Chilcutt v. United States ( 1993 )


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  •                                    United States Court of Appeals,
    
                                                  Fifth Circuit.
    
                                                 No. 92-1668.
    
                               Brenda CHILCUTT, et al., Plaintiffs-Appellees,
    
                                                        v.
    
                           UNITED STATES of America, Defendant-Appellant.
    
                           Randell P. Means, in his individual capacity, Appellant.
    
                                                 Oct. 25, 1993.
    
    Appeal from the United States District Court for the Northern District of Texas.
    
    Before JOHNSON, JOLLY, and JONES, Circuit Judges.
    
            JOHNSON, Circuit Judge:
    
            When the defendant, United States of America, failed to properly respond to the plaintiffs'
    
    discovery requests in the case sub judice, the district court ordered the Government to produce
    
    previously requested documents and respond to unanswered interrogatories. The court also ordered
    
    the Assistant United States Attorney ("AUSA"), Mr. Randell Means, to personally reimburse the
    
    plaintiffs for attorney's fees which arose from the Government's discovery abuse. When the
    
    Government disobeyed the district court's order to fulfill its discovery obligations and attempted to
    
    deceive the court and the plaintiffs into believing that certain documents properly requested either did
    
    not exist or were not requested, the district court, exercising authority granted in Rule 37 of the
    
    Federal Rules of Civil Procedure, deemed that the liability facts of the plaintiffs' case were established
    
    for the purposes of the case. The Government and Mr. Means aver that the district court abused its
    
    discretion in sanctioning them. We disagree and therefore affirm.
    
                                        I. Facts and Procedural History
    
            On October 4, 1988, Brenda Chilcutt Wortham,1 performing her duties as an employee of
    
    Chrysler First, Inc., visited the River Bend Post Office in Fort Worth, Texas, to pick up the
    
    
       1
        The plaintiff married after the initiation of this action. The Court will therefore use her
    present name—Brenda Wortham—in this opinion.
    company's mail. Soon after she entered the post office, she slipped and fell. The fall resulted in
    
    serious injuries which required Ms. Wortham to undergo several major surgeries and extensive
    
    medical care. Ms. Wortham's workers' compensation carrier, Home Indemnity Company ("HIC"),
    
    alleged that governmental negligence had caused Ms. Wortham's fall. HIC therefore filed an
    
    administrative claim with the United St ates Postal Service ("USPS") in August 1990, seeking
    
    reimbursement for monies paid Ms. Wortham for her work-related injury. Ms. Wortham filed a
    
    similar claim in October of the same year. The USPS denied both claims.
    
            Ms. Wortham and HIC later commenced this action in the Northern District of Texas, suing
    
    under the Federal Torts Claims Act. In its initial scheduling order, filed on July 17, 1991, the district
    
    court stated that "[s]hould any party or counsel fail to cooperate in doing anything required by this
    
    order to be done, such party or counsel or both will be subject to sanctions, including dismissal or
    
    entry of default without further notice." R. at 26. In the court's memorandum attached to the
    
    scheduling order, entitled "Special Pretrial Instructions," the court informed the parties that it
    
    expected counsel for each party to cooperate fully in the discovery process. The court further warned
    
    that it would not tolerate discovery abuses, stating that "[u]nnecessary discovery or unreasonable
    
    delay may subject the infracting party to sanctions and the payment of costs." R. at 28. The court
    
    admonished the parties in the same manner in revised scheduling orders which were filed on February
    
    27, 1992, and March 9, 1992.2
    
            On March 24, 1992, Ms. Wortham served interrogatories and requests for production of
    
    documents and things on Randell Means, the AUSA in charge of the case.3 In early April, she
    
    reiterated her request for many of the documents and things in subpoenas duces tecum. Although
    
    the Government produced some of the requested items for depositions, it did not answer or object
    
    to the requests for production or the interrogatories. Counsel for Ms. Wortham, Ms. Kelly Robbins,
    
    talked with Mr. Means several times by telephone and in person, both before and after the answers
    
       2
        In the latter scheduling order, the court extended the discovery cut-off date to May 8, 1992,
    and scheduled the trial for the week of June 8, 1992.
       3
       The Federal Rules of Civil Procedure required that the Government respond no later than
    April 23, 1992. FED.R.CIV.P. 33(a) and 34(b).
    were due. She informed him that time was of the essence and reminded him that the discovery cut-off
    
    date was May 8. During each discussion, Mr. Means informed Ms. Robbins that he was preparing
    
    responses to the discovery requests and assured her that the answers were forthcoming. In reality,
    
    the answers were not forthcoming; Ms. Robbins' efforts to extract answers from Mr. Means were
    
    of no avail.
    
            On May 19, 1992, twenty-six days after the Government's discovery answers were due, Ms.
    
    Robbins filed a motion to compel and a motion for sanctions. The district court scheduled a hearing
    
    on those motions for May 22. Mr. Means served Ms. Robbins with answers to some of the
    
    interrogatories and o bjected to others the morning of the hearing. However, at the hearing Ms.
    
    Robbins complained, not only about the tardiness of the recently-supplied answers and objections,
    
    but she also asserted that a number of the answers to the interrogatories were incomplete.4 Further,
    
    although Mr. Means provided some important documents in response to the requests for production
    
    on the morning prior to the hearing,5 he failed to produce other requested documents. In his answers
    
    to the production request s and again at the hearing, Mr. Means averred that at least half of the
    
    requested documents did not exist. One such document was an accident log which the plaintiffs
    
    claimed Mr. Svede, the Fort Worth USPS accident investigator and the Government's representative
    
    for this action, maintained.6 Another was a standard accident report ("Form 1769").
    
            The district court, reviewing these and other discovery infractions, refused to grant the
    
       4
         The Government answered a number of the interrogatories by stating that it did not possess
    the information requested. For example, Mr. Means testified at the hearing that the janitorial
    contractor, Ms. Marilyn Chapman, knew the answers to four of the interrogatories. However,
    Mr. Means had never attempted to contact Ms. Chapman prior to the hearing to get the
    information. In fact, although Means possessed Ms. Chapman's address, he had never looked up
    her telephone number in the directory to call her. Further, although Ms. Chapman, who was not a
    hostile witness to the Government, worked at the post office each day, Mr. Means had never
    visited the post office during her work hours to question her.
       5
        The documents showed that other people had fallen at other post office locations. Because
    the same contractor cleaned all of the post offices in the Fort Worth area and used the same type
    of wax on all of the floors, this information was quite beneficial to the plaintiffs, who claimed,
    among other things, that the post office floor was excessively slick.
       6
        This log apparently contained information about remedial actions taken by the USPS in
    response to Ms. Wortham's accident, as well as information on other accidents which occurred at
    the River Bend location.
    plaintiffs a default judgment.    He determined that such a penalty was too harsh under the
    
    circumstances before him.7 Nonetheless, finding that the Government's conduct was not substantially
    
    justified and that no circumstances existed which made sanctions inappropriate, the court concluded
    
    that a lesser sanction was, indeed, appropriate. The court first ordered the Government to deliver
    
    every document called for by the plaintiffs' requests for production to Ms. Robbins' office by May 27.
    
    The court directed Mr. Means to attach an affidavit to his responses to the discovery requests
    
    certifying that he, Mr. Means, had made inquiries which were calculated to disclose the existence of
    
    any document or tangible thing for which the production requests or subpoenas duces tecum called.8
    
    Additionally, the court ordered the Government to produce Ms. Chapman for a deposition on May
    
    28 since the Government had failed to question her. Further, based upon the authority provided
    
    under Rule 37(d), the court ordered Mr. Means to pay for those deposition costs and all of the
    
    attorney's fees and other expenses the plaintiffs had incurred in preparing the motion to compel and
    
    the motion for sanctions. The court stated that these sanctions were against the attorney, not against
    
    
    
    
       7
        However, he added that he would not rule "out the possibility of there being a default
    judgment on liability, and perhaps even on damages, if the government continue[d] the course of
    conduct" in which it had been engaging. Tr. Vol. 3 at 37.
       8
        In his response to the requests for production, Mr. Means listed the name of each person he
    had contacted to assist in his search for pertinent documents. As required by the court, Mr.
    Means also attached an affidavit to the response, certifying the following:
    
                   Every item responsive to plaintiff's discovery requests has been produced and is
                   listed in this affidavit. I do further certify that I have made inquiries of such a
                   nature as to be calculated to disclose the existence of any item of any kind or
                   character called for by any of plaintiff's discovery requests. I do further certify that
                   the person listed with each enumerated response after the title "Contact: "
                   constitutes the persons contacted by me with regard to ascertaining the existence
                   of and locating items responsive to plaintiffs' requests. I do further certify that the
                   response there indicated represents the substance of the response of each such
                   person to the inquiries made by me.
    
                           I do hereby declare under penalty of perjury that the foregoing is true and
                   correct.
    
           R. at 181. As to the requests which called for Mr. Svede's accident log, Mr. Means stated
           in his response that Mr. Svede had been his contact person.
    the United States, and forbade Mr. Means from seeking reimbursement from the Government.9 The
    
    court also informed Ms. Robbins that after she reviewed the Government's recently provided
    
    responses to her discovery requests, she could file supplemental motions to compel and for sanctions
    
    if she so needed.
    
              She did so. Among other things, she complained in her supplemental motions of the
    
    Government's failure to produce the Form 1769 and Mr. Svede's accident log. With respect to the
    
    latter, Ms. Robbins specifically pointed out that "Al Svede testified in his deposition (at page 114, line
    
    16) that he keeps a log which, among other things, would contain information relating to types of
    
    claims and their disposition. Defendant has never produced this log." R. at 239.
    
              Mr. Means responded to a large number, but not all, of Ms. Robbins' allegations.10 Important
    
    for our purposes, Mr. Means stated that he had produced the only accident log that was responsive
    
    to the plaintiffs' production requests.11 The hearing on this supplemental motion for sanctions
    
    occurred on Thursday, June 4, 1992, just four days—only one working day—prior to the scheduled
    
    trial. During that hearing, Mr. Means again claimed that although Mr. Svede possessed an accident
    
    log, it was not covered by the plaintiffs' requests for production.12 Mr. Means again testified that no
    
       9
        The Government filed an interlocutory appeal, asking this Court to review the district court's
    decision to sanction Mr. Means. However, because that court had not yet entered final judgment,
    we dismissed for lack of appellate jurisdiction.
       10
         He stated that on May 29 he learned that he had previously provided incorrect information
    on the supplier of the floor wax. Mr. Means also asserted that he had "discovered" the existence
    of some documents which he had previously claimed were non-existent.
       11
            More specifically, Mr. Means constated:
    
                     Plaintiff further complains that Al Svede has not produced his own log relating to
                     the same topic. Defendant has certified, based upon the answer provided by Al
                     Svede, that there is no record of any complaint of the type sought by Plaintiff's
                     request. There being no information of the type sought, as established by a
                     complete search of the proper records of Defendant and the certified answer of
                     Defendant, there is no violation of this Court's orders shown.
    
              R. at 346. (Emphasis added).
       12
         In their requests for production, the plaintiffs limited all inquiries to the River Bend Post
    Office location. At this June 4 hearing, Means stated that he had checked the log in question. He
    asserted, however, that the log contained no information on accidents which occurred at the River
    Bend location. The following transpired:
    Form 1769 existed, claiming, "As I understand, the plaintiff says she filled that out and gave it to the
    
    witness on that date. Our position is that did not happen." Tr. Vol. 5 at 57.
    
           Due to the numerous discrepancies between the plaintiffs' claims and the defendant's response,
    
    the court directed the Government to bring its witnesses, including Mr. Svede, to the court later on
    
    the same day. One of the first questions the court asked Mr. Svede concerned the existence of the
    
    
                   THE COURT: Well, why haven't those accident logs been produced?
    
                   MR. MEANS: Your Honor, as our motion sets out, the request related
                   specifically to anything that dealt with these premises. A search has been
                   conducted of those accident logs, as we have set out in our response to this
                   supplemental motion, and there is no record in those logs relating to any accident
                   or complaint on the premises of River Bend for the time—
    
                   THE COURT: Well, that takes care of it. That's what she has asked for.
    
                   And if you can at some point in time prove they misrepresented to you in saying
                   that there is nothing, then they have got a different problem. But so far the
                   representation is that there is nothing.
    
                   MS. ROBBINS: Well, Your Honor, we do know of two accidents that occurred
                   at that premises, and they would be listed in that log.
    
                   THE COURT: Well, I have got to assume they don't do a very good job of
                   keeping their records because it's been represented that there is no record of those
                   accidents. Is that what you are representing?
    
                   MR. MEANS: That is correct, Your Honor.
    
                   THE COURT: Even though there are two other accidents on the premises, the
                   post office department did not keep a record in any of its logs, accident logs or
                   other books, of those accidents.
    
                   MR. MEANS: There is one accident that was reported. That is the Chillcut (sic)
                   accident this case is based on. And my representation is the same as what is
                   reflected here. Yes, Your Honor, there is no record of that in this log. She refers
                   to a second accident that occurred, and no further reporting was made. And the
                   document that was filled out at the scene of the River Bend post office and has
                   remained at that location has been produced, and there is no other notation in the
                   log of that transaction.
    
                   MR. MEANS: There is no record. As our response to this supplemental motion
                   states, I am stating under oath before the court as an officer of the court that my
                   representations in that motion are correct, that a search of that log has been
                   conducted, and no accident has been identified to the time periods in that
                   log—and I believe it's 1987 through the present—for the premises, River Bend
                   [post office], for both employee accidents or complaints or customer accidents.
    
           Tr. Vol. 5 at 48-50 (emphasis added).
    Form 1769. Mr. Svede testified under oath that not only did the Form 1769 exist, but that he
    
    possessed a copy of that form.13 If that were not bad enough for the Government, when Ms. Robbins
    
    asked Mr. Svede whether he had listed Ms. Wortham's accident in his accident log, he answered that
    
    he had done so. Mr. Svede presented the log to the court to review, and it did, indeed, list Ms.
    
    Wortham's accident, contrary to Mr. Means' earlier statement that it did not.14
    
            The court disagreed, finding that several of the requests covered the accident log. The court
    
    further found that although the Government and the people working on the case knew that the log
    
    existed and that it was called for by the requests for production, the Government chose to withhold
    
    the documents in derogation of the discovery rules and the court's order compelling discovery.
    
    Finally, the court found that the Government had severely disadvantaged the plaintiffs by producing
    
    the documents on the eve of trial and by causing the plaintiffs' counsel to devote a great amount of
    
    time, not to preparing for trial, but to dealing with the Government's discovery abuses.
    
            Exercising authority under Rules 37(b) and 37(d) of the Rules of Civil Procedure, the court
    
    determined that stiff sanctions were appropriate because of the Government's flagrant disregard of
    
    its discovery obligations and its flouting the court's order compelling discovery. Although the court
    
    believed that a default judgment as to liability or damages was justified, it decided instead merely to
    
    deem that the prima facie elements of the plaintiffs' liability claim were established for the purposes
    
    of the case. The court allowed the Government to present evidence of its affirmative defenses and
    
    required the plaintiffs to prove damages. After a bench trial on the Government's affirmative defenses
    
    and on damages, the court found for the plaintiffs and awarded them $892,567.00.
    
            Not prone to overlook what appeared to be a "flagrant case of misrepresentation by Mr.
    
    Means, as well as a rather flagrant violation of the discovery obligations," the district court held a
    
       13
         Mr. Means presented no explanation for his misrepresentation regarding Form 1769. In fact,
    even though Mr. Svede, the Government's representative, testified under oath that such a form
    existed and that he possessed a copy thereof, Mr. Means and the Government—similar to the
    argument that windmills are dragons—persist in their quixotic claim that the form does not exist.
    Tr. Vol. 5 at 142; Oral Argument Tape.
       14
        See infra note 12. Mr. Svede provided no explanation as to the non-production of the log.
    Mr. Means merely asserted that he did not believe that the log was covered by the requests for
    production.
    hearing to determine whether it should hold Mr. Means in criminal contempt of court and bar him
    
    from practicing before the Northern District of Texas. Tr. Vol. 3 at 4. During the hearing, the court
    
    ignored many of the discovery infractions and focussed solely on Mr. Svede's log. Despite the fact
    
    that he had previously referred to the accident log several times, both in his response to Ms.
    
    Wortham's supplemental motion for sanctions15 and in a hearing before the court in which he had
    
    affirmed, as an officer of the court, that he had reviewed that particular log,16 Mr. Means claimed at
    
    this hearing that he had never seen the log and had not known that it existed prior to the June 4
    
    hearing.
    
              The district court thought otherwise, concluding that he could find that the elements of
    
    criminal contempt were proved beyond a reasonable doubt. The court determined that Mr. Means
    
    had intentionally misrepresented to the court that Mr. Svede's log did not report Ms. Wortham's
    
    accident. However, giving Mr. Means the "benefit of the doubt," the court chose not to disbar him
    
    or hold him in criminal contempt. Instead, the court ordered Mr. Means to obtain fifteen hours of
    
    ethics or professional responsibility training by November 1, 1992. He also dictated that Means not
    
    be reimbursed for the training costs and ordered Mr. Means to reimburse Ms. Robbins for the time
    
    she had spent in the hearing. The Court again directed that Mr. Means not seek or obtain
    
    reimbursement for that sanction.
    
              The Government and Mr. Means are not satisfied in the least bit with the outcome of this case,
    
    and they both appeal. The Government argues that the district court abused its discretion in deeming
    
    the liability elements of the case established. Mr. Means challenges the court's decision forbidding
    
    him from seeking reimbursement from the Government.
    
                                                 II. Discussion
    
    A. Standard of Review
    
               Rule 37(b)(2) authorizes courts to appropriately respond to and deal with parties which have
    
    disobeyed discovery orders. District courts' discretion in fashioning appropriate sanctions for parties
    
       15
            See supra note 11.
       16
            See supra note 12; see also supra note 8.
    who disobey their orders is quite broad, though not unlimited. Marshall v. Segona, 
    621 F.2d 763
    ,
    
    767 (5th Cir.1980); Emerick v. Fenick Industries, Inc., 
    539 F.2d 1379
    , 1381 (5th Cir.1976). Hence,
    
    the question we must decide in each of these issues is not whether this Court would have imposed
    
    the same sanctions as did the district court ; the question is whether the district court abused its
    
    discretion in so doing. National Hockey League v. Metropolitan Hockey Club, Inc., 
    427 U.S. 639
    ,
    
    640, 
    96 S. Ct. 2778
    , 2778, 
    49 L. Ed. 2d 747
     (1976); Shipes v. Trinity Indus., 
    987 F.2d 311
    , 323 (5th
    
    Cir.1993).
    
    B. Establishing Facts Against the Government
    
                                              1. Proper Standard
    
              The Government, in its argument that the district court improperly sanctioned it, insists that
    
    the sanction in question was tantamount to a default judgment on both liability and damage claims.
    
    The Government therefore contends that Rule 37 dismissal and default judgment cases control the
    
    facts of this case. See e.g. Batson v. Neal Spelce Associates, Inc. 
    765 F.2d 511
     (5th Cir.1985);
    
    Marshall v. Segona, 
    621 F.2d 763
     (5th Cir.1980); Emerick v. Fenick Industries, Inc., 
    539 F.2d 1379
    
    (5th Cir.1976). While it is true that a court's decision to deem certain facts established may equate
    
    to a default judgment in some circumstances, see Marshall, 621 F.2d at 766 n. 3, such is not the case
    
    here.17
    
              The district court allowed t he Government to present its case in chief on its affirmative
    
    defense issue. The Government did so: it called three witnesses to attempt to prove that Brenda
    
    Wortham's negligence, not that of the Government, had caused the accident. Because the court's
    
    ruling did not preclude the Government from presenting its case in chief, the sanction was a far cry
    
    from a default judgment.18 Further, the Government's assertion that the court also granted a default
    
    
       17
         We note that deeming the establishment of certain facts is one of the least harsh sanctions
    available to courts under Rule 37(b). Indeed, it is only more severe than the granting of expenses
    and attorneys' fees. See FED.R.CIV.P. 37(b)(2); see also United States v. Sumitomo Marine and
    Fire Ins. Co., 
    617 F.2d 1365
    , 1369 (9th Cir.1980).
       18
          Clearly, had the Government proved its case by a preponderance of the evidence, the fact
    that the liability elements had been deemed established would have been nugatory, and the
    Government would have been victorious in this litigation.
    judgment on the damages issues is all but fanciful. Not only did the court require Ms. Wortham to
    
    prove damages, but on many of the damage elements, the court made conclusions which were very
    
    favorable to the Government.
    
            Thus, we believe that the default-judgment/dismissal cases proffered by the Government
    
    impose too great a standard for the type of sanction involved here. Rather than look to those types
    
    of cases, we believe that the Supreme Court's decision in Insurance Corp. of Ireland, Ltd. v.
    
    Compagnie Des Bauxites de Guinee, 
    456 U.S. 694
    , 
    102 S. Ct. 2099
    , 
    72 L. Ed. 2d 492
     (1982), governs
    
    this case.
    
            There, the Compagnie Des Bauxites de Guinee ("CBG") filed suit in a Pennsylvania district
    
    court against its insurance companies. Several of the companies ("excess insurers"), including the
    
    Insurance Corporation of Ireland, filed motions for summary judgment based upon their contention
    
    that the Pennsylvania court lacked personal jurisdiction over them. CBG sought discovery on the
    
    personal jurisdiction issue; however, the excess insurers, though ordered and later threatened with
    
    sanctions, failed to make a conscientious effort to comply with the discovery orders. The district
    
    court therefore carried through on its threatened sanctions and determined that the excess insurers
    
    were subject to the in personam jurisdiction of the court for the purposes of the litigation. Insurance
    
    Corp. of Ireland, 456 U.S. at 697, 102 S.Ct. at 2101.
    
            The Supreme Court, affirming the ruling of the district court, det ermined that decisions to
    
    impose sanctions under Rule 37(b) must be guided by two important considerations: The sanction
    
    must first of all be just, and it must "specifically relate[ ] to the particular "claim' which was at issue
    
    in the order to provide discovery." Id. at 707, 102 S.Ct. at 2107. The Court found several significant
    
    facts which contributed to its decision that the sanction was fair. First, the district court had warned
    
    the excess insurers on several occasions that continued delay and disregard of its orders would result
    
    in the imposition of sanctions. The Court also found that the excess insurers' repeated promises to
    
    comply with discovery orders was suppo rtive of the district court's decision. Finally, the Court
    
    concluded that the allegation of personal jurisdiction was not frivolous and that CBG's attempt to use
    
    discovery to prove that personal jurisdiction existed was not a misuse of the judicial process. Id. at
    707-708, 102 S.Ct. at 2106-2107.
    
              Because the discovery in issue targeted personal-jurisdiction evidence, the Court had no
    
    problem in finding that the deemed finding—personal jurisdiction—was sufficiently related to the
    
    claim sought to be proved by discovery. Id. at 708-709, 102 S.Ct. at 2107. The Court therefore
    
    found that the district court did not abuse its discretion in sanctioning the excess insurers. Id.
    
              We believe that the two standards presented in Insurance Corp. of Ireland—fairness and
    
    substantial relationship between the sanction and the claim—along with a third—that the sanction
    
    meet the Rule 37 goals of punishing the party which has obstructed discovery and deterring others
    
    who would otherwise be inclined to pursue similar behavior, National Hockey League, 427 U.S. at
    
    643, 96 S.Ct. at 2781—should guide our review of the district court's decision in the case sub judice.
    
                                                2. Just and Fair?
    
                                               a. Ample Warning
    
               This case resembles Insurance Corp. of Ireland in several key respects. First, as occurred
    
    in that case, the district court here warned the parties many times that it would not tolerate discovery
    
    abuses. See Bluitt v. ARCO Chemical Co., 
    777 F.2d 188
    , 191 (5th Cir.1985) (affirming the dismissal
    
    of a case where the district court found that the plaintiff's failure to obey discovery orders and heed
    
    warnings that dismissal would occur unless the plaintiff performed its discovery obligations showed
    
    that a sanction lesser than dismissal would have been of no avail).
    
              In the instant case, the parties were warned in each of three scheduling orders, as well as in
    
    each of the memoranda which accompanied those orders, that discovery violations could result in
    
    dismissal or default judgment. Further, in the first hearing on Ms. Wortham's motion to compel, the
    
    district court, declining to grant a default judgment, specifically explicated that default judgment on
    
    liability and perhaps on damages might be justified if the Government continued in the type of
    
    conduct in which it was engaging.19 Further, during the hearing on the second motion to compel, the
    
    district court warned that if the plaintiffs could prove that the Government had falsely stated that the
    
    log contained no information on accidents which occurred at the River Bend location, the
    
       19
            See supra note 7.
    Government would have a problem.20
    
              Having been warned numerous times that discovery abuses in general and that the
    
    continuation of its conduct in particular might result in a default judgment, the Government should
    
    not have been surprised by the district court's decision to deem the liability facts established. In fact,
    
    based upon the Government's flagrant violations of its discovery obligations, its flouting the district
    
    court's discovery order, and its blatant misrepresentation to the court, the Government should have
    
    been relieved that the court did not order a much stiffer penalty.
    
                                               b. Empty Promises
    
               This case is also similar to Insurance Corp. of Ireland in that the Government here, like the
    
    excess insurers there, repeatedly promised to comply with its discovery obligations. Ms. Robbins,
    
    the plaintiffs' counsel, testified that she communicated with Mr. Means numerous times, both face to
    
    face and by telephone, before and after the Government's answers were due, explaining to him that
    
    time was of the essence and reminding him of the discovery cut-off date. Even according to Mr.
    
    Means, each time he and Ms. Robbins talked, he promised that the answers would be forthcoming.
    
              Without a doubt, those promises strung Ms. Robbins along, causing her to incorrectly believe
    
    that seeking an order compelling discovery or moving for Rule 37 sanctions was unnecessary. Ms.
    
    Robbins believed the Government's promises until it was nearly too late for her to adequately prepare
    
    her case. Had the Government simply refused to perform its discovery obligations without giving
    
    vain assurances of its alleged intent to comply, Ms. Robbins would almost certainly have sought an
    
    order to compel much earlier than she did. We view the Government's unfulfilled promises as the
    
    Supreme Court viewed the excess insurers' pledges to comply with CBG's discovery requests: They
    
    support the district court's decision to impose sanctions.
    
                                            c. Frivolity of the Claim
    
               The Government has never contended that the plaintiffs' use of discovery was an abuse of
    
    judicial process. The plaintiffs had a colorable claim that the Government's negligence caused Ms.
    
    Wortham's accident. The Government conceded that only five of eight light fixtures were functioning
    
       20
            See supra note 12.
    on the day of the accident. More importantly, the concealed log proved that numerous other
    
    customers had likewise fallen at the River Bend Post Office.21 The plaintiffs' claim of liability was far
    
    from frivolous.
    
                                           d. Other Considerations
    
                                          1. Intentional Misconduct
    
            The Government asserts that there is no evidence of willful or contumacious behavior in this
    
    case. It therefore claims that the district court's sanction was unjust.22 We disagree. As discussed
    
    earlier, the sanction granted here was not tantamount to a default judgment, and this Court has never
    
    held that willful or contumacious conduct is a prerequisite to sanctions which are less harsh than a
    
    dismissal or default judgment.
    
            Regardless of the proper mens rea standard however,23 the credible evidence in the record of
    
       21
         The district court stated that the only reason the Government would withhold Mr. Svede's
    accident log and then make misrepresentations as to the log's contents was to prevent the
    plaintiffs from learning that a number of other customers had also fallen at the River Bend
    location.
       22
         This Court, and the Supreme Court, as well, have often forbidden the dismissal of a case if
    the conduct involved was not willful or contumacious. Societe Internationale Pour
    Participations Industrielles et Commerciales, S.A. v. Rogers, 
    357 U.S. 197
    , 212, 
    78 S. Ct. 1087
    ,
    1095, 
    2 L. Ed. 2d 1255
     (1958); Bluitt v. Arco Chemical Co., 777 F.2d at 190-91; Batson, 765
    F.2d at 514.
       23
         Because we conclude that the Government indeed flagrantly and willfully disregarded its
    discovery obligations and the district court's order, we need not determine what lesser standard of
    behavior would have justified the type of sanction ordered in this case.
    
                    We note, however, that Rule 37(b) clearly indicates that district courts have
            authority to grant a broad spectrum of sanctions. Of course, the flagrancy of a party's
            behavior must be directly proportionate to the severity of the sanction imposed.
            Nonetheless, neither this Court nor the Supreme Court has ever determined that the lack
            of willful, contumacious, or prolonged misconduct prohibits all sanctions. On the
            contrary, we have held that dismissal or default judgment is warranted only when
            misconduct is quite serious.
    
                   The Supreme Court made clear in Rogers, a case in which the petitioners were
            absolutely precluded by foreign law from turning over certain documents to the
            respondents, that though the petitioners were unable to comply with the discovery
            requests, the district court still had broad discretion to mete out a lesser sanction than
            dismissal. Rogers, 357 U.S. at 213, 78 S.Ct. at 1096 (stating that "[i]t may be that in the
            absence of complete disclosure by petitioner, the District Court would be justified in
            drawing inferences unfavorable to petitioner as to particular events").
    this case reveals quite readily that the Government not only intentionally withheld documents that it
    
    knew existed, but it also knowingly made blatant misrepresentations to the district court about the
    
    existence of those documents.24 Such conduct, in our view is patently willful and contumacious.
    
    Indeed, the district court considered Mr. Means' behavior to be so willful and contumacious that it
    
    seriously considered disbarring Mr. Means and holding him in criminal contempt. The punishment
    
    meted out here clearly fit the conduct involved.
    
                                            2. It's Not Our Fault
    
            The Go vernment further claims that it was an innocent client and that the district court
    
    unfairly punished it for the errors of its attorney, Mr. Means. This Court has often emphasized that
    
    an innocent party should not be severely penalized for the misconduct of its counsel. Batson, 765
    
    F.2d at 514; Marshall, 621 F.2d at 768; Factory Air Conditioning Corp. v. Westside Toyota, Inc.,
    
    
    579 F.2d 334
    , 337 (5th Cir.1978). However, the district court did not punish the Government for
    
    misconduct solely attributable to the Government's attorney. The court concluded that there was "no
    
    question but [t]hat [the accident log] was called for by the requests for production and was obviously
    
    known to people that were working on the case on behalf of defendant." Tr. Vol. 5 at 148. The key
    
    people who worked on the case were Mr. Means, the Government's attorney, and Mr. Svede, the
    
    Government's representative.
    
            There is ample evidence in the record to support the district court's conclusion that Mr. Svede
    
    also engaged in misconduct. During Mr. Svede's deposition, Ms. Robbins referred him to each
    
    request for product ion and asked him what documents were responsive thereto. Mr. Svede
    
    responded that he possessed an accident log which was called for by at least one of the requests. Mr.
    
    
                    Significantly, the Court explained that the type of conduct displayed by a party had
            no bearing on whether sanctions should be imposed, but only on the type of sanctions
            imposed. The Supreme Court explained, "[T]he willfulness or good faith of [a party], can
            hardly affect the fact of noncompliance and [is] relevant only to the path which the District
            Court might follow in dealing with [the party's] failure to comply." Id. at 208, 78 S.Ct. at
            1094 (emphasis added). Hence, we simply note that willfulness is not required for
            deeming that certain facts are established for the purposes of a case unless that sanction is
            the equivalent of a dismissal or default judgment.
       24
       This Court has noted, but chooses not to write on, numerous other discovery violations
    committed by the Government, as reflected in the record of this case.
    Means testified that after the deposition, he went over the production requests with Mr. Svede
    
    numerous times to obtain his assistance in responding to the requests.25 However, at the show-cause
    
    hearing, Mr. Svede claimed for the first time to have forgotten that the log, which was still in use,
    
    existed.
    
              Mr. Svede's testimony, when considered alone, is incredible. Moreover, his testimony is
    
    contrary to Mr. Means' earlier testimony. As noted in section I of this opinion, Means stated as an
    
    officer of the court that he had reviewed Mr. Svede's log and had determined that it was not
    
    responsive to the plaintiffs' requests for production.26 Despite these inconsistencies, however, the
    
    Government continues to ask this Court to believe that Mr. Svede, the Fort Worth USPS accident
    
    investigator, responsible for listing every accident in his own accident log which was kept in his own
    
    office, forgot that the log existed. It asks that we accept as true the "fact" that Mr. Svede could
    
    remember his log under the stressful conditions of a deposition, but could not remember that same
    
    log when he later reviewed the requests for production with Mr. Means.
    
              We cannot accept the Government's ludicrous assertion that Mr. Svede was totally removed
    
    from the misconduct here. The district court's finding is amply supported by the evidence. We fail
    
    to see the injustice in sanctioning the Government for the misconduct of its representative in this
    
    case.27
    
                                            3. Previous Sanctions
    
               Highly supportive of the district court's decision to deem that the liability facts were
    
    established in this case is the fact that that court had previously sanctioned Mr. Means for discovery
    
    abuses. One would think that a $2500 sanction granted personally against the Government's attorney
    
    would have been warning enough that the district court would not tolerate any further discovery
    
       25
            See, e.g., supra note 8.
       26
            See supra note 12.
       27
         We have previously held that the misconduct of an attorney who has been continuously
    employed by a party supports the imposition of a default judgment against that party. United
    States v. Shipco General, Inc., 
    814 F.2d 1011
    , 1014 (5th Cir.1987). There is no question but that
    Mr. Means, a Department of Justice attorney, was continuously employed by defendant United
    States in this case.
    abuses. Since such was not the case, the district court was well within its discretion to grant the
    
    harsher sanction.28
    
              Nevertheless, the Government complains that the district court should not have jumped to the
    
    sanction it chose, but should have granted a less harsh sanction instead. In the Government's view,
    
    only after disobeying the order compelling discovery after the imposition of a second, less-harsh
    
    sanction should it have been punished as severely as it was punished. This argument is without merit.
    
              Attorneys are professionals. They are, in every respect, officers of the court, and officers of
    
    the court must comply with each court order when it is issued—not after two or three warnings to
    
    do so and not after lesser sanctions are imposed. "It [should be] universally understood that a court's
    
    orders are not to be willfully ignored, and, certainly, attorneys are presumed to know that refusal to
    
    comply will subject them and their clients to sanctions." Batson, 765 F.2d at 515.
    
              We conclude that the sanction granted against the Government was fair.
    
                           4. Related to the Claim Sought to be Proved by Discovery
    
               The district court determined that the only reason the Government withheld the accident log
    
    was to prevent the plaintiffs from learning that a number of other customers had also fallen in the
    
    River Bend Post Office. Had the Government properly responded to the subpoenas duces tecum and
    
    requests for production, the plaintiffs would have been able to investigate those accidents and would
    
    likely have strengthened their liability allegations against the Government.            Obviously, the
    
    Government's misconduct precluded that from happening.
    
               When parties present no valid objections to discovery and intentionally withhold properly
    
    requested information, courts have the authority to presume that the party's refusal to produce the
    
    information is "an admission of the want of merit in the asserted defense."29 Hammond, 212 U.S. at
    
       28
         In United States v. Shipco General, Inc., the district court initially sanctioned Shipco $500
    for ignoring its discovery obligations and the court's order compelling discovery. Because that
    sanction failed to coerce compliance on the part of Shipco, the district court dismissed Shipco's
    claims against the United States. We affirmed. 
    814 F.2d 1011
     (5th Cir.1987).
       29
            The Supreme Court explicated:
    
                      [B]eyond peradventure, the general course of legislation and judicial decision in
                      the several states indicates that it has always been assumed that the power existed
    351, 29 S.Ct. at 380; see also Insurance Corp. of Ireland, 456 U.S. at 709, 102 S.Ct. at 2107.
    
    Based upon the facts of this case, we believe that the district court was well within its discretion to
    
    presume, for the purposes of this case, that the plaintiffs' liability claims were established.
    
                                        5. Punishment and Deterrence
    
            The Government argues that for such a relatively minor infraction, the district court should
    
    have granted a continuance rather than imposing the type of sanctions at issue in this case.30 First,
    
    it must be clear t hat unless compelling reasons exist, this Court will not require a district court to
    
    inconvenience itself by rearranging its calendar to accommodate a malefactor who has violated its
    
    discovery obligations. See Geiserman v. MacDonald, 
    893 F.2d 787
    , 791-92 (5th Cir.1990).
    
            Second, the Government's argument that its conduct was relatively minor and due solely to
    
    miscommunication and confusion makes it patent that the Government has yet to recognize that its
    
    conduct constituted serious infractions against the rules of discovery as well as against the district
    
    court, itself. Far from being relatively minor infractions, the Government's conduct, as discussed
    
    above, was willful, contumacious, and flagrant. Unfortunately, the sting of the punishment imposed
    
    here failed to bring home to the Government that its actions in this case fell far below that which is
    
    acceptable. The Government's lack of concern about the behavior of its counsel and representative
    
    clearly demonstrates that it deserved the type of sanctions meted out here. However, even if the
    
    Government were to become penitent for its behavior, we do not believe that a lesser sanction would
    
    serve the deterrent purposes of Rule 37. See National Hockey League, 427 U.S. at 643, 96 S.Ct. at
    
    
                    to compel the giving of testimony or the production of books and papers by proper
                    regulations prescribed by the legislative authority, and, for a failure to give or
                    produce such evidence, the law might authorize a presumption in a proper case
                    against the party refusing, justifying the rendering of a judgment by default, as if no
                    answer had been filed.
    
            Hammond Packing Co. v. Arkansas, 
    212 U.S. 322
    , 352, 
    29 S. Ct. 370
    , 380-81, 
    53 L. Ed. 530
     (1909).
       30
         The Government additionally complains that it should not have been sanctioned because the
    plaintiffs were not prejudiced by its discovery abuses. While perhaps relevant to the type of
    sanction imposed, a party need not always be prejudiced by its opponent's discovery abuses prior
    to the imposition of sanctions. After all, the goal of sanctioning is not to reward the complying
    party, but to punish the infracting party and to deter others who may be want to engage in similar
    behavior. See National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781.
    2781 (concluding that if the Supreme Court reversed the district court's decision to dismiss the case
    
    under Rule 37, "it might well be that [petitioner] would faithfully comply with all future discovery
    
    orders entered by the District Court in this case. But other parties to other lawsuits would feel freer
    
    than we think Rule 37 contemplates they should feel to flout other discovery orders of other district
    
    courts").
    
            For the above stated reasons we affirm the district court's decision to deem the liability facts
    
    as established for the purposes of this case.
    
                                   C. Propriety of Sanctioning Mr. Means
    
            Although Mr. Means does not argue that the district court abused its discretion in sanctioning
    
    him, he does contend that by forbidding him from seeking reimbursement from the U.S. Government,
    
    the district court violated the separation of powers doctrine. Mr. Means asserts that as a member of
    
    the executive branch, and, more specifically, the Justice Department, the Attorney General—and not
    
    a member of the judiciary—is to discipline him.31
    
            Congress has made it abundantly clear that it intends for Government attorneys to be treated
    
    the same as private attorneys. Amending 28 U.S.C. section 2412 in the Equal Access to Justice Act
    
    ("EAJA"), Congress determined that the Government should be held liable for attorney's fees and
    
    expenses "to the same extent that any other party would be liable under the common law or under
    
    the terms of any statute which specifically provides for such an award." 28 U.S.C. § 2412(b). The
    
       31
         Mr. Means also refers the Court to regulations which allow the Justice Department to
    reimburse employees who have been sued in their individual capacities. Our review of those
    regulations, however, fails to reveal that they are inconsistent with the district court's decision
    here. The relevant section is entitled "Representation of Federal officials and employees by
    Department of Justice attorneys or by private counsel furnished by the Department in civil,
    criminal, and congressional proceedings in which Federal employees are sued, subpoenaed, or
    charged in their individual capacities." 28 C.F.R. § 50.15 (1992). Subsection (c)(1) provides that
    the "Department of Justice may indemnify the defendant Department of Justice employee for any
    verdict, judgment, or other monetary award which is rendered against such employee ..." Id. at §
    50.15(c)(1).
    
                    This language is inapplicable in the situation before us: The regulation evinces no
            intent whatever to restrict a court's authority to impose sanctions against government
            employees. Even if an inconsistency existed, however, the Federal Regulations, which do
            not have the force of a federal statute, would have to bow to the Federal Rules of Civil
            Procedure, which do. See Sibbach v. Wilson and Co., 
    312 U.S. 1
    , 13, 
    61 S. Ct. 422
    , 426,
            
    85 L. Ed. 479
     (1941).
    House Committee on the Judiciary explained that the change in section 2412, which took effect in
    
    October 1981, simply "reflects the belief that, at a minimum, the United States should be held to the
    
    same standards in litigating as private parties." HOUSE COMM. ON THE JUDICIARY, EQUAL ACCESS
    
    TO   JUSTICE ACT, H.REP. No. 96-1418.             96th Cong., 2d Sess. 9 (1980), reprinted in 1980
    
    U.S.C.C.A.N. 4953, 4984, 4987, 4996. Moreover, the EAJA specifically deleted subsection (f) of
    
    Rule 37,32 which had precluded courts from imposing discovery sanctions on the United States. 33
    
    Equal Access to Justice Act, Pub.L. No. 96-481, § 205; see also 1980 U.S.C.C.A.N. at 4998.
    
                By taking away the Government's protection from Rule 37 sanctions, Congress could not have
    
    been clearer in revealing its intent to subject the Government and its attorneys to Rule 37(b)(2)(E)
    
    which provides that, except in circumstances not at issue in this case, district courts are to order the
    
    recalcitrant party, the attorney, or both to pay reasonable expenses, including attorney's fees, to the
    
    opposing party for violations of discovery orders.34
    
                There is no question but that a court can forbid a private attorney from seeking reimbursement
    
    from clients or employers under Rule 37. See Shipes, 987 F.2d at 323 ("Under Rule 37(b), [the
    
    attorney] may be personally liable for reasonable expenses, including attorneys' fees, caused by his
    
    failure to comply with a discovery order."); Derechin v. State University of New York, 
    963 F.2d 513
    
    (2d Cir.1992) (upholding a district court's decision to forbid a state-employed attorney from seeking
    
    reimbursement from the state). In fact, the Supreme Court, construing Rule 11, determined that the
    
    punishment and deterrent effects of sanctions are maximized when awarded against the attorney
    
         32
         Subsection (f) provided: "EXPENSES AGAINST UNITED STATES. Except to the extent
    permitted by statutes, expenses and fees may not be awarded against the United States under this
    rule." See 4A JAMES W. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 37.01[11] (2d Ed.1992).
         33
        Interestingly, the committee stated that it believed the EAJA would "make the United States
    proceed more cautiously" in judicial and administrative proceedings. 1980 U.S.C.C.A.N. at 4999.
    
         34
              The rule reads:
    
                        In lieu of any of the foregoing orders or in addition thereto, the court shall require
                        the party failing to obey the order or the attorney advising that party or both to pay
                        the reasonable expenses, including attorney's fees, caused by the failure, unless the
                        court finds that the failure was substantially justified or that other circumstances
                        make an award of expenses unjust. FED.R.CIV.P. 37(b)(2)(E).
    personally:
    
            The purpose of the provision in question [which empowers courts to sanction persons or
            entities for the signing of frivolous documents], however, is not reimbursement, but
            "sanction;" and the purpose of Rule 11 as a whole is to bring home to the individual signer
            his personal, nondelegable responsibility. It is at least arguable that these purposes are better
            served by a provision which makes clear that, just as the court expects the signer
            personally—and not some nameless person within his law firm—to validate the truth and legal
            reasonableness of the papers filed, so also it will visit upon him personally—and not his law
            firm—its retribution for failing in that responsibility. The message thereby conveyed to the
            attorney, [is] that this is not a "team effort" but in the last analysis [is] yours alone....
            Moreover, ... there will be greater economic deterrence upon the signing attorney, who will
            know for certain that the district court will impose its sanction entirely upon him, and not
            divert part of it to a partnership ..."
    
    Pavelic and LeFlore v. Marvel Entertainment Group, 
    493 U.S. 120
    , 126, 
    110 S. Ct. 456
    , 460, 
    107 L. Ed. 2d 438
     (1989) (emphasis in original).
    
            We believe the reasoning in Pavelic and LeFlore holds true for Rule 37 sanctions. The
    
    district court's decision to prevent Mr. Means from seeking reimbursement was not inconsistent with
    
    the goals of Rule 37.35
    
            That Congress has allowed federal courts to sanction Government attorneys in the same
    
    manner that those courts sanction private attorneys does not answer Mr. Means' contention that such
    
    a rule is violative of the separation of powers doctrine. It goes without saying that any rule which
    
    violates the Constitution, even if authorized by federal statutes, must be struck down. However, we
    
    believe that such is not the case here.
    
       35
          Blue v. United States Department of the Army is inapposite to the facts of this case. There,
    the district court forbade the NAACP from reimbursing one of the attorneys who had been
    sanctioned, reasoning that NAACP members should not have to pay for the transgressions of the
    attorney. 
    914 F.2d 525
    , 549 (4th Cir.1990), cert. denied, --- U.S. ----, 
    111 S. Ct. 1580
    , 
    113 L. Ed. 2d 645
     (1991). Unlike this case, the NAACP was not involved in any way with the
    litigation in Blue. It was not a party, and it did not supply the attorney. The Fourth Circuit
    reversed, concluding that the district court had no authority to tell the NAACP, an entity which
    was not involved in the case, how not to expend its monies.
    
                    While it is certainly true that the district court in the case sub judice commented
            that taxpayers should not be penalized for the misconduct of Mr. Means, the record in this
            case shows all too clearly that, unlike the district court in Blue, this district court's primary
            reason in precluding Mr. Means—who was at all times involved in this litigation—from
            seeking reimbursement was to punish Mr. Means for his flagrant disregard of his discovery
            obligations. Such a reason for imposing sanctions is entirely appropriate. National
            Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781; See Derechin v. State University of
            New York, 
    963 F.2d 513
     (2d Cir.1992) (upholding district court's decision to prohibit state
            attorney from seeking reimbursement).
            Contrary to Mr. Means' contention that the district court's decision violated the separation
    
    of powers doctrine, we believe that to restrict a district court's power to fashion appropriate
    
    sanctions, simply because the transgressor is a member of the executive or legislative branch,36 would
    
    violate the separation of powers doctrine.37 Such a decision would invite members o f our sister
    
    branches to ignore acceptable standards of decorum in courts and flout court orders. Indeed, to rule
    
    as Mr. Means requests would rob federal courts of power they inherited at their inception: power
    
    to preserve order in judicial proceedings and enforce judgments.38 This Court recently ruled that it
    
    would not hesitate to strike down any law which weakens the judiciary's power to enforce its orders
    
    as unconstitutionally violative of the separation of powers doctrine. In re Stone, 
    986 F.2d 898
    , 902
    
    (5th Cir.1993). We refuse to now approve of that which we have so recently condemned—the
    
    erosion of a district court's authority to properly compel compliance with its orders. See McBride
    
    
       36
         Governmental attorneys should model the ideals of integrity and ethics rather than attempt to
    circumvent them. See Perry v. Golub, 
    74 F.R.D. 360
    , 366 (N.D.Ala.1976) (asserting that public
    interest dictates that the Government, more than any other entity, comply with court orders).
       37
         The Government contends that prohibiting Government attorneys from seeking and receiving
    reimbursement may inhibit such attorneys from vigorously representing the Government and
    espousing unpopular, yet necessary, legal positions. This "chilling" argument has no more force
    when invoked by the Justice Department than when invoked by opponents of Rule 11 of the
    Federal Rules of Civil Procedure. As long as district courts use their sanction authority carefully,
    no such effects will occur. In any event, appellate review will, in appropriate cases, deter
    excessive or unwarranted sanctions by the district courts.
       38
         So important and deeply rooted is the federal courts' authority to enforce their orders and
    punish willful infractions thereupon that the seventeenth section of the Judiciary Act of 1789
    provided that all federal courts "shall have power ... to punish by fine or imprisonment, at the
    discretion of said courts, all contempts of authority in any cause or hearing before the same." As
    quoted in Ex parte Robinson, 86 U.S. (19 Wall.) 505, 
    22 L. Ed. 205
     (1873). Writing for the
    Court in Ex parte Robinson, Justice Field began his opinion as follows:
    
                   The power to punish for contempts is inherent in all courts; its existence is
                   essential to the preservation of order in judicial proceedings, and to the
                   enforcement of the judgments, orders, and writs of the courts, and consequently to
                   the due administration of justice. The moment the courts of the United States were
                   called into existence and invested with jurisdiction over any subject, they became
                   possessed of this power.
    
            Id. (emphasis added); see also United States v. Hudson and Goodwin, 11 U.S. (7 Cranch)
            32, 33, 
    3 L. Ed. 259
     (1812) (asserting that "[t]o fine for contempt—imprison for
            contumacy—inforce the observance of order, &c. are powers which cannot be dispensed
            with in a Court, because they are necessary to the exercise of all others ...").
    v. Coleman, 
    955 F.2d 571
    , 582-83 (8th Cir.), cert. denied, --- U.S. ----, 
    113 S. Ct. 65
    , 
    121 L. Ed. 2d 32
     (1992) (Lay, C.J., dissenting) (concluding that "[i]t would seriously erode our system of separation
    
    of powers if the executive branch was (sic) effectively immune from the judicial power. The federal
    
    courts must have the inherent authority to enforce executive branch compliance with judicial orders....
    
    Otherwise, the judiciary would be powerless to impose the most effective remedy for ensuring
    
    compliance with its orders against the most frequent litigant in the federal courts").
    
                                               III. Conclusion
    
           The decision of the district court is AFFIRMED, and we tax all costs and attorney's fees for
    
    this appeal against the Government.
    
           EDITH H. JONES, Circuit Judge, concurring specially:
    
           I concur with all of Judge Johnson's fine opinion except for the following bit of dicta:
    
           To restrict a district court's power to fashion appropriate sanctions, simply because the
           transgressor is a member of the executive or legislative branch, would violate the separation
           of powers doctrine. (footnotes omitted). (emphasis added)
    
    This is as unfortunate an overst atement as the government's contrary proposition that Judge
    
    McBryde's order preventing Means from seeking reimbursement from the Justice Department
    
    somehow violates the separation of executive and judicial powers. This court recently described the
    
    scope of a court's sanction against the backdrop of the constitutional separation of powers and
    
    concluded that sanctions fall within the court's inherent powers "necessary to the exercise of all
    
    others." In re Stone, 
    986 F.2d 898
    , 902 (5th Cir.1993), citing Roadway Express v. Piper, 
    447 U.S. 752
    , 764, 
    100 S. Ct. 2455
    , 2463, 
    65 L. Ed. 2d 488
     (1980).1 Stone then says:
    
           Congress may interfere with this category of inherent power wit hin "limits not previously
           defined," so long as it does not abrogate or render the specific power inoperative. Id., citing
           Michaelson v. U.S., 
    266 U.S. 42
    , 65-66, 
    45 S. Ct. 18
    , 19-20, 
    69 L. Ed. 162
     (1924).
    
    On the same page, Stone says that
    
           If the power belongs in the ... category [of sanctions], we must ascertain whether a valid
           statute or rule attempts to regulate the court's use of the power. If such a law exists, we then
    
       1
        I do not know whether Stone 's analysis of inherent powers, borrowed from an Eighth Circuit
    case, is fully valid. The Supreme Court declined to approve the Eighth Circuit analysis in
    Chambers v. NASCO, Inc., --- U.S. ---- n. 12, 
    111 S. Ct. 2123
     n. 12, 
    115 L. Ed. 2d 27
     (1991), but I
    do not rely upon that aspect of Stone.
            must determine whether the law abrogates or renders the power practically inoperative. Id.,
            citing Michaelson, 266 U.S. at 66, 45 S.Ct. at 20.
    
            Stone disposes of this case. That the government says there is a violation of the separation
    
    of powers doctrine does not ipso facto make it so. The government's concern is too speculative upon
    
    the facts before us. First, contrary to the Justice Department's argument, it is not at all clear that its
    
    regulation bears on, much less purports to limit the court's independent power to determine how it
    
    will sanct ion a government employee. Second, the Justice Department offered no evidence or
    
    argument that Means would qualify for reimbursement but for the district court's order. Further, the
    
    government does not assert that the district court's order actually impinged upon the policy and
    
    personnel interests that it asserts are protected by immunity from such an order. These facts counsel
    
    against our rushing to opine upon an important constitutional issue. If the regulation affected the
    
    court's sanction power to the limited extent of preventing the court from issuing a sanction against
    
    an assistant United States attorney individually and non-reimbursably, it appears to me that such a
    
    regulation would not render this court's inherent sanction power "inoperative". A court has numerous
    
    other types of sanction remedies available against the federal government and its attorneys even if this
    
    one is not. To decide this point precisely is, however, unnecessary. The government's argument fails
    
    on the facts before us.
    
                                                   ******
    

Document Info

DocketNumber: 92-1668

Filed Date: 10/25/1993

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (22)

The United States v. Hudson and Goodwin , 11 U.S. 32 ( 1812 )

Ex Parte Robinson , 86 U.S. 513 ( 1873 )

Hammond Packing Co. v. Arkansas , 212 U.S. 322 ( 1909 )

Michaelson v. United States Ex Rel. Chicago, St. P., M. & ... , 266 U.S. 42 ( 1924 )

Sibbach v. Wilson & Co. , 312 U.S. 1 ( 1941 )

Societe Internationale Pour Participations Industrielles Et ... , 357 U.S. 197 ( 1958 )

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