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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2004 Decided September 14, 2004
No. 03-5047
IN RE: PHILLIP A. BROOKS
PETITIONER
Consolidated with
Nos. 03-5048, 03-5049, 03-5050, 03-5057
On Petitions for Writ of Mandamus
(No. 96cv01285)
Robert D. Luskin argued the cause for petitioners. On the
petitions for writ of mandamus and reply were Amy Berman
Jackson, John Thorpe Richards, Jr., Elizabeth Wallace Flem-
ing, Michael D. Goodstein, Deanna Chang, William H.
Briggs, Jr., Marc E. Rindner, Hamilton P. Fox, III, Gregory
S. Smith, Thomas E. Wilson, Bradley S. Lui, Dwight Bo-
stwick, and Melissa McNiven.
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
G. William Austin, III argued the cause for respondents.
With him on the response were Dennis M. Gingold, Elliott H.
Levitas and Keith Harper.
Before: GINSBURG, Chief Judge, and HENDERSON and
RANDOLPH, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Before us are five petitions for
writs of mandamus filed by 11 current and former officials
and employees of the Departments of the Interior (DOI) and
of Justice. Each of the petitioners was the subject of an
investigation, initiated by the district court, to determine
whether that individual should be ordered to show cause why
he or she should not be held in contempt for conduct relating
to the litigation over the DOI’s handling of monies held in
trust for individual Indians.
The petitioners originally sought the recusal of District
Court Judge Royce Lamberth, Special Master Alan Balaran,
and Special Master-Monitor Joseph Kieffer III based upon
alleged ex parte communications they made or received in the
course of that litigation. Special Master Balaran has since
resigned and we ordered Special Master-Monitor Kieffer
removed in Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003).
The petitioners still seek to recuse Judge Lamberth and to
suppress the reports and recommendations written (but not
filed with the district court) by Special Master Balaran before
he resigned.
We now deny the petition to recuse Judge Lamberth from
the pending contempt proceedings because he has stated he
did not receive ex parte communications substantively related
to those proceedings from either Balaran or Kieffer, and we
have no reason to conclude he abused his discretion by
refusing to recuse himself. We do, however, vacate Balaran’s
proposed reports and recommendations relating to the con-
tempt proceedings.
I. Background
The present petitions and the contempt proceedings to
which they relate arise from the ongoing litigation over the
3
DOI’s mishandling of the ‘‘Individual Indian Money’’ trust
accounts created for each Indian having an interest in certain
allotted lands. See Cobell, 334 F.3d at 1133. Because the
petitioners are not parties to that case, the facts and the
procedural history relevant here may be recounted without
laying waste the better part of a forest.
In February 1999 the district court held then-Secretary of
the Treasury Robert Rubin, then-Secretary of the Interior
Bruce Babbitt, and then-Assistant Secretary of the Interior
Kevin Gover, in their official capacities, in civil contempt for
violating two discovery orders issued in the trust reform
litigation. See Cobell v. Babbitt, 37 F. Supp. 2d 6 (D.D.C.
1999). The district court, with the consent of the parties,
then appointed Alan Balaran to serve as a special master
pursuant to Rule 53 of the Federal Rules of Civil Procedure
in order to ‘‘oversee the discovery process in this case.’’ In
August 1999 the district court additionally authorized Balaran
to make ‘‘on-site visits to any location where [trust account]
Records are maintained’’ in order to protect such records
‘‘from destruction or threatened destruction.’’
In April 2001 the district court, again with the consent of
the parties, appointed Joseph Kieffer to serve for one year as
a ‘‘court monitor,’’ with a mandate to ‘‘monitor and review all
of the Interior defendants’ trust reform activities and file
written reports of his findings with the Court.’’ Kieffer was
‘‘permitted to make and receive ex parte communications with
all entities necessary and proper to effectuate his duties.’’ By
October Kieffer had issued four reports. The reports were
‘‘unflattering to the DOI’’ and ‘‘prompted the district court to
order Secretary Norton and Assistant Secretary McCaleb TTT
to ‘show cause why they should not be held in civil contempt
of court in their official capacities,’ ’’ Cobell, 334 F.3d at 1135;
see also Cobell v. Norton, 226 F. Supp. 2d 1, 19 (D.D.C. 2002)
(Contempt Referrals).
The order to show cause set out five possible reasons (or
‘‘specifications’’) for holding Norton and McCaleb in con-
tempt: four were based upon Court Monitor Kieffer’s reports
and addressed the DOI’s noncompliance with court orders
4
relating to trust reform; the fifth was based upon a report
issued in November 2001 by Special Master Balaran concern-
ing the destruction of email records by officials and employ-
ees of the DOI. See Cobell, 334 F.3d at 1135; see also Cobell
v. Norton, 237 F. Supp. 2d 71, 76 (D.D.C. 2003) (Order
Denying Recusal). On September 17, 2002 the district court
held both Norton and McCaleb in civil contempt of court upon
all five specifications. Contempt Referrals, at 161, rev’d, 334
F.3d at 1145-50 (vacating contempt charge against Norton
because specifications either did not support such a charge or
were based upon ‘‘conduct of her predecessor,’’ and vacating
contempt charge against McCaleb because court did not
identify any ‘‘specific act or omission whatsoever on his
part’’). At the same time the district court referred to
Balaran (1) the plaintiffs’ October 2001 ‘‘Motion for Order to
Show Cause Why Interior Defendants and Their Employees
and Counsel Should Not Be Held in Contempt for Violating
Court Orders and for Defrauding This Court TTT,’’ and (2)
their March 2002 ‘‘Motion for Order to Show Cause Why
Interior Alleged Contemnors and Their Counsel Should Not
Be Held in Contempt for Destroying E-mail.’’ See Order
Denying Recusal, at 76; see also Contempt Referrals, at 155.
With respect to the first motion, the court instructed
Balaran to
develop a complete record with respect to these 37 non-
party individuals [and], upon completing his review of
these matters, issue a report and recommendation re-
garding whether each individual should be ordered to
show cause why he or she should not be held in (civil or
criminal) contempt of court, or whether other sanctions
are appropriate against such individuals.
Contempt Referrals, at 155. With respect to the second
motion, the court instructed him to ‘‘issue a report and
recommendation regarding the issues raised.’’ Id. at 155-56.
Thereafter, 16 of the 37 non-parties named in the Septem-
ber 17 referrals filed motions in the district court to recuse
Judge Lamberth, Special Master Balaran, and Special Mas-
ter-Monitor Kieffer from participating in the contempt pro-
5
ceedings.* They argued that ‘‘although the communications
between the Court and its special masters were not improper
in the context of the underlying litigation,’’ they were incon-
sistent with participation in the contempt proceedings be-
cause ‘‘the Master and the Monitor furnished the Court with
extrajudicial knowledge about the current litigation.’’ Order
Denying Recusal, at 77-78. In the alternative, the movants
sought discovery regarding the substance of the ex parte
communications Balaran and Kieffer had with employees and
officials of the DOI and with the district judge. The district
court denied the motions in their entirety.
In February 2003, 11 of the 16 movants petitioned this
court for writs of mandamus providing the same relief.**
Their petitions were held in abeyance while the court decided
Cobell, 334 F.3d 1128, in which we concluded, among other
things, that Kieffer’s appointment as Special Master-Monitor
was not valid because it was made over the objection of the
defendants.
Following our decision in Cobell, we ordered further brief-
ing and argument on the current petitions. The plaintiffs in
the underlying trust reform litigation then responded to the
five petitions, and the petitioners filed a consolidated reply.
After oral argument on March 15, 2004 we ordered Special
Master Balaran to take no further actions with respect to the
* The district court had renewed Kieffer’s appointment in April
2002, this time as a Special Master-Monitor, over the objections of
the petitioners.
** In No. 03-5047 petitioner Phillip Brooks seeks to recuse Judge
Lamberth or to take discovery of his ex parte contacts with Kieffer
and Balaran; in No. 03-5048 petitioners Bruce Babbitt, Edith
Blackwell, Edward Cohen, John Leshy, and Michael Rosetti seek to
recuse Judge Lamberth and Special Master Balaran; in No. 03-
5049 petitioners Tom Clark II, Charles Findlay, and John Most also
seek to recuse Judge Lamberth and Special Master Balaran; in No.
03-5050 petitioner Anne Shields seeks to recuse Judge Lamberth or
to take discovery of his ex parte contacts with his judicial officers;
and in No. 03-5057 petitioner Sabrina McCarthy seeks to recuse
Judge Lamberth or to take discovery of his ex parte contacts with
his judicial officers and to recuse Special Master Balaran.
6
reports and recommendations he was going to issue pursuant
to the September 17 referrals. On April 5 Balaran resigned
as a special master both in the contempt proceedings and in
the underlying trust reform litigation. With the removal of
Kieffer and the resignation of Balaran from all aspects of the
Cobell litigation, all that remained of the present petitions
were the issues relating to the disqualification of the district
court judge — or so it seemed.
On April 15, 2004 the plaintiffs filed a ‘‘Suggestion of
Mootness’’ in part, arguing there is ‘‘no remaining controver-
sy’’ with respect to Balaran. The petitioners, however, re-
sponded that the question of Balaran’s recusal is not moot
because Balaran had completed and, but for our order of
March 15, would submit to the district court his reports and
recommendations relating to the contempt charges against
the 37 individuals who are not parties to the underlying
litigation. Therefore, the petitioners claimed ‘‘any reports
[Balaran] completed after the time he should have been
recused would be tainted and invalid and should not be
released or shared with the District Court.’’
II. Analysis
In the light of our earlier disqualification of Special Master-
Monitor Kieffer, and of Special Master Balaran’s resignation,
two questions remain. First, must the district judge, as the
petitioners claim, either (a) recuse himself or (b) allow discov-
ery of the ex parte communications he had with Kieffer and
Balaran? Second, may Balaran submit to the court the
reports and recommendations he prepared pursuant to the
September 17 referrals?
A. Recusal of the District Judge
A writ of mandamus is ‘‘an extraordinary remedy, to be
reserved for extraordinary situations.’’ Cobell, 334 F.3d at
1137. Nonetheless, ‘‘we will issue a writ of mandamus com-
pelling recusal of a judicial officer where the party seeking
the writ demonstrates a clear and indisputable right to re-
7
lief.’’ Id. at 1139. A party has such a right when a judicial
officer has ‘‘personal knowledge of disputed evidentiary
facts,’’ 28 U.S.C. § 455(b)(1), or when the judicial officer’s
‘‘impartiality might reasonably be questioned,’’ 28 U.S.C.
§ 455(a).
The petitioners argue Judge Lamberth should have dis-
qualified himself pursuant to 28 U.S.C. § 455(b)(1) because he
acquired personal knowledge of disputed facts through his ex
parte communications with Kieffer and Balaran. According
to the petitioners, Kieffer’s time sheets show that he met with
the District Judge ex parte more than 80 times, for a total of
more than 120 hours. Similarly, in the motions for recusal
they filed in the district court, the petitioners claimed that
Balaran’s time records ‘‘reveal[ed] seven private meetings
with the Court for a total of approximately eight hours.’’ See
Order Denying Recusal, at 89. The petitioners also point to
ex parte communications Balaran had with numerous individ-
uals involved in the Cobell litigation, including DOI officials
and employees, plaintiffs’ counsel, and the Independent Coun-
sel investigating Secretary Norton, which communications
they claim Balaran later ‘‘transmitted’’ to the district court in
the form of ‘‘memoranda TTT regarding matters such as
compliance with discovery obligations [and] sanctions.’’
The respondents reply that the district court fully ad-
dressed each of the petitioners’ claims in its ruling denying
their motions for recusal. There the district judge acknowl-
edged having met privately with the Court Monitor and the
Special Master but rejected any suggestion those meetings
constitute a proper ground for his recusal. Far from it, the
district court stated:
It is not only appropriate but necessary for the Court, as
principal, to consult with its agents regarding the man-
ner in which they are carrying out their assigned
dutiesTTTT [T]hroughout these regular consultations,
the Court discussed with the Master the general nature
of the ongoing tasks that the Master was involved with,
8
in order to ensure that the Master was responsibly
carrying out the duties to which he was assigned.
Id. at 89-90.
The district judge cast additional light upon the nature of
his off-the-record meetings in describing his consultations
with Kieffer:
In the course of a typical meeting, for example, the
Monitor might inform the Court that he planned to travel
to New Mexico to meet with the Office of the Special
Trustee, and receive a briefing about their role in the
historical accounting process. Or he might explain that
he traveled to Billings, Montana to meet with title rec-
ords office personnel, examine their hard copy records,
and review the pilot [Trust Asset and Accounting Man-
agement System]. Or he might inform the Court that he
had been briefed by the Deputy Commissioner of the
Bureau of Indian Affairs about the organization of their
office.
Id. at 91-92. The judge concluded that the ‘‘subject of these
consultations was what the Monitor was doing, not what he
was finding’’; they did not expose the court to any ‘‘bare
facts’’ relevant to the underlying investigation. Id. at 92.
The petitioners resist that conclusion upon the basis of
statements in two opinions the judge rendered in the course
of the Cobell proceedings. The first is this snippet from the
district court’s opinion of September 17, 2002: ‘‘[T]he Court is
personally aware of the background of the April 19, 2002
meeting, the conversations at that meeting and at the subse-
quent meetings between the Deputy Secretary and the Court
Monitor.’’ Cobell v. Norton, 226 F. Supp. 2d 163, 170 (D.D.C.
2002).* They also point to the district court’s opinion of
September 30, 2002 concerning Court Monitor Kieffer’s re-
quest for compensation, in which the court stated: ‘‘It is
* Although the petitioners say the opinion is ‘‘replete with refer-
ences to information gathered by the Court Monitor and shared
with the District Court,’’ they identify no other and none is appar-
ent to us.
9
sufficient that the Court Monitor has advised this Court
regarding his meetings and discussions with third parties and
has always informed this Court about the nature, extent, and
substance of such meetings and discussions upon request.’’
Cobell v. Norton, 223 F. Supp. 2d 156, 160 (D.D.C. 2002).
As the respondents point out, the district judge addressed
both the quoted statements in his opinion denying the peti-
tioners’ motion to recuse, in which he concluded, ‘‘Any honest
reading of these opinions TTT demonstrates that movants
have fundamentally misconstrued’’ the relevant passages.
Order Denying Recusal, at 93. With respect specifically to
the September 17 opinion, the judge explained that the
Deputy Secretary of the DOI had requested that the Court
Monitor attend the April 19 meeting in order to resolve a
dispute between the Deputy Secretary and the Special Trus-
tee appointed by the court in the underlying trust reform
litigation:
[T]he only reason that the Court knew anything about
the April 19 meeting, or the background relating to that
meeting, is that the Monitor was compelled to ‘‘present[ ]
the facts surrounding the request of the Deputy Secre-
tary’’ to hold the meeting, in order that the Court could
make an informed decision about whether to authorize
the Monitor’s attendance at the meeting.
Id. at 96. So understood, the September 17 opinion does not
show that the district judge acquired personal knowledge of
disputed evidentiary facts.
Similarly, the district court explained why the single sen-
tence to which the petitioners pointed in the court’s Septem-
ber 30 opinion, when viewed in its context, is innocuous. The
court was not asking the Court Monitor for substantive
information; rather it was asking for information relevant to
verifying ‘‘the reasonableness and propriety of the Monitor’s
compensation requests.’’ Id. at 97. Thus, the district court
reasonably explained that in referring to the ‘‘nature, extent,
and substance of [Kieffer’s] meetings’’ with third parties, the
court was concerned with the subject matter, not the actual
content, of those meetings.
10
The petitioners nonetheless claim the district judge’s ex
parte contacts with Kieffer and Balaran provided him with
‘‘information [that] cannot be ‘controverted or tested by the
tools of the adversary process,’ ’’ quoting Edgar v. K.L., 93
F.3d 256, 259 (7th Cir. 1996). Just like the petitioners in
Edgar, they claim, the ‘‘Petitioners here are completely in the
dark about what transpired during the Monitor’s 120 hours of
communications with the Court.’’ The respondents correctly
point out, however, that unlike the district judge in Edgar,
who ‘‘declined to state on the record his own memories of
what happened’’ in his private meetings with a panel of court-
appointed experts, id. at 258, the district judge here declared
‘‘unequivocally’’ he knows of no substantive information that
was provided during any of his consultations with Kieffer or
Balaran. Order Denying Recusal, at 92; see also id. at 90.
Still unappeased, the petitioners question whether the dis-
trict judge should be relied upon to recall what was discussed
in so many unrecorded meetings lasting so many hours. But
their question reflects a misconception about the assurance
required of the judge: He need not recall all that was
discussed at those meetings; he need only recall that the
substance of the special masters’ findings was not discussed.
If, as he represents, that was an implicit ground rule for the
conduct of those meetings, then the pertinent question is
whether it was ever violated. We see no reason for not
accepting the judge’s unequivocal response.
Moreover, it is not surprising that the district judge met
many times with the Special Master and the Court Monitor;
he had to oversee and to coordinate their efforts on the
court’s behalf during four years of complicated and conten-
tious litigation. Keeping a careful inventory of the tasks they
had performed appears sensible, particularly in the light of
the defendants’ several challenges to Kieffer’s and Balaran’s
requests for compensation. See, e.g., Cobell, 223 F. Supp. 2d
at 159 (defendants request adjustment or reconsideration of
Kieffer’s compensation because he ‘‘failed to provide suffi-
ciently detailed information about the work performed’’).
11
Because neither the proffered evidence of ex parte meet-
ings between the court and its agents nor the district court’s
September 2002 opinions show the judge had acquired ‘‘per-
sonal knowledge of disputed evidentiary facts,’’ 28 U.S.C.
§ 455(b)(1), we hold the petitioners have failed to show the
‘‘clear and indisputable right’’ to relief that is required for
this court to issue a writ of mandamus.
The petitioners also claim the district judge should be
recused because his ‘‘impartiality [in any contempt proceed-
ings] might reasonably be questioned,’’ 28 U.S.C. § 455(a),
based upon the ex parte communications considered above.
‘‘The standard for disqualification under § 455(a) is an objec-
tive one. The question is whether a reasonable and informed
observer would question the judge’s impartiality.’’ United
States v. Microsoft, 253 F.3d 34, 114 (D.C. Cir. 2001). In this
case the answer is no, for the same reason we determined
above that the judge’s ex parte contacts with the special
masters did not give him personal knowledge of disputed
evidentiary facts.
B. Discovery
As an alternative to recusal of the district judge, several of
the petitioners claim a right to take discovery of the ex parte
communications between the judge and his agents. The
respondents point out that the petitioners ‘‘fail to identify a
single case authorizing the discovery they demand under such
circumstances.’’ That is not surprising considering the rather
extraordinary relief the petitioners request — discovery of
the private communications between a district judge and
subordinate judicial officers regarding matters the judge has
expressly stated are procedural and non-substantive. The
petitioners argue that, as in Edgar, ‘‘The appearance of
impartiality concerns are magnified in this case TTT by the
District Court’s refusal to permit discovery regarding the
nature of ex parte contacts.’’ In other words, discovery is
warranted because the district court’s refusal to allow it
creates an appearance of partiality that can be dispelled only
by allowing discovery. The circularity of this argument is
manifest. In any event, as we have seen, Edgar is not on
12
point because the judge in that case ‘‘declined to state on the
record his own memories of what happened’’ during his ex
parte communications with a panel of experts, 93 F.3d at 258,
whereas here the district judge has described ‘‘the nature of
the ex parte contacts,’’ and stated unequivocally that those
contacts were of a procedural and not a substantive nature.
Accordingly, the petitioners have not shown a ‘‘clear and
indisputable right’’ to the extraordinary relief they request.
C. The Special Master
Several of the petitioners urge that despite Balaran’s resig-
nation ‘‘this court must rule on whether the Special Master
should have been recused from the contempt proceedings
under § 455, and if so, permanently enjoin the release of his
report and recommendations and any other work product he
may have completed.’’ In reply the respondents argue that
vacatur of Balaran’s reports and recommendations was not
the relief requested in the petitions and is ‘‘without justifica-
tion [and] has no basis in the law.’’ If, however, the Septem-
ber 17 referrals to Balaran as special master in the Cobell
litigation were made in error because Balaran should have
been recused from the contempt proceedings, then any work
produced pursuant to the September 17 referrals must also
be ‘‘recused’’ — that is, suppressed. We are constrained,
therefore, to determine whether Balaran should have been
recused from the contempt proceedings.
The petitioners claim Balaran should have been recused
from the contempt proceedings under § 455(b)(1) because, as
a special master, he had been performing investigative and
adjudicative tasks that entailed ex parte communications with
witnesses and third parties in the underlying trust reform
litigation, as documented in Balaran’s time sheets. For ex-
ample, Balaran had ex parte contacts with Dennis Gingold,
the plaintiffs’ lead counsel, see, e.g., Invoice of 10/7/99, as well
as several other of the plaintiffs’ attorneys, see, e.g., Invoice of
3/22/00. Balaran also had ex parte contacts with unnamed
‘‘moles,’’ see, e.g., Invoice of 4/18/01 (‘‘Review submissions
from ‘Mole 43’ ’’); Invoice of 4/20/01 (‘‘Review correspondence
from ‘moles’ in field’’), and unnamed employees at the DOI,
13
see, e.g., Invoice of 2/5/01. Accordingly, the petitioners rely
upon Cobell, 334 F.3d 1128, in which we held squarely that ‘‘in
this Circuit the ethical restrictions of § 455 apply to a special
master,’’ id. at 1144 (citing Jenkins v. Sterlacci, 849 F.2d 627,
630-32 & n.1 (D.C. Cir. 1988)).
The district court, in denying the petitioners’ motions to
recuse Balaran, reasoned that the holding in Cobell quoted in
the previous sentence, because it invoked the precedent of
Jenkins, did not apply to Balaran as special master in the
contempt proceedings:
[T]he Jenkins court took pains to clarify that ‘‘at least
insofar as special masters perform duties functionally
equivalent to those performed by a judge, they must be
held to the same standards as judges for purposes of
disqualification.’’ Jenkins, 849 F.2d at 631 n.1TTTT And
the litmus test by which special masters are construed to
be the ‘‘functional equivalent’’ of judges is the ‘‘clearly
erroneous’’ standard of deference.
Order Denying Recusal, at 84-85 (emphasis in original). Be-
cause the district court proposed to review Balaran’s findings
in the contempt proceedings de novo rather than for clear
error, but see FED. R. CIV. P. 53(e)(2) (2002) (‘‘the court shall
accept the master’s findings of fact unless clearly erroneous’’),
it concluded the Special Master’s duties would be non-
adjudicative in nature, and the Special Master therefore
would not be subject to recusal under § 455.
As an initial matter, we note Balaran’s own description of
his role, in a memorandum sent to ‘‘All Counsel’’ at the outset
of the contempt proceedings, which plainly demonstrates the
adjudicative nature of his position. For instance, he under-
took ‘‘preliminarily [to] decide whether the individual Bills of
Particular warrant dismissal before initiating any discovery.’’
In any event, we were not in Jenkins concerned only with
situations in which a special master is the ‘‘functional equiva-
lent’’ of a trial judge because his findings are accorded
deferential ‘‘clear error’’ review. Rather, we were concerned
with any situation in which ‘‘a special master’s partiality may
14
operate unchecked and uncheckable by the district court.’’
Jenkins, 849 F.2d at 631.
The district court’s proposal in this case to review the
Special Master’s findings de novo does not solve the problem
of ‘‘unchecked and uncheckable’’ partiality. Balaran’s four-
year involvement in the trust reform litigation entailed innu-
merable contacts with witnesses and third parties likely to
have information relevant to the contempt proceedings. In-
evitably, he would have formed impressions about the charac-
ter of some, perhaps many, of the individuals named in the
contempt proceedings. Consider the letter of January 31,
2001 Special Master Balaran wrote to Phillip Brooks, Esq.,
one of several attorneys in the Department of Justice who
represented the DOI and later became a subject of Balaran’s
contempt inquiry:
I am firmly resolved to expose and reform [Office of
Trust Records senior] management infirmities once and
for all. What presents a more complicated dilemma is
the recent conduct of government counsel. It has come
to my attention that certain attorneys currently em-
ployed by the Department of Justice and the Office of
the Solicitor (in concert with OTR management) have
launched a misguided campaign to undermine my author-
ity. These individuals have reportedly gone to great
lengths to malign me both personally and professionally
in front of [Bureau of Indian Affairs] employees and to
misinform these employees as to the true purpose behind
my appointment and as to the inherent rights and re-
sponsibilities attendant to that position. They have suc-
cessfully dissuaded BIA/OTR employees from contacting
me freely. While I understand that you may choose to
discount the credibility of those who chose to report
these events to me, rest assured I have spoken to these
individuals at length and I am convinced, given the level
of detail contained in their reports and my own indepen-
dent verification, that what I am being told is true.
The question therefore remains how to address govern-
ment counsel who publicly call into question my ability to
15
read, who liken my investigation to those undertaken by
television characters or who insist that I have never
practiced law. As I have been called worse things by
better lawyers, I will not take these personal insults to
heart. I will, however, not tolerate what I consider to be
a transparent attempt to undermine the Court’s orders
and I will not accept the conduct of any official who
creates an environment where employees fear reprisal
simply for contacting my office.
In view of the tone and the substance of this letter, it
seems likely, if not inevitable, that Balaran’s compilation of
the record for the district court’s review, not to mention his
reports and his recommendations, would be subject to selec-
tion bias; at the very least, an observer apprised of all the
facts would reasonably question his impartiality. Indeed, if
Balaran could properly serve as special master advising the
district court whether to initiate contempt proceedings, then
it would seem equally permissible for a judge presiding over a
criminal proceeding to dispatch his law clerk to visit the scene
of the crime, take fingerprints, interview witnesses, and re-
port back to the judge about his findings. The judge’s
undertaking to review the clerk’s findings de novo would not
be assurance against the biases of the clerk affecting the
judgment of the court; so much the worse if the clerk, like
Special Master Balaran, had personal knowledge of the par-
ties — and perhaps of the events in suit — from prior
dealings with them.
The respondents, echoing the district judge’s rationale, in
part, for denying the motions to recuse Special Master Balar-
an, see Order Denying Recusal, at 85-88, assure this court
that any ex parte communications Balaran had with third
parties in connection with his duties in the underlying Cobell
litigation will not taint the contempt proceedings because ‘‘his
reports to the Court concerning [Information Technology]
security and e-mail destruction were not based on any infor-
mation derived from’’ those communications. They also note
Balaran assured the district court and the parties that his
‘‘[f]indings stemming from proceedings in which the Named
16
Individuals have not been afforded the opportunity to partici-
pate and/or comment will not be considered during these
proceedings.’’ These assurances do not, however, cure the
problem of selection bias. Our concern is not with informa-
tion that ‘‘enters the record and may be controverted or
tested by the tools of the adversary process,’’ Edgar, 93 F.3d
at 259; our concern is with information that ‘‘leave[s] no trace
in the record,’’ id. — such as Balaran’s ex parte contacts with
‘‘moles’’ and unnamed DOI employees — that may reasonably
be expected to color the way in which he approaches his task,
and ultimately his reports and recommendations to the dis-
trict court, and thus to taint the contempt proceedings despite
the steps taken to insulate those proceedings from the infor-
mation to which Balaran was exposed ex parte.
Because the district court’s proposed de novo review of
Balaran’s findings does not render his task as special master
in the contempt proceedings non-adjudicative, the ex parte
communications Balaran had in his role as special master in
the trust reform litigation required his recusal from the
contempt proceeding pursuant to § 455(b)(1). Moreover, the
nature and extent of his ex parte contacts would lead an
informed observer reasonably to question his impartiality,
thereby requiring his recusal independently pursuant to
§ 455(a). We therefore hold the district court erred in failing
to grant the petitioners’ motions to recuse Balaran.
III. Conclusion
The petitions for a writ of mandamus to recuse Judge
Lamberth are denied. Because Special Master Balaran had
ex parte contacts that may have given him personal knowl-
edge of disputed evidentiary facts relevant to the contempt
proceedings, those proceedings should never have been re-
ferred to him. Therefore any reports, recommendations, or
other work product Balaran prepared pursuant to the Sep-
tember 17 referrals may not be submitted to the district court
or otherwise disseminated in any manner.
So ordered.