Cabral v. U.S. Dept. of Justice

• Decision Date: 12 November 2009
• Docket Number: No. 07-1640.,No. 07-1633.,07-1633.,07-1640.
• Citation: 587 F.3d 13
• Parties: Andrea J. CABRAL, Suffolk County Sheriff's Department; Suffolk County, Plaintiffs, Appellants, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant, Appellee. John Porter, Sr., as Personal Representative of the Estate of Sheila Porter, Plaintiff, Appellee, v. Andrea J. Cabral, Suffolk County Sheriff's Department; Suffolk County, Defendants, Appellants. Correctional Medical Services, Inc., Defendant.
• Court: U.S. Court of Appeals — First Circuit

587 F.3d 13

Andrea J. CABRAL, Suffolk County Sheriff's Department; Suffolk County, Plaintiffs, Appellants, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant, Appellee.

John Porter, Sr., as Personal Representative of the Estate of Sheila Porter, Plaintiff, Appellee, v. Andrea J. Cabral, Suffolk County Sheriff's Department; Suffolk County, Defendants, Appellants.

Correctional Medical Services, Inc., Defendant.

No. 07-1633.

No. 07-1640.

United States Court of Appeals, First Circuit.

Heard July 29, 2009.

Decided November 12, 2009.

Ellen M. Caulo, Deputy General Counsel, for appellants.

Lowell V. Sturgill, Jr., Attorney, Appellate Staff, Civil Division, with whom Tony West, Assistant Attorney General, Michael K. Loucks, Acting United States Attorney, and Michael S. Raab, Attorney, was on brief for appellee U.S. Department of Justice.

Joseph F. Savage, Jr., with whom James Sweet and Goodwin Procter LLP, was on brief for appellee John Porter, Sr.

Before TORRUELLA, SELYA, and DYK,^* Circuit Judges.

TORRUELLA, Circuit Judge.

This is a consolidated opinion addressing two related appeals. Each appeal arises from Andrea J. Cabral ("Cabral"), the sheriff of Suffolk County, Massachusetts, barring Sheila J. Porter ("Porter"), then a nurse practitioner working as a contractor, from the Suffolk County House of Correction ("the HOC") on June 10, 2003.¹

In Porter v. Cabral ("the underlying case"), Porter brought suit against Cabral, the Suffolk County Sheriff's Department ("the SCSD"), and Suffolk County (collectively "the Suffolk defendants") claiming that, in violation of her First Amendment free speech rights, Cabral barred her from the HOC for informing the Federal Bureau of Investigation ("the FBI") of alleged prisoner abuse at the HOC. See Civ. Action No. 04-11935-DPW, 2007 WL 602605, 2007 U.S. Dist. LEXIS 12306 (D.Mass. Feb. 21, 2007). Cabral contends that she barred Porter because Porter had failed to report the alleged assault internally, to document the inmate's medical records, and to submit in a timely manner the report she was directed to write.

As part of the discovery process in the underlying case, Cabral served several written requests and subpoenas on the FBI and the United States Attorney's Office ("the USAO"). In an Administrative Procedure Act ("APA") proceeding stemming from these requests ("the APA proceeding"), Cabral v. U.S. Dep't of Justice, Civ. Action No. 05-12468-DPW, Docket No. 7 (D.Mass. July 27, 2007), the district court denied the Suffolk defendants the discovery they sought. On appeal from the final order in that proceeding, the Suffolk defendants contend that the district court abused its discretion when it dismissed their APA action.

In the underlying case, a jury found in favor of Porter and awarded her $360,000 in compensatory damages and, against Cabral alone, $250,000 in punitive damages. The district court denied motions by the Suffolk defendants for a new trial and for remittitur, and granted Porter's motion for attorney's fees and costs in the amount of $275,437.24 plus interest. On appeal from the final judgment in that underlying case, Cabral challenges the fairness of her trial, considering the denied discovery and the award and amount of punitive damages.

After careful review of the record, we affirm the district court's rulings in both the APA proceeding and the underlying case.

I. Background

A. Facts

We outline the facts relevant to the appeals. Greater detail may be found in the district court's opinion in the underlying case. See Porter, 2007 WL 602605, 2007 U.S. Dist. LEXIS 12306.

Porter, a nurse practitioner employed by Correctional Medical Services, Inc. ("CMS"), began working on contract at the HOC in 1994. In 1999, the FBI recruited Porter to provide information about events at the HOC, which Porter did through May 2003.

On May 19, 2003, an inmate at the HOC, René Rosario ("Rosario"), showed Porter, who was on duty at the time as a nurse practitioner, injuries he alleged had been inflicted by a correction officer. In violation of her department's policy, Porter did not document her observations of Rosario's bruises and abrasions in Rosario's medical chart, she did not report the alleged assault to the Sheriff's Investigation Division ("SID"), and she submitted a written report to the HOC Deputy Superintendent, Mary Ellen Mastrorilli, about her encounter with Rosario nine days late, on May 28, 2003. Porter did promptly orally report the matter to her supervisor, CMS Health Services Administrator Donna Jurdak, and, on May 20, to FBI Agent Christa Snyder ("Snyder").

The following day, May 21, and again approximately two days later, Snyder spoke with Stan Wojtkonski ("Wojtkonski"), a SID Investigator at the HOC. During the course of their conversations, Snyder told Wojtkonski that the FBI had received information that an alleged assault on an inmate had occurred at the HOC and that Wojtkonski should check Rosario's medical records for information about the incident. Wojtkonski told Snyder that the HOC suspected Porter was the source of the FBI's information about Rosario's alleged assault. Snyder neither confirmed nor denied Wojtkonski's suspicion.

Starting on May 22, SID began conducting an investigation of the alleged assault on Rosario. SID concluded its investigation in early June, finding that there was insufficient evidence to sustain Rosario's allegations. SID notified the FBI, which decided not to initiate an independent investigation.

On June 10, Cabral barred Porter from the HOC. Cabral claims that she disciplined Porter for failing to report that the alleged assault internally, for failing to document Rosario's medical records, and for failing to submit in a timely manner the report she was required to write. Cabral also claims that she was concerned about the fact that Porter wrote her report on Interdisciplinary Progress Notes, as if the report were a medical record, and that Porter dated the report the date of the encounter with Rosario, which Cabral considered to be backdating. Cabral acknowledges that, by June 10, she had become aware that Porter had provided information to the FBI about Rosario's allegations but denies this being a factor in Cabral's decision to bar Porter.

Later that day, Porter informed Snyder that Cabral had barred her. The following day, June 11, Porter met at the USAO with Snyder, FBI Agent Maureen Robinson ("Robinson"), and Assistant United States Attorney ("AUSA") Stephen Huggard ("Huggard") to discuss her barring. The next day, June 12, First AUSA Gerard Leone ("Leone") spoke with SCSD Chief of Staff Elizabeth Keeley ("Keeley") by phone to schedule a meeting for June 16, 2003 ("the June 16, 2003 meeting") between Cabral and her management team, on the one hand, and United States Attorney Michael Sullivan ("Sullivan") and FBI Special Agent in Charge Kenneth Kaiser ("Kaiser"), on the other, ostensibly to meet each other and discuss general collaboration. As discussed below, this June 16 meeting would become a focal point of the litigation in this case.

The actual participants in the June 16, 2003 meeting were Cabral, Keeley, and Superintendent in Charge of the Training and Intelligence Division Victor Theiss ("Theiss"), all from the SCSD, and Sullivan, Leone, Huggard, Kaiser, AUSA Robert Krekorian ("Krekorian"), and retired FBI Special Agent David T. Nadolski ("Nadolski"). That meeting focused on Porter's barring, particularly Cabral's reasons for it. During that meeting and in subsequent correspondence between Cabral, Sullivan, and Huggard, the USAO indicated that it had opened a grand jury investigation into whether Cabral's barring of Porter constituted a felony under 18 U.S.C. § 1513 (concerning retaliation against a witness, victim, or an informant), specifically 18 U.S.C. § 1513(e), which provides:

Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.

B. Procedural History

On September 3, 2004, Porter filed in the U.S. District Court for the District of Massachusetts her complaint in the underlying case, concerning Cabral's motivation for barring her, in which Porter sought money damages for unlawful termination and civil rights violations.

During the course of discovery in the underlying case in 2005, the Suffolk defendants made multiple written requests and served several subpoenas on the FBI and the USAO pursuant to regulations promulgated by the U.S. Department of Justice ("DOJ"), 28 C.F.R. § 16.21 et seq. The Suffolk defendants sought information and testimony concerning the June 16, 2003 meeting, communications between Porter and the FBI, and communications between Porter and the USAO. Defendants' requests are known as "Touhy requests," in reference to United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468, 71 S.Ct. 416, 95 L.Ed. 417 (1951) (upholding the authority of agencies to promulgate regulations establishing conditions for the disclosure of information).

In a series of letters addressed to Ellen M. Caulo ("Caulo"), Deputy General Counsel of the SCSD, on June 28 and 30, 2005, Sullivan, acting on behalf of both the USAO and the FBI, refused to comply with the Suffolk defendants' Touhy requests, contending that the requests were too broad and that compliance would (1) "reveal confidential sources and investigatory records compiled for law enforcement purposes," (2) "interfere with enforcement proceedings or disclose investigative techniques and procedures the effectiveness of which would thereby be impaired," and (3) be unduly burdensome. However, in a letter dated August 26, 2005, Acting U.S. Attorney James B. Farmer ("Farmer") informed Cabral that the FBI and...