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Tuesday, April 08, 2014

A Remarkable Opinion in a Landmark Case

I want to tell some of the story of a case over a couple posts and I can't do justice to the whole thing in this format, so I'll focus on an episode involving what federal district Judge Royce Lamberth (a Reagan appointee) said in the course of granting a procedural motion in one of the largest class actions in American history.  The next post will be about what happened to the judge and the case after he said it. 

The 1887 Dawes Act, one of the government's attempts to solve "the Indian problem," placed Native American lands into a government-managed trust, allotted small parcels to Native families, and took the rest -- millions of acres -- as "surplus" disposable for profit.  Allotted trust lands were supposed to be managed for the benefit of their Native beneficiaries, but over 120 years the federal trusteeship was plagued by mismanagement.  In 1996, Eloise Cobell and others filed a lawsuit against the Departments of Interior and Treasury, on behalf of what the plaintiffs estimated was a class of 500,000 beneficiaries, for an accounting of trust assets.  The case dragged on for 9 years and already included a number of memorable events (including contempt citations issued to the Secretary of the Interior), before Judge Lamberth issued his opinion granting the plaintiffs' motion for permission to send notice to the class that government-issued trust information might be unreliable.  The plaintiffs pointed to evidence that the Interior and Treasury Departments hadn't kept adequate trust records or adequately protected physical and electronic trust documents against corruption.

A couple illustrative passages from the opinion, after the jump:

Judge Lamberth begins on a grim note:

"For those harboring hope that the stories of murder, dispossession, forced marches, assimilationist policy programs, and other incidents of cultural genocide against the Indians are merely the echoes of a horrible, bigoted government past that has been sanitized by the good deeds of more recent history, this case serves as an appalling reminder of the evils that result when large numbers of the politically powerless are placed at the mercy of institutions engendered and controlled by a politically powerful few. . . . [T]he entire record in this case tells the dreary story of Interior's degenerate tenure as Trustee-Delegate for the Indian trust, a story shot through with bureaucratic blunders, flubs, goofs and foul-ups, and peppered with scandals, deception, dirty tricks, and outright villainy, the end of which is nowhere in sight."

And, near the end, he speculates about causes:

"Perhaps Interior's past and present leaders have been evil people, deriving their pleasure from inflicting harm on society's most vulnerable.  Interior may be consistently populated with apathetic people who just cannot muster the necessary energy or emotion to avoid complicity in the Department's grossly negligent administration of the Indian trust.  Or maybe Interior's officials are cowardly people who dodge their responsibilities out of a childish fear of the magnitude of the efforts involved in reforming a degenerate system. . . . Perhaps the Indians were doomed the moment the first European set foot on American soil.  Who can say?"

Cobell v. Norton, 229 F.R.D. 5 (2005).

The judge had expressed similar sentiments somewhat more pithily in earlier opinions and orders.  This article collects excerpts. 

This opinion, though, set off a real firestorm.  The Justice Department would eventually petition the D.C. Circuit to have the case reassigned to a different district judge, arguing that Judge Lamberth had compromised his appearance of objectivity. (I'll say more about the appellate proceeding in the next post.)  For now, I wonder what we should make of an opinion like this?  Assuming that the statements about mismanagement and so forth had a basis in the trial record and that the decision to permit class notice was legally justified, are there circumstances in which language like this adds something of value to the adjudicatory process?  For example, might one of law's expressive functions be to prevent the broader significance of complex cases from getting lost in minutia?  Or is this just asking for trouble?

(Full disclosure: I clerked for Judge Lamberth during the term in which the first part of this episode occurred.  The judge does his own work and makes his own decisions -- he's famous for it.  So I want to simultaneously make clear that I'm not trying to indirectly claim credit for this or distance myself from it.  We're all scholars of adjudication in one sense or another and I've long thought that this merits attention on its own terms.)

Posted by Garrick Pursley on April 8, 2014 at 12:25 PM in Judicial Process | Permalink


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Refreshing candor I would say. Surely some of law's claim to legitimacy must rest, in part, on the possibility of moral leadership, if only rhetorically. Soaring rhetoric doesn't usually draw disapproval when it paints a rosier picture.

Posted by: Tamara Piety | Apr 8, 2014 7:20:29 PM

Hit birds flap, thus the DOJ/DOI response.

Posted by: TS | Apr 8, 2014 8:58:47 PM

Garrick, how can you quote the famous Cobell opinion and leave out the best line? ;) The one where he refers to the Department of Interior as a "dinosaur – the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the last pathetic outpost of the indifference and anglocentrism we thought we had left behind"! If there was a line that the Judge penned that got him in trouble and ultimately gave the D.C. Circuit an irrefutable reason to take the case away from him, I think it was that one.

The case is indeed remarkable. My perspective is quite different from yours as one of the appellate litigators involved with defending the department (as a lawyer at the DOJ) on appeals from the Judge's orders and ultimately being one of the lawyers who got the case taken away from him at the D.C. Circuit. I think we had something like 8 appeals in 2 years or so that I was on the case.

There were a ton of emergency stays, including when the Judge ordered the department of the Interior to immediately disconnect from the internet and when the Judge ordered Interior to engage in an "accounting" that would have cost more to do that the total sums moving back and forth through the entire history of those accounts.

Then there was the fact that Judge Lamberth held several dozen members of the Justice Department in contempt, at one point going all the way up to the the Assistant Attorney General. Because of the case's posture, these contempt findings could not easily be appealed such that the shadow of these findings hung over the lawyers involved without the opportunity to have them reviewed by someone who did not believe the lawyers were working for the Empire from Star Wars. Then there were tens of issues that never were appealed but equally fascinating, like the Judge's holding that Interior as trustee was not entitled to robust attorney-client privilege protecting its communications with Justice. There were the attempts by the class counsel and Judge Lamberth to continually frame the remedy in equitable terms to avoid the case getting sent for jurisdictional reasons to the Court of Federal Claims where they might get a much less sympathetic judge. Finally, there was the gargantuan interim fee awards to class counsel, a firm for whom this case was much of their business. And it is worth bearing that all of this was in the REMEDY phase, when it had been established for several years that there had been violation. All of this is in the public record (and indeed in many of the DOJ Briefs on the subject) so I am not telling tales out of school.

I used to joke that I could teach the entirety of Civil Procedure and much of fed courts just from this one case, and I learned a tremendous amount about being a litigator from my work on it (and the fine people I served with on it).

I am curious, though, from your perspective, your own thoughts? Did you think the D.C. Circuit was wrong to re-assign the case given the tone of that opinion (I couldn't tell from your original blog post...)? Did you think that this case ultimately devolved in the district court into trench warfare? My theory was always that Judge Lamberth and the class attorneys wanted to make life unpleasant enough for the Justice Department and Department of Interior that they would pressure Congress into a judicial settlement, which they ultimately did, more than really fight for a remedy in the courts. Was this, in your view, a successful exemplar of using the courts to restructure a social relationship, a sort of institutional re-arrangement, or was it instead the kind of dispute that never belonged in the judicial branch? I am really looking forward to more of your blogging on the case (which is making me a might nostalgic for those long nights drafting emergency stay motions) and hearing more of your thoughts on Cobell (of course recognizing that there are many things you probably can't express given that you clerked on the case!)

Posted by: I. Glenn Cohen | Apr 8, 2014 11:57:11 PM

Curses Glenn, I was saving that quote for the next post! As I said, the case was full of interesting events. I think my discussion of the reassignment proceeding in the court of appeals will be responsive to your comments. For now I'll voice my suspicion that, in a situation like this, there are very few *irrefutable* reasons to do anything, and in any event reassigning a case is quite an extreme remedy.

Posted by: Garrick Pursley | Apr 9, 2014 12:49:06 AM

This is interesting. I quite like the line "Perhaps the Indians were doomed the moment the first European set foot on American soil" That has a lot of meaning.

Posted by: Maria | Apr 9, 2014 8:47:07 AM

I think these kinds of comments, regardless of their political side, are absolutely acceptable, for numerous reasons, including:
- the courts are often the only way those unjustly excluded from the political process can be heard, and if the courts can't openly say that the injustice has happened in strongest terms, maybe nobody can;
- for the other side, if a judge genuinely is biased, the rest of us do better if s/he reveals it openly so we can respond appropriately;
- the courts too are participants in the democratic process, the legitimate source of public and political demands for change, and ought not to be hamstrung in doing so (on this, see the stuff that I'll be publishing in a year or two...)

Posted by: Paul Gowder | Apr 9, 2014 9:19:21 AM

DOJ can't handle the truth. America is engaged in an ongoing genocide against indigenous peoples. Here in America, against tribes and the simple fact that we are not "domestic dependent nations"..."whose chief occupation is war"...internationally we attack tribal cultures in Pakistan and Afghanistan and we call it nation building.

Posted by: Native Fed JD | Apr 16, 2014 2:54:04 PM

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