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IN THE UNITED STATES DISTRICT COURT “ . . - . - < . 
FOR THE DISTRICT OF COLUMBIA . .- 
ELOUISE PEPION COBELL, & al., 
Plaintiffs, 
V. 
GALE A. NORTON, Secretary of 
the Interior, a al., 
Defendants. 
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No. 1:96CV01285 
(Judge Lamberth) 
INTERIOR DEFENDANTS’ MOTION TO 
DISOUALIFY SPECIAL MASTER BALARAN 
INTRODUCTION 
Interior Defendants respectfully submit the following Motion to Disqualify Special 
Master Balaran.’ 
On April 21, 2003, the Special Master released an “Interim Report” regarding allegations 
that the Department of the Interior (“Interior”) had concealed information that should have been 
included in its Eighth Quarterly Report. The Interim Report purports to make a range of findings 
that culminate in the Special Master’s conclusion that Interior acted improperly in a variety of 
respects. Among other things, the Report concludes that Interior wrongfully concealed from the 
Court information gathered by a government contractor, Native American Industrial Distributors, 
Inc. (“NAID”). These allegations were first made in a motion to intervene filed by NAID, 
asserting that Interior had improperly terminated NATD’s contract in connection with its efforts at 
concealment. 
In accordance with Local Rule 7.1(m), on May 29,2003, Interior Defendants’ counscl 
conferred with Plaintiffs’ counsel regarding this motion. Plaintiffs oppose this motion. This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
The Interim Report acknowledges that it is based on information “obtained outside of 
normal channels and to which the parties may have no familiarity.” Interim Report of the Special 
Master Regarding the Filing of Interior’s Eighth Quarterly Report at 1 n. 1. What the Interim 
Report does not acknowledge is that the Special Master prepared the Report with the direct 
assistance of a former NALD employee, Mike S. Smith, one of the principal NAID witnesses to 
the events described in the Interim Report. NAtD has a direct financial interest in the events 
under investigation. Indeed, it was NAID itself that charged the government with concealment 
when it attempted to intervene in this litigation to protect its contractual interests. At the time 
NAID attempted to intervene, Mr. Smith was still an employee of NAID. After the Court denied 
the motion to intervene, Mr. Smith left his job at NAID and was hired by the Special Master to 
aid in preparation of the Interim Report. The Special Master submitted a bill to the Court on Mr. 
Smith’s behalf, seeking payment from Interior of approximately $15,000 for 110 hours of Mr. 
Smith’s time working on this matter. 
The Special Master’s contacts with Mr. Smith and his decision to employ Mr. Smith 
would cause any reasonable observer to question his impartiality and demonstrate actual bias. A 
judicial officer who purports neutrally to evaluate the conduct of a defendant cannot conduct 
extensive ex parte contacts with a complaining party or witness, much less hire that person to 
help to prepare his report. And a Special Master who prejudges a defendant in this fashion and 
then stigmatizes it in a public report cannot properly continue as a judicial officer. Recusal is 
therefore required.2 
i?/ Although this disqualification motion is based solely on the actions of Mr. Balaran during his 
investigation of the NAID matter, the limited scope of this motion should not be construed as a 
waiver of any objection that defendants may have to other Special Master activity. Nevertheless, 
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BACKGROUND 
On February 24, 1999, the Court appointed Alan Balaran to serve as a Special Master in 
this case. See Order of February 24, 1999. This first order of reference authorized the Special 
Master to “oversee the discovery process in this case.” Id.at 2. On August 12, 1999, the Court 
expanded the Special Master’s authority to include oversight of Interior’s retention and 
protection of records. Order of August 12, 1999. On September 17,2002, the Court 
referred to the Special Master two of Plaintiffs’ motions seeking to hold various non-parties in 
contempt. See Order of September 17,2002. In the same order, the Court established Special 
Master Balaran’s authority to oversee the discovery process with regard “to issues related to IT 
security, records preservation and retention, the Department of the Treasury, and Paragraph 19 
document^."^ Id.at 5. 
NAID is an information technology, security, management and training firm that Interior 
has retained since 1999 to provide assistance with the Trust Asset and Accounting Management 
System (“TAAMS”). On August 30,2002, NAID moved to intervene in this action, alleging that 
Interior had retaliated against it “in an attempt to silence” efforts by NAID “to accurately report 
to this Court and others the nature and extent of progress in meeting the requirements of the 
[American Indian Trust Fund Reform Act of 19947 and of the previous Orders of the Court.” 
Motion of NAID to Intervene at 7 3. Specifically, NAID claimed that when it gave Interior 
the conduct discussed here is so extraordinary that it disables Mr. Balaran from serving in any 
further capacity in this case. 
Joseph Kieffer, as Special Master-Monitor, was authorized to oversee all other discovery 
matters not within the scope of Special Master Balaran’s authority. Order of September 17, 
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unfavorable reports on TAAMS project progress in November 2001, Interior purposely 
disregarded those reports in preparing its Eighth Quarterly Report to the court. NAID claimed 
that Interior then retaliated against it by “substantially”reducing the scope and value of its 
contract, Verified Motion of Intervenor [sic] NAID for Temporary Restraining Order, 
Preliminary and Permanent Injunctive Relief at 7 38 (filed August 30,2002), and by assigning 
the work instead to another Interior contractor, Electronic Data Systems Corporation (“EDS”), 
which had purportedly reported more favorably on TAAMS progress. Id.at 7 40. 
Mike S. Smith was a member of the TAAMS Project Team and one of the principal 
NAID witnesses to the events described in NAID’s motion to intervene. He was still an NAID 
employee when NAID filed its motion and, as of January 2003, Mr. Smith was NAID’s 
Executive Vice President. 
On September 24,2002, the Court denied NAID’s motion to intervene on procedural 
grounds. However, in a letter dated October 7, 2002, the Special Master informed Interior’s 
counsel that the “Court directed me to investigate whether the Department of the Interior 
withheld any information provided by NAID.”Letter fiorn Special Master Balaran to Peter 
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Miller at 1 (October 7, 2002) (attached as Exhibit A). 
The Court’s direction to Mr. Balaran was not memorialized in a written order or other 
document. The Court apparently instructed Mr. Balaran to begin a new investigation in an offthe-
record communication. By letters of October 9 and 10,2002, counsel for interior informed 
Special Master Balaran that Interior did not believe that the Special Master had authority to 
conduct this new investigation without a written order from the Court. See Letter from Phil 
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Seligman to Special Master Balaran (October 9,2002); Letter from Phil Seligman to Special 
Master Balaran (October 10, 2002) (attached as Exhibit B). 
By Order dated November 5, 2002,4the Court then appointed Special Master Balaran to 
investigate NAID’s claims: 
The Court wishes to ascertain whether there is any validity to NAID’s contention that 
the Department of the Interior withheld information fi-omthe Court that should have 
been disclosed in the Eighth Quarterly Report; and is directing the Special Master to 
investigate whether Interior engaged in any such concealment. 
November 5,2002 Order at 1. The Order provided that “the Special Master shall file with the 
Court, with copies to defendants’ and plaintiffs’ counsel, his report and recommendation 
detailing his findings and conclusions.” Id.at 1-2. 
On April 21,2003, the Special Master filed the Interim Report of the Special Master 
Regarding the Filing of Interior’s Eighth Quarterly Report (“Interim Report”). That document 
was released immediately to the public and was reported in the press.5 Plaintiffs immediately 
filed the document with the court of appeals, offering it as evidence of misconduct by the 
government. See Letter From Elliott Levitas to Mark Langer, Clerk, Court of Appeals (April 22, 
2003) (Attached as Exhibit C). 
The handwritten date of the Order is “12-5-02,” but this is obviously a mistake, as the Order 
was filed on November 5. 
The Special Master was not granted the authority to issue an interim report in the November 5, 
2002 appointment Order. It is notable that a Special Master who has not issued a final report for 
an investigation that is apparently complete (see Interior Defendants’ Motion and Supporting 
Memorandum for Release of the Report of the Special Master Regarding it Security and Any 
Information Reported to the Court Regarding the Special Master’s Investigation or Report (filed 
September 3,2002); Interior Defendants’ Second Motion And Supporting Memorandum For 
Release of the Report of the Special Master Regarding IT Security And Any Information 
Reported to the Court Regarding the Special Master’s Investigation Or Report (filed March 12, 
2003)) felt compelled to issue an interim report on an incomplete investigation. 
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The Special Master’s Interim Report was not based on evidence received from the parties. 
To the contrary, the Interim Report admitted at the outset that its findings were based on 
information “obtained outside of normal channels and to which the parties may have no 
familiarity.” Interim Report at 1 n. 1. 
The Interim Report does not explain precisely what “channels” the Special Master relied 
upon, and Interior is unaware of the precise scope of his ex Darte contacts and his reliance on 
extra-record sources. The Special Master’s billing records reveal, however, that Mr. Balaran had 
extensive ex Darte contacts with the former Executive Vice President of NAID, Mike S. Smith, 
and that the Special Master, in fact, Mr. Smith to assist in the preparation of his Report. 
The March 2003 Report of the Special Master, submitted to the Court on April 1,2003, 
contains Invoice #35 (at exhibit 7 to the March Report), which identifies numerous charges for 
work done on the investigation by an individual identified as “MSS.” See Invoice #35, entries 
for 2/27/03,3/5/03, 3/6/03, 3/12/03,3/13/03,3/14/03, 3118/03, 3119/03, 3/20/03,3/21/03, 
3/26/03,3/27/03 (attached as Exhibit D).6 The charges on Invoice #35 for “MSS” total 65.30 
hours and $8,815.50. 
The Special Master was accompanied by Mike Smith during a February 27, 2003 inspection of 
the collection of documents at Interior responsive to the October 7, 2002 requests f-i-omthe 
Special Master. Mr. Smith’s presence at this inspection, with Interior’s counsel also present, did 
not seem remarkable. As one of the principal NAID employees and a TAAMS Project Team 
member he had previously seen all of the requested documents and could presumably point out to 
the Special Master which documents were relevant to NAID’s allegations that were under 
investigation. The Special Master did not reveal at that inspection, or at any other time, that Mr. 
Smith had been employed by the Special Master or that he planned to employ him for assistance 
with the investigation, or that he planned to meet ex Darte with Mr. Smith. The February 27, 
2003 inspection is the first reported charge for “MSS” identified in the Special Master’s invoices. 
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Invoice #37 (Exhibit 3 to the April 2003 Report of the Special Master) also lists 
numerous charges for work on the Interim Report by “MSS.” See Invoice #37, entries for 
3/31/03,4/1/03,4/2/03,4/3/03, 4/4/03,4/5/03,4/6/03,4/7/03,4/8/03,4/9/03,4/11/03,4/14/03 
(attached as Exhibit E). In addition, Invoice #37 contains charges for the Special Master’s 
assistant, Ed Volz (identified as “EKV” on the invoice), for work on the Interim Report in 
association with “Mike Smith.” See, e.g, Invoice #37, entries for 4/6/03,4/7/03,4/8/03,4/9/03, 
4/10/03,4/11/03,4/15/03,4/16/03. The charges submitted for “MSS” in Invoice #37 total 44.39 
hours and $5,992.65. The “MSS” charges in these two invoices for work done on the Special 
Master’s investigation and for preparation of the Interim Report total 109.69 hours and 
$14,808.15. See Exhibit F (containing a list of the charges submitted by the Special Master for 
Mike S. Smith). The “MSS” charges on the Special Master’s invoices are for work done by the 
Mike S. Smith who was an employee of NAID and a member of the TAAMS Project Team at the 
time the events described in the Interim Report took place. 
The billing records indicate that Mr. Smith actually drafted and edited portions of the 
Interim Report. See, e.g., Invoice #37, entries for 4/3/03 (“MSS Draft 8th QR analysis”), 4/4/03 
(same), 4/15/03 (“EKV Assist the Special Master and Mike Smith editing report on the 8th 
Quarterly Report”), 4116/03(“EKV Assist Mike Smith editing and organizing materials for report 
on the 8th Quarterly Report”). 
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DISCUSSION 
I. LEGAL, STANDARDS FOR DISQUALIFICATION 
Every litigant has a basic right to ‘‘aneutral and detached judge.” Ward v. Village of 
Monroeville, 409 U.S. 57,62 (1972). This right is protected by statutory provisions and by the 
Code of Judicial Conduct, which create strict and objective standards for recusaL7 
Recusal is required whenever a judge’s impartiality “might reasonably be questioned.” 28 
U.S.C. 9 455(a). This provision requires neither a showing of subjective bias nor, indeed, a 
showing that actual bias exists. The purpose of this provision “is to promote confidence in the 
judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg.v. 
Health Servs. Acquisition Corp., 486 U.S. 847, 865 (1988). “The standard for disqualification 
under 4 455(a) is an objective one[;] [tlhe question is whether a reasonable and informed 
observer would question the judge’s impartiality.” United States v. Microsoft Corp., 253 F.3d 
34, 114 (D.C. Cir. 2001); see Liteky v. United States, 510 U.S. 540, 548 (1994) (“[Grounds for 
recusal must] be evaluated on an objective basis, so that what matters is not the reality of bias or 
prejudice but its appearance.” (emphasis in original)). Thus, a judge need not have actual bias or 
even be aware of the facts creating an appearance of impropriety “so long as the public might 
reasonably believe that he or she knew” of such facts. Liljeberg, 486 U.S. at 860. 
Section 455(b) requires recusal whenever a judge “has a personal bias or prejudice 
concerning a party or personal knowledge of disputed evidentiary facts concerning the 
z/ Section 455 of Title 28 largely tracks Canon 3(C) of the Code of Judicial Conduct, and 
Congress intended that the standard for disqualification under 28 U.S.C. 9 455 be “virtually 
identical” to the ethical standard of Canon 3(C). See H.R. Rep. No. 93-1453, reprinted 1974 
U.S.C.C.A.N. 6351,6353. See also Hall v. Small Business Admin., 695 F.2d 175, 178 (5th Cir. 
1983). 
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proceeding.” 28 U.S.C. fj455(b)(l). Section 455(b)(l) requires recusal where the official has “a 
favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, 
either because it is undeserved, or because it rests upon knowledge that the subject ought not to 
possess . . . or because it is excessive in degree.” Liteky, 5 10 U.S. at 550 (emphasis in original). 
The D.C. Circuit has made clear that judicial officers, including special masters, must 
adhere to the ethical precepts established by section 455. See Jenkins v. Sterlacci, 849 F.2d 627, 
632 (D.C. Cir. 1988). 
11. THE SPECIAL MASTER’S CONDUCT CALLS HIS IMPARTIALITY INTO 
QUESTION AND DEMONSTRATES ACTUAL BIAS 
This Court directed the Special Master to investigate charges of concealment brought to 
the Court by NAID in connection with its claim of improper contract termination. The Court 
declared that it wished to ascertain the validity of “NAlD’s contention that the Department of the 
Interior withheld information from the Court that should have been disclosed in the Eighth 
Quarterly Report.” November 5 Order at 1. Accordingly, the Court provided that “the Special 
Master shall file with the Court, with copies to defendants’ and plaintiffs’ counsel, his report and 
recommendation detailing his findings and conclusions.” Id.at 1-2 . 
In undertaking this responsibility, the Special Master assumed the paradigmatic judicial 
role of considering and evaluating evidence and of making findings and conclusions. No judicial 
officer undertaking such a task could properly engage in ex parte contacts. Still less could he 
engage in contacts with an officer or former officer of a complaining party with a significant 
financial interest in his findings and conclusions. Even more clearly, he could not put such a 
person on his payroll and ask him to drafi or edit portions of his report. 
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Nevertheless, that is precisely what Mr. Balaran has done. NAID came to this Court 
seeking to press its contractual interests by charging Interior with concealing information. This 
Court asked the Special Master to make findings and conclusions as to those charges. The 
Special Master departed fiom the most fundamental principles of judicial conduct in engaging in 
off-the-record contacts with a former NAID officer and in hiring him to prepare his findings and 
conclusions. 
The extraordinary nature of the Special Master’s conduct is underscored by a letter 
written by Mike Smith on January 7,2003, during the course of the Special Master’s 
investigation. Mr. Smith, who at this time was still Executive Vice President of NAID, wrote to 
Interior regarding NAID’s pending contract dispute with Interior. Mr. Smith copied the letter to 
“Alan Balaran, Special Master.” Letter fiom Mike Smith, Executive Vice President of NAID, to 
Carl Hotubbee, Contracting Officer, Department of the Interior (January 7,2003) at 2 (attached 
as Exhibit G). In this letter, Mr. Smith declared: 
[W]e have retained the services of counsel because we are dealing with a government 
agency that is refusing to negotiate with us in good faith. Rather, we have been the 
target of retaliation; allegations of which are still under investigation by the Court 
Appointed Special Master. 
-Id. at 1. 
Mr. Smith’s letter highlights NAID’s direct financial interest in the outcome of the 
Special Master’s report and leaves no doubt that its interests were directly opposed to those of 
Interior. It also leaves no doubt as to Mr. Smith’s own views. Within a few months, Mr. Balaran 
had transformed Mr. Smith from a party charging the government with bad faith and retaliation 
into a confidential associate and draftsman. That Mr. Balaran should have thought it appropriate 
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to solicit Mr. Smith’s views off-the-record or to hire him in any capacity signals a 
misunderstanding of his role so profound as to preclude him from acting as a judicial officer in 
this case. Any reasonable observer would question the impartiality of ajudicial officer who 
collaborated with an interested party to discredit a defendant and expose it to charges of 
contempt or fraud. Indeed, the prospect of a judge or judicial officer engaging in such conduct 
would be scarcely conceivable if Mr. Balaran had not, in fact, done so. 
Recusal is also required under section 455(b). A judicial officer who publicly levels 
grave charges against a defendant on the basis of ex parte communications with adverse parties 
has abandoned any pretext of objectivity.’ Indeed, apart from anything else, Mr. Balaran’s 
willingness to h r e Mr. Smith and to publicize his “interim report” indicates a wholly improper 
willingness to pre-judge Interior’s conduct and to subject it to public attack without giving 
Interior the opportunity to see or respond to the evidence procured “outside of normal channels.’’ 
Interim Report at 1 n. 1. 
The extreme impropriety of the Special Master’s conduct can be gauged by comparison to 
other cases in which recusal has been required. Recusal on the basis of ex parte contacts is 
required even when a judicial officer obtains knowledge only from impartial experts. As the 
Seventh Circuit explained in In re Edgar, 93 F.3d 256 (7th Cir. 1996), with regard to a judge’s 
conversations with an expert panel, “personal knowledge“ means infomiation derived outside the 
record and not subject to adversarial testing. The court emphasized that “[tlhe point of 
distinguishing between ‘personalknowledge’ and knowledge gained in a judicial capacity is that 
Mr. Smith’s willingness to accept payment by the Special Master also fatally compromises any 
testimony that he may give on this matter. 
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information from the latter source enters the record and may be controverted or tested by the 
tools of the adversary process.” Id.at 259. “Knowledge received in other ways, which can be 
neither accurately stated nor fully tested, is ‘extrajudicial.”’Id. 
Certain very limited ex Darte procedures may be appropriate, as when a judge must 
determine how to treat sensitive information. See Clifford v. United States, 136 F.3d 144 (D.C. 
Cir. 1998). But defendants are aware of no precedent that would permit ex parte contacts of the 
kind at issue here. See United States v. Microsoft Corp. (“Microsoft I”), 56 F.3d 1448, 1464-65 
(D.C. Cir. 1995) (case should be reassigned when, among other things, a district court formed 
views based on his reading of a book and accepted ex parte submissions, even though the court 
stated it had not considered the ex parte material); see also United States v. MicrosoR Corp. 
(“Microsoft Eft)253 F.3d 34 (D.C. Cir. 2001). The Special Master’s willingness to obtain and 
then publicize ex parte evidence and his strongly held views is far more egregious than the 
conduct that compelled reassignment in either Microsoft I or Microsoft II. 
As the D.C. Circuit has emphasized, it is a “cardinal principle of our system ofjustice 
that factual disputes must be heard in open court and resolved through trial-like evidentiary 
proceedings.” Microsoft II, 253 F.3d at 101. In making findings and conclusions of deliberate 
concealment on the basis of evidence obtained “outside of normal channels and to which the 
parties may have no familiarity,” Interim Report at 1 n. 1, the Special Master turned his back on 
the most basic precepts of judicial conduct.’ 
By proceeding as he has, the Special Master has also hstrated the purpose of Federal Rule of 
Civil Procedure 53(e)(I), which requires the master to file with any report “a transcript of the 
proceedings and of the evidence and the original exhibits.” 
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Because a reasonable observer would question Mr. Balaran’s impartiality, recusal is 
required. The need for recusal cannot be eliminated by subjecting his factual findings to de novo 
review.” See Cobell v. Norton, 237 F. Supp. 2d 71,84-85 (D.D.C. 2003). In concluding that 
Special Masters are judicial officers subject to the same disqualification standards as judges, the 
D.C. Circuit in Jenkins explained that “[gliven the complexities of the issues special masters are 
frequently called upon to sort out, the closely disputed issues of fact they must resolve in the first 
instance, and the ‘clear error’ standard governing the court’s review of their findings, the district 
court’s oversight of a special master falls far short of plenary ‘control’ . . . .” 849 F.2d at 63 1. 
The Court of Appeals did not suggest that a master whose impartiality might reasonably be 
questioned could continue to make proposed findings and conclusions as long as they were 
subject to a de novo standard of review. Plainly, the application of de novo review would not 
allow a court to appoint a master without regard to his financial or other interests in the litigation. 
No party should be adjudged by a biased judicial officer, whatever standard of review may later 
be applied to his actions. The efficacy of such review can never be certain. Where the master 
has relied on non-record materials and ex parte contacts, effective review is rendered all but 
impossible. 
In any event, however a special master may be categorized, recusal would be required 
here. Mr. Balaran’s departure from settled principles governing adjudication in the federal courts 
strikes at the heart of the judicial process. For similar reasons, the Court cannot properly obtain 
Based upon the Court’s recent description of the Interim Report as “the Specfal Master’s 
report on whatever the latest lie is,” Trial Transcript, May 28,2003 at 127:23-128:4 (attached as 
Exhibit H), Interior fears that the Court may have already accepted the preliminary findings of 
the Special Master as true and not even subjected them to de novo review. 
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advice from Mr. Balaran, whatever standard of review is applied to his recommendations. A 
judge may not, after all, disregard a law clerk’s involvement with a case or its parties, even 
though the law clerk’s advice is given no deference at all. See, e.g, Parker v. Connors Steel Co., 
855 F.2d 1510 (1 1th Cir. 1988) (recusal required where, inter alia, judge’s law clerk was son of 
partner in firm handling litigation); Bvme v. Nezhat, 261 F.3d 1075 (1 lth Cir. 2001) (recusal not 
required where judge isolated Iaw clerk from case involving past employer). 
It is plain that Mr. Balaran can no longer serve as special master. It should be equally 
clear that if any individual is to serve as special master in the future, he or she must abide by the 
axioms of our judicial system. Any master must be instructed that evidence is to be obtained 
from the parties and on the record. Only in this way can the Court ensure fairness and the 
perception of fairness. 
CONCLUSION 
For the foregoing reasons, Special Master Balaran should be disqualified as a special 
master in this case. 
Dated: May 29, 2003 Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
Deputy Director 
D.C. Bar No. 261495 
JOHN T. STEMPLEWICZ 
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Senior Trial Attorney 
PHILLIP M. SELIGMAN 
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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