Dobyns v. United States

• Decision Date: 16 September 2014
• Docket Number: No. 08-700C,08-700C
• Parties: JAY ANTHONY DOBYNS, Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

JAY ANTHONY DOBYNS, Plaintiff, v. THE UNITED STATES, Defendant.

No. 08-700C

United States Court of Federal Claims

Filed Under Seal: August 25, 2014

September 16, 2014¹

Trial; Settlement agreement; No breach of contract; Contract interpretation; Incorporation of ATF Orders; Covenant of good faith and fair dealing; Parameters; Metcalf - covenant may be breached even if there is no breach of the underlying contract; Withdrawal of backstopping; Inadequate responses to threats; Damages; Recovery for emotional distress, as well as pain and suffering; Restatement (Second) § 353; Counterclaim; No breach of employment contract in publishing and promoting book; Snepp; Waiver.

OPINION

James Bernard Reed, Baird, Williams & Greer, Phoenix, AZ, for plaintiff.

David Allen Harrington and Kent Christopher Kiffner, Civil Division, United States Department of Justice, Washington, D.C., with whom was Assistant Attorney General Stuart F. Delery; Jeanne E. Davidson, Director; Donald E. Kinner, Assistant Director, Civil Division, for defendant.

ALLEGRA, Judge:

"Who steals my purse steals trash; 'tis something, nothing;

'Twas mine, 'tis his, and has been slave to thousands;

But he that filches from me my good name,

Robs me of that which not enriches him,

And makes me poor indeed."²

This contract case is before the court following an extensive trial in Tucson, Arizona, and Washington, D.C. Jay Dobyns, an agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), alleges that ATF officials breached an agreement that he had with the agency settling a prior dispute. He contends that ATF's conduct also breached the covenant of good faith and fair dealing associated with that agreement. Both breaches, Agent Dobyns asserts, give rise to the imposition of damages. Defendant, meanwhile, counterclaims that Agent Dobyns breached his employment contract with ATF, as well as federal regulations and ATF orders, by publishing a book based upon his experiences as an agent, and by contracting his story and consulting services to create a motion picture.

Based upon the extensive record, the court finds that there was no express breach of the settlement agreement here, but that defendant's conduct associated with that agreement effectuated a breach of the covenant of good faith and fair dealing. Based upon the extensive record, the court concludes that defendant's conduct, indeed, constituted a gross breach of that covenant. Damages for mental distress, as well as pain and suffering, will be awarded because of this breach. As to the counterclaim, the court concludes that plaintiff did not breach his employment agreement with ATF by writing and publishing the book in question, because plaintiff's conduct was countenanced by the settlement agreement and by ATF officials. The court thus rejects defendant's counterclaim.

TABLE OF CONTENTS

I. FINDINGS OF FACT..................................................03

A. ATF and Operation Black Biscuit.....................................03

(1) ATF Organization..........................................03

(2) Agent Dobyns and Operation Black Biscuit.......................04

B. Threats Made Against Agent Dobyns between 2003-2007 ................................. 05

C. The Prelude to the 2007 Settlement Agreement .........................07

D. The 2007 Settlement Agreement.....................................08

E. Withdrawal of Credentials ..........................................10

F. The Arson at Agent Dobyns' Home .........................11

G. The OIG and IAD Reports..........................................21

(1) 2008 OIG Report............................................22

(2) 2012 IAD Report on House Fire ................................22

(3) 2013 IAD Report on Loss of Backstopping.......................24

H. The Book .......................................................25

I. Credibility Findings...............................................27

J. Procedural History................................................29

II. DISCUSSION.........................................................29

A. Breach of Contract ................................................30

B. Covenant of Good Faith and Fair Dealing ......................34

(1) Legal Framework ...........................................34

(2) Application of Covenant ......................................37

C. Damages .......................................................40

D. Defendant's Counterclaim .........................................47

III. CONCLUSION.......................................................52

* * * * *

I. FINDINGS OF FACT

Based on the record, including the parties' stipulations, the court finds as follows:

A. ATF and Operation Black Biscuit

(1) ATF Organization

ATF is a federal law enforcement organization within the Department of Justice (DOJ). Headquartered in Washington, D.C., ATF investigates a variety of federal offenses, including the unlawful use, manufacture and possession of firearms and explosives; acts of arson and bombings; and illegal trafficking of alcohol and tobacco products. ATF is headed by a Director and a Deputy Director. ATF headquarters has eight major offices, including the Office of Public and Governmental Affairs (OPGA), the Office of Field Operations, the Office of Professional Responsibility and Security Operations (OPRSO), and the Office of Strategic Intelligence and Information.

BUREAU OF ALCOHOL, TABACCO, FIREARMS, AND EXPLOSIVES

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The Internal Affairs Division (IAD) of OPRSO investigates allegations of administrative and criminal misconduct, and makes reports to the Office of the Inspector General (OIG) of the DOJ on significant investigations. Among ATF's other components relevant to this case is the National Integrated Ballistic Information Network (NIBIN), which provides federal, state and local law enforcement with various assistance, including access to an automated ballistic imaging system.

By way of further background, ATF's Office of Field Operations is organized by regions and further subdivided into Field Divisions. Each region is headed by a Deputy Assistant Director (DAD) for Field Operations. The DADs for Field Operations each oversee the Field Divisions in their geographical areas, each of which, in turn, are managed by a Special Agent in Charge (SAC). The Phoenix Field Division is responsible for various ATF activities in Arizona and New Mexico. This Field Division is run by a SAC and two Assistant Special Agents in Charge (ASACs). There are also two Field Offices in the Tucson area, each headed by a Special Agent, known as a Resident Agent in Charge (RAC).

(2) Agent Dobyns and Operation Black Biscuit

Agent Dobyns became an ATF agent in 1987. From early 2001 to July 2003, he participated in an investigation known as Operation Black Biscuit, which targeted members of the Hells Angels Motorcycle Club (Hells Angels). For nearly two years, Agent Dobyns posed undercover as a member of the Tijuana-based Solo Angeles, as part of a task force that included other ATF agents. As part of this operation, Agent Dobyns and others staged the fake murder of a member of the rival Mongols Motorcycle Club. The staged murder impressed the Hells Angels leadership, causing the club to vote Agent Dobyns as a full "patched" member.

During this time, Agent Dobyns was stationed in one of ATF's Tucson Field Offices and lived with his family in the Tucson area. In 2003, Operation Black Biscuit and parallel raids ended with the indictment of 36 people (16 as a direct result of the undercover operation), including 16 Hells Angels. The individuals were indicted on racketeering and murder charges. However, a number of setbacks involving the prosecution of these individuals eventually led to some of the defendants receiving reduced sentences and others having their charges dismissed. The disclosure of Agent Dobyns' identity in court led to threats of death and violence directed at him and his family.

As a result of his work on Operation Black Biscuit, as well as on other investigations, Agent Dobyns received twelve ATF Special Act Awards, two ATF Gold Stars for critical injuries received during investigative operations, an ATF Distinguished Service Medal for outstanding investigative accomplishment, and the United States Attorney's Medal of Valor award.

B. Threats Made Against Agent Dobyns between 2003-2007

Agent Dobyns' undercover activities placed him and his family at risk. ATF conducts various evaluations when it identifies a credible threat to an ATF agent. ATF Order 3040.2 specified the procedures used to report and manage these threats. Under these procedures, ATF personnel conduct "Risk Assessments" that ascertain the impact of an undesirable event, analyze the identified threat (commonly referred to as a "threat assessment"), and identify vulnerabilities. They then evaluate the overall risk to make recommendations to minimize the threat.³ Once a threat has been identified, a further appraisal is done to analyze the intent underlying the threat, the capability of an individual or individuals to effectuate the threat, and any individuals or groups associated with the threat.

In 2003, as Operation Black Biscuit drew to a close, ATF's Undercover Branch issued fictitious identification (e.g., []) to Agent Dobyns and his wife. This was intended to provide additional layers of protection to Agent Dobyns and his family. At or around this time, the Undercover Branch took additional steps to enhance Agent Dobyns' security. In the summer of 2003, ATF's Office of Operations Security (OPSEC), another branch of OPRSO, conducted a routine risk assessment to identify whether any ATF personnel associated with the Black Biscuit investigation were in danger as a result of their work on that case. This assessment was preemptive and was not based on the receipt of any particular information involving Agent Dobyns or other ATF personnel.

OPSEC concluded that the safety of Agent Dobyns was at risk and recommended...