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Appeals court considers bias charges in Cobell lawsuit
Monday, October 17, 2005

The Bush administration renewed allegations of bias in the handling of the Indian trust fund lawsuit at a hearing on Friday but faced probing questions from two appellate court judges.

Thomas M. Bondy, a Department of Justice attorney, pressed the D.C. Circuit Court of Appeals to throw out three reports that were produced as part of the Cobell v. Norton case. The reports, authored by a former court investigator, were critical of the administration's trust reform efforts.

In one report, Alan Balaran, a Washington, D.C., attorney who served as special master in the litigation, accused top Interior Department officials of hiding negative information about a costly computer system from the judge handling the case. The other two reports questioned the government's adherence to court orders that require the preservation of trust records.

Bondy argued that Balaran's hiring of an employee of a Native-owned firm who had been working with Interior on the computer system tainted the first report. The other reports, issued several months later, were therefore biased even though they dealt with another topic, Bondy told the court.

"They should count for nothing. They should have never been issued," Bondy said. "This is a judicial officer who did something fundamentally improper," Bondy said of Balaran's action.

But two members of the three-judge panel that heard the dispute struggled with the administration's unusual request. Judge Donald H. Ginsburg and Judge A. Raymond Randolph questioned whether they could throw out reports that have already been released to the public and were included in the record by the government's own attorneys.

"How do we vacate a report?" asked Randolph, an appointee of former president George H. W. Bush. "I don't know what that means."

"The word is out," added Ginsburg, the chief judge of the court and an appointee of the late president Ronald Reagan. For the court to act, "we need some reparable harm," he said.

Marc Levy, an attorney for the Cobell plaintiffs, responded that the administration was playing a "shell game" in its attempt to strike the reports from the record. He said there is no evidence that Balaran showed any bias by hiring the employee of Native American Industrial Distributors (http://www.naid.com), a Maryland-based company owned by a Native veteran.

"There is no need for draconian remedies," he said of the government's request. "That's what Interior is seeking today."

The appeals court panel, which also included Judge Karen LeCraft Henderson, who didn't ask any questions during the 50-minute hearing, previously blocked the release of reports that Balaran prepared as part of a contempt proceeding. The judges ruled that Balaran obtained information out of the normal judicial process that could have tainted his views.

Ginsburg and Randolph referred several times during Friday's hearing to their earlier decision and appeared to be concerned about opening the door to other allegations of bias in the case. The Bush administration has already asked the appeals court to remove U.S. District Judge Royce Lamberth from the case, charging that has been too harsh on the government and has expanded the case to look at issues such as computer security.

"Are you going to be back telling us that the information technology hearing was tainted?" Ginsburg asked when Bondy said Balaran's reports have been used in other parts of the case. Lamberth recently concluded a 59-day trial that examined the security of Interior's computer network.

Balaran resigned the case in March 2004 amid long-running efforts to remove him. His resignation was preceded by the departure of Joseph S. Kieffer, the former court monitor whose reports were also highly critical of the government but who came under fire for alleged bias.

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Office of Special Trustee - http://www.ost.doi.gov
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm

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Interior warned of computer security risks again (09/30)
Editorial: BIA is busy ... dumping trust records (09/29)
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