Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2004 Decided December 3, 2004
No. 03-5262
ELOUISE PEPION COBELL, ET AL.,
APPELLEES
v.
GALE A. NORTON,
AS THE SECRETARY OF THE INTERIOR AND
AURENE M. MARTIN, ACTING ASSISTANT SECRETARY
OF THE INTERIOR FOR INDIAN AFFAIRS,
APPELLANTS
Consolidated with
No. 04-5084
Appeals from the United States District Court
for the District of Columbia
(No. 96cv01285)
Mark B. Stern, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Peter D. Keisler, Assistant Attorney General, Kenneth L.
Wainstein, U.S. Attorney, Gregory G. Katsas, Deputy Assis-
tant Attorney General, Robert E. Kopp, Thomas M. Bondy,
Charles W. Scarborough, Alisa B. Klein, Lewis S. Yelin, and
Tara L. Grove, Attorneys.
G. William Austin, III argued the cause for appellees
Elouise Pepion Cobell, et al. With him on the brief were
Elliott H. Levitas, Mark I. Levy, Dennis M. Gingold, and
Keith M. Harper. Jamin B. Raskin and Mark K. Brown
entered appearances.
Before: GINSBURG, Chief Judge, and RANDOLPH and ROGERS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The Secretary of the Interior and
others (‘‘the Secretary’’) appeal the preliminary injunction of
March 15, 2004, which superseded and replaced an injunction
of July 28, 2003, and required disconnection of substantially
all of the Department of the Interior’s computer systems
from the Internet. Cobell v. Norton, 310 F. Supp. 2d 77
(D.D.C. 2004) (‘‘Cobell XI’’). The injunction also requires the
Secretary to submit a plan for secure reconnection of Interi-
or’s computer systems. In Cobell v. Norton, 240 F.3d 1081
(D.C. Cir. 2001) (‘‘Cobell VI’’), the court affirmed the district
court’s finding of a breach of fiduciary duty by the Secretary
of the Interior and the other defendants, as trustees of funds
held in trust for individual Native Americans (hereafter,
‘‘Indians’’), in failing to provide an accurate accounting. On
remand, the district court entered several injunctive orders
mandating Interior to disconnect its computers from the
Internet in light of concerns about the security of individual
Indian trust data (‘‘IITD’’), which are the basis for accounting
for Indian funds and are housed on an unknown number of
Interior’s computer systems. On appeal from the latest
injunction entered March 15, 2004, the Secretary contends
that the district court exceeded its lawful authority and,
alternatively, lacked a factual predicate for the injunction.
3
We hold, contrary to the Secretary’s contention, that issu-
ance of the March 15, 2004 injunction is not precluded by
Pub. L. 108-108, 117 Stat. 1241, 1263 (2003), which applies
only to ‘‘historical accounting activities.’’ As the district court
noted, ‘‘Interior’s present obligation to administer the trust
presents sufficient grounds for finding that Plaintiffs will be
irreparably injured.’’ Cobell XI, 310 F. Supp. 2d at 96 n.27.
We further hold that the district court’s jurisdiction properly
extends to security of Interior’s information technology sys-
tems (‘‘IT’’) housing or accessing IITD, because the Secre-
tary, as a fiduciary, is required to maintain and preserve
IITD. We nevertheless vacate the injunction because the
district court erred by placing the burden of persuasion upon
the Secretary, disregarding Interior’s certifications on the
state of IT security, and failing to hold an evidentiary hearing
prior to entering the injunction.
I.
The underlying litigation concerns individual Indian money
accounts (‘‘IIM’’), which collectively form a trust established
by the General Allotment Act in 1887 for the benefit of
American Indians.1 The trust corpus consists of the revenues
derived from land that was carved out of preexisting Indian
reservations under the 1887 Act. See generally Cobell VI,
240 F.3d at 1086-88. In 1994, after decades of mismanage-
ment of the trust by the Interior and Treasury Departments,
the Secretaries of which serve as trustees for the trust,
Congress enacted the Indian Trust Fund Management Re-
form Act (‘‘1994 Act’’), Pub. L. No. 103-412, 108 Stat. 4239
(1994), which requires the Interior Secretary, among other
things, to ‘‘provid[e] adequate systems for accounting for and
reporting trust fund balances.’’ Cobell VI, 240 F.3d at 1089-
1 Cobell v. Babbitt, 91 F. Supp. 2d 1 (D.D.C. 1999) (‘‘Cobell V’’);
Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001) (‘‘Cobell VI’’);
Cobell v. Norton, 274 F. Supp. 2d 111 (D.D.C. 2003) (‘‘Cobell IX’’);
Cobell v. Norton, 310 F. Supp. 2d 77 (D.D.C. 2004) (‘‘Cobell XI’’);
Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003); In re Brooks, 383
F.3d 1036 (D.C. Cir. 2004).
4
90; 25 U.S.C. § 162a(d)(1). In 1999, the district court found
a breach of fiduciary duty by the Secretary, and ruled that,
pursuant to the 1994 Act, the Secretary must provide ‘‘an
accurate accounting of all money in the IIM trust,’’ and
establish written policies for the ‘‘computer and business
systems architecture necessary’’ for an accurate accounting.
Cobell v. Babbitt, 91 F. Supp. 2d 1, 58 (D.D.C. 1999) (‘‘Cobell
V’’).
This court affirmed, although holding in Cobell VI that ‘‘the
actual legal breach [by the Secretary] is the failure to provide
an accounting, not failure to take the discrete individual steps
that would facilitate an accounting.’’ 240 F.3d at 1106. Not-
ing Interior’s stipulation that it was unable to meet the
requirements of ‘‘numerous provisions’’ of the 1994 Act, the
court observed that ‘‘the federal government will be unable to
provide an adequate accounting without computer systems,
staffing, and document retention policies that are adequate
for the task.’’ Id. The court also stated there was ‘‘no need
to alter the district court’s order [in Cobell V]’’ because while:
[t]he level of oversight proposed by the district court
may well be in excess of that countenanced in the typical
delay case TTT so too is the magnitude of government
malfeasance and potential prejudice to the plaintiffs’
classTTTT
TTT [Accordingly,] the [district] court should not abdicate
its responsibility to ensure that its instructions are fol-
lowed. This would seem particularly appropriate where,
as here, there is a record of agency recalcitrance and
resistance to the fulfillment of its legal duties.
Id. at 1109 (citing In re Center for Auto Safety, 793 F.2d
1346, 1354 (D.C. Cir. 1986)). The court added: ‘‘[n]onethe-
less, we expect the district court to be mindful of the limits of
its jurisdiction.’’ Id. at 1110.
On remand, as relevant here, the district court, in light of
the Special Master’s recommendation regarding inadequate
IT security of IITD, granted the plaintiffs’ motion for a
5
temporary restraining order on December 5, 2001, requiring
Interior ‘‘immediately [to] disconnect from the Internet’’ its
IT systems housing or accessing IITD. See Cobell v. Norton,
274 F. Supp. 2d 111, 113 (D.D.C. 2003) (‘‘Cobell IX’’). The
plaintiff also moved for a preliminary injunction and an order
to show cause why the Secretary and counsel for the Secre-
tary should not be held in contempt. With the consent of
Interior, the district court on December 17, 2001, entered a
Consent Order providing that ‘‘Interior shall not reconnect
any information technology system to the Internet without
the concurrence of the Special Master,’’ and ‘‘the Special
Master shall verify compliance with this Consent OrderTTTT’’
Id. at 114. The relationship between the Special Master and
Interior in carrying out the Consent Order apparently operat-
ed effectively, with almost 95 percent of Interior IT systems
being reconnected within one year, Cobell XI, 310 F. Supp. 2d
at 82, until April 2003, when the Special Master and his
contractor attempted to recheck whether computers recently
found vulnerable were secure against unauthorized Internet
access, id. The Special Master suspected that an Interior
employee had frustrated the ‘‘penetration’’ of the vulnerable
computers by providing advance warning to the computer
administrator. Cobell IX, 274 F. Supp. 2d at 114-24. This
dispute escalated and resulted in the breakdown of the rela-
tionship between the Special Master and Interior and its
attorneys from the Justice Department. See generally id.
On June 26, 2003, the plaintiffs filed a motion for a tempo-
rary restraining order and a preliminary injunction to man-
date the Secretary to disconnect from the Internet all Interi-
or computers and IT systems that house or access IITD until
the Special Master certified that all the data was properly
secured. Id. at 119. Following a hearing, the district court
entered a temporary restraining order, modifying the order
in light of Interior’s suggestions. Interior, while protesting
entry of any order, stated that it was willing to work things
out with the Special Master. Id. at 120. Soon thereafter,
however, Interior requested that ‘‘ ‘Special Master Balaran
TTT be disqualified from acting in any capacity in this case.’ ’’
Id. at 124. Following a hearing on July 28, 2003, the district
6
court entered a preliminary injunction, and stayed the Con-
sent Order. Id. at 133. The July 28, 2003 injunction called
for disconnection of all Interior computers from the Internet,
except: (1) ‘‘those essential for protection against fires or
other threats to life or property;’’ and (2) those that [Interi-
or] certified ‘‘in accordance with Rule 11 of the Federal Rules
of Civil Procedure,’’ were secure from unauthorized Internet
access or did not house or access IITD. Id. at 135-36. In
light of Interior’s objection to any further involvement by the
Special Master in determining the security of Interior’s IT
systems, the district court decided to make the determina-
tions itself. Id. at 133. The Secretary appealed.
In the interim, on August 11, 2003, the Secretary filed
certifications on the state of IT security in response to the
July 28, 2003 injunction. On March 15, 2004, the district
court entered a preliminary injunction that ‘‘supersede[d] and
replace[d]’’ the July 28, 2003 injunction. Cobell v. Norton,
310 F. Supp. 2d 98, 99 (D.D.C. 2004) (‘‘Cobell XI (Order)’’).
The March 15, 2004 injunction called for disconnection from
the Internet of all Interior computers, with exceptions for (1)
systems essential to protect against fire or other threats to
life or property, and (2) IT systems of the National Park
Service, the Office of Policy Management and Budget, and
the United States Geological Survey. Id. at 100-01. The
injunction further provides for reconnection if the Secretary
submits and the court approves a suitable proposal. Id. at
101. In issuing the injunction, the district court rejected the
Secretary’s certifications as ‘‘procedurally and substantively
defective,’’ finding they ‘‘were not properly subscribed as true
as required by local rule and statute and the very Interior
officials who drafted the reports simultaneously gave conflict-
ing information to other government agencies such as the
Office of Management and Budget and the General Account-
ing Office stating that Interior’s IT systems were in fact
vulnerable.’’ Cobell XI, 310 F. Supp. 2d at 83. Further, the
district court found the Secretary’s proposal for reconnections
unsatisfactory, essentially because past experience indicated
the Secretary and Interior’s closely-aligned contractor could
not be relied upon to do an adequate job. Id. at 86-95. The
7
district court, however, emphasized in its accompanying mem-
orandum opinion that it ‘‘is not telling Interior how to run its
operations nor foisting management directives on the agency.
It is Interior that is tasked with proposing a security stan-
dardTTTT’’ Id. at 97. The Secretary appeals. This court
consolidated this appeal with the Secretary’s appeal of the
July 28, 2003 injunction and stayed the March 15, 2004
injunction pending appeal. Cobell v. Norton, 2004 WL 758956
(D.C. Cir. 2004).
II.
The Secretary challenges the March 15, 2004 injunction as
lacking any legal foundation or factual predicate. According
to the Secretary, the injunction lacks a legal basis in the 1994
Act, is contrary to the mandate in Cobell VI, and violates
settled limitations on judicial review. Not only did the dis-
trict court fail to amend its 1999 order in Cobell V in
compliance with Cobell VI, 240 F.3d at 1106, but by ordering
sweeping equitable relief calling for wholesale improvement
of Interior’s IT systems security, the district court exceeded
its authority under the APA and violated separation of pow-
ers principles. Moreover, in the Secretary’s opinion, Pub. L.
No. 108-108 removed any legal basis for the injunctions.
The court reviews the grant of a preliminary injunction for
abuse of discretion. Doran v. Salem Inn, Inc., 422 U.S. 922,
931-32 (1975); Serono Labs., Inc. v. Shalala, 158 F.3d 1313,
1318 (D.C. Cir. 1998). The district court’s legal conclusions
are subject to ‘‘essentially de novo review,’’ City of Las Vegas
v. Lujan, 974 F.2d 927, 931 (D.C. Cir. 1989), while its findings
of fact, which include the district court’s assessment of wheth-
er the Secretary has taken sufficient actions to fulfill her
fiduciary duties and to comply with court orders, are re-
viewed for clear error, id. Upon de novo review of the
Secretary’s challenges to the district court’s authority, we
hold that the district court possessed authority on remand
from Cobell VI to issue a preliminary injunction regarding IT
security.
8
As a threshold matter, the Secretary’s contention that Pub.
L. No. 108–108 removes any legal basis for the March 15,
2004 injunction is unpersuasive. This statute provides that
nothing in any law ‘‘shall be construed or applied to require
TTT Interior to commence or continue historical accounting
activitiesTTTT’’ 117 Stat. at 1263. As such, the plain text of
the statute addresses only the historical accounting activities
required by the district court’s September 2003 structural
injunction, Cobell X, 283 F. Supp. 2d 66, rather than the
Secretary’s current trust obligations addressed in the March
15, 2004 injunction. It is indisputable that the Secretary has
current and prospective trust management duties that neces-
sitate maintaining secure IT systems in order to render
accurate accountings now and in the future. Cobell VI, 240
F.3d at 1103. Consequently, Pub. L. No. 108-108 does not
affect the IIM trust beneficiaries’ current and prospective
substantive rights, which hinge on accurate accountings, and
the court has no occasion to consider the plaintiffs’ challenge
to its constitutionality.
The Secretary’s other challenges to the district court’s legal
authority to enter the March 15, 2004 injunction are also
unpersuasive. In contending that the district court ignored
the narrow mandate of Cobell VI by undertaking to oversee
Interior’s computer security, the Secretary relies on this
court’s re-characterization of the legal breach of fiduciary
duty in Cobell VI as a failure to provide an accounting, not
the separate steps directed by the district court toward
facilitating an accounting, and on this court’s expectation that
the district court would ‘‘be mindful of the limits of its
jurisdiction.’’ Id. at 1106, 1110. But the Secretary ignores
relevant discussion in Cobell VI. The court made plain in
Cobell VI that it was ‘‘premature TTT to rule on the precise
scope of the district court’s planned proceedings’’ in address-
ing the difficult task of extracting an accounting from an
agency with an intransigent past. Id. at 1110. The court
likewise made plain that maintaining adequate computer sys-
tems, along with staff and document retention policies, is
critical to the completion of an adequate accounting. Id. at
1106. While the court also stated that Interior ‘‘should be
9
afforded sufficient discretion in determining the precise route
[it] take[s], so long as this threshold [of producing an ade-
quate accounting] is met,’’ id., the court did not limit the
district court’s authority to exercise its discretion as a court
of equity in fashioning a remedy to right a century-old wrong
or to enforce a consent decree, see Frew v. Hawkins, 540 U.S.
431, 124 S. Ct. 899, 905 (2004). The court merely suggested
that the district court should grant the Secretary some
leeway in fashioning solutions, and the district court’s memo-
randum opinion accompanying the injunction reflects this
approach.
Contrary to the Secretary’s view, ‘‘[w]hile the government’s
obligations are rooted in and outlined by the relevant statutes
and treaties, they are largely defined in traditional equitable
terms,’’ Cobell VI, 240 F.3d at 1099, and the narrower judicial
powers appropriate under the APA do not apply. Jicarilla
Apache Tribe v. Supron Energy Corp., 728 F.2d 1555, 1567
(10th Cir. 1984) (Seymour, J., concurring in part and dissent-
ing in part), adopted as majority opinion as modified en
banc, 782 F.2d 855 (10th Cir. 1986). Although the APA is the
device whereby sovereign immunity was waived in this case,
Cobell VI, 240 F.3d at 1094–95, and the court considered
whether final agency action was involved, id. at 1095, the
Secretary has an ‘‘ ‘overriding duty TTT to deal fairly with
Indians,’ ’’ id. at 1099 (quoting Morton v. Ruiz, 415 U.S. 199,
236 (1974)), and the Secretary’s actions must be judged by
‘‘ ‘the most exacting fiduciary standards,’ ’’ id. (quoting Semi-
nole Nation v. United States, 316 U.S. 286, 297 (1942)), in this
litigation. The Secretary cannot now try to ‘‘ ‘escape h[er]
role as trustee by donning the mantle of administrator’ to
claim that courts must defer to h[er] expertise and delegated
authority.’’ Cobell VI, 240 F.3d at 1099 (quoting Jicarilla,
728 F.2d at 1567). The district court, then, retains substan-
tial latitude, much more so than in the typical agency case, to
fashion an equitable remedy because the underlying lawsuit is
both an Indian case and a trust case in which the trustees
have egregiously breached their fiduciary duties. Id. at 1099,
10
1109. The Secretary’s suggestion that the appropriate role
for the district court was confined to retaining jurisdiction
and ordering periodic progress reports, as in In re United
Mine Workers of America International Union, 190 F.3d
545, 556 (D.C. Cir. 1999), ignores these salient considerations.
It is only by mischaracterizing the March 15, 2004 injunc-
tion that the Secretary can now contend that the district
court dictated Interior’s actions for improving IT system
security, and therefore violated the separation of powers.
The plain language of the injunction as well as the district
court’s memorandum opinion requires the Secretary to devel-
op the IT security programs. The district court did not order
the type of wholesale programmatic changes rejected in
Lujan v. National Wildlife Federation, 497 U.S. 871, 891
(1990), and Cobell VI, 240 F.3d at 1095. Nor does the
injunction include particular tasks for Interior to perform
based on policies developed by the district court, as in Cobell
V. Cobell VI, 240 F.3d at 1105-06. The injunction does no
more than ensure that the Secretary is ‘‘tak[ing] reasonable
steps toward the discharge of the federal government’s fidu-
ciary obligations to IIM trust beneficiariesTTTT’’ Id. at 1106.
The district court has limited its role to accepting or rejecting
the Secretary’s proposals, rather than dictating their sub-
stance or even the standard for measuring the security of
Interior’s IT systems. Cobell XI (Order), 310 F. Supp. 2d at
101. Given the admissions in the Consent Order of Interior’s
past gross computer security failures, and the ‘‘impasse’’
between the parties regarding the manner in which the
Consent Order should be implemented, Cobell IX, 274 F.
Supp. 2d at 126, the district court had authority to require the
Secretary to propose a workable plan in order ‘‘to ensure that
its instructions are followed.’’ Cobell VI, 240 F.3d at 1109.
III.
We do not reach the merits of the Secretary’s challenges to
the factual predicate for the March 15, 2004 injunction be-
cause related procedural and evidentiary issues require that
we vacate the injunction.
11
A.
A preliminary injunction is an extraordinary remedy that
should be granted only when the party seeking the relief, by
a clear showing, carries the burden of persuasion. Mazurek
v. Armstrong, 520 U.S. 968, 972 (1997). To prevail, the
moving party must demonstrate (1) a substantial likelihood of
success on the merits, (2) that it would suffer irreparable
harm without injunctive relief, (3) that an injunction would
not substantially harm other interested parties, and (4) that
issuance of the injunction is in the public interest. Serono
Labs, Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998);
CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d
738, 746 (D.C. Cir. 1995); see also FED. R. CIV. P. 65(a).
The district court, in entering the July 28, 2003, prelimi-
nary injunction found, after a hearing, that:
[the] plaintiffs have not demonstrated to the satisfac-
tion of the Court that the reconnected systems are not
presently secured from unauthorized access. The failure
to present such evidence certainly weighs against direct-
ing that the reconnected systems be immediately discon-
nected. On the other hand, the Interior defendants have
failed to demonstrate to this Court that the reconnected
systems are, in fact, secure from such unauthorized
access. Without any evidence that the systems are
secure, it would be an act of folly for this Court simply to
permit them to remain connected.
Cobell IX, 274 F. Supp. 2d at 132. The district court conclud-
ed injunctive relief was warranted, and adopted a ‘‘middle
ground,’’ between disconnecting all the reconnected systems
and allowing continued connection of potentially unsecured
systems, by ordering the Secretary to submit certifications
explaining why each IT system housing or accessing IITD
was secure. Id. at 132. In entering the March 15, 2004
injunction, the district court also found that the ‘‘plaintiffs
have already prevailed on the merits in both the first phase
and phase 1.5 of this litigation,’’ and thus ‘‘have demonstrated
a substantial likelihood’’ of success on the merits. Cobell XI,
310 F. Supp. 2d at 95 (citing Cobell V, 91 F. Supp. 2d 1;
Cobell VI, 240 F.3d 1081; and Cobell X, 283 F. Supp. 2d 66).
12
Prevailing on the merits of the liability claim of a breach of
fiduciary duty by the Secretary in failing to account for IITD
funds did not relieve the plaintiffs of their burden as the
moving party to demonstrate the necessity of the IT discon-
nection injunction to safeguard against imminent and irrepa-
rable injury to their interests. The district court in Cobell V
contemplated that the post-liability phase of the underlying
litigation would, in part, ‘‘involve the government bringing
forward its proof on IIM trust balances and then plaintiffs
making exceptions to that proof.’’ 91 F. Supp. 2d at 31.
Given Interior’s superior access to information about the
state of its IT system security, this was a reasonable way to
proceed in evaluating the plaintiffs’ request for injunctive
relief to disconnect IT systems. Cf. Office of Workers’ Comp.
Programs v. Greenwich Collieries, 512 U.S. 267, 274 (1994).
But it was error to shift the burden of persuasion to the
Secretary to show why disconnecting most of Interior’s IT
systems was unnecessary to ensure the security of IITD, and
the error was not harmless. See 28 U.S.C. § 2111; FED. R.
CRIM. P. 52(a); cf. Barth v. Gelb, 2 F.3d 1180, 1188 (D.C. Cir.
1993) (citing Williams v. U.S. Elevator Corp., 920 F.2d 1019,
1123 (D.C. Cir. 1990)).
The evidence before the district court consisted of the
Special Master’s reports documenting vulnerabilities of Inte-
rior’s IT systems through February 5, 2002, including expo-
sure of IITD ‘‘to uninvited review and manipulation,’’ Cobell
XI, 310 F. Supp. 2d at 81, and identifying ‘‘many problems
that were not fixed.’’ Id. at 81 n.6. The Special Master also
reported results from continued penetration testing in Febru-
ary and March 2003. Three external reports — a House
Committee report, an Interior Report to the Office of Man-
agement and Budget, and a report by the General Accounting
Office — advised of Interior’s and other federal agencies’ IT
deficiencies. However, the Secretary points out, and the
plaintiffs do not dispute, there was no evidence that anyone
other than the Special Master’s contractor had ‘‘hacked’’ into
any Interior computer system housing or accessing IITD.
The external reports did not specifically address whether, in
March 2004, unauthorized access through the Internet pre-
sented an imminent danger to the integrity of IITD, or if
Interior’s network security compromised the security of
13
IITD. Nonetheless, the district court relied upon these
reports as reason to conclude that Interior could not monitor
itself or be solely responsible for the security of IITD. Id. at
89-93. In contrast, the Secretary’s certifications of August
11, 2003 purported to demonstrate how Interior had rendered
its IT systems security adequate to protect IITD. The
district court declined to examine the sources for the Secre-
tary’s certifications, rejecting the certifications on procedural
grounds. See infra Part III B. Had such examination
occurred, and the sources been credited, there would have
been no factual basis for disconnecting Interior’s IT computer
systems from the Internet. Hence, placing the burden of
persuasion upon the Secretary was not harmless error.
B.
The Secretary’s certifications on IT systems security con-
sisted of twelve declarations and supporting materials. The
district court declined to consider them because the declar-
ants stated that the information provided was ‘‘true and
correct to the best of my knowledge, information and belief,’’
which the district court held contravened Local Rule 5.1(h)2
and 28 U.S.C. § 1746.3 Id. at 85. The court addressed the
2 Local Rule 5.1(h) of the United States District Court for the
District of Columbia provides in pertinent part:
Whenever any matter is required or permitted by rule to be
supported by the sworn written statement of a person TTT the
matter may TTT be supported by the unsworn declaration,
certificate, verification, or statement, in writing of such person
which is subscribed as true [and correct] under penalty of
perjuryTTTT
3 28 U.S.C. § 1746 provides in pertinent part:
Wherever, under any law of the United States or under any
rule, regulation, order, or requirement made pursuant to law,
any matter is required or permitted to be TTT proved by the
sworn declaration, verification, certificate, TTT in writing of the
person making the same TTT such matter may TTT be sup-
ported, evidenced, established, or proved by the unsworn decla-
ration, certificate, verification, or statement, in writing of such
14
substance of the submissions only by stating the information
‘‘is often confusing and contradictory,’’ id., pointing to a single
internal inconsistency, id. at 85-86. The reasons given by the
district court do not support its disregard of the certifications.
Local Rule 5.1(h) and 28 U.S.C. § 1746 contemplate as
adequate certifications that are ‘‘substantially’’ in the form of
the language of their provisions. A declaration or certifica-
tion that includes the disclaimer ‘‘to the best of [the declar-
ant’s] knowledge, information or belief’’ is sufficient under the
local rule, the statute. See United States v. Roberts, 308 F.3d
1147, 1154-55 (11th Cir. 2002), cert. denied, 538 U.S. 1064
(2003). Moreover, the July 28, 2003 injunction directed only
that the certifications be made in accordance with Rule 11 of
the Federal Rules of Civil Procedure. Cobell IX, 274 F.
Supp. 2d at 136. Rule 11(a) provides that ‘‘[e]xcept when
otherwise specifically provided by rule or statute, pleadings
need not be verified or accompanied by affidavit,’’ FED. R. CIV.
P. 11(a), and the district court cited to no other requirement
compelling verification. Further, Rule 11(b), which governs
‘‘[r]epresentations to the court,’’ explicitly contemplates certi-
fications to ‘‘the best of the person’s knowledge, information,
and belief, formed after an inquiry reasonable under the
circumstancesTTTT’’ FED. R. CIV. P. 11(b). The district court
therefore erred in rejecting Interior’s submissions as ‘‘proce-
durally TTT defective.’’ Cobell XI, 310 F. Supp. 2d at 83.
Furthermore, the district court seemed to be insisting on
compliance with Rule 56(e) of the Federal Rules of Civil
Procedure, which expressly requires affidavits to be based on
personal knowledge. But that rule applies to a motion for
summary judgment. Here the district court treated the
matter as a preliminary injunction proceeding. Nothing in
the rules specifies what sort of affidavits are required at the
preliminary injunction stage. This court has never decided
that the Rule 56(e) standard should apply to such proceedings
and there is good reason to believe it should not. Summary
judgment substitutes for trial and it therefore makes sense to
person which is subscribed by him, as true [and correct] under
penalty of perjuryTTTT
15
require evidentiary submissions to consist only of admissible
evidence. A preliminary injunction is just that — prelimi-
nary. It does not substitute for a trial, and its usual office is
to hold the parties in place until a trial can take place; the
proceedings are streamlined, intentionally, because the fuse is
often so short. See 12 JAMES WM. MOORE, ET AL., MOORE’S
FEDERAL PRACTICE § 65.23 (2004); 11A CHARLES ALLEN
WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 2949 (2d
ed. 1995); see also Sierra Club Lone Star Chapter v. FDIC,
992 F.2d 545, 551 (5th Cir. 1993).
While internal inconsistencies could provide a basis for
discrediting the certifications, the district court cited only
one. Id. at 85–86. A statement accompanying the declara-
tion of the Deputy Director for the Bureau of Land Manage-
ment indicated that the Automated Fluid Mineral Support
System had been reconnected, while an attached table indi-
cated the system had ‘‘no internet connectivity.’’ Id. at 86.
The inconsistency could affect whether the court would give
credence to that particular certification, but it did not support
disregarding the others, which were prepared and sworn by
different people with regard to different bureaus. To the
extent the district court also observed that the Secretary was
telling a different story about its computer security to other
branches of the government, see id. at 89-95, the only issue
before the district court was the security of IT systems
housing and accessing IITD, and the external reports refer-
enced by the court did not address that precise issue. Conse-
quently, the district court also erred by disregarding Interi-
or’s certifications as substantively defective. Id. at 83.
C.
A preliminary injunction may be granted based on less
formal procedures and on less extensive evidence than in a
trial on the merits, Natural Res. Def. Council v. Pena, 147
F.3d 1012 (D.C. Cir. 1998) (quoting Univ. of Texas v. Camen-
isch, 451 U.S. 390, 395 (1981)), but if there are genuine issues
of material fact raised in opposition to a motion for a prelimi-
nary injunction, an evidentiary hearing is required, Ty, Inc. v.
16
GMA Accessories, Inc., 132 F.3d 1167 (7th Cir. 1997). Partic-
ularly when a court must make credibility determinations to
resolve key factual disputes in favor of the moving party, it is
an abuse of discretion for the court to settle the question on
the basis of documents alone, without an evidentiary hearing.
See Prakash v. Am. Univ., 727 F.2d 1174, 1181 (D.C. Cir.
1984); cf. Dopp v. Franklin Nat’l Bank, 461 F.2d 873 (2d Cir.
1972). The circumstances and interests at stake will affect
whether an abbreviated or more extensive evidentiary hear-
ing is necessary. See Brock v. Roadway Exp., Inc., 481 U.S.
250, 261 (1987); Mantek Div. of NCH Corp. v. Share Corp.,
780 F.2d 702, 705-06 (7th Cir. 1986).
The district court could not resolve the state of Interior’s
IT systems security without conducting a hearing on the
evidence in dispute. In opposition to the plaintiffs’ motion for
injunctive relief mandating disconnection of Interior’s IT
systems from the Internet, the Secretary described various
measures taken and underway by Interior to secure IT
systems, and disputed that such drastic relief was necessary.
Almost nine months had passed since the hearing for the July
28, 2003 injunction. Under the circumstances, the court
abused its discretion by not holding an evidentiary hearing
before issuing the March 15, 2004 injunction.
Accordingly, we vacate the March 15, 2004 injunction and
remand the case to the district court.