be Held
in Criminal Contempt for Destroying E-Mail (3/20/02) and Supplemental Memorandum of Points
and Authorities in Support of Criminal Contempt " (hereinafler "Supplemental Memorandum"),
filed July 22, 2002.1 Mr. Cohen, who is not a party to this case, is a former Deputy Solicitor of
the Department of the Interior. He resigned effective July 31, 2000.
	The Supplemental Memorandum purports to be filed "In accordance with this Court's
instruction on March 15, 2002," as the "first in a series of civil, and, where appropriate criminal
contempt bills of particulars, clarifying and referencing specifications and evidence" against Mr.
•	Cohen and others who are the subject of plaintiffs numerous contempt motions. Supplemental
	Mr. Cohen is separately represented in his personal capacity.
<< COB0000002 >>
Memorandum at 1 n.l. The plaintiffs apparently refer to the hearing held in this matter on March
15, 2002. In that hearing, the Court directed the plaintiffs to state 'individual defendant by
individual defendant specifications of what the contempt proceedings would be for those 39
people so that they each have an opportunity to address what the evidence is and what you are
citing against any of those 39." Cobell v. Norton, Civ. Action No. 96-1285(RCL), Transcript of
March 15, 2002 Status Hearing, at 21:10-14 ("3/15/02 Tr.").
	Taking plaintiffs at their word that the current filing is in response to the March 15, 2002
directive, plaintiffs have abandoned any basis for a contempt order as to Mr. Cohen except the
allegations concerning overwriting of backup e-mail tapes which arc the subject of the
Supplemental Memorandum (as well as of the March 20, 2002 contempt motion), and plaintiffs
have abandoned any request that Mr. Cohen be held in civil contempt. That being so, the
Supplemental Memorandum, and the request that Mr. Cohen be held in contempt, should be
dismissed for several reasons. First, sovereign immunity precludes the imposition of criminal
penalties, the only relief sought by plaintiffs, against Mr. Cohen in his official capacity. Second,
issues concerning the backup e-mail tapes have been fully briefed, plaintiffs have not sought nor
been granted leave to file a supplemental brief on that issue, and the current filing does not set
forth any basis for doing so.2 Third, despite their repeated attempts to do so, plaintiffs have not
presented aprimafacie case of contempt, let alone made the heightened showing necessary to
establish criminal contempt.
	2 The Supplemental Memorandum purports to incorporate by reference the plaintiffs'
initial motion filed March 20, 2002 and the reply brief filed April 15, 2002. Supplemental
Memorandum at 1 n. 1. The United States moved to strike the reply brief. Plaintiffs did not
respond to the motion to strike the reply brief, even thought the Court did not rule on their motion
to extend indefinitely the July 8, 2002 deadline for their response. Accordingly, the motion to
strike the reply brief may be treated as conceded. Local Rule 7.1(b).
-2-
<< COB0000003 >>
ARGUMENT
I.	Sovereign Immunity Precludes the Imposition of Criminal Penalties
Against Mr. Cohen in His Official Capacity
	Plaintiffs request that Mr. Cohen be referred for a prosecution for criminal contempt.
Supplemental Memorandum at I n. 1. Plaintiffs do not request that Mr. Cohen be held in civil
contempt. As the goveriiment pointed out in "Government's Opposition to Plaintiffs' March 20,
2002 Motion for Orders to Show Cause Why Interior Defendants and their Employees and Counsel
Should Not be Held in Contempt" (the "Government's Opposition"), filed April 3, 2002
at 13-16, sovereign immunity bars criminal contempt sanctions against Mr. Cohen in his official
capacity.
	Since the government has received notice and an opportunity to respond to the contempt
claim against Mr. Cohen, the claim against him in his official capacity is to be treated as a claim
against the government. Coleman v. Espy, 986 F.2d 1184, 1189 (8th Cir.), cert. denied sub nom.
Dye v. Espy, 510 U.S. 913 (1993), citing Kentuclcy v. Graham, 473 U.S. 159 (1985). See also
Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir. 2002), and cases cited therein. The
doctrine of sovereign immunity bars the imposition of fines or penalties against the government,
except to the extent that the United States has explicitly consented to such sanctions. United States
v. Horn, 29 F.3d 754, 761 (1st Cir. 1994). A waiver of sovereign immunity must be definitively
and unequivocally expressed and must appear in the text of the statute itself. In re Sealed Case,
192 F.3d 995, 1000 (D.C. Cir. 1999), citing Lane v. Pena, 518 U.S. 187, 192 (1996); United
States v. Horn, 29 F.3d at 762, citing United States v. Mitchell, 445 U.S. 535, 538 (1980), and
United States v. Nordic Village, Inc., 503 U.S. 30 (1992).
	The United States has not waived sovereign immunity from citations for criminal contempt.
Coleman v. Espy, 986 F.2d at 1191; United States v. Horn, 29 F.3d at 763; see also In re Sealed
-3-
<< COB0000004 >>
Case, 192 F.3d 995, 999-1000 (D.C. Cir. 1999) ("...it is far from clear that Congress has waived
federal sovereign immunity in the context of criminal contempt.. . We know of no statutory
provision expressly waiving federal sovereign immunity from criminal contempt proceedings.").3
Similarly, the court in In re Newlin, 29 B.R. 781, 785 (E.D. Pa. 1983), held that a criminal
contempt citation by a bankruptcy court against a federal agency violated sovereign immunity
because the government had not expressly waived its immunity from citation for criminal contempt.
Consequently, to the extent that plaintiffs now are attempting to have Mr. Cohen in his official
capacity prosecuted for criminal contempt, the plaintiffs' motion must be denied.
II.	Even if Sovereign Immunity Did Not Preclude a Criminal Contempt Referral,
a Referral Would Not Be Warranted
A.	Legal Standards
	Plaintiffs ask that the Court refer Mr. Cohen for prosecution under 18 U.S.C. § 40 1(3),
which pennits the court "to punish by fine or imprisonment, at its discretion, such contempt of its
authority ... as ... [d]isobedience or resistance to its lawful ... order." To convict a defendant of
criminal contempt under this statute, the Court must find, beyond a reasonable doubt, that Mx.
Cohen willfully violated a "clear and reasonably specific" order of the court. United States v.
Roach, 108 F. 3d 1477, 1481 (D.C. Cir. 1997), citing United States v. NYNEX Corp., 8 F.3d 52,
54 (D.C. Cir.1993), and United Stales v. Turner, 812 F.2d 1552, 1563(11th Cir.1987). Fora
violation to be "willful," the defendant must have acted with deliberate or reckless disregard of the
obligations created by the court order. id., citing In re Holloway, 995 F.2d 1080, 1082 (D.C.
	~	In re Sealed Case, 192 F.3d 995 (D.C. Cir 1999), was not decided on the issue of
whether sovereign immunity precluded criminal contempt against the United States, since the Court
determined that aprimafacie case of criminal contempt had not been alleged. 192 F.3d at 1000.
-4-
<< COB0000005 >>
Cir.1993) cert. denied, 511 U.S. 1030 (1994), and United States v. Greyhound Corp., 508 F.2d
529 (7th Cir.1974). Thus, in order to support a referral for criminal contempt, plaintiffs must
initially show, by clear and convincing evidence, that (1) a clear and reasonably specific court
order was in effect, (2) the order required certain conduct by Mr. Cohen, and (3) that Mr. Cohen
willfully violated the court's order.
B.	Plaintiffs Have Not Made a Prima Facie Showing that Mr. Cohen Willfully
Violated any Court Order.
1.	Plaintiffs Have Abandoned All Claims Against Mr. Cohen Other
than the Allegations in Plaintiffs' March 20, 2002 Motion
	Plaintiffs assert that the Supplemental Memorandum has been filed "in accordance with the
Court's instruction on March 15, 2002. . . ," Supplemental Memorandum at 1 n.J. There is no
question that the Court, in directing the plaintiffs to provide supplemental briefing on their
contempt allegations, was referring to the various motions plaintiffs had filed before March 15,
2002, and which were pending before the Court at that time. The Court explained the reason for
this direction:
Part of what they [the 39 alleged contemnors] had raised and part of
why I had deferred acting on that was they thought there was not
enough evidence cited and individual charges made against
individuals and I think the time has come for the plaintiffs to lay it
out.
3/15/02 Tr. at 21:15-18.
	Plaintiffs have not laid out any evidence in support of any of their contempt charges against
Mr. Cohen made before the Court's March 15, 2002 hearing. Instead, the Supplemental
Memorandum is based entirely on their March 20, 2002 show cause motion. Supplemental
Memorandum at 1 n. 1. By failing to particularize any of the charges against Mr. Cohen contained
-5-
<< COB0000006 >>
in the motions that were actually pending before the Court on March 15, 2002, plaintiffs have
abandoned those charges and motions, and the Court should dismiss them as to Mr. Cohen.4
2.	Plaintiffs Have Not Shown That Mr. Cohen Violated Any
Order Pertaining to Backup E-Mail Tapes
	Even if sovereign immunity did not preclude a referral for criminal contempt against Mr.
Cohen in his official capacity, plaintiffs have fallen far short of presenting the prima facie case
justifying such a referral. The Supplemental Memorandum simply rehashes allegations against Mr.
Cohen which were contained in the March 20, 2002 motion. As demonstrated by the Government
Opposition, as well as the "Opposition of Edward B. Cohen to Plaintiffs Motion for Order to
Show Cause" (the "Cohen Response") filed May 3, 2002, that motion failed to meet the lesser
standard of presenting a claim for civil contempt against Mr. Cohen or against any of the other
respondents. Shorn of irrelevancies and misrepresentations,5 the Supplemental Memorandum
	~	These motions include Plaintiffs' Motion for Order to Show Cause Why Defendants and
Their Employees and Counsel Should Not Be Held in Contempt and For Sanctions for Violating
the Anti-Retaliation Order (filed Aug. 16, 2000); Plaintiffs' Consolidated Reply Brief in Support
of Motion to Set a Trial Date for Phase II of this Action and Memorandum in Support of Motion
for Order to Show Cause Why Past and Present Interior Defendants and Their Employees and
Counsel Should Not Be Held in Contempt (filed Aug. 27, 2001); Plaintiffs' Consolidated Motion to
Amend Their Motion to Reopen Trial One in this Action to Appoint a Receiver and Memorandum
of Points and Authorities in Support Thereof and Motion for Order to Show Cause Why
Defendants and Their Employees and Counsel Should Not Be Held in Contempt for Violating
Court Orders and for Defrauding This Court with Trial One (filed Oct. 19. 2001); and plaintiffs'
reply briefs as to these motions.
	~	Plaintiffs apparently recognize that the allegedly missing data at issue are solely those
copies of Solicitor's Office e-mails that had been transferred to backup tapes which were
periodically overwritten, and plaintiffs represent that they will refer to the data as "e-mail backup
tapes." Supplemental Memorandum at 2 n.2. Despite this promise, plaintiffs cannot quite resist
the temptation to refer misleadingly to the data at issue generally as "c-mails," "trust records," or
~~records." See Supplemental Memorandum at paragraphs 16, 17, 18, 25, 28 (and footnoteS,
referenced therein), 29, 30, and 32. Plaintiff also assert, in paragraph 31, that the e-mail backup
tapes uare in fact and as a matter of law, official records of the Department of the Interior." This
assertion is clearly wrong, see Government's Opposition at 17-18 and Cohen Response at 12-13,
and it is difficult to understand how plaintiffs' counsel could believe in good faith that this
assertion was factually or legally supportable.
-6-
<< COB0000007 >>
asserts that Mr. Cohen willfully violated this Court's order of November 9, 1998, by writing a
memorandum on November 13, 1998, authorizing the computer system personnel of the Department
of the Interior to resume the normal practice of recycling computer system backup tapes.
Supplemental Memorandum at 1 2~l4.6 Plaintiffs made the same argument in the March 20, 2002
motion, and the Supplemental Memorandum does not include any additional support for their
position. As both the government, Government's Opposition at 9-il, and Mr. Cohen, Cohen
Response, at 14-15, pointed out when plaintiffs made this argument in the March 20, 2002 motion,
the November 9, 1998 Order did not "clearly and specifically" require the Department of the
Interior to maintain new backup tapes, and therefore Mr. Cohen's memorandum did not violate that
order, willfully or otherwise.
	On the record put forward by the plaintiffs, there simply is no basis for concluding that Mr.
Cohen acted "willfully" or in bad faith to disobey a Court order or to deceive the Special Master
or the Court regarding the e-mail backup tapes.
C.	Plaintiffs Repetitive Filing of Specious Contempt Motions is Improper
1. Plaintiffs Should Not Be Permitted Multiple Bites at the Apple.
	Plaintiffs axe now on their third attempt to seek Sanctions from a fully-disclosed event that
occurred years ago and as to which plaintiffs have never proven that they suffered any material
harm. Due process forbids such multiple and belated efforts to impose criminal sanctions upon an
individual.
	Plaintiffs sought sanctions based on the e-mail backup tape issue in their September 12,
2000 Motion for Leave and Request for Sanctions in Response to Defendants' Motion for a
	61f plaintiffs are attempting to assert any other basis for criminal contempt, the
Supplemental Memorandum should be dismissed for lack of specificity.
-7-
<< COB0000008 >>
Protective Order. Plaintiffs did not, however, seek a recommendation for contempt as part of their
request for sanctions in this motion. Nor did plaintiffs object within 10 days to the Special
Master's July 27, 2001 recommendation regarding sanctions, which was limited to attorney's fees.
	On March 20, 2002 — eight months after the Special Master's July 27, 2001 ruling — the
plaintiffs flied yet another request for sanctions in connection with the e-mail backup tape issue,
this time seeking civil and criminal contempt sanctions as to Mr. Cohen and others. At the time
plaintiffs filed their March 20 motion, they ~vere fully aware of the legal and factual standards
their motion must meet in order to present a colorable basis for a contempt finding. The legal
standards had been fully briefed as part of the second contempt trial, and the Court had clearly
stated the evidentiary standards their show cause motions must meet in the March 15, 2002 status
call. As shown by the excerpts of the March 15, 2002 hearing transcript quoted above, the Court
had directed the plaintiffs to particularize their evidence as to each individual respondent. Yet
plaintiffs ignored this directive in filing their March 20, 2002 motion just four days after the
hearing. As demonstrated by the Government's Opposition and the oppositions to the March 20
motion filed by the individual respondents, plaintiffs had made no effort to tie any individual
respondent to the violation of any "clear and reasonably specific" court order. Indeed, several of
the respondents were no longer in Government service at the time some or all of the orders cited
by plaintiff as the basis for that motion had been issued, and some of the "orders" themselves did
not even qualify' as a possible basis for a contempt motion. See Government's Opposition at 9-12.
Plaintiffs' March20 motion was inexcusably sloppy and fell so far short of the Court's March 15,
2002 directive that it should never have been filed.
	The Supplemental Memorandum is an obvious attempt by plaintiffs to clean up the failings
of their March 20 motion. However, the Supplemental Memorandum simply rehashes some of the
-8-
<< COB0000009 >>
allegations made in the March 20 motion and in the September 2000 motion before it. Plaintiffs
have now limited their focus to the Court's November 9, 1998 Order.7 However, the
Supplemental Memorandum is based entirely on information that was available to plaintiffs when
they filed their March 20 show cause motion and, indeed, even earlier when plaintiffs filed their
September 12, 2000 Motion for Leave and Request for Sanctions in Response to Defendants'
Motion for a Protective Order and the accompanying "Factual Appendix." Thus, plaintiffs have
already had two bites at this apple, and in fairness to Mr. Cohen, they should not be permitted yet
another. Further, there is no question that plaintiffs have known for more than three years that
Solicitor's Office e-mail backup tapes were reused and not saved for a period of several months
in late 1998 and early 1999. The Government disclosed this information to the Court, the Special
Master, and the plaintiffs in May 1999. The Court has not given plaintiffs a license to file
specious allegations of contempt with the promise of unlimited opportunities to repackage and
refile the same material multiple times. Such license would be inconsistent ~vith due process
because it would subject individuals like Mr. Cohen to continual uncertainty regarding the nature
of the charges against them.
	2.	Plaintiffs Did Not Seek Leave of Court Nor Did They Confer With Any
		Government Counsel Before Filing This "Supplemental Memorandum"
	The Court's March 15, 2002 directive that plaintiffs file supplemental memoranda in
support of their contempt charges obviously pertained to the contempt charges then pending
before the Court. The directive, therefore, did not apply to the March 20 motion. Not only should
the plaintiffs have adhered to the clear factual standards set forth by the Court in the March 15
7 Thus, plaintiffs have dropped their claims that Mr. Cohen was involved in the violation of
any of the other five "orders" cited by plaintiffs in their March 20 motion.
-9-
<< COB0000010 >>
status conference (as well as in the substantial body of existing caselaw), but they violated the
rules in failing to seek the Court's leave before supplementing their March 20 motion. Likewise,
plaintiffs did not confer with counsel for the Government before filing this supplemental brief, in
violation of Local Rule 7.1(m). For these reasons, too, the supplemental memorandum should be
dismissed.
CONCLUSION
	For the foregoing reasons, the government respectfully requests that the Court enter an
order denying plaintiffs motion to refer Edward Cohen for criminal contempt.
Respectfully submitted,
ROBERT D. MeCALLUM, JR.
Assistant Attorney General
STUART E. SCHIFFER
Deputy Assistant Attorney General
J.	CHRISTOPHER KOHN
Director
-10-
<< COB0000011 >>
Dodge Wells
Senior Trial Counsel
D.C. Bar No. 425194
Tracy L. Hilmer
D.C. Bar No. 421219
Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 261
Ben Franklin Station
Washington, D.C. 20044
(202) 307-0474
OF COUNSEL:
Sabrina A. McCarthy
Department of the Interior
Office of the Solicitor
DATED:	August 5,2002
—11—
<< COB0000012 >>
CERTIFICATE OF SERVICE
I declare under penalty of perjury that, on August 5, 2002 I served the foregoing
Government's Response to Plaint ~ffs 'Bill of Particulars and Supplemental Memorandum in
Support of Plaint 4Ts'Motion for an Order to Show Cause Why Edward B. Cohen Should Not Be
Held in Criminal Contempt by hand 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
	Washington, D.C. 20004
and by U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Courtesy Copy by fax and U.S. Mail upon:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Avenue, N.W.
12th Floor
Washington, D.C. 20006
Fax:	(202) 986-8477
Courtesy Copy by U.S. Mail upon:
Joseph S. Kieffer, m
Court Monitor
420 7tI~ Street, N.W.
Apartment 705
Washington, D.C. 20004
Courtesy Copy by fax and U.S. Mail upon:
Robert Luskin
Patton, Boggs & Blow
2550 M Street N.W. Suite 500
Washington, D.C. 20037-1350
Fax:	(202) 457-6315
Kevin P. Kingston
<< COB0000013 >>
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OP COLUMBIA
)
ELOUISE PEPION COBELL, et al.,	)
)
	Plaintiffs,	)	Civil Action No. 96-1285 (RCL)
)
	V.	)
)
GALE A. NORTON, et al.,	)
)
	Defendants.	)
ORDER
Upon consideration of Plaintiffs' Bill of Particulars for Edward B. Cohen in Support of
Plaintiffs' Motion for Order to Show Cause Why Inter or Defendants and Their Counsel Should
Not be Held in Criminal Contempt for Destroying E-Mail (3/20/02) and Supplemental
Memorandum of Points and Authorities in Support of Criminal Contempt, the Government's
response in oppOsition thereto, and the entire record in this case, it is hereby ORDERED that
Plaintiffs' motion is DENIED.
UNITED STATES DISTRICT JUDGE
Date
<< COB0000014 >>
cc:
Sandra P. Spooner
John T. Stemplewicz
Cynthia L. Alexander
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, N.W.
Washington, D.C. 20036-2976
Fax (202) 822-0068
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Avenue, N.W.
12th Floor
Washington, D.C. 20006
Joseph S. Kieffer, 111
Court Monitor
420 7th Street, N.W.
Apartment 705
Washington, D.C. 20004