Sierra Vista Hospital, Inc. v. United States, No. 488-78 and 466-79C.

CourtCourt of Federal Claims
Citation639 F.2d 749
Decision Date14 January 1981
PartiesSIERRA VISTA HOSPITAL, INC. et al., v. The UNITED STATES.
Docket NumberNo. 488-78 and 466-79C.

639 F.2d 749

SIERRA VISTA HOSPITAL, INC. et al.,
v.
The UNITED STATES.

Nos. 488-78 and 466-79C.

United States Court of Claims.

January 14, 1981.


Robert A. Klein, Washington, D. C., attorney of record for plaintiff. Weissburg & Aronson, Inc., Washington, D. C., of counsel.

Sandra P. Spooner, Washington, D. C., with whom was Asst. Atty. Gen. Alice Daniel, Washington, D. C., for defendant.

639 F.2d 750

Before FRIEDMAN, Chief Judge, KUNZIG and BENNETT, Judges.

FRIEDMAN, Chief Judge:

Trial Judge C. Murray Bernhardt has certified for interlocutory review, pursuant to Rule 53(c)(2)(i), his order of September 23, 1980, refusing to disqualify the law firm that represents plaintiff in these consolidated cases, and the government has requested such review. The government sought disqualification because three former government lawyers who allegedly had various connections with the case during their government service joined the law firm while the case was pending. Upon consideration of the briefs, without oral argument, we conclude that the trial judge properly refused to disqualify the firm. We therefore grant the request for interlocutory review and affirm the trial judge's order.

I.

A. In these cases the plaintiff challenges the government's denial of reimbursement under the Medicare program for California franchise taxes. The cases began with a suit the plaintiff filed in the United States District Court for the Northern District of California against the Secretary of Health, Education, and Welfare (HEW) in November 1973. The law firm of Weissburg and Aronson, Inc., located in Los Angeles, California, has represented the plaintiff in this litigation from the beginning.

Both parties moved for summary judgment in the district court, which granted the defendant's and denied the plaintiff's motion and dismissed the case. On appeal, however, the Court of Appeals for the Ninth Circuit in April 1979 remanded the case to the district court with directions to transfer it to this court. Sierra-Vista Hospital, Inc. v. Califano, 597 F.2d 200. That transfer case (No. 466-79C) has been consolidated with another case (No. 488-78) which the plaintiff filed in this court in 1978, apparently as a protective measure.

B. Sometime in the late spring or summer of 1979, Weissburg and Aronson opened a Washington office. The staff of that office consisted of three former government lawyers who, according to the government, had had various connections with these cases while working for the government. The facts relating to these lawyers' connections with the cases, as shown by the record before us (which consists largely of uncontradicted affidavits), are as follows:

1. James Pyles became associated with Weissburg and Aronson on August 1, 1979. Prior to that time he had been a lawyer with the Office of the General Counsel of HEW. Another lawyer in that office originally had handled the Sierra Vista case in the district court and had prepared the government's opening brief in the court of appeals. That lawyer left the General Counsel's office before oral argument was scheduled in the court of appeals.

Pyles prepared the government's reply brief in the court of appeals, which discussed only the jurisdiction of the district court over Medicare cases of this type. The United States Attorney's Office had "primary responsibility for handling the case on appeal," and Pyles' participation was limited to the jurisdictional issue and he had "absolutely no involvement in the development or presentation of the government's defense on the merits." Pyles appeared as "of counsel" on the government's reply brief, which the United States Attorney and an Assistant United States Attorney signed; Pyles also signed a motion for permission to exceed the normal page limit for reply briefs, and a supporting affidavit. Pyles sent the brief and motion to the United States Attorney's Office before August 8, 1977, and the brief and motion were submitted to the court on August 22, 1977. The Assistant United States Attorney in charge of the case "had a number of telephone conversations after that time concerning the various Medicare cases that were being decided" with Pyles, although the record does not show whether any of them related to these cases.

2. Galen Powers became a member of Weissburg and Aronson on or about June

639 F.2d 751
16, 1979. When Pyles joined the firm several weeks later, Powers became his supervisor. "At no time," however, had Powers "ever discussed any aspect of this case with Mr. Pyles, nor has Mr. Pyles had access to any of the records, files or documents concerning this litigation."

Prior to joining the firm, Powers had been an Assistant General Counsel at HEW. From 1973 to August 15, 1977, he was in charge of Medicaid matters and Pyles was not under his supervision or control. On August 15, 1977, as a result of a reorganization, Powers became Pyles' supervisor. That was after Pyles had completed his work on the court of appeals reply brief. Powers had

no recollection of ever reviewing the files, documents, or records pertaining to that case, or communicating with the United States Attorney's Office, Mr. Pyles or with anyone else in connection with the litigation. Nor did he have any recollection of ever reviewing any work performed by Mr. Pyles on that case.

3. Arlene Fine became associated with Weissburg and Aronson on June 11, 1979, and left the firm on July 11, 1980. She worked in the Washington office except between November 26, 1979 and February 27, 1980, when she worked in the Los Angeles office. While with the firm she worked on these cases. That work "included a limited review of the file and the filing of a petition pursuant to Court of Claims Rule 181, a motion for consolidation, and an amended petition. She did no work nor conducted any review of the documents concerning the substantive merits of the action."

Prior to joining the firm, Ms. Fine worked in the Civil Division of the Department of Justice. The files of the Department show that the case had been assigned to her but that within two weeks after the petition was filed in this court, the case was reassigned to another lawyer. She did not enter an appearance as counsel of record.

Ms. Fine stated that "to my knowledge and the best of my recollection, I never reviewed any files, conducted any research, generated any correspondence, or communicated with agency staff or...

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14 practice notes
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...the principles announced in AH JU Steel Co., Ltd. v. Armco, Inc., 680 F.2d 751 (CCPA 1982); Sierra Vista Hospital, Inc., v. United States, 639 F.2d 749 (Ct.Cla.1981); Armstrong v. McAlpin, 625 F.2d 433 (2nd Cir. 1980) (en banc) vacated, 449 U.S. 1106 (1981); General Electric Co. v. United S......
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    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...the principles announced in AH JU Steel Co., Ltd. v. Armco, Inc., 680 F.2d 751 (CCPA 1982); Sierra Vista Hospital, Inc., v. United States, 639 F.2d 749 (Ct.Cla.1981); Armstrong v. McAlpin, 625 F.2d 433 (2nd Cir. 1980) (en banc) vacated, 449 U.S. 1106 (1981); General Electric Co. v. United S......
  • U.S. v. Troutman, No. 85-2028
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 13, 1987
    ...Hospital, 689 F.2d 938 (11th Cir.1982); United States v. Smith, 653 F.2d 126 (4th Cir.1981); Sierra Vista Hospital, Inc. v. United States, 639 F.2d 749, 754, 226 Ct.Cl. 223 (1981) (such disqualification appropriate in clear, compelling case), they are reluctant to disqualify a lawyer under ......
  • Brown v. District of Columbia Board of Zoning Adjustment, No. 13670.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 21, 1984
    ...screened from participating and sharing fees in it. 445 A.2d at 617. See Sierra Vista Hospital, Inc. v. United States, 226 Ct.Cl. 223, 639 F.2d 749, 753 (1981) (upheld denial of motion to disqualify law firm where former government attorney at firm, himself disqualified, was entirely screen......
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12 cases
  • U.S. v. Troutman, No. 85-2028
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 13, 1987
    ...Hospital, 689 F.2d 938 (11th Cir.1982); United States v. Smith, 653 F.2d 126 (4th Cir.1981); Sierra Vista Hospital, Inc. v. United States, 639 F.2d 749, 754, 226 Ct.Cl. 223 (1981) (such disqualification appropriate in clear, compelling case), they are reluctant to disqualify a lawyer under ......
  • Brown v. District of Columbia Board of Zoning Adjustment, No. 13670.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 21, 1984
    ...screened from participating and sharing fees in it. 445 A.2d at 617. See Sierra Vista Hospital, Inc. v. United States, 226 Ct.Cl. 223, 639 F.2d 749, 753 (1981) (upheld denial of motion to disqualify law firm where former government attorney at firm, himself disqualified, was entirely screen......
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    ...at the firm and when the "Chinese Wall" in question is a formal, written screening procedure. E.g., Sierra Vista Hospital, Inc. v. U.S., 639 F.2d 749 (Ct.Cl.1981); Armstrong v. McAlpin, 625 F.2d 433 (2d Cir.1980) (en banc); Central Milk Producers Cooperative v. Sentry Food Stores, Inc., 573......
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    ...of professional standards, 621 F.2d at 1002, a concern reflected in our own precedents. Sierra Vista Hospital v. United States, 639 F.2d 749 (Ct.Cl.1981); Kesselhaut v. United States, 555 F.2d 791, 793, 214 Ct.Cl. 124 Accordingly, this court will determine on the appeal whether "the record ......
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