EFTA00205043¶
Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page¶
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA¶
CASE NO. 08-80736-Civ-Marra/Johnson¶
JANE DOE #1 AND JANE DOE #2,¶
Plaintiffs,¶
v.¶
UNITED STATES OF AMERICA,¶
Defendant.¶
BRUCE E. REINHART,¶
Intervenor¶
INTERVENOR’S MOTION FOR SANCTIONS¶
Comes now, Bruce E. Reinhart, intervenor and party in interest (hereinafter “Movant”), and moves this Honorable Court to impose sanctions under Federal Rule of Civil Procedure 11(b) and 28 U.S.C. 1927 based on intentional or reckless false, bad faith, vexatious factual and legal assertions made about Movant in Paragraphs 52 and 53 of Plaintiff’s Motion for Finding of Violations of the Crime Victims’ Rights Act (the “Motion”) [DE 48].¶
BACKGROUND¶
The instant cause of action involves claims by Plaintiffs that Defendant violated the Crime Victims Rights Act (CVRA), 18 U.S.C. §3771, in its handling of a criminal investigation of Jeffrey Epstein (“Epstein”) and others. The investigation ultimately resulted in a non-prosecution agreement between the United States and Epstein. On¶
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March 21, 2011, Plaintiffs filed their Motion. $ ^{1} $ Numbered paragraphs 1-50 of the Motion are a chronological review of the background of the Epstein investigation, including the interactions among the victims’ counsel, counsel for Epstein, the Government and the FBI. Paragraph 51 asserts that at all relevant times it was feasible for the Government to provide certain notifications to Plaintiffs.¶
Without attempting to make any connection to the asserted violation of the CVRA, Paragraphs 52 and 53 falsely allege that Movant violated Florida Bar rules and Department of Justice regulations by representing Epstein’s employees in civil litigation after Movant retired from the United States Attorney’s Office for the Southern District of Florida (“Office”). They also falsely allege that Movant, while still employed by the Office engaged in improper conduct relating to Epstein. These allegations are made in bad faith, unreasonably, without reasonable inquiry into the law and facts, vexatiously, and for the improper purpose of gratuitously harassing Movant.¶
LEGAL STANDARDS¶
Federal Rule of Criminal Procedure 11¶
Federal Rule of Civil Procedure 11 states that a lawyer signing any pleading in federal court is certifying that:¶
[T]to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:¶
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;¶
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;¶
1 Movant was not served with a copy of the pleading. Movant first saw the pleading on April 20, 2011.¶
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(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.¶
Fed. R. Civ. P. 11(b). Rule 11 uses an objective standard. Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir. 2003). The analysis is whether “a reasonable attorney in like circumstances could believe that his actions were factually and legally justified.” Id. (citing Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1294 (11th Cir. 2002)). Violations of Rule 11 are punishable by monetary and non-monetary sanctions against both the lawyer filing the pleading and the lawyer’s client. Fed. R. Civ. P. 11(c).¶
28 U.S.C. §1927¶
Title 28, United States Code, Section 1927 states:¶
Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expense, and attorneys’ fees reasonably incurred because of such conduct.¶
To impose sanctions under § 1927, the Court must find that the attorney’s conduct is “tantamount to bad faith.” Amlong & Amlong, 500 F.3d 1230, 1239 (11th Cir. 2007) (quoting Avirgan v. Hull, 932 F.2d 1572, 1582 (11th Cir. 1991)).¶
“[T]he attorney must knowingly or recklessly pursue a frivolous claim.” Id. at 1242. The finding of bad faith does not turn on “the attorney’s subjective intent, but on the attorney’s objective conduct.” Id. at 1239. The standard is “whether, regardless of the attorney’s subjective intentions, the conduct was unreasonable and vexatious when measured against an objective standard.” Hudson v. Int’l Comp. Negotiations, Inc., 499 F.3d 1252, 1262 (11th Cir. 2007).¶
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DISCUSSION¶
Paragraphs 52 and 53 contain inflammatory claims that are false, misleading, and irrelevant to the relief sought in the Motion. See generally Declaration of Bruce E. Reinhart (attached as Exhibit 1 and incorporated by reference). They ultimately allege, “[Movant’s] representations [of Epstein’s employees] are in contravention of Justice Department regulations and Florida bar rules. Such representations also give, at least, the improper appearance that Reinhart may have attempted to curry [sic] with Epstein and then reap his reward through favorable representation.” Plaintiff’s Motion at ¶53. They do not cite to any particular bar rule or regulation that they believe was violated. They do not explain how the alleged conduct contributed to the Department of Justice’s alleged violation of the CVRA. Nor do they explain how the alleged conduct is imputable to the Department of Justice. These otherwise slanderous accusations against a non-party are false. They were made in bad faith, without a factual inquiry reasonable under the circumstances, or elementary research into the legal basis for the allegations.¶
Paragraphs 52 and 53 omit the following true facts, which Plaintiffs should have investigated before making their allegations: (1) Movant did not participate in any way in the Office’s investigation of Epstein, (2) after leaving government employment, Movant did not represent Epstein before the Department of Justice, nor did Movant communicate with the Department of Justice about Epstein, and (3) Movant did not use confidential information obtained during his Government employment to the detriment of the United States. See Declaration of Bruce E. Reinhart at ¶¹11-12, 17.¶
Rather than conducting the required inquiry, Plaintiffs simply make two irresponsible and unsupported leaps. First, they incorrectly conclude that merely because¶
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Movant worked in the Office at the time of the Epstein case, Movant must have been involved in the internal decisionmaking at the Office about Epstein. Second, they incorrectly conclude that because Movant later represented Epstein’s employees in private civil litigation, Movant must have used confidential Government information improperly in his representation of Epstein’s employees, and for his own financial gain.¶
It is apparent that Plaintiffs conducted no factual inquiry to substantiate their accusations before making them. They never contacted Movant. On information and belief, they did not speak to any current or former personnel from the Office or the FBI who were familiar with the structure of the West Palm Beach Office or with Movant’s role (or lack thereof) in the Epstein investigation. Had they done so, they would have learned that there were approximately 20 Assistant United States Attorneys in the West Palm Beach Office during the relevant time period. See Declaration of Bruce E. Reinhart at ¶10. They would have learned that Movant was not assigned to the same section as the prosecutor handling the Epstein matter. Id. They would have learned that Movant had a different chain of supervision from the prosecutor assigned to the Epstein matter. Id. They would have learned that Movant had no involvement in the Epstein investigation. See Declaration of Bruce E. Reinhart at ¶11-12.¶
Further, Plaintiffs did not conduct an adequate inquiry into the applicable Department of Justice regulations. As discussed below, to violate the relevant regulations, a former employee must appear before, or communicate with, the Department of Justice, about a particular matter in which the former employee participated personally and substantially while employed at the Department of Justice.¶
See 5 C.F.R. §2641.201(a). The Motion contains approximately 50 paragraphs of a¶
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detailed historical litany of the interactions among the parties to the Epstein matter. The Motion does not allege that Movant participated at all, let alone personally and substantially, as a government employee in the Epstein investigation. The Motion does not allege that that Movant subsequently appeared before, or communicated with, the Department of Justice about Epstein. To the contrary, the Motion alleges only that, after leaving the Office, Movant represented Epstein’s employees in litigation with non-Governmental third parties. Had Plaintiffs conducted rudimentary research into the applicable regulations, they would have known that any allegation that Movant violated these regulations was frivolous.¶
Movant Did Not Violate Any Florida Bar Rule¶
Relevant Florida Bar Rules¶
The potentially applicable Florida Bar rules are Rule 4-1.6(a) (Confidentiality of Information), Rule 4-1.9 (Conflict of Interest; Former Clients), and Rule 4-1.11 (Special Conflicts of Interest for Former and Current Government Officers and Employees). For purposes of these rules, the U.S. Department of Justice was Movant’s client during his employment in the Office. Movant did not violate any of the bar rules.¶
Rule 4-1.6(a) states:¶
A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.¶
Rule 4-1.6 was not violated because Movant did not know any confidential information about the Epstein matter, so none could be revealed.¶
Rule 4-1.9 states:¶
A lawyer who has formerly represented a client in a matter shall not thereafter:¶
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(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent; or¶
(b) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known; or,¶
(c) reveal information relating to the representation except as these rules would permit or require with respect to a client.¶
Rule 4-1.9 was not violated because Movant never represented the United States in the Epstein matter.¶
Rule 4-1.11 states in pertinent parts:¶
(a) A lawyer who has formerly served as a public officer or employee of the government:¶
(1) is subject to rule 4-1.9(b); and¶
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.¶
(c) A lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this rule, the term “confidential government information” means information that has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public.¶
(d) A lawyer currently serving as a public officer or employee:¶
(1) is subject to rules 4-1.7 and 4-1.9; and¶
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(2) shall not:¶
(A) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent; or¶
(B) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially.¶
Rule 4-1.11(a) was not violated because Movant did not participate personally and substantially in the Epstein matter. Rule 4-1.11(c) was not violated because Movant did not have any confidential Government information within the meaning of the rule, so he did he use any confidential Government information about a third party to the detriment of that third party. Rule 4-1.11(d) was not violated because Movant did not participate personally and substantially in the Epstein matter.¶
Movant Did Not Violate Department of Justice Regulations¶
Department of Justice Regulations¶
The Department of Justice regulation containing post-employment restrictions, 5 C.F.R. §2641.201, states in most pertinent part:¶
(a) Basic prohibition of 18 U.S.C. 207(a)(1). No former employee shall knowingly, with the intent to influence, make any communication to or appearance before an employee of the United States on behalf of any other person in connection with a particular matter involving a specific party or parties, in which he participated personally and substantially as an employee, and in which the United States is a party or has a direct and substantial interest.¶
(i) Participate: To “participate” means to take an action as an employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or other such action, or to purposefully forbear in order to affect the outcome of a matter … An employee does not participate in a matter¶
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merely because he had knowledge of its existence or because it was pending under his official responsibility. $ ^{2} $¶
Movant did not violate 5 C.F.R. §2641.201 because he did not participate personally and substantially in the Epstein matter as a Government employee. He did not appear before the United States on behalf of Epstein after leaving Government employment. He did not communicate with the United States on behalf of Epstein after leaving Government employment. He represented Epstein’s employees in civil cases in which the Government was not a party.¶
It is clear from the face of the regulations that Movant’s representing Epstein’s employees in civil matters not involving the Government did not violate §2641(a). In fact, had Plaintiffs and their counsel properly investigated the facts and law, they would have seen that §2641(a) would have permitted Movant to represent Epstein, himself, openly against the Department of Justice. Movant did not. The allegation that Movant violated Department of Justice regulations is frivolous.¶
2 A complete copy of this regulation is attached to this Motion as Exhibit 2.¶
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CONCLUSION¶
The allegations in Paragraph 52 and 53 of the Motion are false, made in bad faith, and made without sufficient inquiry into the law and facts. They are irrelevant to whether the United States Attorney complied with the CVRA. Notably, the Motion does not attempt to tie the allegations against Movant to the alleged violation of the CVRA. The allegations are included gratuitously in the Motion solely to harass Movant in a forum where the accusations are not legally slanderous. The allegations are made without reasonable pre-filing inquiry into the facts or law. This Court should issue an Order to Show Cause why sanctions should not be imposed under Rule 11 or 28 U.S.C. §1927.¶
Respectfully submitted,¶
/s/ Bruce E. Reinhart¶
BRUCE E. REINHART,P.A.¶
West Palm Beach, Florida 33401¶
CERTIFICATE OF SERVICE¶
I hereby certify that a true and correct copy of the foregoing Intervenor’s Motion For Sanctions was served on all counsel of record by CM/ECF on ___, 2011.¶
/s/Bruce Reinhart¶
BRUCE REINHART¶
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