Federal Government Lawyer’s Filings Appear to Include “Fabricated Quotations and Misstatements of Case Holdings”

From Magistrate Judge Robert Numbers (E.D.N.C.) Monday in Fivehouse v. U.S. Dep’t of Defense; the government’s lawyer has been a member of the bar for almost 30 years, and has worked in the U.S. Attorney’s office since 2009 (according to an article in Bloomberg Law by Ben Penn):

The conduct at issue includes:

1. The inclusion of fabricated quotations and misstatements of case holdings in
Defendants’ response to Fivehouse’s motion to supplement the administrative
record (D.E. 86), including citations to Ohio Valley Environmental Coalition v.
Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009), Dow AgroSciences, LLC v.
National Marine Fisheries Service, 637 F.3d 259 (4th Cir. 2011), and Sierra Club
v. United States Department of the Interior, 899 F.3d 260 (4th Cir. 2018).

2. The inclusion of a fabricated quotation in Defendants’ response opposing
Fivehouse’s motion concerning compliance with Federal Rule of Appellate
Procedure 16 (D.E. 79), citing South Carolina Health & Human Services Finance
Commission v. Sullivan, 915 F.2d 129, 130 (4th Cir. 1990).

3. The inclusion of a fabricated quotation in Defendants’ response opposing
Fivehouse’s motion asking the court to take judicial notice of certain matters
(D.E. 80), citing South Carolina Health & Human Services Finance Commission
v. Sullivan, 915 F.2d 129, 130 (4th Cir. 1990).

4. The inclusion of a fabricated quotation from 32 C.F.R. § 199.21(d) in Defendants’
response opposing Fivehouse’s motion for a preliminary injunction (D.E. 39).

5. The inclusion of a fabricated quotation from 32 C.F.R. § 199.21(d) in Defendants’
response opposing Fivehouse’s motion for summary judgment (D.E. 90).

6. Making false or misleading statements regarding how and why the fabricated
quotations and misstatements appeared in D.E. 86. If established, such conduct
may implicate North Carolina Rules of Professional Conduct 3.3(a)(1), 8.4(c), and
8.4(d). {In a surreply [related to the allegations in D.E. 86, the government’s lawyer] stated that he “inadvertently included incorrect citations to case law from this Circuit,” attributing the errors to the “inadvertent filing of an unfinalized draft document.”}

The court set a hearing on the matter, and added,

Because of the seriousness of these issues, the court requests that one or more members of the leadership of the United States Attorney’s Office attend and participate.

The court also encourages the United States Attorney to review this matter in advance of the hearing and to take any corrective action deemed appropriate. The court will consider any such action in determining whether sanctions are warranted and, if so, their nature.