Limone v. United States
| Decision Date | 20 June 2011 |
| Docket Number | Civil Action No. 02cv10890-NG |
| Parties | PETER J. LIMONE, et al., Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
RECOVERY OF REASONABLE COSTS AND FEES
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
PETER J. LIMONE, et al., Plaintiffs,
v.
RECOVERY OF REASONABLE COSTS AND FEES
This is the last motion that I must resolve in connection with this Federal Tort Claims Act ("FTCA") case against the United States Government. In this lawsuit, Peter Limone ("Limone"), Enrico "Henry" Tameleo ("Tameleo"), Louis Greco ("Greco"), and Joseph Salvati ("Salvati"), claimed that thirty-nine years ago they were convicted of a crime which they did not commit the murder of Edward "Teddy" Deegan ("Deegan"). Limone, Tameleo, and Greco were sentenced to die in the electric chair, a sentence reduced to life imprisonment when the death penalty was vacated. They accused the United States, specifically, the Federal Bureau of Investigation ("FBI") of framing them for Deegan's murder, by failing to disclose exculpatory documents and information, and then, by covering up FBI misconduct, ensuring their imprisonment over the next three decades. They brought this lawsuit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., on a number of grounds.
A lengthy memorandum and order was issued in July of 2007 awarding the plaintiffs judgment in the amount of$101,750,000.00, which was then appealed. 497 F. Supp. 2d 143 (D. Mass. 2007). The First Circuit affirmed in Limone v. United States, 579 F. 3d 79 (1st Cir. 2009).
Within the appropriate period under the rules, Plaintiffs filed a motion seeking attorneys fees and expenses pursuant to 28 U.S.C. § 2412(b) based on their claim that the United States acted in bad faith in the conduct of this litigation. The government opposed, arguing that there was no bad faith and, in any event, if the so Court found, it should award only those fees and costs traceable to that conduct.
I find that there was bad faith conduct, but not with respect to the government's conduct in toto. While I emphatically rejected the government's substantive positions certain of the defenses it interposed I labeled "absurd" in the light of the First Circuit's decision, I cannot find them to be asserted in bad faith. After all, while the First Circuit Court affirmed this Court's finding of intentional infliction of emotional distress, it agreed with the government with respect to plaintiffs' claim of malicious prosecution. It concluded that the FBI was not responsible for the state murder prosecution that victimized these plaintiffs; the prosecution was attributable to decisions of the state authorities.1
Nevertheless, there was a pattern of bad faith conduct that the First Circuit has not addressed, with which this Court was intimately familiar -- that is the government's conduct in connection with discovery.
This was a document case from start to finish; many of the witnesses were dead. The plaintiffs' case had to be painstakingly pieced together through documents that were not publicly available. Indeed, secrecy -- and secrecy gone awry -- was central to the case. Documents concerning the "Top Echelon Criminal Informant Program" and the abuses committed in its name, including those that were the subject of this lawsuit, had been purposefully withheld, not only from state law enforcement, but other divisions within the FBI. The program did notbecome known to the Department of Justice until 1995, during extraordinary proceedings before Judge Mark Wolf in United States v. Salemme. Limone v. United States, 497 F.Supp. 2d at 153. This was a case about the failure to disclose exculpatory evidence bearing on the innocence of the four plaintiffs, about FBI agents allegedly "hiding the ball," not disclosing critical information that would have exonerated the plaintiffs for nearly forty years. As I noted in my decision:
Indeed that policy [the nondisclosure policy] continued to the present, and affected the very trial of this case. The attorneys representing the government were not permitted access to unredacted documents even though they were obliged to certify that all relevant information had been turned over under Rule 26, Fed. R. Civ. Pro. That charade ended when I ordered that lawyers with an appearance in this case had to have access to all of the information in unredacted form.
Limone v. United States, 497 F.Supp. 2d at 161.
The problem with the government's conduct went beyond mere delay. The government blocked access to the relevant documents -- hiding behind specious procedural arguments, baseless motions to stay and "emergency" motions to defer production, culminating in a frivolous interlocutory appeal. While the government may have had a legitimate concern about protecting informant identities -- what they insisted was their core concern -- that protection was hardly absolute and unreviewable. Roviaro v. United States, 353 U.S. 53 (1957) contemplates a balance between the public interest in protecting the flow of information on the one hand and an individual's right to prepare his or her case, a balance which a judicial officer is to strike based on the facts before her. The defendants, however, until pushed by myriad orders of the Court, prevented the Court from making a considered decision. They would not disclose -- even in camera-- until pressed, why, for example, a deceased informant's forty year old informationdeserved protection and refused to disclose the facts on which these claims of privilege were based. They would have this Court, the parties, the lawyers, the public, simply trust that they had previewed the documents in good faith, and redacted information they simply had to protect.
When, at long last, the Court was on the verge of awarding sanctions against the defendants, there was an extraordinary admission. The lawyers representing the government, who had signed the pleadings during the two years of discovery, who were familiar with the plaintiffs' allegations, who were subject to the discipline of this court, including the disciplinary provisions of Rule 11 and Rule 26(g) Fed. R. Civ. Pro. -- had not been given access to the discovery in its unredacted form at all. See Order to Show Cause, December 12, 2006, document # 494. While rule 26(g), Fed. R. Civ. Pro., requires that every disclosure be signed by "at least one attorney of record" who is supposed to make a reasonable inquiry" that the "disclosure is complete and correct as of the time it is made," trial counsel could not make these representations. Only the general counsel of the FBI was in a position to decide what should or should not be redacted. But the FBI's general counsel refused to enter an appearance in the case. She would not come to court to justify the redaction decisions that had been made, to demonstrate her good faith.
On December 12, 2006, over two years from the first discovery motion, I ordered that the matter be brought to the personal attention of the Director of the FBI, to "address the Court's concern that counsel be given the tools they need to defend these charges, namely access, as officers of the Court, to the documents relevant to the case at bar." And with that Order, the logjam was broken.
Notwithstanding my findings of bad faith, however, I am not able to order an amount of attorneys fees on the record in front of me. The records that the plaintiffs have provided, while complete and voluminous, do not lend themselves to easily identifying which conduct was attributable to the bad faith discovery abuses that I have found. Accordingly I ORDER supplemental briefing on that subject by June 29, 2011, with the government's response due by July 7, 2011.2
I will first describe the statutory framework that applies to the claims and its application to the case at bar, then the facts and the remedy.
Congress passed the Equal Access to Justice Act ("EAJA") to make certain that "private parties will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved in securing vindication of their rights.". Maritime Mgmt, Inc. v. United States, 242 F.3d 1326, 1331 (11th Cir. 2001) (quoting H.R. Rep. No. 99-0120, at 4 (1985)). The statute allows a court to award attorneys' fees to parties that prevail in civil litigation against the government when either the 1) the common law or 2) a statute authorizes such fees. 28 U.S.C. § 2412(b). Courts have recognized the following common law exceptions to the "American Rule" that each party bears his own fees: "common fund," "common benefit," "willful disobedience of a court order," and "bad faith." Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991); Maritime, 242 F.3d at 1331; Lucarelli v. United States, 943 F. Supp....
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