Petition for Writ of Certiorari — Poly v. Cargill

PiL&D

) ge 94:0 DE 10 19%

No. oc pase Qs WE CLERK

IN THE

Supreme Court of the Anited States

October Term, 1996

it

GEORGE P. POLY AND MAUREEN S. POLY,

jf Petitioners,

THOMAS E. CARGILL, JR. D/B/a

CARGILL ASSOCIATES AND MICHAEL T. MOYLAN,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT OF

THE COMMONWEALTH OF MASSACHUSETTS

PETITION FOR WRIT OF CERTIORARI

RONALD I. BELL*

*Counsel of Record and

Counsel for Petitioners

ScoTTt A. BELL

Counsel for Petitioners

BERNSTEIN & BELL

4 Courthouse Lane

Chelmsford, MA 01824

(508) 458-6339

BATEMAN & SLADE. INC BOSTON. MASSACHUSETTS

cl aN “ae

nthe’. Cte eae

i

QUESTION PRESENTED FOR REVIEW

When government officials wrongfully interfere with a par-

ent’s fundamental right to a relationship with his/her children,

exacerbated by their failure to provide the parent with the

procedural protections afforded by the Due Process Clause of

the Fifth Amendment to the United States Constitution, does

the discretionary function exception under the Federal Torts

Claims Act immunize the government from liability for such

wrongful interference?

ii

PARTIES TO THE PROCEEDINGS

The Petitioners in this action, Plaintiffs below, are George

P. Poly (“Poly”) and his wife, Maureen S. Poly (collectively

“Plaintiffs”), who sued Respondents, Defendants below,

Thomas E. Cargill, d/b/a Cargill Associates (“Cargill”) and

Michael T. Moylan (“Moylan”) (collectively “Defendants”),

for legal malpractice.

The “underlying lawsuit” in the legal malpractice case was

filed by Moylan on behalf of Poly against Poly’s ex-wife,

Janet C. Gillis (“J. Gillis”), and her second husband, Air Force

Sergeant Earl G. Gillis (“Sgt. Gillis”), and jointly against the

United States of America (“USA”) under the Federal Torts

Claims Act (“FTCA”) for wrongful actions by various members

of the United States Air Force (“USAF” and/or “government’”),

including Sgt. Gillis.

TABLE OF CONTENTS

Question Presented for Review

Parties to the Proceedings

Table of Authorities

Cases

Statutes and Other Authorities

Opinions and Petition for Rehearing Below

Jurisdiction

Constitutional Provision Involved

Statutory Provisions Involved

Statement of the Case

A.

E.

Introduction

B. How the Federal Question Was Presented

C.

D. Verdict for Poly and Post-Trial Proceedings in the

Evidence Presented at Trial

Trial Court

Appeal of Judgment NOV to the SJC

Reasons for Granting the Petition

WHERE THE DECISION OF THE HIGHEST COURT IN

MASSACHUSETTS HOLDS THAT THE DISCRETION-

ARY FUNCTION EXCEPTION UNDER THE FEDERAL

Torts CLaims ACT IMMUNIZES THE GOVERN-

MENT FROM LIABILITY FOR WRONGFULLY INTER-

FERING WITH A PARENT'S FUNDAMENTAL LIBER-

TY INTEREST IN MAINTAINING A RELATIONSHIP

WITH His CHILDREN, AND For ABRIDGING THE

PARENT’S CONSTITUTIONAL RIGHTS By FAILING

TO PROvIDE Him WITH NOTICE AND AN Oppor-

TUNITY TO BE HEARD AS REQUIRED By THE DUE

iv

iV

Ann & & WN ND —

12

iV

TABLE OF CONTENTS (CONT’D.)

PROCESS CLAUSE OF THE FIFTH AMENDMENT TO

THE CONSTITUTION OF THE UNITED STATES, THAT

Decision Must BE REVERSED. 12

A. The SJC’s Opinion Is In Direct Conflict With

Decisions of the Supreme Court of the United

States and Other Circuit Courts of Appeals. 12

B. A Definitive Pronouncement By the Supreme

Court of the United States On the Question

Presented Is Important to All Parents. 16

C. The SJC’s Opinion Unjustifiably Ignores and

Omits Material Facts and Relevant Law and Is

So Shockingly Erroneous and Devoid of Evi-

dentiary Support That It Must Be Reversed As

a Gross Miscarriage of Justice. 17

Conclusion 20

TABLE OF AUTHORITIES

CASES

Adoption of Eugene, 415 Mass. 431, 614 N.E.2d 645

(1993) 20n

Anderson v. Creighton, 483 U.S. 635 (1987) 12

Berkovitz v. United States, 486 U.S. 531 (1988) 14n, 19

Franz v. United States, 707 F.2d 582 (D.C. Cir. 1983),

supp. op., 712 F.2d 1428 (D.C. Cir. 1983), on

remand, 591 F. Supp. 374 (D.D.C. 1984) 15, 16, 18

Grigalauskas v. United States, 103 F. Supp. 543 (D.

Mass.), aff'd, 195 F.2d 494 (Ist Cir. 1951) 14n

Harlow v. Fitzgerald, 457 U.S. 800 (1982) 12

v

TABLE OF AUTHORITIES (CONT’D.)

Harry Stoller & Co. v. City of Lowell, 412 Mass. 139,

587 N.E.2d 780 (1992) 20n

Horta v. Sullivan, 418 Mass. 615, 638 N.E.2d 33

(1994) 20n

Meyer v. Nebraska, 262 U.S. 390 (1923) 13, 18

Moore v. City of East Cleveland, 431 U.S.494(1977) 13, 18

Murphy v.1.S.K.Con of New England, Inc. , 409 Mass.

842, 571 N.E.2d 340 (1991) 20n

Pooler v. United States, 787 F.2d 868 (3d Cir.), cert.

denied, 479 U.S. 849 (1986) 12, 18

Prince v. Massachusetts, 321 U.S. 158 (1944) 13, 18

Prisco v. Talty, 993 F.2d 21 (3d Cir. 1993) 14, 16, 18

Prisco v. United States Dept. of Justice, 851 F.2d 93

(3d Cir. 1988), cert. denied, 490 U.S. 1089 (1989)

14, 16, 18

Quilloin v. Walcott, 434 U.S. 246 (1978) 13, 18

Ruffalo v. Civiletti, 702 F.2d 710 (8th Cir. 1983), on

remand, 565 F. Supp. 34 (W.D. Mo. 1983), later

proceeding sub. nom. Ruffalo v. United States, 590

F. Supp. 706 (W.D. Mo. 1984) 15, 16, 18

Salmeron v. United States, 724 F.2d 1357 (9th Cir.

1983) 15, 16, 18

Santosky v. Kramer, 455 U.S. 745 (1982) 18

Stanley v. Illinois, 405 U.S. 645 (1972) 13, 18

United States v. Gaubert, 499 U.S. 315 (1991) 17, 19

United States Fidelity & Guaranty Co. v. United States,

837 F.2d 116 (3d Cir.), cert. denied, 487 U.S. 1235

(1988) : 12

vi

TABLE OF AUTHORITIES (CONT’D.)

STATUTES AND OTHER AUTHORITIES

U.S. Const. amend. V passim

U.S. Const. amend. XIV, § | 10n

28 U.S.C. § 1257(a) 2

28 U.S.C. § 1346(b) 3

28 U.S.C. §§ 2671, et seq. (“Federal Torts Claims Act”)

passim

M.G.L. Const. pt. 1, art. XXIX 10n

M.G.L. c. 93A 9n

Restatement (Second) of Torts § 700 (1977) 13n

Restatement (Second) of Torts § 876(a) and (b) (1979) 13n

No.

IN THE

Supreme Court of the Ginited States

October Term, 1996

GEORGE P. POLY AND MAUREEN S. POLY,

‘ Petitioners,

THOMAS E. CARGILL, JR. D/B/a

CARGILL ASSOCIATES AND MICHAEL T. MOYLAN,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT OF

THE COMMONWEALTH OF MASSACHUSETTS

PETITION FOR WRIT OF CERTIORARI

Petitioners, George P. Poly and Maureen S. Poly, respectfully

pray that a writ of certiorari issue to review the decision entered

by the Supreme Judicial Court of the Commonwealth of Massa-

chusetts on July 11, 1996.

OPINIONS AND PETITION FOR REHEARING BELOW

The denial of the Petition for Rehearing by the Supreme Judicial

Court of the Commonwealth of Massachusetts (“SJC”) on Sep-

2

tember | 1, 1996, is attached as Appendix A. The Petition for

Rehearing dated July 25, 1996, is attached as Appendix B.

The Opinion of the Supreme Judicial Court of the Common-

wealth of Massachusetts in George Poly & another v. Michael

T. Moylan & others, 423 Mass. 141, 667 N.E.2d 250 (1996),

is attached as Appendix C. The Ruling on Moylan’s Motion

for Judgment Notwithstanding the Verdicts (“Ruling”) of the

Superior Court of the Commonwealth of Massachusetts on

July 23, 1994, Civil Action No. 91-2299, is attached as Appen-

dix D.

JURISDICTION

On July 11, 1996, the SJC affirmed the Ruling of the

Superior Court, dated 23 1994, with respect to Judgment NOV

on the legal malpractice count. See Appendices C and D,

respectively. On July 25, 1996, a Petition for Rehearing was

timely filed and was denied on September 11, 1996. See Ap-

pendices B and A, respectively.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

This case involves Poly’s fundamental liberty interest as a

natural parent to a parent-child relationship, which right is

protected under the Due Process Clause of the Fifth Amend-

ment to the Constitution:

“No person shall be . . . deprived of life, liberty, or proper-

ty, without due process of law... .” U.S. Const. amend. V.

RT ew

3

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are 28 U.S.C. § 1346(b)

and 28 U.S.C. §§2671 et seq.:

Subject to the provisions of . . . 28 U.S.C. § 2671 et

seq., the district courts . . . shall have exclusive jurisdic-

tion of civil actions on claims against the United States,

for money damages . . . for . . . personal injury . . .

caused by the negligent or wrongful act or omission of

any employee of the Government while acting within the

scope of his office or employment, under circumstances

where the United States, if a private person, would be

liable to the claimant in accordance with the law of the

place where the act or omission occurred.

28 U.S.C. § 1346(b) (1977);

“Employee of the government” includes . . . members

of the military. . . .;

“Acting within the scope of his office or employment,”

in the case of a member of the military . . . means

acting in line of duty.

28 U.S.C. § 2671 (1977);

The United States shall be liable, respecting the provi-

sions of this title relating to tort claims, in the same

manner and to the same extent as a private individual

under like circumstances. .. .

28 U.S.C. § 2674 (1977);

The provisions of the [FTCA] . . . shall not apply to—

4

(a) Any claim based upon an act or omission of an

employee of the Government, exercising due care, in the

execution of a statute or regulation, whether or not such

statute or regulation be valid, or based upon the exercise

or performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal

agency or an employee of the Government, whether or

not the discretion involved be abused.

28 U.S.C. § 2680(a) (1977) (the discretionary function excep-

tion (“dfe’))

STATEMENT OF THE CASE

A. Introduction

This is a legal malpractice case with additional counts

for misrepresentation and deceit, unfair or deceptive acts or

practices and loss of consortium, brought by Plaintiffs against

two lawyers, Defendants Cargill and Moylan.

The “underlying lawsuit” in this legal malpractice case was

filed by Moylan on behalf of Poly against Poly’s ex-wife, J.

Gillis, and her second husband, Sgt. Gillis, and jointly against

the USA under the FTCA for wrongful actions by various

members of the USAF, including Sgt. Gillis, which violated

Poly’s constitutionally protected right to a relationship with

his children (“1985 Complaint”). Specifically, the 1985 Com-

plaint alleged that while acting within the scope of their em-

ployment, members of the USAF, including Sgt. Gillis, wrong-

fully assisted J. Gillis (not a member of the USAF), in taking

and keeping Poly’s two sons, Christopher M. Poly and Stephen

G. Poly (“children”), from Poly in violation of his custodial

rights.

a hi

rer

5

In the malpractice case, Plaintiffs alleged, among other

things, that Moylan’s negligence both before and while he was

employed by Cargill, resulted in the dismissal of the 1985

Complaint, and that Moylan did not tell Poly of the dismissal

and misrepresented the status of the case to Poly for years.

After the trial of the malpractice case, the jury returned a

verdict for Poly finding, in relevant part, that Moylan had

committed legal malpractice in allowing the 1985 Complaint

against the government and the Gillises to be dismissed,' that

Moylan had knowingly misrepresented material facts to Poly

in handling his case,? and, most importantly, that Poly would

have won the case against the government and the Gillises but

for Moylan’s negligence.’ The jury’s verdict, together with

interest, amounted to over $260,000.

B. How The Federal Question Was Presented

As early as Plaintiffs’ Opposition to Defendants’ Motions

for Summary Judgment, and continuing throughout trial and

‘After filing the 1985 Complaint, Moylan did nothing in the case. When the

government filed a Motion to Dismiss, arguing that all of the actions of the USAF

took place in Germany, and thus, the USAF was immune from liability by the

foreign country exception under the FTCA, Moylan never opposed the government's

Motion by advancing available arguments, or amending the Complaint, to highlight

the wrongful actions of the USAF in the United States. Not surprisingly, presented

with an unopposed Motion, the Federal District Court dismissed the 1985 Complaint

against the government, specifically noting on the Motion that “no opposition” had

been submitted.

“Among other things, Moylan never discussed the government's Motion to

Dismiss with Poly and unilaterally decided not to oppose it. For years, Moylan

continually misrepresented the status of the case to Poly, who believed his case

was still alive and pending until 1991.

‘For reasons attributable to other errors by the trial judge, the jury found, in

response to one narrowly framed question regarding Cargill's liability, that Moylan's

employer did not have control over Moylan’s work with respect to the underlying

Poly case, and thus could not be held liable and, with respect to Poly’s second

wife, Maureen S. Poly, that she had suffered no loss of consortium.

6

on appeal to the SJC, Plaintiffs argued, both verbally and in

writing, that the government was not immunized from liability

by the dfe under the FTCA, where government officials’ ac-

tions wrongfully interfered with Poly’s constitutionally pro-

tected right to a parent-child relationship.

C. Evidence Presented At Trial

During the trial, evidence regarding the underlying lawsuit,

which, given the jury verdict for Poly, must be taken in the

light most favorable to Plaintiffs, was introduced, showing,

among other things, that: (1) at a hearing on April 9, 1979,

with Poly’s ex-wife, J. Gillis, and her second husband, Sgt.

Gillis, present, a Massachusetts probate court judge entered

an order forbidding J. Gillis from removing Poly’s children,

ages 9 and 10, from the state (“restraining order”); (2) on April

12, 1996, J. Gillis wrote to Poly informing him of her intention

to take the children out of the country to Sgt. Gillis’s new

duty station in violation of the restraining order; (3) on April

13, 1979, the probate court judge entered an order awarding

custody of the children to Poly (“custody order”); (4) Poly

immediately notified USAF officials of the custody order and

by April 18, 1979, USAF officials had received copies of both

court orders, putting the USAF on notice, both verbally and

in writing, of Poly’s parental rights; (5) on or about April 20,

1979, the USAF transferred Sgt. Gillis out of the United States

to a new duty station in Germany; (6) during April, 1979, the

USAF was also notified of the court orders and of Poly’s

parental rights by Poly’s divorce attorney; (7) in April, 1979,

Poly received no information from the USAF as to the specific

whereabouts of his chiidren or J. Gillis, as he questioned USAF

authorities and searched frantically for his children; (8) in fact,

in April, 1979, USAF officials told Poly that J. Gillis and the

children were already out of the country and that there was noth-

7

ing the USAF could do for him; (9) from April, 1979 to June,

1979, however, J. Gillis and the children were still in the

United States and, in preparation for their transportation over-

seas, the USAF examined the children medically and took

their passport photographs; (10) in June, 1979, two months

after having been put on notice of Poly’s parental rights, the

USAF transported J. Gillis (a civilian) and the two children

(not dependents of Sgt. Gillis) out of the United States to join

Sgt. Gillis in Germany;* (11) from April, 1979 to June, 1979,

USAF officials did not investigate the matter and failed to

afford Poly notice and a hearing before transporting J. Gillis

and Poly’s children out of the United States, effectively ter-

minating Poly’s parental rights;* (12) in 1980, the USAF was

also notified that a criminal arrest warrant for kidnapping had

been issued for J. Gillis; (13) the maximum duration of an

overseas tour of duty for an enlisted man in the USAF is

typically no more than three years; (14) in disregard of the

typical overseas tour length, in 1983 and in 1985, acting in the

United States, USAF officials granted Sgt. Gillis’s two requests

‘Poly was unaware of the USAF officials’ wrongful assistance to his ex-wife in

the United States during the period from April, 1979 to June, 1979. Poly did not

learn of the delayed June, 1979 departure until August, 1984, through a letter to

Poly from a Lt. Col. of the USAF. Untii 1984, Poly believed that the USAF had

sent J. Gillis and the children overseas before Poly first notified the USAF on

April 13, 1979 of his parental rights. Prior to 1984, any action brought by Poly

against the USAF could have been dismissed as barred by the foreign country

exception under the FTCA, because, given the facts as Poly then understood them,

Poly could not, at that time, have alleged wrongful actions of the USAF in the

United States. Where it was not until 1984 that Poly discovered the 1979 wrongful

actions of the USAF in the United States, Poly’s 1985 Complaint was timely under

the FTCA and was not subject to dismissal on statute of limitations grounds or

under the foreign country exception to the FTCA. The jury so found.

*Since Sgt. Gillis was already at his duty station overseas in April, 1979, any

need of the USAF to have an enlisted person at his assigned duty station had been

accomplished. The USAF had no similar need with respect to J. Gillis and the

children which would justify ignoring the court orders and transporting J. Gillis

and the children overseas two months later in June, 1979, severing Poly’s parental

relationship with his children, especially without affording Poly notice and an

opportunity to be heard.

8

to extend his tour of duty outside of the United States, thereby

facilitating J. Gillis’s keeping Poly’s children out of the United

States for over eight years;° (15) after Sgt. Gillis, J. Gillis and

the children, ages 17 and 18, were finally returned to the

United States in the summer of 1987, J. Gillis was found guilty

of parental kidnapping and held in contempt of the probate

court orders she had violated; and (16) by the time of the legal

malpractice trial in 1994, Poly had managed to rekindle a

relationship with his older son, Christopher, but still had no

relationship with his younger son, Stephen.

At trial, Plaintiffs’ military expert, a West Point graduate

and a retired Lieutenant General in the USAF, with thirty-five

years of experience both as an officer and as a commanding

officer, testified that the USAF officials’ actions in this case

were wrong, were not in the best interests of the country or

the USAF, and were not in furtherance of any USAF policies.

He testified further that, under the circumstances, as a reason-

able USAF official, he would have stopped the transfer of the

children and J. Gillis.

Defendants’ expert, a former political appointee in the office

of the Secretary of Defense, who was not a USAF officer with

command experience, and who was not in the USAF in 1979,

testified that the mandatory policy of the USAF in 1979 was

not to get involved with, or take sides in, custody disputes,

i.e., to remain neutral. Plaintiffs’ military expert testified that,

in wrongfully assisting J. Gillis, the USAF officials did not

remain neutral and, clearly, would not have been following

the mandates of such a policy.

“In April, 1984, Poly first learned that the USAF, acting in the United States,

had approved a tour extension for Sgt. Gillis. In the face of increasing pressure

from congressmen, law enforcement officials, and the media, among others, the

USAF promised to return the Gillises to the United States in 1985. Nevertheless.

in 1985, USAF officials at Headquarters in San Antonio, Texas, again approved

Sgt. Gillis’s request to extend his tour overseas.

9

No evidence was ever introduced by Defendants to show

that, under the circumstances, the USAF officials had discre-

tion to ignore the restraining order and custody order and to

transfer the children out of the United States.

D. Verdict For Poly And Post-Trial Proceedings In The Trial

Court

On February 3, 1994, the jury in the legal malpractice case

returned the verdict for Poly. Thereafter, Moylan filed a Motion

for Judgment Notwithstanding the Verdict (“NOV”), which

Plaintiffs opposed. On July 23, 1994, just before retiring, the

trial judge allowed the Motion for Judgment NOV on the

negligence count, thereby taking away Poly’s favorable jury

verdict.’ The trial judge ruled that Moylan could not be held

liable for malpractice because the underlying case against the

USAF was unwinnable. In his ruling, the trial judge found

that the actions of USAF officials were discretionary functions

exempt from liability under the FTCA and that the USAF was

merely carrying out the “neutrality policy” which was, as the

trial judge viewed the evidence, the official USAF policy with

respect to custody matters. See Appendix D.

’ The trial judge also substantially reduced the jury's damages award on the count

for deceit from $10,000 to only a few hundred dollars, and awarded both Defendant

lawyers their costs. Further, despite the evidence from which the jury found Moylan

had made misrepresentations and had deceived Poly, by denying Plaintiffs’ Motion

for a New Trial on the Ch. 93A count, the trial judge, who was openly biased in

favor of Defendants throughout the trial, reaffirmed his earlier finding that both

Defendants did not violate the chapter of the Massachusetts General Laws which

proscribes unfair or deceptive acts or practices (M.G.L., Ch. 93A).

The trial judge who heard all of the evidence, and who took away Poly’s jury

verdict, retired before Plaintiffs’ could be heard on a Motion for a New Trial on

the malpractice count and the misrepresentation and deceit count. Not surprisingly,

another Superior Court judge, unfamiliar with the trial and the case, denied Plain-

tiffs’ Motion for a New Trial.

10

E. Appeal Of Judgment NOV To The SJC

On July 10, 1995, Plaintiffs filed an Application for Direct

Appellate Review (“Application”) to the SJC, alleging, among

other things, that (1) the trial judge erred in allowing Judgment

NOV, (2) the trial judge erred in ruling that the USAF would

not have been liable in the underlying case for wrongfully

interfering with Poly’s constitutionally protected liberty in-

terest in maintaining a relationship with his children, and (3)

the trial judge’s biased conduct violated plaintiffs’ right to a

fair and impartial trial." The SJC granted Plaintiffs’ Applica-

tion.

One year later, on July 11, 1996, the SJC affirmed the trial

judge’s rulings that Cargill and Moylan had done nothing

wrong and found that the dfe immunized the government from

liability in the underlying case’ and, thus, neither lawyer could

be found liable for malpractice.'° See Appendix C.

“The trial judge's egregious conduct itself, which deprived Plaintiffs’ of their

constitutional right to a fair and impartial trial, raises a separate question of denial

of due process. M.G.L. Const. pt. 1, art. XXIX; U.S. Const. amend. XIV, § |.

*Given the mandatory aspect of the so-called “neutrality policy” which would

not support a finding that USAF officials had discretion to wrongfully interfere

with Poly’s custodial rights, the SJC chose to disregard its significance in a footnote,

even though the “neutrality policy” was the linchpin of the Defendant's dfe argument

and the centerpiece of the trial judge's erroneous decision.

Associate Justice Neil L. Lynch wrote the SJC decision in this case, which,

despite the jury’s verdict finding that Moylan, while working for Cargill, had

willfully and knowingly deceived Poly, also held that the trial judge was warranted

in ruling that neither Moylan nor Cargill had committed any unfair or deceptive

act or practice. Ironically, Judge Lynch is the same judge who disbarred Moylan

in 1995 for negligent, unethical, and fraudulent actions in another case Moylan

had handled during the same time frame he was representing Poly, which actions

in that other case are remarkably similar, if not identical, to the negligent, unethical,

and fraudulent actions of Moylan that Plaintiffs proved to the jury at trial. The

effect on this case of Cargill’s prominence as a well known trial lawyer with a

career spanning over forty years as a member of the Massachusetts Bar, is not

fully known. What is known, and what is obvious from the trial transcript, is the

bias and partiality of the trial judge throughout the trial in favor of the Defendants,

especially Cargill.

On July 25, 1996, Plaintiffs filed a Petition for Rehearing.

See Appendix B. Plaintiffs argued, among other things, that

the SJC had “overlooked and misapprehended” several key

facts and points of law regarding the government officials’

actions, Poly’s constitutionally protected right to a relationship

with his children, and the FTCA. Plaintiffs again asserted that,

(1) taking all the facts in the light most favorable to Plaintiffs,

the jury in Poly was warranted in finding that the conduct of

USAF officials in the United States was negligent and/or

wrongful under the FTCA, and (2) by ignoring the probate

court orders, USAF officials in the United States had wrong-

fully aided a civilian in the parental kidnapping of Poly’s two

children and had facilitated the intentional interference with a

father’s fundamental and constitutionally protected right to a

relationship with his children for over eight years.

On September 11, 1996, the SJC denied Plaintiffs’ Petition

or Rehearing. See Appendix A.

12

REASONS FOR GRANTING THE PETITION

I. WHERE THE DECISION OF THE HIGHEST COURT IN MASSA-

CHUSETTS HOLDS THAT THE DISCRETIONARY FUNCTION

EXCEPTION UNDER THE FEDERAL TORTS CLAIMS ACT IM-

MUNIZES THE GOVERNMENT FROM LIABILITY FOR WRONG-

FULLY INTERFERING WITH A PARENT’S FUNDAMENTAL

LIBERTY INTEREST IN MAINTAINING A RELATIONSHIP

WITH His CHILDREN, AND FoR ABRIDGING THE PARENT'S

CONSTITUTIONAL RIGHTS By FAILING TO PROVIDE HIM

WITH NOTICE AND AN OPPORTUNITY TO BE HEARD AS RE-

QUIRED By THE DUE PROCESS CLAUSE OF THE FIFTH

AMENDMENT TO THE CONSTITUTION OF THE UNITED

STATES, THAT DECISION Must BE REVERSED.

A. The SJC’s Opinion Is In Direct Conflict With Deci-

sions Of The Supreme Court Of The United States And

Other Circuit Courts Of Appeals.

The Supreme Court of the United States has held that gov-

ernment officials’ conduct, even if discretionary, will not be

shielded from liability by qualified immunity, if that conduct

violates clearly established constitutional rights of which a

reasonable person would have, or should have, known, i.e.,

the contours of that right are sufficiently clear that a reasonable

official would understand that his actions will violate the con-

stitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982); Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Similarly, circuit courts of appeals have held that government

officials’ conduct cannot be discretionary if it violates the Con-

stitution, because government officials do not possess discre-

tion to violate constitutional rights. See Pooler v. United States,

787 F.2d 868, 871 (3d Cir.), cert denied, 479 U.S. 849

(1986)(“Pooler’); see also United States Fidelity & Guaranty

Co. v. United States, 837 F. 2d 116, 120 (3d Cir.), cert denied,

487 U.S. 1235 (1988).

<a

13

In April, 1979, Poly’s right as a parent to a relationship

with his children, was a clearly established fundamental liberty

interest, protected as a matter of due process under the Constitu-

tion. See, e.g., Quilloin v. Walcott, 434 U.S. 246, 255

(1978)(significant substantive due process interest of divorced

father to relationship with his child)(“Quilloin”); Moore v. City

of East Cleveland, 431 U.S. 494, 499 (1977)(“Moore”’); Stan-

ley v. Illinois, 405 U.S. 645, 651-52 (1972)(father of an illegiti-

mate child, with whom he had a custodial relationship, had a

substantive due process interest which could not be terminated

without a hearing)(“Stanley”); Prince v. Massachusetts, 321

U.S. 158, 166 (1944)(“Prince”); Meyer v. Nebraska, 262 U.S.

390, 399-400 (1923)(“Meyer’’)."'

Furthermore, in April, 1979, the contours of Poly’s parental

rights, as framed by the probate court orders, were made suf-

ficiently clear to USAF officials, as soon as they were put on

notice of the court restraining order and court custody order.

Under the circumstances, reasonable government officials

would have understood that their actions, which aided Poly’s

ex-wife in removing Poly’s children from the United States in

violation of the probate court orders, effectively severing Poly’s

relationship with his children, were actions which wrongfully

interfered with Poly’s constitutionally protected parental right,

exacerbated by their failure to provide Poly with notice and

an opportunity to be heard." At trial, Plaintiffs’ USAF expert

testified that the USAF officials’ actions in this case were

wrong, were not in the best interests of the country or the USAF,

and were not in furtherance of any USAF policies,'’ and that,

'' See also, Restatement (Second) of Torts § 700 (1977)(tort of intentional inter-

ference with the parent-child relationship).

'? See also, Restatement (Second) of Torts §876 (a) and (b) (1979)(aii those who

cooperate, lend assistance or encourage a wrongdoer in the commission of a toriious

act, j.e., aid and abet, are equally liable.

‘If a mandatory “neutrality policy” directed USAF officials not to intervene in

custody “disputes” and not to take any action which would assist either party to such

ad

under the circumstances, as a reasonable USAF official, he

would have stopped the transfer of the children and J. Gillis.

Where, in addition to knowledge of the court orders, the

USAF was on notice of a criminal arrest warrant for the ex-wife

for the kidnapping of Poly’s children, deliberate actions of the

USAF which facilitated J. Gillis remaining out of the United

States with Poly’s children for eight years, demonstrated an

arrogant disregard for Poly’s rights, including his constitution-

ally protected right to a relationship with his children.

Thus, given Poly’s clearly established constitutionally pro-

tected parental rights, the discretionary function exception to

a waiver of governmental immunity in this case was not a valid

defense to Poly’s claims, nor was it a valid ground upon which

to base any decision to take away Poly’s jury verdict.

Whether the dfe applies to immunize governmental actors

who aid in the intentional interference with the constitutionally

protected right of a parent to a relationship with his/her children

is not unmapped territory. See, e.g., Prisco v. Talty, 993 F.2d.

21, 26 n. 14 (3rd Cir. 1993)(in a legal malpractice case with

the underlying case involving similar governmental wrong-

doing which violated a parent’s constitutionally protected

parental rights, the discretionary function exception was held

not to be a defense to the father’s FTCA claim) citing Prisco

v. United States Dept. of Justice, 851 F.2d 93, 96-98 (3d Cir.

1988), cert denied, 490 U.S. 1089 (1989)(government is liable

for conduct which violated father’s clearly established constitu-

tional due process rights, where both the father’s substantive

“disputes”, after being put on notice of Poly’s parental rights, clearly, by wrongfully

aiding J. Gillis, the USAF violated its own policy. Berkovitz v. United States, 486

U.S. 531 (1988)(an agency's violation of its own mandatory regulations is not a

discretionary act). Furthermore, in following a mandatory policy, the government

must exercise due care and, in this case, the USAF failed to exercise due care.

See Grigalauskas v. United States, 103 F. Supp. 543 (D.Mass.), aff'd 195 F.2d

494 (Ist Cir. 1951). The SJC avoided analysis of the neutrality policy by relegating

its significance to a footnote.

15

liberty interest and his procedural entitlement to notice and an

opportunity to be heard were implicated when his daughter

was placed in the witness protection program)(“Prisco”); Ruf-

falo v. Civiletti, 702 F. 2d 710, (8th Cir. 1983), on remand,

565 F. Supp. 34 (W.D. Mo. 1983), later proceeding sub.

nom., Ruffalo v. United States, 590 F. Supp. 706 (W.D.Mo.

1984)(where a non-relocated parent is entitled to notice and a

hearing in connection with the child’s placement in the witness

protection program, the government is liable for failing to

provide the parent procedural due process)(“Ruffalo”); Franz

v. United States, 707 F. 2d. 582 (D.C. 1983), supp. op., 712

F.2d 1428 (D.C. Cir. 1983), on remand, 591 F. Supp. 374

(D.D.C. 1984)(where a non-custodial parent has a constitu-

tional right to notice and an opportunity to be heard when his

child is placed in the witness protection program, and the

government, in failing to afford the parent notice and a hearing,

violated that right, the government is not immune from liability)

(“Franz”); and Salmeron v. United States, 724 F.2d 1357 (9th

Cir. 1983)(government could not avoid any potential liability

for relocation of children under witness protection program,

where government was capable of complying with state court

order awarding custody of children to father, and without the

government's continuing aid, there was considerable doubt

that mother could have continued to frustrate father’s attenyots

to locate and recover his children)(“Salmeron’’).

Where the decision of the highest court in Massachusetts

holds that the discretionary function exception under the FTCA

immunizes government officials from liability for wrongfully

interfering with a parent’s fundamental liberty interest in main-

taining a relationship with his children, and for abridging the

parent’s constitutional rights by failing to provide the parent

with notice and an opportunity to be heard as required by the

Due Process Clause of the Fifth Amendment, the SJC’s decision

is Clearly in direct conflict with decisions of this Court and

other circuit courts of appeals, and must be reversed.

16

B. A Definitive Pronouncement By The Supreme Court Of The

United States On The Question Presented Is Important To

All Parents.

The federal cases which deal with the federal witness protec-

tion program, e.g., Prisco, Ruffalo, Franz, and Salmeron,

show that even where the lives of the children and other par-

ticipants in the witness protection program may be at stake,

when the government, even if exercising discretion under the

program, aids in the interference with the fundamental liberty

interest of a non-relocating parent to a relationship with his/her

- children, the discretionary function exception does not im-

munize the government from liability for such interference.

Certainly, with no one’s life at stake in Poly, and given that

the USAF officials were not acting under the strict confines

of any program comparable to the witness protection program,

the USAF officials’ actions in aiding in the severance of Poly’s

relationship with his children, especially without affording Poly

due process, cannot be justified or immune under any view of

these facts and the law.

The SJC’s erroneous opinion, using the dfe to excuse gov-

ernmental action which wrongfully interferes with and abridges

a parent’s constitutional rights, is evidence of the need for a

definitive pronouncement by this Court that when government

officials wrongfully interfere with a parent’s fundamental lib-

erty interest in maintaining a relationship with his/her children

and fail to provide a parent with the procedural protections

afforded by the Due Process Clause of the Fifth Amendment

to the United States Constitution, the dfe does not immunize

those government officials from liability for such wrongful

conduct.

C. The SJC’s Opinion Unjustifiably lgnores And Omits Mate-

rial Facts And Relevant Law And Is So Shockingly Errone-

21S

17

ous And Devoid Of Evidentiary Support That It Must Be

Reversed As A Gross Miscarriage Of Justice.

Plaintiffs’ principal theory in Poly was that, by ignoring the

court restraining order and court custody order, the government

wrongfully aided a civilian in parental kidnapping and facili-

tated the intentionally interference with the constitutionally

protected right of a father to a relationship with his children.

In affirming the trial judge’s rulings in favor of the negligent

attorneys, taking away the jury verdict for Poly, nowhere in

the Poly decision does the SJC articulate, let alone focus upon,

Plaintiffs’ theory.

In its decision, the SJC unjustifiably ignores and omits mate-

rial facts and relevant law. For example, the SJC omits from

its recitation of the facts the wrongful actions of the USAF

officials from April, 1979 to June, 1979, which actions were

the cornerstone of Plaintiffs’ theory. Instead, the SJC opinion

focuses on the limited issue of whether the USAF was obli-

gated, or merely permitted, to return enlisted personnel from

overseas, because of court orders or criminal warrants, or de-

liver them, on request, to civil authorities for trial. The SJC

concludes that the governing regulations on that limited issue

were “permissive” and therefore, USAF officials had discretion

in deciding to return enlisted personnel and their decision not

to return Sgt. Gillis from overseas was thus protected by the

dfe. After absolving the USAF officials for the discretionary

act of refusing to return Sgt. Gillis from overseas, in a sentence

the SJC characterizes the “initial act of permitting Sgt. Gillis

to leave this country with his wife’s children” as an “operational

decision.” The SJC then implies that all operational decisions

are included within the dfe, and thus, the USAF officials’

decision to send the children overseas was also protected by

the dfe. See Appendix C. But see United States v. Gaubert,

499 U.S. 315, 336-39 (1991)(Scalia, J., concurring in part

and concurring in the judgment).

The SJC’s decision misapprehends the offending conduct

and distorts the USAF wrongdoing on which Poly based liabil-

18

ity. First, the children did not leave the country with Sgt. Gillis

in April, 1979, but left with J. Gillis in June, 1979, and, by

June 1979, the USAF already had been put on notice of Poly’s

constitutionally protected parental rights. Second, J. Gillis and

the two boys were not enlisted personnel. Third, the primary

allegation of negligence was aiding J. Gillis and sending J.

Gillis and the children overseas in total disregard of the court

orders. Although Plaintiffs argued that the USAF also acted

negligently and wrongfully in the United States by twice ap-

proving Sgt. Gillis’s request to extend his tour of duty overseas,

thus facilitating J. Gillis wrongfully remaining overseas with

the children for eight years, Plaintiffs never argued that the

USAF had to interrupt Sgt. Gillis normal tour (which should

have been only 3 years) and return Sgt. Gillis to civil authorities

in the United States for trial. Fourth, the USAF failed to afford

Poly notice and an opportunity to be heard in violation of his

constitutional parental rights. Fifth, Plaintiffs’ USAF military

expert, testified that the USAF officials’ actions in this case

were wrong, were not in the best interests of the country or

the USAF, and were not in furtherance of any USAF policies.

Omitting such critical facts or presenting them in a non-

chronological fashion, the SJC’s opinion tends to camouflage

the wrongful conduct of the government, does not explain how

those actions of the USAF officials could be immune from

liability by the dfe under the FTCA, and avoids having to

harmonize its decision with the rationale in the decisions of

federal cases, such as Quilloin, Moore, Stanley, Prince, Meyer,

Santosky v. Kramer, 455 U.S. 745, 753 (1982) (infringement

of parent-child relationship implicates substantive due process),

Prisco, Ruffalo, Franz, Salmeron, and Pooler (“federal

cases”). The SJC does not mention or cite any of these federal

cases in its decision.

No evidence was ever introduced by Defendants to show

that, under the circumstances, the USAF officials had discretion

19

to ignore the restraining order and custody order and to transfer

the children out of the United States.

Furthermore, even if the government officials’ actions are

discretionary, to be protected by the dfe, those actions must

be in furtherance of a public policy. Berkovitz v. United States,

486 U.S. 531, 536-37 (1988). No evidence was ever introduced

by Defendants of any statute, regulation, internal guideline,

or policy, and the SJC cited to none, which was furthered by

the USAF officials’ conduct, or which authorized or condoned

the USAF officials’ decisions to: (1) ignore court orders; (2)

facilitate parental kidnapping by sending a civilian overseas

with two children who, pursuant to the court orders, belonged

in the custody of their father; and (3) aid and abet in the

intentional interference with the constitutionally protected right

of a father to a relationship with his children.

To justify reliance on the dfe, in its opinion, the SJC impro-

perly interprets and applies United States v. Gaubert, 499 U.S.

315 (1991). In quoting Gaubert, the SJC omits from the

selected quotation the essence of the message that governmental

“actions must be the kind of conduct that can be said to be

grounded in the policy of the regulatory regime”, i.e., the

actions must be in furtherance of the policy that the government

seeks to accomplish. /d. at 325 and n.7. Where USAF officials,

who are sworn to uphold the Constitution of the United States,

ignored state court orders, aided in parental kidnapping, and,

without providing due process safeguards, effectively termi-

nated a parent’s constitutionally protected right to a relationship

with his children, it would have been irrational for the SJC to

posit that the USAF officials’ actions were in furtherance of

any policy. Thus, the SJC’s omission of the heart of the Gaubert

quotation was purposeful and thus, demoralizing. Fully quoted

or partially quoted, Gaubert does not stand for the proposition

that government officials have discretion to violate constitu-

tional rights.

20

The SJC’s decision implicitly condones actions by govern-

ment officials which show contempt for court orders and which

result in the abridgment of a parent’s constitutional rights;

actions which are hardly in furtherance of any policy or in the

best interest of the country. In light of the law of this Court

and other circuit courts of appeals,'* given the USAF officials’

wrongful actions proscribed under the FTCA, and Poly’s fun-

damental right to a relationship with his children protected by

the Due Process Clause of the Fifth Amendment to the United

States Constitution, the SJC’s decision is so shockingly errone-

ous and devoid of evidentiary support, that it must be reversed

as a gross miscarriage of justice.

CONCLUSION

Petitioners pray that certiorari should issue.

Respectfully submitted,

RONALD I. BELL*

*Counsel of Record and

Counsel for Petitioners

SCOTT A. BELL

Counsel for Petitioners

BERNSTEIN & BELL

4 Courthouse Lane

Chelmsford, MA 01824

(508) 458-6339

Date: December 10, 1996

Ironically, the SJC’s opinion in Poly is also inconsistent with its own decisions.

See, e.g.. Adoption of Eugene, 415 Mass. 431, 435, 614 N.E.2d 645, 647

(1993)(parents have a constitutionally protected interest in maintaining a relationship

with their children); Murphy v. 1.S.K. Con of New England, Inc., 409 Mass 842,

859-63, 571 N.E. 2d 340, 351-52 (1991)(the tort of intentional interference with

the parent-child relationship is a contemporary expression of common law actions

involving interference with parental rights, which actions have been around for

over a century); Harry Stoller & Co. v. City of Lowell, 412 Mass. 139, 587 N.E.

2d 780 (1992)(dfe explained); Horta v. Sullivan, 418 Mass. 615, 638 N.E.2d 33

(1994) (dfe explained).

APPENDIX TABLE OF CONTENTS

APPENDIX A

Supreme Judicial Court’s Notice of Denial of Petition

for Rehearing 1A

APPENDIX B

Plaintiff's Petition for Rehearing 2A

APPENDIX C

Notice of Decision, Order for Judgment and Opinion

of the Supreme Judicial Court 23A

APPENDIX D

Superior Court’s Ruling on Moylan’s Motion for

Judgment Notwithstanding the Verdicts 38A

1A

APPENDIX A

Supreme Judicial Court for the

Commonwealth of Massachusetts

1412 Courthouse, Boston, Massachusetts 02108

(617) 557-1020

Ronald I. Bell, Esquire

Bernstein & Bell

4 Courthouse Lane

Chelmsford, MA 01824

RE: No. SJC-07009

GEORGE POLY & another

VS.

MICHAEL T. MOYLAN & others

NOTICE OF DENIAL OF PETITION FOR REHEARING

The Petition for Rehearing filed in the above-captioned case

has been considered by the court and is denied.

Very truly yours,

/s/

Jean M. Kennett, Clerk

Dated: September 11, 1996

To: Ronald I. Bell, Esquire

Laurence Field, Esquire

Allen N. David, Esquire

Essex Superior Court Dept.

2A

\ APPENDIX B

BERNSTEIN 4 COURTHOUSE LANE

& CHELMSFORD, MA 01824

BELL TELEPHONE (508) 458-6339

ATTORNEYS AT LAW TELECOPIER (508) 453-4286

EUGENE D. BERNSTEIN, J.D.

RONALD I. BELL, J.D., LL. M.

SCOTT A. BELL, J.D.

July 25, 1996

Honorable Chief Justice Paul J. Liacos

Supreme Judicial Court

Pemberton Sq.

Boston, MA 02108

Re: PETITION FOR REHEARING

George P. Poly and another v. Michael T. Moylan, etal.’

Supreme Judicial Court Docket No. SJC-07009

Dear Chief Justice Liacos:

Plaintiffs George P. Poly (“Poly”) and Maureen S. Poly

(collectively “Plaintiffs”), submit their Petition for a Rehearing

in the above-referenced case.

A. Introduction:

Where the jury found that the actions of a negligent lawyer

(“Moylan”) (previously disciplined and now disbarred) caused a

father to lose his claim against the government for aiding in the

intentional interference with the father’s constitutionally pro-

‘George P. Poly and Maureen S. Poly v. Thomas E. Cargill, Jr. d/b/a Cargill

Associates and Michael T. Moylan

3A

tected right to a relationship with his children, which claim

the jury also found was winnable; and the jury further found

that, throughout his representation, the negligent lawyer will-

fully and intentionally lied to the father, one would expect that

the opinion by the Supreme Judicial Court (“SJC”), which

upheld a judgment (NOV) absolving the lawyer from liability

and stripping the father of his jury victory, would be compre-

hensive, particularly well reasoned and consistent with relevant

case law. However, the opinion, which reaches such a harsh

result, is seriously flawed both factually and legally. Justice

has not been done.

B. whi Vv

The SJC has omitted, overlooked, or misapprehended sev-

eral key facts.

Some of these key facts are restated here in the light most

favorable to the Plaintiffs:

1. Actions of USAF

a. On April 9, 1979, with Sgt. Gillis present, Janet Gillis

(“J. Gillis”) told a probate court judge that she was not planning

to take the children from their home in Lee, NH. The judge

entered a restraining order to that effect;

b. On April 11, 1979, J. Gillis took the children out of

NH, but not out of the United States;

c. On April 13, 1979, when the judge was informed that

J. Gillis had ignored the restraining order and, in essence, had

previously lied to the probate court, the judge immediately

entered a temporary order awarding Poly custody of the chil-

dren, which order the judge reaffirmed 4 days later;

d. In April 1979, Poly and his divorce attorney, at the

time, notified the USAF of the restraining order and the custody

order;

e. From April, 1979 to June, 1979, the USAF did not

investigate the probate court orders, but instead ignored them

4A

and continued to aid J. Gillis and prepare her and the children

for transportation out of the country;

f. In June, 1979, two (2) months after being put on notice

of the restraining order and the custody order, the USAF

transported J. Gillis, a civilian, and the two children, not

dependents of Sgt. Gillis, out of the United States to join Sgt.

Gillis in Germany. Contrary to the SJC’s opinion, neither J.

Gillis nor the children left the country with Sgt. Gillis, who

had left for Germany on or about April 20, 1979. Exhibit #18;

g. United States Congressmen and Senators, District At-

torneys, media personnel, and others, including the FBI, were

involved in attempting to help Plaintiff get his children back.

See, e.g., exhibits #13, 14, 15, 16, 17, 19, 20, 46, and 50; and

h. The maximum length of an overseas tour of duty is

no more than three years, however, the USAF, acting in the

United States, purposely granted Sgt. Gillis two requests to

extend his tour of duty outside of the United States for over

eight years.

In summary, taking all the facts in the light most favorable

to Plaintiffs, the Poly jury was warranted in finding that the

conduct of the USAF in the United States was negligent and/or

wrongful under the FTCA. By ignoring the probate court or-

ders, the USAF in the United States had aided a civilian in

the parental kidnapping of two children and had facilitated the

intentional interference with a father’s constitutionally pro-

tected right to a relationship with his children for over 8 years.

The SJC omits the facts regarding the USAF’s actions

from April, 1979 to June, 1979, which actions are the corner-

stone of Plaintiffs’ argument. Omitting such critical facts or

presenting them in a non-chronological fashion, the opinion

tends to camouflage the wrongful conduct of the government,

does not explain how those actions could be justified or immune

under the discretionary function exception (“DFE”), and avoids

having to harmonize its decision with the rationale in the deci-

SA

sions of federal cases, such as Franz v. United States, 707

F.2d 582 (D.C. 1983) (“Franz”); Salmeron v. United States,

724 F.2d 1357 (9th Cir. 1983); and Ruffalo v. United States,

590 F.Supp. 706 (W.D.Mo. 1984) (“Ruffalo”). Those federal

cases dealt with the DFE and the intentional interference with

a parent’s constitutionally protected rights, and found the gov-

ernment liable for far less than the negligent and/or wrongful

conduct of the USAF in Poly. Prisco v. Talty, 993 F.2d 21,

26 n.14 (3rd Cir. 1993).

2. Actions of Moylan

The SJC’s opinion also does not adequately convey the

depths of Moylan’s negligence and unethical conduct. Some

key facts are restated here in the light most favorable to Plain-

tiffs. Moylan did not:

a. execute a contingent fee agreement in compliance with

S.J.C. Rule 3:05;

b. initially set forth existing facts in the administrative claim

which he presented to the USAF which would support recovery

under the FTCA, and did not later redraft the Complaint to

highlight actions of the USAF in the United States to address

the shortcomings which the USAF had identified as lacking

in his administrative presentment:

c. bring a claim for loss of consortium and failed to indicate

to Plaintiffs that they had such a claim;

d. in any way, oppose the USA’s Motion to Dismiss the

1985 Complaint; °

e. advance available legal alternatives under Rule 4 F.R.C.P.

regarding service on the Gillises to prevent total dismissal of

the 1985 Complaint, thereby creating a subsequent statute of

limitations problem with a complaint he later filed in 1988;

f. move to vacate dismissal when he received evidence that

the Gillises had been served prior to the 1985 Complaint being

dismissed against them;

6A

g. after filing Complaints against the USAF in 1985 and

1988, conduct any discovery in either of Poly’s cases;

h. in conformance with his usual practice, keep Poly in-

formed of ongoing developments and, throughout his represen-

tation, when he did respond to Poly’s inquiries, Moylan falsely

replied to Poly about the status and progress of Poly’s cases; and

i. Furthermore, over the objection and Affidavit of Poly,

the remainder of the 1988 case was dismissed for lack of

prosecution in August 1992, four (4) months after Moylan was

forced to withdraw as Poly’s counsel because of the malpractice

lawsuit.

The Poly jury was warranted in finding that Moylan was

negligent and that he had willfully and knowingly misrepre-

sented and deceived Poly.

C. Points of law which the SJC has overlooked or misappre-

hended:

In its discussion of the law, the SJC overlooks or misap-

prehends several key legal propositions which are important

to an accurate analysis of the case.

1. The case against the USAF and the discretionary function

exception.

Given the obvious negligent or wrongful conduct of the

USAF and the negligent acts or omissions of the defendant

attorney, the SJC’s reliance upon the DFE to absolve the USAF

and the negligent lawyer from liability in Poly, is inconsistent

with, and not supported by, the SJC’s reasoning in Harry

Stoller & Co. v. City of Lowell, 412 Mass. 139, 587 N.E.2d

780 (1992) (“Stoller”) and Horta v. Sullivan, 418 Mass. 615,

638 N.E.2d 33 (1994) (“Horta”), and the reasoning in relevant

federal case law. It is impossible to reconcile the different

results.

First, in discussing the DFE, it is important to identify the

allegedly negligent conduct of the USAF on which Poly bases

|

TA

liability, because it is that conduct that must have included

the DFE. Plaintiffs’ principal theory in Poly was that, by

ignoring valid state court orders, the government aided a civi-

lian in parental kidnapping and facilitated the intentional inter-

ference with the constitutionally protected right of a father to

a relationship with his children. Murphy v. 1.S.K. Con of New

England, Inc., 409 Mass. 842, 571 N.E.2d 340 (1991).

Nowhere, however, in the Poly opinion, does the SJC articu-

late, let alone focus on, Plaintiffs’ theory.

There was no statute, regulation, internal guideline, or pol-

icy, and the SJC has cited to none, which was furthered by

the USAF’s conduct, or which authorized or condoned the

USAF (1) ignoring valid court orders, (2) facilitating parental

kidnapping by sending a civilian overseas with two children

who pursuant to court orders, belonged in the custody of their

father, and (3) aiding and abetting in the intentional interference

with the constitutionally protected right of a father to a relation-

ship with his children. Defendants had argued that the USAF

conduct in June of 1979 was controlled by the neutrality policy

and the trial judge agreed. If the neutrality policy did control in

!979, the DFE would play no role because USAF officials

would have had to follow that policy and they obviously did not.

Although the neutrality policy was the linchpin of the Defend-

ants’ discretionary function defense and the centérpiece of the

trial judge’s erroneous decision, the SJC’s opinion bypasses

its significance in a footnote.

Instead, the SJC focuses on the limited issue of whether the

USAF was obligated, or merely permitted, to return enlisted

personnel from overseas, because of court orders or criminal

warrants, or deliver them, on request, to civil authorities for

trial. The SJC concludes that the governing regulations on that

limited and irrelevant issue were “permissive” and therefore

USAF officials had discretion in deciding whether to return

enlisted personnel. According to the SJC, since deciding to

8A

return enlisted personnel from overseas is a discretionary deci-

sion and all discretionary decisions are to be made in the best

interest of the United States and the USAF, the decision of

the USAF officials not to return Sgt. Gillis from overseas was

grounded in the policy of acting in the best interest of the United

States and the USAF, and is protected under the DFE.

The SJC has misapprehended the offending conduct. J. Gillis

and the two boys were not enlisted personnel and the primary

allegation of negligence was sending J. Gillis with the children

overseas in the first place in total disregard of the probate court

orders. Although Plaintiff argued that the USAF also acted

negligently or wrongfully in the United States by twice approv-

ing Sgt. Gillis’ requests to extend his tour of duty overseas,

and thus facilitated J. Gillis in wrongfully remaining overseas

with the children for over eight years, Plaintiffs never argued

that the USAF had to interrupt Sgt. Gillis’ normal tour and

return Sgt. Gillis to civil authorities for trial. Plaintiff probably

could not have cared less if the USAF had sent Sgt. Gillis into

space and kept him there until he retired. The issue of interrupt-

ing Sgt. Gillis’ normal tour and returning Sgt. Gillis to civil

authorities for trial was not Plaintiffs’ case and it is improper

to suggest that it was.

Having absolved the USAF for the discretionary act of refus-

ing to return Sgt. Gillis from overseas, in one brief sentence

the SJC characterizes the “initial act of permitting Sgt. Gillis

to leave this country with his wife’s children” as an “operational

decision.” The SJC then implies that all operational decisions

are included within the DFE, and therefore, the USAF also

had discretion to ignore the court orders and send J. Gillis and

the children to Germany. But see Burns v. United States, 618

F.Supp. 882, 883-84 (D.C. Mass. 1985).

This distorts the USAF’s wrongdoing, because the children

did not leave the country with Sgt. Gillis in April, 1979. They

left the country with civilian J. Gillis two months later, in June,

9A

1979. Exhibit #18. And, whether it is proper to refer to the

children as “his wife’s children” or “George Poly’s children,”

the facts are that by a Massachusetts probate court order, of

which the USAF was on notice, the children belonged in the

custody of their father.

When in June of 1979, USAF officials negligently or wrong-

fully decided to ignore valid court orders and send J. Gillis

out of the United States thereby aiding a civilian in parental

kidnapping and facilitating the intentional interference with a

constitutionally protected right of a father to a relationship

with his children, the USAF officials’ decision, even if argu-

ably “operational,” was ministerial in nature and involved no

social, political, or economic policy considerations. USAF

officials were not making choices with respect to public policy

and planning, but rather their decision was an ad hoc decision

based on the situation confronting them. Horta, 418 Mass. at

621; Alake v. City of Boston, Mass. App. Ct. Docket No.

94-P-747, Lawyers Weekly No. 11-130-96 (July 8, 1996).

Certainly there was no evidence offered by Defendants that

any USAF official said “let me see if I ignore these court

orders and send this civilian overseas with these 2 children

who, the court has determined, belong in the custody of their

father, I’m acting in the best interest of the country and the

USAF”! Even the Court in United States v. Gaubert, 499 U.S.

315, 324-25 (1991), points out that to be immunized, govern-

mental “actions must be the kind of conduct that can be said

to be grounded in the policy of the regulatory regime,” i.e.,

based on the purposes that the regulatory regime seeks to

accomplish. /d. at 325 and n.7. Can the SJC seriously state

that the conduct of the USAF was the kind of conduct which

furthered the best interest of the country and the USAF? The

USAF was helping take away a constitutionally protected right

which it is sworn to protect. It is difficult to imagine USAF

officials, who are sworn to uphold the Constitution, justifying

10A

their decision to ignore court orders which facilitates the depri-

vation of a constitutionally protected right, on any policy

grounds. See Alter v. City of Newton, 35 Mass. App. Ct. 142,

145, 617 N.E.2d 656, 659 (Mass. App. Ct. 1993).

In the name of discretion, the SJC’s decision implicitly

condones actions by government employees which show no-

thing but contempt for court orders; actions which are hardly

in the best interest of the country. Applying the SJC’s reasoning

in Poly, since every discretionary decision of the USAF is

grounded in the broad overall policy of acting in the best

interest of the United States, every discretionary decision by

the USAF will be immune under the DFE. Obviously that does

not make sense, nor is it consistent with the SJC’s pronounce-

ments in Stoller and Horta, and it is not the law.

The court’s reasoning in those cases provides the foundation

for granting a rehearing in Poly:

. . . [The discretionary function exception, both under

our [Massachusetts Tort Claims] Act and under the Fed-

eral Tort Claims Act. . . is far narrower, providing im-

munity only for discretionary conduct that involves policy-

making or planning. Because of the limitation of the

exemption to conduct that is policymaking or planning,

the words “discretionary function” are somewhat mislead-

ing as a name of the concept.

. . . [T]he dividing line should be between those func-

tions that “rest on the exercise of judgment and discretion

and represent planning and policymaking [for which there

would be governmental immunity] and those functions

which involve the implementation and execution of such

governmental policy or planning [for which there would

be no governmental immunity].” . . . [W]hen the conduct

that caused the injury has a “high degree of discretion and

judgment involved in weighing alternatives and making

11A

choices with respect to public policy and planning, gov-

ernmental entities should remain immune from liability.”

. . . But, when that conduct “involves rather the carrying

out of previously established policies or plans, such acts

should be governed by the established standards of tort

liability applicable to private individuals or entities.” . . .

The general rule, however, should be one of governmental

tort liability.

... The path of the opinions of the United States

Supreme Court concerning the discretionary function ex-

ception has been neither straight nor clear. . . . {E]Jach

case depends on its facts. . . .

. . » The important lesson from the opinions of the

Supreme Court is that Governmental immunity does not

result automatically just because the governmental actor

had discretion. [Whether at the policy or planning level

or the operational level, ] / d]iscretionary actions and deci-

sions that warrant immunity must be based on consider-

ations of public policy. United States v. Gaubert, ___

U.S. —_, 111 S.Ct. 1267, 1273-74, 113 L.Ed.2d 335

(1991). Berkovitz v. United States, 486 U.S. Jak, Da,

108 S.Ct. 1954, 1959, 100 L.Ed.2d 531 (1988).

Stoller, 412 Mass. at 141-43. (emphasis added).

Determining whether certain discretionary conduct in-

volves policy making or planning is not a simple task.

. . . The question whether a governmental actor’s con-

duct involves discretion of the planning or policy-making

type must be narrowly focused on the allegedly negligent

conduct, not on whether the actor’s conduct is part of

some broader governmental policy.

Indeed, we can presume that all governmental employ-

ees, in their official duties, act in furtherance of some

governmental policy.

12A

Horta, 418 Mass. at 620-21 and n.12 (emphasis added).

Drawing on the SJC’s analysis in Horta, we can presume

that every action of a USAF official is arguably in furtherance

of some governmental policy, including the broad overall pol-

icy of acting in the best interest of the country. See Horta,

418 Mass. at 621 n.12. If that is all that is required to invoke

the DFE, the exception will soon swallow up the FTCA. The

real question is, did the specific conduct of the USAF alleged

by Plaintiffs to be negligent or wrongful involve social, polit-

ical, or economic policy considerations, and not just some

broader governmental policy to act in the best interest of the

country?

The SJC states in a footnote that Poly and Stoller are different

because in Stoller there was a clear policy established and in

Poly there was none. However, in Stoller there was no statute,

regulation, or established municipal practice which required

firefighters to use sprinklers or hoses. Stoller, 412 Mass. at

146. In Poly, it was acceptable practice to investigate the

validity of court orders, and, if valid, cooperate with civilian

authorities. It would be rare for the USAF to knowingly take

action which would facilitate a civilian defying probate court

orders, kidnapping children and interfering with a constitu-

tional protected right! How is that policy less clear than the

policy of Stoller? Not only is Poly more analogous to Stoller

than different, but also Poly is arguably more compelling a

case for government liability than was Stoller.

Interestingly, whether the DFE applies to immunize govern-

mental actors who aid in the intentional interference with the

constitutionally protected right of a parent to a relationship

with his children is not unmapped territory. Federal case law

on the subject was brought to the SJC’s attention, as well as

to the attention of the trial judge. Whereas in Stoller the SJC

did discuss the federal cases regarding government negligence

in fighting fires, in Poly the SJC does not discuss nor even cite

13A

to the well reasoned opinions in such federal cases as Franz

and Ruffalo, which thoroughly analyze governmental interfer-

ence with the constitutional right of a parent to a relationship

with his children, and conclude that the government’s conduct

is not immunized from liability by the DFE. Prisco v. Talty,

993 F.2d 21, 26 n.14 (3rd Cir. 1993).

Where the SJC does not mention Plaintiff's primary theory

of the case, nor focus on the true nature of the USAF’s negligent

or wrongful conduct, does not cite the federal cases on point,

relegates the Stoller case, containing the SJC’s most thorough

analysis of the DFE, to footnotes, does not properly apply the

case law to the facts in Poly, and concludes in favor of the

negligent-disbarred attorney rather than reinstate a jury verdict

for the Plaintiff father, the SJC’s decision cannot stand.

2. Claim against the Gillises

Although the trial judge controlled important evidence in

order to “influence” the jury to find, as he had, that the 1988

case against the Gillises was “viable,” the jury did not find

that it was. For the SJC to ignore the jury’s finding and to

take the side of Moylan, the negligent lawyer, and the trial

judge, by concluding that the 1988 Complaint was a viable

case when Moylan withdrew in 1992, is unnecessarily reaching.

Due to Moylan’s negligence, there is no way that the 1988

case against the Gillises could have been won, because, by

law it was barred by the Statute of Limitations. The Statute

of Limitations was a defense both because (1) the same claims

had been brought and previously dismissed with the 1985 case,

and (2) because under G.L. c. 260, § 32, Moylan had only

until February, 1987 (1 year after the 1986 dismissal of the

1985 Complaint), to reassert a claim against the Gillises and

he did not file the supposedly “viable” second Complaint until

1988.

No matter what part of the 1988 case was left against the

Gillises in 1992, the USAF, the most likely source of recovery

ee

14A

for Plaintiffs, was no longer a party to that case. Since, the

USA and the Gillises were joint tortfeasors in the 1985 case,

Plaintiffs would have been able to recover any judgment against

the Gillises from the USA. Plaintiffs did submit evidence of

“collectability” against the Gillises in the 1985 case by pointing

out to the court the statutory law which provides for recovery

of judgments against the USA. There was enough evidence of

“collectability” to satisfy the minimum requirement that a

Plaintiff show that he could collect “something” on a judgment.

Finally, the entire child support system is based on income,

and in some cases only attributable income, as “a mere measure

of ability to pay without an assessment of debts.”

In any event, Poly attempted to have the 1988 case continued

without success, and the blame for its subsequent dismissal is

properly placed on the withdrawing lawyer, rather than on the

client. Several cases stand for the proposition that a lawyer

cannot do what Moylan did; be forced to withdraw from a

case, and when the case is lost, claim that he did nothing

wrong. Winter v. Brown, 365 A.2d 381 (D.C. App. 1976);

Murphy v. Smith, 411 Mass. 133, 579 N.E.2d 165 (1991).

3. Misrepresentation and Deceit, Generally

(a) Jury instructions, evidence, and award on misrepre-

sentation.

There was evidence that Moylan’s deceit precluded

Poly from vacating the dismissal of the 1985 Complaint, which,

notwithstanding the DFE, the jury found Poly would have

won. Thus, the judge’s instructions limiting damages for

Moylan’s deceit were wrong. Regardless of whether the judge

had made up his mind to later rule that because of the DFE,

the Complaint against the USAF was unwinnable as a matter

of law, correct instructions on damages for deceit, which prop-

erly included the loss of the underlying case, should have been

given. The opinion glosses over the judge’s erroneous instruc-

22> ib Wt 06 ve hanetaesacutaly

Mp TEA ROB ood rental oe

a te eee) ee ee

ISA

tions on these damages, and justifies a multitude of legal errors

by falling back on the misapprehended proposition that the

case against the USAF was unwinnable.

b. Loss of consortium claims.

Both Polys went to Moylan for help. It was Moylan’s

duty to advise both Polys of the causes of action available to

them, one of which was a claim for loss of consortium. He

breached his duty. Thus, Maureen Poly was not a party to the

claim against the USAF and did not appear to be represented

by Moylan in the lawsuit. But why reach to find for Moylan,

when good practice is to advise a client of any claims that can

be brought on behalf of his wife?

c. Judicial bias.

It is axiomatic that a different judge, who had not sat

on a four (4) weeks long trial and who did not have the benefit

of the trial transcript would not conclude on a motion for a

new trial that the trial judge, a colleague, denied a party his

constitutional right to a fair and impartial trial. To suggest that

the different judge’s denial of a Motion for a New Trial,

containing such an allegation, is any basis to conclude that

there was no unfair bias and denial of the constitutional right

to a fair trial is a mistake. Even a cursory reading of the trial

transcript amply supports Plaintiffs’ claim. If every party,

under such circumstances, moved for a mistrial, or disqualifi-

cation or recusal of the judge, most, if not all, of those motions

will be routinely denied, potentially exposing the moving party

to increase bias and partiality of the judge. Moreover, there

are legitimate time and economic concerns which must be

considered before deciding to move to disqualify the trial judge

and abort a lengthy trial in midstream. On the other hand, if

the judge is the type of judge who is going to grant a motion

to disqualify himself, more than likely he will also be

16A

the type of judge who will respond properly to rectify the

offending behavior when counsel respectfully points out to the

judge that the judge is “killing” counsel’s client’s case. There

is always that reasonable expectation and Plaintiff took that

reasonable approach in this case, but without success.

4. Cargill

The opinion concedes that Cargill was Moylan’s employ-

er, but does not address the issues of respondent superior,

apparent authority, or the trial judge’s manipulation of the

evidence which resulted in the jury’s finding that Cargill did

not have the right to control Moylan. The newly discovered

private reprimand requires Moylan’s practice of law to be

supervised at the Cargill law firm and identifies Cargill as

Moylan’s employer, despite the Defendant lawyers’ misrepre-

sentations throughout the case that Moylan was an independent

contractor. The Reprimand emphasizes how unfair the trial

judge’s manipulation of the employer-employee issue was.

Obviously the trial judge who considered Plaintiffs’ Motions

based on the newly discovered evidence, was not going to

agree that the Reprimand invalidated the result which he orches-

trated to absolve Cargill. The trial judge’s denials of the Mo-

tions were pro forma.

5. Chapter 93A

Before the trial judge elected to believe Moylan and to

find that Moylan had done nothing unfair or deceptive, the

trial judge was aware through post-trial pleadings of informa-

tion consistent with the jury’s finding that Moylan had deceived

Poly. In 1987, Moylan had stipulated to the BBO that he had:

(1) forged the signature of another attorney to a check and

stole money from the other lawyer;

(2) in another matter; he missed the statute of limitations

for filing a lawsuit and then kept that from his client;

I7A

(a) after missing the statute of limitations, he, neverthe-

less filed a lawsuit and failed to serve it upon the defendants;

(b) over the next three years, in response to inquiries

from his clients about the status of his case, he lied to his client;

(3) in yet another case, in which he had filed a suit on

behalf of a different client, he failed to take any further action

of record in the case;

(a) for over three years when contacted by the client

about the status of his case, he deceived his client;

(b) when the client finally checked the court docket,

the client discovered that the complaint Moylan had filed had

never been served on the defendants in that case; and

(c) that case was eventually dismissed for lack of prose-

cution; and

(4) ignored three letters from Bar Counsel, two of which

were sent certified mail, return receipt requested (in addition

to first class mail), and failed to respond to Bar Counsel’s

inquiries until he was subpoenaed to the office of Bar Counsel.

Those actions are similar to all of the actions of malpractice

and fraud committed by Moylan in the Poly case.

Through those same post-trial pleadings, on appeal, the SJC

also knew of Moylan’s prior disciplinary record. Ironically,

Judge Lynch, who wrote the 1996 appellate decision in Poly,

holding that, despite the jury’s verdict finding that Moylan

had willfully and knowingly deceived Poly, the trial judge was

warranted in ruling that Moylan had not committed any unfair

or deceptive act or practice, is the same judge who disbarred

Moylan in 1995 for negligent, unethical, and fraudulent actions

in another case Moylan had handled during the same time

frame he was representing Poly, which actions in that other

case are also remarkably similar, if not identical, to the negli-

gent, unethical, and fraudulent actions of Moylan that Plaintiffs

proved to the jury in their case. For convenience, a copy of

the summary of evidence leading to Moylan’s disbarment in

1995 is attached.

18A

Although a trial judge’s c. 93A findings may differ from a

jury’s common law finding of fraud, given all of the foregoing,

the trial judge’s decision and the SJC’s opinion are indefensible.

D. Conclusion

Based on all of the foregoing, Plaintiffs’ Petition For a

Rehearing should be granted.

Respectfully submitted,

George P. Poly and Maureen S. Poly

By Plaintiffs’ Attorneys

Bernstein & Bell

/s/

Ronald I. Bell BBO #036400

/s/

Scott A. Bell BBO #628944

cc: Laurence Field, Esq.

Allen N. David, Esq.

Attachment

19A

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

NO: BD-95-021

IN RE: MICHAEL T. MOYLAN

ORDER

This matter came before the Court, Lynch, J., presiding,

on an Information filed on March 16, 1995. It is ORDERED

that the respondent Michael T. Moylan shall be immediately

disbarred from the practice of law in the Commonwealth of

Massachusetts and his name is stricken from the roll of attorneys

in the Commonwealth of Massachusetts.

It is further ORDERED that Michael T. Moylan shall file

with the office of Bar Counsel his affidavit of compliance with

S.J.C. Rule 4:01, sec. 17 within thirty days after the effective

date of this Order.

By the Court, (Lynch, J.)

/s/

Assistant Clerk

Entered: May 22, 1995

20A

IN RE: MICHAEL T. MOYLAN

No. BD-95-021

SUMMARY '

On December 30, 1983, a fourteen-year-old boy was injured

when the car in which he was a passenger collided with a bus.

His father retained counsel to represent the boy’s claims against

the driver of the car, the bus driver, and the owner of the bus

company.

In January 1984, counsel referred the personal injury case

to the respendent, with the boy’s father’s consent. Neither

original counsel nor the respondent had an executed contingent

fee agreement in compliance with S.J.C. Rule 3:05.

In June 1984, the respondent settled the claim against the

driver of the car and the driver’s insurance company for

$10,000.00. The respondent negotiated a compromise of the

medical lien with Blue Cross/Blue Shield for $3,333.34. The

respondent told the parents that the remaining money from the

settlement would be deposited in an account for the child’s

benefit pending resolution of the remaining claims.

The respondent did not retain the settlement funds in an

account for the child’s benefit. Instead, the respondent com-

mingled the funds with his own and converted the funds to

his own use.

In December 1986, the respondent filed a civil complaint

on behalf of the father and son against the bus company and

the driver of the bus. The respondent failed to serve the defend-

ants with the complaint and did no further work on the case.

The father made inquiries about the status of the case in 1986

‘Compiled by the Board of Bar Overseers based on the record submitted to the

Supreme Judicial Court.

21A

and 1987, to which the respondent falsely replied that the case

was held up by a backlog in the court.

In February 1992, the father asked the respondent for a copy

of the complaint and the docket number. The respondent failed

to provide this information. In March 1992, the father discov-

ered on his own that the complaint had never been served on

the defendants.

In March 1992, the father hired successor counsel and dis-

charged the respondent. The father demanded that the respon-

dent return the file, provide an accounting, and refund the

settlement funds. The respondent did not reply to this demand.

After subsequent letters from successor counsel to the respon-

dent requesting an accounting and the return of the file, the

respondent told successor counsel that he had lost the file. The

respondent never provided an accounting for a refund of the

settlement funds.

In May 1992, successor counsel served the defendants with

the complaint filed by the respondent. Successor counsel asked

the respondent to provide information demonstrating there was

good cause for the failure to make service. The respondent

did not reply to this request. The action was dismissed by the

court for failure to effect timely service.

Successor counsel, on behalf of his clients, filed a request

for investigation with the Office of Bar Counsel. The respon-

dent failed to cooperate with Bar Counsel’s investigation.

The respondent received a private reprimand in 1987 for

misconduct arising from three complaints similar to the instant

matter. PR-87-23, 5 Mass. Att’y Disc. R. 515.

The respondent’s conduct violated Canon One, Disciplinary

Rule 1-102(A)(4) and (5) (prohibiting conduct involving dis-

honesty, deceit and misrepresentation and conduct prejudicial

to the administration of justice); Canon Two, Disciplinary Rule

2-106(C) (lawyer shall not enter in an arrangement for or

charge a contingent fee without a written contingent fee agree-

22A

ment) and Disciplinary Rule 2-110(A)(2) (discharged lawyer

shall deliver to the client all papers and property to which the

client is entitled); Canon Six, Disciplinary Rule 6-101(A)(3)

(lawyer shall not neglect a legal matter); Canon Seven, Disci-

plinary Rules 7-101(A)(1), (2) and (3) (failure to represent a

client zealously, failure to carry out contract of employment,

and prejudicing client during course of employment); Canon

Nine, Disciplinary Rule 9-102(A) and (B) (failure to preserve

identity of funds and property of client, failure to place in safe-

keeping client’s property, failure to render accounts to client

and failure to turn over to client his property); and SJC Rule

4:01 § 3 (lawyer required to respond to Bar Counsel's requests

for information during course of investigation).

The hearing committee, the appeal panel, and the Board of

Bar Overseers recommend disbarment. The Board of Bar Over-

seers filed an information recommending disbarment on March

15, 1995. On May 22, 1995, following argument by the parties,

the Supreme Judicial Court for Suffolk County entered an

order disbarring the respondent from the practice of law.

23A

APPENDIX C

Supreme Judicial Court

for the Commonwealth of Massachusetts

1412 Courthouse, Boston, Massachusetts 02108

(617) 557-1020

Ronald I. Bell, Esquire

Bernstein & Bell

4 Courthouse Lane

Chelmsford, MA 01824

RE: No. SJC-07009

GEORGE POLY & another

VS.

MICHAEL T. MOYLAN & others

NOTICE OF DECISION

Enclosed please find a copy of the decision rendered by the

court in the above-captioned case.

Very truly yours,

/s/

Jean M. Kennett, Clerk

Dated: July 11, 1996

24A

COMMONWEALTH OF MASSACHUSETTS

Supreme Judicial Court for the Commonwealth

at Boston, JULY 11, 1996

IN THE CASE NO. SJC-07009

GEORGE P. POLY

vs.

MICHAEL T. MOYLAN & others.

pending in the Superior Court Department of the Trial Court

for the County of Essex, No. 91-2299.

ORDERED, that the following entry be made in the docket;

viz., —

The judgment notwithstanding the verdict on the malpractice

claim is affirmed. The damages under the deceit claim are

vacated, and the denial of damages under G.L. c. 93A is

affirmed.

BY THE COURT,

/s/ , CLERK.

July 11, 1996

SEE OPINION ON FILE.

25A

SJC-07009

GEORGE P. POLY & another! vs. MICHAEL T. MOYLAN

& others.”

Essex. March 4, 1996. — July 11, 1996.

Present: Liacos, C.J., Wilkins, Abrams, Lynch & Greaney, JJ.

Practice, Civil, Judgment notwithstanding verdict, Judicial

discretion, New trial. Attorney at Law, Malpractice, Negli-

gence. Federal Tort Claims Act. Deceit. Negligence, Caus-

ing loss of consortium. Jury and Jurors. C onstitutional Law,

Fair trial. Consumer Protection Act, Unfair or deceptive act.

Civil action commenced in the Superior Court Department

on July 18, 1991.

The case was tried before John P. Forte, J., sitting under

statutory authority, and an amended motion for a new trial

was heard by Joseph A. Grasso, Jr., J.

The Supreme Judicial Court granted an application for direct

appellate review.

Ronald I. Bell (Scott A. Bell with him) for the plaintiffs.

Allen N. David (Harvey Weiner with him) for Michael T.

Moylan.

Laurence Field for Thomas E. Cargill, Jr.

‘Maureen S. Poly. When we refer to a single plaintiff, we mean the principal

plaintiff, George P. Poly.

? Thomas E. Cargill, Jr., and Cargill Associates.

26A

LYNCH, J. This appeal arises in an action by George P.

Poly (plaintiff) and Maureen S. Poly (plaintiff's wife) against

the defendants because of their alleged improper handling of

a prior action against the United States Air Force (USAF), the

plaintiff's former wife, Janet C. Gillis, and her husband, Air

Force Sergeant Earl J. Gillis. On appeal the plaintiff argues

that: (1) the trial judge erred in allowing the defendants’ motion

for judgment notwithstanding the verdict; (2) the judge erred

in ruling that the USAF would not have been liable in the

underlying tort claim; (3) the judge’s biased conduct violated

the plaintiff's right to a fair and impartial trial; (4) he is entitled

to a new trial because a newly discovered private reprimand

by the Board of Bar Overseers confirms an employee relation-

ship between Moylan and Cargill; and (5) the judge erroneously

decided that the defendants had no liability under G.L. c. 93A

(1994 ed.).

1. Procedural History. The plaintiff filed this action

against his former lawyer, Michael T. Moylan, and Moylan’s

employer during part of the period at issue, Thomas E. Cargill,

Jr., and Cargill Associates. The complaint argued: (1) negli-

gence and breach of contract; (2) misrepresentation and deceit;

(3) unfair or deceptive acts or practices under G.L. c. 93A;

and (4) the plaintiff's wife’s claimed loss of consortium.

The case, except for the G.L. c. 93A count, was then tried

before a jury, resulting in a verdict for the plaintiff. In response

to special questions, the jury found that Moylan had been

negligent, and had misrepresented material facts to the plain-

tiff, and that the plaintiff would have prevailed both against

the Gillises and the USAF. The jury also found that Cargill

did not have control over Moylan in regard to the plaintiff's

case and that the plaintiff's wife suffered no loss of consortium.

The judge found that neither defendant had committed any

unfair or deceptive act, and therefore dismissed the G.L. c. 93A

claim and awarded both defendants their costs.

27A

He then allowed Moylan’s motion for judgment notwith-

standing the verdict on the malpractice count; reduced the

damages from $10,000 to $295 on the misrepresentation and

deceit count; and denied the plaintiff's motion for a new trial

on the G.L. c. 93A count. Another Superior Court judge denied

the plaintiffs’ motion for a new trial on the malpractice, mis-

representation and deceit counts. The plaintiffs and Moylan

cross appealed. We granted the plaintiffs’ application for direct

appellate review.

2. The underlying tort claims. We summarize the evidence

in the light most favorable to the plaintiff. As a result of a

divorce, Janet Gillis, the plaintiff's former wife, was awarded

custody of their two sons with the plaintiff having visitation

rights. In 1979, Sgt. Earl Gillis, her then husband, was reas-

signed from Pease Air Force Base in New Hampshire to Ram-

stein Air Force Base in Germany. The USAF allowed Janet

Gillis and the children to join Sgt. Gillis in Germany.

On April 9, 1979, the plaintiff had obtained an order in the

Middlesex Probate Court prohibiting Janet Gillis from remov-

ing the children from their home in Lee, New Hampshire. On

April 13, 1979, the plaintiff sought and obtained a temporary

custody order. The plaintiff then went to Lee and Pease Air

Force Base in an unsuccessful attempt to find Janet Gillis and

the children. At Pease Air Force Base, the plaintiff presented

a copy of the temporary custody order to a USAF officer in

the Judge Advocate General’s Corps. On April 18, 1979, the

plaintiff provided the USAF with another copy of the custody

order.

On October 31, 1979, the Probate Court awarded permanent

custody of the boys to the plaintiff. In 1980, criminal arrest

warrants for kidnapping were issued against the Gillises. The

USAF was notified of these warrants.

In May, 1983, and May, 1985, the USAF approved Sgt.

Gillis’s request to extend his tour of duty in Germany. In July,

28A

1987, after the Gillises returned with the children to the United

States they were found guilty of kidnapping under G.L.c. 265,

§ 26A (1994 ed.), and fined $2,550. Janet Gillis was found

in contempt of the October 31, 1979, judgmem and fined $500.

While the Gillises were in Germany with the boys in middle

to late 1984, the plaintiff engaged Moylan. In January, 1985,

Moylan presented an administrative claim to the USAF under

the Federal Tort Claims Act (FTCA). The USAF denied the

claim, contending that all acts allegedly committed by its per-

sonnel took place in Germany and that the FTCA did not apply

under the foreign country exception.

In July, 1985, Moylan filed a complaint against the Gillises

and the USAF in the United States District Court. Despite the

USAF’s prior successful invocation of the FTCA’s foreign

country exception, Moylan did not draft the complaint to em-

phasize the actions of USAF personnel in the United States.

In January, 1986, the USAF moved to dismiss on the basis

of the foreign country exception. Moylan did not discuss the

motion to dismiss with the plaintiff, and unilaterally decided

not to oppose it. The United States District Court dismissed

the plaintiff's claim against the USAF, noting that no exception

had been submitted and that all of the actions by the United

States that formed the basis of this complaint occurred in a

foreign country.

Moylan had not served the complaint on the Gillises for

over 120 days. As a result, the United States District Court

ordered Moylan to show cause why service had not been made.

At the show cause hearing, Moylan failed to recognize or to

argue that Fed. R. Civ. P. 4(m) (1995) provides more than

120 days for service on defendants outside of the United States.

The District Court dismissed the complaint against the Gillises

on February 26, 1986. Subsequent to the dismissal, Moylan

learned that service had been properly made, but did not move

to vacate the dismissal.

29A

In 1988, Moylan filed a second complaint against a USAF

official and the Gillises, this time in the Superior Court, alleg-

ing intentional infliction of emotional distress and a violation

of the Massachusetts Civil Rights Act (G.L. c. 12, § 111 [1994

ed.]).° This second complaint was dismissed against the gov-

ernment (as substituted defendant) on the ground that the statute

of limitations had expired.

Moylan failed to inform the plaintiff that his action in the

United States District Court had been dismissed, and that the

action in the Superior Court had also been dismissed against

the government. He also failed to answer the plaintiff's ques-

tions, never sent documents relative to the status of the case,

and avoided the plaintiff's calls. The plaintiff did not learn

about the two dismissals until 1991. Moylan also failed to

inform the plaintiff that he had decided to stop using an inves-

tigator in the case.

After the plaintiff sued Moylan in July, 1991, Moylan moved

to withdraw from the case against the Gillises in the Superior

Court. This motion was allowed in March, 1992. Moylan

conducted no discovery in either case. The Superior Court

case was finally dismissed by November, 1993.

3. Count 1: legal malpractice. In view of the allowance of

Moylan’s motion for judgment notwithstanding the verdict,

we inquire whether, on any reasonable view of the evidence,

there is a combination of facts from which a rational inference

may be drawn in the plaintiff's favor. Sullivan v. Brookline,

416 Mass. 825, 826 (1994), and cases cited.

In a legal malpractice action a plaintiff who alleges his

attorney was negligent in the prosecution of a claim will prevail

if he proves that he probably would have obtained a better

result had the attorney exercised adequate skill and care. Fish-

’ The plaintiff characterizes the second lawsuit as having been frivolously brought

by Moylan, as the statute of limitations had run and insufficient facts were alleged

to support a civil rights violation.

30A

man v. Brooks, 396 Mass. 643, 647 (1986). “[Fjormer clients

suffer a loss due to an attorney’s negligence only if that negli-

gence is shown to have made a difference to the client.” Jerni-

gan v. Giard, 398 Mass. 721, 723 (1986).

(a) The case against the USAF and the discretionary func-

tion exception. The defendants argue that the cases against

the USAF could not have been won because the claim was

barred by: (1) the discretionary function exception to the FTCA;

(2) the foreign country exception to the FTCA; (3) the fact

that Moylan was not retained until the statute of limitations

had run; and (4) insufficient evidence of intent. We agree with

the defendants that the claim was barred by the discretionary

function exception to the FTCA. We do not reach the other

arguments.

The discretionary function exception of the FTCA prohibits

recovery where the alleged tort is “based upon the exercise or

performance or the failure to excercise or perform a discretion-

ary function or duty on the part of a federal agency or an

employee of the Government, whether or not the discretion

involved be abused.” 28 U.S.C. § 2680(a) (1994).

Whether conduct falls under the discretionary function ex-

ception is a question of law. See Hart v. United States, 894

F.2d 1539, 1544 (llth Cir.), cert. denied, 498 U.S. 980

(1990); Garcia v. United States, 826 F.2d 806, 809 (9th Cir.

1987).* The United States Supreme Court has provided a two-

step test for applying the discretionary function exception.

Berkovitz v. United States, 486 U.S. 531, 536 (1988).° The

court must first determine whether the governmental actor had

‘The plaintiff argues that the judge in instructing the jury erred in placing the

burden on the plaintiff to show that the discretionary function exception did not

apply. As the jury found for the plaintiff on this issue, any error was harmless.

“As we have concluded that the discretionary function exception to the Massa-

chusetts Torts Claims Act, G.L. c. 258, § 10(b) (1994 ed.), is guided by the same

exception in the FTCA, our analysis of cases applying Massachusetts law are also

relevant. Harry Stoller & Co. v. Lowell, 412 Mass. 139, 142-43 (1992).

31A

discretion to decide which course to follow and, if so, whether

the exercise of that discretion involves policy making or plan-

ning. United States v. Gaubert, 499 U.S. 315, 323 (1991).

Federal law at the time at issue did not obligate the USAF

to return enlisted personnel from overseas because of court

orders or even criminal warrants. 10 U.S.C. § 814 (the military

may or may not deliver members for trial). A member of the

armed forces stationed abroad and accused of an offense by

civil authority may be delivered, on request, to the civil author-

ity for trial. See 32 C.F.R. § 884.3; 32 C.F.R. § 884.4(d).

This is “permissive only.” Jennings v. Markley, 186 F.Supp.

611, 613 (S.D. Ind. 1960), aff'd, 290 F.2d 892 (7th Cir.

1961). Therefore, the USAF had discretion to return the Gil-

lises to the United States.

It is more difficult to determine whether that discretionary

conduct involves policy making or planning. Harry Stoller &

Co. v. Lowell, 412 Mass. 139, 141 (1992), discussing Berkovitz

v. United States, supra. The plaintiff's military witness testified

that, in making the decision on a request to return military

personnel, the overall USAF policy was to act in the best

interest of the country and the USAF.° Whether an act is in

the best interests of the United States is a matter of policy.’

The decision of the USAF, therefore, was grounded in policy

as required by the second part of the discretionary function

exception.

“There was also evidence offered by the defendants that the USAF had a clear

policy of neutrality with regard to child custody disputes. We disregard the neutrality

issue and focus on the undisputed policy that all discretionary decisions were to

be made in the best interests of the United States and the USAF.

"Regulations issued subsequent to this case indicate that now the official policy

is that in a parental kidnapping case, the USAF is to encourage their military

personnel to cooperate with civil authorities and then possibly withdraw command

sponsorship. 32 C.F.R. § 884.5 (1995). There is no requirement for either of those

actions. The plaintiffs cite to Harry Stoller & Co. v. Lowell, supra at 141, for the

proposition that, when conduct involves carrying out previously established policies

or plans, then the governmental entities should not be immune. Since there was

no clear policy established. this case does not apply.

32A

As the Supreme Court has stated:

When established governmental policy, as expressed or

implied by statute, regulation, or agency guidelines, al-

lows a Government agent to excercise discretion, it must

be presumed that the agent’s acts are grounded in policy

when exercising that discretion. . . . The focus of the

inquiry is not on the agent’s subjective intent in exercising

the discretion conferred by statute or regulation, but on

the nature of the actions taken and on whether they are

susceptible to policy analysis.

United States v. Gaubert, supra at 324-25. Because operational

decisions are included within the discretionary function excep-

tion, id. at 334, even the initial act of permitting Sgt. Gillis

to leave this country with his wife’s children falls within the

exception. The judge acted properly in allowing the defendants’

motion for judgment notwithstanding the verdict on the claim

asserted against the USAF.

(b) The plaintiffs claim against the Gillises. The judge

entered judgment for Moylan and Cargill notwithstanding the

verdict first, because the plaintiff did not submit any evidence

of the collectability of a judgment against the Gillises; and,

second, because the plaintiff knew that Moylan had withdrawn

from the Superior Court case while there was still a viable

claim.

A plaintiff in a legal malpractice action asserting negligence

in the handling of his claim in the underlying action bears the

burden of showing that he would have been able to collect on

the judgment obtained in the underlying case. Jernigan v.

Giard, 398 Mass. 721, 723 (1986). He may only collect from

the defendant lawyer what he could have collected from the

defendant in the underlying act, but for the attorney’s negli- —

gence. /d. See also Barry, Legal Malpractice in Massachusetts:

Recent Developments, 78 Mass. L. Rev. 74, 81 (1993).

33A

Although there was evidence that Sgt. Gillis was employed

by the USAF at the time, there was no evidence on the state

of his finances. He could have had secured obligations equal

to or in-excess of his income as a USAF Sergeant. Income is

not a measure of ability to pay without an assessment of debts.

Many, if not most, insolvents have some income. There was

no evidence whatsoever pertaining to the income or financial

condition of Janet Gillis. The plaintiff failed to sustain his

burden of proving the collectability of the judgment against

the Gillises.

Moylan withdrew with court approval from the action pend-

ing in the Superior Court on March 25, 1992. The claim was

not dismissed against Janet Gillis until August, 1992, and was

not dismissed against her husband until November 2, 1993.

Therefore, when Moylan withdrew from the case with court

permission after notice to the plaintiff, there was still a viable

case pending against the Gillises and it was still possible to

proceed with discovery and investigation. There was no evi-

dence of damage occurring to the plaintiff as a result of

Moylan’s conduct in that action up to the time of his withdrawal.

4. Misrepresentation and deceit. The plaintiff argues that

the judge erroneously limited evidence of damages resulting

from Moylan’s misrepresentation or deceit, gave incorrect jury

instructions on damages, and erroneously reduced the damages

awarded by the jury.

(a) Jury instructions, evidence, and award on misrepresen-

tation. The jury found that the plaintiff sustained damages of

$10,000 as a result of Moylan’s misrepresentation. The judge

reduced the damages award to $295, ruling that the plaintiff

could only recover his out-of-pocket expenses which the judge

found to be filing fees paid on the Federal case.

The jury could have found that Moylan failed to tell the

plaintiff that his Federal District Court action against the USAF

and the Gillises had been dismissed on February 26, 1986. The

34A

jury could have also found that Moylan did not inform the

plaintiff of his decision to stop using an investigator to interview

witnesses and gather evidence after October, 1988. There was

no evidence that Moylan’s deceit caused the dismissal of the

Federal action. Therefore, the filing fee did not relate to the

alleged deceitful acts. Proof of damages flowing from misrep-

resentations is essential to recovery. Cardullo v. Landau, 329

Mass. 5, 7 (1952). “Where a plaintiff does not prove that he

is worse off than if there had been no misrepresentation he

has not made out a case of deceit.” Connelly v. Bartlett, 286

Mass. 311, 315 (1934).

The only other evidence of direct damage incurred by the

plaintiff was that he spent about $10,000 from 1979 to 1987

in his attempt to get his children back. However, this evidence

was restricted without objection to apply only to the underlying

claim against the USAF. Because we conclude that the claim

against the USAF could not have been won, there could be

no damages arising from any misrepresentations concerning

its dismissal.

For this same reason the plaintiff cannot succeed in his

argument that the judge erroneously excluded correspondence,

newspaper articles, and testimony which supported his allega-

tion that Moylan never told him that the Federal case against

the USAF had been dismissed.

(b) Loss of consortium claims. The jury concluded that the

plaintiff's wife did not suffer a loss of consortium related to

the defendants’ negligence. Therefore, no damage could arise

from Moylan’s conduct in regard to the loss of consortium

claim. Furthermore, the argument that Moylan was negligent

in failing to bring a loss of consortium claim on behalf of the

plaintiff's wife in the underlying claim was not properly pre-

sented as a theory of recovery at trial. An appeal is not the

proper time to advance new theories of recovery. See Common-

wealth v. George, 406 Mass. 635, 636 n.4 (1990).

35A

Finally, because the plaintiff's wife was not a party to the

underlying tort action and was not a client of Moylan, he could

not be liable for her loss of consortium claim.

(c) Judicial bias generally. The plaintiff ciaims that the

judge was unfairly biased against him from the beginning,

thus violating his constitutional right to a fair and impartial

jury trial. The motion judge, who was not the trial judge,

denied the plaintiff's motion for a new trial on this ground.

We will not reverse the lower court’s denial of a new trial

motion absent an error of law or abuse of discretion. Robertson

v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520-21, cert.

denied, 493 U.S. 894 (1989). There was no such error or abuse.

During the trial, the plaintiff did not object or move for a

mistrial on the ground of judicial bias, nor did he move for

disqualification or recusal of the judge. Although this does not

necessarily mean there was no bias, we do take this into con-

sideration when viewing the record. Commonwealth v.

Fitzgerald, 380 Mass. 840, 846 (1980). In addition, the plain-

tiff on appeal has failed to point out in any concrete way how

the judge’s conduct might have harmed him apart from the

judge’s decisions already discussed. See Commonwealth v.

Armand, 411 Mass. 167, 171 (1991).

5. Case against Cargill. The jury concluded that Cargill

did not have the right to exercise control over Moylan’s hand-

ling of the plaintiff's case after January, 1986." There was

more than adequate evidence to support this finding, and the

plaintiff does not argue otherwise. He argues instead that he

is entitled to a new trial because of new evidence, namely a

private reprimand issue in 1987 by the Board of Bar Overseers

regarding a case handled by Moylan in 1982 and 1983 before

his affiliation with Cargill following which an employee of

Cargill acted as a monitor of Moylan’s practice. The judge

denied this motion.

"The date when Moylan became an associate of Cargill.

36A

A motion for a new trial is addressed to the sound discretion

of the judge. Robertson v. Gaston Snow & Ely Bartlett, supra

at 520. The reprimand makes no mention of Cargill and does

not suggest he had the right to control Moylan’s actions in the

underlying action. There was no abuse of discretion.

6. General Laws c. 93A. Ina separate bench trial, the judge

concluded that the defendants’ actions or omissions did not

constitute unfair or deceptive acts or practices in violation of

G.L. c. 93A. The plaintiffs moved for a new trial which was

denied. We review to determine whether this denial was an

abuse of discretion. The judge found that:

even if [Moylan] was negligent in his research (not noting

that [USAF] personnel assignments required approval by

a Texas command), this does not give risetoaG.L.c.93A

violation nor did this result in a deceptive act. Further,

[Moylan’s] quote of a normal contingent fee of 1/3 of

recovery before he knew a suit would be commenced

under the FTCA, which permits only a 25% fee, did not

amount to an unfair or deceptive act or practice especially

when no fee was ever charged or paid. In addition, I find

at no time did Moylan deceive Poly. That although the

defendant was negligent, he did not engage in conduct

involving dishonesty, fraud, deceit or misrepresentation.

“[A] judge may make independent and, therefore, different,

findings on the c. 93A aspect of a case that arises from the

same facts which gave rise to parallel common law claims.”

Wyler v. Bonnell Motors, Inc., 35 Mass. App. Ct. 563, 567

(1993). The evidence adequately supports the judge’s findings.

There was no abuse of discretion.

37A

Conclusion. The judgment notwithstanding the verdict on

the malpractice claim is affirmed. The damages under the

deceit claim are vacated, and the denial of damages under

G.L. c. 93A is affirmed.

So ordered.

38A

APPENDIX D

COMMONWEALTH OF MASSACHUSETTS

Essex, ss. Superior Court

Civ. #91-2299

George P. Poly and Maureen S. Poly

Vv.

Cargill & Associates

Thomas E. Cargill and

Michael T. Moylan

RULING ON MOYLAN’S MOTION FOR

JUDGMENT NOTWITHSTANDING THE VERDICTS

On a defendant’s motion for judgment notwithstanding a

verdict, the judge is to consider whether any evidence, consid-

ered in the light most favorable to the plaintiff, permits a

reasonable inference in favor of the plaintiff on the count on

which the jury returned a verdict favorable to the plaintiff.

Forlano v. Hughes, 393 Mass. 502, 504 (1984); O’Shaugh-

nessy V. Besse, 7 Mass. App. Ct. 727, 728-29 (1979); Conway

v. Sterling, 37 Mass. App. Ct. 1 (1994). “Conflicting evidence

alone does not justify judgment notwithstanding the verdict

... [I]t is of no avail for the defendant to argue that there

was some or even much evidence which wouid have warranted

a contrary finding by the jury’. . . the court may not substitute

its judgment of the facts for that of the jury.” Tosti v. Ayik,

394 Mass. 482, 494 (1985).

OS SAIPAN LPNS mel lw ody

Sp a POAT TIERS

39A

I. Count 1: Legal Malpractice

In order for a recovery on this count, the plaintiff had

the burden of proving “that he probably would have obtained

a better result had the attorney exercised adequate skill and

care” in the underlying case. Fishman v. Brooks, 396 Mass.

643, 647 (1986).

Re: Poly v. U.S. Air Force

The action against the Air Force was based on the Federal

Torts Claims Act, 28 U.S.C. § 2671 et sequi (1970) (FTCA).

The basic allegations were:

(a) transferring Sgt. Gillis from Pease Air Force Base in

New Hampshire to Ramstein Air Base, Germany,

(b) approving “command sponsorship” for Mrs. Gillis

(Poly’s former wife) and her two sons from the Poly

marriage, which permitted Mrs. Gillis and the sons to

join Sgt. Gillis in Germany,

(c) extending Sgt. Gillis’s tour of duty in Germany until

after the older son attained majority, and

(d) not causing Sgt. Gillis and/or Mrs. Gillis and/or the

two sons to return to Massachusetts after Massachu-

setts arrest warrants were issued for the arrest of Sgt.

Gillis and Mrs. Gillis for kidnapping and/or for not

honoring the Massachusetts Probate Court order grant-

ing custody of the two sons to Poly.

There was no evidence as to the date the Air Force decisions

were made as to (a) and (b) above.

Although the action commenced by Moylan in the Federa!

District Court, docket #85-2907MA, was dismissed on the

Government’s motion without opposition by Mazone, J. with

the following notation “all the acts by the United States which

form the basis of this complaint took place in a foreign country

40A

and this complaint is excluded under the Federal Torts Claims

Act by 28 U.S.C., § 2860(k),” there were other valid defenses

that would have prevented Poly from prevailing in the law suit.

The FTCA, 28 U.S.C. § 2401(b), requires as a condition

precedent to a law suit, that a presentment be made within

two years after such claim accrues. Sgt. Gillis’s transfer to

Germany occurred in 1979, the same year Mrs. Gillis and the

two sons joined her husband under “command sponsorship.”

Poly knew the whereabouts of his sons no later than September,

1979 (Ex. 44). By May 1981 Poly had come to the conclusion

that the Air Force was aiding in violating his rights and that

the Gillises were using the Air Force to shield themselves from

prosecution (Ex. 46). “A cause of action will accrue when the

plaintiff actually knows of the cause of action or when the

plaintiff should have known of the cause of action.” Riley v.

Presnell, 409 Mass. 239, 244 (1991). If facts are in dispute,

the question when a cause of action accrues is for the jury. If

the facts are not in dispute, it is an issue of law. By the time

Poly met Moylan in 1984 no presentment had been made in

behalf of Poly.

The FTCA § 2680(a) contains an express exemption to gov-

ernmental liability for “any claim based upon an act or omission

of an employee of the government, exercising due care, in the

execution of a statute or regulation, whether or not such statute

or regulation be valid, or based upon the exercise or perfor-

mance or the failure to exercise or perform a discretionary

function or duty on the part of the federal agency or an employee

of the government. . .”. Whether an act is a discretionary

function is not a question of fact but a matter of law for the

court. “[BJoth Federal and State cases hold that the application

of the discretionary function exception is a question of law for

the court. Hart v. United States, 894 F.2d 1539, 1544 (11th

Cir.), cert. denied, 498 U.S. 980 (1990); Garcia v. United

States, 826 F.2d 806, 809 (9th Cir. 1987). . .” Alter v. City of

RSS i i mm 2 ane

41A

Newton, 35 Mass. App. Ct. 142, 148 (1993). Even decisions

made at the operational level, as opposed to those made at the

policy or planning level, would involve conduct immunized

by the discretionary function exemption if the conduct were

the result of policy determinations. United States v. Gaubert,

499 U.S. 315 (1991). Stoller v. City of Lowell, 412 Mass.

139, 141 (1992). “An agency may rely on internal guidelines

rather than on published regulations.” U.S. v. Gaubert, supra

at 324. A plaintiff has the burden of proving a properly invoked

exemption does not apply. Hydrogen Tech Corp. v. United

States, 831 F.3d 1155, 1162 n.6 (Ist Cir. 1987), cert. denied,

406 U.S. 1022 (1988). Both experts, Air Force Lt. Gen. Stans-

berry for the plaintiff and Ms. Keesling (former Assistant

Secretary of the Air Force) for the defendant, testified that

decisions regarding assignments and “command sponsorship”

were discretionary functions. There was no conflicting testi-

mony on this issue.

I rule that the assignment of Sgt. Gillis to Germany, the

approval of “command sponsorship” and the extensions of Sgt.

Gillis’s tours of duty were discretionary functions by the Air

Force and thus the Air Force was exempt from liability under

the FTCA. See Burns v. United States, 618 F.Supp. 882

(D.Mass. 1985).

In addition, the evidence introduced indicated that in custody

matters, neutrality was the official Air Force policy. (Ex. 13,

16, 18, 68). In carrying out official policy the Air Force is

exempt from liability under the FTCA.

The Air Force was not obligated to return enlisted personnel

from overseas because of court orders or criminal warrants.

By statute, the military may or may not deliver members for

trial. 10 U.S.C. § 814. Regulations in effect from 1979 through

1987 allowed the Air Force to refuse to deliver an airman for

trial even on an aggravated felony if the airman was stationed

overseas. 32 C.F.R. § 884.4(d) (1964). Under regulations as

42A

prescribed by the Secretary, a member of the armed forces

accused of an offense against civil authority may be delivered,

upon request, to the civil authority for trial. This is “permissive

only.” Jennings v. Markley, 186 F.Supp. 611 (S.D. Ind. 1960).

Operating Instructions dated May 16, 1983 from the Office

of the Judge Advocate General (Ex. 71) state that requests for

the return of an overseas airman will be reviewed by HQ USA/

JAJ to determine the best interests of the Air Force. Although

there were arrest warrants outstanding there was no evidence

introduced that an attempt to have either of the Gillises extra-

dited from Germany. See Ex. 20.

In regard to the Military Claims Act, 10 U.S.C. § 2733,

Moylan did appeal the Air Force’s disallowance of relief under

this act. The appeal was denied which was final and conclusive,

there being no court review. Kodrigue v. United States, 968

F.2d 1430 (Ist Cir. 1992); Broadnax v. United States, 710

F.2d 865 (D.C. Cir. 1983). Therefore, Poly would not have

prevailed in his underlying action against the Air Force.

Re: Poly v. Sgt. Gillis and Mrs. Gillis

Although Federal District Court action #85-2907MA was

dismissed on February 28, 1986 as to the Gillises, Moylan on

May 11, 1988 refiled the Poly’s claim against the Gillises in

Suffolk Superior Court, Civ. #88-2726 (Ex. 37 and Ex. 48)

and when Moylan withdrew, with the Superior Court’s permis-

sion, on March 25, 1992 (Ex. 37) his appearance in behalf of

Poly (as a result of this suit), the action was still pending.

Said action was not dismissed until November 2, 1993, over

17 months after Moylan’s withdrawal.

Therefore, Poly could not prove that “he probably would

have obtained a better result had the attorney exercised

adequate skill and care.” See Fishman v. Brooks, 396 Mass.

643 (1986).

In addition, for a plaintiff to recover in a legal malpractice

action, he has the burden of showing that a judgment in his favor

oA SNRs Nt it At hd

43A

would have been collectible to some degree. Jernigan v. Giard,

398 Mass. 721, 723 (1986). There was no evidence introduced

as to the Gillis’s finances once they returned to the United

States.

Therefore, in regard to Count | (legal malpractice) the de-

fendant’s motion for judgment N.O.V. is allowed.

II]. Count 2 - Deceit

The jury found that Moylan was liable for deceit. There

was testimony that Poly “spent” about $10,000 from 1979 on

without specifics in his attempt to get back his children. There

was no evidence introduced that any of this was caused by

any misrepresentation or any statement by Moylan except

$295.00 Poly advanced for the entry fee for Fed.Dist.Ct. doc-

ket #85-2907MA. Only those losses directly resulting from,

Alpine v. Friend Bros, Inc., 244 Mass. 164, 167 (1923) or

which were a foreseeable consequence of the deceit, Kohl v.

Silver Lake Motors, 369 Mass. 795 (1976), should be recover-

able. To recover the loss-of-the-bargain, the misrepresentation

must amount to a warranty. No misrepresentation evidence

was introduced that amounted to a warranty. Therefore, Poly

is limited to his out-of-pocket expenses resulting from

Moylan’s statements, to wit: $295.00. See Rice v. Price, 340

Mass. 502 (1960).

Therefore, the defendant’s motion for judgment N.O.V. as

to Count 2 (deceit) is denied. However, the damages awarded

are reduced to $295.00

444A

CONCLUSION:

As to Count 1: Judgment for Poly is vacated and judgment

shall enter for Moylan.

As to Count 2: Judgment for Poly in the amount of $10,000

is vacated and judgment for Poly shall issue

in the amount of $295.00.

/s/

John P. Forte

Justice

July 23, 1994