Saturday, April 19, 2014
Lamberth in Cobell Part 3: The Sideshow and Its Message
To continue the Cobell story (earlier posts here and here), I want to turn to the case’s numerous and contentious collateral proceedings. Much has been made (not just by Glenn) of the contempt citations to cabinet officers, the orders disconnecting the Interior Department’s computers from the Internet, and, of course, the class-wide notice orders. I am not going to speculate on Judge Lamberth’s feelings or state of mind in making these rulings. Instead, to counterbalance the perspective Glenn offers in the comments—by the way, thanks, Glenn, for commenting!—I want to place some of these episodes in a fuller context and see what conclusions present themselves.
The sideshow began early in discovery, when in February 1999 Judge Lamberth held then-Interior Secretary Bruce Babbitt and others in contempt for failing to produce documents years after the judge had ordered their production and for destroying documents the government had agreed to preserve. (Three years after the suit was initiated, the government still couldn't produce the full trust records for the named plaintiffs.) It’s worth noting that Judge Lamberth was already famously intolerant of litigation misconduct, especially by the government.
After the Phase 1 trial (discussed here), the computer security issue bubbled up when the Bureau of Indian Affairs’ Chief Information Officer said publicly that "[f]or all practical purposes, we have no [IT] security . . .[o]ur entire network has no firewalls" and "can be breached by a high school kid." The second contempt hearing began in late 2001 after additional evidence suggested that Interior officials knew about this and other trust problems and hadn't disclosed them in either their trial testimony or their status reports to the court. (The judge imposed no sanction with the contempt findings, but the government appealed because, the Court of Appeals explained, “the decision . . . ‘impose[d] opprobrium’ upon [the Secretary and Deputy Secretary of Interior]” to such a degree that they “engaged private counsel and sought to intervene as appellants and to present arguments in their respective personal capacities.”)
By July 2003, Judge Lamberth concluded that Interior's continuing failure to resolve its networks' vulnerabilities placed Indian trust data and documents at risk of corruption or loss, threatening the class's access to the accounting he'd ordered; so he ordered that Interior's computers be disconnected from the Internet until security was improved. (This was not the first disconnection order: In December 2001, the judge entered a TRO disconnecting systems housing trust information; two weeks later, the Department agreed to a consent order requiring that those systems stay disconnected until Interior could demonstrate to a special master that trust information was secure. Interior’s relationship with the special master, which was initially cooperative and led to 95% of its computers being reconnected, broke down in mid-2003 when the special master claimed that Interior was undermining computer security tests. The plaintiffs then filed the motion that led to the July 2003 injunction disconnecting Interior’s trust-data systems from the internet again. Judge Lamberth entered a modified injunction in March 2004, which was the operative order at the time the D.C. Circuit decided the appeal.)
The D.C. Circuit vacated the second contempt order and the 2003-2004 Internet disconnection orders, but on primarily technical grounds. On contempt, the court explained that: “[T]he district court cites completed conduct of the defendants . . . making the proceeding criminal in nature[,]” and while the department filed reports with the district court that “were misleading about the progress being made,” most of the misrepresentations were made under the previous secretary such that the then-sitting Secretary couldn’t be “held criminally liable for contempt based on the conduct of her predecessor in office.” On the IT security injunction, the court of appeals emphasized that “the district court’s authority properly extends to security of Interior’s information technology systems . . . because the Secretary, as a fiduciary, is required to maintain and preserve [trust data,]” but that the judge should’ve left the burden of persuasion on the plaintiffs, held an evidentiary hearing and given more weight to Interior’s certifications that its systems were secure. In short, Judge Lamberth found and the Court of Appeals agreed that Interior made material misrepresentations to the court –in omitting to mention its seriously vulnerable IT infrastructure and by filing overly rosy reports of its progress on trust reforms it had been ordered to complete.
(In summer 2005, I sat in a 59-day evidentiary hearing on the state of Interior’s IT security. Judge Lamberth concluded, in over 200 pages of findings, that while things had improved significantly, there was still substantial danger to trust data. His order disconnecting Interior from the Internet yet again was vacated on appeal, with a D.C. Circuit holding that more directly cabined his equitable power. I may say more about that in a later post, though I suspect you’ll be tired of the issue after this one.)
Then there were the class notice orders, of which the July 12, 2005 opinion and order—the one that prompted the case's reassignment--was the third. (The first was a Rule 23(d) order issued in 2002, precluding Interior communications with class members about the litigation without prior court approval. (See 212 F.R.D. 14.)) In September 2004, the plaintiffs presented evidence that Interior was facilitating sales of Indian trust lands despite its failure, to that point, to complete an accurate accounting of trust assets; so Indians, the plaintiffs argued, were making decisions about whether to sell trust assets without any guarantee that Interior’s information the value of those assets was accurate. Later that month, Judge Lamberth ordered that Interior “include notice to class members regarding [the Cobell] litigation and Interior's duties as Trustee–Delegate” with all communications that might affect beneficiaries’ decisions about trust assets. (See 225 F.R.D. 41.) In October, the plaintiffs returned with evidence suggesting that “Interior felt that compliance with the [land sales] Order required Interior to shut down the Bureau of Indian Affairs entirely. Field offices were closed and notices were affixed to their doors explaining that no business could be conducted due to this Court's Order” and “the entire process by which payments are made to IIM account holders . . . was similarly shut down.” (224 F.R.D. 266, 270.) Judge Lamberth’s clarifying order made even more explicit what was already obvious—that the land-sales order did not restrain the distribution of trust checks or require offices to shut down.
Was contempt strong medicine? Absolutely. Was disconnecting Interior from the Internet aggressive and perhaps stretching the court’s equitable powers? Sure. That both happened more than once over several years, however, is illustrative of the pace of Interior’s progress. Did these orders make the case more frustrating for the government? No doubt. But there had never been a case quite like this before, and most of these issues, in the context of a massive and massively mismanaged government trusteeship, were matters of first impression. The D.C. Circuit noted more than once that broad district court authority and oversight was warranted by “the magnitude of the government malfeasance and potential prejudice to the plaintiff class,” as well as the “record of agency recalcitrance and resistance to the fulfillment of its legal duties.” Were the plaintiffs’ attorneys at times overzealous and perhaps somewhat thin-skinned later in the litigation? Fair enough. But given the historical experience of the people they represented, is that really so difficult to understand? And they received plenty of defeats and chastisements of their own from the court of appeals.
As Glenn notes, there were numerous appeals after the first trial, and most went for the government. But this case—understood in its historical context—was destined for high drama. It would have been surprising if it had been routine. The contempt citations wouldn’t have issued had the government not neglected the Indian trust and its recordkeeping duties for a century. The disconnections wouldn’t have been necessary had the government assigned the Indian trust something other than what appears to have been the lowest possible priority. The notice orders wouldn’t have been necessary had the government not delayed the Indians' remedy for as long as it did and fought so hard to avoid any bad publicity. These events are symptoms of the larger problem, which we mustn’t lose in the forest of orders and appeals. The D.C. Circuit emphasized this even as it reassigned the case:
“In [the appeal from the first trial], we recognized that ‘the federal government has failed time and again to discharge its fiduciary duties,’ resulting in serious injustice that has persisted for over a century and cries out for redress. . . . Yet today, five years later, no remedy is in sight . . . and growing hostility between the parties distracts from the serious issues in the case. . . . Our ruling today presents an opportunity for a fresh start. As the litigation proceeds, the government must remember that although it regularly prevails on appeal, our many decisions in no way change the fact that it remains in breach of its trust responsibilities. In its capacity as trustee and as representative of all Americans, the government has an obligation to rise above its deplorable record and help fashion an effective remedy. For their part, counsel for the plaintiff-beneficiaries, as counsel to a large class of Indians and as officers of the court, would more ably advance their worthy cause by focusing their energies on legal issues rather than attacking the government and its lawyers.”
Despite Glenn’s invitation to change my focus to the technical merits of these orders, jurisdictional questions, etc.; those issues are orthogonal to the point I want to make. And despite the superficial attraction of trying for journalistic balance, I’m not a journalist and there are not two sides to every story. This story is about who was to blame for the mismanagement of the Indian trust, who was responsible for fixing it, and how the responsible party behaved when that remedy was finally demanded. The sideshow suggests an unflattering answer to the last question, but it doesn’t change the questions. I leave it to you to draw your own conclusions. Let me know what you think.
Thanks Garrick for an excellent summary of the issues. Though we likely disagree on many points I appreciate how thorough you have been and how clear in stating your views!
Posted by: I. Glenn Cohen | Apr 19, 2014 9:56:37 AM
We should discuss this case, Glenn. You're right that there's an extreme paucity of scholarship on it, and one could do an entire federal courts course with just the materials on the Cobell docket. It's again timely now, of course, as the settlement is encountering a number of problems and objections, etc. Imagine a conference!
Posted by: Garrick Pursley | Apr 19, 2014 11:38:51 AM