Mimesis Law
19 August 2017

Even The Government Only Gets One Day In Court

January 3, 2017 (Fault Lines) – One of those legal principles that everyone knows, even if from popular culture, is that you get your day in court. No matter whether you want to sue your neighbor, defend against a criminal charge or stop the government from taking your property without just compensation, we all get a chance to fight it out in court. That is provided, of course, you are willing to pay the freight on lawyers, court costs, experts, and so on. Nonetheless, the courthouse doors remain open.

As my old civil procedure professor used to joke, you get your day in court, but only one day. Yeah, it’s not something one should incorporate into a stand-up routine, but after being brutalized by the daily case law readings, it was funny enough. Don’t judge—you weren’t there. In any event, the law gives you one shot, so make it count.

On your assigned day to participate in the majesty of the law, the litigants are expected to present all evidence and arguments to the court. In turn, the court will make one litigant marginally happy and leave the other miserable. But no one can say you didn’t get your shot to be marginally happy.

Because you only get one day, the law has developed doctrines to prevent a party from taking a second shot. And they necessarily are mostly Latin words to ensure that lawyers remain important and special, namely res judicata and collateral estoppel. Thankfully, in the days of the plain English movement, they are known as claim preclusion and issue preclusion. Don’t you feel better reading that in English?

In essence, these doctrines prevent a party from suing a party it already sued or raising an already decided issue in a later lawsuit involving similar parties. So, you sue your neighbor, under a statute, for cutting down your trees, you can’t sue him a second time. That is, unless he cuts different trees. Similarly, if you try to sue your neighbor a second time claiming trespass, you usually won’t get to because it was an issue tied up in facts litigated the first time.

You might be thinking now; wait—what about OJ? As you might remember or saw the television show, he was acquitted of murder and then a later court found he was responsible for the wrongful death of his wife and the other guy. Two different courts reached inconsistent conclusions about whether OJ killed those two. The difference in each case was who the plaintiffs were.

In the murder case, the State of California accused OJ of killing them and wanted to send him to jail. The jury acquitted OJ because the glove didn’t fit. In the second case, the families of his victims accused him of causing wrongful deaths and sought millions in damages. They won. You see, different people accused OJ of homicide under different legal theories, which makes all the difference. The family couldn’t bring the criminal charge, and California couldn’t bring the wrongful death suit.

The question you might not have thought to ask yet is whether the Government may bring both a criminal suit and civil suit against the same person for the same misdeed? The Seventh Circuit, in an opinion written by the imitable Frank Easterbrook, addressed that very question.

Barge EMC-423 exploded on January 19, 2005, while under way between Joliet and Chicago with a cargo of clarified slurry oil. The blast threw deckhand Alex Oliva into the water; he did not survive. Contending that Dennis Egan, master of the tug Lisa E that had been pushing the barge, had told Oliva to warm a pump using a propane torch, the United States obtained an indictment charging Egan and the tug’s owner (Egan Marine Corp.) with violating 18 U.S.C. §1115, which penalizes maritime negligence that results in death, plus other statutes that penalize the negligent discharge of oil into navigable waters.

Although there was a dispute about whether Egan had given the order, the district court judge found Egan guilty beyond a reasonable doubt. He was sentenced six months in prison with a year supervised release. And he was ordered to pay $6.75 million in restitution, jointly and severally liable with his company.

The problem for the Government was two years prior, it had filed civil suit against Egan, apparently under the same statute. In that case, the judge, following a bench trial, essentially concluded Egan was not at fault. When the Government lost, it abandoned the case and indicted Egan on the criminal charge. That’s a choice almost no other litigant has available.

So, in one case, the Government proved beyond a reasonable doubt that Egan caused Olivia’s death; in the other, the Government failed to prove by lesser standard of proof that Egan caused Olivia’s death. Understandably, Egan argued that the Government had its shot and missed, and that they were precluded taking a second shot.

The Government argued that the two suits had different goals in mind, were brought by different attorneys, and had different policy considerations at stake. This meant that the Government should be allowed to bring both cases. For example, the U.S. Attorney’s Office may have brought the civil suit without much internal consideration and perhaps without the approval of Main Justice. Upon losing, the U.S. Attorney or Main Justice realized that this case really should have proceeded as a criminal case. In other words, the initial assignment of the case to a civil attorney may have led to ruinous consequences and the entire Government, on behalf of everyone, shouldn’t be halted by a single bad call.

Judge Easterbook was unmoved. After distinguishing this case from an administrative one and distinguishing nonmutual preclusion in criminal cases from civil cases, he dispatched the Government’s argument:

The Supreme Court understands mutual preclusion not just as a judicial work-saving device but as a matter of right for the litigants involved. See, e.g., Federated Department Stores, Inc. v. Moitie, 452 U.S. 394 (1981).

This is so even when one of the litigants is the United States. See, e.g., Montana v. United States, 440 U.S. 147 (1979); United States v. Stauffer Chemical Co., 464 U.S. 165 (1984). The prosecutor’s brief in our case tells us that allowing Judge Leinenweber’s decision to foreclose the criminal charges would cause the United States either to pour extra resources into civil suits, disrupting its litigation strategy, or to forego or postpone such suits pending the outcome of criminal cases.

Similar arguments were made by the Solicitor General in Montana and Stauffer Chemical, where the United States maintained that the outcome of a poorly litigated civil case (perhaps pursued by a single Assistant United States Attorney in some remote outpost) should not be allowed to block a new suit that has the Department of Justice’s full attention and may be designed to serve a vital public goal. But the Justices had none of this.

They concluded that ordinary rules of preclusion apply to the United States and that the Department of Justice must navigate around established legal rules, rather than the rules giving way to bureaucratic convenience. * * * There is of course a potential for nonmutuality in the civil–criminal sequence—but it is the United States that prefers a situation in which it can win but not lose.

Judge Easterbrook then goes on to punch chide the Government for making what he sees as a “heads I win, tails you lose argument.” All of it makes good sense, but he doesn’t really offer an analysis of why he concludes that the Government isn’t remarkably different than other parties in this sort of a case.

For the most part, he applies Supreme Court precedent, as an appellate judge ought to do. So, he doesn’t really need to justify applying the law to the facts at hand. Blaming bureaucracy is always fun and often right, but the interests the U.S. seeks to vindicate are not identical to other litigants. That should count for something, at least in some cases. Granted here it looks like the feds blew it and sought a new way to get what they wanted, so, they aren’t sympathetic here. But in many interstate matters, it is entirely possible for different U.S. Attorney Offices or DOJ components to make inconsistent decisions.

In addition, the doctrine appears stricter than Double Jeopardy does in a criminal case. Suppose the Government brought the criminal case first and lost; it’s not impossible that they could charge the conduct under a different criminal statute and get a conviction, perhaps complicity to arson. All that’s technically required is a different element.

So, the preclusive effect of a civil prosecution can have a broader application than the Double Jeopardy clause. That doesn’t seem right. Although the contrary argument would be that the interpretation of the Double Jeopardy clause is under-inclusive. Fine, but that’s not the current law. As it stands, the Government seems at greater risk by bringing a civil suit first, rather than bringing a series of criminal cases.

Here, the Government didn’t exactly come to court with clean hands. But the broader question is whether the doctrine is correct in never making allowances for ‘bureaucratic mistakes.’ We’ll have to wait until the Supreme Court takes up another case to find out.

5 Comments on this post.

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  • Jim Tyre
    3 January 2017 at 12:36 pm - Reply

    You might be thinking now; wait—what about OJ?

    I have a formal request to make, of all Fault Lines authors and of FL’s mean ass editor:
    Please, in the name of all that is holy, don’t use OJ as an example of anything.* Those of us who lived through that immediately get turned off at the very mention. The rest of what you write, however brilliant, is tainted.

    *Of course it’s fine to compare Orange Juice to Tangerine Juice. You know what I mean.

    • shg
      3 January 2017 at 1:10 pm - Reply

      Denied.

      • Jim Tyre
        3 January 2017 at 1:51 pm - Reply

        Not even an Opinion? (“You’re ugly” is an opinion, but not an Opinion.)

        • shg
          3 January 2017 at 2:48 pm - Reply

          Denied. You’re not ugly, but then, it’s the internet, so maybe you’re a dog. So ordered.

          This judge thing isn’t that hard.

  • Puerto Rico Federal Court Says Government Gets No Do-Over
    4 January 2017 at 7:32 am - Reply

    […] case reminded the prosecutors about a little theory called “collateral estoppel.” The theory is not too hard to grasp. Basically, once parties have litigated an issue and a judge has decided it, that’s it. You […]