This is the background image for an Adobe Acrobat Capture page with image plus hidden text. INTHE W E D STATES DISTRlCT COURT FOR THE DISTRICT OF COLUMBIA - ELOUISE PBPION COBELL, @ al., Plainti ffii, 1 V. 1 Case No. 1:96CV01285 (RCL) 1 (Judge Lamberth) GALE A. NORTON, Secretary of the Interior, et al.,) 1 Defendants. ) DEFENDANTS’ MOTION FOR RECONSIDERATION OF MARCH 5,2003 ORDER DIRECTING PAYMENT TO SPECiAL MASTER ALAN L. BALARAN, AND MEMORANDUM IN SUPPORT Defendants respectfully move for reconsideration of this Court’s March 5 , 2003 Order directing them to pay Special Master Alan L. Balarari the sum of $38,623.77. Reconsideration of the Order is appropriate in light of “an intervening change in controlling law.” Cobell v. Norton, 226 F. Supp. 2d 175, 177 (1J.D.C. 2002).’ On February 20, 2003, the President signed into law a joint resolutioti tnakitig consolidated appropriations for the fiscal year ending September 30, 2003 (“Consolidated Appropriations Resolution”). Consolidated Appropriations Resolution, 2003, Pub. I,. No. 108-7, 117 Stat. 1 1 (Feb. 20, 2003). Section 132 of the resolution provides: None of the funds in this or any othcr Act for the Department of the Interior or the Department of Justice can be used to compensate the Special Master and the Special Master-Monitor, and ail variations thereto, appointed by the United States District Court for the District of Columbia in the Cobell v. Norton litigation at an annual rate that exceeds 200 percent of the highest Senior In accordance with h c a l Rule 7.t (m), counsel for Defendants consulted with counsel for Plaintiffs regarding this motion. Plaintiffs’ counsel stated that they oppose this motion. This is the background image for an Adobe Acrobat Capture page with image plus hidden text. Executive Service rate of pay for the Washington-Baltimore locality pay area. -Id. at tj 132. The highest Senior Executive Service rate of pay for the Washington-Baltimore locality pay area for the fiscal year ending September 30,2003 is $142,500. 2003 Locality Rates Of Pay For Members Of The Senior Executive Service (Exhibit 1). Thus, the statute prohibits Defendants fi-om compensating the Special Master at a rate that exceeds 200 percent of $142,500, or $285,000 per year. The Consolidated Appropriations Resolution was not in effect at the beginning of this fiscal year, and Congress did not specify how this annual compensation rate is to be implemented in the middle of the fiscal year. Defendants submit that the most reasonable interpretation of Section 132 is that it sets a new “annual rate” of compensation for the Special Master, and requires the maximum annual compensation of $285,000 to be prorated for the period from the effective date of the statute, February 20, 2003, through September 30, 2003. The prorated compensation amount is the maximum amount the Special Master may be paid for the remainder of the fiscal year.’ The Court’s March 5,2003 Order requires Defendants to pay for work performed during February 2003, both before and after the Consolidated Appropriations Resolution became law on Another possible reading of Section 132 is that it caps the Special Master’s compensation in fiscal year 2003 at $285,000, and that amounts paid to the Special Master during the period of the continuing resolutions count toward this cap. “[Tlo the extent possible, obligations incurred or expenditures made under the continuing resolution are to be charged against the funds provided by the regular appropriation act.” Matter of: Treasury Withdrawal of Appropriation Warrants for Programs Operating Under Continuing Resolution, 62 Comp. Gen. 9, 11 (1982). - 2 - This is the background image for an Adobe Acrobat Capture page with image plus hidden text. February 20,2003. If the statute is interpreted to apply only to payments for work performed after its enactment, the Special Master must be compensated at the new statutory rate for work performed from February 20 through the end of the fiscal year, but may be compensated at his prevailing market rate for the period from February 1 through February 19, 2003.3 Section 5504(b) of Title 5 provides the formula to be used “to convert an annual rate of basic pay to a basic hourly, daily, weekly, or biweekly rate:” (1) To derive an hourly rate, divide the annual rate by 2,087. (2) To derive a daily rate, multiply the hourly rate by the number of daily hours of service required. (3) To derive a weekly or biweekly rate, multiply the hourly rate by 40 or 80, as the case may be. 5 U.S.C. 9 5504(b). “Rates are computed to the nearest cent, counting one-half and over as a whole cent.” Id. Applying this formula to the $285,000 maximum annual rate yields a maximum hourly rate of $136.56. As the compensation rate for members of the Senior Executive Service does not permit payment for overtime, the maximum daily rate is $1,092.48, or eight hours at $136.56 per hour. The maximum weekly rate is $5,462.40; the maximum biweekly rate is $10,924.80. The Special Master’s compensation request for the period from February 20, 2003, to February 28,2003, is as follows: Date Hours Rate Amount Friday, February 2 I 8.30 $200/hr. $1660.00 Because the new law restricts payments made rather than expenditures incurred, it may be better interpreted to require that the Special Master be compensated at the new statutory rate for work performed during the entire nionth of February. - 3 - This is the background image for an Adobe Acrobat Capture page with image plus hidden text. Saturday, February 22 Monday, February 24 Tuesday, February 25 Wednesday, February 26 Thursday, February 27 Friday, February 28 TOTAL 7.80 $200h. $1560.00 8.40 $200/hr. $1680.00 6.75 $1O O h . $675.00 0.60 $200/hr. $120.00 8.75 $looh. $875-00 1.40 $200/hr. $280.00 7.75 $10 0 h . $775.00 4.80 $200/hr. $960.00 9.00 $1O O h . $900.00 2.30 $200h. $460.00 7.70 $1O O h . $770.00 73.55 $10715.00 -See Invoice of Alan L. Balaran (March 2, 2003) (attached as Exhibit 5 to February 2003 Report of Special Master, dated March 3,2003). Because there are nine days in the period February 20 through February 28, the maximum amount the statute permits Defendants to pay the Special Master for this period is $7,023.09, or 9/14ths of the biweekly maximuni amount of $ 1 0,924.80.4 The total amount that Defendants have been ordered to pay for the period February 20, 2003, through February28,2003, is $10,715.00, or $3,691.91 more than the $7,023.09 that the Consolidated Appropriations Resolution seems to permit. The Court’s March 5,2003 Order also directs Defendants to pay the Law Office of Gaffney & Scliember, PC the sum of $14,5 15.00; USinternetworking the sum of$44,92 1.22, and Joe Christie the sum of $687.78. Because the Court’s March 5,2003 Order requires Defendants to compensate thc Special Master’s consultants and contractors only for work performed prior to Alternative methods of calculating the maximum compensation amount for this period include applying the maximurn hourly, daily, or weekly rates. - 4 - This is the background image for an Adobe Acrobat Capture page with image plus hidden text. the effective date of the Consolidated Appropriations Resolution, Defendants do not seek reconsideration of the portion of the Court’s Order directing payment to these consultants and contractors.’ However, if and when these or other consultants or contractors seek compensation for services performed between February 20,2003, and the end of the fiscal year, the Consolidated Appropriations Resolution requires the inclusion of compensation paid not only to the Special Master, but also to employees, contractors and consultants he retains to perform services that he could be expected to perform himself when calculating the maximum compensation Defendants may pay for a specified period. In other words, the statutory biweekly maximum compensation rate of $10,924.80 is the maximum amount that Defendants can pay for work performed during a particular biweekly period by the Special Master and all of his employees, consultants, and contractors who perform services that the Special Master was appointed to perform. Section 132 prohibits payment to the Special Master, the Special Master-Monitor “and all variations thereto” in excess of the statutory rate. In its report on the House appropriations bill, the House Committee on Appropriations cited “fiscal and budgetary constraints” in explaining the provision that became Section 132: The Committee notes that the Special Master and the Court Monitor appointed by the Court to review various aspects of trust reform at the Department are receiving compensation for their activities that exceed those of the Chief Justice and the Vice President of the United States. The Committee believes that, by any measure, the current level of compensation is excessive. Therefore, given current fiscal and budgetary constraints, thc Of course, if the statute is applies to payments made after its effective date regardless of when the work was performed, then the payments Defendants have been ordered to make to the Special Master’s consultants and contractors must be reconsidered in light of the statute. - 5 - This is the background image for an Adobe Acrobat Capture page with image plus hidden text. Committee has included a general provision that caps the compensation for each of these Court Officers at no more than 200 percent of the highest Senior Executive Service rate of pay. H.R. Rep. No. 107-564, at 90 (2002). Requiring Defendants to pay in excess of the statutoryrate to compensate contractors and consultants hired by the Special Master to perform his work would seem to contravene the intent of Congress to limit his compensation. Accordingly, compensation sought by employees, consultants and contractors such as the Law Office of Gaffhey & Schember, PC, a law firm the Special Master retained to draft his attorney fee opinion related to the retaliation complaint of Mona Infield, should be added to compensatioti sought by the Special Master for purposes of calculating the maximum payment allowed. If such employees, consultants, or contractors performing services that the Special Master could be expected to perform eventually seek compensation for services performed between February 20,2003, and February 28, 2003, the statute appears to prohibit payment because Defendants will already have paid the maximum amount they are permitted to pay for that period. In contrast, compensation for consultants and contractors performing specialized services that the Special Master could not be expected to perform himself, such as technology vendors like USinternetworking, presumably would not be included in the maximum compensation calculation. The Special Master's February invoice also seeks reimbursement for expenses in the amount of $3,978.77. Defendants do not understand the Consolidated Appropriations Resolution to require inclusion of reasonable ordinary expenses (such as travel expenses) in the maximum payment calculation. Thus, Defendants do not seek reconsideration of that portion of the Court's Order directing payment of these expenses. - 6 - This is the background image for an Adobe Acrobat Capture page with image plus hidden text. Defendants seek reconsideration only of that portion of the Court’s March 5, 2003 Order requiring them to pay the Special Master $10,715 for the period February 20,2003, through February 28,2003, because that amount is $3,691.91higher than the $7,023.09 that Section 132 of the Consolidated Appropriations Resolution seems to permit them to pay, as explained above. Because this portion of the Court’s March 5,2003 Order appears incompatible with the Consolidated Appropriations Resolution, Defendants respectfully request that the Court reconsider its March 5, 2003 Order in light of the intervening change in controlling law. Defendants request that the Court amend its Order to require them to pay no more than $34,931.866to the Special Master for the work described in his March 2, 2003 invoice. Dated: March 19,2003 Respectfully submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director A n SANE@A P. SPOONER Deputy Director D.C. Bar No. 261495 JOHN T. STEMPLEWICZ Senior Trial Counsel CYNTHlA L. ALEXANDER Trial Attorney Commercial Litigation Branch Civil Division United States Department of Justice The Court’s March 5,2003 Order directs Interior to pay the Special Master $38,623.77. Tfthis amount is reduced by $3,691.91 in accordance with the statute, the amount due would be $34,93 I .86. - 7 - This is the background image for an Adobe Acrobat Capture page with image plus hidden text. P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 307-0183 - 8 - This is the background image for an Adobe Acrobat Capture page with image plus hidden text. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRTCT OF COLUMBIA ELOUISE PEPION COBELL, & al., ) ) Plaintiffs, ) 1 V. 1 Case No. 1:96CVO1285 1 GALE NORTON, Secretaryof the Interior, al., ) ) Defendants. ) ORDER Upon consideration of Defendants’ Motion For Reconsideration Of March 5,2003 Order Directing Payment To Special Master Alan L. Balaran, any responses thereto, and the record in this case, the Court finds that the motion should be GRANTED. IT IS THEREFORE ORDERED that the portion of the Court’s March 5,2003 Order requiring Defendants to pay the Law Office of Alan L. Balaran the sum of $38,623.77 is VACATED. IT IS FURTHER ORDERED that Defendants shall pay the Law Office of Alan L. BaIaran the sum of $34,931.86 for work described in the monthly Report of the Special Master dated February 3,2003, no later than March 31,2003. IT IS FURTHER ORDERED that to the extent Defendants liave already paid the Law Office of Alan L. Balaran more than $34,93 I .86 for work described in the monthly Report of the Special Master dated February 3,2003, such excess payment shall be deducted fi-om Defendants’ next payment to the Special Master. SO ORDERED this day of ,2003. Royce C. Lamberth United States District Judge This is the background image for an Adobe Acrobat Capture page with image plus hidden text. cc: J. ChristopherKohn Sandra P. Spooner Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 5 14-7194 Dennis M Gingold, Esq. Mark Brown, Esq. 1275 Pennsylvania Avenue, N.W. Ninth Floor Washington, D.C. 20004 202-318-2372 Keith Harper, Esq. Native American Rights Fund 1712 N Street, NW Washington, D.C. 20036-2976 202-822-0068 Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 This is the background image for an Adobe Acrobat Capture page with image plus hidden text. 2003 LOCALITY RATES OF PAY FOR MEMBERS OF THE SENIOR EXECUTIVE SERVICE EFFECTIVE JANUARY 2003 * Rate limited to the rate for level 111of the Executive Schedule (5 U.S.C. 5304(g)(2)). NOTE: Law enforcement officers in the Boston and New York CMSAs are entitled to the rates on salary table 2003-ES (LEO). Locality rates of pay arc basic pay only for certain purposes-see; "2003 Salary Tables for Members of the Senior Executive Service, Employees in Senior-Level and Scienrific or Professional Positions, Administrative Law Judges, and Members of Boards of Contract Appeals" cover sheet. This is the background image for an Adobe Acrobat Capture page with image plus hidden text. CERTIFiCATE OF SERVICE i declare under penalty of perjury that, on March 19, 2003, I served the foregoing Defendants' Motionfor Reconsideration of March 5, 2003 Order Directing Payment to Special Master Aluan L. Balaran by facsimile, in accordance with their written request of October 31, 2001 upon: Keith Harper, Esq. Native American Rights Fund 1712 N Street, NW Washington, DC 20036-2976 202-822-0068 and by US. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 and by U.S. Mail and by facsimile upon: Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Ave., NW 13th Floor Washington, DC 20006 202-986-8477 and by hand upon: Joseph S. Kieffer, m, Esq. Special Master-Monitor 420 7th Street, NW Apt 705 Washington, DC 20004 Dennis M Gingold, Esq. Mark Brown, Esq. 1275 Pennsylvania Avenue, NW Ninth Floor Washington, DC 20004 202-3 18-2372 JaySt. Jo I,1