RICO Convictions of Major Tobacco Companies Affirmed

by Ronald A. Goodbread, Legal Editor

In a punishing affirmance, the D.C. Circuit Court of Appeals has issued a 92-page per curiam opinion upholding the judgment issued by D.C. District Court Judge Gladys Kessler in August 2006, in which she found eleven of America’s major Tobacco Companies and related entities guilty of nearly 150 counts of mail and wire fraud in a continuing “pattern of racketeering activity” with the “specific intent to defraud” under the Racketeer Influence Corrupt Organizations (RICO) Act. The panel consisted of two Republicans, Chief Judge David B. Sentelle, of the tobacco state of North Carolina, a Reagan appointee, and Janice R. Brown, a George W. Bush appointee, together with David S. Tatel, appointed by President Clinton. The familiar names include Philip Morris, R.J. Reynolds, Brown & Williamson, Lorillard, Liggett, British American, and the Tobacco Institute.

The Appellate Court’s opinion, dated May 22^nd, is all the more astonishing in view of its magnitude. No fewer than 39 attorneys entered appearances on behalf of the Tobacco Companies urging reversal, while 59 lawyers, including the Attorneys General of 37 States, entered appearances in favor of affirming the convictions. Names were dropped on both sides, including former U.S. Solicitor General Theodore B. Olson for the Tobacco Companies and G. Robert Blakey for the Appellees. Weighing in on behalf of various States whose health care systems are being increasingly burdened by tobacco-related maladies were such luminaries as Attorneys General Edmund G. Brown, Jr. of California, Joseph R. Biden III of Delaware, Lisa Madigan of Illinois, Douglas F. Gansler of Maryland, and Andrew Cuomo of New York.

Brought in the last year of the Clinton Administration, the case charged that the Tobacco Companies had for decades engaged in “a pattern of racketeering activity” geared to “deceive the American public about the health effects and addictiveness of smoking cigarettes.” The trial lasted nine months, included live testimony from 84 witnesses, documentary evidence from 162 more, and produced almost 14,000 exhibits. The District Court had granted leave to intervene as to proposed remedies to the American Cancer Society, the American Heart Association, the American Lung Association, and Americans for Nonsmokers’ Rights, the National African-American Tobacco Prevention Network, and the Tobacco-Free Kids Action Fund.

After a review of all the evidence the Trial Court concluded that the Tobacco Companies had engaged in a decades-long scheme to defraud actual and potential smokers by falsely denying the adverse health effects of smoking; that nicotine and smoking are addictive; that the Companies had manipulated cigarette design and composition so as to assure nicotine delivery levels that create and sustain addiction; had falsely represented that light and low tar cigarettes deliver less nicotine and tar and therefore present fewer health risks than full flavor cigarettes; engaged in an invidious marketing campaign to youth; had falsely denied that secondhand smoke causes disease; and throughout it all had suppressed and destroyed documents, information, and research to prevent the public from learning the truth about these subjects and to avoid or limit liability in litigation.

The Court of Appeals pulled no punches, engaging in none of the niceties of appellate nomenclature in drawing on the record below to document its ruling.

The Baby Boom Plume. The Government adduced evidence that traversed almost the entire lifetime of the Baby Boom Generation, starting in 1953, when four of the major tobacco giants joined together to strategize a response to an emerging public concern about health risks associated with smoking. Their initial public response was that any health hazards attributable to smoking constituted “an open question.” Their first ploy was the publication on January 4, 1954, in over 400 newspapers throughout the country, of an advertisement entitled “A Frank Statement to Cigarette Smokers” in which they asserted “[t]hat there is no proof that cigarette smoking is one of the causes” of lung cancer and “[t]hat statistics purporting to link cigarette smoking with the disease could apply with equal force to any one of many other aspects of modern life.” Hearkening back to the time of John Rolfe, they assuringly concluded that “[f]or more than 300 years tobacco has given solace, relaxation, and enjoyment to mankind.” They pledged, however, to keep an eye on emerging research to monitor any health hazards to smokers.

Nicotine Addiction. What the Trial Court found, however, was that the Tobacco Companies, in fact, engaged in “disseminating advertisements, publications, and public statements denying any adverse health effects of smoking” in “promoting their … strategy of sowing doubt” when they knew full well “that smoking causes cancer and emphysema, that secondhand smoke causes lung cancer and endangers children’s respiratory and auditory systems, [and] that nicotine is an addictive drug.” The “research group” that they had promised to set up pursuant to their 1954 statement conducted its own “extensive research into the physiological impact of nicotine, how it operates within the human body, and how the physical and chemical design parameters of cigarettes influence the delivery of nicotine to smokers.” In the end it presented them with evidence early on that, in fact, showed the highly addictive nature of nicotine. As early as 1963, Brown & Williamson’s General Counsel wrote in a confidential memorandum, “We are … in the business of selling nicotine, an addictive drug ….” In 1981, a Philip Morris executive wrote, “Cigarettes are not just habit-forming – the body builds up a requirement for them.” Similarly, by 1991, an R.J. Reynolds report bluntly concluded, “We are basically in the nicotine business.” As a result of their own internal research, the Trial Court found, they “recognized and internally acknowledged that smoking and nicotine are addictive.” Thus, the Court of Appeals concluded “that Defendants were aware that nicotine creates a chemical dependency far stronger than mere habit.”

Suppressing Evidence. Yet, the Court found, “despite this internal knowledge, for decades … [the Tobacco Companies] denied and distorted the truth about the addictive nature of their products, suppressed research revealing the addictiveness of nicotine, and denied their efforts to control nicotine levels and delivery.” R.J. Reynolds ran a commercial in the mid-1950’s asserting that more doctors smoke unfiltered Camels – one of the most virulent of the carcinogen delivery devices – than any other brand because they “agree with your throat.” In one of the most pernicious examples of fraudulently misleading the public, in a 1971 CBS “Face the Nation” interview, the President of Philip Morris denied “that cigarettes posed a health hazard to pregnant women or their infants,” despite the fact that he had been notified to the contrary by his company’s own internal research division. He conceded that while it is true that "babies born to women who smoke are smaller, they're just as healthy as babies born to women who do not smoke,” adding grimly that "some women would prefer having smaller babies." Six years later one of his vice-presidents notified him of the results of a joint study with other Tobacco Companies which concluded “that exposure to cigarette smoke causes emphysema” but he never changed his public position. He was but one of the numerous executives, CEO’s Vice-Presidents, scientists, and heads of R&D divisions at each of the major Companies who had engaged in similar public conduct. The Court pointed out an assertion by a Philip Morris Vice-President that “[n]obody has yet been able to find any ingredient as found in tobacco or smoke that causes human disease.” Twenty-eight years after Reynolds scientists had conceded that the presence of carcinogenic compounds was “now well established,” a company press release continued to declare the subject “an open controversy.”

Moreover, the Tobacco Companies’ employees and attorneys were also involved in “destroying documents relevant to their pubic and litigation positions and suppressing or concealing scientific research” which contravened their public position. Indeed, these numerous false statements led the Court of Appeals to conclude that “[t]he fact that Defendants continually denied any link between smoking and cancer … suggested that they themselves consider the matter material,” thus providing one of the elements of fraud.

The industry seldom lost an opportunity to trivialize the allegations of nicotine addiction, likening it to “attachments” such as tennis, jogging, candy, rock music, Coca-Cola, girl-watching, and hamburgers – each an All-American custom. In one of the more absurd analogies, the CEO of Philip Morris was quoted in Time Magazine in 1997, as saying that cigarettes were no more addictive than his fondness for Gummi Bears, while a vice-president for public affairs at the Tobacco Institute analogized the putative addiction to being a “chocoholic.”

On such a record, Judge Kessler had found, “[i]t is absurd to believe that the[se] highly-ranked representatives and agents of these corporations and entities had no knowledge that their public statements were false and fraudulent.” The truth was, the Court of Appeals also found, that for decades those in control of the Tobacco Companies had known “that cigarette smoking causes disease, that nicotine is addictive, that light cigarettes do not present lower health risks … and that secondhand smoke is hazardous to health.”

Engineering Addiction. Worse yet, knowing that their products were already indiscriminately addictive, while denying that fact at every turn; the cigarette manufacturers actually “engineered their product around creating and sustaining this addition.” At the outset of the 1980’s, they began to spike the nicotine content by as much as 1.6%. The overwhelming evidence showed that they “designed their cigarettes to precisely control nicotine delivery levels and provide doses of nicotine sufficient to create and sustain addiction.” A 1988 Report by the U.S. Surgeon General concluded that "[c]igarettes are highly efficient delivery devices and are as addictive as drugs such as heroin or cocaine." Thus, while publicly denying that fact, what the Tobacco Companies did for decades was to engage in a process which they actually deliberately “manipulated it to sustain addiction.”

Having this knowledge clearly in mind, however, did not stop the Tobacco Companies from continuing to proclaim their denials and disbelief of the plain and compelling evidence. In one of the most notorious incidents, on April 14, 1994, the CEO's of Philip Morris, R.J. Reynolds, U.S. Tobacco, Lorillard, Liggett, Brown & Williamson, and American Tobacco, the seven largest Tobacco Companies in the country, appeared under subpoena before a subcommittee of the House Committee on Energy and Commerce and in response to inquiries from then Congressman (now Senator) Ron Wyden of Oregon each stated under oath that he "believe[d] that nicotine is not addictive.”

Low Tar Cigarettes. Beyond that, the Tobacco Companies’ creating and marketing an “alternative” to heavy-duty smoking was also a pernicious ploy. The District court had found that the companies “engaged in massive sustained and highly sophisticated marketing and promotional campaigns to portray their light brands as less harmful than regular cigarettes.” They “marketed and promoted their low tar brands to smokers – who were concerned about the health hazards of smoking or considering quitting – as less harmful than full flavor cigarettes despite either lacking evidence to substantiate their claims or knowing them to be false.” Following the simple analogies of some of their executives, the Companies analogized their light and low tar cigarettes to low caffeine sodas and low fat cookies.

The truth, the Trial Court found, was that they had “known for decades that filtered and low tar cigarettes do not offer a meaningful reduction risk, and that their marketing which emphasized reductions in tar and nicotine was false and misleading.” By the beginning of the 1970’s, the Tobacco Companies “were aware that lower tar cigarettes are unlikely to provide health benefits because they do not actually deliver the low levels of tar and nicotine as advertised.” This is because habitual smokers would modify their smoking behavior with these brands by taking more frequent puffs, inhaling more deeply, holding the smoke in their lungs longer, or simply by smoking more cigarettes. As early as 1978, the British-American Tobacco Company was informed in a report that longtime smokers who switched to the low-tar brand “will in fact increase the amounts of tar and gas phase that they take in, in order to take in the same amount of nicotine.” As a result of this “nicotine-driven behavior,” any benefits of these low-tar brands were lost. Beyond that, those who used the low-tar brand were smoking more packs, thus increasing their purchases, and enhancing company profits into the bargain.

The Court of Appeals concluded that the hundreds of example of such evidence provided “sufficient evidence from which to conclude that Defendants’ executives, who directed the activities of the Defendant corporations and their joint entities, knew about the negative health consequences of smoking, the addictiveness and manipulation of nicotine, the harmfulness of secondhand smoke, and the concept of smoker compensation, which makes light cigarettes no less harmful than regular cigarettes and possibly more” so since they result in increased attempts at nicotine maintenance.

Secondhand Smoke. The Court further found that “internal industry documents revealed that … [the Tobacco Companies] believed the public perception of secondhand smoke would determine the industry’s survival and that secondhand smoke research by the cigarette manufacturers was a sensitive issue due to the absence of ‘objective science’ supporting their position and the risk that their own research would lead to unfavorable results.” The Tobacco Companies then set up a scientific front organization euphemistically styled the Center for Indoor Air Research to feign “independence” whose assignment was to generate “marketable science” to “use for public relations purposes.” As early as the 1970s, their own research revealed the lethal hazards of secondhand smoke. A Philip Morris scientist forwarded with approval an outside report which concluded that secondhand smoke caused “significant damage to airway function” in exposed nonsmokers. Two years later the company’s own research concluded that it is “more irritating and/or toxic … than main stream smoke inhaled by the smokers” themselves. At about the same time in the early 1980,s the Tobacco Institute nevertheless criticized an independent study showing a strong correlation between secondhand smoke and lung cancer as “suffering from a statistical flaw” when the evidence showed that the Institute “knew at the time not only that the statistical error did not exist, but also that the study was in fact correct.”

Review of Remedies. The District Court imposed no fines but found that Philip Morris, Reynolds, Lorillard, American, and British-American were likely to commit future RICO violations, rejecting their argument that the injunction was unnecessary in light of their obligations under the Master Settlement Agreement emanating from the nationwide tobacco litigation in the mid-1990’s, because these Defendants were still not in full compliance with it. Liggett alone was excluded from the District Court’s general injunction because it had voluntarily withdrawn from the RICO conspiracy, admitted that smoking is addictive and causes cancer, voluntarily restricted its advertising, and cooperated with the Government in its case against the other Tobacco Companies. The other seven Companies and their subsidiaries were enjoined them from false and misleading statements and advertising and from committing further RICO violations, from setting up false research fronts such as the Tobacco Institute, were ordered to cease using any express or implied health benefit claims regarding light or low tar cigarettes; required to grant the Government and the public access to all industry documents disclosed in the litigation and to provide additional data to the Government; and were prohibited from selling or transferring their brands, product formulas, and business entities to others who were subject to the injunction, or to conduct such business outside the United States.

The District Court denied the remainder of the Government’s requests for the imposition of a national smoking cessation program, with a special provision for young smokers; a public education and counter-marketing campaign; appointment of a special monitor to restructure the Tobacco Companies themselves; and to make public all internally-developed health and safety risk information about their products.

On appeal, the Court independently assessed whether each company presented a “reasonable likelihood of further violations” and found that the general prohibitory injunction against future RICO violations and against making future false and misleading statements were sufficiently specific to withstand challenge. The Tobacco Companies were successful, however, in reversing the application of the general injunctive relief as to their “subsidiaries” because the record did not disclose the degree of control that the Companies had over various such entities. In addition, the District Court’s proscription against making health claims on low tar products was remanded for modification to limit it to instances which had no domestic effect.

The Tobacco Companies also challenged the mandatory injunction that they initiate a public program to inform present and prospective smokers of the addictiveness and major health dangers of cigarettes in general and the lack of any significant health benefit from light/low tar cigarettes, on the grounds that these requirements were imposed on them without sufficient notice and therefore amounted to a denial of due process of law. The Court of Appeals rejected this argument, finding that the massive nature of the litigation amply provided the Defendants with the scope of potential remedies. “Requiring Defendants to reveal the previously hidden truth about their products,” the Court found, “will prevent and restrain them from disseminating false and misleading statements, thereby violating RICO, in the future.”

As one of the methods for issuing corrective information, the District Court had required the Companies to affix an “onsert” to each pack of cigarettes disclosing the issues of addictiveness and the link to cancer and other diseases. The Court rejected the Companies’ argument that this did not comply with the requirement of Cigarette Labeling Act that such warnings be “on” the package, not affixed to it. At the same time, however, the Court of Appeals found that the District Court’s requirement of point-of-sale counter displays was too intrusive on uninvolved retailers such as convenience stores, and vacated that requirement with instructions on remand for the District Court to reconsider its point-of-sale injunction with the rights of retailers in mind.

Finally, the Court of Appeals swept aside the Tobacco Companies’ First Amendment argument as to protected commercial speech with the simple statement that “it is well settled that the First Amendment does not protect fraud” and that “[h]owever broad the First Amendment … may be, it cannot be stretched to cover … known falsehoods.”

It is rare to find a more excoriating appellate review of a defendant’s failed case, especially at the hand of Judges whose backgrounds might otherwise have led one to predict a less scathing, if not altogether different, result. The case is United States v. Philip Morris USA, Inc., et al., U.S.App.D.C. No. 06-5267 (May 22, 2009) and it the full text may be found and downloaded at HYPERLINK "http://www.cadc.uscourts.gov/bin/opinions/allopinions.asp"http://www.cadc.uscourts.gov/bin/opinions/allopinions.asp.

Marion Barry's Probation Extended for 2 More Years

By Ronald A. Goodbread, Legal Editor

In the continuing epic saga of “Marion Agonistes,” former Mayor and current Council Member Marion S. Barry, Jr., who has cast his shadow over the Capital of the Free World for nearly 40 years now, presented U.S. Magistrate Judge Deborah Robinson with the task of once again wrestling with the turgid problem of whether to pull the plug on him and send him to jail or to continue to meter out measured responses to his various defaults. According to her, the Government made her decision much easier.

Barry, whose political decline makes that of the late Generalissimo Francisco Franco (who was reported as “dying” from 1969 to 1975) seem like a sudden death syndrome, pled guilty in 2005, to one count each of willful failure to file a federal and a local tax return and to pay all taxes due for the tax year 2000. Judge Robinson continued Barry’s sentencing so that he could make arrangements to file all past due returns and pay all back taxes, interest, and penalties. In March 2006, she sentenced him to three years concurrent probation, one of the general terms of which was that Barry would “not commit another federal, state or local crime,” with a special condition that he would “comply with the directives of the federal and local tax authorities regarding payment of taxes, and provide verification to the United States Probation Office upon request.”

In January of this year, Barry’s Probation Officer informed Judge Robinson that the former Eagle Scout had failed to comply with his directive to produce proof of filing of his 2007 federal tax return and of his payment of taxes due for that year, which was not part of the original charges against him. Alleging that, in other words, Barry had committed a federal new tax offense, the Government then filed an unusual Motion to Revoke Probation and incarcerate him or, alternatively, to extend his probation for two years. The Probation Officer requested a hearing on the issue at which the Government also asked that Barry be ordered to provide proof of filing and payment. Before the Court could act, however, Barry’s lawyer represented that he had since filed federal and local tax returns for both 2007 and 2008, and pointed out that the Government was requesting revocation even though Barry’s Probation Officer was not.

Barry’s excuse for his tardiness was that his declining health condition had led him to the point where he “was simply overwhelmed by the medical/health issues that confronted him” and could not focus on his tax obligations. He had given a similar excuse years earlier when he was Mayor and suspected using of illegal drugs, protesting in response to repeated questions by the media, that he could not give a urine sample because of health problems. This was prior to the infamous FBI “she set me up” video sting in January 1990, which caught him in the act of using crack cocaine with a former girlfriend in an upscale local hotel room. To be fair to Barry, though, in 1995 he was successfully treated for prostate cancer and in February of this year he was the recipient of a kidney transplant from a female admirer and, given his age (73), he had a better argument this time around, particularly on the issue of whether he “willfully” failed to file the tax return. The Government pointed out, however, that his putatively poor state of health had not kept him from running a successful re-election campaign against five opponents in November of last year, vacationing recently in Jamaica, and continuing to represent Ward 8 on the City Council. A sharecropper’s son born in Itta Bena, Mississippi, Barry’s intellect has too often been underestimated by his detractors, usually to their great dismay. He is not only a 1958 graduate of LeMoyne-Owen College in Memphis, with a B.S. in chemistry, but in 1960, he also earned a Master of Science degree in organic chemistry from Fiske University in Nashville, the first back college to earn a Phi Beta Kappa chapter. He was three years into a Ph.D. program in chemistry at the University of Tennessee when his involvement in the heady activities of the Civil Rights Era eclipsed his studies.

At the revocation hearing, the Government did not call any witnesses but moved into evidence five exhibits relating to the failure to file and had alleged in its motion that Barry was behind on his tax payment agreement with the District. Pressed by the Court, the Assistant U.S. Attorney assigned to the case suggested that after Barry’s probation was revoked he should be required to spend one month’s incarceration for each violation, to be served in a halfway house facility or, alternatively, on weekends at the D.C. Jail.

Hedging his bet, Barry’s lawyer reiterated his argument that his client’s Probation Officer was not asking for revocation and requested continuing the current term until it expired or, at most, a one year extension. The Probation Officer testified that Barry’s overall compliance to date had been “satisfactory” and did not dispute Counsel’s representations that Barry was now current on all his tax filings. He added, that should Barry be revoked and incarcerated, in view of his recent transplant surgery, the nearest available federal institution with adequate medical care facilities was on the Eastern Shore in Kent County, Maryland. After this testimony, the Prosecutor withdrew the Government’s request for any incarceration in favor of a two-year extension of probation and a thirty-day home detention with electronic monitoring.

The Court noted that the Government had not seriously pressed the case for incarceration, relying entirely on the already-known paper record and failing to call a single witness at the hearing who might have pushed the proof of “willfulness” over the preponderance of the evidence line– an element to the offense of “failure to file” which the Court ruled was “an essential element” of the charge. In conclusion, the Court pointed out that, to its knowledge, not only was Barry’s the only case in which the Government itself sought revocation, instead of relying on a request by a probation officer, but also that it then “failed to even attempt to prove” its allegation as to “new violations” against the probationer. Accordingly, finding that Barry’s brief violation fell into the “Grade C” category, the Court ruled that it would follow the recommendation of Barry’s Probation Officer and extend his probation for another two years, nunc pro tunc to March 8, 2009 – which will be two days after Barry’s 75th birthday, still leaving him more than a year to plan his next political campaign for the 2012 citywide election.

Judge Robinson’s Memorandum Opinion and Order, dated May 22, 2009, may be found on the District Court opinions website at https://ecf.dcd.uscourts.gov/cgi-bin/Opinions.pl?2009.

Wheels of Justice Turn Slowly for Murdered Attorney

Who murdered Robert Wone?

The 2008 Index for Volume 136 is now available

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California's Prop. 8 and the local ties

According to ElectionTrack.com, two donors supporting Proposition 8 in California (which has banned same sex marriage in that state) are employed by law firms that also have offices in DC and also subscribe to the DWLR. These two donors are:

Michael Lee, attorney at Gibson Dunn & Crutcher in Sierra Madre, CA and donated $1,000

Nathan Jensen, attorney at Morrison & Foerster in San Diego, CA and donated $10,000

Both firms have very specific equal employment and diversity ideals and obviously, these donations were made by private individuals, not as representatives of their respective law firms.

From Gibson Dunn & Crutcher's website:

Diversity Mission Statement: Gibson Dunn believes that diversity is essential to our continued success as one of the leading law firms in the world. Our mission is to continue our active recruitment and retention of a workforce with a wide range of backgrounds and experiences. By creating such an environment, we believe the Firm and our clients benefit from our collaborative and unique practice.

Equal Employment Policy From the Morrison & Foerster website:

It is the policy of Morrison & Foerster LLP to provide equal employment opportunity for all applicants and employees.  The Firm does not unlawfully discriminate on the basis of race, color, sex, religion, creed, ethnic or national origin, ancestry, age, disability (including persons infected with HIV or persons with AIDS), veteran status, marital status, sexual orientation, gender identity, domestic partner status, other categories protected by law, or in retaliation for opposition to any practices forbidden under this policy.

The Firm also makes reasonable accommodation for employees with disabilities.  Requests for such reasonable accommodations should be made to any of the individuals listed in the reporting group below.

This policy applies to all areas of employment, including recruiting, hiring, training, promotion, compensation, benefits, transfer, and social and recreational programs, and includes the provision that no employee shall harass any other employee on any of the bases listed above.

A Conversation With...Paul Pearlstein

Paul Pearlstein – in his art-filled office on Rhode Island Ave., with a view of St. Matthews Cathedral and a month-to-month lease that keeps him from being overly committed -  finally likes practicing law, after a mere 46 years.

“I can’t say I always loved it.  I began to love it more when I stopped caring about the money, and that was only in the last years.  I think the problem with the practice of law is the money.  It gets in the way.  If you’re always looking for the next check then you’re not really enjoying the process and devoting as much to your client as you possibly could.  So if you can relax from that…People ask me, what is it like to be a small practitioner in Washington.  There was an old old cartoon that I had seen, and it was a picture of two fellas in a jungle bar, you know, with the slow moving fans, and they were all in safari gear and pith helmets and khaki jackets and everything.  And they were both pretty drunk.  And one of them was a full sized man.  And the other one was a little bitty man sitting on the edge of the counter.  And the big one says, in an inebriated fashion, looks over and says, ‘Tell us again about the time you told the witch doctor to go to hell.’  To me, that’s the image of the solo.”

The other image of the solo, which Paul Pearlstein would seem to embody even if there isn’t a funny cartoon depicting it as such, is the guy who’s tried everything he’s wanted to try.  “The practice has sort of gone where it’s went and I’ve followed,” he says.  “I’ve enjoyed that.” 

Pearlstein was in the army in France and thought he’d be a tax lawyer afterwards until they rewrote the Code before he got out of the service. He now concentrates on real estate law – and bankruptcy law, its corollary (one practice gets busy when the other abates, Pearlstein says) plus estate planning.  He’s also done family law – though only for 20 years, he says, and not any more – as well as arbitration, litigation, and most anything else that’s come his way that he finds interesting both in work and in life. 

Life-wise, Pearlstein has raised four interesting kids – a mountain climbing Vet, a yoga teacher in Manila, a former national gymnast who trained in Beijing, and a firefighter.  He’s married a Quaker tuba player from Indiana, and joined a Reconstructionist, klezmer-oriented Jewish congregation which once had Amy Goodman from Democracy Now as a guest speaker, on Yom Kipppur..  He spends a lot of his time doing what he enjoys  rowing shells, canoeing and playing music.

“I just always enjoyed being on the river.  I took up whitewater kayaking.  But I just wasn’t very good.  I didn’t have a reliable roll.  So whenever I turned over I would get out, which is the most dangerous thing you can do.  And so I just started using a whitewater canoe for flat water.  I’d go out a couple of times a week.”  After a knee replacement Pearlstein got involved with a local canoe groups, and next thing he knew he was paddling dragon boats from Taiwan and outrigger canoes from Micronesia, all over the country – Hawaii, Nevada, California, New York, Maryland and Virginia.

“Almost everybody’s thirty years younger than me,” says Pearlstein.  “But not quite.  There’s a couple of guys that are within ten years.  But it’s a very welcoming group, it’s fun, the racing is fun.  I’ve always been a river rat.  I don’t know why.  I think part of it is I don’t have very good eye-hand control but I have lots of stamina.”

Pearlstein also spends his time agitating for the things he believes in.

“One of my prayers is getting music education back in DC public schools.  I’m being a gadfly – calling people, being obnoxious, writing letters.  They’re beginning to add music teachers this year and I’m still writing letters, just trying to stay on their rear ends,” Pearlstein says.  “I’ve been a musician all my life.  I played violin through high school  We had such a great music department at W-L in Arlington.  And it was so meaningful to me.  And I think the two things that I probably got out of my youth are the love of playing music and rowing.  Music was once a very important element to the school system.  In the last 35 years they’ve cut back and cut back and cut back.  But for a lot of kids – the only reason they attended school was for the music; choir, band, orchestra  Everything else for them at school was boring or off-putting.  And here’s something really positive, and they eliminate it?”

Pearlstein says he’s starting to slow down, doesn’t want a long-term lease on his office.  He’ll keep doing things that seem interesting and right to him, keep being a gadfly, and somehow it’ll all work out.

“I got divorced.  I got traded in I guess.  And it was around that time you kind of had to go back to the basics.  And I said, ‘What did I really like to do?’  And I thought: I like music.  And I like the river, I like the water.  So I’ve kind of been doing that, been putting most of the emphasis in that,” he says.  “And it’s kind of funny but it works out.  I think so many lawyers are doing what people think they should be doing- or what they think they should be doing.  You know, people that go out and join country clubs and start playing golf.  And I’ve talked to some of them and said, ‘Why are you doing that?  Do you like golf?’  If you like it you should do it.  But if you don’t like it don’t do that.  If you don’t like going out to lunch don’t go out to lunch.  Yeah, so I do lunch here, I bring my stuff in.  I’m going to be me, I’m not going to try to be someone else.”

_______________________________________

Arin Greenwood is a contract attorney and freelance writer based in Washington, D.C. She has been published in the Washington City Paper and the ABA Journal. This is her third piece in a continuing series for the DWLR. Arin can be contacted directly at aringreenwood@hotmail.com.

 

A Conversation With...Anne Meister, Register of Wills

“People behave in their wills the way they behave in life,” says Anne Meister, who became D.C.’s Register of Wills in February, 2007.  Meister is examining the original will of Robert E. Peary, who explored the Arctic in 1908.  Peary, in his will, gives to his son Robert his medals, trophies, clothes and jewelry.  “And an island,” says Meister.  “An island!”  (The island, incidentally, is Eagle Island, off the coast of Maine; it was the Peary family’s summer residence when the family was not exploring the world’s coldest places.  The island was given to the State of Maine by the Peary family in 1967 and is now open for tourism between June 15 and Labor Day.)

Meister was formerly staff attorney to the D.C. Council, then Chief of Staff for David Clarke, and later Legislative Counsel to D.C. Council, followed by an interval at Harvard getting a Masters in Public Administration and then private practice where she became increasingly involved in all sorts of probate matters.

“I like public service,” says Meister, in her office in Court Building A, with its mid-century accessories and a large, unframed, abstract painting – gorgeous purple and black paint splotches – made by her husband, artist and lawyer Jay Schiffres.  “I decided that I had maybe one more job in me.  I know how to do public service, and I enjoy it.”

Meister now heads the Superior Court’s Probate Division, where she is in charge of 45 employees charged with running the division’s five sections – the Clerk’s Office,  Auditing and Appraisals Branch, the Legal Branch, Systems Administration Section and Quality Assurance Section.  She arrived at the court with a good background in probate law and the court’s operations from her private practice, and impressed with the Court’s staff. 

When Meister first came to the Probate Division, she found an unwieldy number of docket codes – 600+ of them, covering every possible type of filing.  “I could never have learned them all,” says Meister.  Meister whittled them down to one laminated sheet’s worth of codes per case type that she says should help the Probate Division staff move cases more efficiently.  And quickly, she hopes – one of Meister’s other first big projects  was making her way through the office’s many thousands of open probate files, and make recommendations to the court as to which of those cases should be closed.  “With rare exception we’re hoping all estate cases will close roughly within three years from the date of filing,” says Meister. 

Meister has also overseen the beginning of a new guardianship assistance program at the court, which brings social work students from area schools – Howard, the University of Maryland, and Gallaudet, so far – who volunteer between 16 and 20 hours per week working with wards of the court.

Another ongoing project – one you can see pinned up on the walls around Court Building A’s second floor – is the Wills Project.  Meister worked with the Estates, Trusts and Probate Law Section of the D.C. Bar.  The wills of 13 famous Washingtonians are on display – including those of Frederick Douglass, Oliver Wendell Holmes, Woodrow Wilson, Dolly Madison – showing what they made of their estates; there are plans to add four or five new wills per year. 

While waiting for your Court Building A cases to be called, you can peruse the last wishes of Franklin Pierce – fourteenth President of the United States (and the only President from New Hampshire) – who gives away his swords to his nephews, with the explanation that these swords are to be used “for repelling foreign aggressions and vindicating the rights of American citizens, the world over.”

Or down the hall you can see the will of Euphemia Lofton Haynes, who became the first African American woman to receive a PhD in math, when she got her doctorate in math from Catholic University in 1943.  Haynes created a chair and a student loan fund at Catholic University in her neatly-typed will.

“And because she was a mathematician she set the minimum interest rate,” says Meister.  (It’s set at 4%, just incidentally.)

Grover Cleveland, meanwhile, made a codicil – hanging next to James Monroe’s will - that specifies that once he is buried, he is not to be dug up again unless it was very important to his wife that he be moved somewhere she found pleasanter for all eternity; Cleveland also specified that a monument – “only moderately expensive” – be erected at his grave.  And Alexander Graham Bell simply gave everything to his wife in fee simple.

“Isn’t that fabulous?” says Meister.  “It’s so historical.  It’s so wonderful.  This job – I find it fascinating.”

Arin Greenwood is a contract attorney and freelance writer based in Washington, D.C. She has been published in the Washington City Paper and the ABA Journal. This is her second piece for the DWLR. Arin can be contacted directly at aringreenwood@hotmail.com.

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A Conversation With...Chief Judge Rufus King, III

It is the middle of a sunny Tuesday afternoon in June, and the Moultrie Courthouse is buzzing.  A line of people wait to go through the security checkpoint, lawyers, jurors, parties, court-house staff – and who knows who else – ride the escalators up and down, mill around the hallways, talk to each other.  A crowd of jurors listen to instructions so they’ll know if they are sitting on a jury or going home; two lawyers are arguing - passionately, colorfully, using words one doesn’t expect to hear so loudly in court - over the Celtics.

And in an unmarked office on the third floor, there is calm.  Large offices with pictures of sunsets on them; large windows that look over the city.  It is in a large sunny book-and-award filled office that Chief Judge Rufus G. King, III – dapper in his trademark bow tie - has his chambers, at least until the end of September when he will step down at the end of his second term as Chief Judge.

Chief Judge King became Chief Judge King on September 29, 2000, after working in private practice, then becoming a Superior Court judge at the D.C. Superior Court in 1984, then becoming Presiding Judge of the Civil Division from January 1997 until January 1999.

Moving from judging to being the chief administrator of one of the government’s largest and most complicated institutions was a big change.

“The first thing I did was to survive the process,” he says.

After surviving the process he set out to conquer his big issues: getting more resources for the Family Court, increasing the Court’s budget, strategic planning, improving the Court’s IT system.  But Chief Judge King didn’t know how to navigate Capitol Hill – how to get the Feds to give the Court the resources it needed.

“Congresswoman Eleanor Holmes Norton – she had to educate me,” he says.  “That was a tough job.  She wasn’t always gentle about it but she was right.  She was on our oversight/authorizing subcommittee.  She of course knew and understood the collision of interests – the political pushes – that I didn’t, many of us at the Court didn’t.”

But Chief Judge King learned, and, he says, “in fact what happened after a very rapid learning curve on the Hill is we were given a better structure and more resources.”

“I think the Family Court has gone through a major improvement,” says Chief Judge King.  “We were given three additional judges for that court and nine magistrate judges.  Now we have enough time to really think about cases and manage them.  And, at the same time we were doing that, the city was really strengthening its role, so I think the combination has led to substantial improvements.  We’ll have taken a giant step forward thanks to that effort.”

On top of improvements to the Family Court, Chief Judge King has overseen strategic planning at the court, as well as a massive overhaul of the Court’s IT system so that all the different courts – family, probate, civil, criminal, landlord-tenant; all of them – are linked.  This way, when a family court judge wants to know if someone’s been evicted, they can look it up from the bench; if a civil court judge wants to know if there is a protective order against a party, they can look it up from the bench.

There’s more to be done, says Chief Judge King, though the more might be left for his successor.  “The one that I’m just getting started on now is performance standards,” he says.   “It is an area that I might not see through in my term.  The challenge is that you want to improve the timeliness of case management – you want to get the fat out of the system.  At the same time the great thing about our system of justice is that an independent judge has the time to make discretionary calls, and you don’t want to lose that. On other fronts, I think we’re seeing more and more pro se litigants – that’s going to be a challenge.  I think we’re in a world where we have to become more sophisticated in the international community.  Not only providing interpreter services but understanding different cultures and being accessible to different cultures.”

“I’d say it’s very much with mixed emotions that I leave, because I really have enjoyed it,” says Chief Judge King.  “The bench is just such an unbelievable opportunity.  From the day that I first came on the bench there hasn’t been a single day I would have traded for working anywhere else as hard as it can be.  I’ve been very lucky.  Very fortunate.”

After September Chief Judge King in all likelihood becomes Senior Judge King – he has applied for senior judge status, and is hoping to continue on the bench, hearing cases and “having some fun on the court,” he says.  That, and having some fun off the bench, “Being able to travel when I want to travel, sit when I want to sit, do what I want to do.”

But before September there is still work to be done, and on this sunny June day Chief Judge King’s airy waiting room is full of people in suits holding legal pads waiting to meet about judicial standards.

__________

Arin Greenwood is a contract attorney and freelance writer based in Washington, D.C. She has been published in the Washington City Paper and the ABA Journal. This is her first piece for the DWLR. Arin can be contacted at aringreenwood@hotmail.com. 

April is the Foolest Month

by Reinhold A. Gütbrot *

Guessed Columnist

          In a month that opens in honor of fools, April closed with an unusually large number of loons flying low off the nearby manmade lake and circling above the staid, if architecturally mismatched, precincts of the Prettyman Memorial Courthouse.  Like King Cnut, the chief daily task of a trial judge is to attempt to hold back the relentless tide of litigation that threatens to engulf the docket – only to discover that, like “Groundhog Day,” it’s all back with the next morning’s tide.  Ofttimes it brings forth a few pearly shells of intellectual stimulation that, strung together over a career, become the “ribband and collar” of the judge who truly enjoys the intellectual feast that is a jurist’s portion on the bench. An accompanying occupational hazard, however, is that a certain amount of flotsam occasionally washes up in the swirling eddies of meritorious litigation, twisted pieces of mossy driftwood that, if not removed, bob up and down near the jurisdictional shoreline upsetting the natural ecological balance. The Judges at U.S. District Court here spent much of April policing the jurisdictional shoreline of their little island at John Marshall Place.      

          Aside from the usual spate of “hopeless corpus” petitions, the month opened with what many thought was surely a joke, in a suit where one career politician had sued another over – well, politics. In what was the nation’s first “in-House” lawsuit, Congressman John A. Boehner (R-Oh.)(“say ‘Bay-ner,’” his website says) filed suit against Congressman James A. McDermott (D-Mich.) contending that, in violation of the Federal Wiretap Act, McDermott had vicariously intercepted and illegally published a phone conversation between Boehner and the former unlamented Speaker Newt Gingrich while they and others were plotting tactics on how to squelch the final ethics probe against the Speaker (say “subsequent resignation”).  Astonishingly, in a case presided over by no less a luminary than Chief Judge Thomas F. Hogan (say, “Not to be messed with.”), Boehner was awarded summary judgment on the technical violation of the wiretap statute, included in which was a $10,000 fine and a $50,000 punitive award.  Boehner v. McDermott, 332 F.Supp.2d 149, 169 (D.D.C. 2004). The judgment that was approved 2-1 by the D.C. Circuit.  484 F.3d 573 (2007).  Meanwhile, Boehner, who was selected last year by the non-partisan National Journal as “the most conservative Republican in the House” (tied with seven other Republicans – none from a State north NC – at a 93.3% conservative voting record on major issues) (say “Southern”), was elected Minority Leader by his GOP colleagues.  His success was based in large part upon the victory in the McDermott suit, coupled with his doctrinaire adhesion to the policies of the Bush Administration, his work in enacting the controversial No Child Left Behind Act, his passing out campaign contributions from one of his favorite lobbyists, the Tobacco Industry, literally on the floor of the House, and his straight party line votes in support of the Iraq War, which he, almost alone these days, continues to connect with the 9/11 tragedy.  In March, for the second time in a year, Boehner broke down in tears in the well of the House while discussing his own views on the patriotic aspects of the war. “Does this guy keep an onion in his pocket?” asked one critic.

          Once his case was back before Chief Judge Hogan in March, the Leader sought an incredible $1.1 million in attorney’s fees as a vindication of the $60,000 outcome of his case. Veteran practitioners and  professional pundits who have long kept a close eye – almost all of which were admiring – on Chief Judge Hogan over the years, were not much surprised by his ruling.  In a telling irony, he found that Boehner’s request for six-figures worth of attorney’s fees before you  get to the decimal (and on a summary judgment ruling at that) could not be awarded in full because – you guessed it – the content of his submission was below par!  (Say, “embarrassing.”). The Court found that Boehner had “submitted no documentation with his request for fees [charged] on [his request for] fees,” but “submitted only summaries of the amount of fees claimed.” The “lumping together” of multiple tasks in the so-called “billings,” the Court further ruled, “makes it impossible to evaluate their reasonableness.”  (Say, “slam dunk.”).  The Court concluded that “[d]ue to Congressman Boehner’s inadequate documentation and failure to justify the amount of fees on fees sought,” it would exercise its inherent discretion to reduce the amount requested by 25%, a figure, it noted, which “recognizes the basic failings of Congressman Boehner to meet this burden of establishing the reasonableness of the amount sought ....”  (Say, “Where’s that onion?”).  This was a reduction of $278,973.87 in legal fees.  With cuts that large, it may as well have been a CJA voucher in Superior Court.

          At the other end of the political spectrum, in the Democratic Leadership Council, Inc. v. United States of America, C.A. No. 05-1067, Senior Judge Louis Oberdorfer, who’s been around Democratic Party politics since the days he palled around with the late Byron White and the Kennedy brothers, found himself in the somewhat ironic position of ruling that an outfit called the “Democratic Leadership Council,” set up by Bill Clinton and others of similar ilk in the early 1990's and styling itself a “social welfare organization,” operated in a society that was inhabited solely by fellow Democrats, who were the only discernable  beneficiaries of its largesse.  But, a dollar being a dollar, Judge Oberdorfer ruled, once the IRS had retroactively revoked the DLC’s tax exempt status, it was entitled to a refund of a whole $20,000 (which wouldn’t buy 10 seconds worth of air time for either Clinton or Obama).  Fair is fair, after all – especially where it is Democrats who are complaining about being overtaxed -- there being no mention of how much in attorney’s fees it took to obtain that sum, which wouldn’t have accounted for 2.4% of the legal fees that Congressman Boehner was actually awarded.  At least it’s better than the $300 that those of us with “No Children Left at Home” will receive.

          And speaking of Hillary Clinton, she would not get off that easily, if Dawn M. Bauer had anything to say about it – although it turned out that she didn’t.  Ms. Bauer filed a suit to put a stop– paraphrasing Senator Clinton herself – to the “vast left-wing conspiracy” that is destroying the country.  In Bauer v. Hillary Rodham Clinton, C.A. No. 08-0630, she alleged that Mrs. Clinton “was not only using the United States government for whatever she had or has going on, but also used the Clinton family as a platform for an agenda that she has.”  In support of her contentions, doubtless laying the groundwork for summary judgment, she accompanied her complaint with “a list of dead people” who once associated with the Defendant, who had “lost their lives by mysterious means,” including John F. Kennedy Jr. and Princess Diana, to say nothing of her own medical condition which she attributed to the loss of her employment due to the Defendant’s nefarious machinations. The reports of Mrs. Clinton driving away from the courthouse in a white, scratched and dented white Fiat could not be verified.  From a political standpoint, however, it was good thing for Senator Clinton that the Obama campaign did not get wind of the charge that a political candidate was seeking to use the resources and prerogatives of her official position “for whatever she has ... going on.” Think of the deleterious effects such an approach would have on the electoral process in the nation at large.

          Those held responsible for paying attorney’s fees in these three cases, however, got off a lot easier than the Plaintiff in Fastov v. Christie’s International, PLC, 1:97cv0578, a case assigned to Senior Judge William Stafford of the Northern District of Florida, sitting by designation here, who dished out a withering “pen-lashing” against Robert Fastov’s egregious and continuous violations of the Rules of Civil Procedure.  In 1993, Fastov, a former litigator turned art dealer, made one of those providential “finds,” purchasing a landscape for $600 and then discovering that it had a provenance that traced back a German impressionist named Emil Jakob Schindler, a contemporary of Claude Monet.  Hoping to turn a major profit, Fastov contacted the famous Christie’s auction house in London and shipped the painting there to be included in an upcoming art auction.  Being careful about provenance, Christie’s sought the advice of an outside expert, with whom Fastov immediately became quarrelsome.  Christie’s declined to include the painting in its upcoming auction and that’s when Fastov began his war of attrition over the missed Schindler.  Demanding satisfaction, in June 1994, he wrote the auction house a 79-page, single-spaced letter, including hundreds of pages of attachments, threatening that unless Christie’s acceded to his “settlement” demand of $168,000, he would file suit against it, one that he prognosticated, based on his expertise and “intelligence,” would, at a minimum, cost the agency over $221 million dollars, gaining it nothing in return.  He gave Christie’s three weeks, at the end of which time, he promised that he would “go to war” with “no quarter asked or given.”  He assured Christie’s that it would “be the worst and most costly ... bet of your life,” resulting in a battle that would not end without its “unconditional surrender.”  When this audacious missive had no effect, Fastov filed an eight count, 225-page complaint in October 1997, sounding in breach of contract, negligence, fraud and misrepresentation, demanding both actual and punitive damages.  Judge Paul L. Friedman transformed the “war” into a route by dismissing the case on the simple basis of the D.C. Statute of Limitations, but taking the time to point out that even had the suit been timely filed Fastov could not have won on the merits because he utterly failed to show that he had suffered any harm, loss, or damages as the result of Christie’s wholly permissible decision not to do any further business with him.  After Christie’s filed a Rule 11 request for sanctions and attorney’s fees, a Magistrate Judge initially recommended that Fastov pay fees and costs in excess of $630,000, but then responding affirmatively to Fastov’s changed demeanor from Plaintiff to plaintive, reduced that sum to “only” $110,000.  Christie’s offered not to contest the reduced award if Fastov agreed not to litigate it further.  Still “not getting it,” however, Fastov responded with 45 pages of objections to the Magistrate Judge’s recommendations, together with hundreds of pages of exhibits. For reasons not set forth on the record, Judge Stafford was designated to hear the fees issue.  He issued a blistering condemnation of Fastov’s conduct, which he found continued unabated and unapologetic.  In what could be the language of the certificate for April’s “Most Unrepentant Violation of Rule 11 Award,” Judge Stafford’s ruling is one to which  summarization cannot do justice:

          Fastov’s egregious conduct ... has caused the defendants to spend – now clearly unnecessarily so – in excess of $600,000 defending this baseless lawsuit.  Fastov’s prolixity in verbiage and meanness in actions have wasted the time and energy of at least three federal judicial officers, resources that could have been utilized in the dispatch of legitimate court business .... and certainly any judge would have been justified in referring a lawyer who so conducted himself to the disciplinary process of the ... bar association.  This case represents the worst of both.

          Fastov ... seeks to avoid responsibility by now claiming a reduced income.  Yet, it is clear that he has defiantly shunned every opportunity to mitigate his loss.  The magistrate judge’s compassion and the defendants’ offer to accept a reduced amount have been met by Fastov’s continued strident rejection of reason. Indeed, his contempt for the entire litigation process in this lawsuit, initiated by him and vexatiously still maintained by him, militates against financially punishing the defendants further.

          As his own words have clearly established, the plaintiff initiated this lawsuit with the bad faith intent to subject the defendants to ‘the worst and most costly” litigation in the defendants’ experience.  Now Fastov must pay for ... his bad faith ... and for generally engaging in conduct that degrades the entire judicial system.

          Here .... a greedy individual, with the advantage of a legal education and a claimed litigation expertise, has initiated and maintained this lawsuit, which anyone with a modicum of common sense would have soon realized was without merit.  Nevertheless with myopic vengeance, Fastov has pursued the defendants, using and abusing them and the judicial process.  Fastov could have stopped this senseless bleeding at any time, but after being publicly warned and chastised for his outrageous conduct, has persisted in inflicting more wounds.  Such an individual, such a party, such a lawyer has forfeited his entitlement to minimize his exposure to paying for the harm that he has caused .... in defending this malicious lawsuit.

The Court then reinstated the original of $630,043.32 award in full.  Fastov was right about two things: he received, no quarter and the litigation was the worst and most costly of Christie’s career – only he was the party that paid all the costs.

          For the last four years poor Judge John Bates has had to deal with a lawsuit brought by an outfit that calls itself “POGO” (“Project on Government Oversight”), which apparently was culturally ignorant of the fact that its acronym is identical to the name of the late Walt Kelly’s classic satirical comic strip “Pogo” (1948-73). Pogo was an honest, good natured opossum whose disarming social commentaries were endearing to his fellow denizens of the Okefenokee Swamp, among whom were Albert B. Alligator, Howland Owl, and a demagogic bobcat named Simple J. Malarkey, a rare contemporary satire on “Tail Gunner” Joe McCarthy, who skulked about his “swampwork” humming, “My body lice soda devotion.”  In the suit before Judge Bates, United States v. Project on Government Oversight, C.A. No. 03-0096, after four years, three months and 21 days of litigation, 35 court orders, and 114 individual docket entries, the case finally went to a trial in April, only to have the jury inform POGO that it was not a particularly good idea for a private organization to have given an accountant in the employ of the IRS a $10,000 “qui tam award” for his putative meritorious efforts in “government reform,” their undisputed good intentions notwithstanding. This POGO’s “social commentary” resulted in a $320,000 civil fine.  Throughout the spaces between the lines of his numerous pre-trial orders, Judge Bates had been trying to POGO the trouble, but they ignored him – playing possum all along. It is no small irony that the original Pogo was perhaps most famous for having observed in 1971, “We have met the enemy and he is us.”  Life imitates art – in this case, a comic strip.

          Judge Royce Lamberth, beset with tormented litigants who simply cannot separate their imagined demons from their own demerits, doubtless made a major effort to scrutinize the parties in Newman v. Traitors and Sadists, C.A. No. 08-0711, in order to separate the patriots from the perverts.  The Plaintiff filed suit against these two classes of Defendants, which included, without further sub-categorization, the three major armed forces, the CIA, CBS News (though he overlooked Fox), and, appropriately enough, the “U.S. Space Command,” all of whom he alleged were collectively responsible for the fact that civilization as we now know it is “FUBAR” or “Funk Up Beyond All Recognition,” according to his lead allegation. The Plaintiff also added a plea for court-appointed counsel (“Get me a lawyer.”).  Regrettably, BABAR the Elephant was not available.  After extensive research into Fed.R.Civ.P. 8(a), Judge Lamberth issued a two-page (counting the signature line) Memorandum Opinion that is a paradigm of conciseness and incisiveness, in which he dismissed the suit on the grounds that the complaint did not “give fair notice to the defendants of the claim being asserted, sufficient to prepare a response or answer, to prepare an adequate defense and to determine whether the doctrine of res judicata applies.”  Further research would reveal that under U.S. Const., Art. III, § 3, the Traitors were entitled to demand at least two witnesses to their acts; doubtless the Sadists wanted more.

          Those of us who misspent part of our young adulthood on all-expense-paid trips to army bases and naval stations throughout the world but somehow managed to stay out of trouble with the SP’s and the MP’s (like Magistrate Judge Aida Melendez), wasted a lot of time in bars and other dens of iniquity while on leave.  With any foresight we should have been taking a page out of the book of William Tyree, the bearer of the same noble U.S. Cavalry surname as the famous Sgt. Travis Tyree, played by the late marvelous character actor Ben Johnson in two of John Wayne’s classics, She Wore a Yellow Ribbon (1949) and Rio Grande (1950). Our actual Tyree shot and murdered his wife on property under the authority of civilians (what “army speak” might term SHAMWOPAC), symbolically on Leap Years’ Day 1980, and the Army turned him over to the tender mercies of the local prosecutor in the foreign theater of Massachusetts (where, we have it on good authority, you also “can’t chop your parents up” – Borden, L.).  Tyree was convicted of first degree murder and sentenced to life without parole.  Having spent his tour of duty attached to the 441^st MIU (Military Intelligence Unit) while stationed in a bi-polar State that elected both Ted Kennedy and Mitt Romney to represent it, however, Tyree was prepared for every eventuality.  He filed suit in the D.D.C., Tyree v. Secretary of the Army, C.A. No. 08-0565, in which he contended that, since he “had never been financially discharged” (he discounted his DD as a “discharge in name only”), he had technically remained on the GI payroll for the last 26 years.  Consequently, he demanded the $1,035,000 that the Army owed him at his former rank and grade. On that rationale alone, the estate of the late General Benedict Arnold, discharged “in name only” in 1780, after he went AWOL to England, is today conservatively worth hundreds of millions of “continentals,” which are still compounding interest at the judgment rate for survivors in his family, such as and Matthew, Eddy, and Rosanne. Alternatively, Tyree (USA, re’td) allowed as how he would accept a vacating of his conviction and immediate release from prison in lieu of the cash.  But, in a country that in which it is still involved in a “military incursion” that, at the current “Post-Mission Accomplished” stage, has a projected cost of over $2 trillion, Tyree’s claim, even if successful, did not move Judge Bates, who suggested that he sue the warden of his prison instead.  Tyree, who doubtless could have educated Mr. Newman, ante, as to what FUBAR actually stands for, is apparently still formulating his counter-plan.

          Tyree, in turn, could use some tips from Thurman Brown, who did not waste his time suing a “mere” Trial Judge, most of whom are of the genus durus capita and insist on doing their duty as they see it.  Brown, went right to top and sued not only appellate judges (whose calling in life, according to one trial judge, is to be dispatched to the battlefield after all the shooting is over, with orders to shoot all the survivors), but also the Justices of the Supreme Court (including the late Chief Justice William Rehnquist, who had already been dead for three years, there being no point in taking any chances).  Brown v. Chief Justice William H. Rehnquist, et al., C.A. 08-0674.  This was a call to high adventure for Judge Rosemary Collyer, who pondered the actions that many trial judges have so often wished they had over appellate judges).  Here, again, however, being a durus jurist, Judge Collyer dismissed the suit on the ground that “it seems axiomatic that a lower court may not order the judges ... of a higher court to take action.”  It seems a pity that Brown should have had to receive the shocking news of Rehnquist’s demise in such a brutal manner.  One is reminded, however, of the incident in 1933, when Senator  Henry Cabot Lodge, also of Massachusetts, was interrupted eating his clam chowder in the Senate dining room with the news that former President Calvin Coolidge had died.  Looking up from his bowl, spoon in mid-swoop, Lodge squinted his eyes and replied, “How can they tell?”

          Almost as if to prove the old adage that “a prophet is not without honor except in his own country,” Judge Emmet G. Sullivan found himself being sued in his own courthouse by one Akube W. Ndoromo (many of us are still waiting for the day when Judge Reggie B. Walton gets sued and some unsuspecting process minion jumps out of a concealed position and attempts to personally serve him with the summons and complaint).  As far as memory serves, some believe that Judge Sullivan has, at one time or another, served with distinction on every court in the District of Columbia, with the possible exception of the Temporary Emergency Court of Appeals (its “temporariness” having lasted since it was established in 1971, during the Nixon Administration).  In his current incarnation at the D.D.C., Judge Sullivan was accused in Ndoromo v. Sullivan, C.A. No. 08-74 of “altering, defacing, and partia[ly] destroying, and withholding from [the] jury [the] facts of the case ... and supporting the government’s illegal[] violation” of the Plaintiff’s right to a fair trial in a case over which he presided in which Ndoromo was convicted of xxx.  Rather than simply appeal, he sued Judge Sullivan, whom he wanted removed from the bench (plus $45,000 for having accomplished this “public service”).  But, for one thing, Judge Sullivan is running out of courts and it would be difficult to find gainful employment..  For another, many who have spent a lifetime in criminal defense work have discovered that in many cases it would be truly a blessing to have such a Judge keeping evidence from the jury.  By the time a case gets to the trial stage in federal court, usually the last thing a defense lawyer wants is a “fair trial” – s/he wants a “mistrial.”  In this case it fell to Judge Lamberth to rule that, in effect, that if Mr. Ndoromo could gain the passage of legislation to establish subject matter jurisdiction, abolish the doctrine of absolute judicial immunity, have his own criminal conviction vacated, attain standing to sue, and assert something other than “far-fetched” claims, he could then proceed with his suit.  Still, he should be advised, that Judge Sullivan and Judge Walton are friends.

          In a similar vein, Judge Lamberth also dismissed two separate suits in April, filed against the Clerk of the United States Supreme Court.  In Smith v. Supreme Court of the United States, et al., C.A. No. 08-0737 and McDonald v. Suter, et al., C.A. No 08-0739, the Plaintiffs complained that the Clerks refused to accept their appellate documents for filing – a battle that many a lawyer has fought over the years (wrong color cover; lack of appropriate caption; invalid certificate of service; failure to include all addresses; too many pages; not enough copies, ad nauseam ad infinitum).  But, truth be told, the day that Judges start telling court clerks how to do their jobs, is the day that the courts in American will close down in chaos.  Then “Law and Order” will be accurate in its portrayal of the judicial system.

          Judge Henry H. Kennedy, Jr., the person who attained judgeships on the District Court twice first (he was a Magistrate Judge there 1976-79), found himself presiding over an imbroglio concerning fines assessed against a nail salon, once the case was removed from Superior Court, where he had also had a distinguished career (1979-97).  He polished off the case, however, by ruling that the Plaintiff had fingered the wrong Defendant in attempting to nail the Director of the DCRA in her official capacity.  Cho v. District of Columbia, et al., C.A. No. 08-00353.

          Those who have lived in Washington for a good period of time know the history of Jenkins Hill, where the Capitol Building now stands, and some of the surrounding landscape.  At one time the C&O Canal came off the Potomac near where the Lincoln Memorial now stands, straight up what is now Constitution Avenue, and ended up at the foot of what is now the West Facade of the Capitol Building, where the Presidential Inaugurations are now conducted (the canal keeper’s stone house still stands at the corner of Constitution and 17^th Street, NW.).  For years the land to the South side of the Capitol was occupied b y a row of not-too-fancy rooming houses for members of Congress, including Abraham Lincoln during his single term in the House (1846-48) in which ironically for his future, he was an anti-war critic of the Polk Administration’s incursion into Mexico.  If Lincoln had prevailed – think of it – we would not have Arnold Schwarzenegger as the “Governator” of California today.  In that vein, Theresa Small Smith filed suit against Holly Shimizu, Director of the Smithsonian’s Botanic gardens, which now occupies that site, to force the Government to vacate the property, Smith v. Shimizu, C.A. No. 07-2277, contending that the land rightfully belonged to that twig on the branch of the towering Smith family tree of which she was now the living embodiment (possibly the same one beneath which Longfellow’s “Smithy” stood so many years ago). Not only had the various Government authorities conspired to seize the family homestead but the conspirators had also stolen her identity, all of which left her with no choice but to file suit under the Federal Tort Claims Act with an ad damnum clause of $3 billion dollars.  Judge Paul Friedman insisted on imposing on Ms. Smith something called “the plausibility standard” that would require plaintiffs to file complaints that are not simply composed of “labels or conclusions” but which set forth claims for relief that adhere to a “probability standard” that go beyond “a mere possibility” of causality, and which rise “above a speculative level.”  Think of the implications of such folly!  Entire law firms shut down.  Massive unemployment among plaintiff’s’ attorneys – and insurance defense attorneys, to boot.  The Geico Gecko turned into a wallet.  Cab drivers with no alternate source of income from “litigation futures” stemming from soft tissue injuries sustained in three-mile-per-hour bumper taps.  Civil clerks with so much extra time on their hands that all computer entries would be completely up-to-date, but with no lawyers to read them.  Courtrooms from Small Claims to the U.S. Court of Claims dark at 2:00 in the afternoon.  Litigation life as we know it would suffer the fate of the dinosaurs at the juncture of the Permian-Triassic  Explosion.  This is a very dangerous precedent that Judge Friedman is fostering on an unsuspecting community wherein you cannot to impose the doctrine of “transferred intent” without the chance of actually shooting a lawyer.  As Woody Allen said in Love and Death (1975), “This man has got to be watched!”

          The litigant who easily receives April’s award for the “Most Efforts to Reduce the Bureaucracy Award” is undoubtedly Ms. Julia Miller, whose four pending pro se and in forma pauperis cases were adjudicated last month, three by Judge Collyer and one by Judge Lamberth – even though she apparently lives in Detroit.  In Miller v. Dep’t of Human Services, et al., C.A. No. 08-0631, Ms. Miller sought relief against various courts and other agencies in Wayne County, Michigan, pertaining to the custody of her minor children and the disposition of her marital property, for which she sought damages of $300,000. 

Perhaps she was visiting the Capital of the Free World and, overwhelmed with the imposing architecture of the U.S. District Court building, decided to drop in and file a few lawsuits – especially when it is free of cost for her to do so.  As gently as she could, however, Judge Collyer ruled that her “factual contentions are baseless and wholly incredible” – like so many other contentions in the District of Columbia – and dismissed the case as “frivolous.  Undeterred, Ms. Miller then took on the Social Security Administration, an outfit with enough troubles and which those of us who are on the brink of retirement would just as soon she leave alone.  She insisted, however, that the SSA, together with “various [other] government entities, corporations, media outlets, stock brokerage firms, retail stores, and financial institutions consistently harass, stalk and threaten her, falsify government records pertaining to her, and otherwise fraudulently obtain benefits to which she is entitled.”  Perhaps on the theory that the Plaintiff had confused the SSA with the IRS, Judge Collyer dismissed the suit.  Miller v. Social Security Administration, et al., C.A. No. 08-0632.  Then going straight to the heart of the matter, Ms. Miller sued the Department of the Treasury regarding some sort of a dispute over a student loan.  In Miller v. U.S. Dep’t of the Treasury, et al., C.A. No. 08-0770 she had learned enough, she asserted, to know her rights.  Regrettably for her, however, the course on which she spent the student loan money did not teach her about subject matter jurisdiction, which the Court held that it did not have, and Judge Collyer struck down yet another Miller claim.  Having lost suits in April over political philosophy, social security, and student finances, Ms. Miller then targeted the D.C. Public Housing authority, which she associated with dozens of federal and state agencies, not only here but also in Michigan, Illinois, Georgia, and California, all of which, she insisted, had conspired to commit identity theft against her, ultimately depriving her of a place to live. Miller v. D.C. Public Housing Authority, et al., C.A. No. 08-0734.  Judge Lamberth, however, knew who she was, sending her an Order dismissing her suit as one based on “fantastic or delusional scenarios” that were “clearly baseless.”  What Judge Lamberth doesn’t seem to understand is that it is a lawyer’s job to take “fantastic and delusional scenarios” and turn them into valid-sounding claims. Have we already forgotten the “Twinkie Defense”?  Don’t people still realize that the Columbian Drug Lords who murdered Nicole Brown Simpson are still out there, free men?  After all, we live in a world of fantasies and delusions at the highest levels of our society, business, and government.  The chief executive officers of the six largest cigarette manufacturers in the country stated under oath in congressional testimony that they did not believe that tobacco is addictive; millions of viewers in perpetual re-runs every day believe that “Law and Order” accurately portrays the nation’s judicial system at work; that automobile dealers can be successful in business by selling brand new vehicles “at below dealer cost”; that by taking pills people can enlarge bodily appendages,"dream away" excess weight if they wear certain belts or wraps while sleeping, and can become prosperous by sending what little money they have to television evangelists who are subject to no accounting whatsoever as to what they actually do with it; that lawyers really mean it when they say, “I’ll be brief, Your Honor”; that there really is merit in the term “football scholarship”; that scratching a phonograph record with a needle qualifies as playing a “musical instrument”; that there are tons of Weapons of Mass Destruction buried somewhere in Iraq;  and that men cannot gain entrance into Heaven unless they have more than one wife while here on Earth.  In the face of these colossal leaps of faith, is it so much to grant Ms. Miller the opportunity to prove that the financial giants of the nation are conspiring to ruin her life?  We all know this is not uncommon, after all.  As the old bromide goes, “If you don’t think anyone cares about you,  try skipping a couple of car payments.”

So April was a busy month at the D.D.C.  Too bad it’s over.  But wait – October is “National Toilet Tank Repair Month” (Really!).  It’s only a coincidence that the Supreme Court begins its new term at the same time.  Can’t wait to see which cases make it.

         *The opinions, actual or implied, expressed by the writer are his own, and do not necessarily reflect those of the ownership, management, editorial board, or staff of the Daily Washington Law Reporter – none of whom, now that it comes up, actually has any opinions.  All the cases discussed in this diatribe can be found on the local U.S. District Court’s website at https://ecf.dcd.uscourts.gov/cgi-bin/Opinions.pl?2008.

CORRECTION: In reporting the case of United States v. Naegele, 136 D.W.L.R. 517 (Mar. 11, 2008)(Friedman, J.) the headnote incorrectly  states that the Defendant had been convicted of knowingly  making a false statement. It should have said that he had been "charged with" that offense, among others. In fact, in addition to being acquitted by the jury on four other counts, the Defendant, Mr. Naegele, was ultimately acquitted in toto by the granting of his Motion for Judgment of Acquittal on the false swearing count, which was the legal subject of that opinion. The DWLR regrets the error and the Legal Editor has personally apologized to Mr. Naegele, whose record in this regard remains wholly unblemished.  This correction was printed in the March 24, 2008 edition of the DWLR. 

ANOTHER JUDGE EXCORIATES DEPARTMENT OF THE INTERIOR OVER INDIAN LANDS TRUST CASE

By Ronald A. Goodbread, Legal Editor

                In a 165-page opinion, issued on January 30th, Judge James Robertson of the U.S. District Court here took up where his controversial colleague, Judge Royce Lamberth, left off two years ago in excoriating the Interior Department over its handling of billions of dollars in Native-American land claims stemming from a long-standing class-action lawsuit against it.

                The suit, sounding in equity, sought an accounting for billions of dollars in revenues from timber, oil, and gas revenues deriving from lands held in trust for the various Indian tribes since the implementation of the Dawes Act of 1887, a brazen enactment designed “to erase reservation boundaries and force assimilation of Indians into society at large” via a policy of “coercive assimilation.” The Government retained title to the lands and administered the concessions for their natural resources, the proceeds of which were supposed to be distributed among over 300,000 trust beneficiaries.  In 1996, Elouise Cobell, a member of the Blackfoot tribe of Montana, filed suit to require the Government, which waived sovereign immunity, to conduct an accounting and report the results.  After 11 years of litigation, simply put, there are no results.

                Judge Lamberth, the original judge in the case, once termed the DOI’s handling of the matter “the gold standard for federal government mismanagement for more than a century.” The acrimony between Judge Lamberth and representatives of the Interior Department became so intense, prompting numerous citations for contempt, that the U.S. Court of Appeals reversed several of his findings and ordered the case re-assigned in December 2006.  Taking up what he termed his predecessor’s “heroic stewardship” of this mammoth litigation, Judge Robertson’s issued a written opinion — the 20th in the case so far— which not only found that the DOI had committed “an irreparable breach of fiduciary duty,” but also concluded that it had made such a mess of things, whether purposely or through incompetence, that “it is now clear that completion of the required accounting is an impossible task.”

                In an agonizing recounting of DOI’s repeated attempts and failures to locate, organize, and catalog the records, the Court related that innumerable volumes of those records had been routinely destroyed over the years as a matter of the Government’s storage policy, other transactions had not even been recorded since the early 1930’s, and still others were impossible to trace because there had been so much “fractionation” of the lands due to multiple inheritances and escheatments.  Interior’s own estimates are that over 775,000 fractionalized land interests escheated to the detriment of trust beneficiaries as of 1997.

Even so, the massive accumulation of records that were discovered is daunting, consisting of over 10,000 cubic feet of documents which, if shelved end-to-end, would reach an estimated 43 miles.  In attempting to organize these records DOI has been through minimum of seven “electronic organization programs” since 1992, all of which have been resounding failures.  One inspector termed them large “islands of information without a ferry in between.” It is estimated that the latest program, started in 2003, alone would cost $2.71 million to complete, with no guarantee of success.  To bring the entire project to any kind of meaningful fruition would take nearly $3 billion, according to another estimate.  Judge Robertson frankly concluded that “[t]aking cost into account, Interior’s 2007 Historical Accounting Plan will not result in an adequate accounting that is compliant with the … [law], prior Cobell opinions, and other precedent.”

                In March of last year, the Federal Government offered $7 billion dollars to settle the suit, which claims $100 billion in losses.  Senator Byron Dorgan, D-N.D., Chairman of the Senate Committee on Indian Affairs (which includes current Republican presidential front-runner Senator John McCain of Arizona) vowed to conduct hearings on the matter. Thus far, however, with a full knowledge of the conduct of this litigation and the morass of claims attendant to the issue, Congress has repeatedly refused to appropriate additional funds to resolve the problem.  Judge Robertson’s ruling has been the only progress made since.

On this record, Judge Robertson found that the DOI “has an abysmal record of failing to prioritize the maintenance and preservation of trust documents.”  At the same time, however, he bluntly stated that “it would indeed be ‘nuts’ to spend several billion dollars to account for a trust fund worth around the same amount,” given the limits that Congress has already placed on the project.  Nevertheless, the Judge expressly declined to rule that “such an accounting is hopeless” but concluded instead “that a remedy must be found for the Department’s unrepaired, and irreparable, breach of its fiduciary duty over the last century.”  A further hearing on the matter has been scheduled for early March.

                The case is Cobell v. Norton/Kempthorne, C.A. No. 96-1285 (Jan. 30, 2008) and may be located and downloaded from the Court’s web site at https://ecf.dcd.uscourts.gov/cgi-bin/Opinions.pl?2008.

Printed in the February 20, 2008 edition of the DWLR.

CAVEAT CAUSIDICUS:  LAWYER BEWARE

Rule 11 is Alive and Well in the D.D.C.

by Ronald A. Goodbread, Legal Editor

            In a long, over-pled case consisting of a concatenation of work-related complaints by numerous D.C. employees that ended up before Judge Colleen Kollar-Kotelly, Counsel for the Plaintiffs recently received a stern admonition from this genteel, but no-nonsense jurist.  The U.S. District Court here does not list the lawyers involved in cases in which it posts its memorandum opinions, and although the Daily Washington Law Reporter has identified the lawyer in question, it demurs publication thereof because it is the “lesson of the day,” rather than the identity of the unfortunate lawyer, that is newsworthy. The Reporter believes in informing the practicing litigation bar about such matters so that similar “pitfalls” may be avoided in the future.

            Judge Kollar-Kotelly is a veteran of 13 years on the D.C. Superior Court and was appointed by President Clinton to the U.S. District Court in 1997. Among her many other noteworthy cases, she inherited the massive Microsoft anti-trust litigation and was appointed in by the late Chief Justice Rehnquist in 2002, to be Presiding Judge of the super-secret Foreign Intelligence Surveillance Court. There, she adopted a strict stance in as to the use of information gathered from warrantless searches and recently reversed the Bush Administration’s position on archival secrecy, ruling that President Bush’s Executive Order delaying release of the papers of former Presidents was “arbitrary, capricious, an abuse of discretion, and not in accordance with law.”  It was to this type of Judge that the complaint in McManus v. District of Columbia, C.A. No. 07-252 (Dec. 21, 2007) was assigned.

The single case consisted of the claims of 15 male and female employees alleging such variegated complaints as work-related neck, back,  wrist, and ankle injuries, air pollution in the workplace (including at least four Plaintiffs who failed to specify any injury at all), wage and hour violations, refusal to pay medical insurance claims, allegedly unjustified traffic citations, wrongful termination, conspiracy between various labor unions and the District Government to violate collective bargaining laws, together with what the Court termed numerous other “boilerplate allegations.” The Court found several counts on the complaint to be “more properly described as prayers for relief than causes of action,” including allegations of Section 1983 civil rights violations without identifying relevant underlying constitutional rights abrogated, misplaced reliance upon the due process clause of the Fourteenth, rather than the Fifth, Amendment in the District of Columbia, a request for a declaratory judgment that the Defendants “are engaging in criminal and civil wrongdoing,” and injunctive relief pertinent thereto. This scattershot fusillade of charges, which would likely have taken at least a brigade of lawyers to prosecute, was filed against 12 Defendants, including the District of Columbia, the American Federation of State, County and Municipal Employees, the Washington Teachers Union, Teamsters Union, the Fraternal Order of Police, the D.C. Department of Corrections, several individuals, and at least three healthcare facilities.  Three of the named Defendants were never served at all.  The docket sheets in the case consist of 14 pages and 90 entries.

                Ruling on various Motions to Dismiss pursuant to Rule 12(b)(1), (5) & (6), Judge Kollar-Kotelly was 51 pages into her memorandum opinion when she concluded “that each of the Plaintiffs’ claims lacks merit and … Plaintiffs’ Amended Complaint must therefore be dismissed in its entirety.”  It was all downhill from there for the Plaintiffs and their lawyer.  The Judge then set forth the essence of Rule 11(c), which is to ensure that lawyers would not make any filings with the Court “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation,” that any such submissions “are warranted by existing law or by a non-frivolous argument for extending modifying, or reversing existing law or for establishing new law,” and that “the factual contentions [therein] have evidentiary support.”  Finally, the Court noted that the case law”is replete with precedents granting to a trial judge “the widest possible latitude under the law” in the discretionary imposition of sanctions under the rule.

            Then the deluge.  The Judge found that “Plaintiffs’ filings in this action are universally deficient,” that even its Amended Complaint “is entirely devoid of merit,” that Plaintiffs’ opposition to the various Defendants’ motions not only “fail[ed] to address the majority of arguments” contained therein, but also that they “provide a dearth of legal support for Plaintiffs’ positions.”  In a stinging conclusion, the Judge adjured Plaintiffs’ Counsel that “[t]he Court certainly does not condone the type of slipshod filing presented in this case.”

            The most egregious fault attributed to Plaintiff’s lawyer in this matter was the Court’s finding that, even though he had received notice from the putative agent for receiving service of process for one of the named Defendant entities that this agent did not represent that Defendant, he nevertheless “knowingly filed” what the Court termed “an inaccurate or false Return of Service indicating that … [this] defendant had been personally served with process in this action,” in facial violation of Rule 11(b)(3).  The Court thereupon imposed a serious compensatory sanction on Plaintiffs’ Counsel.

            The news was not all bad, however. Despite the urgings of several Defendants that Plaintiffs’ Counsel be sanctioned for numerous other alleged violations of Rule 11, Judge Kollar-Kotelly exercised her discretion in declining to do so, concluding that, however unlikely it might appear to the complainants, giving him “the greatest benefit of the doubt, it is possible that he believed he could invoke this Court’s jurisdiction over all of Plaintiffs’ claims by virtue of Plaintiffs’ constitutional claim,” even though, the Court held, “[t]he problem, of course, is that Plaintiffs’ constitutional claim (and the other federal law claims) is entirely devoid of merit and therefore cannot withstand a motion to dismiss pursuant to Rule 12(b)(6).”

            In the end, the Court ordered that Plaintiffs’ Counsel pay all “reasonable attorneys’ fees and expenses” associated with the Defendant on whose behalf the service of process issue had been adjudicated as violative of Rule 11.”Thus the lesson is learned anew:  If there is any forum in the world where it is inadvisable to play fast and loose with the law, it’s a U.S. District Court. As early as 1959, it was Sonny Curtis (who took over for recently-demised Buddy Holly) and the Crickets who taught us what happened when they “fought the law” — and, well, you know who won.

Printed in the February 12, 2008 edition of the DWLR

FEDERAL COURT AWARDS MULTI-BILLION DOLLAR TERRORIST JUDGMENT AGAINST LIBYA

Ronald A. Goodbread, Legal Editor

U.S. District Court Judge Henry H. Kennedy, Jr. recently issued a judgment in the principal amount of  $1.7 billion against the Social People's Libyan Republic and six high-ranking Libyan government officials, including the brother-in-law of Libyan leader Muammar Kaddafi.  The judgment was granted on behalf of the families of seven U.S. citizens who perished, along with 163 others, in the 1989 in-flight explosion of Flight 772, operated by a major French airline, over the Sahara Desert in Niger.  Later investigation found that the explosion had been caused by a suitcase bomb planted aboard the aircraft. The Islamic Jihad organization claimed responsibility for the terrorist act while others attributed it to Libya as retribution for France's support of Chad during Libya's expansionist activities against that country.

In 2004, the Libyan Government issued a public "statement of responsibility" for the actions of its officials after a French court had awarded damages for all passengers, many of whom also accepted a settlement from Libya; the average award was slightly over $1,000,000.  The families of the seven Americans, however, rejected both and pursued their remedies in U.S. District Court here under the "terrorist exception" to the Foreign Service Immunities Act, 28 U.S.C. Section 1605(a)(7).

As a result of that local litigation, one family was awarded actual and compensatory damages of $112,335,000, including lost wages, benefits, retirement pay over the victim's life expectancy, as well as an award for pain and suffering.  The extended family of a naturalized U.S. citizen, originally from Romania, received a similar award of $109,044,000, and the family of a former U.S. Ambassador, whose wife was killed in the crash, was awarded $74,483,000 on the same basis.  In addition, all seven families, and the airline itself, were granted treble damages, together with pre-judgment interest.  One source projects the total to reach $6 billion.

At 104 pages, the length and detail of Judge Kennedy's opinion dramatically describing the deaths of the falling passengers, the long-term impact of their loved ones' horrific deaths on the victims' spouses, children, grandchildren, parents, siblings, and extended families, culminating in many instances in physiological disorders, drug and alcohol dependency, and even several suicides precludes the DWLR from publishing the Court's Findings of Facts and Conclusions of Law.  But the document makes dramatic and informative reading on various legal topics, including aviation law, diplomatic law, terrorism, tort law, and damages.  The official citation is Pugh, et al. v. the Social People's Libyan Jamahiriya, C.A. No. 02-0206 (Jan. 23, 2008), the full text of which may be reviewed and downloaded in PDF format from the U.S. District Court's web site at https://ecf.dcd.uscourts.gov.

Published on January 31, 2008 in the DWLR.