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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 24, 2003 Decided July 18, 2003
No. 02-5374
ELOUISE PEPION COBELL, ET AL.,
APPELLEES
v.
GALE A. NORTON, SECRETARY OF THE INTERIOR, ET AL.,
APPELLANTS
Appeal 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
Gregory G. Katsas, Deputy Assistant Attorney General, Rob-
ert E. Kopp, Director, Thomas M. Bondy and Charles W.
Scarborough, Attorneys, Roscoe C. Howard, Jr., U.S. Attor-
ney, Mark E. Nagle and R. Craig Lawrence, Assistant U.S.
Attorneys. B. Michael Rauh entered an appearance.
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
Elliott H. Levitas argued the cause for appellees. With
him on the brief were Dennis M. Gingold and Keith M.
Harper. George W. Austin entered an appearance.
Before: GINSBURG, Chief Judge, and HENDERSON and
RANDOLPH, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Beneficiaries of Individual Indian
Money trust accounts, as a class, sued the Secretary of the
Interior and other federal officials, in their official capacities,
for breach of fiduciary duty in the management of those
accounts. In an earlier appeal, we affirmed the district
court’s holding that the officials, who serve as trustee-
delegates for the federal government, had breached their
fiduciary duties, and we remanded the case to that court for
further proceedings. Cobell v. Norton, 240 F.3d 1081 (2001)
(‘‘Cobell VI’’).
In April 2001, with the consent of the parties, the district
court appointed Joseph S. Kieffer III as ‘‘Court Monitor’’ and
charged him to ‘‘monitor and review all of the Interior
defendants’ trust reform activities and file written reports of
his findings with the Court.’’ In April 2002 the court reap-
pointed Kieffer as Court Monitor, this time over the defen-
dants’ objection. On September 17, 2002, the court held Gale
A. Norton, Secretary of the Interior, and Neal A. McCaleb,
Assistant Secretary of the Interior for Indian Affairs, in
contempt of court, elevated Kieffer to the status of ‘‘Special
Master-Monitor,’’ and scheduled further proceedings. The
Department contends that in so doing the district court not
only erred, it took control of functions constitutionally re-
served to the Executive Branch. We agree that the district
court erred, and we reverse Kieffer’s reappointment and the
citations for contempt. We lack jurisdiction, however, to
consider the Department’s contention that the court has
overstepped its authority.
I. Background
We recounted the long history of the Government’s trust
responsibilities to Native Americans in Cobell VI, and we
3
therefore provide only an abbreviated version of that history
here. Pursuant to the General Allotment Act of 1887, ch. 119,
24 Stat. 388 (formerly codified at 25 U.S.C. § 331 et seq.),
lands that had previously been set aside for Indian tribes
were allotted to individual Indians in fixed amounts; ‘‘sur-
plus’’ lands were opened to non-Indian settlement. The Act
created a system in which allotted lands would be held in
trust by the United States for 25 years or more, during which
period an individual account (‘‘Individual Indian Money’’ ac-
count or ‘‘IIM’’ account) would be created for each Indian
with an interest in the allotted lands. The United States
would manage the lands for the benefit of the allottees until
the expiration of the trust period, at which time each allottee
would be issued a fee patent. The Indian Reorganization Act
of 1934, ch. 576, 48 Stat. 984 (codified as amended at 25
U.S.C. § 461 et seq.), ended the practice of allotment but
extended indefinitely the trust period for already-allotted
lands. Through the operation of these two statutes, there-
fore, the United States came to hold an estimated 11 million
acres of land as trustee for, and with a fiduciary duty to,
individual Indian beneficiaries. In 1994 the Congress enacted
the Indian Trust Fund Management Reform Act, Pub. L. No.
103–412, 108 Stat. 4239 (codified as amended at 25 U.S.C.
§ 4001 et seq.) (‘‘1994 Act’’), recognizing these responsibilities
and identifying some of the Government’s duties to ensure it
meets them. The plaintiffs’ lawsuit alleges a breach of these
responsibilities.
The duties of the United States as trustee have been
delegated to the Secretary of the Interior and the Secretary
of the Treasury, see 25 U.S.C. §§ 161–161a, 4001–4011, each
of whom is assigned specific tasks. Also relevant to this
appeal is the Office of the Special Trustee within the Depart-
ment of the Interior (and subordinate to the Secretary),
which was created by the 1994 Act to oversee the trust
reform activities of the Department. Id. §§ 4042–4043.
A. Previous Proceedings
The plaintiffs filed this lawsuit in 1996. In 1998 the district
court divided the litigation into two ‘‘phases.’’ Phase I was to
4
address ‘‘fixing the system,’’ that is, ‘‘reforming the manage-
ment and accounting of the IIM trust,’’ and Phase II would
concern ‘‘correcting the accounts’’ by ‘‘performing a historical
accounting of the IIM trust accounts.’’ In 1999 the district
court held Secretary of the Interior Bruce Babbitt, Assistant
Secretary Kevin Gover, and Secretary of the Treasury Law-
rence Summers had breached their fiduciary duties. The
court issued a declaratory judgment to that effect and re-
manded the case to the Interior and Treasury Departments
for them to bring themselves into compliance with the law,
and to take certain steps the court deemed necessary to
provide an accounting of the IIM trust. Cobell v. Babbitt, 91
F. Supp. 2d 1, 58 (D.D.C.) (‘‘Cobell V’’). In order to assure
the defendants’ compliance, the court retained jurisdiction
and ordered the defendants to file quarterly status reports
‘‘setting forth and explaining the steps that defendants have
taken to rectify’’ the breach. Id. at 59. Finally, the court
certified its decision for interlocutory appeal pursuant to 28
U.S.C. § 1292(b). Id.
In February 2001 we affirmed the order of the district
court: The Government indeed had breached its fiduciary
duty. Among many other things, it ‘‘does not know the
precise number of IIM trust accounts that it is to administer
and protect,’’ and ‘‘it does not know the proper balances for
each IIM account.’’ Cobell VI, 240 F.3d at 1089. Although
we determined that the district court had mischaracterized
some of the defendants’ actions – for instance, their failure to
‘‘retrieve and retain all information concerning the IIM trust
that is necessary to render an accurate accounting’’ – as
independent violations of a fiduciary duty, rather than as
‘‘support for the TTT court’s ultimate conclusion that appel-
lants have unreasonably delayed the discharge of their fidu-
ciary obligations to IIM beneficiaries,’’ 240 F.3d at 1104, 1105,
we upheld the district court’s ‘‘ultimate conclusion’’ as fully
justified. Id. at 1105. We also held the district court’s
remand of the matter to the agencies and its retention of
jurisdiction were appropriate remedies. Id. at 1107–09.
5
B. The Orders on Appeal
While Cobell VI was pending before us and thereafter, the
Department and its officers took a number of steps relevant
to this appeal. Beginning in March 2000 and continuing
apparently to the present, the Department filed the quarterly
reports required by Cobell V. In April 2000 the Department
published a notice in the Federal Register proposing a meth-
od for performing an historical accounting and seeking public
comment thereon; and in December 2000 it chose statistical
sampling as the method it would use.
In April 2001 the district court appointed Kieffer as Court
Monitor. As noted, the Department consented to this ap-
pointment, regarding which it expressed the ‘‘hope that this
will in fact be a positive step forward so that resources can be
more directed towards trust reform and less directed towards
litigation.’’ The order appointing Kieffer stated he would
‘‘serve for at least 1 year from this date. Upon order of the
Court, after comment or objection thereto by the parties, his
term of service may be extended for additional terms.’’ In
April 2002 the district court ‘‘propose[d] to extend Mr. Kief-
fer’s term of service for at least an additional year.’’ The
Department objected to Kieffer’s reappointment unless sever-
al conditions were met. The district court accepted some but
not all those conditions, and reappointed Kieffer.
Four days later (April 19) Kieffer, with authorization from
the district court, attended a meeting with Deputy Secretary
of the Interior J. Steven Griles, the Special Trustee, and
other departmental officials; the plaintiffs were not repre-
sented at the meeting. The district court found this was one
of many internal DOI meetings Kieffer attended; the meeting
was called at Griles’s request; it was a ‘‘heated meeting [that]
resolved nothing.’’ The district court also found that at the
meeting the Court Monitor discussed with Interior officials
his concerns about the way they were doing their jobs –
concerns that he was subsequently to report to the district
court. The district court characterized Kieffer’s actions as
‘‘an effort to set the stage to convince the parties attending
the meeting to find some way to work together.’’
6
On June 14 the Department moved the district court to
revoke Kieffer’s appointment as, and to clarify the role of, the
Court Monitor. The Department argued that its previous
objections ‘‘presaged’’ the April 19 meeting, at which, the
Department claimed, Kieffer demonstrated his intention and
his ability to assert powers constitutionally reserved to the
Executive Branch of the Government.
Meanwhile the Monitor’s reports, which were, to say the
least, unflattering to the DOI, had prompted the district court
to order Secretary Norton and Assistant Secretary McCaleb,
both of whom had taken office in 2001, to ‘‘show cause why
they should not be held in civil contempt of court in their
official capacities’’ on five ‘‘specifications,’’ namely:
(1) Failing to comply with the Court’s Order of Decem-
ber 21, 1999, to initiate a Historical Accounting Project.
(2) Committing a fraud on the Court by concealing the
Department’s true actions regarding the Historical Ac-
counting Project during the period from March 2000,
until January 2001.
(3) Committing a fraud on the Court by failing to dis-
close the true status of the TAAMS project between
September 1999 and December 21, 1999.[*]
(4) Committing a fraud on the Court by filing false and
misleading quarterly status reports starting in March
2000, regarding TAAMS and BIA [Bureau of Indian
Affairs] Data Clean-up.[**]
(5) Committing a fraud on the court by making false and
misleading representations starting in March, 2000, re-
garding computer security of IIM trust data.
* TAAMS, the Trust Asset and Accounting Management System,
is a new computer system expected to enable Interior better to
track the status of property held in trust for IIM account beneficia-
ries.
** ‘‘BIA Data Clean-up’’ refers to Interior’s effort to remedy
shortcomings in the data in the Department’s current computer
systems so that those data can be transferred into TAAMS.
7
Cobell v. Norton, 226 F. Supp. 2d 1, 19–20 (D.D.C. 2002)
(‘‘Contempt Opinion’’). The district court held a 29–day
bench trial on the contempt charges.
On September 17, 2002 the district court issued the three
Orders that are the subject of this appeal. First, the court
issued an Order that, among other things, held Secretary
Norton and Assistant Secretary McCaleb ‘‘in civil contempt of
court.’’ Cobell v. Norton, 226 F. Supp. 2d 161, 161 (D.D.C.)
(‘‘Contempt Order’’). The Contempt Order was accompanied
by and explained in the Contempt Opinion, released simulta-
neously. Second, the district court issued a Memorandum
and Order denying the defendants’ motion to revoke Kieffer’s
appointment as Court Monitor. Cobell v. Norton, 226 F.
Supp. 2d 163 (D.D.C.) (‘‘Monitor Order’’). Finally, the court
issued an Order appointing Kieffer to serve as ‘‘Special
Master–Monitor’’ ‘‘[p]ursuant to Rule 53 of the Federal Rules
of Civil Procedure.’’ Cobell v. Norton, 2002 U.S. Dist. LEXIS
17354, at *1 (D.D.C.) (‘‘Special Master-Monitor Order’’).
In the Contempt Order, the court addressed each of the
five specifications of contempt. With regard to the first
count, the court described Norton’s and McCaleb’s failure to
comply with its earlier order as ‘‘litigation misconduct.’’ In
each of the other specifications, the court found Norton and
McCaleb to have ‘‘committ[ed] a fraud on the Court.’’ 226 F.
Supp. 2d at 161. The district court used some harsh words in
the Contempt Opinion, expressing its dissatisfaction with the
defendants’ conduct. See, e.g., 226 F. Supp. 2d at 125 (‘‘The
Department of Interior is truly an embarrassment to the
federal government in general and the executive branch in
particular. The 300,000 individual Indian beneficiaries de-
serve a better trustee-delegate than the Secretary of Interi-
or’’); id. at 113 (‘‘The Court is both saddened and disgusted
by the Department’s intransigence’’). Of particular note are
the district court’s statement that ‘‘Secretary Norton and
Assistant Secretary McCaleb can now rightfully take their
place alongside former-Secretary Babbitt and former-
Assistant Secretary Gover in the pantheon of unfit trustee-
delegates,’’ id. at 161, and the court’s invitation to Secretary
Norton or any other individual at the Department who
8
‘‘feel[s] that as a result of th[e] Court’s ruling they are unable
or unwilling to perform their duties to the best of their
ability’’ to ‘‘leave the Department forthwith.’’ Id. at 133.
Turning to the question of relief, the court refused the
plaintiffs’ request that it appoint a receiver to take over the
IIM trust. The court did, however, determine that the relief
it had ordered in Cobell V – remanding the case to the
agencies to carry out their duties as instructed – ‘‘was and is
insufficient,’’ id. at 147, and it therefore contemplated ‘‘grant-
ing further injunctive relief.’’ Id. at 148. To that end the
court scheduled further proceedings, which it called the
‘‘Phase 1.5 trial.’’ Id. In order to prepare for the Phase 1.5
trial, the court required Interior to file ‘‘a plan for conducting
a historical accounting of the IIM trust accounts’’ and ‘‘a plan
for bringing themselves into compliance with the fiduciary
obligations that they owe to the IIM beneficiaries.’’ Contempt
Order, 226 F. Supp. 2d at 162. The court also permitted the
plaintiffs (and the Department of the Treasury) to file such
plans, and permitted each party to respond to any other
party’s plan. Id.
In the Monitor Order, the court denied the Department’s
June 14 motion to revoke the appointment of Court Monitor
Kieffer. The court found that Kieffer’s participation in the
April 19 meeting was not inappropriate or beyond his authori-
ty because it was ‘‘pursuant to the Secretary of the Interior’s
own request’’ and ‘‘in conformance with the Orders of the
Court.’’ 226 F. Supp. 2d at 169. Finally, in the Special
Master-Monitor Order, the court sua sponte elevated Kieffer
to the position of Special Master-Monitor; Kieffer retained
his duties as Court Monitor and as Special Master assumed
new responsibilities for the management of discovery. 2002
U.S. Dist. LEXIS 17354, at *4–7.
Secretary Norton and Assistant Secretary McCaleb appeal-
ed all three Orders of the district court. They argue that the
district court overstepped the bounds of judicial authority by
declaring them ‘‘unfit’’ and by ‘‘seizing control of the process-
es for creating and implementing plans for Indian trust
reform.’’ They also argue that the district court erred when
9
it held them in contempt of court, denied their motion to
terminate Kieffer’s tenure as Court Monitor, and appointed
him Special Master-Monitor.*
II. Analysis
We understand the Government to object to three distinct
aspects of the district court’s Orders in this case: (1) the
court’s alleged overreaching through its ‘‘assum[ption of]
control’’ over functions within the DOI; (2) the court’s deci-
sions regarding the status of Mr. Kieffer; and (3) the court’s
holding Secretary Norton and Assistant Secretary McCaleb
in contempt of court. Before we may reach these issues,
however, we must confirm our jurisdiction over this interlocu-
tory appeal.
A. Jurisdiction
The Department argues we have jurisdiction over this
appeal pursuant to 28 U.S.C. § 1292(a)(1). In the alternative
it seeks a writ of mandamus.
Section 1292(a)(1) provides that ‘‘the courts of appeals shall
have jurisdiction of appeals from TTT [i]nterlocutory orders of
the district courts of the United States TTT granting, continu-
ing, modifying, refusing or dissolving injunctions, or refusing
to dissolve or modify injunctions.’’ As the Supreme Court
stated in Carson v. American Brands, Inc., 450 U.S. 79, 84
(1981), § 1292(a)(1) provides jurisdiction over not just an
injunction so-denominated, but over any order having the
‘‘practical effect’’ of an injunction if the order threatens a
‘‘serious, perhaps irreparable, consequence’’ and is of such a
nature that it can be ‘‘effectually challenged only by immedi-
ate appeal.’’ ‘‘An order by a federal court that relates only to
the conduct or progress of litigation before that court ordi-
narily is not considered an injunction and therefore is not
* Norton and McCaleb also moved to present arguments in their
individual capacities. Construing these as motions to appear as
amici curiae, we grant them and dispose of other motions pending in
this case in an order issued today.
10
appealable under § 1292(a)(1).’’ Gulfstream Aerospace Corp.
v. Mayacamas Corp., 485 U.S. 271, 279 (1988).
A writ of mandamus is ‘‘an extraordinary remedy, to be
reserved for extraordinary situations.’’ Id. at 289. Manda-
mus does not lie unless the petitioner’s right to relief is ‘‘clear
and indisputable,’’ and there is ‘‘no other adequate means’’ by
which the petitioner may attain the relief it seeks. In re
Sealed Case, 151 F.3d 1059, 1063 (D.C. Cir. 1998).
With these legal principles in mind, we consider our juris-
diction over each of the Department’s three claims.
1. Judicial Overreaching
The Department argues we have jurisdiction over its claim
of judicial overreaching pursuant to § 1292(a)(1) because the
district court’s rulings (1) imposed an injunction; or (2) had
‘‘the practical effect of an injunction’’; or (3) worked ‘‘a
modification of a declaratory judgment that the [district]
court has [since] held to be indistinguishable from a mandato-
ry injunction.’’ The gravamen of the Department’s argument,
however expressed, is that the district court orders ‘‘both
require[ ] action and implicitly enjoin[ ] the Secretary’s future
exercise of discretion.’’
We disagree. As the plaintiffs demonstrate, the Orders
and the Opinion were full of sound and fury, but they
signified very little to be done by the DOI. In the Contempt
Order the court appointed a Special Master–Monitor, 226 F.
Supp. 2d at 163 ¶ ¶ 13–16, and required the defendants, in
anticipation of the Phase 1.5 trial, to ‘‘file with the Court TTT
a plan for conducting a historical accounting of the IIM trust
accounts’’ and to file a plan for ‘‘bringing themselves into
compliance with [their] fiduciary obligations.’’ Id. at 162
¶ ¶ 2, 3. It also held Secretary Norton and Assistant Secre-
tary McCaleb in contempt, id. at 161 ¶ ¶ 1–5, and ordered
them to pay the expenses the plaintiffs had incurred for the
contempt trial. Id. at 162 ¶ ¶ 9–10.*
* In the Contempt Order the district court also entered a declara-
tory judgment on an unrelated matter, see 226 F. Supp. 2d at 161–
62 ¶ 1, and referred certain matters to another special master. Id.
11
None of this had the ‘‘practical effect’’ of an injunction.
The Contempt Order compels the Department only to prepare
for the Phase 1.5 proceedings by making certain filings with
the court. As such, we think it more akin to an ‘‘order TTT
relat[ing] only to the conduct or progress of litigation,’’ Gulf-
stream Aerospace, 485 U.S. at 279, than to an injunction.
The Department also points to the district court’s state-
ment that it will order new relief following the Phase 1.5 trial
rather than ‘‘simply remand[ing] the matter back to the
agency,’’ Contempt Opinion, 226 F. Supp. 2d at 152, as
evidence that the court intends to take over the management
of trust reform. Such a claim is premature. To be sure, the
district court stated it ‘‘has determined that it will grant
further injunctive relief,’’ id. at 146 – specifically, ‘‘a structur-
al injunction,’’ id. at 146 n.154 – presumably upon completion
of the Phase 1.5 trial. Any such injunction, once issued,
would be appealable under § 1292(a)(1). But no such injunc-
tion has yet issued. At worst, the district court has threat-
ened to take action that, according to the Department, would
violate the separation of powers. Until the district court
takes such action, however, we are without power under
§ 1292(a)(1) to review its decisions.
Anticipating that the court might lack jurisdiction to hear
the present appeal, the Department asks us in the alternative
to issue a writ of mandamus providing equivalent relief. But
we may not do that, either. The Department’s challenge does
not meet the criteria for the writ; in particular, the Depart-
ment has not shown that an appeal from the district court’s
eventual entry of an injunction, if and when that occurs,
would not provide it with adequate relief.
2. Kieffer’s Appointment as Monitor and as Special Mas-
ter-Monitor
The Department concedes that ‘‘[t]he court’s order elevat-
ing the Court Monitor to the judicial role of Special Master
would not generally be immediately appealable.’’ Neverthe-
at 162–63 ¶ ¶ 11–12. The Department does not seek review of those
provisions of the Contempt Order.
12
less the Department claims that Kieffer’s appointment is
subject to interlocutory review both because it ‘‘forms an
integral part of the relief the court believed was required’’
and because it ‘‘has the effect of an injunction.’’ These claims
are essentially a restatement of those we have already reject-
ed as part of the Department’s claim of judicial overreaching.
We see no need to revisit them under a new heading.
The orders appointing Kieffer – first as Court Monitor, and
later as Special Master-Monitor – and the order denying the
Department’s motion to revoke Kieffer’s appointment as
Court Monitor do, however, present an appropriate occasion
for mandamus. First, as we explain below (in Part II.B), the
Department’s entitlement to relief is clear. Second, there is
no other way for the Department to obtain effective relief on
its claims that Kieffer should not have been appointed Special
Master–Monitor, nor permitted to continue as Court Monitor.
The ordinary route to relief from an adverse interlocutory
order is to appeal from the final judgment. When the relief
sought is recusal of a disqualified judicial officer, however, the
injury suffered by a party required to complete judicial
proceedings overseen by that officer is by its nature irrepara-
ble. As the Supreme Court has explained:
The remedy by appeal is inadequate. It comes after the
trial and, if prejudice exist, it has worked its evil and a
judgment of it in a reviewing tribunal is precarious. It
goes there fortified by presumptions, and nothing can be
more elusive of estimate or decision than a disposition of
a mind in which there is a personal ingredient.
Berger v. United States, 255 U.S. 22, 36 (1921); see In re
United States, 666 F.2d 690, 694 (1st Cir. 1981) (‘‘A case
involving a motion for disqualification is clearly distinguish-
able from those where a party alleges an error of law that TTT
may be fully addressed and remedied on appeal’’). The
parties agree that after his elevation to Special Master-
Monitor status, Kieffer was serving as a judicial officer.
Although this court does not seem to have ruled upon the
propriety of seeking the recusal of a judicial officer by
13
petition for a writ of mandamus, every circuit to have ad-
dressed the issue has found it proper. The First through
Seventh Circuits and the Tenth Circuit have each issued the
writ for this purpose, see In re Boston’s Children First, 244
F.3d 164 (1st Cir. 2001); In re IBM Corp., 45 F.3d 641 (2d
Cir. 1995); In re Antar, 71 F.3d 97 (3d Cir. 1995); In re Sch.
Asbestos Litig., 977 F.2d 764 (3d Cir. 1992); In re Rodgers,
537 F.2d 1196 (4th Cir. 1976); In re Faulkner, 856 F.2d 716
(5th Cir. 1988); In re Aetna Cas. & Sur. Co., 919 F.2d 1136
(6th Cir. 1990) (en banc); In re Hatcher, 150 F.3d 631 (7th
Cir. 1998); In re Edgar, 93 F.3d 256 (7th Cir. 1996); Nichols
v. Alley, 71 F.3d 347 (10th Cir. 1995), and the Eighth, Ninth,
and Eleventh Circuits have suggested they would do so in an
appropriate case. See Pfizer, Inc. v. Lord, 456 F.2d 532, 536–
37 (8th Cir. 1972) (holding mandamus is an appropriate
avenue to review recusal decision but denying the writ on the
facts presented); Cordoza v. Pac. States Steel Corp., 320 F.3d
989, 999 (9th Cir. 2003) (similar); In re Lopez–Lukis, 113
F.3d 1187, 1188 (11th Cir. 1997) (denying writ seeking review
of recusal decision because ‘‘petitioners have not carried their
burden of showing their right to issuance of a writ of manda-
mus’’). The Federal Circuit looks to the law of the regional
circuit in which the officer to be recused sits. Baldwin
Hardware Corp. v. FrankSu Enter. Corp., 78 F.3d 550, 556–
57 (1996); In re Solex Robotics, Inc., Misc. No. 725, 2003 U.S.
App. LEXIS 1595 (Jan. 17, 2003) (unpublished). We join the
unanimous view of our sister circuits and hold that we will
issue a writ of mandamus compelling recusal of a judicial
officer where the party seeking the writ demonstrates a clear
and indisputable right to relief.
We also find it appropriate to issue the writ in order to
clarify that the district court exceeded its authority when it
reappointed Kieffer as Court Monitor over the Department’s
objection. As we discuss below, the Department’s right to
relief is clear, and the injury it alleges – interference with the
internal deliberations of a Department of the Government of
the United States – cannot be remedied by an appeal from
14
the final judgment. In re Sealed Case, 151 F.3d at 1063.*
3. Contempt Findings
The district court styled the contempt in which it held the
appellants civil in nature. In this circuit an order holding a
party in civil contempt in an on-going proceeding is not
appealable as a final order. Byrd v. Reno, 180 F.3d 298 (D.C.
Cir. 1999) (per curiam). In contrast, ‘‘[c]riminal contempt
judgments are immediately appealable pursuant to § 1291
because they result from a separate and independent pro-
ceeding TTT to vindicate the authority of the court and are not
a part of the original cause.’’ Marrese v. Am. Acad. of
Orthopaedic Surgeons, 470 U.S. 373, 379 (1985). As we
explain below (in Part II.C.1), the district court’s findings of
contempt are functionally criminal rather than civil in nature.
Therefore, we have jurisdiction over this appeal from the
contempt aspects of the Contempt Order.
B. Court Monitor/Special Master-Monitor Issues
We turn now to the merits of the Department’s claim the
district court erred by retaining Kieffer in this case. Specifi-
cally, the Department argues both that the court had no
authority to reappoint Kieffer as Court Monitor over its
objection, and that Kieffer was disqualified from serving as
Special Master-Monitor due to his personal knowledge of the
case and the resulting appearance of partiality.
1. Court Monitor
Kieffer was appointed Court Monitor on April 16, 2001,
with the consent of the parties, for a term of one year. In
April 2002 the Government objected to Kieffer’s reappoint-
ment unless certain conditions were placed upon the scope of
* The plaintiffs contend we should not issue the writ because the
Department did not file a separate petition for mandamus, which
they claim is required by Federal Rule of Appellate Procedure 21
and Circuit Rule 21. For its part, the Government points to our
prior decision treating an improper interlocutory appeal as a peti-
tion for mandamus, Ukiah Adventist Hosp. v. FTC, 981 F.2d 543,
548 & n.6 (1992), in the light of which we deem the Government’s
omission excusable.
15
his powers. On April 15, 2002, the district court reappointed
him without regard to one of those conditions. The Depart-
ment claims this was a clear error. We agree.
The district court claimed authority to appoint the Monitor
in the first instance based upon the ‘‘consent of the [parties],
and TTT the Court’s inherent powers.’’ The Government
claims it did not consent to Kieffer’s reappointment, however,
and neither the district court nor the plaintiffs point to any
case or other authority suggesting a district court has inher-
ent power to appoint a court monitor. Indeed, in their brief
the plaintiffs, tellingly, do not address the Department’s
argument that the district court could not appoint a court
monitor over its objection. At oral argument the plaintiffs
instead rested upon the assertion that the DOI’s consent to
Kieffer’s original appointment as Court Monitor was tempo-
rally unlimited and irrevocable.
The plaintiffs’ position is untenable on the facts of this case.
First, the district court did not propose or purport to appoint
Kieffer permanently, so the DOI had no occasion to consent
to his having an unlimited tenure. As we noted earlier, the
order appointing him stated that Kieffer would ‘‘serve for at
least 1 year from this date. Upon order of the Court, after
comment or objection thereto by the parties, his term of
service may be extended for additional terms.’’ The plain-
tiffs’ suggestion that this order, which explicitly grants the
parties the right to object to Kieffer’s reappointment, actually
served as consent to his unlimited tenure, is absurd. We
conclude the Department effectively withheld its consent to
the court’s reappointment of Kieffer as Monitor, which brings
us to the question whether the district court has inherent
power to appoint a monitor without the consent of the party
to be monitored.
A judicial claim to an ‘‘inherent power’’ is not to be
indulged lightly, lest it excuse overreaching ‘‘[t]he judicial
Power’’ actually granted to federal courts by Article III of the
Constitution of the United States, and the customs and
usages that inform the meaning of that phrase. Such a claim,
therefore, must either be documented by historical practice,
16
see, e.g., Miner v. Atlass, 363 U.S. 641, 643–44 (1960) (reject-
ing contention that federal court sitting in admiralty has
inherent power to order taking of depositions for discovery
because there was no historical record of courts ordering such
depositions); Link v. Wabash R.R. Co., 370 U.S. 626, 629–30,
631 (1962) (noting court’s inherent power to dismiss suit for
failure to prosecute dates to Blackstone’s Commentaries and
‘‘has long gone unquestioned’’), or supported by an irrefutable
showing that the exercise of an undoubted authority would
otherwise be set to naught. See, e.g., Chambers v. NASCO,
501 U.S. 32, 43 (1991) (‘‘It has long been understood that
certain implied powers must necessarily result to our Courts
of justice from the nature of their institution, powers which
cannot be dispensed with in a Court, because they are
necessary to the exercise of all others’’); cf. All Writs Act, 28
U.S.C. § 1651(a) (granting federal courts power to ‘‘issue all
writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law’’). Often the two go hand in hand. See, e.g., Fisher v.
Pace, 336 U.S. 155, 159 (1949) (‘‘Historically and rationally the
inherent power of courts to punish contempts in the face of
the court without further proof of facts and without aid of
jury is not open to question. This attribute of courts is
essential to preserve their authority and to prevent the
administration of justice from falling into disrepute’’). In this
case, however, we find nothing but the district court’s asser-
tion it has inherent power to appoint a monitor, which can
hardly be self-supporting. Therefore, we hold the district
court does not have inherent power to appoint a monitor – at
least not a monitor with the extensive duties the court
assigned to Kieffer – over a party’s substantial objection, here
the Government’s objection that the appointment violated the
separation of powers. As the foregoing sentence conveys, our
holding is a narrow one, tethered to the peculiar facts re-
counted below.
In this case the Court Monitor was charged to ‘‘monitor
and review all of the Interior defendants’ trust reform activi-
ties’’ and to report to the district court on ‘‘any TTT matter
[he] deem[ed] pertinent to trust reform.’’ The court autho-
17
rized the Monitor to engage in ex parte communications, and
required the DOI to ‘‘facilitate and assist’’ the Monitor, to
‘‘provide [him] with access to any TTT offices or employees to
gather information,’’ and to pay his hourly fees and expenses.
In short, the Monitor acted as an internal investigator, not
unlike a departmental Inspector General except that he re-
ported not to the Secretary but to the district court.
Although the Department initially consented to this ar-
rangement, after a year’s experience it conditioned its re-
newed consent upon a narrower and more specific definition
of the Monitor’s role: The DOI sought to limit the scope of
the Monitor’s investigation to ‘‘steps taken by the Depart-
ment to rectify the breaches of trust declared by the Court or
steps taken that would necessarily delay rather than acceler-
ate the ultimate provision of an adequate accounting.’’ It
later augmented its objection to the Monitor’s role, arguing
that the Monitor’s broad-ranging investigation interfered with
the Department’s deliberative process privilege under Hinck-
ley v. United States, 140 F.3d 277, 284–85 (D.C. Cir. 1998)
(describing privilege as protecting materials that are both
‘‘predecisional’’ and ‘‘deliberative’’); see also Morgan v. Unit-
ed States, 304 U.S. 1, 18 (1938) (‘‘[I]t was not the function of
the court to probe the mental processes of the Secretary in
reaching his conclusions if he [did what] the law required’’),
and that the Monitor otherwise intruded unduly into the
function of the Executive Branch. We need not decide,
however, whether the Department’s objection was meritori-
ous; it is enough for present purposes that the objection was
colorable.
Regardless whether the district court has any inherent
authority to appoint an agent to monitor the conduct of a
party in litigation before it, it was surely impermissible to
invest the Court Monitor with wide-ranging extrajudicial
duties over the Government’s objection. The Monitor’s port-
folio was truly extraordinary; instead of resolving disputes
brought to him by the parties, he became something like a
party himself. The Monitor was charged with an investiga-
tive, quasi-inquisitorial, quasi-prosecutorial role that is un-
known to our adversarial legal system. When the parties
18
consent to such an arrangement, we have no occasion to inject
ourselves into their affairs. When a party has for a non-
frivolous reason denied its consent, however, the district court
must confine itself (and its agents) to its accustomed judicial
role.
Although the plaintiffs did not bring it to our attention, we
are aware of the practice of a federal district court appointing
a special master pursuant to Rule 53 to supervise implemen-
tation of a court order, especially a remedial order requiring
major structural reform of a state institution. See, e.g., Ruiz
v. Estelle, 679 F.2d 1115, 1161–62 (5th Cir.) (prison reform),
amended in part, reh’g denied in part on other grounds, 688
F.2d 266 (5th Cir. 1982); Halderman v. Pennhurst State Sch.
& Hosp., 612 F.2d 84, 111 (3d Cir. 1979) (en banc) (reform of
institution for the mentally retarded), rev’d on other grounds,
451 U.S. 1 (1981); Gary W. v. State of Louisiana, 601 F.2d
240, 244–45 (5th Cir. 1979) (same); id. (collecting cases);
Ross Sandler & David Schoenbrod, Democracy by Decree 55–
57 (2003). Putting aside the question whether those cases
shed any light whatsoever upon the propriety of a federal
court authorizing its agent to interfere with the affairs of
another branch of the federal government, we think the
present case goes far beyond the practice that has grown up
under Rule 53.
Ruiz illustrates the limits of the mandate a district court
may permissibly give its agent. There the district court,
having found the defendant state department of corrections
subjected inmates to cruel and unusual conditions, entered an
injunction and appointed a special master, assisted by several
‘‘monitors,’’ 679 F.2d at 1159, ‘‘to monitor implementation of
the relief ordered.’’ Id. at 1128. The special master was
given ‘‘unlimited access to [the defendants’] premises and
records as well as the power to conduct confidential inter-
views with TTT staff members and inmates.’’ Id. at 1162. On
appeal, the State argued the appointment was improper
because there was no ‘‘exceptional condition’’ warranting it, as
required by Rule 53. In rejecting that argument, the court of
appeals approved the special master’s mandate, namely, ‘‘to
report on [the department’s] compliance with the district
19
court’s decree and to help implement the decree,’’ thereby
‘‘assum[ing] one of the plaintiffs’ traditional roles.’’ Id. at
1161.
The role of the special master in Ruiz was not nearly as
broad as the role of the Monitor in this case. There the
master was specifically instructed ‘‘not to intervene in the
administrative management of [the department] and TTT not
to direct the defendants or any of their subordinates to take
or to refrain from taking any specific action to achieve
compliance.’’ Id. at 1162. Most important, the court of
appeals clarified that the special master and the monitors
were ‘‘not to consider matters that go beyond superintending
compliance with the district court’s decree,’’ thereby assuring
the special master would not be an ‘‘advocate’’ for the plain-
tiffs or a ‘‘roving federal district court.’’ Id.
The last requirement highlights the problems with the role
of the Monitor in this case, and with his appointment. The
Monitor was not limited to ‘‘superintending compliance with
the district court’s decree,’’ but was instead ordered to ‘‘moni-
tor and review all of the TTT defendants’ trust reform activi-
ties,’’ including ‘‘the defendants’ trust reform progress and
any other matter Mr. Kieffer deems pertinent to trust re-
form.’’ Nor could the Monitor have been limited to enforcing
a decree, for there was no decree to enforce, let alone the sort
of specific and detailed decree issued in Ruiz and typical of
such cases. See Sandler & Schoenbrod, above, at 9 (referring
to ‘‘court decrees that are as thick as phone books’’). The
case had been remanded to the Department ‘‘for further
proceedings not inconsistent with’’ the opinion of the district
court in order ‘‘[t]o allow defendants the opportunity to
promptly come into compliance.’’ Cobell V, 91 F. Supp. 2d at
58. Cf., e.g., Halderman, 612 F.2d at 111 (allowing special
master to administer implementation of injunction and noting
that ‘‘[m]asters are peculiarly appropriate in the implementa-
tion of complex equitable decrees which require ongoing
judicial supervision’’). In this case, the district court’s ap-
pointment of the Monitor entailed a license to intrude into the
internal affairs of the Department, which simply is not per-
missible under our adversarial system of justice and our
20
constitutional system of separated powers. Accordingly, the
district court should not have reappointed the Court Monitor
on April 15, 2002 over the Department’s objection.
2. Special Master-Monitor
In its June 14 motion to revoke Kieffer’s appointment and
clarify the role of the Court Monitor, the Department among
other things complained that Kieffer’s actions at the April 19,
2002 ex parte meeting had created an appearance of partiali-
ty. The district court not only rejected the Department’s
arguments, it supplemented Kieffer’s role by appointing him
Special Master-Monitor. Again the Department claims this
was clear error. Again we agree.
The relevant standard is to be found at 28 U.S.C. § 455(a):
A judicial officer must be disqualified from ‘‘any proceeding in
which his impartiality might reasonably be questioned,’’ that
is, questioned by one fully apprised of the surrounding cir-
cumstances. Sao Paulo State of the Federative Republic of
Brazil v. Am. Tobacco Co., Inc., 535 U.S. 229, 232–33 (2002)
(per curiam). It is clear, notwithstanding the plaintiffs’ objec-
tions, that in this Circuit the ethical restrictions of § 455
apply to a special master. Jenkins v. Sterlacci, 849 F.2d 627,
630–32 & n.1 (D.C. Cir. 1988). So much for the law; for the
facts we rely solely upon the district court’s own recitation,
which establishes that Kieffer’s prior role and personal in-
volvement in this case as Court Monitor would cause a
reasonable person to doubt his ability to remain impartial
while serving as Special Master.
For instance, Kieffer was ‘‘permitted to make and receive
ex parte communications with all entities,’’ Monitor Order,
226 F. Supp. 2d at 165, and in fact engaged in numerous ex
parte communications with officials of Interior. Id. at 167.
Moreover, in the course of his investigation Kieffer acquired
information upon the basis of which he ‘‘apprised the Deputy
Secretary that there was a dispute developing between the
Secretary and the Special Trustee TTT regarding the appro-
priate role of the Special Trustee.’’ Id. at 170. The Court
Monitor was also present at the ‘‘heated’’ ex parte meeting on
April 19, 2002, about which he reported to the Court that
21
‘‘defendants were unwilling to fully accept the Congressional-
ly-mandated role of the Special Trustee.’’ Id. at 171. At that
meeting, Kieffer ‘‘expressed his concerns to the Deputy Sec-
retary about the actions of the Secretary and the Deputy
Secretary regarding the Special Trustee.’’ Id. In particular,
he ‘‘apprise[d] the Deputy Secretary in the presence of the
Special Trustee of the obvious risks faced by the defendants
in this litigation and the additional concerns he had regard-
ing’’ some of the Secretary’s views, in ‘‘an effort to set the
stage to convince the parties attending the meeting to find
some way to work together rather than continue the interne-
cine warfare patently obvious in their own dueling memoran-
da.’’ Id. at 172.
The district court’s account of these events demonstrates
that Kieffer had a settled opinion about what the Department
should and should not do on remand to comply with the order
of the district court, which opinion he developed in his
extrajudicial role as Court Monitor with access to the internal
deliberations of the Department regarding the lawsuit. The
district court’s account also demonstrates that Kieffer’s opin-
ion was based in part upon ex parte communications received
in his extra-judicial capacity as Monitor. These facts so
clearly cast a shadow over Kieffer’s impartiality that the
district court abused its discretion in appointing Kieffer to be
Special Master (in addition to Monitor).
The plaintiffs argue the April 19 meeting was not ‘‘extraju-
dicial’’ because it took place with the knowledge and approval
of the district court and of the parties. That does not change
the key fact: The district court appointed Kieffer to a judicial
role in a case in which he had significant prior knowledge
obtained in his role as a Court Monitor, on the basis of which
he had formed and expressed opinions of continuing relevance
to the litigation. A newly appointed judge may not hear a
case in which he previously played any role. See 28 U.S.C.
§ 455(b)(3) (a judge shall recuse himself ‘‘[w]here he has
served in governmental employment and in such capacity
participated as counsel, adviser or material witness concern-
ing the proceeding or expressed an opinion concerning the
merits of the particular case in controversy’’); ABA Model
22
Code of Judicial Conduct Canon 3(E)(1)(b) (a judge is disqual-
ified when ‘‘the judge served as a lawyer in the matter in
controversy, or a lawyer with whom the judge previously
practiced law served during such association as a lawyer
concerning the matter, or the judge has been a material
witness concerning it’’). Similarly here, Kieffer’s experience
as Court Monitor disqualified him from later assuming a
judicial role in this case. Accordingly, the order appointing
Kieffer to be a Special Master-Monitor must be vacated.*
C. Contempt Specifications
The district court held Secretary Norton and Assistant
Secretary McCaleb in ‘‘civil contempt of court’’ (1) for having
engaged in ‘‘litigation misconduct,’’ to wit, ‘‘failing to comply
with the Court’s Order of December 21, 1999,’’ and (2–5) for
having, in each of four ways, ‘‘committ[ed] a fraud on the
Court.’’ Contempt Order, 226 F. Supp. 2d at 161. The
Department claims the district court erred in two respects:
by holding Norton and McCaleb in contempt (1) based upon
conduct of their predecessors in office, and (2) without finding
either officer had disobeyed a clear order of the court. The
Department also argues the district court’s factual findings do
not support its conclusion that there was a fraud on the court.
In response the plaintiffs argue the district court correctly
* In light of this disposition we need not and do not pass upon the
DOI’s objections to the propriety of Kieffer’s actions at the April 19
meeting or at any other time prior to his appointment as Special
Master-Monitor. The events of April 19 do, however, suggest the
Department’s concerns about the scope of the Court Monitor’s role
were well-founded. The district court’s findings indicate that the
Court Monitor’s duties were so wide-ranging as to have a potential-
ly significant effect upon the DOI’s deliberative process. See
Monitor Order, 226 F. Supp. 2d at 172 (Court Monitor’s presenta-
tion was ‘‘an effort to set the stage to convince the parties attending
the meeting to find some way to work together’’); id. (Court
Monitor ‘‘sought to TTT enable [DOI officials] to better carry out
[their] trust reform fiduciary obligations’’); id. at 172 n.6 (Court
Monitor, with authorization of district court, ‘‘attempt[ed] to facili-
tate a resolution of the continuing dispute between the Secretary,
the Deputy Secretary, and the Special Trustee’’).
23
applied the law to the facts. We agree with the Department,
although our analysis is somewhat different.
1. Nature of the Contempt
A contempt proceeding is either civil or criminal by virtue
of its ‘‘character and purpose,’’ not by reason of the trial
judge so denominating the proceeding. Int’l Union, United
Mine Workers v. Bagwell, 512 U.S. 821, 827 (1994); Gompers
v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911). Civil
contempt is ordinarily used to compel compliance with an
order of the court, Bagwell, 512 U.S. at 828, although in some
circumstances a civil contempt sanction may be designed to
‘‘compensate[ ] the complainant for losses sustained.’’ Id. at
829. By contrast, criminal contempt is used to punish, that
is, to ‘‘vindicate the authority of the court’’ following a trans-
gression rather than to compel future compliance or to aid the
plaintiff. Id. at 828.
In this case the nature of the contempt is obscured by the
lack of any clear sanction. Although it did, under the heading
‘‘Further Relief,’’ expand the scope of the plaintiffs’ discovery,
Contempt Opinion, 226 F. Supp. 2d at 159, the district court
itself noted that
much of the relief granted is not dependent on the
Court’s conclusion that the defendants committed several
frauds on the Court. Rather, the Court has fashioned
much of the relief granted today (such as future proceed-
ings and the appointment of a special master) simply
because of the current status of trust reform.
Id. at 135. In fact, other than an award of expenses the
plaintiffs incurred in the contempt trial, 226 F. Supp. 2d at
162 – which cannot be considered relief for the underlying
contempt – the only relief granted that could conceivably be
based upon the findings of contempt are the initiation of the
Phase 1.5 proceeding and the appointment of the Special
Master. On its face, that is, the Contempt Order appears to
find the defendants in contempt, and then to impose no
sanction.
24
Clearly, however, the district court did not intend its
decision to be without effect. The exceedingly strong words
it used in finding the defendants in contempt – in particular
its statement that Secretary Norton was ‘‘unfit’’ – suggest the
court intended the adjudication and accompanying opinion to
serve as a reprimand to Secretary Norton and Assistant
Secretary McCaleb. Indeed, the defendants reasonably char-
acterize the decision as having ‘‘impose[d] opprobrium’’ upon
them. Norton and McCaleb in particular believed the district
court’s adjudication to be so injurious to their reputations
that they engaged private counsel and sought to intervene as
appellants and to present arguments in their respective per-
sonal capacities. We see no reason a district court may not
impose a reprimand as the sole sanction for an adjudication of
contempt, particularly when the contemnor is a public official
acting in her official capacity.
Examining this sanction in light of the principles set forth
in Gompers and Bagwell, therefore, it is clear the proceeding
was, and should have been treated as being, for criminal
contempt. In specifications two through five, the district
court cites completed conduct of the defendants (or of their
predecessors in office), making the proceeding criminal in
nature. Bagwell, 512 U.S. at 829 (‘‘When a contempt involves
the prior conduct of an isolated, prohibited act, the resulting
sanction has no coercive effect’’ and is therefore punitive in
nature); id. at 828 (describing a sanction as criminal ‘‘if it is
imposed retrospectively for a ‘completed act of disobedience’ ’’
(quoting Gompers, 221 U.S. at 443)). Moreover, in each of
those four specifications the district court held the defendants
in contempt for ‘‘[c]ommitting a fraud on the Court,’’ Con-
tempt Opinion, 226 F. Supp. 2d at 20, citing as authority a
Supreme Court opinion assimilating fraud on the court to
criminal rather than to civil contempt. Id. at 26 (citing
Pendergast v. United States, 317 U.S. 412 (1943)). We have
been unable to find any authority for, let alone any reason to
believe, the proposition that fraud on the court constitutes a
civil contempt. We therefore treat the district court’s con-
tempt citations on specifications two through five as criminal
in nature.
25
We also note that, although the district court said in the
Contempt Opinion it was not ‘‘issu[ing] a contempt citation at
this time with respect to Specification 1,’’ id. at 118, the
accompanying Contempt Order is ambiguous on this score
and the court later interpreted it otherwise. The statement
that the defendants had ‘‘engaged in litigation misconduct’’
appeared under the heading ‘‘Contempt Specifications.’’ 226
F. Supp. 2d at 161. In a later opinion addressing a motion to
disqualify the District Judge, Special Master-Monitor Kieffer,
and another special master from participation in contempt
proceedings against certain non-parties, the district court
further muddied the waters, stating that on September 17 it
indeed had held the defendants in contempt for, among other
things, ‘‘engaging in litigation misconduct by failing to comply
with the Court’s Order’’ as described in specification one.
Memorandum and Order, at 5–6 (Jan. 17, 2003). We there-
fore treat specification one as a finding of contempt, also
criminal in nature.
Although one may be held in civil contempt for refusing to
comply with a court order, a sanction for one’s past failure to
comply with an order is criminal in nature. Bagwell, 512 U.S.
at 828–29; Gompers, 221 U.S. at 443–44. The district court
clearly intended to punish the defendants for ‘‘failing to
comply with the Court’s Order of December 21, 1999, to
initiate a Historical Accounting Project,’’ Contempt Order, 226
F. Supp. 2d at 161, which is no doubt why its opinion lacks
any suggestion that the defendants could yet comply and
thereby purge themselves of the contempt. See Bagwell, 512
U.S. at 828 (contempt is civil if ‘‘the contemnor is able to
purge the contempt and obtain his release by committing an
affirmative act, and thus carries the keys of his prison in his
own pocket’’).
The contempt proceeding being criminal rather than civil in
nature, and the allegedly contumacious behavior occurring
outside the presence of the court, the defendants were enti-
tled to the usual protections of the criminal law, such as trial
by jury and proof beyond a reasonable doubt. Id. at 826–27.
Because the Department has not objected upon any such
26
procedural ground, however, and explicitly disavowed any
such objection at oral argument, we treat the same as waived.
In addressing the merits of the contempt specifications, we
start with the elementary principle that, subject to certain
exceptions clearly not relevant here, and absent respondeat
superior liability, one person cannot be held criminally liable
for the conduct of another. We further note that a finding of
criminal contempt ‘‘requires both a contemptuous act and a
wrongful state of mind.’’ In re Farquhar, 492 F.2d 561, 564
(D.C. Cir. 1973).*
With these principles in mind, we can dispose quite readily
of some of the district court’s findings of contempt. Secre-
tary Norton took office in January, Assistant Secretary
McCaleb in July, 2001. Because specifications two and three
concern conduct that took place prior to their taking office,
the district court erred as a matter of law in holding either
official in criminal contempt on those counts. The district
court also erred in holding Assistant Secretary McCaleb in
contempt on all five counts without having identified in the
Contempt Opinion any specific act or omission whatsoever on
his part. We address the other specifications of contempt,
therefore, with reference to Secretary Norton alone.
2. Specification One
Specification one charged Secretary Norton with ‘‘[f]ailing
to comply with the Court’s Order of December 21, 1999, to
initiate a Historical Accounting Project.’’ Contempt Opinion,
226 F. Supp. 2d at 20. The district court said with regard to
this specification that Secretary Norton had committed litiga-
tion misconduct, referring principally to its finding that ‘‘[b]e-
tween December 21, 1999 and July 10, 2001’’ the Department
had failed to take any steps toward completing an accounting.
* Although we have grave doubts about respondeat superior
liability for a criminal contempt, we need not resolve them in this
case. Even assuming it is permissible to hold a master in criminal
contempt based in part upon the action of a servant, the discussion
below makes clear that the requirements of Farquhar, quoted
above, as well as general principles of contempt, preclude a finding
of criminal contempt in this case.
27
Id. at 113. The court characterized the Department’s actions
taken since that time as ‘‘too little, too late,’’ and stated that
‘‘Interior cannot rely on efforts undertaken’’ at the ‘‘late date’’
of June, 2001 ‘‘to avoid a contempt citation.’’ Id. at 115. In
fact, the district court described its holding as being that ‘‘the
defendants unreasonably delayed initiating the historical ac-
counting project.’’ Id. at 118.
Because Secretary Norton cannot be held criminally liable
for contempt based upon the conduct of her predecessor in
office, her contempt conviction cannot stand; she simply
cannot be held criminally to account for any delay that
occurred prior to her assuming office. Of the one and one-
half year delay about which the district court was concerned,
more than a year was on someone else’s watch.
Moreover, the district court’s findings clearly indicate that
in her first six months in office Secretary Norton took
significant steps toward completing an accounting. By June
2001 the Secretary had contracted with EDS, a national
consulting firm, to evaluate the status of the TAAMS project,
id. at 86, and by November 2001 the Department had pro-
posed a reorganization plan aimed at eliminating the prob-
lems EDS had identified. Id. at 45. In July 2001 Secretary
Norton created the Office of Historical Trust Accounting,
which has since made significant progress toward completing
an accounting. Id. at 44–45. Hence, the Court Monitor
stated in his Fifth Report, ‘‘[t]here is no doubt the OHTA has
made more progress TTT in six months [July through Decem-
ber, 2001] than the past administration did in six years.’’
These uncontested facts are inconsistent with a finding that
Secretary Norton failed to comply with the district court’s
order of December 21, 1999. Therefore, we hold the district
court erred as a matter of law in holding Secretary Norton in
criminal contempt on specification one.
3. Specification Four
In specification four the Secretary was held in contempt for
committing a fraud on the court. We note initially that fraud
on the court is a narrow concept, limited to ‘‘the most
28
egregious conduct involving a corruption of the judicial pro-
cess itself.’’ 11 Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice & Procedure § 2870, at 418
(2d ed. 1995).
The district court held Secretary Norton in contempt for
‘‘filing false and misleading quarterly status reports starting
in March 2000, regarding TAAMS and BIA Data Cleanup.’’
Contempt Opinion, 226 F. Supp. 2d at 124. Of those eight
reports, however, the first four were filed prior to Secretary
Norton’s taking office, and she therefore cannot be held
criminally liable for anything in them. The remaining reports
do not rise to the level of fraud on the court.
The court complained that the fifth report provided a
‘‘positive assessment’’ of the status of TAAMS ‘‘based on
nothing more than speculation and wishful thinking.’’ Id. at
80. Of the sixth report, the district court said the Depart-
ment was ‘‘misleading’’ the court when it represented ‘‘it was
moving ever closer to being able to implement fully the title
and realty portions of TAAMS,’’ and that it ‘‘had conducted
specific tests that indicated that it was almost ready to deploy
TAAMS.’’ Id. at 82. Regarding the seventh report, the
court noted the Department’s concession that it had not met
certain goals and complained that the Department ‘‘presented
a positive picture of TAAMS despite the fact that the agency
was not ready to deploy or implement the land management
system as scheduled, and TTT clearly was not going to be able
to deploy or implement it anytime soon.’’ Id. at 83. The court
also objected that ‘‘Interior did not provide the Court with
anything close to what can be construed as a complete picture
of the system’s status.’’ Id.
Finally, with regard to the eighth report – which was the
first to be filed after Interior had received EDS’s assessment
of the project – the court noted both Secretary Norton’s
concession that previous reports had been inadequate, and
the Secretary’s attempts to improve the quality of the re-
ports. Id. at 84–85. The district court appeared to have no
quarrel with the content of the eighth report. Instead, the
court inferred from admissions in the eighth report that the
29
inadequacies of the previous reports were intentional and
contumacious. See id. at 80 (completion dates in fifth report,
‘‘in light of the later filed quarterly status reports, [were]
based on nothing more than speculation and wishful think-
ing’’); id. at 82 (sixth report ‘‘particularly misleading (and
troubling) in light of the Department’s Eighth Report’’); see
also id. at 84 (quoting Secretary Norton’s testimony that
seventh report gave ‘‘an insufficient picture’’ and was ‘‘not a
particularly good document’’).
We find the reasoning of the district court mystifying. The
court is surely correct in stating that the eighth report does
not ‘‘absolve[ ] the defendants’’ of responsibility for any past
wrongdoing. Id. at 126. But neither does the Secretary’s
candid critique of prior reports, made in the light shed by
EDS’s evaluation, lead to the conclusion that those reports
were intentionally false and misleading; the district court’s
findings of fact simply do not support its conclusion that
Secretary Norton committed a fraud on the court. To be
sure, the earlier reports painted an overly sunny picture of
the status of the TAAMS project and were misleading about
the progress being made in ways painstakingly identified by
the district court. The district court made no finding, howev-
er, that Secretary Norton had any personal knowledge that
the fifth, sixth, or seventh reports were false or misleading.
In light of the above, we conclude that the district court
erred as a matter of law in holding Secretary Norton in
criminal contempt on specification four.
4. Specification Five
In specification five, the district court found the Secretary
committed a fraud on the court by making false and mislead-
ing representations ‘‘regarding computer security of IIM
trust data.’’ Id. at 100. The Department made representa-
tions on that subject under Secretary Norton in April and
May 2001. The district court’s findings as to those state-
ments do not support its conclusion that Secretary Norton
committed a fraud on the court.
30
The April representations appeared in the Department’s
Opposition to the Plaintiffs’ Motion for Special Master Inves-
tigation; in particular, the court identified the statement that
the Department had ‘‘made security a top priority and ha[d]
taken numerous steps to improve the security of the Reston
facility since the Special Master’s visit,’’ id. at 106, and the
Department’s outline of its completed and planned security
improvements. Id. at 106–07. The district court also took
issue with the Department’s May 2001 Opposition to the
Plaintiffs’ Motion for a Temporary Restraining Order and
Preliminary Injunction, insofar as the defendants argued the
plaintiffs’ ‘‘position [was] wholly without merit.’’ Id. at 107.
The district court apparently found these statements to be
false based upon the Report on IT Security prepared by a
special master (not Kieffer), and upon ‘‘the Department’s
failure to dispute any of the underlying facts’’ set out in that
report. See id. at 108. In the report, the special master had
concluded the Department ‘‘has known about pervasive IT
security deficiencies for more than a decade,’’ id., and found
the Department ‘‘has not taken necessary actions to correct
its numerous and longstanding IT security deficiencies,’’ id. at
109, which the special master chronicled at length.
We see no finding of fact in the Report on IT Security, or
in any opinion of the district court, that directly contradicts
the statements in the Department’s April Opposition, which
the court identified as part of a fraud on the court. Absent a
direct contradiction, the facts of this case do not support the
implicit inference that Secretary Norton ‘‘has acted with an
intent to deceive or defraud the court.’’ United States v.
Buck, 281 F.3d 1336, 1342 (10th Cir. 2002). With respect to
the statement in the Department’s May Opposition, we think
it inconceivable that a departmental secretary may be held to
have committed a fraud on the court because an attorney
representing her Department argued in an adversarial pro-
ceeding that an adversary’s motion critical of the Department
was ‘‘without merit.’’
We therefore conclude the district court erred as a matter
of law in holding Secretary Norton in criminal contempt on
specification five.
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III. Conclusion
The Contempt Order is vacated insofar as it relates to the
appointment and duties of the Special Master-Monitor. The
Special Master-Monitor Order is vacated. The Monitor Or-
der, denying the defendants’ motion to revoke the appoint-
ment of Kieffer as Monitor, is vacated, and the district court
is directed to enter an order granting that motion.
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. The
case is remanded to the district court for further proceedings
consistent with this opinion.
So ordered.