Petition for Writ of Certiorari — Means v. Wortham

Supreme Court, U.S.

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. 931663 APR 21 1994

—_—_—SSSSSE wren ak

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

RANDELL P. MEANS,

Assistant United States Attorney,

in his individual capacity,

Petitioner,

V.

BRENDA CHILCUTT, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

CARTER G. PHILLIPS *

WILLIAM K. KELLEY

SIDLEY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

Co ()1Sێ J ror Pe titioner

April 21, 1994 Counsel of Record

WILSON - EPEsS PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the court of appeals engaged in improper ap-

pellate fact-finding—doing grievous harm to the reputa-

tion of petitioner, an Assistant United States Attorney—

in finding that petitioner “intentionally withheld docu-

ments” and “knowingly engaged in blatant misrepresenta-

tions to the district court about the existence of those

documents,” when the district court, after an evidentiary

hearing, declined to make such findings.

(i)

————— eS

ii

PARTIES TO THE PROCEEDINGS

In addition to the parties named in the caption, re-

spondents include Home Indemnity Company, appellee

below, and the United States of America, appellant below,

which is a respondent under this Court’s Rule 12.4.

TABLE OF CONTENTS

Page

QUESTION PRESENTED , | ie i

PARTIES TO THE PROCEEDINGS ............. - ii

I oo cccscnvvessncsesssoeceetermreneuanatins iv

OPINIONS BELOW detianieienestiiheciacaiidialoene 1

JURISDICTION i dine 2

STATEMENT . 2

REASONS FOR GRANTING THE PETITION 16

CONCLUSION | 27

(ili)

ny

iv

TABLE OF AUTHORITIES

CASES Page

Blue v. Department of the Army, 914 F.2d 525 (4th

Cir. 1990), cert. denied, 499 U.S. 959 (1991)...... 16

Fromson V. Citiplate, Inc., 886 F.2d 1300 (Fed. Cir.

Ri ccaitindntesccecvetecninidinnennniassaisdaal itasethaded das fT 4 18

Icicle Seafoods, Inc. V. Worthington, 475 U.S. 709

(RSIS: Rance mI caesar coad aM BAF Aa com 17

In re Ruffalo, 390 U.S. 544 (1968) —.............. ee 19

Sacher v. United States, 343 U.S. 1 (1952) 0... 24

Singleton v. Wulff, 428 U.S. 106 (1976) .......... 17

Sullivan v. Committee on Admissions & Grievances,

$95 F.2d 964 (D.C. Cir. 1967) .............................. 18

United States v. Best, 939 F.2d 425 (7th Cir.

1991) (en banc), cert. denied, 112 S. Ct. 1243

1 ESSEC en ORR tie For teem Rr Se 17, 18

United States v. Isgro, 974 F.2d 1091 (9th Cir.

1992), cert. denied, 113 S. Ct. 1581 (1993) ........ 24

United States v. Mendoza, 464 U.S. 154 (1984)... 27

United States v. Ofshe, 817 F.2d 1508 (11th Cir.),

cert. denied, 484 U.S. 963 (1987) .........0...0000000.. 25

United States v. Tarricone, No. 1175, 1993 WL

617556 (2d Cir. Apr. 5, 1994) _............................. 18

STATUTES, RULES, AND REGULATIONS

28 U.S.C. § 2401 et seq........... EO eat POTN ar EM eT 3

28 U.S.C. § 2412 ........ LO ee Raat ee Mca SOO eae 15

SEC re ee ee RA

I TNT ces ceorsnietoprriasomensaseisosindieaiy pra? Ae renee 6

In THE

Supreme Court of the United States

OCTOBER TERM, 1993

No.

RANDELL P. MEANS,

Assistant United States Attorney,

in his individual capacity,

. Petitioner,

BRENDA CHILCUTT, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Randell P. Means, in his individual capacity, hereby

petitions for a writ of certiorari to review the opinion and

judgment of the United States Court of Appeals for the

Fifth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-3Qa) is

reported at 4 F.3d 1313. The following orders of the

district court are not reported: the May 26, 1992 order

compelling discovery (App. 31a-34a); the June 2, 1992

order setting the amount of sanctions and ordering peti-

tioner not to seek reimbursement from the Department of

Justice (App. 35a-36a); the June 4, 1992 order sanction-

ing the United States (App. 37a-38a); the June 6, 1992

2

order denying a stay of execution (App. 39a-43a); the

July 1, 1992 order scheduling a preliminary hearing con

cerning possible issuance of a show cause order (App.

44a-52a); and the July 28, 1992 order sanctioning peti-

tioner Randell P. Means (App. 53a-54a). The order of

the court of appeals denying petitioner’s petition for re-

hearing, entered on December 22, 1993, (App. 55a) is

not published. The transcript of the July 28, 1992, hear-

ing is appended hereto (App. 56a-119a).

JURISDICTION

The court of appeals rendered its opinion on October

25, 1993. A petition for rehearing was denied on Decem-

ber 22, 1993. On March i6, 1994, Justice Scalia ex-

tended the time for the filing of a petition for a writ of

certiorari until April 21, 1994. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

STATEMENT

This case presents an extraordinary instance of im-

permissible appellate fact-finding by the court of appeais,

which will result in irreparable harm to the reputation of

an Assistant United States Attorney unless corrected by

this Court. In affirming an order permanently enjoining

petitioner from applying under 28 C.F.R. § 50.15(c)(1)

for reimbursement of an award of discovery costs under

Fed. R. Civ. P. 37(d), the court of appeals repeatedly

resolved factual disputes that the district court—after ob-

serving the witnesses—failed to resolve or resolved con-

trary to the conclusion reached by the court of appeals.

As a result of its improper usurpation of the district

court’s role, the court of appeals decided this case on an

incorrect basis. The legal error in the scope of appellate

review is so manifest, and its conflict with the controlling

standards established by this Court so stark, that this

Court should summarily reverse the judgment of the court

cf appeals and remand the case for further proceedings.

3

1. Proceedings Before the District Court. On October

4, 1988, respondent Brenda Chilcutt ’ fell and was injured

while she was a patron at the River Bend Post Office in

Fort Worth, Texas. She and her workers’ compensation

insurer, respondent Home Indemnity Company, unsuccess-

fully pursued administrative claims with the United States

Postal Service, and, in April 1991, filed suit against the

United States under the Federal Tort Claims Act, 28

U.S.C. § 2401 et seg.2 The action was brought in the

United States District Court for the Northern District of

Texas, and was assigned to United States District Judge

John H. McBryde. Chilcutt alleged that her fall and in-

juries were due to negligence on the part of the United

States in failing to maintain the floor of the post office in

a safe condition, including allowing it to remain wet.

a. Petitioner, Randell P. Means, an Assistant United

States Attorney employed in the Northern District of

Texas, was assigned to defend the case on behalf of the

United States. He has been an AUSA since 1987 and

during that time he has tried more than 20 cases for

the United States. Prior to joining the U.S. Attorney’s

office, petitioner had been a state prosecutor for more

than seven years and had tried more than 50 criminal

cases in state court. During all of that time, with the

exception of this case, he has never been sanctioned by

any court and has never had an ethical complaint lodged

against him. At the time of this litigation, petitioner was

responsible for approximately 100 other cases.

The district court entered a scheduling order setting a

discovery cut-off date of May 8, 1992, and a trial date of

June 8, 1992. Plaintiffs undertook no discovery until

1 Since the outset of this litigation, Brenda Chilcutt was married,

and she has taken the name Brenda Wortham. For the sake of con-

venience, we refer to her as Brenda Chilcutt.

2 The United States, the named defendant below, has not filed a

petition for a writ of certiorari on its own behalf, and is therefore

a respondent in this Court under S. Ct. Rule 12.4.

4

March 24, 1992, when they served a set of interrogatories

and requests for production of documents on the United

States. The government’s responses were due on April 23,

1992, about two weeks before the court-imposed discovery

deadline. On May 19, 1992, after petitioner failed to

respond to the pending discovery request in a timely fash-

ion, plaintiffs filed a motion to compel discovery and for

sanctions under Fed. R. Civ. P. 37. As a sanction, plain-

tiffs scught the imposition of a default judgment.

The district court scheduled a hearing on that motion

for May 22, 1992. Between the May 19 motion and the

May 22 hearing, petitioner produced relevant documents

and served answers to plaintiffs’ interrogatories. Plaintiffs’

counsel, Kelly Robbins, remained dissatisfied with the gov-

ernment’s response to her discovery requests. Robbins

complained that the government had failed to produce all

the requested documents and had given incomplete inter-

rogatory ariswers.

When asked to explain why there had not been timely

compliance with discovery, petitioner stated that it was

due to a “combination” of the Postal Service not having

provided the information and documents quickly enough

and petitioner’s own fault in failing to respond with the

incomplete information he had. Petitioner also explained

that much of the information sought by plaintiffs’ March

24, 1992 discovery requests had effectively been provided

to plaintiffs in a timely fashion when Postal Service in-

vestigator Al Svede was deposed on April 22, both

through Svede’s testimony and in response to a subpoena

duces tecum that he complied with at that time. 5/22/92

Tr. 28-31.

At the conclusion of the May 22 hearing, the district

court ordered the government to produce by no later than

May 27 all the documents requested by plaintiffs. App.

33a.* In addition, the district court ordered petitioner

3In addition, the court ordered petitioner to arrange for plain-

tiffs to depose an independent contractor who was responsible for

5

personally to file an affidavit stating that the documents

he had produced constitute all the responsive documents

within the government’s possession and control. Jd. at

33a-34a. The court also ordered petitioner to certify that

he had made inquiries of Postal Service employees and

agents that were calculated to disclose the existence of

all documents responsive to the plaintiffs’ document re-

quests. Id. at 34a.

Turning to plaintiffs’ motion for sanctions, the court

deferred ruling on the request for a default judgment.

Id. at 35a. Due to “the government’s failure to respond

to discovery,” however, the court ordered petitioner to pay

the costs and attorney’s fees incurred by plaintiffs in con-

nection with the motion to compel, as well as with regard

to the deposition of the independent contractor. 5/22/92

Tr. 38. The court expressly relied only on Rule 37(d).

Although the court made no findings concerning the rela-

tive fault of the Postal Service and petitioner with respect

to the discovery lapses, the court ordered the plaintiffs’

expenses reimbursed and that they be paid by petitioner

personally, and not by the government. The sole rationale

offered by the court—at that time or any other point

throughout the litigation—for that part of its order was

its conclusion “that this sort of thing should [not] be

borne by the taxpayers.” Jd.* Because plaintiffs’ counsel,

the care and maintenance of the floors at the River Bend Post Office.

App. 34a. Petitioner had not interviewed the independent contrac-

tor prior to answering plaintiffs’ interrogatories, and had therefore

responded to certain of plaintiffs’ interrogatories by stating that

information within the contractor’s possesson was not yet known.

Although the independent contractor was not an employee of the

Postal Service, and was therefore equally accessible to plaintiffs’

counsel, the court concluded that it was petitioner’s responsibility

to interview her before responding to plaintiffs’ interrogatories.

See 5/22/92 Tr. 10-16.

4On June 6, 1992, the court entered an opinion and order denying

the government’s motion for a stay of the order that petitioner pay

the sanctions personally, and in that opinion the court reiterated—

6

Robbins, had not had time fully to digest the discovery

responses provided by the government to that point, the

court invited her to file a supplemental motion to compel

or for sanctions if she remained dissatisfied with the gov-

ernment’s production. /d. at 36.° On May 27, the gov-

ernment responded further to plaintiffs’ discovery requests.

In addition, petitioner filed an affidavit certifying that he

had produced all the responsive documents, and had made

an investigation calculated to lead to the discovery of all

such documents within the government’s custody or con-

trol.

On June 1, 1992, the court held a hearing to set the

amount of the fees that it awarded to plaintiffs at the

May 22 hearing. The court concluded that $2500 was

appropriate, and ordered petitioner to pay that amount to

plaintiffs’ counsel. The court also ordered petitioner to

execute an affidavit stating that the payment was “being

made with his personal funds and that he has not sought,

and will not seek, receive or accept, reimbursement from

the United States government for the payment he makes.”

6/1/92 Tr. 23.° Finally, the court noted that it was “hold-

ing in abeyance the matter of sanctions to impose on the

defendant.” /d.

b. Two documents are central to an understanding of

the appellate fact findings in this case. The first is a log

of accidents at post offices maintained by Svede, the acci-

but did expand upon—its taxpayer-protective rationale for that part

of its sanctions order. See App. 4la-43a.

5 The district court’s oral rulings were memorialized in an order

dated May 26, 1992. App. 33a.

® Pursuant to Department of Justice policy, see 28 C.F.R. § 50.15,

petitioner sought and obtained government counsel to represent him

at the June 1 hearing. The district court expressed displeasure at

the fact that petitioner was represented by government counsel, and

instructed the Department of Justice to file a statement detailing

the costs to the government of providing petitioner with counsel.

6/1/92 Tr. 12-13, 15-16. The government provided such a state-

ment, but the court took no further action on the point.

7

dent investigator employed by the Postal Service who was

involved in investigating Chilcutt’s accident. A copy of

that log, which in its original form consisted of two over-

sized pages, is reproduced in the appendix for the Court's

convenience. App. 120a. The second is a Form 1769,

which is an accident report form that plaintiff Chilcutt

claimed that she had filled out after her accident and

submitted to Iona Smith, a postal employee at the River

Bend Post Office. Smith testified specifically that she

never gave Chilcutt any Form 1769 to fill out and that

Smith never received such a form from her. 6/4/92 Tr.

85-86.

On June 1, 1992, plaintiffs, believing that the Postal

Service possessed the Form 1769 and accident logs refer-

ring to the accident in question, filed a supplemental mo-

tion to compel production of these documents and other

discovery materials and for sanctions. On June 3, peti-

tioner filed a lengthy and detailed response to this motion.

Among other arguments, the response denied the exist-

ence of the Form 1769 and, referring to plaintiffs’ “com-

plain{t] that Al Svede has not produced his own log,”

stated that “[d]efendant has certified, based upon the an-

swer provided by Al Svede, that there is no record of any

complaint of the type sought by Plaintiff's [document]

request.” App. 7a n.11 (quoting Defendant’s Response:

Plaintiff's Supplemental Motion for Sanctions). On June

4, the district court held a hearing on the motions. AIl-

though the district court rejected many of plaintiffs’ com-

plaints as “nit-picking,” the court had questions about the

government's failure to produce Svede’s accident log and

its failure to produce a copy of Chilcutt’s Form 1769.

Id. at 31, 36-37, 39, 50-51, 60-61.

At the hearing, during the morning of June 4, peti-

tioner represented to the district court that the Postal

Service’s accident logs contained no reference to Chilcutt’s

fall, nor to any other accidents at the River Bend Post

Office. That representation was based on repeated con-

versations petitioner had with Svede, who was designated

8

as the representative of the United States in the litigation.

The only accident logs that had been provided to peti-

tioner were Safety Office logs maintained by Robert

Kunkel, another Postal Service employee. Petitioner had

personally inspected the Kunkel logs, and determined that

they did not refer to the Chilcutt fall or to any other acci-

dent at the River Bend Post Office. During the morning

part of the June 4 hearing, all of petitioner’s references to

“logs” referred to Kunkel’s. App. 65a-68a, 76a-78a, 82a-

83a, 87a-88a. At that point, petitioner was unaware of

a separate log maintained by Svede. See infra p. 12.

Because petitioner believed that the Kunkel logs were the

only accident logs in existence and because he had ex-

amined those logs and verified that they contained no

information responsive to plaintiffs’ document requests,

petitioner stated to the court unequivocally that the gov-

ernment had fully complied with its discovery obligation.

Portions of petitioners’ representations to the trial court

on the morning of June 4 are quoted at length in footnote

12 of the court of appeals’ opinion (App. 7a), and

formed the basis for that court’s mistaken factual finding

that petitioner must have been referring to, and must have

personally reviewed, the Svede logs in making what the

court concluded were misrepresentations to the district

court. After observing that “Means stated that he had

checked the log in question,” the court of appeals quoted

his statement that “there is no record in those logs relating

to any accident or complaint on the premises of River

Bend for the time—”, at which point the district court

interrupted petitioner. Continuing, the court of appeals

quoted petitioner (App. 8a (italics and brackets supplied

by court of appeals) ):

I am stating under oath before the court as an officer

of the court . . . that a search of that log has been

conducted, and no accident has been identified to the

time periods in that log—and I believe it's 1987

through the present—for the premises, River Bend

{post office|, for both employee accidents or com-

plaints or customers accidents.

9

The contents of the Svede log (App. 120a), however,

reveal that it covers only accidents occurring between

“10/7/88” through “9/7/89.” In fact, only the Kunkel

logs—and not the Svede logs—cover accidents reported

“for the time period 1987 through the present.” R. 436.

At the end of the morning hearing on June 4, the dis-

trict court decided to hear testimony directly from govern-

ment witnesses regarding the existence of the disputed

documents, and ordered petitioner to produce Jona Smith

and Al Svede to testify concerning these documents after

the lunch break. Svede was contacted in his office at

work and was told to come to court and to bring any

documents he had. When Svede arrived he brought with

him a second log of post office accidents that had been in

a filing cabinet in his office. During the lunch break on

June 4 was the first time petitioner became aware that

Svede had kept a separate accident log. App. 71a-73a,

81a-83a.’

At the June 4 hearing, Svede informed the district court

that he had brought with him his own accident log, which

listed the Chilcutt accident (although it contained no other

reports of accidents at River Bend). App. 120a. Svede

also initially testified that he had seen a copy of Chilcutt’s

Form 1769, but could not locate it. 6/4/92 Tr. 93.

Later during the same hearing, Svede testified that he was

unsure whether he had ever seen the form and, in any

event, could not now produce it. /d. at 100. lona Smith

testified that she never gave Chilcutt any Form 1769 and

7The district court was skeptical of this fact, because Svede

had made off-hand references to “my log” during his deposition.

Petitioner believed, however, “based upon the answer provided by

Al Svede,” as stated in the aforementioned June 3 response to the

sanctions motion, that there was no log containing a “record of any

faccident] complaint of the type sought by Plaintiff's request.”

R. 436. He also believed that there was only one set of accident

logs maintained by the Posta! Service Safety Office—the Kunkel

logs—and that Svede’s statements were merely his references as

a postal employee to that set of logs.

10

that Chilcutt mever turned in a Form 1769 to her. /d. at

85-86.

After all the testimony was concluded, the court asked

petitioner why the Svede logs had not previously been

produced. According to the court of appeals, “Mr. Means

merely asserted that he did not believe that the log was

covered by the requests for production.” App. 9a n.14.

In fact, the transcript reveals the following initial re-

sponse: “It is not covered by any document production

request or subpoena duces tecum. The search that was

conducted—” whereupon the district court interrupted (as

shown by the dash) and stated “Okay. You have an-

swered it.” 6 492 Tr. 105. In addition, after conceding

the responsiveness of the log during closing argument,

petitioner twice unsuccessfully began to explain why the

failure to produce it was not intentional. The first time,

he began referring to Svede’s deposition, whereupon the

court stopped him (as again revealed by a dash in the

transcript) and admonished him to “stick within the

record,” id. at 143, of the court hearings, of which the

deposition had not been made a part. Petitioner later

tried to explain that the document was “not withheld as

a result of any trickery or improper motive,” soon after

which the Court stopped him again (as a dash in the

transcript again reveals) and said “Okay. You have run

out of time.” Jd. at 144.

At the close of the hearing, the court concluded that

sanctions against the United States were warranted. That

decision was based on two factors. First, the court stressed

the issue of the timing of the government’s responses, con-

cluding that the “plaintiffs’ ability to prepare for trial has

been seriously disrupted because of the time that’s had to

be devoted by plaintiffs’ counsel to matters related to the

failure of defendant to timely answer the interrogatories

and timely respond to the requests for production.” /d.

at 147. Second, the court concluded that “the government

failed to obey” its May 26 order in failing to produce

Svede’s accident log. Id. at 148.

11

Based on these findings, the court concluded that sanc-

tions under Fed. R. Civ. P. 37(d) were appropriate, and

that Fed. R. Civ. P. 37(b) would also support sanctions.

Accordingly, the court ordered conclusive findings of “des-

ignated facts” that established liability on the part of the

United States, leaving only damages issues and affirmative

defenses, if any, for resolution at trial." App. 37a-38a.

Trial on damages proceeded on June 9. The following

day, the district court entered an order awarding damages

totalling $892,567 and entered a final judgment.

c. On July 1, roughly 20 days after entry of final judg-

ment, the district court, not yet aware of the existence of

the Kunkel logs, entered an order indicating that it was

concerned about possible misrepresentations petitioner

might have made to the court regarding his knowledge of

the existence of the Svede logs. The order indicated that

the court was contemplating potential disciplinary actions

against petitioner, including criminal contempt proceed-

ings, disbarment, or sanctions under Fed. R. Civ. P. 11.

Id. at 44a. The court indicated that, in lieu of a formal

“show cause” hearing, it would give petitioner an oppor-

tunity to address these issues at a “preliminary hearing.”

Id. at 52a.

At this pivotal July 28 hearing, both petitioner, repre-

sented by private counsel, and Svede testified that the

* The Department of Justice, on behalf of the United States and

petitioner, filed a notice of appeal and sought emergency relief

from the court of appeals after the conclusion of the June 4 hear-

ing. This appeal concerned only the individual sanctions against

petitioner and was prompted by the concern that execution by

petitioner of the affidavit certifying that he had not, and would

not, seek reimbursement of the $2500 sanction might preclude later

appellate review. The court of appeals denied the relief, ruling

that this order was not collaterally appealable. The court indicated,

however, that “[e]xecution of the affidavit required . . . would not

prevent AUSA Means or the government from challenging this

rather harsh sanction order at the appropriate time.” Order (5th

Cir. filed June 8, 1992).

12

failure to produce the “Svede logs” had been the result of

misunderstandings and not any intent to withhold relevant

information. /d. at 71a-73a, 8la-82a. As both petitioner

and Svede testified, the genesis of the problem was that

there were two separate sets of logs—the Safety Office log

maintained by Kunkel and the “Non-Vehicle Accident

Register” maintained by Svede. Although petitioner had

made numerous and exhaustive efforts to elicit all relevant

information from Postal Service employees, Svede had

neglected to mention the log until immediately before the

afternoon hearing on June 4 when Svede arrived at the

courthouse with the log. /d. at 66a-67a, 7la-72a, 81la-

82a, 90a-9la. The Safety Office logs maintained by Kunkel

contained no entries regarding the River Bend Post Office.

Id. at 71a, 73a, 82a, 90a. Because, until the afternoon

of June 4, petitioner believed the Kunkel logs to be the

only logs in existence, he had stated to plaintiffs and to

the court that morning that there were no logs responsive

to the discovery requests, which were explicitly limited to

accidents at the particular post office where Chilcutt was

injured.

Svede confirmed that he failed to inform petitioner of

the existence of the log. He explained that the log had

become “rolled up in the file cabinet,” and that he simply

forgot about it. /d. at 64a. Svede explained that he kept

a log of accident reports only as an index for use in locat-

ing information about an incident in the course of his

duties. Because the Chilcutt file was already known to

him, it never crossed his mind to check his logs to see if

it was included on his indexes. It did not come “to mind”

even when petitioner specifically asked about any logs in

his possession until he made a final search in response to

the court’s order to appear to testify. Jd. at 80a-81a.

Plaintiffs’ counsel argued that Svede’s statement in his

deposition referring to “my log,” and plaintiffs’ discovery

request, should have alerted petitioner to the existence of

a separate Svede log. Petitioner explained, however, that

13

he understood those references solely in terms of Kunkel’s

logs. Id. at 83a-84a, 87a-88a. That was a reasonable

assumption in light of Svede’s testimony that Kunkel’s logs

were the only ones Svede had identified for petitioner.

Id. at 71a-75a.

The district court stated at the close of the hearing that

“Mr. Svede is basically being honest.” Jd. at 114a. Al-

though the district court was openly skeptical that peti-

tioner’s actions were inadvertent, it nevertheless expressly

held that it would give petitioner the “benefit of the doubt”

and not pursue proceedings that could lead to criminal

contempt charges or disciplinary action. Id. at 116a.

That conclusion made sense because the personal accounts

of petitioner and Svede concerning the events were com-

pletely consistent and thus it would be impossible to con-

clude that Svede was being truthful but petitioner was not.

After the hearing of July 28, the court entered a final

order resolving the ethical/contempt charges intimated in

the July 1 order. App. 53a-54a. The court stated that

“whether the conduct was intentional or grossly negligent,

entry of the following order would be appropriate,” and

ordered petitioner to attend 15 hours of ethics classes and

pay plaintiffs’ counsel $625 to compensate her for pre-

paring for and attending the July 28 hearing, both at his

own, and not government’s, expense. /d. See also id. at

40a, 117a-118a. .

Petitioner, in his capacity as the trial attorney, recom-

mended appeal from the judgment against the United

States. He also requested that the Department of Justice

appeal on his behalf the court’s order not to seek reim-

bursement of the monetary sanctions under 28 C.F.R.

§ 50.15(c) (1).

2. Proceedings Before the Court of Appeals. Both the

United States and petitioner appealed from the final

judgment and all orders of the district court and both

were represented by the Department of Justice. Relying

14

upon the post-trial July 28 hearing and the express deci-

sion of the district court not to pursue a formal show

cause hearing, the government argued that the lack of a

finding of willful misconduct on the part of petitioner re-

quired the reversal of both the sanction against the United

States and the injunction against reimbursement imposed

upon petitioner. The government argued that, absent will-

fui misconduct by its attorney, the court’s decision to

prevent reimbursement was an abuse of discretion. It fur-

ther argued that, under the circumstances, the injunction

constituted an unwarranted interference with the Executive

Branch’s conduct of litigation and its right to insulate its

employees from liability incurred in the good faith per-

formance of their duties, in violation of basic separation

of powers principles.

The court of appeals affirmed the district court, but on

a fundamentally different theory of the case. With respect

to the government, the court of appeals ignored the district

court’s rationale for imposing the sanctions, which was the

government’s failure to respond timely to plaintiffs’ dis-

covery requests, 6/4/92 Tr. 146, 147, and its “fail[ure]

to obey th[e] order” compelling discovery. J/d. at 148.

Instead, the court of appeals went beyond the findings of

the district court, stating: “Because we conclude that the

Government indeed flagrantly and willfully disregarded

its discovery obligations and the district court’s order, we

need not decide what lesser standard of behavior would

have justified the type of sanction ordered ... .” App.

17a n.23.

The court made no effort to conceal the true nature

of its undertaking on this issue. In the absence of

findings of fact by the district court on this issue, the

court of appeals expressly observed that its conclusion

was based on “the credible evidence in the record of this

case... .” Id. at 17a. With respect to the injunction

against petitioner, the court of appeals similarly ignored

the district court’s only stated ground for prohibiting re-

15

imbursement, viz., that taxpayers should not pay for the

cost of a motion to compel discovery from the govern-

ment. Based on its prior finding of willful misconduct

with respect to the sanctions against the government, and

recharacterizing the district court’s orders sanctioning peti-

tioner as designed to “punish Mr. Means for his flagrant

disregard of his discovery obligations,” the court of ap-

peals held that the sanction imposed upon petitioner by

the district court was appropriate. Jd. at 18a. As for

the separation of powers argument, the court of appeals

declared that in a case of willful misconduct it would

violate separation of powers principles to “restrict a dis-

trict court’s power to fashion appropriate sanctions, sim-

ply because the transgressor is a member of the executive

or legislative branch.” Id. at 27a (emphasis omitted).

In response to the panel’s opinion, the Department of

Justice filed a petition for rehearing (which is reproduced

in the appendix to this petition (id. at 121la-133a)) on

behalf of the United States and petitioner in which it

argued that the panel “has seriously misapprehended some

of the pivotal facts of this case.” Jd. at 12la-122a. The

petition then catalogued the factual errors and explained

in detail precisely how the record demonstrably diverged

from the panel’s conclusions. The petition was denied

without comment. /d. at 55a.

® There seems little doubt that the court of appeals’ perception

of the record significantly influenced its decision. Not only was the

court increasingly inflammatory throughout its opinion in its char-

acterization of petitioner’s conduct, but the court also ordered the

government to pay “all costs and attorney’s fees” for the appeal to

the appellees. App. 29a. The court stated no basis or justification

for imposing that order. Such an extraordinary order certainly

could not have been justified on the basis of the legal issues actually

presented on appeal, as opposed to the misconduct issue decided by

that court. See id. at 17a-18a. Moreover, 28 U.S.C. § 2412 expressly

excludes Federal Tort Claims Act cases from attorney’s fees awards

even where the Government’s position is not “substantially justified.”

16

REASONS FOR GRANTING THE PETITION

This is not an ordinary petition for certiorari. Peti-

tioner is an Assistant United States Attorney whose appeal

raised a fairly straightforward legal issue of whether the

district court had the authority to bar him from seeking

reimbursement, pursuant to Department of Justice policy,

of discovery expenses he was ordered to pay pursuant to

Fed. R. Civ. P. 37(d). The appeal was authorized by

the Solicitor General presumably because the issue is one

of some recurring significance and because there is appel-

late authority for the proposition that courts should not

intrude upon the attorney-client relationship by interfering

with their arrangements regarding the payment of mone-

tary sanctions. See Blue v. Department of the Army, 914

F.2d 525, 549 (4th Cir. 1990), cert. denied, 499 U.S. 959

(1991). The United States also had a perfectly respect-

able legal argument that, at Iecast absent willful misbe-

havior, separation of powers concerns should limit a dis-

trict court’s discretion to intrude into the relationship

between a government attorney and the Department of

Justice. Neither the government nor petitioner could rea-

sonably have anticipated, however, that petitioner’s pro-

fessional reputation would be irreparably harmed by an

appellate court making findings of fact that not only were

not made by the district court, but also partly contradicted

the ultimate findings of the district court without any

suggestion that the district court’s view was clearly errone-

10In Blue, the Fourth Circuit disapproved a district court’s in-

junction, coupled with a Rule 11 monetary sanction, barring an

attorney employed by the NAACP, which had provided counsel for

the plaintiff’s case, from seeking reimbursement from the NAACP.

Petitioner’s case for why the courts ought not to interfere with the

attorney-client relationship is, if anything, stronger than was the

case in Blue. Petitioner is not just an attorney enjoined from seek-

ing reimbursement from his client, but rather is a government

employee enjoined from utilizing established procedures for seek-

ing indemnification for liability incurred in the good faith perform-

ance of his duties.

17

ous. See Icicle Seafoods, Inc. vy. Worthington, 475 U.S.

709, 714 (1986).

To be sure, this Court ordinarily does not sit to review

errors committed by courts of appeals, and petitioner recog-

nizes that the Court routinely denies certiorari when the

only argument is that the decision below conflicts with a

decision of this Court. But the problem posed by the

court of appeals’ decision in this case is of such profound

importance both to the individual attorney involved and

to United States government attorneys in general, and

the court of appeals’ departure from established proce-

dural norms was so egregious, that the Court should depart

from its usual approach and correct this error summarily.

1. There can be no question that the court of appeals

committed a grevious error by assuming the role of fact-

finder in this case. It is axiomatic that appellate courts

should not make factual findings de novo. This Court

recognized the principle most recently in /cicle Seafoods,

Inc. Vv. Worthington, 475 U.S. at 713-14. There, the Court

vacated the judgment of the court of appeals with the

plain observation that “it should not simply have made

factual findings on its own.” Jd. at 714. Indeed, appellate

fact finding may well exceed the jurisdiction conferred by

28 U.S.C. § 1291, covering “appeals from all final deci-

sions of the district courts.” See also Singleton v. Wulff,

428 U.S. 106, 119-20 (1976). The district court here

entered no “decision” finding that petitioner knew of the

Svede log and no conclusion that he willfully concealed

evidence, lied, or was contumacious.

Moreover, there are recognized risks inherent in appel-

late fact-finding. See United States v. Best, 939 F.2d 425,

431-32 (7th Cir. 1991) (en banc), cert. denied, 112 S. Ct.

1243 (1992). In Best, the Seventh Circuit en banc noted

that the panel that originally decided the appeal had en-

gaged in unwarranted fact-finding in concluding that an

Assistant United States Attorney was guilty of miscon-

duct. That finding was vacated, with the observation by

18

the en banc court that “we should not perform that [fact-

finding] task in [the district court’s] stead.” Jd. at 432

n.3. See also United States v. Tarricone, No. 1175, 1993

WL 617556 (2d Cir. Apr. 5, 1994), (vacating panel’s

previous prosecutorial misconduct findings and remanding

issue to district court). In sum, the proposition is un-

assailable that a court of appeals exceeds its authority by

affirming a judgment based on factual findings not made

by the district court.

2. This case was litigated in the court of appeals on

the reasonable assumption that it was not a case involving

counsel’s willful misconduct, because the district court had

expressly refused to find willful misconduct on the part of

petitioner. Indeed, even plaintiffs’ counsel, in interpreting

the trial judge’s references to “government” withholding

of the Svede log, argued that the district court found that

“calculated withholding of documents” was undertaken by

“Al Svede/Robert Kunkel/Iona Smith.” Brief for the Ap-

pellees at 7 (Sth Cir. filed Jan. 25, 1993). Plaintiffs did

not argue that petitioner was involved in any willful mis-

conduct." Thus, even at the reply brief stage in the court

11 Appellees below did argue that the sanction against the United

States—the conclusive findings establishing liability—-was justified

by the willful misconduct of the government in general. But that

argument was based on the failure of the postal employees to

provide information to petitioner so that it could be supplied to the

plaintiffs. That issue is not before this Court.

Appellees below also argued that petitioner failed to exercise

“diligence” in complying with discovery deadlines. Petitioner does

not quarrel with that characterization. He readily admits that he

erred badly in failing to attend to discovery deadlines, and at least

in not seeking an enlargement of time. For this reason he has not

challenged the basic sanction imposed upon him. But he does chal-

lenge the reimbursement injunction because it provides him with

a concrete injury that allows him to challenge the Fifth Circuit's

injury to his reputation. See Sullivan v. Committee on Admiezsions

& Grievances, 395 F.2d 954 (D.C. Cir. 1967) (appeal of misconduct

determination by grievance committee, imposing no sanction due to

first-impression nature of case) ; Fromson Vv. Citiplate, Inc., 886 F.2d

1300, 1304 (Fed. Cir. 1989) (appeal allowed in civil action where

aie ay

19

of appeals, petitioner had no reasonable basis for antici-

pating that the court of appeals would summarily con-

clude that he engaged in reprehensible misconduct. This

was not the regular procedure to which an attorney ac-

cused of misconduct is ordinarily entitled. See In re

Ruffalo, 390 U.S. 544 (1968).

In addition to being procedurally infirm, the court of

appeals’ factual findings are not supported by the district

court record. The district court failed to make a finding

of intentional wrongdoing, and instead gave petitioner

“the benefit of the doubt.” App. 116a. The district court,

unlike the panel below, had imposed the sanction against

petitioner on the theory that he had not acted properly in

response to his discovery obligations and that taxpayers

should not pay for his mistakes. /d. at 40a. If the court

of appeals had simply affirmed on those grounds, peti-

tioner would disagree, but would not stand accused and

summarily convicted of egregious misconduct.

Rather than reviewing the case based upon the factual

findings of the district court, however, the court of appeals

undertook its own review of what “the credible evidence

in the record of this case reveals” and then excoriated peti-

tioner for “intentionally withh[olding] documents” and

making “blatant misrepresentations to the district court.”

Id. at 17a-18a. Those factual observations are both in-

correct and inflammatory. What is more, the district

court—which had the opportunity to view the demeanor

of the witnesses and petitioner first-hand—declined to

make such findings. Finally, the court of appeals ex-

pressly questioned Svede’s credibility (App. 19a) in the

reputation damaged). If this Court corrects the court of appeals’

error in engaging in appellate fact-finding, on remand petitioner will

have an opportunity to have the propriety of the no-reimbursement

injunction decided on the terms that formed the basis for the dis-

trict court’s decision—that the taxpayers should not pay for the

mistake of a public servant handling a case load that exceeded

100 cases.

20

face of the district court’s finding that Svede was “basically

being honest.” /d. at 114a. It bears repeating that both

Svede and petitioner testified unequivocally that Svede

never told petitioner that his logs existed—despite repeated

inquiries by petitioner whether all relevant documents had

been located and produced—until the lunch break at the

June 4 hearing. The district court expressly credited

Svede’s testimony, and it is simply impossible to conclude

that Svede was not lying, but petitioner was.

Treading where the district court declined to go, the

court of appeals committed precisely the kind of mistake

that justifies the absolute rule against appellate fact-find-

ing. The court of appeals utterly failed to recognize the

confusion that existed between the Svede logs and the

Kurkel logs—an ironic mistake in light of the fact that

the reason the Svede logs were not initially produced was

petitioner’s original lack of knowledge that there were

two sets of logs. The court of appeals stated, for example,

that “[d]juring that hearing, Mr. Means again claimed

that although Mr. Svede possessed an accident log, it was

not covered by the plaintiffs’ requests for production.”

Id. at 7a & n.12. The transcript passage that the court

quotes, however, was from the hearing in the morning of

June 4, where petitioner was describing the Kunkel log—

the only log of which he was aware—not the Svede log.

See supra pp. 7-8.”

Similarly, the court made an outright mistake in its

description of the content of the Svede log, which perhaps

12 To be sure, petitioner failed adequately at the afternoon hear-

ing of June 4 to explain the problem when he initially stated that

the log was not responsive, so that the failure to have produced it

would have been immaterial. Petitioner’s response, however, was

in part due to his desire to avoid embarrassment to Svede and to

protect his client, the United States, from being sanctioned for

Svede’s actions. Moreover, as shown above (supra pp. 9-10), on

three separate occasions during that hearing, petitioner attempted

to explain that he had previously been completely unaware oi the

Svede logs, but the district court cut him off brusquely. 6/4/92

Tr. 140, 143, 144.

21

explains the court’s vehement rhetoric. The court of ap-

peals stated that “the concealed log proved that numerous

other customers haa likewise fallen at the River Bend

Post Office,” and that “[tjhis log apparently contained

information about remedial actions taken by the USPS

in response to Ms. [Chilcutt’s] accident, as well as infor-

mation on other accidents which occurred at the River

Bead location.” App. 16a & n.21; id. at 5a & n.6. These

statements are completely and demonstrably wrong. The

Svede log is reproduced in its entirety in the appendix

(id. at 120a) and even a cursory inspection of the docu-

ment shows that it contains no other River Bend entries

and it says nothing about remedial actions. It is simply

inexcusable that the panel refused to acknowledge its er-

ror—at the cost of petitioner’s professional reputation—

when the Department of Justice demonstrated the facts in

a respectful and measured petition for rehearing.

Moreover, if the court of appeals had examined the

logs, it would have been plain to the court that there was

never any intentional misconduct by petitioner (or any-

one else). No rational person would risk serious sanc-

tion by withholding this document—especially in view of

the district court’s obvious pique at the shortcomings in

the government’s discovery performance in the case—

while at the same time disclosing hundreds of other docu-

ments that were at least as relevant and presumably more

damaging to the government’s case. This is not a case

where a “smoking gun” document has been concealed.”

13 The court of appeals also found that “the same contractor

cleaned all of the post offices in the Fort Worth area...” (App. 4a

n.5) which, if true, might make the Svede log marginally more

important. But as the petition for rehearing filed by the United

States in the court of appeals makes plain, “the district court made

no such finding, and indeed there is no evidence in the record that

would bear out such a finding.” Jd. at 125a. The government also

pointed out that the cleaning contractor worked at none of the

other sites mentioned in the Svede log. Jd. at 125a-26a. Again,

the panel simply chose not to correct its manifest factual error.

22

This is a case where an innocuous document was not dis-

closed in timely fashion. The lack of timely production

may justify a sanction under Fed. R. Civ. P. 37(d), but

it does not justify interfering with a government lawyer’s

right, pursuant to Department of Justice policy, to seek

reimbursement of the sanction, and it certainly does not

justify pillorying an Assistant United States Attorney

with an otherwise unblemished professional record.

Finally, the court of appeals went awry in relying upon

the nonproduction of the supposed Form 1769 as a fur-

ther instance of misconduct. /d. at 9a & n.13. As noted

above, the testimony presented on the issue whether such

a form existed was directly in conflict, and the district

court not only declined to make express findings on this

point, but also did not even mention it in its discussion

as to why sanctions were appropriate.

The court of appeals addressed this factual issue en-

tirely on its own, and rested its conclusion exclusively on

one portion of Mr. Svede’s testimony. Characterizing the

government’s argument, even on appeal, that the form did

not exist as “quixotic,” the court nonetheless felt free

completely to ignore the testimony of the responsible fed-

eral employee, Iona Smith, that no such form was created,

and it ignored Svede’s own subsequent statements that

cast doubt on his initial recollection. Unquestionably, a

district court that observed the testimony of Svede and

Smith might be in a position to reach that conclusion, but

a court of appeals plainly is not entitled to resolve that

issue based upon credibility judgments made on a limited

portion of the cold paper record. 7d. at 17a. This was

manifestly improper. Moreover, even if Smith were mis-

taken and even if Svede did at one time see a Form 1769

filled out by Chilcutt, there is no evidence in the record

even hinting that petitioner had any knowledge of the

existence of such a form. The court of appeals nonethe-

less blithely stated that “Mr. Means presented no explana-

tion for his misrepresentation” regarding Form 1769. Id.

at 9a n.13.

Ne eee Le

23

3. The court of appeals committed a profound error

in substituting its own fact-finding for that of the district

court. That decision cannot be squared with Icicle Sea-

foods or with United States v. Best. But petitioner recog-

nizes that this is not the kind of a case that traditionally

warrants plenary review by this Court. Certainly the error

in this case is not the type that this Court grants certio-

rari to hear and decide on a plenary basis. Rather, the

decision below embodies the kind of error that is so

manifest that it should be corrected summarily. Given

the immediate and dramatic effect of this error on peti-

tioner and its far-reaching effects on government attor-

neys, the error below deserves correction. Because this

Court is the only forum in which that error can be cor-

rected, the Court should grant the petition, summarily

vacate the judgment and remand for further proceedings.”

With respect to the immediate injury, the harm to peti-

tioner’s reputation if the court of appeals’ opinion stands

as the final word is inestimable and irreparable. As one

court of appeals observed, “published opinions chastising

[counsel] by name” constitute a “serious sanction.”

14 By substituting new facts for the reasoning of the district

court, the court of appeals avoided deciding the difficult issue

whether it is an abuse of discretion for a district court to interfere

with the Executive Branch’s litigation decisions, at least absent

willful misconduct by the government’s attorney. On remand, the

court of appeals would be free to uphold the sanction on the theory

advanced by the district court that taxpayers should not pay for

government lawyer mistakes. Of course, it could reverse the district

court’s holding as well. Alternatively, the court of appeals could

remand to the district court to clarify whether that court would

make a finding of willful misconduct to uphold the injunction

against reimbursement on that basis. If the former, then petition-

er’s professional reputation will have been restored; if the latter,

then petitioner will have an opportunity to prove before a trier of

fact that his error was not intentional. See infra p. 24.

15 This is not to endorse that approach to sanctioning counsel.

To the contrary, beyond monetary sanctions for procedural viola-

tions, attorney discipline is best conducted under procedural safe-

guards established for that purpose.

24

United States v. Isgro, 974 F.2d 1091, 1099 (9th Cir.

1992), cert. denied, 113 S. Ct. 1581 (1993). Petitioner

stands convicted of a flagrant violation of his professional

responsibilities, but has never been given any meaningful

opportunity to present his side of the story—apart from

the July 28 hearing, after which the district court entered

an order disposing of the matter while expressly declining

to resolve the question of intentional misconduct. App.

53a-54a. This is because the court of appeals committed

its factual errors based on its own evaluation of the record,

which was different from the evaluation of the district

court, of the government as appellant, and even of the

appellees. No one had found or argued that petitioner

acted willfully. For the court of appeals to make such a

finding and to vilify petitioner under these circumstances

is fundamentally unfair.

It is this process that provides the compelling reason

why this Court must act. Appellate fact-finding deprives

the injured litigant of the opportunity to have an appeal

as of right, which otherwise is guaranteed by 28 U.S.C.

§ 1292. If the appellate court (as the panel did here)

finds its own facts to support the judgment of the district

court, then the district court proceeding is rendered super-

fluous. The decision of the court below is fundamentally

at odds with this Court’s analysis in Sacher v. United

States, 343 U.S. 1, 12-13 (1952), that “[t]he profession

knows that no lawyer is at the mercy of a single federal

trial judge . . . before punishment takes effect he may

have an appeal on law and fact.” (Emphasis added.)

Only review by this Court can vindicate this bedrock prin-

ciple that a lawyer “at the mercy of a single” court is

entitled to one level of meaningful appellate review.

4. Finally, although petitioner’s situation is compell-

ing, the need for the Court’s intervention in this case

should not be measured solely in terms of his plight. The

impact of the decision below on federal government attor-

neys has been widespread and profound. More than 450

;

£

25

government attorneys from all across the United States

contacted the Attorney General—not at petitioner's

behest—to urge the Department of Justice to support

petitioner’s efforts to have this decision overturned. Their

concern reflects their belief that an attorney’s professional

reputation is his or her lifeblood, and that a government

attorney should be protected from the kind of appellate

fact-finding engaged in by the court of appeals here.”

More fundamentally, the decision of the court of ap-

peals will distort the appeals recommendation process

for the federal government. That process assumes that

fact-finding will be done exclusively by the district court

and thus provides the government with a clear frame of

reference for resolving the often difficult decision whether

to seek appellate review of an adverse decision.

This case reveals plainly how that process will be dis-

torted by appellate fact-finding in any situation where

there has been a charge of attorney misconduct that the

district court seriously entertains—even if it does not con-

clude that misconduct occurred and a sanction is war-

ranted. The district court’s decision to enjoin petitioner

from seeking reimbursement from the United States rested

16 Government lawyers justifiably feel somewhat beleaguered by

recent instances of appellate fact-finding. The Best case and the

Tarricone decision are good examples of appellate courts reaching

out to take gratuitous swipes at government counsel’s conduct.

See also United States v. Ofshe, 817 F.2d 1508, 1516 n.6 (11th

Cir.) (gratuitously labeling the prosecutor’s conduct “reprehensi-

ble” without any similar finding by the district court), cert. denied,

484 U.S. 963 (1987). Fortunately, the first two actions were

corrected by the lower courts on rehearing, but not without first

creating a stir among government lawyers generally. In this case,

the Fifth Circuit has declined to correct its error—despite the

petition for rehearing demonstrating those errors—placing the bur-

den of protecting the professional reputation of government lawyers

on this Court. The court of appeals’ improper conduct has gener-

ated widespread interest among government lawyers and lawyers

in general, and we understand that a number of amicus briefs will

be filed in support of this petition.

26

solely on the desire to insulate federal taxpayers from as-

suming the costs of petitioner’s lack of diligence. That

ruling, as well as the ruling ordering sanctions against

the United States due to the government’s failure timely

and fully to comply with its discovery obligations, pre-

sented clean legal issues that petitioner recommended

should be appealed and that the Solicitor General con-

cluded were suitable for appeal. In any case in which

sanctions are an issue, however, the dynamics of that

process will inevitably be affected by the court of appeals’

decision in this case.

If government attorneys must henceforth consider that

their reputations may be jeopardized by appellate fact-

finding in the context of reviewing a separate legal issue,

neither the interests of the United States, its lawyers, nor

the legal system generally, will be served. On the contrary,

the risk of appellate fact-finding squarely threatens to

present a conflict of interest between the lawyer’s duty

to represent his client and his basic interest in self pres-

ervation. The United States certainly will not be well-

served by having its agents’ decisions be influenced by

such intensely personal considerations. It will be impos-

sible for the United States, through the Solicitor General,

to weigh the costs and benefits of appeal in any case in

which charges of attorney misconduct are involved if the

government cannot proceed on the assumption that the

factual record is settled.” And as this Court has recog-

nized, it is in the interest of the federal courts for the

government’s appeals recommendation process to function

effectively without being unduly distorted by considera-

tions extraneous to the traditional factors that go into

determining whether the government should appeal a case.

17 We recognize, of course, that the factual findings of a district

court are subject to appellate review on a clearly erroneous stand-

ard. See Fed. R. Civ. P. 52(a). That circumscribed review, how-

ever, is a far cry from what occurred here, where nobody at any

point has suggested that the district court’s factual findings, or

lack thereof, were clearly erroneous.

27

See United States v. Mendoza, 464 U.S. 154, 160-61

(1984).

Petitioner readily admits he made mistakes and he

regrets them. But he is not the villain described by the

court of appeals and the findings necessary to make him

that villain were the product of a deeply flawed process

that this Court has condemned. There is no basis in

either the law or the record for the appellate fact-finding

undertaken by the court of appeals in this case. That

error may not warrant plenary review by this Court, but

it most certainly warrants review and correction both for

petitioner and for the hundreds of government attorneys

who know that “there but for the grace of God, go I.”

Fone ee a

CONCLUSION

The petition for a writ of certiorari should be granted,

and the judgment of the court of appeals should be sum-

marily reversed.

em OS Ron tere may

Respectfully submitted,

ch ia ,

: CARTER G. PHILLIPS *

‘ WILLiAM K. KELLEY

SIDLEY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

Counsel for Petitioner

April 21, 1994 * Counsel of Record