NITED STATES COURT OF APPEALS 
DISTRICT OF COLUMBIA CIRCUIT 
In re Gale Norton, 
No. 0 3 - 
) ) 
1 
Secretary of the Interior Secretary o If the Interior 
in her off icial capacity, in her official capacity, 1 
) 
[Civ. NO. 1: 96CV01285 (RCL) 1 
) 
) 
Pet it ioner . Petitioner. ) ) 
) 
) 
PETITION FOR WRIT OF MANDAMUS 
INTRODUCTION AND SUMMARY 
Pursuant to 28 U.S.C. § 1651 and Rule 21 of the Federal Rules 
of Appellate Procedure, the Secretary of the Interior respectfully 
petitions this Court for a writ of mandamus directing the recusal 
of Special Master Alan Balaran. 
The facts giving rise to this petition are quickly summarized. 
The district court ordered the Special Master to make findings and 
conclusions with respect to allegedly improper government conduct 
asserted by Native American Industrial Distributors, Inc. ('INAID") , 
a government contractor. 
On April 21, 2003, the Special Master released a 55-page 
report which purported to find that the Department of the Interior 
had withheld material information in filing its Eighth Quarterly 
Report. The Special Master explained that his Report was based on 
information "obtained outside of normal channels and to which the 
parties may have no familiarity." Interim Report of the Special 
Master Regarding the Filing of Interior's Eighth Quarterly Report ("Interim Report") , at 1 n. 1 (Exh. 1) . Subsequent inquiry revealed 
that the unusual channels included the former Vice President of 
NAID, Mike S. Smith - a complaining witness in this litigation. 
The Special Master not only consulted with this former NAID officer 
on an ex parte basis, but put him on his payroll, where, billing 
records explain, he was paid to assist in drafting and editing the 
Special Master's report. 
Recusal is required under 28 U.S.C. § 455(a) and 28 U.S.C. 
5 455(b). A reasonable observer would plainly question the 
impartiality of a judicial officer who works with a complaining 
witness on an ex parte basis and employs that witness to make far- 
ranging findings condemning a party's conduct. Indeed, a judicial 
officer engaging in this type of conduct has abandoned any 
semblance of objectivity and has demonstrated a fundamental 
misunderstanding of the judicial role. 
The government moved to disqualify Ehe Special Master on May 
29, 2003, and has repeatedly sought expedited resolution of that 
motion. No ruling has issued. In the intervening months, the 
Special Master has issued reports on his own initiative based on ex 
parte information, asserted wide-ranging oversight authority to 
assess whether Interior's information technology systems are 
secure, and demanded that he be able to interview government 
employees on an ex parte basis and without providing notice. 
- 2 - On September 26, 2003, the government advised the district 
court that, absent a ruling by October 15, 2003, it would seek 
review in this Court. The government explained that such a course 
would be necessary in light of the ongoing harm resulting from the 
activities of a judicial officer plainly subject to recusal. It 
also explained that it was appropriate that this Court be able to 
consolidate all matters relating to the Special Master's recusal if 
it wishes to do so. This Court is currently considering several 
other mandamus petitions seeking the recusal of the Special Master 
and Judge Lamberth on the basis of ex parte contacts. See 
e.q., Nos. 03-5048, 03-5049, & 03-5057 (seeking review of order 
denying recusal, Cobell v. Norton, 237 F. Supp. 2d 71 (D.D.C. 
2003)). The Court should be given the opportunity to consider this 
petition together with the pending petitions. 
The need for recusal is plain. We respectfully ask that the 
Court grant our petition. 
1. Backsround. 
The background of this case is set out in Cobell v. Norton, 
334 F . 3 d 1128 (D.C. Cir. 2003). This suit involves plaintiffs' 
claim for an accounting of Individual Indian Money ("IIM") accounts 
held in trust by the Department of the Interior (IIDOIt'). On 
December 21, 1999, the district court issued a declaratory judgment 
holding that the American Indian Trust Fund Management Reform Act 
STATEMENT 
-3- of 1994, Pub. L. No. 103-412, 108 Stat. 4239 ("1994 Act"), requires 
Interior to provide an accurate accounting of all money in the IIM 
trust accounts held for the benefit of plaintiffs. Cobell v. 
Babbitt, 91 F. Supp. 2d 1 (D.D.C. 1999). Because the agency had 
not yet provided such an accounting, the court remanded the matter 
to allow DO1 the opportunity to come into compliance. The court 
also retained jurisdiction for five years, and required DO1 to file 
quarterly reports explaining the steps taken to rectify the 
breaches found. Id. at 56. 
On interlocutory appeal, this Court largely affirmed. Cobell 
v. Norton, 240 F.3d 1081 (D.C. Cir. 2001). The Court recognized 
the duty to perform an accounting, and also affirmed the district 
court's decision to retain jurisdiction over the case for five 
years and to require periodic progress reports, id. at 1109, noting 
that this relief was "relatively modest, u id. , and rtwell within the 
district court's equitable powers." - Id. at 1086. The panel 
admonished the district court, however, "to be mindful of the 
limits of its jurisdiction." - Id. at 1110. 
On remand, the district court held the Secretary of the 
Interior and an Assistant Secretary in contempt of court and 
appointed a "Special Master-Monitor, 'I Joseph S. Kieffer, to oversee 
Interior's trust reform and accounting efforts. On July 18, 2003, 
this Court reversed the court's contempt order, and, exercising its 
- 4 - mandamus jurisdiction, vacated Mr. Kieffer's appointment as both 
Court Monitor and Special Master-Monitor. See 334 F.3d at 1140-50. 
On September 25, 2003, the district court issued a Ilstructural 
injunction," modeled on cases in which courts have assumed control 
over the operations of state prisons and other institutions. 
Cobell v. Norton, Civ. No. 96-1285, 2003 WL 22211405 (D.D.C. Sept. 
25, 2003). 
2. The Appointment Of Special Master Balaran. 
In 1999, the district court appointed Alan Balaran to serve as 
Order of February 24, a Special Master to oversee discovery. 
1999 (Exh. 2). Over time, the court expanded his duties in several 
respects. For example, the court authorized the Special Master to 
oversee the government's "retention and protection from destruction 
of IIY records through, among other things, on-site visits to any 
location where IIM Records are maintained." Order of August 12, 
1999 (Exh. 3). Subsequently, it directed the Special Master to 
review certain plans and conduct certain inquiries with regard to 
secu'rity of individual Indian trust data in computer systems. 
Order of December 17, 2001 (Exh. 4). The government consented to 
the assignment of responsibilities as described in those orders. 
On September 17, 2002, the court referred to the Special 
Master, for reports and recommendations, two of plaintiffs' motions 
seeking to hold " 3 7 non-party individuals" in contempt and to hold 
Interior Defendants and their counsel in contempt for allegedly 
- 5 - destroying e-mail. See Cobell v. Norton, 226 F. Supp. 2d 1, 162-63 
(D.D.C. 2002). Individual petitioners have sought Mr. Balaran's 
recusal from those proceedings based in significant part on his ex 
Nos. 03-5048, 03-5049 & 03-5057 (seeking parte contacts. 
review of order denying recusal, Cobell v. Norton, 237 F. Supp. 2d 
71, 79-85 (D.D.C. 2003)) . ' 
("TAAMS") . On August 
3 . The NAID Report. 
Native American Industrial Distributors, Inc. is an 
information technology, security, management and training firm 
retained by Interior since 1999, to provide assistance with the 
Trust Asset and Accounting Management System 
30, 2002, NAID moved to intervene in this action, alleging that 
Interior had retaliated against it "in an attempt to silence" 
efforts by NAID "to accurately report to this Court and others the 
nature and extent of progress in meeting the requirements of the 
[I9941 Act and of the previous Orders of the Court." Motion of 
NAID to Intervene at 7 3 (Exh. 5). Specifically, NAID alleged that 
when it gave Interior unfavorable reports on TAAMS project progress 
in November 2001, Interior purposely disregarded those reports in 
preparing its Eighth Quarterly Report to the district court. NAID 
These mandamus petitions seek the recusal of both Special 
Master Balaran and the district court judge. Two additional 
petitioners have sought only the recusal of the district court 
judge . See Nos. 03-5047, 03-5050. This Court consolidated 
briefing on these petitions and directed plaintiffs to file a 
response. Petitioners' joint reply is due on October 20, 2003. 
- 6 - alleged that Interior then retaliated against it by "substantially" 
reducing the scope and value of its contract, see Verified Motion 
of Intervenor NAID for Temporary Restraining Order, Preliminary and 
Permanent Injunctive Relief, at f 38 (Exh. 6 ) , and by assigning 
the work instead to another Interior contractor, Electronic Data 
Systems Corporation ('IEDS") , which had allegedly reported more 
favorably on TAAMS progress. a. at f 40. 
Mike S. Smith, a NAID employee and a member of the TAAMS 
Project Team, was one of the principal witnesses to the events 
described in NAID's motion to intervene. He was an NAID employee 
when NAID filed its motion, and he was NAID's Executive Vice 
President as of January 2003. See Letter from Mike Smith, 
Executive Vice President of NAID, to Carl Hotubbee, as of January 
2003, Department of the Interior (January 7, 2003) (Exh. 1 6 ) . 
On September 24, 2002, the district court denied NAID's motion 
to intervene on procedural grounds. However, in a letter dated 
October 7, 2002, the Special Master informed Interior's counsel 
that the "Court directed me to investigate whether the Department 
of the Interior withheld any information provided by NAID. Letter 
from Special Master Balaran to Peter Miller, at 1 (Exh. 7). 
The court apparently instructed Mr. Balaran to begin a new 
investigation in an off-the-record communication. After the 
government declined to produce documents requested by the Special 
-7- the Court issued an order of appointment: 
The Court wishes to ascertain whether there is any 
validity to NAID's contention that the Department of the 
Interior withheld information from the Court that should 
have been disclosed in the Eighth Quarterly Report; and 
is directing the Special Master to investigate whether 
Interior engaged in any such concealment. 
November 5, 2002 Order, at 1 (Exh. 8). The Order provided that 
"the Special Master shall file with the Court, with copies to 
defendants' and plaintiffs' counsel, his report and recommendation 
detailing his findings and conclusions." Id. at 1 - 2 . 
On April 21, 2003, the Special Master filed the Interim Report 
(Exh. 1). The Report purported to find that the government had 
withheld material information in filing its Eighth Quarterly 
Report. The Report was not based on evidence received from the 
parties. To the contrary, the Report acknowledged at the outset 
that its findings were based on information "obtained outside of 
normal channels and to which the parties may have no familiarity." 
Interim Report at 1 n. 1 (Exh. 1) . 2 
The Interim Report does not explain precisely what "channelsfF 
the Special Master relied upon, and the government is unaware, at 
this time, of the precise breadth of his ex parte contacts. The 
Special Master's billing records reveal, however, that Mr. Balaran 
had extensive ex parte contacts with the former Executive Vice 
' The government has responded to the substance of the 
Interim Report in district court. See Dkt. # 2057. 
- 8 - President of NAID, Mike S. Smith, and that the Special Master, in 
fact, engaged Mr. Smith to assist in the preparation of his Report 
and paid him for his work. The Report was released immediately to 
the public, and plaintiffs filed it with this Court on the 
following day in connection with the government's then-pending 
appeal, offering it as evidence of misconduct by the government. 
See Letter From Elliott Levitas to Mark Langer, Clerk, Court of 
Appeals (April 22, 2003) (Exh. 9). 
The March 2003 Report of the Special Master, submitted on 
April 1, 2003, contains Invoice #35, which identifies numerous 
charges for work done on the investigation by Mr. Smith, identified 
as llMSS." See Invoice #35 (Exh. 10) , entries for 2/27/03, 3/5/03, 
3/6/03, 3/12/03, 3/13/03, 3/14/03, 3/18/03, 3/19/03, 3/20/03, 
3/21/03, 3/26/03, 3/27/03.3 The charges on Invoice #35 for "MSS" 
total 65.30 hours and $8,815.50. 
Mike Smith accompanied the Special Master during a February 
27, 2003 inspection of the collection of documents at Interior 
responsive to the October 7, 2002 requests from the Special Master. 
Mr. Smith's presence at this inspection, with Interior's counsel 
also present, did not itself seem remarkable. As one of the 
principal NAID employees and a TAAMS Project Team member he had 
previously seen all of the requested documents and could presumably 
point out to the Special Master, in the presence of government 
counsel, which documents were relevant to NAID's allegations that 
were under investigation. The Special Master did not reveal at 
that inspection, or at any other time, that Mr. Smith had been 
employed by the Special Master or that he planned to employ him for 
assistance with the investigation, or that he planned to meet ex 
parte with Mr. Smith. The February 27, 2003 inspection is the 
first reported charge for "MSS" identified in the Special Master's 
invoices. 
-9- Invoice #37 to the April 2003 Report of the Special Master 
also lists numerous charges for work on the Interim Report by 
"MSS." See Invoice #37 (Exh. ll), entries for 3/31/03, 4/1/03, 
4/2/03, 4/3/03, 4/4/03, 4/5/03, 4/6/03, 4/7/03, 4/8/03, 4/9/03, 
4/11/03, 4/14/03. In addition, Invoice #37 contains charges for 
the Special Master's assistant, Ed Volz (identified as "EKV" on the 
invoice), for work on the Interim Report in association with "Mike 
Smith. See, e.q., Invoice #37 (Exh. ll), entries for 4/6/03, 
4/7/03, 4/8/03, 4/9/03, 4/10/03, 4/11/03, 4/15/03, 4/16/03. The 
charges submitted for "MSS" in Invoice #37 total 44.39 hours and 
$5,992.65. The "MSS" charges in these two invoices for work done 
on the Special Master's investigation and for preparation of the 
Interim Report total 109.69 hours and $14,808.15. See Exh. 12 
(containing a list of the charges submitted for Mike S. Smith). 
The billing records indicate that Mr. Smith actually drafted 
and edited portions of the Interim Report. See, e.q., Invoice #37 
(Exh. 11) , entries for 4/3/03 (IIMSS Draft 8th QR analysis") , 4/4/03 
(same), 4/15/03 (I'EKV Assist the Special Master and Mike Smith 
editing report on the 8th Quarterly Report") , 4/16/03 ('IEKV Assist 
Mike Smith editing and organizing materials for report on the 8th 
Quarterly Report 'I ) . 
4 . Events Subsement To The NAID Report. 
On May 29, 2003, the government moved to recuse the Special 
Master. On June 24, 2003, the government moved for expedited 
-10- consideration, On September 26, 2003, the government again moved 
for expedited consideration, and informed the district court that 
it would seek review in this Court if no ruling was forthcoming by 
Exh. 13.4 October 15, 2003. 
Since the filing of the government's recusal motion, the 
Special Master has continued to issue reports on his own 
initiative, asserting "'the authority of institutional reform 
special masters to uncover facts and collect evidence via ex parte 
contacts with parties and counsel. ' 'I See Site Visit Report of the 
Special Master to the Dallas, Texas Office of the Minerals Revenue 
Management Division of the Department of the Interior's Minerals 
Management Service (undated), at 1 (Exh. 15) (quoting Order of 
March 29, 2002 (dkt. # 1235), cited in Cobell v. Norton, 237 F. 
Supp. 2d 71, 75 (D.D.C. Jan. 17, 2003)). -- See also Site Visit 
Report Of The Special Master To The Office Of Appraisal Services In 
Gallup, New Mexico And The Bureau Of Indian Affairs Navajo Realty 
Office In Window Rock, Arizona (Aug. 20, 2003), at 38 (dkt. #2219) 
(Exh. 14) (purporting to examine claimed disparity between rates 
earned by allottees on rights of way over their property, and those 
earned by tribes and private parties, and concluding that "the 
Secretary and her delegates have abrogated these responsibilitiesii 
The Special Master has not indicated that the government 
has misunderstood his billing records in any respect. 
-11- to ensure "that the appraisal process is conducted in a manner both 
competent and beyond professional reproach"). 
Further, a longstanding disagreement over the terms pursuant 
to which the Special Master would be permitted to conduct 
confidential "penetration testing" of Interior's computer systems 
led to the issuance of a temporary restraining order in late June, 
2003, followed by the entry of a preliminary injunction one month 
later. See Cobell v. Norton, 274 F. Supp. 2d 111, 114-25 (D.D.C. 
July 28, 2003) (describing dispute over "rules of engagement" for 
penetration testing and Special Master's accusations of government 
misconduct). The government has appealed from the injunction. See 
No. 03-5262 (D.C. Cir.). 
REASONS WHY THE PETITION SHOULD BE GRANTED 
A. Every litigsnt has a basic right to "a neutral and 
detached judge." Ward v. Villaqe of Monroeville, 409 U . S . 57, 62 
(i972). This right is protected by statutory provisions and by the 
Code of Judicial Conduct, which create strict and objective 
standards for recusal . Recusal is required whenever a judge I s 
impartiality "might reasonably be questioned. u 28 U.S.C. § 455 (a). 
This provision requires neither a showing of subjective bias nor, 
Section 455 of Title 28 largely tracks Canon 3(C) of the 
Code of Judicial Conduct, and Congress intended that the standard 
for disqualification under 28 U.S.C. § 455 be Ilvirtually identicalti 
to the ethical standard of Canon 3(C). H.R. Rep. No. 93-1453, 
reprinted in 1974 U.S.C.C.A.N. 6351, 6353. See also Hall v. =A; 
695 F.2d 175, 178 (5th Cir. 1983). 
-12- indeed, a showing that actual bias exists. "The standard for 
disqualification under § 455(a) is an objective one[;] [tlhe 
question is whether a reasonable and informed observer would 
question the judge's impartiality." United States v. Microsoft 
Corp. ("Microsoft I I I I ) , 253 F.3d 34, 114 (D.C. Cir.), cert. denied, 
534 U.S. 952 (2001); see Liteky v. United States, 510 U.S. 540, 548 
(1994) (holding that grounds for recusal must "be evaluated on an 
objective basis, so that what matters is not the reality of bias or 
prejudice but its appearance"). Thus, a judge need not have actual 
bias or even be aware of the facts creating an appearance of 
impropriety "so long as the public might reasonably believe that he 
or she knew" of such facts. Lilieberg v. Health Servs. Acauisition 
Corp., 486 U.S. 847, 860 (1988). 
Section 455(b) requires recusal whenever a judge "has a 
personal bias or prejudice concerning a party, or personal 
knowledge of disputed evidentiary facts concerning the 
proceeding[.]" 28 U.S.C. § 455(b) (1). Section 455(b) (1) requires 
recusal where the official has "a favorable or unfavorable 
disposition or opinion that is somehow wrongful or inappropriate, 
either because it is undeserved, or because it rests upon knowledge 
that the subject ought not to possess . . . or because it is 
excessive in degree." Liteky, 510 U.S. at 550. 
In its most recent decision in this case, this Court made 
clear that judicial officers, including special masters, must 
-13- adhere to the ethical precepts established by section 455. Cobell 
v. Norton, 334 F.3d 1128, 1144 (D.C. Cir. 2003) (citing Jenkins v. 
Sterlacci, 849 F.2d 627, 630-32 & n.1 (D.C. Cir. 1988)). And, in 
vacating the appointment of Joseph Kieffer as both a Court Monitor 
and a "Special Master-Monitor" in this case, this Court emphasized 
that the issue of recusal is properly reviewed in the exercise of 
the Court's mandamus authority. Cobell, 334 F.3d at 1139-40. 
B. Rarely have the grounds for recusal been presented more 
starkly than in the present case. The district court directed the 
Special Master to investigate charges of concealment brought to the 
Court by NAID in connection with its claim of improper contract 
termination. The court declared that it wished to ascertain the 
validity of 'INAID'S contention that the Department of the Interior 
withheld information from the Court th(it should have been disclosed 
in the Eighth Quarterly Report." November 5 Order, at 1 (Exh. 8). 
Accordingly, the Court provided that "the Special Master shall file 
with the Court, with copies to defendants' and plaintiffs' counsel, 
his report and recommendation detailing his findings and 
conclusions. I' - Id. at 1-2 . 
In an extraordinary departure from fundamental principles of 
judicial conduct, the Special Master undertook to assess the truth 
of NAID's allegations by hiring NAID's former vice president and 
principal complaining witness. Having assumed the paradigmatic 
judicial role of considering and evaluating evidence and of making 
-14- findings and conclusions, the Special Master could not properly 
engage in any ex parte contacts. Still less could he engage in 
contacts with the former officer of a complaining party. Even more 
clearly, he could not ask such a person to draft or edit portions 
of his report and pay him to do so. Indeed, the prospect of a 
judicial officer engaging in such conduct would be scarcely 
conceivable if the Special Master had not, in fact, done so. 
The extraordinary nature of the Special Master's conduct is 
underscored by a letter written by Mike Smith on January 7, 2003, 
during the course of the Special Master's investigation. Mr. 
Smith, who at this time was still Executive Vice President of NAID, 
wrote to Interior regarding NAID's pending contract dispute with 
Interior. Mr. Smith copied the letter to "Alan Balaran, Special 
Master." See Letter from Mike Smith, Executive Vice President of 
NAID, to Carl Hotubbee, Contracting Officer, Department of the 
Interior (January 7, 2003!, at^ 2 (Exh. 16). In this letter, Mr. 
Smith declared: 
[W]e have retained the services of counsel because we are 
dealing with a government agency that is refusing to 
negotiate with us in good faith. Rather, we have been 
the target of retaliation; allegations of which are still 
under investigation by the Court Appointed Special 
Master. 
- Id. at 1. Mr. Smith's letter highlights NAID's direct financial 
interest in the outcome of the Special Master's report and leaves 
no doubt that its interests were directly opposed to those of 
Interior. It also leaves no doubt as 'zo Mr. Smith's own views. 
-15- Nevertheless, within a few months, the Special Master had 
transformed Mr. Smith from a witness party charging the government 
with bad faith and retaliation into a confidential associate and 
compensated draftsman. That the Special Master should have thought 
it appropriate to solicit Mr. Smith's views of€-the-record or to 
engage him in any capacity signals a misunderstanding of his role 
so profound as to preclude him from acting as a judicial officer in 
this case. Any reasonable observer would question the impartiality 
of a judicial officer who collaborated with the former officer of 
an interested party to discredit a defendant and expose it to 
charges of contempt or fraud. Thus, recusal of the Special Master 
is required under 28 U.S.C. § 455(a). 
Recusal is also required under section 455(b). A judicial 
officer who publicly levels grave charges against a defendant on 
the basis of ex parte communications with hostile witnesses has 
abandoned any pretext of objectivity. Indeed, apart from anything 
else, the Special Master's decisions to engage Mr. Smith and to 
publicize his "interim report" indicate a whol.1~ improper 
willingness to pre-judge Interior's conduct and to subject it to 
public attack without giving Interior the opportunity to see or 
respond to the evidence procured "outside of normal channels. It 
Interim Report at 1 n.1 (Exh. 1). 
The impropriety of the Special Master's conduct can be gauged 
by comparison to other cases in which recusal has been required. 
-16- Recusal on the basis of ex parte contacts is required even when a 
judicial officer obtains knowledge only from impartial experts. As 
the Seventh Circuit explained in In re Edqar, 93 F.3d 256 (7th Cir. 
1996) , cert. denied, 519 U . S . 1111 (1997) , with regard to a judge's 
conversations with an expert panel, "personal knowledge'' means 
information derived outside the record and not subject to 
adversarial testing. The court emphasized that '' [tlhe point of 
distinguishing between 'personal knowledge' and knowledge gained in 
a judicial capacity is that information from the latter source 
enters the record and may be controverted or tested by the tools of 
the adversary process. I' Id. at 259. "Knowledge received in other 
ways, which can be neither accurately stated nor fully tested, is 
Ibid. 'extrajudicial. ' " 
Certain very limited ex parte procedures may be appropr-ate, 
as when a judge must determine how to treat sensitive information. 
See Clifford v. United States, 136 F.3d 144 ( D . C . Clr. 1998). But 
we are aware of no precedent that would permit ex parte contacts of 
the kind at issue here. See United States v. Microsoft Corp. 
(I'Microsoft I"), 56 F.3d 1448, 1464-65 (D.C. Cir. 1995) (case 
should be reassigned when, among other things, a district court 
formed views based on his reading of a book and accepted ex parte 
submissions, even though the court stated it had not considered the 
- ex parte material); see also Microsoft 11, 253 F.3d at 114. The 
Special Master's willingness to obtain and then publicize ex parte 
-17- evidence together with the views formed on the basis of that 
evidence is far more egregious than the conduct that compelled 
reassignment in either Microsoft I or Microsoft 11. 
As this Court has emphasized, it is a "cardinal principle of 
our system of justice that factual disputes must be heard in open 
court and resolved through trial-like evidentiary proceedings." 
Microsoft 11, 253 F.3d at 101. In making findings and conclusions 
of deliberate concealment on the basis of evidence obtained 
"outside of normal channels and to which the parties may have no 
familiarity,lI Interim Report at 1 n.1, the Special Master turned 
his back on the most basic precepts of judicial conduct. 
The need for recusal cannot be eliminated by subjecting C. 
the Special Master's factual findings to & novo review. Cf. 
In Cobell v. Norton, 237 F. Supp. 2d 71, 84-85 (D.D.C. 2 0 0 3 ) . 6 
concluding that special masters are judicial officers subject to 
the same disqualification standards as judges, this Court has 
explained that, I' [g] iven the complexities of the issues special 
masters are frequently called upon to sort out, the closely 
disputed issues of fact they must resolve in the first instance, 
and the 'clear error' standard governing the court's review of 
their findings, the district court's oversight of a special master 
Indeed, the district court has not shown a predisposition to 
review reports by the Special Master in a neutral fashion. See 
e.q., Trial Transcript (May 28, 2003, P.M.) , at 127-28 (Exh. 17) 
(describing the Interim Report as "the Special Master's report on 
whatever the latest lie is''). 
-18- falls far short of plenary 'control' . . . . I ' Jenkins, 849 F.2d at 
631. This Court did not suggest that a Special Master whose 
impartiality might reasonably be questioned could continue to make 
proposed findings and conclusions as long as they were subject to 
novo standard of review. Plainly, the application of & novo c& a 
review would not allow a court to appoint a special master without 
regard to his financial or other interests in the litigation. No 
party should be adjudged by a biased judicial officer, whatever 
standard of review may later be applied to his actions. The 
efficacy of such review can never be certain. Where a special 
master has relied on non-record materials and ex parte contacts 
with a clearly interested party, effective review is rendered all 
but impossible. 
The Special Master's departure from settled principles 
governing adjudication in the federal courts strikes at the heart 
of the judicial process. The district court cannot properly obtain 
advice from the Special Master, whatever standard of review is 
applied to his recommendations. A judge may not, after all, 
disregard his law clerk's involvement with a case or its parties, 
even though the law clerk's advice is given no deference at all. 
&, e.q., Parker v. Connors Steel Co., 855 F.2d 1510 (11th Cir. 
1988), cert. denied, 490 U.S. 1066 (1989) (recusal required where, 
inter alia, judge's law clerk was son of partner in firm handling 
litigation); Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001) 
-19- (recusal not required where judge isolated law clerk from case 
involving past employer). 
D. The government moved for the Special Master's recusal on 
May 29, 2003. A s this Court has observed, the harm incurred by 
permitting the continued activity of a Special Master who should 
properly be recused is "irreparable." Cobell v. Norton, 334 F.3d 
at 1139. It is magnified here by the Special Master's insistence 
that he may be able to investigate any subject of his choosing on 
an ex parte basis, followed by reports based on evidence that was 
not submitted by the parties or even known to them. Despite this 
Court's admonitions, the Special Master has shown untempered 
determination to assume an "investigative, quasi-inquisitorial, 
quasi-prosecutorial role that is unknown to our adversarial legal 
system.'' a. at 1342. Recusal is thus required. 
- 2 0 - case. 
This Court should grant the petition and direct that Special 
Master Balaran be disqualified from acting in any capacity in this 
CONCLUSION 
Respectfully submitted, 
PETER D. KEISLER 
Assistant Attorney General 
GREGORY G. KATSAS 
Deputy Assistant Attorney General 
ROBERT E. KOPP 
MARK B. STERN 
THOMAS M. BONDY 
CHARLES W. SCARBOROUGH 
ALISA B. KLEIN 
(202) 514-5089 
Attorneys, ADDellate Staff 
Civil Division, Room 9108 
Department of Justice 
601 D Street, N.W. 
Washinston, D.C. 20530 
OCTOBER 2003 
- 2 1 - By hand delivery: 
By regular mail: 
CERTIFICATE OF SERVICE 
I hereby certify that on this 17th day of October, 2003, I am 
causing the foregoing Petition for Writ of Mandamus to be served on 
the following in the manner specified: 
The Honorable Royce C. Lamberth 
United States District Court 
United States Courthouse 
Third and Constitution Ave., N.W. 
Washington, D.C. 20001 
Alan L. Balaran 
Special Master 
1717 Pennsylvania Avenue, N.W., 13th Floor 
Washington, D.C. 20006 
Dennis M. Gingold 
Mark Kester Brown 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
G. William Austin 
Kilpatrick Stockton, LLP 
607 14th Street, N.W., Suite 900 
Washington, DC 20005-2018 
Keith Harper 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
Elliott H. Levitas 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30303-4530 
CHARLES W. SCARBOROUGH CERTIFICATE AS TO PARTIES AND AMICI 
Pursuant to Circuit Rules 21 (d) and 28 (a) (1) (A) , undersigned 
counsel certifies that the named plaintiffs in this action are 
Elouise Pepion Cobell, Earl Old Person, Mildred Cleghorn, Thomas 
Maulson, and James Louis LaRose. The district court has certified 
a plaintiff class consisting of present and former beneficiaries of 
Individual Indian Money ("IIM") accounts, excluding those who had 
filed their own actions prior to the filing of the complaint in 
this case. 
Defendants are Gale A. Norton, Secretary of the Interior, 
Aurene M. Martin, Acting Assistant Secretary of the Interior for 
Indian Affairs, and John W. Snow, the Secretary of the Treasury. 
~~ CHARLES w . SCARBOROUGH