Dankese v. Defense Logistics Agency

• Decision Date: 18 November 1982
• Docket Number: No. 82-1434,82-1434
• Parties: Mercurio DANKESE, Plaintiff, Appellant, v. DEFENSE LOGISTICS AGENCY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 13

693 F.2d 13

Mercurio DANKESE, Plaintiff, Appellant, v. DEFENSE LOGISTICS AGENCY, Defendant, Appellee.

No. 82-1434.

United States Court of Appeals, First Circuit.

Argued Oct. 8, 1982.

Decided Nov. 18, 1982.

Paul A. Manoff, with whom Levine & Manoff, Boston, Mass., was on brief, for plaintiff, appellant.

John W. Laymon, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for defendant, appellee.

Before COFFIN, Chief Judge, TIMBERS, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

COFFIN, Chief Judge.

Mercurio Dankese appeals from a judgment of the United States District Court for the District of Massachusetts denying his motion, pursuant to Fed.R.Civ.P. 60(b), to reinstate his action against the Defense Logistics Agency. The basis for appellant's 60(b) motion was that the Defense Logistics Agency had refused to comply with a settlement agreement entered into between the parties and on the basis of which the court had dismissed appellant's original complaint.

The facts of this case are difficult to pin down, since the issue is largely what one person does or does not remember. The background to the current controversy is as follows. Appellant was an employee of the Defense Logistics Agency from 1965 until his retirement in February of 1980. On April 4, 1980, he requested access to his personnel records. Before he could examine the records, appellee destroyed a number of the desired documents, as unofficial records with no record value. On June 6, 1980, appellant brought suit against appellee charging wilful and intentional destruction of the records, in violation of the Freedom of Information Act, 5 U.S.C. Sec. 552(a)(4)(B), and the Privacy Act, 5 U.S.C. Sec. 552a(g). He sought damages, injunctive relief, costs and attorney's fees.

On February 17, 1981, the parties agreed to a settlement under which appellee agreed to pay appellant $2,235.00 in attorney's fees, to agree to an injunction against future destruction of records pertaining to appellant and, after submission by appellant of documentation to be used to refresh appellee's recollection, to have three of its employees submit affidavits containing their best memory of the contents of the "Miscellaneous Dankese" file. There was an interim dispute as to whether appellant's tardiness in supplying documentation should excuse appellee from his obligation to reconstruct the file. On September 8, 1981, appellant asked the court for an order enforcing the settlement agreement. The district court instructed appellee to answer appellant's affidavit. In response to that order, appellee's three employees, Larkin, Cass and Newdick, submitted affidavits detailing their best memories of the contents of the "Miscellaneous Dankese" file. Employees Newdick and Cass, neither of whom had apparently had direct responsibility for the file, responded in detail to appellant's affidavit, acknowledging having seen some of the documents although remembering few details. Employee Larkin, in whose office the file was kept and who, according to appellant, was responsible for creating many of the documents, could recall only one document.

As a consequence of appellee's employees' inability to recall the file, appellant requested the district court to reinstate the original action, pursuant to Fed.R.Civ.P. 60(b), and to allow him to take the depositions of Larkin, Cass and Newdick. His purpose, he now maintains, was "to enable the plaintiff to gather sufficient evidence to conclusively prove that the defendant's employees did not in good faith attempt to comply with their obligations under the settlement agreement and if such proof was forthcoming, the plaintiff would seek a further order from the court." In support of his motion, appellant submitted an affidavit detailing his personal knowledge of the contents of the file and of employee Larkin's contact with the file and the basis for his belief that Larkin remembered more than he had admitted. Appellee countered by insisting that "plaintiff's unsupported allegations concerning the affidavit of Robert Larkin does [sic] not constitute a sufficient basis for this court to relieve the plaintiff of his obligations under the settlement agreement." The district court denied the motion, finding that "the parties are governed by the stipulation they submitted and there is no basis for this Court to accept the affidavits of either party as a basis to reinstate the case." Appellant urges that that decision was in error.

Appellant confronts two main obstacles in his effort to have the court require appellee's employees to admit remembering more than they say they do. The first is the obvious difficulty of proving what anyone remembers. On that, we offer no guidance. The second is more within our competence. This case presents a not unfamiliar situation in which the relief appellant apparently wanted and the relief he asked for were not the same. Appellant cites...