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Mullane v. Moreno

United States District Court, D. Massachusetts

June 21, 2019

FEDERICO A. MORENO, et al., Defendants.




         This matter is before the court on “Plaintiff's Verified Motion to Disqualify Counsel of Record for Defendants Federico A. Moreno and Alison W. Lehr Pursuant to 28 C.F.R. 50.15(b).” (Docket No. 97). Therein, Plaintiff contends that representation of Defendants Moreno and Lehr by the United States Attorney's Office (“USAO”) is prohibited under 28 C.F.R. § 50.15(b), arguing that Defendants' alleged conduct took place outside the scope of their federal employment and that the expenditure of taxpayer dollars for such representation is against the interests of the United States. After careful consideration of the parties' written submissions and the record, the motion is DENIED. As discussed more fully below, determinations as to whether an individual is acting within the scope of his or her federal employment, and whether providing him or her with representation would be within the interests of the United States, pursuant to 28 C.F.R. § 50.15(b), are left to the discretion of the Department of Justice (“DOJ”), and this court finds no basis to disturb the DOJ's exercise of its discretion.


         This court summarizes the relevant facts as alleged in the Plaintiff's Second Amended Complaint. (Docket No. 57 (“SAC”)). In 2018, the Plaintiff, Jonathan Mullane, then a law student at the University of Miami Law School, interned with the USAO in Miami. (See SAC ¶¶ 8, 125). At the time, Plaintiff was also a party in a civil action that was before Defendant Moreno, a federal judge for the United States District Court for the Southern District of Florida. (See id. ¶¶ 10, 31).

         While a USAO intern, Plaintiff went to Defendant Moreno's chambers to obtain copies of the record in his civil suit. (See id. ¶ 90). Following Plaintiff's visit to Defendant Moreno's chambers, Defendant Moreno allegedly spoke with acting United States Attorney Benjamin C. Greenberg (“U.S. Attorney Greenberg”). (Id. ¶ 15). During a telephone call with U.S. Attorney Greenberg, Defendant Moreno allegedly stated that Plaintiff had “pretended” that he had been sent by the United States government in order to “deceptively" obtain copies of the record in his civil suit from Defendant Moreno's clerk. (Id. ¶¶ 15-17, 31). Plaintiff further alleges that Defendant Moreno accused him of violating 18 U.S.C. § 912, which prohibits the impersonation of an officer or employee acting under the authority of the United States. (Id. ¶ 30). Plaintiff alleges that Defendant Moreno's accusation of criminal conduct is both erroneous and malicious. (Id.).

         Defendant Moreno then held a hearing on the Plaintiff's civil suit, during which Defendant Moreno questioned Plaintiff about the visit to his chambers and Plaintiff's conversation with the clerk. (See id. ¶ 52; see generally id. Ex. A). During the hearing, Defendant Moreno accused Plaintiff of “gross and absolute misconduct.” (Id. Ex. A at 18). Defendant Moreno's claims caused the USAO to sever its employment agreement with Plaintiff. (Id. ¶ 17). The United States Securities and Exchange Commission (“SEC”), with which Plaintiff had secured a future internship, later rescinded its employment offer after parts of the hearing transcript were published online on the website “Above the Law.” (See id. ¶¶ 9, 112-13). Plaintiff alleges Defendant Moreno acted outside the scope of his professional authority by willfully and knowingly interfering with Plaintiff's respective employment agreements with the USAO and SEC. (Id. ¶¶ 10-11).[1]

         Defendant Lehr is an attorney for the USAO in Miami. (Id. ¶ 45). Defendant Lehr served as Plaintiff's supervisor while he was an intern. (Id. Ex. A at 18). Plaintiff alleges Defendant Moreno unlawfully demanded Plaintiff's timesheets from Defendant Lehr, and that Defendant Lehr unlawfully complied with the request, transmitting Plaintiff's employment records without Plaintiff's consent. (Id. ¶ 40-41).

         Plaintiff subsequently filed suit, asserting numerous common law tort claims and state statutory claims against Defendants, as well as a Bivens claim.

         The DOJ has chosen to provide legal representation for both Defendants Moreno and Lehr.[2]

         III. ANALYSIS

         Pursuant to 28 C.F.R. § 50.15(a), the DOJ may represent federal employees who have been sued in their individual capacity “when the actions for which representation is requested reasonably appear to have been performed within the scope of the employee's employment and the Attorney General or his designee determines that providing representation would otherwise be in the interest of the United States.” Such representation is unavailable when the employee's alleged conduct does not reasonably appear to have occurred within the scope of his or her federal employment or when the DOJ otherwise determines that providing such representation does not serve the United States's interests. 28 C.F.R. § 50.15(b)(1), (2). Plaintiff asserts that both of these conditions prohibit the DOJ from providing representation to Defendants Moreno and Lehr.

         Motions to disqualify are sometimes used as a procedural tactic to harass opposing counsel, and care must be taken that such motions are not being “invoked by opposing parties as procedural weapons.” See Kevlik v. Goldstein, 724 F.2d 844, 848 (1st Cir. 1984) (internal quotations and citation omitted) (affirming disqualification of private counsel for ethics violation after finding no improper motive behind the motion); see also Eaves v. City of Worcester, C.A. No. 12-10336-TSH, 2012 WL 6196012, at *2 (D. Mass. Dec. 11, 2012) (noting motions to disqualify are generally disfavored by courts because they can be used as procedural weapons). Further, motions to disqualify “must be considered in light of the principle that courts should not lightly interrupt the relationship between lawyer and client, and unless the underlying judicial process will be tainted by an attorney's conduct, courts should be reluctant to grant disqualification motions.” Id. (internal quotations, punctuation and citations omitted). Thus, disqualification of counsel is considered a “drastic remedy” that should only be used as a last resort. See United States v. Joyce, 311 F.Supp.3d 398, 403-04 (D. Mass. 2018) (analyzing the standard of review for attorney disqualification in a criminal trial).

         Reviewability of DOJ's Decision to ...

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