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INTHE UNITED STATES DISTRZCT COURT 
FOR THE DlSTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, &, ) 
f ) i 
Plaintiffs, 1 
1 
V. 1 Case No. 1:96CVO1285 (RCL) 
) (Judge Lamberth) 
GALE A. NORTON, Secretary of the Interior, @ &,) 
) 
Defendants. ) 
DEF’ENDANTS’ MOTION FOR RECONSIDERATION OF MARCH 5,2003 ORDER 
DIRECTING PAYMENT TO SPECIAL MASTER-MONITOR 
JOSEPH s. KIEFFER, rrr, AND MXMOWDUM rN suppow 
Defendants respecthlly move for reconsideration of this Court’s March 5, 2003 Order 
directing the Department of the Lriterior (“Interior”) to pay Special Master-Monitor Joseph S 
Geffer, HI,the sum of $39,000. Reconsideration of the Order is appropriate in light of “an 
intervening change in controlling law.” Cobell v. Norton, 226 F. Supp. 2d 175, 177 (D.D.C. 
2002).‘ 
On February 20, 2003, the President signed into law a joint resolution making 
consolidated appropriations for the fiscal year ending Septetriber 30,2003 (“Consolidated 
Appropriations Resolution”). Consolidated Appropriations Resolution, 2003, Pub. I,. No. 108-7, 
117 Stat. 11 (Feb. 20,2003). Sectiori 132 of the resolutioti provides: 
None of the funcis in this or any other Act for the Departrnent of 
the lntcrior or the Department of Justice can be used to compensate 
the Special Master and tlie Special Master-Moni tor, and all 
variations thereto, appointed by the United States District Court for 
the District of Columbia in the Cobell v. Norton litigation at an 
In accordance with Local Rule 7.1(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.  
annual rate that exceeds 200 percent of the highest Senior 
Executive Service rate of pay for the Washington-Baltimore 
locality pay area. 
-Id. at 4 132. 
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 
Interior from compensating the Special Master-Monitor 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 specifL 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-Monitor, 
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 niaximum amount the Special Master-Monitor may be paid for the 
remainder of the fiscal year.* 
The Court’s March 5, 2003 Order requires Interior 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-Monitor’s 
compensation in fiscal year 2003 at $285,000, and that amounts paid to the Special Master- 
Monitor 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 ( I 982). 
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February 20, 2003. If the statute is interpreted to apply only to payments for work performed 
after its enactment, the Special Master-Monitor 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.” a 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-Monitor’s compensation request for the period from February 20, 
2003, to February 28, 2003, is as follows: 
Because the new law restricts payments made rather than cxpenditures incurred, it 
may be better interpreted to require that the Special Master-Monitor be Compensated at the new 
statutory rate for work performed during the entire month of February. 
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Amount 
Date Hours (at $250 per hour) 
Thursday, February 20 I 1-00 $2750.00 
Friday, February 21 7.25 $1812.50 
Saturday, February 22 1.25 $312.50 
Monday, February 24 9.25 $23 12.50 
Tuesday, February 25 11.75 $2937.50 
Wednesday, February 26 11.oo $2500.004 
Thursday, February 27 10.00 $2500.00 
Friday, February 28 6.50 $1625.00 
TOTAL, 68.00 $16750.00 
-See Invoice of Joseph S. Kieffer, ILI (Feb. 28,2003). Because there are nine days in the period 
February 20 through February 28, the maximum amount the statute permits Interior to pay the 
Special Master-Monitor for this period is $7,023.09, or 9114th~of the biweekly maximum 
amount of $10,924.80.*The total amount that Interior has been ordered to pay for the period 
February 20,2003, through February 28,2003, is $16,750, or $9,726.91 more than the $7,023.09 
that the Consolidated Appropriations Resolution seems to perxnit. 
Because the Court’s March 5, 2003 Order appears incompatible with the Consolidated 
Appropriations Resolution, Defendants respectfblly request that the Court reconsider its March 5, 
2003 Order in light of the intervening change in controlling law. Defendants request that the 
The Special Master-Monitor’sinvoice contains a line item billing 2.5 hours for 
“[l]egal research” on February 26,2003, but seeking compensation of only $375 (or $150 per 
hour) for those 2.5 hours. 
Alternative methods of calculating the maximum compensation amount for this 
period include applying the maximum hourly, daily, or weekly rates. 
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Court amend its Order to require Interior to pay no more than $29,273.096 to the Special Master- 
Monitor for the work described in his Invoice #6, dated February 28,2003. 
Dated: March 19,2003 
Respectfully submitted, 
ROBERT D. McCALLUM 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
SANI@A P. SPOONER 
Deputy Director 
D.C. Bar No. 26 1495 
JOHN T. STEMPLEWCZ 
Senior Trial Counsel 
CYNTHIA L. ALEXANDER 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
United States Department of Justice 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 307-0183 
The Court’s March 5,2003 Order directs Interior to pay the Special Master-Monitor 
$39,000. If this amount is reduced by $9,726.91 in accordance with the statute, the amount due 
would be $29,273.09. 
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INTHE UNITED STATES DISTRICT COURT 
FOR THE DISTRTCT OF COLUMBIA 
ELOUISE PEPION COBELL, gt al., )
1 
Plaintiffs, 1 
) 
V. 1 Case No. 1:96CVO1285 
) 
GALE NORTON, Secretaryof the Interior, al., ) 
1 
Defendants. ) 
ORDER 
Upon considerationof Defendants’ Motion For Reconsideration Of March 5,2003 Order 
Directing Payment To Special Master-Monitor Joseph S. Kieffer, III, any responses thereto, and 
the record in this case, the Court frnds 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 Joseph S. Kieffer, IIT, the sum of $39,000 is VACATED. 
IT IS FURTHER ORDERED that the Department of the Interior (“Interior”) shall pay 
Joseph S. Kieffer, HI, the sum of $29,273.09 for work described in his hivoice #6, dated February 
28,2003. 
IT IS FURTHER ORDERED that to the extent Jnterior has already paid Joseph S. 
Kieffer, III, more than $29,273.09 for work described in his Invoice #6, dated February 28,2003, 
such excess payment shall be deducted fioni Interior’s next payment to the Special Master- 
Monitor. 
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) 514-7194 
Dennis M Gingold, Esq. 
Mark Brown, Esq. 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
202-3 18-2372 
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 I11 of 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 are basic pay only for certain purposes--see "2003 Salary Tables for Members of the Senior Executive Service, Employees in Senior-Level 
and Scientific 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 SERVlCE 
I declare under penalty of perjury that, on March 19,2003 I served the foregoing Defendants' 
Motionfor Reconsideration of March S, 2003 Order Directing Payment to Special Master- 
Monitor Joseph s. Kiefler, IIl, and Memorandum in Support by facsimile in accordance with their 
written request of October 31,2001 upon: 
Keith Harper, Esq. 
Native American Rights Fund 
1712N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 822-0068 
By U.S. Mail upon: 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
By facsimile and US. MaiI upon: 
Alan L. Balaran, Esq. 
Special Master 
1717 Pennsylvania Avenue, N.W. 
13th Floor 
Washington, D.C. 20006 
(202) 986-8477 
By hand upon: 
Joseph S. Kieffer, LIT 
Special Master Monitor 
420 7" Street, N.W. 
Apartment 705 
Washington, D.C. 20004 
(202)248-9543 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
(202) 318-2372