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A federal District Court judge recently upheld his March 2003 ruling that the Interior Department submitted false affidavits to federal District Court.

The affidavits were by a General Services Administration official, Frank Sapienza, and were submitted in the Cobell v. Norton Indian Trust Fund case. They claimed that the General Accounting Office had regularly accounted for Individual Indian Money accounts from 1921-1951. However, before the affidavit was submitted, GAO had informed Justice and Interior that the statement was incorrect.

"It's patently false," said Keith Harper, the plaintiffs' lawyer with the Native American Rights Fund. "There can be no confusion. They absolutely knew it. That was one of the types of actions that made the court extraordinarily irate."

Cobell v. Norton is a class-action lawsuit filed in 1996 by Eloise Cobell, a member of the Blackfeet tribe and executive director of the Native American Community Development Corp., and her co-plaintiffs against Interior Secretary Gale Norton and other federal officials. The goals of the case, according to Cobell, are to force the government to account for money that it held in trust for more than 100 years, and to bring about permanent reform of the system that has mismanaged the money.

The ruling will not have an immediate impact because the case has moved into mediation, but Harper believes it severely affects the defendants' credibility.

"With any court, a party doesn't want to completely lose credibility because you want the court to believe what you say," Harper said. "That's why, ordinarily, parties try not to lie to courts. I think if we go back, the court will properly scrutinize the statements of Interior because they've demonstrated themselves to be tellers of untruths."

Harper believes the case will go back to trial "for certain in one form or another," before a full resolution is reached in mediation.

The Justice Department declined to comment on the case since it is in litigation. The Interior Department did not return calls for comment.

Elouise Pepion Cobell et al. v. Gale A. Norton, Secretary of the Interior, et al, U.S. District Court for the District of Columbia ( 96-1285), May 25, 2004.

Credible Enough

The Merit Systems Protection Board recently overturned the decision of an administrative judge who deemed a sexual harassment victim to be not believable as a witness.

Sarah Reynolds, a 20-year-old summer hire with the Air Force, allegedly was harassed on two occasions during the summer of 2000. Aircraft mechanic Norman Faucher allegedly touched her buttocks and breast, kissed her, "slid a wrench up her shorts near her crotch," and "put her hand on [his] crotch," according to the Initial Appeal File.

The Air Force removed the appellant from his WG-10 position on charges of indecent and immoral conduct and sexual harassment. An administrative judge reversed the agency's decision, however. The judge said Reynolds was an "incredible witness" because she did not bring Faucher's behavior to the attention of another worker, Mark Wasuk, who was on the same plane at the time of the incident. The woman also did not threaten to tell Wasuk or protest to him.

MSPB reversed the initial decision and sustained the removal of Faucher based on several facts. The first was that Reynolds reported the harrasment the day after the second, more serious incident occurred. Wasuk also said that Reynolds seemed visibly upset the day of the incident and chose to ride back from the plane with him even though she had ridden to the plane with Faucher. The board stated its belief that the administrative judge gave too much weight to the belief that Reynolds did nothing about the harassment.

The board said it believed Reynolds to be a more credible witness than Faucher and sustained what it called a "properly imposed penalty" of removal from the agency.

Norman A. Faucher v. Department of the Air Force, U.S. Merit Systems Protection Board (BN-0752-01-0192-I-2), May 25, 2004.

COMMENTS

• Art, How could you suggest such a thing - this is pay-for-performance! tax payer Posted July 9, 2004 7:45 AM
• I thought "Falsification of a Government Document" was a serious offense that was sure to put a dent in a federal career? Especially when it involves potentially a very large sum of money. Sounds like somebody needs a little time in federal prison to see the errors of their ways. Art Doss Posted June 20, 2004 8:50 PM