Judge Lamberth Takes DOJ to Woodshed; DOJ Moves Peas Under Different Pods

CryingJusticeThere was an interesting, albeit little noticed, order issued about ten days ago in the somewhat below the radar case of Royer v. Federal Bureau of Prisons. Royer is a federal inmate who has served about half of his 20 year sentence who in 2010 started bringing a mandamus action complaining that he was improperly classified as a “terrorist inmate” causing him to be wrongfully placed in Communication Management Unit (CMU) detention. The case has meandered along ever since.

Frankly, beyond that, the root case facts are not important to the January 15, 2014 Memorandum and Order issued by Judge Royce Lamberth in the case. Instead, Lamberth focused, like a white hot laser, on misconduct, obstreperousness and sheer incompetence on the part of the United States Department of Justice (DOJ) who represents the Defendant BOP in the case.

Here are some samples straight off of Royce Lamberth’s pen:

Plaintiff’s discovery requests were served on June 19, 2013. Defendant failed to respond on July 19, 2013, as required, nor did defendant file a motion for extension of time. Defendant’s first error, therefore, was egregious—arrogating to itself when it would respond to outstanding discovery.

and

Defendant’s fourth error was on August 5, 2013, when it filed its responses to interrogatories and produced a few additional documents. The answers to interrogatories contained no signature under oath, with untimely objections signed by counsel. Even novices to litigation know that answers to interrogatories must be signed under oath. Any attorney who practices before this Court should know that this Court does not tolerate discovery responses being filed on a “rolling” basis

Lamberth then goes on to grant the inmate plaintiff pretty much all his discovery motion and hammers the DOJ by telling plaintiff to submit its request for sanctions in the form of award of attorney fees and costs. Ouch; bad day for the DOJ.

Then the court lowered the boom. After noting that DOJ’s defense was “completely without merit” and “incompetent”, Lamberth puts a giant stake in the heart of the holier than thou DOJ:

Defendant’s sneering argument that plaintiff is not prejudiced by all this delay by defendant because he remains incarcerated is beyond the Court’s comprehension. The whole point of this litigation is whether defendant can continue to single out plaintiff for special treatment as a terrorist during his continued period of incarceration. Did any supervising attorney ever read this nonsense that is being argued to this Court?

OUCH!!

I regret that I am away sitting by designation on another court with a terrible backlog, or I would hold a hearing in open court to hold the government attorneys accountable for their misconduct here. Plaintiff’s discovery efforts should not be further delayed, and requiring payment of attorney’s fees will make clear that the Court totally and categorically rejects the practice of the government in this case.

Well, you just don’t see that every day, and certainly not in the hallowed halls of Prettyman Courthouse in DC. It is, however, something that is a long time coming to the DOJ, who has for years arrogated themselves the right to lie, cheat and violate ethical rules in their litigation at every level of court.

It is why another Chief Judge, Alex Kozinski of the 9th Circuit, also exploded recently about the DOJ’s relentlessly unconscionable tactics in engaging in Brady violations. Every judge in this country’s federal courts ought be taking note, and bringing the weight of court sanction down on the DOJ.

So, what did DOJ do in response to the blistering whipping Royce Lamberth laid on them in Royer? Exactly what you would expect, hiding the pea by switching the pods covering it. Quietly, and under the cover of weekend electronic filing on Saturday, DOJ noticed the wholesale substitution of counsel on the Royer case. It was a terse one page noticed that substantively stated only:

The Clerk of the Court will please enter the appearances of Assistant United States Attorneys Daniel F. Van Horn and Brian P. Hudak as counsel for Defendant Federal Bureau of Prisons and remove the appearances of all prior counsel for Defendant in the above-captioned case.

There were previously four DOJ attorneys assigned to the Royer defense: Charlotte Abel was designated lead and signer of the initial pleadings, and as Laurie Weinstein (signatory on subsequent responsive answer), Rhonda Campbell and Rhonda Fields. All four were removed as counsel by DOJ Saturday, and replaced by Daniel Van Horn, Chief of the Civil Division, and Brian Hudak, another AUSA at DOJ Main.

No mention of punishment of the DOJ attorneys for their misconduct. There never is as Alex Kozinski complained so vociferously of. Even when there is no option but to have the Department of Justice Office of Professional Responsibility (OPR) open a case on a department attorney, the investigation turns into a black hole to conceal and whitewash the bad behavior. As I wrote in 2010, the OPR is an intentionally feckless, conflict infested, black hole designed by David Margolis and DOJ leaders to hide misconduct and shield their own attorneys.

Fordham University law professor Bruce A. Green, a former federal prosecutor and ethics committee co-chair for the ABA Criminal Justice Section, once famously said of OPR:

I used to call it the Roach Motel of the Justice Department, Cases check in, but they don’t check out.

Don’t be looking for any substantive actions addressing, much less punishing, the previous attorneys Judge Royce Lamberth took to the woodshed in Royer. DOJ imperiously simply won’t stand for it, and their first move was to shuffle the pea under the shell pods under the cover of a weekend.

Out with the old, in with the new, all better now over a sleepy weekend! If past is prologue, look for DOJ to be giving awards to Abel, Weinstein, Campbell and Fields for their incompetence. After all, DOJ has a history of rewarding bad behavior, and efforts to cover it up.

Because that is the way of the DOJ.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
20 replies
  1. grayslady says:

    I’ve long given up thinking of the word “justice” as having anything to do with the DOJ. Sounds very similar to today’s post on Firedoglake regarding what the BOP is doing to John Kiriakou.

  2. GKJames says:

    That’s the problem though: from time to time, a court will hammer DOJ but nothing substantively ever changes. Only when law licenses are put in jeopardy will the nonsense stop.

    As for Judge Lamberth, there was a civil case about 10 years ago when DOJ was doing the usual. The plaintiff’s attorney surgically carved up the government’s position. Lamberth was justifiably enraged (picture a pink bowling ball set on top of a black dress), but said: “What do you want me to? They [DOJ] haven’t obeyed single order I’ve entered in this case!!!”

  3. Peterr says:

    A couple of questions . . . one at a time.

    How common is it for a judge who is away from their regular bench on an assignment to help with a backlog elsewhere to issue orders and make rulings on their regular cases? From where I sit, this looks like Lamberth was working his special assignments during the day, then went home and dropped this bomb on the DOJ in his spare time.

  4. Peterr says:

    Next . . .

    Attorneys who practice before the appellate courts have to be admitted to the appellate bar. Under Rule 46 of FRAP (“Attorneys”), there is a procedure for said admission to be suspended and/or revoked:

    (b) Suspension or Disbarment.

    (1) Standard. A member of the court’s bar is subject to suspension or disbarment by the court if the member:

    (A) has been suspended or disbarred from practice in any other court; or

    (B) is guilty of conduct unbecoming a member of the court’s bar.

    (2) Procedure. The member must be given an opportunity to show good cause, within the time prescribed by the court, why the member should not be suspended or disbarred.

    (3) Order. The court must enter an appropriate order after the member responds and a hearing is held, if requested, or after the time prescribed for a response expires, if no response is made.

    Lamberth’s order strike me as damn close to accusing the attorneys of “conduct unbecoming of a member of the court’s bar.” In addition to the description of the DOJ defendant’s lawyers you cited above, he uses phrases like these:

    “. . . this egregious misconduct by defendant’s counsel . . .” [This was after listing three specific “egregious” acts]

    “Defense counsel’s totally incompetent handling of this discovery dispute . . .”

    When you put the FRAP language next to Lamberth’s “You’re lucky I’m not in my regular courtroom right now . . .” language, it makes me wonder if Lamberth might like to open a suspension/disbarrment hearing. Any chance of that happening?

  5. Peterr says:

    One more . . .

    Can the defendant simply announce a change of counsel, or does the request to the clerk to change DOJ lawyers have to be approved by the Court itself?

    If Lamberth has to sign off on this request, I’ll bet he will demand the presence in his court of all these lawyers before he lets the substitution go forward.

    If he doesn’t have to sign off, then I pity the poor lawyers who are taking the places of the earlier idiot/lawyers. We’re only at the discovery stage in this case, and every single step forward from now on by the DOJ is going to get the harshest scrutiny from the Court. One more misstep, one more missed deadline, one more arrogant act, and I could see Lamberth looking favorably on a motion for summary judgment by the plaintiff.

  6. earlofhuntingdon says:

    Being too busy – having to sit by designation temporarily in another court – to sanction DoJ attorneys for their misconduct doesn’t seem like an adequate excuse. Hold a hearing later, perhaps? Sanctions seem as appropriate for this agency’s attorneys as do criminal prosecutions for TBTF banks. Without sanctions, we will, as we have in the past, see this over and over. It’s not about the misconduct of four attorneys; it’s the misconduct of their agency, its “management” processes, and its top administrators.

  7. bmaz says:

    @Peterr: I think they generally try to keep up. They don’t serve out of district unless they are senior status, so they can pull it off.

    And he did indeed drop a bomb.

  8. bmaz says:

    @Peterr: I think there are rules for being removed from a district court admission too. But rarely, if ever, invoked (best as I’m aware anyway) unless a person is disbarred or suspended by their relevant bar authority.

    Judges can refer directly to a bar, in this case DC, but DOJ goes apeshit if they do so. DOJ wants everything only through OPR. And you know what I think of OPR…

  9. bmaz says:

    @Peterr: Generally in a civil case (criminal cases far different), so long as it will not affect a trial date, any party may substitute counsel.

  10. Peterr says:

    @bmaz:

    I also know what Lamberth thinks of the DOJ right now. He’s senior status, former chief judge of the DC district bench, and if DOJ wants to get in a pissing match with him, his order here tells me he’d welcome that.

    “You’re seriously going to claim that this egregiously incompetent work is not ‘conduct unbecoming’? You’re going to sign your names and make that claim under oath? Really?”

  11. Peterr says:

    @bmaz: So are you saying that the Court does have to approve the change of counsel, but this is generally a pro-forma thing?

  12. bmaz says:

    @Peterr: In a civil case, for attorneys within a firm (or in this case DOJ), yes.

    A private party would have to give client consent to the substitution, but a governmental entity is the client.

  13. scribe says:

    @Peterr: The approval is pefunctory – you just file it and it’s done. That’s especially so when the attorneys are working in a large-firm (which DoJ is) environment. There’s constant trading around of cases and this is “normal”.

  14. scribe says:

    @GKJames: you state:

    As for Judge Lamberth, there was a civil case about 10 years ago when DOJ was doing the usual. The plaintiff’s attorney surgically carved up the government’s position. Lamberth was justifiably enraged (picture a pink bowling ball set on top of a black dress), but said: “What do you want me to? They [DOJ] haven’t obeyed single order I’ve entered in this case!!!”

    I once had a personal injury case in which the judge tried an angle to settle it, having the parties and their attorneys sit down with him, first plaintiff then defendant. So, my plaintiff – suing over a workplace assault at the garbage transfer station where he was a supervisor – sits down with me and the judge. The judge asks: “what will it take for you to settle this case?” Before I can say anything, my client says “give me 5 minutes in your jury room with that piece of shit”. All I can say is “Mr. Plaintiff is a plain-spoken, direct man and remedying the injury to his sense of honor is perhaps more important than money.”

    My client was right, of course. The piece of shit defendant had already been fired and didn’t have the proverbial pot to piss in, let alone insurance, so recovering honor and status before the other garbagemen – which is how my client explained his seeking judicial sanction to beat the shit out of the defendant – was all that he had left to get, and that would have been enough for him, too.

    We didn’t settle then, BTW.

  15. Peterr says:

    @scribe: Except this isn’t related to trading around cases to deal with the workload in the office. As bmaz notes, it’s about covering the asses of the DOJ.

    Whether Lamberth decides to treat it as an opportunity to wash his hands of idiots and gives the pro forma approval, or he chooses to bring the lawyers into court to explain themselves before allowing the change is up to him. But it sounds as if it IS within his discretion to do so.

  16. david says:

    @bmaz: >: The Government as an entity is not the client. The question that keeps coming up is who is the client, a politician or appointee and how far the attorney is willing to go for their client.

    A few Government Attorneys should not be considered officers of the court as they operate today. I can almost hear them almost talking to their “client” yes sir, of course sir, right away, I agree those who disagree with are subversive you and have no rights.

  17. Peterr says:

    Following the link to Turley’s piece about Kozinski’s comment on the epidemic of Brady violations led me to another Turley post from Feb 2012, where he opened with this:

    The United States Court of Appeals for the Ninth Circuit issued a stinging rebuke to the Justice Department after refusing to remove the name of a prosecutor who acted unethically from an opinion. The effort by the Justice Department to conceal the name of the prosecutor, the court noted, was in sharp contrast to its common heralding of the accomplishments of its prosecutors in public. The move reaffirmed the view of many lawyers that the Justice Department often acts reflexively in defense of its lawyers — often resisting efforts to hold abusive prosecutors accountable.

    The 9th circuit gets it.

    I’m sure the request to change counsel is standard boilerplate, but I can’t help but notice the phrasing: “enter the appearances” of the new counsel and “remove the appearances” of the old counsel. The former makes complete sense from the standpoint of the English language, but the latter does not. You can note the departure of the old counsel from the case, but they *were* there, and to pretend otherwise is just that: pretending.

    (I can only imagine the number of criminal defendants that would like their lawyers to be able to exercise this kind of legal power. “Your honor, I’d like to remove the appearance of my client from the photographs of him with his left hand in the cash register while his right hand waved a gun around.”)

  18. bmaz says:

    @david: No, the governmental entity, in this case BOP, is the client. Same difference here, the client does not need to sign the substitution notice.

  19. orionATL says:

    administered your own blistering, you did, bmaz.

    and well-deserved it was, too.

    good reporting eye as well.

    tx.

    i will add that the pervasive abusive treatment of prisoners and the violation of prior incarceration agreements that define the bureau of prisons these days is a major scandal in its own right.

  20. DWBartoo says:

    @earlofhuntingdon: Spot on, EOH, in every regard.

    Thank you for this post, bmaz. However, if Judge Lambreath is too busy to sanction these attorneys AND the DOJ, then who does he imagine will have the time or appropriate opportunity to do so … and when? I agree with you, that other judges must, finally, recognize these “patterns” of behavior of the DOJ (and of the “government”, the “executive”, in other instances) for what they are, lying, cheating, and violating ethical rules, and the implications which attend this behavior, the “why” of it … not only would it be a “good” idea for the Judicial Branch to recognize these things, it is actually a Constitutional requirement that the Judicial Branch do so.

    You wrote, in another post, “I guess second chances and redemption are only for banksters and war criminals …”, and one cannot help but consider that there is a considerable connection between these two things, the denial of honest justice and the “attitude” of the DOJ, and the politically and financially powerful, generally, that “they” are above the law …

    If the Rule of Law is central to civil society, and it is, then we must examine the very real possibility that our civil society is being deliberately collapsed … to the specific and intended benefit of the elite.

    I would suggest that there can be no rational doubt about it, merely denial.

    DW

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