UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
_________________________________ 
ELOUISE PEPION COBELL, et al., 
Plaintiffs, 
v. 
)
)
)
)
)
) 
GALE A. NORTON, Secretary of the ) 
Interior, et al., 
)
)
) 
Defendants. 
_________________________________) 
DEFENDANTS' OPPOSITION TO PLAINTIFFS' 
MOTION FOR EXPEDITED CONSIDERATION OF 
PLAINTIFFS' VARIOUS APPLICATIONS FOR FEES AND COSTS 
Defendants respectfully oppose Plaintiffs' Motion for Expedited Consideration of 
Plaintiffs' Various Applications for Fees and Costs (filed March 19, 2004) ("Plaintiffs' Motion"). 
Plaintiffs' Motion, which seeks expedited consideration with respect to six separate requests for 
recovery of fees and expenses, lacks any factual explanation as to why expedited treatment is 
necessary, as well as any legal argument showing that such treatment is warranted. Moreover, 
the various contexts in which Plaintiffs' counsel has made applications for fees and expenses do 
not support such an award. As detailed in the opposition briefs that have been filed with respect 
to each specific application, the underlying motions for which Plaintiffs seek expedited 
consideration are, in large part, facially deficient. Plaintiffs' motion should be denied. 
Case No. 1:96CV01285 
(Judge Lamberth)
DISCUSSION 
Plaintiffs Have Provided No Legal Or Factual Basis For The Relief They Seek I. 
Plaintiffs have offered nothing in support of their request that the Court give priority – out 
of over seventy-five motions now pending before the Court – to six applications by Plaintiffs' 
counsel for the payment to them of fees and expenses. They provide no factual evidence (or any 
explanation at all) as to why such expedition is necessary, and no legal authority providing 
support for the position they take. Instead, they offer the usual nonsubstantive rhetoric directed 
at the Department of the Interior ("Interior"), and make the cursory assertion, unsupported by 
citation to factual evidence, that trust beneficiaries are being denied the daily necessities of life as 
a result of conduct by Interior.1 See Plaintiffs' Motion at 2 ("Necessities – including heat, food, 
clothing, medical attention, and shelter – are affected by each lost, destroyed, misappropriated, or 
delayed trust check . . . ."). But even if such allegations were true,2 they would be irrelevant to 
the motion now before the Court. Plaintiffs do not seek any relief that would alleviate any 
burden being faced by class members. Not a single trust beneficiary will receive any financial 
benefit if the motion before the Court is granted. Rather, Plaintiffs ask the Court to give 
1 Plaintiffs also mention that they have "expended more than $10 million to date 
litigating this case," Plaintiffs' Motion at 2, but they provide neither evidentiary support for this 
statement, nor any explanation as to its relevance to their present motion. 
2 Plaintiffs' contentions are not consistent with the evidence in this case. The 
analysis performed by Ernst & Young with respect to the named Plaintiffs and their predecessors, 
who purport to be representative of the entire class, revealed that 60% of all trust transactions in 
those accounts were for less than $10, Expert Report of Joseph R. Rosenbaum, Mar. 28, 2003, 
Defs.' Ex. 156 at 4, and that the total combined balance in all of those accounts, as of December 
31, 2000, was less than $3,000. Trial Tr., June 9, 2003, a.m., at 78. Moreover, approximately 
96% of the 193,800 land-based accounts receive less than $250 per year. Declaration of James 
E. Cason in Support of Motion for Stay Pending Appeal, executed Nov. 10, 2003, at 2. 
2
precedence to applications that, if granted, would result only in the payment by the United States 
of fees and expenses to Plaintiffs' counsel. This groundless motion should be denied. 
Plaintiffs' Fee Applications Do Not Warrant Expedited Consideration II. 
The various contexts in which Plaintiffs have asked for fees and expenses also militate 
against providing the relief now sought. In seeking expedited consideration, Plaintiffs apparently 
assume an automatic obligation on the part of the taxpayers to pay their fees and expenses. Even 
a cursory review of their various applications, however, shows they are mistaken.3 
The Vacated Contempt Rulings A. 
Plaintiffs still claim they are entitled to a fee award arising from this Court's contempt 
rulings against Secretary Norton and former Assistant Secretary McCaleb. See Plaintiffs' 
Request for Award of Attorneys' Fees and Related Expenses Based Upon Findings Establishing 
Defendants' Litigation Misconduct (filed Nov. 26, 2003). As they know, however, the Court of 
Appeals vacated not only the contempt rulings but also this Court's award of fees and expenses to 
Plaintiffs. Cobell v. Norton, 334 F.3d 1128, 1150 (D.C. Cir. 2003) ("The Contempt Order is 
vacated insofar as it sanctions the defendants on specifications one through five and directs the 
payment of expenses and fees incurred by the plaintiffs."). Thus, Plaintiffs' request for a fee 
award in connection with the contempt ruling has, with indisputable finality, been resolved by the 
Court of Appeals, and no contrived theory advanced by Plaintiffs can breathe life back into it. 
See Defendants' Opposition to Plaintiffs' November 26, 2003 Request for Award of Attorney's 
Fees and Related Expenses (filed Dec. 10, 2003). 
3 The deficiencies in the various fee applications filed by Plaintiffs have already 
been briefed in detail and will be only summarized here. 
3
Expert Fees B. 
Plaintiffs also seek expedited consideration of Plaintiffs' Motion for a Protective Order 
Requiring Defendants to Pay Plaintiffs' Expert Deposition Fees and Expenses (filed Oct. 10, 
2003). But the bill for which Plaintiffs sought reimbursement, and to which Interior has 
justifiably objected, seeks nearly $71,000 for fewer than 40 hours of depositions, and is replete 
with overt excesses and overcharges. For example, the bills submitted by Plaintiffs included 
charges of $1,000 per hour for the testimony of one of Plaintiffs' experts; a $1,000 hotel bill 
incurred for a one-day deposition; a meal charge of $139; over $100 of charges at a hotel lobby 
bar; and charges for one of Plaintiffs' experts to attend the deposition of another expert. See 
Defendants' Opposition to Plaintiffs' Motion for A Protective Order Requiring Defendants to Pay 
Plaintiffs' Expert Deposition Fees and Expenses (filed Oct. 24, 2003). Rather than address these 
blatantly improper charges, Plaintiffs opted for Court intervention, and now take issue with the 
speed of the Court's response. Their specious request should be denied. 
Taxation of Costs C. 
Plaintiffs also submitted an application seeking an immediate taxation of costs by the 
Clerk of the Court. See Plaintiffs' Bill of Cost [sic] (filed Dec. 15, 2003). This request, too, is 
improper on its face. The Court's rules provide for the filing by a prevailing party of a bill of 
costs "after entry of judgment terminating the case as to the party seeking costs," LCvR 54.1(a), 
and direct the clerk to tax costs "after the judgment has become final." LCvR 54.1(c). Plaintiffs' 
request for an immediate taxation of costs flies in the face of these clear rules. See Defendants' 
Opposition to "Plaintiffs' Bill of Cost" (filed Dec. 19, 2003). 
4
The Court's March 11, 2003 Ruling D. 
In its March 11, 2003 Memorandum and Order, the Court imposed sanctions on 
Defendants, pursuant to Federal Rule of Civil Procedure 56(g), after finding that a declaration 
executed by the former Director of the Indian Trust Accounting Division of the General Services 
Administration contained material misrepresentations of fact and was, therefore, submitted in 
bad faith. Because the Court's decision disregarded the sworn testimony of a government official 
with twenty-seven years of experience in the area of Indian trust accounting in favor of an 
unsworn and unsupported letter from an official of the General Accounting Office who admitted 
that his office had "no direct knowledge" concerning the facts at issue, Interior has moved for 
reconsideration of the Court's ruling insofar as it imposed sanctions. See Interior Defendants' 
Motion and Supporting Memorandum for Reconsideration of the Court's March 11, 2003 
Memorandum and Order Insofar As It Granted Plaintiffs' Motion for Sanctions (filed Mar. 25, 
2003). Given that the reconsideration motion remains pending, it is inappropriate for the Court 
to address Plaintiffs' request for fees in connection with the March 11, 2003 ruling at this time. 
The Court's February 5, 2003 Ruling E. 
On February 5, 2003, the Court issued a Memorandum and Order that, inter alia, granted 
Plaintiffs' motion to compel the deposition of former Acting Special Trustee Donna Erwin, and 
required certain defense counsel to reimburse to Plaintiffs all reasonable expenses, including 
attorneys' fees, incurred in filing the motion to compel and in re-deposing Ms. Erwin. Plaintiffs 
deposed Ms. Erwin again on February 12 and 13, 2003. 
More than eight months later, however, Plaintiffs served yet another notice of deposition 
for Ms. Erwin. Interior objected and moved for a protective order in response to the notice. 
5
Defendants' Motion for Protective Order (filed Nov. 19, 2003). On January 9, 2004, Plaintiffs 
filed an "omnibus" motion to compel the further deposition of Ms. Erwin, as well as the 
depositions of a number of other individuals. Those motions are presently pending before the 
Court and, until the issues presented by those motions are resolved, it would be inappropriate to 
address the fee issues that Plaintiffs have raised.4 
Plaintiffs' Fee Request Under EAJA F. 
On October 9, 2003, Plaintiffs filed a Request for an Award of Attorney's Fees and 
Expenses Pursuant to the Equal Access to Justice Act ("EAJA"). As has been demonstrated in 
Interior's opposition to the request, Plaintiffs' application under EAJA is facially defective 
because it does not identify the amount of fees and expenses sought;5 does not demonstrate (or 
even allege) that Plaintiffs are eligible to recover fees; is premature because there has been no 
final judgment; and does not establish the requisite bad faith. See Defendants' Opposition to 
Plaintiffs' Request for an Award of Attorney's Fees and Expenses Pursuant to the Equal Access to 
Justice Act (filed Oct. 23, 2003). Plaintiffs' failure to satisfy these core requirements is fatal to 
their EAJA application. 
4 With respect to Ms. Erwin, Plaintiffs appear to be seeking expedited consideration 
of the protective order motion, rather than any fee application. See Plaintiffs' Motion at 5. 
5 Subsequent to making their EAJA application, Plaintiffs filed a Motion for 
Enlargement of Time Within Which to File Supporting Attorney and Expert Witness 
Documentation re EAJA Fee Application (filed Nov. 14, 2003). 
6
CONCLUSION 
Plaintiffs have identified no legal or factual basis supporting their request that the Court 
expedite its consideration of their requests that the United States pay fees and expenses to 
Plaintiffs' counsel. For all of the foregoing reasons, Plaintiffs' Motion should be denied. 
Dated: April 2, 2004 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
/s/ Sandra P. Spooner 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
GINO D. VISSICCHIO 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
7
CERTIFICATE OF SERVICE 
I hereby certify that, on April 2, 2004 the foregoing Defendants' Opposition to Plaintiffs' 
Motion for Expedited Consideration of Plaintiffs' Various Applications for Fees and Costs was 
served by Electronic Case Filing, and on the following who is not registered for Electronic Case 
Filing, by facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston 
8
__________________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE NORTON, Secretary of the Interior, et al., ) 
Defendants. 
)
) 
__________________________________________) 
This matter comes before the Court on the Plaintiffs' Motion for Expedited Consideration of 
Plaintiffs' Various Applications for Fees and Costs [2545]. Upon consideration of the Plaintiffs' 
Motion, Defendants' Opposition, any Reply thereto, the applicable law and the entire record of this case, 
the Court finds the Plaintiffs' Motion should be, and is hereby, DENIED. 
SO ORDERED. 
Date:______________ 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
Case No. 1:96CV01285 
(Judge Lamberth) 
)
)
)
)
) 
ORDER 
___________________________________ 
Hon. Royce C. Lamberth 
UNITED STATES DISTRICT JUDGE 
United States District Court for the 
District of Columbia 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. 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
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 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530