Via Bmaz at Empty Wheel, a decision of little substantive interest but absolutely fascinating from a process point of view flew under the radar. In Royer v. Federal Bureau of Prisons, District of Columbia Judge Royce Lamberth was called upon to decide a discovery motion in a case involving an improper classification claim.
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.
Not the sexiest case around, and a discovery order in a classification case isn’t likely to cause lawyers to rush to read it. After all, here was the government, yanking the plaintiff’s chain by ignoring the demands, the time limits, the procedural requirements, all because, well, it’s the government. Isn’t that good enough reason?
But this is a decision worth reading, because Judge Lamberth wasn’t putting up with the government’s shenanigans.
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.
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.
Not to suggest that these weren’t excellent smacks, but what follows is worthy of engraving on the lintel over the courthouse door:
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?
Notably, this order didn’t just threaten a future lecture if the government continues to ignore the law, the rules and the rights of a litigant, but holds against the government and imposes hard sanctions. More to the point, the judge calls out the conduct, with language like “egregious,” “sneering” and “nonsense.” What is significant is that the order not only avoids the standard caveat, that it must have been a mistake and not intentional, and that most AUSA’s are callous blithering idiots. He goes for the gusto.
What was the government’s reaction upon reading this scathing bench-slap from Judge Lamberth?
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.
What makes this particularly curious is that part of the notice that seeks to have the DOJ lawyers who are the targets of Judge Lamberth’s order excised from the case, “remove the appearances of all prior counsel,” which is very different from substituting counsel. It appears that the government is seeking the clerk’s assistance in fundamentally altering the record, to intentionally conceal the identities of the assistants and substitutes Brian Hudak, who I assume can withstand the withering order or has an alternative explanation at the ready.
But because the order didn’t fly below Bmaz’s radar, the identities of the assistants who engaged in this misconduct will not be hidden from view.
Digressing just a bit, one point in the government’s opposition argument still presents a nagging issue.
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.
On its surface, the government’s argument is absurd and disgustingly cynical. After all, so what if the prisoner is misclassified as a “terrorist” and held incommunicado. He’s a prisoner, so who cares what happens to him on the inside?
But scratch the surface and there is another, similarly outrageous, message in this argument. Never concede error or harm. Write anything, no matter how offensive, because it’s not like a judge will take the sovereign to task for it. After all, we’re the government and no judge will call us out for it.
Well, kids, Judge Lamberth did. And Bmaz caught it. And it gave me the opportunity to ride his coattails and make sure that as many people know about it as I can because, well, you deserve it. Hai, government. Hai, Assistant United States Attorneys Charlotte Abel, Laurie Weinstein, Rhonda Campbell and Rhonda Fields. This one won’t fly under the radar.