MEDIA ADVISORY: ATF Special Agent Jay Dobyns (ret.) Defeats the U.S. Department of Justice in U.S. Court of Federal Claims

FOR IMMEDIATE RELEASE SEPTEMBER 16, 2014 CONTACT: James B. Reed, Esq. (602) 445-7720 – DIRECT DESK LINE jreed@bwglaw.net

(Additional statement of Jay Dobyns for media found at http://blog.jaydobynsgroup.com/)

In the United States Court of Federal Claims

No. 08-700C

Filed: September 16, 2014

JAY ANTHONY DOBYNS,

Plaintiff,

v. THE UNITED STATES,

Defendant

OPINION

Trial; Settlement agreement; No breach of contract; Contract interpretation; Incorporation of

ATF Orders; Covenant of good faith and fair dealing; Parameters; Metcalf – covenant may be

breached even if there is no breach of the underlying contract; Withdrawal of backstopping;

Inadequate responses to threats; Damages; Recovery for emotional distress, as well as pain

and suffering; Restatement (Second) § 353; Counterclaim; No breach of employment contract

in publishing and promoting book; Snepp; Waiver.

James Bernard Reed, Baird, Williams & Greer, Phoenix, AZ, for plaintiff.

David Allen Harrington and Kent Christopher Kiffner, Civil Division, United States

Department of Justice, Washington, D.C., with whom was Assistant Attorney General Stuart F.

Delery; Jeanne E. Davidson, Director ; Donald E. Kinner, Assistant Director, Civil Division, for

defendant.

FRANCIS M. ALLEGRA, U.S. Federal Judge:

“Who steals my purse steals trash; ‘tis something, Nothing;

’Twas mine, ‘tis his, and has been slave to thousands;

But he that filches from me my good name,

Robs me of that which not enriches him,

And makes me poor indeed.”1

1 William Shakespeare, Othello, Act III.

Filed 09/15/14 Page 1 of 53

TO MEDIA REPRESENTATIVE:

Today, Federal Judge Francis M. Allegra of the United States Court of Federal Claims released his trial court opinion following a three week trial to the bench, finding in favor of 27 year United States Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) undercover Special Agent Jay Dobyns (ret’d), against the defendant United States and the U.S. Department of Justice. Between 2001 and 2003, Jay Dobyns became the first and only law enforcement officer to fully infiltrate the Hells Angels motorcycle gang, in addition to hundreds of other successful undercover investigations. Judge Allegra makes extensive findings of fact against the Department of Justice and ATF for grossly breaching a covenant of good faith and fair dealing that was part of Jay Dobyns’ September 20, 2007, settlement agreement with ATF. That agreement arose from ATF’s failure to properly manage and respond to past death and violence threats against Agent Dobyns. Judge Allegra awarded Jay Dobyns $173,000 in monetary damages for emotional distress from the actions by the Department of Justice and ATF. Judge Allegra also denied in full the government’s counterclaims for royalties from Jay Dobyns’ New York Times Top Ten Bestseller “NO ANGEL: My Harrowing Undercover Journey to the Inner Circle of the Hells Angels” and for contract payments for the sale of his life rights to 20th Century FOX for a motion picture. Judge Allegra awarded the federal government zero dollars ($0.00) on its counterclaims. James Reed, a partner at the Phoenix, Arizona law firm Baird, Williams & Greer, LLP, represented Dobyns during the entirety of the six year lawsuit, filed in October, 2008. Reed was assisted by senior trial paralegal Jeff Elder and associate attorney Carson Emmons.

1. The United States Court of Federal Claims released it Opinion today regarding the

three week trial concerning this six year lawsuit by ATF Agent Jay Dobyns (retired) against the United States on behalf of ATF.

There are three published decisions to date, found at:

1. Trial court opinion (attached hereto)

2. http://www.cofc.uscourts.gov/sites/default/files/opinions/ALLEGRA.DOBYNS020110.pdf (denying federal government’s motion to dismiss)

3. http://www.uscfc.uscourts.gov/sites/default/files/opinions/ALLEGRA.DOBYNS101612.pdf (denying both parties’ motion for summary judgment) Judge Allegra’s trial court opinion was released to the public today, September 16, 2014. At the bottom of this email is a recent article about Judge Allegra, providing his outstanding credentials and his expectations of adherence to high ethics by all attorneys appearing before him. Judge Allegra’s federal court biography: (http://www.nmid.uscourts.gov/documents/districtconference/2013/bios/allegra.pdf), out of his 250 published opinions, refers to one published opinion and to this lawsuit. The Court summarized the lawsuit and outcome at page two of the Opinion as follows:

This contract case is before the court following an extensive trial in Tucson, Arizona, and Washington, D.C. Jay Dobyns, an agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), alleges that ATF officials breached an agreement that he had with the agency settling a prior dispute. He contends that ATF’s conduct also breached the covenant of good faith and fair dealing associated with that agreement. Both breaches, Agent Dobyns asserts, give rise to the imposition of damages. Defendant, meanwhile, counterclaims that Agent Dobyns breached his employment contract with ATF, as well as federal regulations and ATF orders, by publishing a book based upon his experiences as an agent, and by contracting his story and consulting services to create a motion picture. Based upon the extensive record, the court finds that there was no express breach of the settlement agreement here, but that defendant’s conduct associated with that agreement effectuated a breach of the covenant of good faith and fair dealing. Based upon the extensive record, the court concludes that defendant’s conduct, indeed, constituted a gross breach of that covenant. Damages for mental distress, as well as pain and suffering, will be awarded because of this breach. As to the counterclaim, the court concludes that plaintiff did not breach his employment agreement with ATF by writing and publishing the book in question, because plaintiff’s conduct was countenanced by the settlement agreement and by ATF officials. The court thus rejects defendant’s counterclaim.

2. Role of ATF Special Agent Jay Dobyns (retired) in the investigation of the Hells Angels as part of ATF’s “Operation Black Biscuit.” Media coverage of Jay Dobyns regarding the ATF’s Operation Black Biscuit (Hells Angels Investigation) CNN: http://www.cnn.com/2007/LAW/02/05/atf.agent/index.html?_s=PM:LAW CNN: http://www.cnn.com/2007/LAW/02/05/dobyns.hellsangels/index.html?eref=rss_mostpopular History Channel/Gangland http://www.liveleak.com/view?i=476_1200881806

History Channel/America's Book of Secrets http://www.history.com/shows/americas-book-of-secrets/episodes/season-2 Discovery Channel http://investigation.discovery.com/tv-shows/deadly-devotion/deadly-devotion-videos/dangerous-ground.htm National Geographic Channel http://channel.nationalgeographic.com/channel/videos/undercover-biker/ Arizona Republic http://archive.azcentral.com/specials/special42/articles/0123hellsangels23.html The following are photographs of ATF Special Agent Jay Dobyns (ret.):

The Court of Federal Claims, in its Findings of Fact in the Opinion, p. 3, wrote the following about Agent Dobyns and the Hells Angels Investigation by ATF, code-named Operation Black Biscuit:

Agent Dobyns became an ATF agent in 1987. From early 2001 to July

2003, he participated in an investigation known as Operation Black Biscuit, which targeted members of the Hells Angels Motorcycle Club (Hells Angels). For nearly two years, Agent Dobyns posed undercover as a member of the Tijuana-based Solo Angeles, as part of a task force that included other ATF agents. As part of this operation, Agent Dobyns and others staged the fake murder of a member of the rival Mongols Motorcycle Club. The staged murder impressed the Hells Angels leadership, causing the club to vote Agent Dobyns as a full “patched” member.

During this time, Agent Dobyns was stationed in one of ATF’s Tucson Field Offices and lived with his family in the Tucson area. In 2003, Operation Black Biscuit and parallel raids ended with the indictment of 36 people (16 as a direct result of the undercover operation), including 16 Hells Angels. The individuals were indicted on racketeering and murder charges. However, a number of setbacks involving the prosecution of these individuals eventually led to some of the defendants receiving reduced sentences and others having their charges dismissed. The disclosure of Agent Dobyns’ identity in court led to threats of death and violence directed against him and his family.

As a result of his work at Operation Black Biscuit, as well as on other investigations, Agent Dobyns received twelve ATF Special Act Awards, two ATF Gold Stars for critical injuries received during investigative operations, an ATF Distinguished Service Medal for outstanding investigative accomplishment, and the United States Attorney’s Medal of Valor award.

Plaintiff’s Final Demonstrative Exhibit 21 presented at closing argument of trial on February 18, 2014, added to that description of Jay Dobyns’ career:

In 1987, during his first week on the job for ATF, while attempting to apprehend a felon, Agent Dobyns was taken hostage and shot in the back, through his lung and chest, and two years later, was shot at and run over by a gang vehicle during an undercover operation in Joliet, Illinois. [Trial testimony of Jay Dobyns, pages 732:1-7].

In 2009, Jay Dobyns wrote a book about that experience that became a New York Times Top Ten bestseller entitled No Angel: My Harrowing Undercover Journey to the Inner Circle of the Hells Angels (Random House / Crown Publishing). No Angel is now in its fourth publishing, translated into seventeen different languages around the world.

Dobyns initially optioned his life rights to 20th Century Fox, represented by Reed at Baird Williams & Greer during the 2006-2007 negotiation with FOX Studios. Tony Scott was set to direct and the film went into pre-production. Following Tony Scott's tragic death, the film project went into a respectful waiting period that ultimately evolved into Fox's decision to not to make the film. Dobyns is in the process of reselling his life rights for film. 3. August 10, 2008, arson of the home of Jay Dobyns.

On August 10, 2008, Dobyns’ home was set fire to in the middle of the night, with his wife and two children inside, four months after ATF withdrew the covert ID’s that Dobyns and his wife Gwen had possessed for several years. ATF pulled the ID’s for what Dobyns argued at trial was resentment over a September 20, 2007, settlement that Dobyns received against ATF for ATF’s mismanagement of threats of death and violence against him. The threats were so severe and ATF’s reaction to them, so incompetent, that, ultimately in June 2009, the Justice Department’s Office of Special Counsel sent a letter to President Obama, detailing ATF’s incompetent mismanagement of threats against one of its undercover agents.

4. The ensuing lawsuit by Jay Dobyns against the United States. Baird Williams & Greer, on behalf of Dobyns, who was extensively involved in the drafting of many pleadings, and particularly the complaints, filed suit in October 2008, against the United States in the U.S. Court of Federal Claims, alleging ATF’s breach of the 2007 settlement agreement between Dobyns and ATF. Dobyns contended that the agreement contained express and implied obligations to protect his safety from the investigative targets of his and the agency’s investigations, and that ATF certainly could not take actions that would reduce the safety of Dobyns and his family, such as withdrawing covert ID’s and failing to adequately investigate an arson of his home. The Department of Justice moved to dismiss the action in 2009, and the Court of Claims denied the motion. In 2012, both sides filed motions for summary judgment, which the court also denied. The trial to the bench took place in Tucson, Arizona, in June 2013 for two weeks, and concluded during July 2013 in Washington DC with the third and final week of trial. The three week bench trial was closed to the public, but the February 18, 2014, three hour closing argument was open to the public. Several news outlets attended, and video clips of comments outside the courthouse are found immediately below.

From left – senior trial paralegal Jeff Elder, ATF Agent Jay Dobyns, lead trial attorney James Reed, and attorney Carson Emmons.

First and second photos - Lead trial attorney James Reed in front of the U.S. District Courthouse in Tucson, Arizona after closing argument on February 18, 2014. Third photo – Dobyns and Reed at trial midpoint, following two weeks in Tucson, and before the final week of trial in Washington, DC.

Media Coverage regarding Dobyns v. United States, in the U.S. Court of Federal Claims Wall Street Journal http://online.wsj.com/article/SB123611461950722501.html Tucson Daily Star http://tucson.com/news/local/tim-steller-public-locked-out-of-trial-in-former-atf/article_5943c5fd-3fbf-58e7-a9fe-2e85935941c3.html Washington Post http://articles.washingtonpost.com/2009-06-21/news/36776731_1_atf-gang-member-notorious-motorcycle-gang Newsweek http://www.thedailybeast.com/newsweek/2009/03/06/a-very-hellish-journey.html Arizona Republic http://www.azcentral.com/news/articles/2010/02/11/20100211aft-agent-and-aft-in-legal-battle.html Townhall Magazine http://townhall.com/columnists/katiepavlich/2011/10/21/atf_ignored_death_threats,_tried_to_frame_whistleblower_agent_to_cover_corruption Post-Trial New Coverage - Video KGUN9 ABC News: http://www.jrn.com/kgun9/news/It-was-worse-than-a-mess-Stunning-testimony-in-ATF-agent-Jay-Dobyns-case-against-the-Feds-246078711.html NRA News: http://www.youtube.com/watch?v=Gr60sT9gYlk The trial testimony established that ATF’s response to the fire scene was incompetent and prejudicial to an effective criminal investigative followup. Plaintiff’s Demonstrative Exhibit 20 at closing argument set forth a few of the damning trial testimony excerpts criticizing ATF’s handling of the fire and arson investigation. Special Agent in Charge, Phoenix Field Division, Thomas Atteberry trial testimony, page 2032:13-23, stated:

13 Q And as a part of doing that review of the 14 file, did you reach certain conclusions about the

15 quality of ATF's response to the fire event on 16 August 10, 2008? 17 A Yes, sir.

18 Q And what were those conclusions? 19 A They were unacceptable.

20 Q Can you please -- 21 A They were unprofessional. I was embarrassed

22 because that's not the way we operate, and we should 23 have cleared the bench when that fire happened.

Tristan Moreland trial testimony, page 1299:13-1300:1, concurred:

13 Q Mr. Moreland, do you feel you're in a 14 position to critique the totality of the quality of

15 ATF's response to the fire at Agent Dobyns home?

16 A I do. 17 Q And what is that critique? 18 A In a macro sense, a few words, it was 19 inadequate between that and horrendous. If you'd like 20 me to expand, I could critique it element by element.

21 But in general, it was an extremely poor response. 22 Q In terms of other ATF responses to 23 residential arsons, how would you rate the quality of 24 ATF's response to this one?

25 A It's probably the worse response we've ever 1 given to any fire I've ever been part of.

Charles Higman trial testimony, page 950:15-951:3, in charge of ATF’s arson response, also concurred:

15 Question: "So once again, from your 16 perspective, ATF's involvement in the investigation of

17 the arson was a mess."

18 Answer: "It was worse than a mess. It was 19 not thought out well. They only saw what was here. 20 They didn't look down the road at what was going to 21 occur later. They didn't understand the ramifications

22 of what they were doing at the time." 23 Do you stand by that testimony?

24 A Of my testimony today or my testimony during 25 the deposition? 1 Q Do you stand by that testimony in your

2 deposition? 3 A Yes.

The Court found that the response by ATF to the arson scene was unacceptable. At page 14 of the Opinion, footnote 16, the Court wrote:

FN16 Agent David Korn, an agent in one of the Tucson field offices, apparently responded to the fire scene that evening. He later conducted an interview based on a lead provided by Agent Dobyns. Agent Korn intended to conduct additional interviews at a local prison the next day, but was advised by other agents not to do so. Agent Korn later had a conversation with Agent Higman, in which he was told not to conduct any further interviews. Also on August 11, 2008, Phoenix Field Division Group Supervisor Peter Forcelli tried to send agents from his group to assist in the investigation, but was instructed not to do so by SAC Newell. In this conversation, SAC Newell told Agent Forcelli that the fire was “just minor scorching and PCSO had it under control.” Pictures in the record reveal that SAC Newell’s description of the fire was inexcusably inaccurate and that the fire was a total loss.

The night of the arson, Dobyns was at flight training school in Phoenix. Two top ATF agents, Senior Special Agent Tristan Moreland and ATF Certified Fire Investigator Mike Hildick, investigated the scene, interviewed Dobyns and his family at length, and determined that neither Dobyns nor his family had anything to do with the fire, nor did they know who did, although Dobyns reasonably suspected that it probably was related to his law enforcement investigation work. Agents Moreland and Hildick told Phoenix Special Agent in Charge William Newell and Assistant Special Agent in Charge George Gillett that ATF should pursue likely suspects

instead, including past subjects of investigation by Jay Dobyns and their associates, which would include members of organizations such as the Hells Angels, the Aryan Brotherhood and MS-13. Instead, Newell, Gillett and Tucson Group Supervisor Charles Higman ignored other suspects and continued to monitor and pursue Jay Dobyns as the primary and sole suspect. Gillett and Higman attempted to make a case that Dobyns had set fire to his home with his wife and children inside, going so far as to audio record phone calls with Dobyns without his knowledge and without required authorization from the U.S. Attorney’s Office, and to propose the same theory to the FBI at the time the investigation was transferred between the agencies. The Court wrote:

Several days later, Agents Hildick and Moreland interviewed Agent Dobyns and his family regarding the fire. Agent Dobyns was aware that a standard arson investigation required that the homeowner initially be viewed as a potential suspect. Based on their interviews with the family and their observations of the fire scene, both Agents Hildick and Moreland ruled out Agent Dobyns and his family as suspects in the fire. Despite this, the record reveals that several ATF officials, including ASAC Gillett and Agent Higman, continued to view Agent Dobyns as a suspect and did so for a number of years. [….] The IAD investigation revealed that, despite this transfer, Agent Higman and ASAC Gillett purposely slowed the investigation into the fire because they felt that another agency should be conducting the investigation; [….] Along these same lines, in a conversation with Agent Bayer, Agent Higman indicated that he wanted the case to be on a “slow roll.” Agent Higman likewise indicated to Agent Maynard, the other agent assigned to investigate the arson, that they were going to “slow walk this thing” until the FBI accepted the investigation. ATF did not offer a reward for information regarding the fire, even though rewards had been offered in similar circumstances; other agents had recommended to SAC Newell and ASAC Gillett that such a reward be offered.

Dobyns argued at trial that any audio recording surveillance of Jay Dobyns by ATF would prove that ATF had pursued Jay as a suspect despite claiming that they had never done so. The Department of Justice stipulated that the recording of Jay Dobyns’ telephone calls was improper:

94. On August 22, 2008, and August 27, 2008, ATF Agent Matt Bayer tape recorded conversations with Mr. Dobyns without Mr. Dobyns’ knowledge.

95. ATF did not seek, and had not obtained, authorization to record Agent Dobyns without his knowledge on August 22, 2008, or August 27, 2008.

The Court writes:

On August 22, 2008, and August 27, 2008, Agents Matt Bayer and Robert Maynard, at the direction of Agent Higman, tape-recorded conversations with Agent Dobyns without his knowledge. Defendant has stipulated that

ATF did not seek, and did not obtain, authorization to record Agent Dobyns without his knowledge.21 In the midst of these recording sessions, Assistant Director Carroll visited the Phoenix Field Division to obtain a briefing on the status of the Dobyns’ fire investigation. The record suggests that ASAC Gillett withheld information from both Assistant Director Carroll and SAC Newell at this time; amongst the information withheld was the fact that Agents Bayer and Maynard had been requested to record conversations with Agent Dobyns without his knowledge (the first of the recordings occurred before the meeting with Assistant Director Carroll; the second thereafter). Overall, at or around this time, ASAC Gillett and Agent Higman instituted several measures to prevent agents from the Field Division, as well as supervisors in ATF headquarters, from having access to information regarding the investigation into the Dobyns fire. According to the IAD investigation, those measures included circumventing the reporting requirements in ATF’s “N-Force” case management reporting system, designating the N-Force case file as being covered by Fed. R. Crim. P. 6(e) when no grand jury investigation existed, storing files off-site at a location provided by the United States Air Force, and withholding information from ATF superiors in briefings.22

Gillett’s and Higman’s efforts to keep their pursuit of Jay Dobyns as a suspect secret was documented in an email from Gillett to Higman during the arson investigation. The Court set forth the emails between Gillett and Higman in the Opinion at page 17, with Gillett’s August 21, 2008, 4:02 PM email stating the following:

However, what I can control (and fully intend to control) is the specific information that is briefed to the chain of command. I’ll shoot straight, I think that you could tell during our meeting on Tuesday, I am no more happy about these circumstances than you. However, like you, I’ve been ordered to proceed down this investigative path, so I will. What I won’t do is compromise my integrity or the integrity of this investigation. I stand with you and your agents on this, so not releasing significant details (to anyone) that we may discover that would compromise our work won’t come from me. I’ll go out of my way to conceal them. Please trust that (and for the record I am not inferring anything from your prior comments) I have enough L.E. [law enforcement] and Intelligence community experience to know how to protect myself and my subordinates. (I can hide the ball with the best of them). I have said it before, but for the record (and probably future disclosure in court) I’ll say it again: I fully intend that this is the last stop on the career path of George Gillett, but this case likely guarantees it.

In Plaintiff’s Trial Exhibit 22.2/Demonstrative Exhibit 8 for Plaintiff at closing argument, plaintiff sets forth the original email in its entirety: From: George Gillett T., Jr. Sent:Thursday,August 21,2008 4:02 PM To: Higman, Chuck Subject: Re: Monday Chuck-

I appreciate your thoughts and concerns and most appreciate that you are comfortable enough to raise them. That being said, i t’s not possible in this lifetime to control the Director, Deputy Director, ADs or so on

down the chain from getting briefed on this case or contacting the homeowner and/or his family. However, what I can control (and fully intend to control) is the specific information that is briefed to the chain of command.

I’ll shoot straight, I think that you could tell during our meeting on Tuesday, I am no more happy about

these circumstances than you. However, like you, I've been ordered to proceed down this investigative path.

so I will. What I won't do is compromise my integrity or the integrity of this investigation. Istand with y ou and

your agents on this, so not releasing significant details (to anyone) that we may discover that would

compromise our work won't come from me. I'll go out of my way to conceal them. Please trust that {and for

the record I am not Inferring anything from your prior comments) I have enough LE [law enforcement] and

intelligence community experience to know how to protect myself and my subordinates. (I can hide the ball

with the best of them). I've said it before, but for the record (and probably future disclosure in court) I'll say it again: I fully intend

that this is the last stop on the career path of George Gillett, but this case likely guarantees it. I'm going to

back you and your agents and do the right thing. Iwill also take very good notes on what's conveyed during any briefings and still know how to generate a 3120.2 if necessary. Iwill also convey the points you raise regarding the delicate current status of this investigation to Carson and others that I brief. Thanks,

George T. Gillett Assistant Special Agent in Charge ATF – Phoenix Field Division Office (602) 776-5400

When ATF Certified Fire Investigator Mike Hildick reported the findings of his ATF Cause and Origin Report of the fire to ATF’s George Gillett, consisting of a conclusion that the fire was arson and that Jay Dobyns and his family had no role whatsoever in it nor did they know who did, findings supported by ATF’s on-scene Senior Special Agent Tristan Moreland, Gillett tried to pressure Hildick into changing the findings. The Court writes in its Opinion at p.19:

On August 25, 2008, ASAC Gillett and Agents Hildick, Moreland, Bettendorf and Heffner held a meeting about the fire. At that meeting, ASAC Gillett characterized the conclusions reached by Agent Hildick in his Cause and Origin report regarding the fire as being “unpopular” – a statement that was conspicuous to the agents in attendance, as Agent Hildick’s report had not yet been released to anyone.

Instead of pursuing legitimate suspects, Gillett and Higman stored their own personal investigation targeting Jay Dobyns as the prime suspect out of the electronic record-keeping system for ATF, preventing ATF headquarters and other investigating agents, such as Hildick, Moreland, Forcelli, and supervisors such as Carson Carroll and William Newell, and of course Dobyns, from being aware of the relentless pursuit of Dobyns by Gillett and Hildick as the only suspect in the arson, and their diversion of all investigative focus and resources from legitimate suspects. The Court refers to an ATF Internal Affairs Division official report of investigation of the conduct of George Gillett and William Newell related to the arson investigation, and writes at page 22 of the Opinion:

In April of 2012, IAD initiated a formal investigation regarding multiple complaints from Agent Dobyns concerning ATF’s response to the fire at his residence and subsequent follow-up. The investigation was initiated by Julie Torres, the Assistant Director of IAD. On October 11, 2012, IAD completed Report of Investigation No. 20120079. The report was submitted by Agent Christopher J. Trainor, reviewed by SAC John F. Ryan and eventually approved by Assistant Director Torres. Agent Trainor’s work in completing this report was exhaustive, and entailed interviewing a number of witnesses; reviewing depositions; checking with compliance with ATF Orders; reviewing documents, files and logs available through the N-Force case management system; and reviewing various other internal ATF memoranda.

IAD made several findings regarding the mismanagement of the response to the fire and the subsequent investigation thereof. IAD concluded that the leadership of the Phoenix Field Division, including SAC Newell, ASAC Gillett and Agent Higman delayed the ATF response at the residence of Agent Dobyns in ways that harmed the subsequent investigation. IAD found that these individuals failed properly to staff the investigation of the fire and failed, in particular, to protect the fire scene and secure evidence available at the scene. IAD also faulted SAC Newell, ASAC Gillett and Agent Higman for their poor coordination of the investigation, including the failure to assign a supervisor at the scene to coordinate ATF’s response.26

IAD further concluded that SAC Newell, ASAC Gillett and Agent Higman targeted Agent Dobyns as a suspect in the arson of his home, even after highly-respected agents within the Phoenix Field Office had concluded otherwise based on interviews and evidence found at the scene of the fire. IAD found that this conduct led investigators to ignore credible suspects. IAD also found that, during this time, two recordings of Agent Dobyns’ phone calls were made without his knowledge or consent, and that proper authorization for the use of that surveillance was not obtained from ATF Headquarters or from the U.S. Attorney’s Office for the District of Arizona. See ATF Order 3530.2 and ATF Brief 3100.05. IAD also determined that this use of electronic surveillance was not documented in the fashion required by various ATF orders, and the surveillance evidence so produced was not stored in the Field Office’s evidence vault, as required by ATF Orders.27 IAD, moreover, found that ASAC Gillett and Agent Higman instituted a system to report investigative activity regarding the fire that violated ATF policy and took steps to prevent the full and accurate briefing of information and investigative activities to their superiors, including SAC Newell and the Director and Deputy Director of ATF.28 The IAD report further found that Agent Higman provided a briefing to the FBI (when the latter took over the investigation from ATF) that included false information and portrayed Agent Dobyns as ATF’s lead suspect in the fire – even though Agents Hildick and Moreland had eliminated Agent Dobyns as a suspect based on their interviews with him and his family and their review of the evidence at the scene.

Indeed, in 2012 and 2013, ATF’s Office of Internal Affairs investigated the allegations of Jay Dobyns’ lawsuit and agreed with the allegations of the lawsuit. The conclusions of the October 11, 2012 ATF internal Affairs Report (Plaintiff’s Trial Exhibit 272/Demonstrative Exhibit 10 at closing argument) were as follows:

DEPARTMENT OF JUSTICE Bureau of Alcohol, Tobacco; Firearms and Explosives Report of Investigation SUBJECT OF INVESTlGATION NAME: NEWELL, William D. SERIES/GRADE: 1811/SES SSN: XX:X-:XX-5470 EOD: 9/24/1989 ' I DOB: 4/l/1966 NAME: GlLLETT JR, George T. SERIES/GRADE: 1811/GS-15 SSN: XX:X-:XX-2084 EOD: 1/13/1991 008: 8/25/1960 POST OF DUTY: CTD DIRECTORATE: OSII: DATE OF REPORT October 11, 2012 In April 2012, the Internal Affairs Division (IAD) initiated a formal investigation regarding multiple complaints from Special Agent (SA) Jay Dobyns relating to the ATF response to a fire that occurred on August 10, 2008 at his residence, and the subsequent ATF investigation. The complaints have been transmitted in various formats including Office of the Inspector General online submissions, e-mails, and letters. SA Dobyns alleged general mismanagement, job performance failure and violation of ATF policy by then Special Agent in Charge (SAC) William D. NEWELL, Phoenix Field Division (FD); then Assistant Special Agent in Charge (ASAC) George T. GILLETT, Phoenix FD; and retired Resident Agent in Charge (RAC) Charles HIGMAN, Tucson II Field Office (FO). The following specific allegations were investigated in this IAD investigation: 1. Inadequate Response Time to the Fire Scene by the Phoenix FD The IAD investigation revealed that the leadership of the Phoenix Field Division (FD), including then Special Agent in Charge (SAC) William NEWELL, Assistant Special Agent in Charge (ASAC) George GILLETT, and retired Resident Agent in Charge (RAC) Charles HIGMAN; delayed the ATF response to the fire at the residence of Special Agent (SA) Jay Dobyns. 2. Inadequate Staffing of the Response to the Fire Scene The IAD investigation. revealed that the Phoenix Field Division management team, including then SAC NEWELL, then ASAC George GILLETT, and retired . RAC Charles HIGMAN failed to properly staff the investigation of the fire scene. 3. Unauthorized Use of Electronic Surveillance (ES) to Record SA Dobyns' Telephone Calls The IAD investigation revealed that two recordings of SA Dobyns' phone calls were made

without his knowledge or consent, and that proper authorization for the use of said electronic surveillance was not obtained. 4. Failure to Properly Document the Use of Electronic Surveillance as Required by ATF Orders. The IAD investigation revealed that the use of electronic surveillance was not documented as required by ATF orders. The electronic surveillance evidence was not stored in the Field Office vault in accordance with ATF orders. · 5. Failure to Report Investigative Activity in N-Force as Required by ATF Orders The IAD investigation revealed that ASAC GILLETT and RAC HIGMAN instituted a system to report investigative activity in UI 785085-08-0075 (regarding the fire) that violated ATF policy. 6. Improper Designation of the N-Force Case File Regarding the Fire as 6(e) -Grand Jury Protected The IAD investigation revealed that UI 785085-08-0075 was improperly given the 6(e) designation within N-Force. 7. Withholding Critical Information Regarding the investigation from the Chain of Command, Including the SAC, Deputy Assistant Directors. Assistant Director's. etc. The IAD investigation revealed that ASAC GILLETT and RAC HIGMAN agreed to prevent a full and accurate briefing of information and investigative activities to their superiors, including SAC NEWELL and ATF HQ DADs, Ads, the Deputy Director, and the Director. 8. Continuing to Investigate SA Dobyns as a Suspect in the Fire After He Had Been Eliminated as a Suspect by Senior SA's from the Phoenix FD The IAD investigation revealed that the Phoenix FD continued to investigate SA Dobyns as a suspect in the fire despite the fact that two senior SAs from the Phoenix FD had ruled SA Dobyns arid his family out as suspects in the fire. 9. SA Dobyns Briefed as a Suspect in the Fire to the FBI The IAD investigation revealed that RAC HIGMAN provided a briefing to the FBI (when the FBI took over the investigation from ATF) that included false information and portrayed SA Dobyns as ATF's lead suspect in the fire, after SA Dobyns had been eliminated as a suspect by senior SA's from the Phoenix FD. 10. Pressure Applied to Certified Fire Investigator. The IAD investigation revealed that ASAC GILLETT made an improper statement to a Certified Fire Investigator from the Phoenix FD regarding conclusions reached about the fire. 11. ATF Failed to Offer a Reward for Information Regarding the Fire. The IAD investigation revealed that no reward for information was offered by ATF regarding the arson that occurred at SA Dobyns residence.

The Court similarly agreed with the conclusions of ATF’s Internal Affairs Division report of

investigation regarding the withdrawal of plaintiff’s covert ID’s, issued for his and his wife’s protection from pending death and violence threats. The conclusions of ATF’s May 13, 2013 Internal Affairs Report of Investigation (Plaintiff’s Trial Exhibit 273/Demonstrative Exhibit 11), were as follows:

Dobyns contended at trial that one reason that ATF withdrew Jay Dobyns’ and his wife’s covert ID’s was professional jealousy over Dobyns’ public media attention related to Operation Black Biscuit and his receipt of the Top Cop Award from the National Association of Police Officers, televised on “America’s Most Wanted”. But without question, ATF’s withdrawal of Jay Dobyns’ covert identifications and those of his wife Gwen was without cause, precedent or regard for the danger in which the withdrawal placed all members of the Dobyns family. The Court wrote in its Opinion:

In 2012, IAD initiated an internal investigation regarding complaints made by Agent Dobyns relating to the withdrawal of the fictitiousundercover identification issued to him and his family. On May 13, 2013, IAD completed

Report of Investigation No. 20130060. The report was submitted by Agent Trainor, reviewed by SAC Gwen A. Golden, and eventually approved by Michel P. Gleysteen, an Assistant Director of OPRSO. The IAD report primarily focused on the actions of three individuals: Chief Vidoli, SAC Newell and former NIBIN Chief Pugmire. [….]

The IAD report made several key findings about ATF’s withdrawal of

backstopping for Agent Dobyns and his family. It summarized the prior threats that had been made against Agent Dobyns, including those that had occurred between 2003 and 2006. The report described the 2003 issuance of backstopped fictitious identification to Agent Dobyns and his family by ATF’s Undercover Branch, and the other steps taken to provide security for the Dobyns family. The report detailed ATF’s failure to properly institute the 2004 “emergency relocation” of Agent Dobyns and his family – a relocation in which, inexplicably, no backstopping was provided.30 [….]

The report closely examined the actions taken by Chief Vidoli, former NIBIN Chief Pugmire and SAC Newell relating to the withdrawal of the fictitious identification that had previously been issued to Agent Dobyns and his family. [….]It further emphasized that the withdrawal of identification demanded by Chief Vidoli was unprecedented – that this was the only instance in which Chief Vidoli ever withdrew backstopping issued to an ATF employee. In sum, the IAD Investigation found no valid reason for the withdrawal of the fictitious identification previously issued to the Dobyns family.

In general, the IAD investigation revealed that information available to

Chief Vidoli confirmed that threats against the Dobyns had been substantiated and were extant, the evidence of which included a copy of the June 2007 threat assessment that OPSEC Branch Chief Amy Walck provided to him. Indeed, the central conclusion of the report was that Chief Vidoli, NIBIN Chief Pugmire and SAC Newell ignored information about threats to Agent Dobyns and his family in deciding to remove the fictitious identification. And the report underscored that the removal of fictitious identification put Agent Dobyns and his family at risk.

Ultimately, the Court adopted the IAD report’s findings and the testimony of numerous witnesses, supported by key documents frequently authored by malfeasant actors involved in the arson response, with the Court determining that the covenant of good faith and fair dealing was violated by the federal government, on behalf of ATF. The Court’s Opinion states at page 37:

To begin with, the essence of the Settlement Agreement was to ensure the safety of Agent Dobyns and his family – and, secondarily, that ATF employees would not discriminate against Agent Dobyns.

The ATF officials who entered into the Settlement Agreement with Agent Dobyns understood all this, as they had years of law enforcement experience with the agency. They recognized that this was no ordinary employment dispute and that the $373,000 being paid to Agent Dobyns related to the fundamental failure of ATF officials to act in conformity with the assurances that had been given to Agent Dobyns and his family – the same assurances that were given to all ATF

agents in the form of policies, procedures and orders designed to promote agent safety. The record makes this understanding clear. And yet it appears that certain ATF officials – albeit not the ones who signed the Settlement Agreement – set out to reappropriate the benefits that Agent Dobyns expected to obtain from the bargain; to act in a fashion designed to undercut the Settlement Agreement’s purpose so as to “deprive [Agent Dobyns] of the contemplated value.” Metcalf Constr., 742 F.3d at 991.

Some of these ATF officials undermined that bargain literally within weeks after it was first cut. [….] In early November, Chiefs Pugmire, Vidoli and Walck determined that Agent Dobyns would be required to return all identifications and license plates issued to him and his family. They took this action even though, at the time of the Settlement Agreement, a June 22, 2007, assessment still viewed Agent Dobyns as at risk of harm. The subsequent IAD investigation revealed that the information presented to, or available to, SAC Newell and Chiefs Pugmire, Vidoli and Walck should have made clear that risks were still present and that backstopping was still necessary. Moreover, the IAD investigation confirmed that this had been the only instance in which Chief Vidoli ever withdrew the backstopping of an ATF Agent.

[….] However, the critical point here is not whether these individuals acted negligently, or even in bad faith. But whether that their lack of diligence and failure to cooperate, coming little more than five weeks after the signing of the Settlement Agreement, had the effect of putting Agent Dobyns at risk, thereby breaching to covenant of good faith and fair dealing. The court believes that it did. See Malone v. United States, 849 F.2d 1441, 1445-46, modified, 857 F.2d 787 (Fed. Cir. 1988) (government breached covenant via its “lack of diligence and interference with or failure to cooperate”); see also N. Star Alaska Hous. Corp., 76 Fed. Cl. at 212.

Moreover, the withdrawal of the backstopping revealed a more deep-seated problem – that, despite the efforts reflected by the Settlement Agreement, ATF still was inadequately prepared to respond systematically and individually to the sorts of threats experienced by Agent Dobyns and his family. Documentation of this may be found in both of the IAD reports in question. Indeed, nearly two years after the Settlement Agreement, on June 18, 2009, the U.S. Office of Special Counsel, working with the DOJ Inspector General, generally sustained Agent Dobyns’ allegations regarding the inadequate response to threats against him, finding that ATF failed to investigate adequately and “needlessly and inappropriately” delayed its response to additional threats made against him.47

FN 46. [….] Agent Trainor’s IAD report on the removal of the backstopping provided hundreds of findings, and was based upon hundreds of documents and five months of interviews. That report concluded that there was “no valid reason” to explain ATF’s withdrawal of the fictitious identifications previously held by Agent Dobyns and his family. Agent Trainor’s IAD findings were reviewed and approved by SAC Gwen Golden on May 9, 2013, and forwarded to the PRB by OPRSO Assistant Director Gleysteen on May 13, 2013.

The record in this case reveals other instances in which the covenant was breached. This is certainly the case with respect to actions taken by ASAC Gillett

and Agent Higman in regards to the investigation of the August 10, 2008, fire at the Dobyns’ home. [….]In the court’s view, the evidence showed that ASAC Gillett and Agent Higman knew that Agent Dobyns was not responsible for the fire, and still allowed him to be treated as a suspect as a form of payback. Moreover, ATF officials knew, or should have known, that individuals like ASAC Gillett and Agent Higman should not have been allowed to participate in the investigation – as it turned out their conduct was not only reprehensible, but predictably so. In donning blinders in this regard, ATF officials compounded the potential harm that might have befallen the Dobyns family. And acting in the aggregate, these ATF officials and employees further reappropriated essential features of the bargain represented by the Settlement Agreement, thereby again breaching the covenant of good faith and fair dealing.48

[….] That said, it is the court’s view that the actions taken by ATF officials and agents during the time period proximate to the execution of the Settlement Agreement severely undermined the intent of the agreement and thereby effectuated a breach of the covenant of good faith and fair dealing. And those actions, and the covenant breached thereby, entitle plaintiff to damages.49

The Court selected among several damages theories which Dobyns presented to the Court, and ultimately awarded $173,000 against the federal government. Several thoughts in this regard are appropriate. First, to obtain ANY monetary judgment against the federal government is an extraordinarily difficult challenge. The fact is that the government is vulnerable to suit only on terms that are established by the Congress, ones that exclude the possibility of punitive damages. Which leads to the second point – were punitive damages available in this action, they might have totaled in the millions of dollars. The standards for punitive damages includes malice worthy of particular punishment; the Court’s opinion makes clear that the conduct of ATF through George Gillett and Charles Higman could be so characterized. In an ordinary civil action against a private party defendant instead of the federal government, the punitive damages for such conduct described in the Court’s findings of fact might have been extraordinary. Finally, the Court made clear that it had awarded to Jay Dobyns something far more valuable than money – it returned to him his good name and professional reputation, and instead publicly pilloried those bad actors and negligent persons at ATF who set out to harm Dobyns. The Court made short work of the government’s counterclaims against Jay Dobyns for royalties from the sales of his book “NO ANGEL: My Harrowing Undercover Journey to the Inner Circle of the Hells Angels”, and the return of contractual payments by 20th Century FOX Films for Jay Dobyns’ life rights for a motion picture, finding that ATF knew about those two creative projects before negotiating and signing the September 20, 2007, settlement agreement, and expressly waived claims for such outside work in the settlement agreement. The Court found no breach of the settlement agreement by Jay Dobyns and awarded the government zero dollars ($0.00) for its counterclaims. As the Court began its Opinion quoting Othello at page one, it drove home the point that Jay Dobyns prevailed against the federal government by every meaningful measure:

ALLEGRA, Judge:

“Who steals my purse steals trash; ‘tis something, nothing;

’Twas mine, ‘tis his, and has been slave to thousands; But he that filches from me my good name,

Robs me of that which not enriches him, And makes me poor indeed.”1

1 William Shakespeare, Othello, Act III.

5. The Court’s conclusion in this case is worth noting, both for its demonstration of

respect for what Jay Dobyns has endured, both before and during this lawsuit, and for its foreboding referral of the conduct of ATF and DOJ attorneys for investigation by United States Attorney General Eric Holder, the Office of Professional Responsibility for the Department of Justice, and the Office of the Inspector General of the Department of Justice, reserving the question of attorney discipline until after DOJ responds with findings.

The Court writes in its Conclusion:

III. CONCLUSION

“The United States wins its point whenever justice is done its

citizens in the courts.” So wrote Solicitor General Frederick Lehman in the government’s brief in Brady v. Maryland, 373 U.S. 83, 87 (1962), in words now carved into the office rotunda of the Attorney General. Presumably, what holds true for the citizenry in general ought to hold true for Federal agents who risk their lives in law enforcement. But if that is so, how does one explain this case?

Unfortunately, how certain ATF officials acted in the aftermath of the Settlement Agreement bears little resemblance to the lofty sayings carved into the facades of the Department of Justice. What happened here is more reminiscent of a Franz Kafka novel, “The Trial.” 71 There, Kafka depicts a totalitarian state in which the government suppressed freedom via a deluge of circuitous and irrational process. One of the techniques employed was the “non-final acquittal.” Kafka describes these acquittals thusly: “That is to say, when [the accused] is acquitted in this fashion the charge is lifted from [his] shoulders for the time being, but it continues to hover above [him] and can, as soon as an order comes from on high, be laid upon [him] again.” Id. at 158. Experiences like these unfortunately bring to mind those that Agent Dobyns experienced in the years following the execution of the Settlement Agreement – a time that should have been one of healing and reconciliation, but that instead gave certain ATF officials and agents the opportunity to harm Agent Dobyns further. In the court’s view, the actions of these ATF employees indisputably breached the covenant of good faith and fair dealing. That breach caused Agent Dobyns to suffer mental distress, as well as pain

and suffering, which, in turn, entitles him to the damages awarded below. Hopefully, this will bring this Kafkaesque story to an end.

Based on the foregoing, the court finds that defendant did not breach the Settlement Agreement, but did breach the covenant of good faith and fair dealing. Based on the breach of the covenant, the court finds that plaintiff is entitled to damages in the amount of $173,000. The court further finds that defendant is not entitled to recover anything with respect to its counterclaim.72

IT IS SO ORDERED. 73 s/Francis M. Allegra Francis M. Allegra, Judge

6. The Justice Department’s conduct during the lawsuit.

One of the unique aspects of this case is the intransigence of the U.S. Department of Justice and the tactics that DOJ and ATF undertook to conceal facts and evidence in this case. The Court issued a stern warning in the Conclusion of the Opinion at Footnote 72, as follows:

72 By separate order, the court will direct the Clerk of Court to serve a

copy of this opinion upon the Attorney General of the United States, the Office of Professional Responsibility for the Department of Justice, and the Office of the Inspector General of the Department of Justice. The transmittal letter should call attention to this opinion, and, in particular, to footnote 24 thereof. See 28 C.F.R. § 0.39 (2013); see generally, United States v. Hasting, 461 U.S. 499, 506 n.5 (1983); United States v. Bartko, 728 F.3d 327, 342-43 (4th Cir. 2013). Until it receives a final response from the Department of Justice, the court will reserve the question whether one or more of defendant’s attorneys acted in violation of the court’s rules and should be disciplined thereunder.

Examples of misconduct abound, but Dobyns is limited in this communication to what he can say by the fact that his law firm is applying for attorney fees, and those issues are yet to be decided in a separate opinion by Judge Allegra. However, a few examples can be discussed:

The Justice Department withheld, for six months, the first of two ATF Internal Affairs Division reports, both of which concluded that Dobyns’ allegations were 100% correct, with DOJ claiming that the Internal Affairs reports were not relevant. The October 2012 ATF Internal Affairs Division investigative report concluded that all of Dobyns’ allegations in its lawsuit were correct, with the exception of the withdrawal of Jay Dobyns’ covert ID’s, which IAD left to a subsequent IAD investigative report. That second report issued in May 2013, a month before trial, and similarly concurred with the plaintiff, that ATF withdrew Jay Dobyns’ and his wife’s covert protective identification documents without cause, and inconsistent with ATF protocol to leave such ID’s in place for the benefit of agents after an undercover mission is over. By withdrawing the covert ID’s, ATF placed the lives and safety of Jay Dobyns and his wife and children at risk.

For one year after DOJ’s civil division attorneys received the two audio surveillance recordings of Jay Dobyns’ telephone calls made in August 2008, and for six months after Dobyns’ attorneys requested any audio surveillance recordings made by ATF of Dobyns during the arson investigation, ATF’s Office of Chief Counsel and DOJ’s Civil Division failed to produce the two audio surveillance recordings of Jay Dobyns. This delay required Dobyns’ attorneys to re-depose five government witnesses at the government’s cost, in order to ask questions about ATF’s reasons for the audio surveillance.

When ATF’s Phoenix Office determined that it must, in good conscience, re-open the arson investigation in 2012 and attempt to interview various suspects who had never even been approached, ATF’s Office of Chief Counsel – which Dobyns and his counsel suspected was at the urging or with the tacit approval of DOJ’s Civil Division – contacted the Senior Special Agent in Charge of Phoenix, telling him that he could not re-open the investigation or else it would harm DOJ’s defense of the lawsuit by Jay Dobyns. That request by the Office of Chief Counsel was properly ignored, and the investigation was re-opened – although the trail, after three and a half years, was quite cold.

Some of the conduct of ATF and Department of Justice attorneys in defense of Dobyns’ lawsuit appeared to be premeditated and calculated to prejudice Jay Dobyns’ rights to a fair trial. The stakes of this lawsuit involved the attempted murder of an agent and his family, with the apparent end goal of sending that agent to prison for the arson and attempted murder of his wife and children. Dobyns and representation believed that anything less than the highest level of honor exhibited by all parties concerned in such circumstances is unacceptable. 7. The resource imbalance that DOJ attempted to use to its benefit against Dobyns

by prolonging the process through withholding documents and other tactics. Dobyns’ attorney James Reed emailed DOJ Civil Division Assistant Attorney General Stuart Delery probably approximately times about conduct by the Civil Division as it relates to this lawsuit, and yet little changed as a result. Eric Holder has been intimately involved in oversight of ATF crisis management, and therefore Dobyns suspects he has approved of the “win at all costs” attitude by DOJ in this lawsuit. For three weeks of federal trial, the Department of Justice had five attorneys and two paralegals on their side of the courtroom. On Dobyns side of the courtroom was Jay Dobyns and his attorney James Reed, and for half the trial, paralegal Jeff Elder. Carson Emmons assisted at critical moments on motions. Dobyns and his counsel were propelled by a belief that the truth, hard work, and the law are enough to overcome a Department of Justice intent on winning at all costs, when the DOJ is defending wrongful conduct. FOR FURTHER COMMENT, CONTACT JAMES B. REED AT 602.445.7720 OR JREED@BWGLAW.NET. James B. Reed, Esq. Attorney for ATF Special Agent Jay Dobyns (retired) HTTP://BWGLAW.NET/ABOUT-THE-FIRM/JAMES-REED/ HTTP://WWW.IMDB.COM/COMPANY/CO0178799/ BAIRD WILLIAMS & GREER LLP 6225 N. 24th St., Suite 125, Phoenix, AZ 85016 (602) 445-7720 (direct) (602) 256-9400 (ofc) (602) 271-9308 (fax) (800) 251-8243 (toll free) jreed@bwglaw.net www.bwglaw.net

SUPPLEMENT TO MEDIA ADVISORY: EMAILS TO SENIOR COUNSEL OF RECORD ON “JAY DOBYNS V. UNITED STATES” FOR THE DEPARTMENT OF JUSTICE -- CIVIL DIVISION ASSISTANT ATTORNEY GENERAL STUART DELERY -- NOT ONE OF WHICH RECEIVED A RESPONSIVE EMAIL:

From: James B. Reed Sent: Wednesday, June 05, 2013 1:05 AM

To: Stuart Delery

Subject: Mr. Delery, based on the Report of Investigation No. 1 Importance: High Can you tell me if there is any investigation by the Justice Department for obstruction of justice by George Gillett and Charles Higman? You have a report which makes out allegations of obstruction of a criminal investigation into the attempted murder of a federal agent and his family. Can you please explain to me what the acting Assistant Attorney General for the Justice Department’s Civil Division is doing about that, other than contending that the conduct of George Gillett and Charles Higman is somehow still factually in dispute and does not breach a settlement agreement, the spirit of which is to protect my client’s safety? This is a civil lawsuit, of course, but is the United States Department of Justice going to investigate allegations of obstruction of a criminal investigation by George Gillett and Charles Higman, based on information obtained during this lawsuit? Because it is clear that you are aware of those facts, and as a senior Justice Department official, it is also clear that you can request the initiation of an investigation for obstruction of justice against Charles Higman and George Gillett. And yet, you apparently have not; can you tell me why not? You are an extraordinarily skilled attorney, Mr. Delery, which means you know the legal implications of that Report of Investigation and that you have since the time of the generation of that report on October 11, 2012. Please break your silence and tell me why you have apparently [….] done nothing about the conclusions of that Report of Investigation by ATF during the last seven months of your awareness of it. [….] I wish to know what you are doing at the Justice Department about the allegations of obstruction of justice that emerged during this lawsuit. The more I have thought about it, the more it has bothered me. Please advise. Thank you. James B. Reed For ATF Special Agent Jay Dobyns June 5, 2013

From: James B. Reed

Sent: Monday, June 03, 2013 9:51 PM To: Stuart Delery Regardless of any amount of money that plaintiff receives at trial, the two reports of investigation guarantee that a United States federal judge is going to issue a written opinion that ATF let suspects of the attempted murder of a highly decorated federal agent go free, while ATF instead tried to frame that agent for the attempted murder of his wife and children. We fully expect that the second ROI will concede that, leading up to the arson, ATF pulled Agent Dobyns’ covert identifications and those of his wife, [….] exposing them, as DOJ’s responses to plaintiff’s requests for admissions concede, to known dangers from known criminals against whom Jay Dobyns had previously testified in court. And, I am sorry to say, President Obama’s Department of Justice defended those actions for the last five years, unapologetically responding to Agent Dobyns’ assertion of his civil rights by suing him for a book that he wrote about the heroism of ATF agents. This is the unavoidable legacy of this lawsuit. It will be the most damaging federal court opinion in the history of ATF: again, an outcome guaranteed by the Report of Investigation that the Justice Department withheld from us. In the process, it will tell the public more than it wanted to know about this Department of Justice. [….] Jim Reed For Agent Jay Dobyns From: James B. Reed

Sent: Tuesday, June 04, 2013 3:37 PM

To: Stuart Delery Subject: [….] Dobyns v. United States; 08-700c [….] When you testify tomorrow, my question is – isn’t it […] part [of] the job of the Justice Department to protect the public’s advocates like federal agents from criminals and from obstruction of justice by ATF agency managers, and to investigate and prosecute people like George Gillett and Charles Higman for trying to frame Jay Dobyns - according ATF’s own internal affairs report? Because in the end, what you have defended, in the larger perspective, is obstruction of justice. You have seen the Report of Investigation, and you know that statement is true – it is the conclusion of the report. [….] Good luck tomorrow [….] while Jay Dobyns and I prepare to defend his career and livelihood from your attorneys.

From: James B. Reed

Sent: Tuesday, June 04, 2013 11:01 AM To: Stuart Delery

Subject: Before your hearings, a last question Mr. Delery, does it bother you that ATF concluded that the agency tried to frame one of its agents for the attempted murder of his wife and children? And that the DOJ is defending that conduct? Because in the end, that is what is going on here. ATF’s managers let arsonists go free while they tried to pin the arson on Jay Dobyns – that is ATF’s own report saying that, not me. And your DOJ Civil Division, and you personally, are defending that conduct. I just want to know if that bothers you. And when you testify tomorrow, is that the sort of thing that the public should continue to expect from the Department of Justice under Attorney General Holder and acting Director Jones? Thank you. Jim Reed

The Tenacious Technocrat: Judge Francis

Allegra

By Gavin Broady

Law360, New York (May 13, 2014, 7:38 PM ET) -- As a young man, U.S. Court of Federal Claims Judge Francis Allegra dreamed he would dedicate his life's work to an entirely different higher power. A devoted Catholic, Allegra enrolled in a small Catholic seminary college in his native Ohio with an eye toward one day becoming "Father Francis." Mere months from graduation, however, he was beset by doubts about his future in the priesthood until, appropriately enough, he saw a sign.

“I was working with a priest doing data entry, and I looked up on the wall and saw an application for something called the LSAT,” he recalls. “I said what the heck, took the test without any prep, and decided to become a lawyer.” After graduating from law school at Cleveland State University and a brief stint in private practice with Squire Sanders, Allegra quickly climbed the ranks at the Department of Justice before being named to the federal bench at the unusually young age of 41. At the Court of Federal Claims, he has solidified his reputation as an intellectual heavyweight through his dexterity with technology and deftness in navigating the convoluted fields of law that populate his docket: taxation, government procurement, treaty interpretation.

Though his rapid rise from the seminary to the bench was impressive enough to seem preordained, Judge Allegra insists it was anything but. “In many ways, becoming a judge at 41 simply mirrored what happened with my decision to go to law school,” Judge Allegra recalls. “People think where I went is a matter of careful planning ... but it really was just a matter of dumb luck.” Doing Well by Doing Good It is perhaps unsurprising that Judge Allegra defines the greatest virtue of his work as an attorney and a jurist in moral terms, saying he has been blessed by the opportunity to use his considerable gifts in the service of the greater good. “There’s a right result and a wrong result, and I went to the Department of Justice because an attorney there has the rare privilege to do the right thing,” Judge Allegra says. “That’s not a knock on lawyers who have paying clients and have to do things they’re not 100 percent convinced of. I just feel very fortunate I’ve been able to approach things that way.” Judge Allegra likewise sees a profound civic importance in the unique mandate of the Court of Federal Claims, which exists solely to oversee civil disputes brought against the government and stretches back to the days of the Civil War. “If you were to ask someone to define the various important aspects of democracy, they’d say voting and free speech,” Judge Allegra says. “But Lincoln recognized that a key aspect of democracy was the right of a citizen not only to have rights but to enforce them against the sovereign.” These days, the cases are often staggeringly complex and primarily brought by business entities over government contracting and tax issues.

They tend to come in patterns, according to Judge Allegra: Congress passes a statute, which then creates a wave of suits that takes several years to percolate through the justice system. Recently, he says, the court has begun to see an uptick in litigation over the 2008 Troubled Asset Relief Program. Such complex cases often require an alacrity for arcana and a meticulousness that borders on obstinacy — two qualities those familiar with Judge Allegra say he possesses in spades. Former clerk Daniel Greenspahn, now an attorney with the U.S. Department of Education’s civil rights

division, recalls one 2009 lawsuit involving a Native American woman who accused an army recruiter of sexual assault. Judge Allegra insisted he conduct hours of archival research to better understand a relevant 1868 treaty. “The judge wanted to run down every possible detail, down to how dictionaries printed in 1868 would define a particular term,” Greenspahn recalls. “It was a classic example of how he researches legal issues. If it’s important to the case, he’s going to find it out.” Judge Allegra says one of the most important lessons he’s learned in his 15 years at the Court of Federal Claims is that case-altering facts can often be found in unexpected places, and a good judge will avoid the trap of looking at a hefty docket of cases and deciding that some are “hard” and some are “easy.” “I really try to train my clerks not to move too fast or skip anything that seems easy,” Judge Allegra says. “You might get a pro se case that seems silly, like someone saying, ‘I’m a Martian and not subject to income tax,’ but buried in there might be something interesting or important.” In Step with the 21st Century One of the first things that struck former law intern David Zwanetz upon arriving at Judge Allegra’s chambers was the glass case of vibrantly colored minerals, a collection of prized samples that he recalls looked like something out of a Superman comic. Mineral collecting has been a lifelong passion for the judge, who writes a regular column for the Mineralogical Record called “Legal Nuggets.” Before transferring to the seminary, he had initially enrolled at Case Western Reserve University to study geology. When he discovered, to his dismay, that the field of geology actually had little to do with mineral collecting, he switched his focus to the engineering department, where he was introduced to programming through a massive computer that took up an entire building on campus. "It was just a bunker, and we all used to walk around campus with our card decks," Judge Allegra recalls fondly. "But it left me in a position where I felt very comfortable with computers.” Those skills would become invaluable at the DOJ, where Judge Allegra was involved in some of the government’s most sophisticated technology projects, including the development of the national sex offender registry, the Brady gun-buyer background check system and the passage of Y2K legislation. He was named chair of the Court of Federal Claims’ technology committee shortly after his appointment and has worked in the court system and on the lecture circuit to get legal professionals up to speed on the rapid emergence of modern technological issues like e-discovery.

“The reality is that a judge doesn’t really have any choice but to be familiar with e-discovery,” he says. “In the sort of large cases our court gets, it’s almost becoming synonymous with discovery. It’s not a specialized concept — it’s everything.” He also warns that legal practitioners need to better understand the implications of cloud computing and the emergence of software as a service. Judge Allegra recently co-authored a text on this topic, called “Plugged In: Guidebook to Software and the Law.” He argues that it is incumbent on judges to learn about these developments before they start deciding cases involving modern software, as software does fundamentally different things than it did 15 years ago. The concept of cloud-based software is also increasingly overlooked in the government contracts realm, according to Judge Allegra, who notes that the Federal Acquisition Regulations haven’t been significantly updated since the 1990s and fail to account for the technology altogether. “I’ve always told people if you take any room in your house and sit down, you’ll see evidence of software at work, and it might not be just your computer anymore,” he says. “Now it’s your TV or your router or your microwave. It’s all over the place, and it’s not going away. The law is going to have to be able to deal with that.” The Full Court Press Off the bench, Judge Allegra is known for being a tech-savvy, rock-collecting eccentric who plays trumpet and quotes Mark Twain. But those who have seen him in action suggest that, in contrast, one of the defining traits of his courtroom demeanor is his willingness to ask tough questions and press attorneys tenaciously. Former clerk and current Booz Allen Hamilton associate general counsel Matthew Solomson recalls one occasion from his time in Judge Allegra’s chambers when attorneys on both sides of a complex tax dispute were dancing around a question of statutory interpretation at the heart of the case.

A frustrated Judge Allegra came up with a devious solution: He designed and distributed a mathematical word problem paring the central issue down to basic tax calculations, collected the attorneys’ responses, then took a brief recess to photocopy the answers and pass them around to everyone in court. “It was the only way to really force the parties to grapple with the weaknesses in their case,” Solomson says. “They kept using these elaborate metaphors in their briefs, but they were avoiding the real issues. Judge Allegra’s solution was so creative, and you could tell the parties respected it.” Greenspahn says Judge Allegra is a civil but aggressive questioner who does not hesitate to give even his own former clerks the third degree when they appear before him, as happened at least once during Greenspahn’s time in chambers. “I was very curious to see how that interaction was going to go, because this was a person he’d spent a year with in a small chambers,” he recounts. “But Judge Allegra was as aggressively probing with that attorney as with all the others, I think to that attorney's chagrin. He doesn’t cut someone slack just because he knows them.” Because the federal government is party to every case before the Court of Federal Claims, Judge Allegra also has plenty of opportunities to press the state's attorneys on any inconsistencies they might present from case to case, according to Greenspahn. “Sometimes the government will make an argument in one case and then argue the opposite view in another case, and Judge Allegra will press them on the issue,” Greenspahn says. “He’ll ask, ‘Why are you being lenient on the statute of limitations in this case when you’re being strict on it in another case?’” Judge Allegra still finds himself in the courtroom as often as ever, despite having recently taken senior status after 15 years on the bench, in part because he says the Court of Federal Claims is struggling to cope with six outstanding vacancies. “The truth is, I don’t feel very senior anything,” he says. “It’s more a nature of our process that led me to get that new tag on the front of my title, and if you walked in here the day after I turned senior, you wouldn’t have noticed a difference.” At age 56, Judge Allegra is in the rare position of having become a senior judge a full decade before most people would even be eligible for Social Security retirement, though he insists that retirement is the

furthest thing from his mind. “When I clerked for Judge Philip Miller, he was 65 or so, but he was still as enthusiastic about law as most people are the day they walk out of law school,” Judge Allegra says. “I’ve always said as a barometer of my career, I want to be 65 and still enthusiastic about the law.” In Chambers is a regular feature presenting in-depth profiles of the nation’s leading state, federal and appellate judges.