No. 19-389

IN THE

Supreme Court of the United States

JAY ANTHONY DOBYNS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United StatesCourt of Appeals for the Federal Circuit

BRIEF OF NATIONAL ASSOC. OF POLICE ORGS.,ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES

ASSOC. OF RETIREES, INT’L ASSOC. OF UNDERCOVEROFFICERS, RICHARD W. HARPER, ROBERT R.

ALMONTE, SAFE CALL NOW, SURVIVE FIRST, INC.,AND THE ARIZONA ASSOCIATION FOR JUSTICE, AS

AMICI CURIAE IN SUPPORT OF PETITIONER

DAVID L. ABNEY

Counsel of Record for Amici CuriaeSTANLEY G. FELDMAN

ARIZONA ASSOCIATION FOR JUSTICE

1661 East Camelback Road, Suite 104Phoenix, AZ 85016(602) 235-9356abneymaturin@aol.comsfeldman@mpfmlaw.com

October 24, 2019

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS.................................................i

TABLE OF AUTHORITIES ........................................ iii

INTERESTS OF THE AMICI CURIAE……………….. 2

SUMMARY OF ARGUMENT........................................5

ARGUMENT ................................................................10

I. The Minimal Standards of Good FaithRequired of Law-Enforcement Employersin the Dobyns Federal Circuit OpinionEndanger Law-Enforcement Officers andUndermine Mission Success .............................10

A. The Risks Posed to Petitioner Dobynsfrom ATF’s Conduct ConstituteUnacceptable Bad Faith by the UnitedStates............................................................10

B. A Definition of the Covenant of GoodFaith and Fair Dealing Based on aContract’s Spirit is Critical to Agree-ments Addressing Dangers to Partici-pants in Law-Enforcement Operations.......11

1. Law Enforcement Carries InherentDangers Requiring That Govern-ment Employers Act with GoodFaith as Determined by the UniqueCircumstances of an Officer’sAssignment .............................................11

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TABLE OF CONTENTS—Continued

Page(s)

2. The Federal Circuit’s OpinionIgnores Those Inherent Risks andDisregards the Need for aCovenant of Good Faith and FairDealing Reflecting the Realities ofLaw-Enforcement Employmentand Missions ...........................................17

3. Harmonizing the Unique Risks ofLaw Enforcement with a Covenantof Good Faith Rooted in the Spirit,and not the Express Terms of theContract, is Entirely Consistentwith Dominant Statements of theCovenant Within and Outside theFederal Circuit........................................19

C. The Claims Court Described ATF’sDisregard of Agent Safety That isParticularly Alarming to Amici...................20

D. Left Undisturbed, the FederalCircuit’s Opinion Undermines theInterests of Law EnforcementNationwide ...................................................26

CONCLUSION.............................................................27

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TABLE OF AUTHORITIES

CASES Page(s)

Alabama v. North Carolina,560 U.S. 330 (2010).................................................... 5

Black Horse Lane Assoc., L.P., v.Dow Chem. Corp.,228 F.3d 275 (3d Cir. 2000) ......................................19

Bluebonnet Sav. Bank, F.S.B. v.United States,266 F.3d. 1348 (Fed. Cir. 2001)................................. 9

CanPro Invs. Ltd. v. United States,131 Fed. Cl. 528 (2017)...................................... 19, 20

Centex Corp. v. United States,395 F.3d 1283 (Fed. Cir. 2005)................................ 19

Chevron v. United States,116 Fed. Cl. 202 (2014).............................................. 8

Chicago Rock Island & Pacific R.R. Co. v.Howard,74 U.S. (7 Wall.) 392 (1868) .................................... 18

Cox v. Mortgage Electric Regist. Syst. Inc.,685 F.3d 663 (8th Cir. 2012) ................................... 18

Craig-Buff, Ltd., P’ship v. United States,69 Fed. Cl. 382 (2006)............................................. 8-9

Cuyahoga Metro. Hous. Auth. v.United States,65 Fed. Cl. 534 (2006)................................................ 9

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TABLE OF AUTHORITIES—Continued

Page(s)Dobyns v. United States,

118 Fed. Cl. 289 (2014)......................5, 6-8, 18, 21-24

Dobyns v. United States,915 F.3d 733 (Fed. Cir. 2019).............................. 5, 17

Kirke La Shelle v. Paul Armstrong Co.,188 N.E. 163 (N.Y. 1933)........................................... 6

Lowell v. Twin Disc., Inc.527 F.2d 767 (2nd Cir. 1975).................................. 5-6

Metcalf Constr. Co., Inc. v. United States,742 F.3d 984 (Fed. Cir. 2014)............................ 19, 20

National Australia Bank v. United States,63 Fed. Cl. 352 (2004), aff’d in part,rev’d in part on othe grounds,452 F.3d 1321 (Fed. Cir. 2006).................................. 9

N. Star Alaska Hous. Corp. v.United States,76 Fed. Cl. 158 (2007)...........................................8, 19

Opthalmic Surgeons, Ltd. v.Paychex, Inc.,632 F.3d 31 (1st Cir. 2011) ........................................ 7

O’Tool v. Genmar Holdings, Inc.,387 F.3d 1188 (10th Cir. 2004)........................... 18-19

SGS-92-X003 v. United States,118 Fed. Cl. 492 (2014)............................................ 20

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TABLE OF AUTHORITIES—Continued

Page(s)

S. Wine and Spirits of Nev. v.Mountain Valley Spring Co., LLC,646 F.3d 526 (8th Cir. 2011) ....................................18

Swanner v. United States,309 F. Supp. 1183 (M.D. Ala. 1970) ........................ 20

United States v. Basin Elec.Power Coop.,248 F.3d 781 (8th Cir. 2001),cert. denied, 534 U.S. 1115 (2002) ...................... 9, 18

STATUTES AND CODES

U.C.C. § 1—201(b)(20) .................................................... 7

TREATISES

E. Alan Farnsworth, Farnsworth onContracts, § 7.17 (2004).......................................... 6-7

Restatement (Second) of Contracts,§ 205 (1979) .............................................................................7

Restatement (Second) of Contracts,§ 205 (1981) ............................................................................. 5

OTHER AUTHORITIES

Edwin Meese III and John Malcolm,Policing in America: Lessons from thePast, Opportunities for the Future, TheHeritage Foundation, September 18,2017 .................................................................... 12, 16

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TABLE OF AUTHORITIES—Continued

Page(s)

FBI Releases 2018 Statistics on LawEnforcement Officers Killed in the Lineof Duty, FBI National Press Office,May 6, 2019........................................................12-15

Fact Sheet – Special Agents,” Bureau ofAlcohol, Tobacco, Firearms andExplosives, May 2019 .............................................15

Robert L. Summers, The General Duty ofGood Faith—Its Recognition andConceptualization, 67 Cornell L. Rev.810 (1982)................................................................... 7

STATEMENT OF THE AMICI CURIAE

The National Association of PoliceOrganizations, The Alcohol, Tobacco, Firearms andExplosives Association of Retirees, The InternationalAssociation of Undercover Officers, Richard W. Harper,Robert R. Almonte, Safe Call Now, Survive First, Inc.,and The Arizona Association for Justice, submit thisbrief as amici curiae in support of petitioner JayAnthony Dobyns.1 Amici urge the Court to grant thepetition to reverse the Federal Circuit’s opinionreversing and vacating the U.S. Court of FederalClaims’ opinion and judgment finding that the FederalBureau of Alcohol, Tobacco, Firearms and Explosives(“ATF”) violated the covenant of good faith and fairdealing in an agreement between it and Dobyns. Theagreement’s intent was to provide for his safety andprotection from threats of death and violence resultingfrom his employment duties as a federal undercoveragent.

1 Written consents from both parties to the filing of amicuscuriae brief in support of either party were timely requested andwere received. In accordance with Supreme Court Rule 37.6, theamici curiae avow that no counsel for either party has authoredthis brief either in whole or in part. Additionally, no party or itscounsel has made a monetary contribution intended to fund thepreparation or submission of this brief, which was entirely fundedby the Law Enforcement Legal Defense Fund, 2560 HuntingtonAvenue, Alexandria, Virginia, 22303, an IRC § 501(c)(3) charitableorganization.

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Interest of Amici Curiae

Amici are organizations and individuals possessing astrong interest and professional background inadministering and interpreting agreements regardingfederal employees in general, and in particular, law-enforcement agents and officers.

Amici represent members who have confronteddangers related to their law-enforcement missions, bothduring and after the missions. Amici and their law-enforcement members have encountered various formsof agreements between the United States and law-enforcement personnel where assumptions of good-faithperformance by the federal government form a keyingredient to an agreement’s success or failure.

As the amici members have found first-hand, theagent and the government employer commonly viewlaw-enforcement agreements regarding employment ormission safety as secondary to successfully executingtheir law-enforcement objectives. Thus, amici oftenencounter agreements in the law-enforcement industrysubstantially different from the “norm” of employmentor commercial contracts. For law-enforcement officersrepresented by the amici, pursuing public safety bypreventing and timely responding to crimes is the mainconsideration. And so, safety and protection ofindividual law-enforcement officers often depend on thegovernment’s good-faith protection of those who keepour nation safe.

All amici have a strong interest in ensuring that thecovenant of good faith and fair dealing implied in allcontracts, including contracts between private parties

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(such as law-enforcement officers and the UnitedStates, rests on the expectations of the parties and thecircumstances and context of the agreements.Similarly, amici have a strong interest in opposing legalprecedents such as the Dobyns Federal Circuit opinion,limiting the covenant of good faith to an interpretationof the express terms of agreements that often littleresemble standard commercial or employmentagreements.

Amici filing this brief are:

The National Association of PoliceOrganizations (NAPO), a coalition of American policeunions and associations, was organized to advance theinterests of law-enforcement officers through legislativeadvocacy, political action, and education. Founded in1978, NAPO is the strongest unified voice supportingAmerican law-enforcement officers. NAPO representsover 1,000 police units and associations, and over241,000 sworn law-enforcement officers dedicated tovigorous and effective representation on behalf ofAmerican law-enforcement officers.

The Alcohol, Tobacco, Firearms andExplosives Association of Retirees (“AFTAR”),established in 2001, provides association and peersupport for agents and other employees with current oranticipated earned retirement from ATF.

The International Association of UndercoverOfficers (“IAUO”) promotes the safety, professionalismand training of undercover law-enforcementpersonnel. The non-profit association has 3,960members and facilitates networking and sharing

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investigative techniques among law-enforcementorganizations and personnel. IAUO facilitates sharingup-to-date information about criminal organizations,new law-enforcement equipment and techniques. IAUOalso sponsors state-of-the-art training programs forundercover agents.

Richard W. Harper is a retired 34-yearveteran and former Captain of the Tucson PoliceDepartment (“TPD”). He was the Training DivisionCommander at TPD for 1,200 law-enforcementemployees. His TPD background includes the ViolentCrimes Unit and hostage-negotiations team anddirecting “protective" activities for officers targeted bythreats. He lectures on criminal justice at theUniversity of Arizona, Arizona State University, andNorthern Arizona University.

Robert R. Almonte worked 25 years with theEl Paso Texas Police Department and retired as aDeputy Chief overseeing the Major Crimes Bureau. Heserved as the United States Marshal for the WesternDistrict of Texas and as executive director andpresident of the Texas Narcotic Officers Association. Hecurrently operates a law enforcement consultingcompany (Robert Almonte, LLC).

Safe Call Now is a non-profit corporationestablished in 2009 in Washington State to providemental-health crisis services to law-enforcementofficers, first responders, and other public-safetyemployees. It was spearheaded by Washington StateLt. Governor Bradley Owen, U.S. Representative DaveReichert, and Obama Administration Drug Czar GilKerlikowski.

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Survive First, Inc., is a resource for firstresponders and their families to speak confidentiallywith former law-enforcement officers, fire fighters,first-responder professionals, and/or mental-health careproviders experienced in law-enforcement mental-health challenges.

The Arizona Association for Justice is anArizona trial lawyers association founded in 1964, witha core mission to promote an Arizona civil-justicesystem accessible to everyone. It provides attorneyswith resources, information, professional support, andnetworking to maximize their effectiveness.

SUMMARY OF ARGUMENT

Amici support Dobyns’ Petition for a writ of certiorarito the United States Court of Appeals for the FederalCircuit in Dobyns v. United States, 915 F.3d 733 (Fed.Cir. 2019), reversing the United States Court of FederalClaims in Dobyns v. United States, 118 Fed. Cl. 289(2014). Amici urge this Court to hold that the impliedcovenant of good faith and fair dealing arises from thespirit of contractual agreements, and not merely fromexpressly-stated contract terms.

This Court has described the ubiquity of the principlethat every contract has an implied covenant of goodfaith and fair dealing: “Of course, ‘[e]very contractimposes upon each party a duty of good faith and fairdealing in its performance and enforcement.’” Alabamav. North Carolina, 560 U.S. 330, 351 (2010) (quotingRestatement (Second) of Contracts § 205 (1981)).Indeed, all American jurisdictions universally recognizethat the covenant of good faith and fair dealing isimplied in every contract: “It is a fundamental principle

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of law that in every contract there exists an impliedcovenant of good faith and fair dealing.” Lowell v. TwinDisc., Inc., 527 F.2d 767, 770 (2nd Cir. 1975).

While courts have applied good-faith-and-fair-dealingconcepts for centuries, the usual formulation of animplied covenant of good faith and fair dealing in everycontract crystallized in the 1930s, with the New YorkState Court of Appeals leading the way:

In the last analysis those cases only applythe principle that in every contract thereis an implied covenant that neither partyshall do anything which will have theeffect of destroying or injuring the right ofthe other party to receive the fruits of thecontract, which means that in everycontract there exists an implied covenantof good faith and fair dealing.

Kirke La Shelle Co. v. Paul Armstrong Co., 188 N.E.163, 167 (N.Y. 1933).2

Recognition of the covenant of good faith and fairdealing evolved as separate and apart from the expressterms of the contract.3 Violation of the express

2 According to Westlaw, this relevant part of Kirke has been

cited in two hundred and forty-two separate state and federaldecisions, with the latest citations in 2019.

3 The Court of Claims explained the traditional expression ofthe common-law implied covenant of good faith and fair dealing:

Originally applied in late Nineteenth Centurycommon law contract cases, see, e.g., E. Allan

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contractual provision could be redressed throughactions for breach of contract. But actions which did notviolate an express provision but which had the effect ofdestroying the purpose of the contract or the benefitswhich a party was to have received from the contractcould be redressed only by recognition of an impliedcovenant that prohibited actions not expresslyforbidden by contractual language but which woulddestroy or significantly impair the contractual promiseswhich were made.4

Farnsworth, Farnsworth on Contracts § 7.17(2004), the covenant gained increased acceptanceupon the adoption of the Uniform CommercialCode in 1951. U.C.C. § 1–201(b)(20). The covenantwas then adopted by the American Law Institute,as § 205 to the Restatement (Second) of Contractsin 1979: “Duty of Good Faith and Fair Dealing.Every contract imposes upon each party a duty ofgood faith and fair dealing in its performance andexecution.” The comments to § 205 refer to thedefinition of “good faith” in the UniformCommercial Code, which says, “‘good faith’ meanshonesty in fact in the conduct or transactionconcerned.” See also Ophthalmic Surgeons, Ltd. v.Paychex, Inc., 632 F.3d 31, 40 (1st Cir.2011);Robert L. Summers, “The General Duty of GoodFaith—Its Recognition and Conceptualization,” 67Cornell L. Rev. 810 (1982).

Dobyns, 118 Fed. Cl. at 316 n.42.

4 Amici suggest the following illustration. Suppose D contractswith P to supply and ship an essential product to P at regularmonthly or yearly intervals. But D finds the contract will notproduce all of the profit that it had expected and wishes to end itsobligation. It therefore proceeds to purchase from X the onlyfacility that could handle the shipments. After destroying thatfacility, D refuses to go forward with the obligation, defending on

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A reason central to the Petition and to the amici’ssupport is the Court of Claims’ acknowledgment of theimportance and universality of the covenant of goodfaith and fair dealing:

“Every contract implicitly contains acovenant of good faith and fair dealing,keyed to the obligations and opportunitiesestablished in the contract.” [….] Thecovenant imposes on each party a “dutynot to interfere with the other party’sperformance and not to act so as todestroy the reasonable expectations of theother party regarding the fruits of thecontract.” [….] The United States, no lessthan any other party, is subject to thiscovenant.

Dobyns, 118 Fed. Cl. at 316-317 (citations omitted).

The Court of Claims correctly described the impliedcovenant of good faith and fair dealing as not restrictedto the express terms of the contract, citing extensiveauthority within the Federal Circuit and the EighthCircuit. See, Dobyns, 118 Fed. Cl. at 318 n.46, citingChevron v. United States, 116 Fed. Cl. 202, 206 (2014);N. Star Alaska Hous. Corp. v. United States, 76 Fed. Cl.158, 188 (2007); Craig–Buff Ltd. P’ship v. UnitedStates, 69 Fed. Cl. 382, 388 (2006) (“a claim for abreach of the implied covenant of good faith and fair

the grounds of impossibility of performance. Nothing expressed inthe contract prohibited D from purchasing the shipping facilityand destroying it; nothing that is, except the duty of good faith andfair dealing.

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dealing is not limited to specific contract terms”); Nat’lAustralia Bank v. United States, 63 Fed. Cl. 352, 354–55 (2004), aff’d, in part, rev’d in part on other grounds,452 F.3d 1321 (Fed. Cir. 2006); Cuyahoga Metro. Hous.Auth. v. United States, 65 Fed. Cl. 534, 543 (2005);Bluebonnet Sav. Bank, F.S.B. v. United States, 266F.3d 1348, 1355 (Fed.Cir.2001); United States v. BasinElec. Power Coop., 248 F.3d 781, 796 (8th Cir. 2001),cert. denied, 534 U.S. 1115 (2002) (“Since good faith ismerely a way of effectuating the parties intent inunforeseen circumstances, the implied covenant has‘nothing to do with the enforcement of terms actuallynegotiated’”).

The trial-court understood the covenant implied inthe agreement between Petitioner Dobyns and ATFderived from an extensive array of evidence about theparties’ intent to protect a law-enforcement officer fromactive and dangerous threats of death and violence. TheFederal Circuit, however, disregarded both the good-faith-and-fair-dealing covenant and the reality of howthe federal government contracts with its employees,including law-enforcement officers. The good-faith-and-fair-dealing covenant is not background noise. It is acrucial part of every employment contract. But underthe Federal Circuit’s opinion, for law-enforcementofficers and their loved ones who are often in extremeperil, the implied good-faith-and-fair-dealing covenantvanishes.

If allowed to stand, the Federal Circuit’s Dobynsopinion will shred the last and best safeguard thatfederal law-enforcement officers have from the federalgovernment’s bad-faith performance of its contractobligations. In the process, mission success and public

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safety may be compromised, because agents will fearthat their safety and the safety of their families duringand after a criminal investigation is not a priority forthe federal government, unless reduced to clearcontract terms. The nation’s brave men and womenprotecting all of us deserve and expect that the impliedcovenant of good faith and fair dealing always applies,especially when they and their loved ones are in perilbecause of dangerous work conditions. This Courtshould grant the Petition and reverse the FederalCircuit’s ruling.

ARGUMENT

I. The Minimal Standards of Good Faith Requiredof Law-Enforcement Employers in the DobynsFederal Circuit Opinion Endanger Law-Enforcement Officers and Undermine MissionSuccess

A. The Risks Posed to Petitioner Dobyns fromATF’s Conduct Constitute Unacceptable BadFaith by the United States

Amici need say little to convince anyone that ATF’sconduct towards the safety of Petitioner, an ATFundercover agent, was atrocious. Most startling is theclear resolve of ATF and the Department of Justice todefend actions endangering an active agent underthreat from criminal suspects. Career law-enforcementofficers such as the amici reasonably question whethersuch events could happen to them. Those same amicimembers, in light of the strictness of the FederalCircuit’s requirements to prohibit bad faith by agovernment employer, may reasonably questionwhether any law-enforcement officer could prevent

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such endangering conduct as a contractual andpractical matter.

The facts demonstrate the need for this Court’s clearstatement that the good-faith-and-fair-dealing covenantmust derive from the spirit and circumstances of acontract, and not exclusively from express contractterms, often drafted by skillful federal contractingofficers. A clear articulation of a good-faith-and-fair-dealing covenant of good faith based on the spirit of thecontract between a government employer and anemployee law-enforcement officer, will advance thatofficer’s safety interests. Further, this clarification ofthe source of the covenant will help ensure thateffective law-enforcement recruitment is successful foryears to come.

B. A Definition of the Covenant of Good Faithand Fair Dealing Based on a Contract’s Spiritis Critical to Agreements Addressing Dangersto Law-Enforcement Officers and Operations

1. Law Enforcement Carries InherentDangers Requiring That GovernmentEmployers Act with Good Faith asDetermined by the Unique Circumstancesof an Officer’s Assignment

The dangers Dobyns experienced as part of his ATFundercover duties, and the threats he encountered afterprosecution of criminal suspects, are not limited tohigh-profile criminal investigations. Instead, thoserisks are part of every investigation of both violent and“non-violent” criminals.

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One of the most alarming statistics of a 2017“Policing Strategy Summit” is the increasing homicidesof police officers:

2016 will be marked as the year in whichmore officers were killed than during theprevious five years, and 21 officers werekilled in ambush attacks. Thisunacceptable development must beaddressed rigorously and fully.5

Similarly, FBI statistics for law-enforcement officerskilled in the line of duty during 2018 support theconcerns expressed by Petitioner and amici:

The 55 felonious deaths occurred in 28states and in Puerto Rico. The numberof officers killed as a result of criminalacts in 2018 was 9 more than the 46officers who were feloniously killed in2017. The 5- and 10-year comparisonsshow an increase of 4 felonious deathscompared with the 2014 figure (51officers) and an increase of 7 deathscompared with 2009 data (48 officers).

Officer Profiles. The average age of theofficers who were feloniously killed was37 years old. The victim officers had

5 Edwin Meese III and John Malcolm, “Policing in America:Lessons from the Past, Opportunities for the Future, THEHERITAGE FOUNDATION, Sept. 18, 2017 (https://www.heritage.org/crime-and-justice/report/policing-America-lessons-the-past-opportunities-the-future).

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served in law enforcement for anaverage of 10 years at the times of thefatal incidents.6

Those statistics prove the dramatically differentpotential consequences between bad-faith performanceby a government employer in law enforcement versusother governmental employers or contract partners innormal commercial settings. But the Federal Circuit’sopinion neither acknowledges nor demonstrates anyconcern for the unique and heightened workplace riskslaw-enforcement officers confront every day.

Again, the FBI explains7 the risks and consequencesof danger that law-enforcement officers facedthroughout 2018:

Circumstances. Of the 55 officers feloni-ously killed:

23 died as a result of investigative orenforcement activities

8 were performing investigativeactivities

6 were involved in tacticalsituations

6 “FBI Releases 2018 Statistics on Law Enforcement OfficersKilled in the Line of Duty”, FBI NATIONAL PRESS OFFICE, May6, 2019 (https://www.fbi.gov/news/pressrel/press-releases/fbi-releases-2018-statistics -on-law-enforcement-officers-killed-in-the-line-of-duty)

7 Id.

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3 were interacting with wantedpersons

3 were investigating suspiciouspersons or circumstances

2 were conducting traffic violationstops

1 was handling a person withmental illness

11 were ambushed(entrapment/premeditation)

6 were involved in pursuits 4 were involved in foot pursuits 2 were involved in vehicular

pursuits 4 were responding to crimes in progress

2 were burglaries in progress 1 was a report of a person with a

firearm 1 was reported in the category of

other crime against property. 3 were involved in arrest situations and

were attempting tocontrol/handcuff/restrain the offender(s)during the arrest situations

2 were on administrative assignmentsand were performing prisoner transports

2 were assisting other law-enforcementofficers with foot pursuits

2 were responding to disorders ordisturbances

1 was responding to a disturbancecall

1 was responding to a domesticviolence call

1 was performing traffic control

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1 was involved in an unprovoked attack

Even ATF, Dobyns’ employer and the culpable actorin his Court of Claims lawsuit, acknowledges the risksATF agents undertake in the course of their jobs:

Bureau of Alcohol, Tobacco, Firearms andExplosives (ATF) special agents are thebackbone of the ATF criminalenforcement mission. The special agentposition is not only unique, but ultimatelyone of the most challenging in federal lawenforcement. ATF is a law enforcementagency under the Department of Justice.

ATF special agents are highly trained toinvestigate violations of federal lawsrelating to firearms, the criminal use ofexplosives, arson, the diversion of alcoholand tobacco, and related violent crimes.

The special agent profession is excitingand rewarding, but also requirestoughness both physically and mentally.The position requires rigorous training,personal risks, irregular hours, andextensive travel. Special agents aresubject to reassignment to any ATF officein the United States, to include any U.S.territory or ATF overseas assignment.8

8 “Fact Sheet – Special Agents,” Bureau of Alcohol, Tobacco,Firearms and Explosives, May, 2019 (https://www.atf.gov/resource-center/fact-sheet/fact-sheet-special-agents).

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Amici view with alarm the fact that the realization ofknown credible risks of death and violence targeting afederal agent was made more likely by ATF’s actions,and that the Federal Circuit defended ATF’s actions byeliminating the longstanding roots of the good-faith-and-fair-dealing covenant in the spirit, rather than theexpress language, of a contract. In light of the FederalCircuit’s decision, it is realistic to ask: Why wouldanyone jeopardize his or her own health and safety forfederal employers who endanger them, or for a federalcourt system placing 100% of the responsibility toensure contractual safety protections on the agent?9

That question, instead of a reasonably applied,traditional statement of the good-faith-and-fair-dealingcovenant, is the logical outcome of Dobyns v. UnitedStates.

9 Further deterioration of law-enforcement recruitment wouldharm and already strained hiring process:

Many agencies are already shorthanded, and theconstant maligning of law enforcement officialshurts efforts to recruit high-quality police officers.Retention problems are putting pressure on policechiefs to lower their recruiting standards to filltheir staffing needs. This, combined with thecurrent and expected retirement of a largenumber of experienced officers and the consequentloss of institutional knowledge, makes effectivetraining regimens especially important.

Fn. 5, supra.

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2. The Federal Circuit’s Opinion Ignores ThoseInherent Risks and Disregards the Need for aCovenant of Good Faith and Fair DealingReflecting the Realities of Law-EnforcementEmployment and Missions

The Federal Circuit’s interpretation of the good-faith-and-fair-dealing covenant shreds that strong, venerablecontract safeguard. Law-enforcement officers are rarelyrepresented by attorneys when negotiating agreementsto protect their on-duty and off-duty safety, or that oftheir families. Instead, those officers depend on trustbased on a recognition of the daily risks they encounter.

The Federal Circuit’s indifference to the risks law-enforcement officers accept in the name of public safetycould not be more apparent when it concedes that it “istrue that the alleged grievances that led to the 2007agreement were based on ATF’s security failuresrelating to Dobyns’ safety.” Dobyns, 915 F.3d at 740.And yet the Federal Circuit severs its opinion from therealities of law enforcement when it writes that, withno “grounding [of] the supposed duties in the specificprovisions of the contract, the Claims Court imposed avague duty of ‘ensur[ing] the safety of Agent Dobynsand his family’ on the government as well as non-discrimination.’” Id.

That duty is not “vague”; it is an impliedrequirement to act in good faith in specific waysdepending on the circumstances of the contract, whicha trier of fact must determine. In Dobyns’ case, that“vague duty” is to not take actions that can lead to thedeath of a federal agent and his or her family – a dutythat amici know is concrete. The Federal Circuitopinion and standard for the covenant of good faith, at

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least with respect to law enforcement, bears nopractical resemblance to the reality of law-enforcementwork. It also ignores the central duty of any justgovernment to protect all of its people—especially thoseputting themselves in danger to protect others.

Amici urge this Court to reject the Federal Circuit’sconclusion, that any finding of breach of the good-faith-and-fair-dealing covenant must be “tethered” to anexpress contract provision. Id. Amici ask this Court toapply the universal principle that the good-faith-and-fair-dealing covenant arises in the spirit of the contract,as discerned by the testimony about the facts andcontext of the agreement, as articulated in O’Tool v.Genmar Holdings, Inc., 387 F.3d 1188, 1195 (10th Cir.2004). In so doing, this Court will return the covenantto its traditional definition, force, and importance,10 asfully embraced by the Federal Circuit decisions ofMetcalf Constr. Co., Inc. v. United States, 742 F.3d 984,994 (Fed. Cir. 2014), and Centex Corp. v. United States,395 F.3d, 1283, 1304 (Fed. Cir. 2005).

Such a ruling by this Court would also harmonize theFederal Circuit with the Eighth Circuit decisions of Coxv. Mortgage. Electric Registration Syst., Inc., 685 F.3d663, 670–71 (8th Cir. 2012),11 and S. Wine and Spiritsof Nev. v. Mountain Valley Spring Co., LLC, 646 F.3d526, 534 (8th Cir. 2011), and with the Third Circuit

10 See, e.g., Chicago Rock Island & Pacific R.R. Co. v. Howard,74 U.S. (7 Wall.) 392, 413 (1868).

11 To which Amici add the Court of Claims’ partial reliance onthe Eighth Circuit decision of Basin Elec. Power Coop., 248 F.3d at796, cited at Dobyns, 118 Fed. Cl. at 317.

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decision of Black Horse Lane Assoc., L.P., v. DowChemical Corp., 228 F.3d 275, 287 (3d Cir. 2000).

3. Harmonizing the Unique Risks of LawEnforcement with a Covenant of Good FaithRooted in the Spirit, and not the ExpressTerms of the Contract, is Entirely Consistentwith Dominant Statements of the CovenantWithin and Outside the Federal Circuit

Amici concur with the statement of the covenant ofgood faith set forth in Petitioner’s brief. Priorprecedential Federal Circuit opinions expressly adopteda rule of the covenant of good faith that the amiciendorse in federal contracts with law-enforcementofficers. Centex Corp., 395 F.3d at 1304. In contrast,the Federal Circuit Dobyns opinion is adverse to thesafety interests of the amici.

Previous Federal Circuit opinions found that thecovenant of good faith and fair dealing prohibits actions“that, though not proscribed by the contract expressly,are inconsistent with the contract’s purpose anddeprive the other party of the contemplated value.”Metcalf, 742 F.3d at 991 (emphasis added); in accord,CanPro Invs. Ltd. v. United States, 131 Fed. Cl. 528,531–32 (2017). And within the Federal Circuit, as theClaims Court has stated, the covenant requires “thecourt, in interpreting a contract . . . to effectuate itsspirit and purpose.” N. Star Alaska Housing Corp. vUnited States, 76 Fed. Cl. 158, 193 (2007).

As Dobyns noted, the Court of Claims has given moreprotections in an oral contract with a DEA informantthan ATF and the Federal Circuit provided to Dobyns—and did that without the “tethering” requirement in

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Dobyns. SGS-92-X003 v. United States, 118 Fed. Cl.492, 524 (2014). The court found that the duty of goodfaith and fair dealing protected the safety of the DEAinformant. Id. at 574. Petitioner similarly correctlydescribes the need for a broadly-rooted covenant of goodfaith and fair dealing for undercover agents followingthe disclosure of their identity. Swanner v. UnitedStates, 309 F. Supp. 1183, 1186 (M.D. Ala. 1970) (in astrikingly similar case, finding a duty on the part of thefederal government to protect an IRS undercover agentand his family after death threats the IRS failed toaddress, with the agent’s home subsequently bombedwhile he and his family were inside).

Extending the rule of those cases, and those on whichthe Court of Claims relied, through affirmance of thespirit of the contract as the source of the good-faith-and-fair-dealing covenant, should be the result of theDobyns case, and not the destruction of the essentialand unique protections of the covenant in law-enforcement personnel agreements.

C. The Claims Court Described ATF’s Disregardof Agent Safety That is Particularly Alarmingto Amici

Both before and after the August 10, 2008 arson ofDobyns’ home, ATF intentionally endangered him anddealt with him in bad faith under the contract.

Regarding matters appearing in the Court of FederalClaims opinion but that are not featured in Petitioner’sbrief, amici note two things.

First, the trial-court record shows the governmentabandoned Dobyns after the arson, a clear disregard of

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his and any similarly-situated agent’s safety. The Courtof Claims explained that that ATF’s Internal AffairsDivision (“IAD”) had concluded that:

The Phoenix Field Division’s leaders, includingits special agent in charge, assistant specialagent in charge, and Agent Higman, delayedATF’s response to the arson at Dobyns’s home inways harming the arson investigation.

The special agent in charge, assistant specialagent in charge, and Agent Higman had targetedDobyns as a suspect in his home’s arson, evenafter highly-respected agents within the PhoenixField Office concluded otherwise based oninterviews and arson-scene evidence.

The Phoenix Field Division’s investigators hadignored credible suspects.

Agent Higman provided a briefing to the FBI(when it took over the investigation from ATF)including false information and portrayingDobyns as ATF’s lead suspect in the fire,although Agents Hildick and Moreland hadeliminated Dobyns as a suspect based on theirinterviews with him and his family and theirreview of the arson-scene evidence.

On October 29, 2012, ATF’s Professional ReviewBoard considered the investigative report and,based on the IAD’s conclusions, proposed thatthe assistant special agent in charge be removedfrom his position and, in fact, from federalservice.

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On November 30, 2012, ATF’s ProfessionalReview Board issued a similar memorandum tothe special agent in charge and proposed hisremoval from his position and from federalservice.

Dobyns, 118 Fed. Cl. at 307-309.12

That conduct, in the eyes of the professional law-enforcement amici, is inexcusable and outside anybounds of good faith and fair dealing in any agreementregarding the safety of an undercover law-enforcementofficer. The Claims Court noted that “ATF agreed ‘thatit will comply with all laws regarding or otherwiseaffecting [Dobyns’] employment by the Agency.’”Dobyns, 118 Fed. Cl. 289, 298. In so stating, the Courtof Claims, unlike the Federal Circuit, clearlyunderstood the risks to law-enforcement officers thatATF’s conduct poses to the lives of agents when

12 Regarding the credibility of the IAD report of investigationregarding ATF’s response to the arson at Dobyns’ home, the Courtof Claims wrote:

On the other hand, the court attaches considerableweight to the testimony of Agent Trainor, whoauthored the 2012 and 2013 IAD reports. . . .[T]here is every indication that Agent Trainor’sreports were thorough, well–documented andaccurately reflected the substance of the more than4,000 pages of documents, electronic messages,depositions and notes of interview that he reviewedand summarized in his two reports. Those reports,indeed, corroborate hundreds of critical facts thatare otherwise reflected by the testimony anddocuments in the record.

Dobyns, 118 Fed. Cl. at 312.

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expectations of good-faith performance in compliancewith laws affecting an agency are breached:

[F]inally, other assurances focused on theinteraction between fellow agents andtheir superiors – interactions thatpotentially proved important when life-and-death decisions hung in the balance.

The ATF officials who entered into theSettlement Agreement with AgentDobyns understood all this, as they hadyears of law enforcement experience.They recognized that this was no ordinaryemployment dispute and that the$373,000 being paid to Agent Dobynsrelated to the fundamental failure of ATFofficials to act in conformity with theassurances that had been given to AgentDobyns and his family—the sameassurances that were given to all ATFagents in the form of policies, proceduresand orders designed to promote agentsafety. The record makes thisunderstanding clear.

Id. at 319.

There is no ambivalence in the Court of Claims’opinion that the purpose of the agreement betweenDobyns and ATF was other than for his protection andsafety. Id. In that context, the government’s intentionalconduct is outrageous. The Court of Claims quotes froman email of an ATF arson-response supervisor, whohappened to be the Assistant Special Agent in Chargeof the Phoenix Field Division. That email shows that

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ATF not only violated any expectation of Dobyns’safety, but did so knowingly:

[. . . .] [I]t’s not possible in this lifetime tocontrol the Director, Deputy Director,ADs or so on down the chain from gettingbriefed on this case or contacting thehomeowner and/or his family.

However, what I can control (and fullyintend to control) is the specificinformation that is briefed to the chain ofcommand.

[. . . .]I stand with you and your agents onthis, so not releasing significant details(to anyone) that we may discover thatwould compromise our work won’t comefrom me. I’ll go out of my way to concealthem. [….] I have enough L.E. [lawenforcement] and Intelligence communityexperience to know how to protect myselfand my subordinates. (I can hide the ballwith the best of them).

Id. at 303-204.13

The Court of Federal Claims described ATFsupervisors wrongfully pursuing a decorated agent forarson after he had been cleared by experienced

13 Regarding the intentionality of ATF’s misconduct, andtherefore scienter for bad faith, the Court of Claims wrote: [I]itappears that ASAC Gillett purposely attempted to shield criticalinvestigative information from senior ATF officials. . .” [Fn. 34omitted]. Id., at 312.

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investigative agents on the scene, with the ATF failingto pursue the arsonist(s) who almost killed Dobyns’ wifeand children in their flame-engulfed home. The Courtof Claims correctly found that violated the good-faith-and-fair-dealing covenant in the ATF/Dobyns contract.

As the Federal Circuit acknowledged, Dobyns andATF resolved Dobyns’ disputes over ATF’s past failuresto protect his safety related to his work as an ATFundercover agent. That is the basis of the contract andthe spirit of the good-faith-and-fair-dealing covenant,which Dobyns, the Claims Court, and most of theFederal Circuit and Court of Claims common lawappreciate. The Federal Circuit, in concluding thatspecific terms of the contract did not anticipate ATF’sexact form of misconduct undermining the agreementwith Dobyns, operates under a viewpoint that isuninformed and heedless of the daily dangers facinglaw-enforcement officers and the need for trust, goodfaith, and fair dealing in all aspects of the agents’relationships with their government employers.

The government’s duty was consistent – to act ingood faith. What is required by good faith will, ofcourse, vary with the facts. The Court of Claims’ factualfindings show that the government did breach theimplied covenant. The Federal Circuit has effectivelyignored those facts.

The Federal Circuit opinion in Dobyns is an outlierand an incorrect view of the good-faith-and-fair-dealingcovenant and must be reversed. The effectiveness andsafety of federal law-enforcement agents, and state andlocal agents whose employers will take guidance fromthe Federal Circuit’s opinion, depend on its reversal.

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D. Left Undisturbed, the Federal Circuit’sOpinion Undermines the Interests ofLaw Enforcement Nationwide

Amici are seasoned law-enforcement members fromacross America. We speak with authority when westate that Jay Dobyns and his courage and success inlaw enforcement represents the best of us, and thatATF’s actions in endangering Dobyns and his familyrepresents the worst. Why the U.S. Department ofJustice chose Dobyns’ lawsuit to argue against a good-faith-and-fair-dealing covenant based on the spirit, andnot express contract terms, is beyond understanding. Ifthere is any case illustrating the need for a covenant ofgood faith and fair dealing that is broad and untetheredfrom the express terms of a contract, it is this case.

Neither Jay Dobyns, nor any of amici’s memberscould have foreseen ATF’s heinous conduct that mayhave contributed to the attack on Dobyns’ home and thenear death of his family. Nor would any reasonablelaw-enforcement officer dream of demanding contractterms to protect against intentional endangerment ofthe agent by his or her agency. Amici submit that ajudicial stand must be taken that such protectivelanguage is rendered unnecessary by the impliedcovenant of good faith and fair dealing, especially inagreements between parties such as Dobyns and thefederal government. This case represents just such anopportunity. We pray that this Court takes thisopportunity to clarify that the covenant of good faithand fair dealing is synonymous with the spirit of thecontract, derived from the parties’ obvious intentions.

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Honorable governments would not shun the impliedgood-faith-and-fair-dealing covenant but would activelyembrace it as part of their clear duty to protect allcitizens, especially those who imperil themselves andtheir families as they safeguard our nation from harm.

CONCLUSION

For the foregoing reasons, Amici Curiae ask that thisCourt grant the petition for a writ of certiorari by JayAnthony Dobyns and reverse the Federal Circuitopinion.

Respectfully Submitted,

DAVID L. ABNEY

Counsel of Record for Amici CuriaeSTANLEY G. FELDMAN

ARIZONA ASSOCIATION FOR JUSTICE

1661 East Camelback RoadSuite 104Phoenix, AZ 85016(602) 235-9356abneymaturin@aol.comsfeldman@mpfmlaw.com

October 24, 2019