Here is that order:
The Cobell plaintiffs asked for millions:
Pending before the Court are the following motions: (1) Plaintiffs’ Unopposed Motion for Appeal Bond Pursuant to Federal Rule of Appellate Procedure 7 [Docket No. 3856], which seeks “that this Court require [Kimberly] Craven to post a bond or other security in the amount of $8,306,439.93 to ensure prompt payment of plaintiffs’-appellees’ costs on affirmance of this Court’s final judgment order,” Pls.’ First Mot. for Appeal Bond 1; (2) Plaintiffs’ Second Unopposed Motion for Appeal Bond Pursuant to Federal Rule of Appellate Procedure 7 [Docket No. 3859], which makes a similar request that an $8,306,439.93 bond be imposed against the Harvest Institute Freedmen Federation, LLC, Leatrice Tanner–Brown, and William Warrior; (3) Plaintiffs’ Unopposed Motion for Expedited Consideration of Plaintiff[s'] Second Unopposed Motion for Appeal Bond Pursuant to Federal Rule of Appellate Procedure 7 [Docket No. 3860]; and (4) Plaintiffs’ Third Unopposed Motion for Appeal Bond Pursuant to Federal Rule of Appellate Procedure 7 [Docket No. 3869], which further requests that an $8,306,439.93 bond be imposed against Ortencia Ford and Donnelly Villegas. For the reasons set forth below, the Court will deny all four motions.
BLT reports on the judge’s reaction to the plaintiffs’ request:
No opponent of the settlement, Cobell’s lawyers said, “is entitled to a free pass at delaying justice” for the hundreds of thousands of Native Americans who make up the class. The suit, filed in 1996, sought an accounting of the government’s handling of individual Indian trust accounts flowing from the use of land for timber, natural gas and minerals.
“The delay caused by Craven’s appeal means that more elderly and more infirm class members will pass on without obtaining justice that they deserve,” Cobell’s lawyers said in the court filing (.pdf). “The human cost of Craven’s appeal can never be quantified, and as this Court has found, many of the class members depend on their trust funds for the most basic staples of life.”
Craven’s attorney, Theodore Frank of the Center for Class Action Fairness, said in response (.pdf) that the appeal is not frivolous and that Cobell’s lawyers are exaggerating their costs. Frank alleged Cobell’s request for an appeal bond was brought in bad faith and urged Hogan to sanction the plaintiffs’ lawyers.
For instance, Hogan criticized the plaintiffs’ lawyers for contending that there are established practices in the D.C. Circuit for appeal bonds. Cobell’s lawyers, in one instance, pointed to a case in which a federal trial judge declined to order a bond.
Hogan said “it goes without saying” that a published decision denying an appeal bond “cannot credibly be cited as establishing a ‘practice.’” The judge said he was “surprised” Cobell’s lawyers cited to cases that don’t help their cause much.
“It is unclear to the Court whether the unsupported arguments and representations in the plaintiffs’ briefs were intentional, the result of carelessness and haste, or otherwise can be reasonably explained,” Hogan said.
Sanctions, the judge said, are not warranted. But he said he ordered Cobell’s lawyers to file a declaration that addresses the concerns he raised.
The remaining appeal docs are here.