<< COB0000001 >> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL Ct al ) Plaintiffs, ) ) V. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE A. NORTON, Secretary of the Interior, ~ ) Defendants. ) __________________________________________________________________________________ ) INTERIOR DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION TO PROTECT ANY INDIVIDUAL INDIAN TRUST DATA Pursuant to Rule 65 of the Federal Rules of Civil Procedure and Local Civil Rule 65.1, Interior Defendants respectfully submit the following opposition to Plaintiffs' Motion for a Preliminary Injunction to Protect Any Individual Indian Trust Data ("P1 Motion"). I. Plaintiffs Have Not Established a Legal Basis for This Court to Grant the Preliminary Injunctive Relief Sought in Their Motion In considering whether to grant plaintiffs' application for a preliminary injunction, this Court must examine (1) whether there is a substantial likelihood that the plaintiffs will succeed on the merits, (2) whether the plaintiffs will suffer irreparable injury if the injunctive relief is denied, (3) whether the granting of injunctive relief would substantially injure the Government, and (4) whether the public interest would be served by the granting of the injunctive relief. ~ Davenport v. International Brotherhood of Teamsters. AFL-CIO, 166 F.3d 356, 360-61 (D.C. Cir. 1999) (citing Serono Laboratories. Inc. v. Shalala, 158 F.3d 1313, 13 17-18 (D.C. Cir. 1998)); Kudjodi v. Wells Fargo Bank, 181 F. Supp. 2d 1, 2 n. 2 (D.D.C. 2001). —1— << COB0000002 >> Plaintiffs' P1 Motion fails to establish a legal basis for this Court to exercise its extraordinary powers to issue a preliminary injunction. As we explain below, the P1 motion provides no basis for this Court to conclude that any of the four legal elements to be considered for the granting of a preliminary injunction have been met. Moreover, while the P1 motion is replete with the all-too-familiar hypcrbole and irrelevant ad hominem attacks upon every conceivable Government employee, to the extent the motion addresses the legal requirements for a preliminary injunction, plaintiffs only provide arguments for the issuance of a preliminary injunction as to the limited move of records from Albuquerque to the Federal Records Center in Lee's Summit, Missouri. Any claimed need for such relief, however, was mooted nrior to plaintiffs' filing their reuuest for a temporary restraining order, when the Deputy Secretary directed that the move not take place. Attachment A.' Thus, a reasoned and dispassionate review of P1's Motion confirms that plaintiffs have not and cannot satisfy the legal standard for entry of a preliminary injunction. A. Plaintiffs Have Not Established a Substantial Likelihood of Success on the Merits This particular chapter in this litigation was precipitated by the plaintiffs' request for a temporary restraining order, based upon the Emergency Report of the Special Master Regarding Defendant's Proposed Relocation of Records to the Lee's Summit Federal Records Center (filed Apr. 17, 2002) ("Emergency Report"). Plaintiffs' Emergency Motion for Temporary Restraing Order (filed Apr. 17, 2002) ("TRO Motion"). While plaintiffs filed a subsequent application for extension of the TRO (which this Court granted by its Order filed on May 3, 2002) and the P1 Except where otherwise noted, "Attachment" refers to a document attached to this opposition to the P1 Motion. -2- << COB0000003 >> Motion, plaintiffs have never filed a complaint seeking permanent injunctive relief with regard to the relocation of records to Lee's Summit or any other federal records center. Thus, on the face of their pleadings alone, plaintiffs fail to describe ~y permanent relief as to which they would have a substantial likelihood of success in obtaining on the merits. In describing how plaintiffs allegedly satisfy this first requirement for the issuance of a preliminaiy injunction, plaintiffs essentially rely upon the Special Master's Emergency Report. P1 Motion at 8-11. This, again, is restricted to the proposed transfer of documents from Albuquerque to Lee's Summit, a proposed transfer which was already placed on hold, at the direction of the Deputy Secretary of the Interior. As we explained in our initial opposition to plaintiffs' TRO Motion, this Court did not need to exercise its extraordinary injunctive powers because, nrior to plaintiffs' filing their TRO Motion, Interior had already determined not to proceed with the proposed transfer. Attachment A; ~ Interior Defendants' Opposition to Plaintiffs' Emergency Motion for Temporary Restraining Order (filed Apr. 18, 2002) ("Opposition to TRO Motion) at 2-4 and Attachment A to Opposition to TRO Motion, pages A-2 to A-4. In fact, the Deputy Secretary's directive, issued prior to the filing of the TRO Motion confirmed that the Interior Department's Office of the Secretary was in consultation with the Special Master regarding the records program and concluded by stating: Given the historical concerns about records retention and protection, I believe that it is imperative that we be extremely careful to ensure trust records are protected and preserved. I want to make sure that the Special Master is pronerly and timely -3- << COB0000004 >> informed and that he has every opportunity to resolve concerns nrior to the Department taking irreversible actions. Attachment A. The Deputy Secretary's directive remains in place today.2 The plaintiffs cannot meet the burden of establishing a substantial likelihood of success on the merits. Indeed, to date, plaintiffs have not even bothered to articulate what those "merits" would constitute because they have failed to seek any form of permanent injunctive relief as to any transfers of documents. B. PlaintifTh Will Not Suffer Irreparable Harm If the Court Denies Their Request for a Preliminary Injunction Just as plaintiffs have failed to articulate any form of permanent injunctive relief sought in their pleadings, plaintiffs have failed to articulate any form of irreparable harm not already addressed by Deputy Secretary Griles' pre-TRO directive. Rather, their PT Motion, again, relies upon the Special Master's Emergency Report as proof of its alleged irreparable harm. P1 Motion at 12-15. 2 A memorandum initially distributed by Deputy Commissioner Blackwell, discussed in plaintiffs' emergency notice filed with the Court on May 8, 2002, did not rescind Deputy Secretary Griles' directive. In fact, the memorandum stated, in the second paragraph, "Please be reminded that the Deputy Secretary's memo of April 16, 2002 continues to govern the movement of records containing individual Indian trust data." Attachment to Plaintiffs' Emergency Notice (filed May 8, 2002). Deputy Commissioner Blackwell's memorandum reflected a misunderstanding resulting from the fact that the Court's extension of the TRO was not filed until May 3, 2002. This misunderstanding was addressed immediately upon the Interior Department's being informed of the extension of the TRO. We have attached a declaration from Ms. Sabrina McCarthy, Interior Department Solicitor's Office, addressing the chronologyof Deputy Commissioner Blackwell's memorandum. This declaration further confirms that as soon as Ms. McCarthy learned about the Court's extension of the TRO, she orally informed Interior employees about the extension and, further, that a clarifying memorandum from Deputy Commissioner Blackwell was distributed, as well, on May 8, 2002. Attachment B. -4- << COB0000005 >> The indisputable evidence demonstrates that regardless of whether the Interior Defendants fully agree with the Special Master's Emergency Report — and there plainly are areas of disagreement — the Interior Department has acted responsibly to address the Special Master's concerns and has done so through timely consultation with the Special Master. Plaintiffs cannot establish any potential irreparable harm if the Court denies the P1 Motion. C. The Preliminazy Injunction Would Substantially Injure the Government and Would Not Serve the Public Interest While plaintiffs devote page-upon-page of their P1 Motion to inflammatory attacks upon the Interior Department and its many employees, the P1 Motion devotes less than two pates to the third and fourth elements required for entry of a preliminary injunction. There is a simple explanation for the dirth of arguments regarding injury to the Government and the public interest of the proposed injunctive relief: the oroposed preliminary injunction is overly broad. desi2ned to undermine the effective operations of the Interior Department, and is plainly harmful to the interests of the public. The proposed preliminary injunction would bar the Secretary of the Interior Department and her employees and agents from taking any "action to transfer or relocate any trust records containing any individual Indian trust data (Trust Records') without prior notice to the Court, and without the prior written approval of the Special Master." P1 Motion, Proposed Preliminary Injunction. While the proposed preliminary injunction proceeds to set forth limited exceptions for certain duplicates, checks, and negotiable instruments, it plainly encompasses a vast body of original records, none of which will be transferrable until the Special Master has urovided his written approval for the records to be transferred. -5- << COB0000006 >> The proposed preliminaiy injunction would chill the ability of Interior Department employees to perform their duties: no Interior Department employee could feel legally permitted to move an original document within a building or use an original document for a routine business purpose without first asking for and obtaining the Special Master's written approval. Surely, this is not what the Court envisioned when it appointed a Special Master in this litigation. This is a draconian formula for introducing wholly unjustifiable waste into the operations of both the Interior Department and the Special Master. Moreover, whatever concerns plaintiffs may have with regard to historic records, based upon the Special Master's Emergency Report, such concerns cannot provide a basis for placing a stranglehold upon the operations of the Interior Department or for creating a new burden for the Special Master. The plaintiffs' P1 Motion should be denied because it clearly injures the Government and is contrary to the public interest. ~ Macht v. Skinner, 715 F. Supp. 1131, 1137 (D.D.C.) (denying extraordinary remedy of preliminary injunctive relief where injunction would harm public and would be contrary to public interest), aft'd mem., 889 F.2d 291 (D.C. Cir. 1989). II. The Court Should Deny Plaintiffs' P1 Motion Because the Relief Sought Would Be Grossly Injurious to the Public Interest, Including Members of Plaintiffs' Class, and the Effective Or,erations of the Government As we have explained above, plaintiffs cannot satisfy their burden for entry of the preliminary injunction sought in their motion. As a result of the entry of the TRO, the operations of the Interior Department have already been hamstrung, and in some cases, this has impacted even members of the plaintiffs' class. This fact can be gleaned from a review of the various -6- << COB0000007 >> activities stopped by the TRO until Interior Defendants identified problems and filed notices regarding necessary document transfers following the TRO's entry. ~ Notice (filed May 3, 2002) and Notice (filed May 9, 2002) (copies attached as Attachments C and D); see also Interior Defendants' Status Report Regarding Documents (filed May 1, 2002). Now, plaintiffs wish to add yet another banier to the Interior Department's ability to carry out its legal obligations and responsibilities by inserting the Special Master as a party who must provide written approval for any contemplated document transfers. It bears repeating that the genesis of this chapter in this litigation was the Special Master's Emergency Report, in which he raised concerns about the Interior Department's plans to transfer documents to a federal records center in Lee's Summit, Missouri. As a product of Interior Defendants' interactions with the Special Master, Deputy Secretary Griles had already rescinded that planned transfer before plaintiffs filed their application for a TRO. With that planned transfer placed on hold, pending resolution of the Special Master's concerns, Attachment A, plaintiffs now seek to bar the transfer in any Interior Department office of virtually any trust record containing individual Indian trust data. Such a request goes far beyond any concern identified by the Special Master's Emergency Report and cannot be reconciled with any notion of the interests of the public.3 Conclusion Plaintiffs' P1 Motion is wholly without merit, given the concerns of the Special Master's At the very least, in the event the Court concludes that it will grant some form of preliminary injunctive relief, the public interest unquestionably requires that the Court exempt from its coverage all routine Interior Department activities required for the administration of Individual Indian Money accounts, including the transfer and movement of Trust Records for such purposes. -7- << COB0000008 >> Emergency Report, the response of Interior Defendants, and the public's interest in receiving the services that the Interior Department is legally obligated to provide. For the foregoing reasons, plaintiffs' Motion for a Preliniinaiy Injunction to Protect Any Individual Indian Trust Data should be denied. Respectfi.illy submitted, ROBERT MeCALLUM, JR. Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General I. CHRISTOPHER KOHN Director Deputy Director JOHN T. STEMPLEWICZ Senior Trial Attorney JOHN WARSHAWSKY Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 May 14, 2002 -8- << COB0000009 >> CERTIFICATE OF SERVICE I declare under penalty of perjury that, on May 14, 2002 I served the Foregoing Interior Defendants' Opposition to Plainuff's Motion for a Preliminary Injunction to Protect Any Individual Indian Trust Data, by facsimile in accordance with their written request of October 31, 2001 upon: Keith Haiper, Esq. Dennis M Gingold, Esq. Native American Rights Fund Mark Brown, Esq. 1712 N Street, NW 1275 Pennsylvania Avenue, N.W. Washington, D.C. 2003 6-2976 Ninth Floor 202-822-0068 Washington, D.C. 20004 202-318-2372 By Hand Delivery: Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Ave., N.W. 12th Floor Washington, D.C. 20006 (202) 986-8477 By U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Courtesy Copy by U.S Mail: Joseph S. Kieffer, 1111 Court Monitor 420 - 7th Street, N.W. Apartment 705 Washington, D.C. 20004 -~ Kevin P. Ki ston