Profile: Bankruptcy Court for the District of Columbia
Bankruptcy Court for the District of Columbia was a participant or observer in the following events:
C. Madison “Brick” Brewer gets the job of supervising a contract with Inslaw for the installation of the PROMIS database and search application (see March 1982). [US Congress, 9/10/1992; Wired News, 3/1993] According to a report by the House Judiciary Committee, Brewer gets the job from William P. Tyson of the Justice Department’s Executive Office for US Attorneys (EOUSA). [US Congress, 9/10/1992] However, according to Wired magazine, Brewer is appointed by EOUSA Director Laurence McWhorter, who had told a previous candidate for the position that he was “out to get Inslaw” (see Spring 1981). [Wired News, 3/1993] Brewer had originally been hired by the EOUSA in January. [US Congress, 9/10/1992] He once worked for Inslaw, but was allowed to resign when its founder William Hamilton found his performance inadequate (see 1976). [Wired News, 3/1993] Brewer will soon demonstrate his hostility to Inslaw, and the company will ask that he be replaced (see April 14, 1982, April 19, 1982, and Mid-April 1982).
Importance of Job - As the project manager, Brewer is involved in all major contract and technical decisions, including forming the department’s position on Inslaw’s claim that it should be paid for privately-funded enhancements it makes to PROMIS. Brewer also reports on progress on the contract to the department’s PROMIS Oversight Committee (see August 13, 1981 or Before).
Comment by Assistant Attorney General - Assistant Attorney General Lowell Jensen will later comment: “I would think that the better path of wisdom is not to do that [i.e. hire an allegedly fired employee to direct the contract of his former employer] if that’s possible to do. I think that it’s better to have these kinds of issues undertaken by people who don’t have questions raised about them one way or the other whether they are biased in favor of or against the people they deal with.” However, this thinking apparently does not impact the department’s decision to hire Brewer.
House Judiciary Committee Investigation - In the light of these circumstances, the House Judiciary Committee will call the appointment a “curious choice,” partly because Brewer tells it: “I was not a computer person. We talked about my role viewed as being liaison, the person who would make things happen, a coordinator. It was not contemplated that I would, by osmosis or otherwise, learn computer science.” After interviewing Justice Department staff, the committee will find that it is “unable to determine how Mr. Brewer came to be considered for the position.” The committee will also point out: “The potential conflict of interest was an unsatisfactory situation irrespective of his admittedly negative feelings about his forced resignation from the company. Had Mr. Brewer taken actions which could have been construed to unduly favor Inslaw throughout the life of the contract, similar questions of potential conflict could just as easily have arisen either from within the department or from outside competitors of the company.”
Findings of Government Accountability Office and Permanent Subcommittee on Investigations - The Government Accountability Office and Congress’s Permanent Subcommittee on Investigations (PSI) will find that Brewer’s appointment as project manager creates an appearance of a conflict of interest that should have been avoided by the department. The PSI report will say, “The staff finds that the department exercised poor judgment in ignoring the potential for a conflict of interest in its hiring of the PROMIS project director [Brewer], and then, after receiving allegations of bias on his part, in failing to follow standard procedures to investigate them in a timely manner.”
Courts' Opinions - During the legal proceedings that stem from a dispute between Inslaw and the department, two courts will comment on the issue. George Bason, of the Bankruptcy Court for the District of Columbia, will say, “On the basis of the evidence taken as a whole, this court is convinced beyond any doubt that Brewer was consumed by hatred for and an intense desire for revenge against Mr. Hamilton and Inslaw, and acted throughout this matter in a thoroughly biased and unfairly prejudicial manner toward Inslaw.” William Bryant, of the District Court for the District of Columbia, will add, “The nature and circumstances of his separation from that employment are somewhat in dispute, but it is clear that Brewer was not happy in his job when he left it after being urged to do so by Hamilton.”
Brewer's Motivation - Inslaw attorney Harvey Sherzer will comment in court on one of the motivations apparently driving Brewer: “[H]e seemed to think there was something wrong with a contractor benefiting from a government contract.… The gist of what he seemed to be saying was that by performing this contract Inslaw and Mr. Hamilton, specifically, was making an effort to expand the company. And there seemed to be a negative inference toward Inslaw’s ability to use the base created by this contract to expand.” [US Congress, 9/10/1992]
Office of Professional Responsibility Conclusion - On the contrary, the Justice Department’s Office of Professional Responsibility will examine the matter and rule there is no conflict of interest. Brewer will later tell a federal court that everything he does regarding Inslaw is approved by Jensen. Jensen had previously supervised a product known as DALITE, which lost a major contract to Inslaw in the 1970s. [Wired News, 3/1993]
Entity Tags: Lowell Jensen, William Bryant, Office of Professional Responsibility, Laurence McWhorter, Permanent Subcommittee on Investigations, US District Court for the District of Columbia, House Judiciary Committee, Harvey Sherzer, Bankruptcy Court for the District of Columbia, C. Madison “Brick” Brewer, Inslaw, Inc., Executive Office for US Attorneys (DOJ), George Bason, Government Accountability Office, Frank Mallgrave, William P. Tyson
Timeline Tags: Inslaw and PROMIS
Inslaw, the owner and developer of the enhanced PROMIS software, declares bankruptcy, applying for Chapter 11 reorganization at the Bankruptcy Court for the District of Columbia. Inslaw’s poor financial condition is at least partly due to a dispute with the Justice Department over the software, as the department owes it a minimum of $1.6 million in contract payments for implementation, but is withholding them. [US Congress, 9/10/1992]
Inslaw files a complaint for a declaratory judgment, the enforcement of automatic stay bankruptcy protection provisions, and damages against the Justice Department in the dispute over the department’s alleged theft of enhanced PROMIS software. The automatic stay is one of the fundamental debtor protections provided by bankruptcy laws. It stops all collection efforts, harassments, and foreclosure actions, giving the debtor temporary relief from creditors. It is important because it allows a bankruptcy court to centralize all disputes concerning property of the debtor’s estate so that reorganization can proceed orderly and efficiently. [US Congress, 9/10/1992] Inslaw’s attorney for the case, Leigh Ratiner of the Washington firm Dickstein, Shapiro & Morin, chooses the bankruptcy court for the filing based on the premise that the Justice Department, as the creditor, has control of enhanced PROMIS. He will later say: “It was forbidden by the Bankruptcy Act for the creditor to exercise control over the debtor property. And that theory—that the Justice Department was exercising control—was the basis that the bankruptcy court had jurisdiction. As far as I know, this was the first time this theory had been used. This was ground-breaking.” [Wired News, 3/1993] Inslaw claims that Justice Department manager C. Madison Brewer, who was responsible for implementing PROMIS in the department, was instrumental in propelling Inslaw into bankruptcy (see April 1982, April 14, 1982, and April 19, 1982), and that he then hindered Inslaw in its development of a reorganization plan. Inslaw also alleges that its concerns were made known to the highest levels of Justice Department’s management, without any response. [US Congress, 9/10/1992]
According to a sworn statement made to the House Judiciary Committee by Martin Bloom, clerk of the Bankruptcy Court for the District of Columbia, the administration of the court by the clerk’s office is “up to par” by “the latter part of 1987.” Chief Judge Aubrey Robinson will agree with Bloom, complimenting the bankruptcy court’s judge, George Bason, on improvements in the court’s administrative condition in remarks to an annual judicial conference.
Condition of Clerk's Office Later Becomes Important - The condition of the clerk’s office will later become significant because it will apparently be an important factor in the non-reappointment of Bason later this year (see December 15, 1987). For example, a confidential report about his possible reappointment (see December 8, 1987) will say, “Judge Bason evidenced no inclination to come to grips personally with the management challenge posed by the terrible shortcomings of the Office of the Clerk of our Bankruptcy Court.” Bason is currently at loggerheads with the Justice Department over the Inslaw case (see June 19, 1987) and will rule in favor of Inslaw in September (see September 28, 1987).
Previous Poor Condition - It will be established that the clerk’s office was not in good condition when Bason took over the bankruptcy court in the mid-1980s, although a May 1986 report said that the system was being brought under control and Bloom will blame the previous clerk for the problems. Bloom will also say that Bason takes an active role in providing whatever assistance he can in improving the administrative condition of the court.
Committee's Assessment of Court - However, the committee that fails to reappoint Bason will somehow come to believe that it is still a mess at this time and that this is Bason’s fault, although an investigation by the House Judiciary Committee will find that “most of the district and circuit judges interviewed [who were on the reappointment committee] said that they had little or no contact with Judge Bason and were not in a position to have firsthand knowledge of the condition of his court.” Neither Bloom nor the previous clerk will be interviewed by the panel about the court’s administration and, according to Bason, there is no mechanism in place for the judges to personally evaluate it. The committee will comment: “Considering that poor administrative controls seemed to be one of the primary reasons for Judge Bason’s failed attempt at reappointment, it is unusual that neither Judge Bason nor the other individuals most responsible for the administration of the court were interviewed by the panel. Judge Robinson made a telling comment to committee investigators when he said it is unfortunate bankruptcy judges are selected by judges furthest removed from the bankruptcy court.” [US Congress, 9/10/1992]
Deputy Attorney General Arnold Burns asks his subordinates at the Justice Department’s civil division to “consider initiatives for achieving a more favorable disposition of this matter [a legal dispute between the department and Inslaw over PROMIS software].” This is apparently a reference to the possible removal of Judge George Bason from the case, as the department thinks he is biased against it (see June 19, 1987). In response to the comments, the department will draft a report about removing Bason (see After July 7, 1987). [US Congress, 9/10/1992]
Following a request from the Justice Department’s leadership (see July 7, 1987), Michael Hertz, the director of the civil division’s commercial litigation branch at the department, writes a memo entitled “Feasibility of Motion to Disqualify the Judge in Inslaw.” The department has come to believe that the judge, George Bason, is biased against it (see June 19, 1987) and hopes to challenge his findings of fact by saying they are unsupported by evidence and reflect a desire to reach a preordained conclusion. This position is mostly based on the department’s observations that some of Bason’s findings of fact are “rambling and based on deductions that are both strained and have flimsy support.” However, Hertz writes to Deputy Assistant Attorney General Stuart Schiffer that the facts simply do not support a case of bias strong enough to disqualify Bason from the remainder of the Inslaw case. Hertz adds that he is “fairly confident” that any motion to dismiss Bason would not succeed and the denial of any such motion could not be successfully challenged on appeal. He gives the following reasons:
The department has no evidence that what it views as “Bason’s incredible factual conclusions or alleged bias” actually stem from an extrajudicial source, as the case law requires;
Adverse factual findings and inferences against the government are not enough to support a claim of bias; and
Adverse credibility rulings about some of the government’s witnesses in a prior phase of the proceedings are not on their own sufficient to disqualify Bason from the rest of the proceedings.
Hertz says that attempting to demonstrate bias by Bason could adversely affect any future appeal by the department on the findings of fact. He also advises Schiffer that as much as the department may disagree with
Bason’s findings: “[T]hey are not mere conclusory statements. Instead they reflect a relatively detailed judicial analysis of the evidence, including reasons for believing certain witnesses and disbelieving others, as well as consideration of what inferences might or might not be drawn from the evidence.” [US Congress, 9/10/1992] Despite this, the department will twice attempt to get Bason recused, failing both times (see January 19, 1988 and January 25, 1988).
Assistant Attorney General Richard Willard reports to Deputy Attorney General Arnold Burns about the Inslaw case. Willard says that the Justice Department has developed a good trial record, but: “[T]here is virtually no reason for optimism about the judge’s ruling. Even though our witnesses performed admirably and we believe we clearly have the better case, Judge Bason made it apparent in a number of ways that he is not favorably disposed to our position.” The department has been trying to have Bason removed from the case for some time (see June 19, 1987) and he will soon rule in favor of Inslaw (see September 28, 1987). [US Congress, 9/10/1992]
Judge George Bason of the Bankruptcy Court for the District of Columbia issues an oral finding that the Justice Department “took, converted, and stole” the enhanced version of Inslaw’s PROMIS software by “trickery, fraud, and deceit.” The ruling is issued at the end of a trial that lasts over two weeks and involves sworn statements from over 40 witnesses and thousands of pages of documentary evidence. Bason finds that a key departmental official, project manager C. Madison Brewer, was biased against Inslaw (see April 1982, April 14, 1982, and April 19, 1982). In addition, Brewer’s boss Lowell Jensen (see December 29, 1983 and February 1984) is said to have “a previously developed negative attitude about PROMIS and Inslaw,” because he had been associated with the development of a rival case management system while he was a district attorney in California, and this affected his judgment throughout his oversight of the contract. Further, the department violated bankruptcy protection legislation that applied to Inslaw by using and exercising control over Inslaw’s property—the enhanced PROMIS software—without negotiating a license fee. This oral finding is confirmed in a written opinion issued on January 25, 1988. In the written finding, Bason adds, “[T]his court finds and concludes that the department never intended to meet its commitment and that once the department had received enhanced PROMIS pursuant to Modification 12 (see April 11, 1983), the department thereafter refused to bargain in good faith with Inslaw and instead engaged in an outrageous, deceitful, fraudulent game of ‘cat and mouse,’ demonstrating contempt for both the law and any principle of fair dealing.” [US Congress, 9/10/1992]
Stuart Schiffer, deputy assistant attorney general for the Justice Department’s civil division, writes to Richard Willard, the assistant attorney general for the civil division, about the Inslaw case. Schiffer writes: “[Judge George] Bason has scheduled the next [Inslaw] trial for February 2 . Coincidentally, it has been my understanding that February 1  is the date on which he [Bason] will either be reappointed or replaced.” Bason had ruled in favor of Inslaw (see September 28, 1987) and the department had been trying to have him removed from the case for months (see June 19, 1987). After Bason’s bid for reappointment fails (see December 15, 1987), he will say that the department used its influence against him (see December 5, 1990). [US Congress, 9/10/1992]
An official written report is drafted for the panel considering the appointment of a judge to the Bankruptcy Court to the District of Columbia. The two-page report briefly assesses the final four candidates, including the incumbent George Bason, who is, however, at loggerheads with the Justice Department over his handling of the Inslaw case (see June 19, 1987 and September 28, 1987). However, another—longer but unofficial—report will be drafted two weeks later and will be critical of Bason (see December 8, 1987). [US Congress, 9/10/1992]
An apparently unofficial, confidential memo marked “read and destroy” is drafted about the four final candidates for the position of judge at the Bankruptcy Court for the District of Columbia. The memo is clearly critical of the incumbent, George Bason, who is up for reappointment. Bason recently displeased the Justice Department by ruling against it in the Inslaw affair over the alleged theft of enhanced PROMIS software (see September 28, 1987). The memo states that “its purpose is to ‘help’ elucidate in particular our reasoning in ranking the candidates as we did,” and describes each of the four. The House Judiciary Committee will comment: “What is striking about the memorandum is that the description of each candidate except Judge Bason begins with positive commentary about the individual. The section describing Judge Bason begins, ‘I could not conclude that Judge Bason was incompetent.’ Other phrases used to describe Judge Bason include ‘he is inclined to make mountains out of molehills,’ ‘Judge Bason seems to have developed a pronounced and unrelenting reputation for favoring debtors,’ and finally, ‘Judge Bason evidenced no inclination to come to grips personally with the management challenge posed by the terrible shortcomings of the Office of the Clerk of our Bankruptcy Court.’” The memo is addressed to Judge Norma Johnson, who Bason will allege may have been an instrument of a campaign waged against him by the Justice Department (see May 1988). The panel appointing the bankruptcy court judge will meet a week later and decide not to give the position to Bason, but to a Justice Department lawyer who represented the government in the Inslaw case (see December 15, 1987). After Bason asks appeals court judges to reconsider his non-reappointment (see January 12, 1988), the memo will be circulated to them. The memo is unsigned, but an appeals court judge who later provides the memo to the House Judiciary Committee investigating the Inslaw affair will say another judge on the appointment panel drafted it. However, this judge will deny having done so. When, some years later, several members of the panel are asked by the committee whether they saw this memo, they will say they do not recognize it. [US Congress, 9/10/1992]
George Bason, a bankruptcy judge who recently found in favor of Inslaw in a dispute over the Justice Department’s alleged theft of enhanced PROMIS software (see September 28, 1987), is not reappointed to the bench. Bason had been appointed in February 1984 instead of another judge who had resigned mid-term, but a decision is now taken to replace him with a Justice Department attorney named Martin Teel, who had appeared before him in the Inslaw case. Although the official report for the appointments panel about the candidates did not criticize Bason (see November 24, 1987), a subsequent unofficial report addressed to Norma Johnson, the head of the panel, did (see December 8, 1987). The unofficial report claimed that there were shortcomings in Bason’s administration of the clerk’s office, although the office appears to be running smoothly by this time (see Second Half of 1987). Several judges on the selection council will later say they did not know much about the candidates, and therefore relied on Johnson and her interpretation of reports prepared about them. The House Judiciary Committee will find that Johnson’s oral presentation “played a large role in the selection,” that Johnson ran the panel “firmly,” and that the other members “relied on her judgment.” Overall, it will call the selection process “largely informal, undocumented, and highly subjective.” Bason learns he will not be reappointed from Chief Judge Patricia Wald, of the US Court of Appeals, on December 28. Bason will later say that Teel was not qualified for the position (see January 12, 1988) and that the department had influenced the selection process in order to have him removed from the bench (see December 5, 1990). In this context, Bason will point out to the House committee that Johnson had previously worked with a departmental official named Stuart Schiffer, so he could have influenced her against Bason (see May 1988). Bason will also note that Johnson worked with Judge Tim Murphy for 10 years from 1970, and that Murphy had later worked as the assistant director on the implementation of PROMIS at the Justice Department. [US Congress, 9/10/1992]
George Bason, a bankruptcy judge who ruled in favor of Inslaw in a dispute with the Justice Department over the alleged theft of PROMIS software (see September 28, 1987) and was subsequently not reappointed to the bench (see December 15, 1987), requests a hearing on his non-reappointment before the Judicial Council of the District of Columbia. Bason criticizes the other candidate, Justice Department official Martin Teel, who was given the position, saying he has “a considerably shorter total period of legal experience,” as he has mostly worked on taxation matters, not bankruptcy, and for the last few years has worked as a reviewer and then manager, without doing his own independent work. Teel will dispute this characterization in a letter to the House Judiciary Committee, saying he was qualified and, when appointed, had “six years of fairly extensive bankruptcy experience.” The request for a hearing will not change the decision to not reappoint Bason. [US Congress, 9/10/1992]
The Justice Department files a motion that bankruptcy court judge George Bason recuse himself from further participation in a case over the bankruptcy of Inslaw and the department’s alleged theft of the enhanced PROMIS application, saying that he is biased against the department. Bason had ruled in favor of Inslaw (see September 28, 1987) and the department has been trying to have him removed from the case for months (see June 19, 1987). The motion is filed despite a report from Michael Hertz, the director of the civil division’s commercial litigation branch at the department, saying that such a move would not succeed (see After July 7, 1987). The bankruptcy court denies the motion three days later. [US Congress, 9/10/1992] The department will make a similar request later in the month (see January 25, 1988).
The Justice Department again tries to get Judge George Bason removed from the Inslaw case over the company’s bankruptcy and the department’s alleged theft of an enhanced version of the PROMIS software. Bason had ruled in favor of Inslaw (see September 28, 1987) and the department has been trying to have him removed from the case for months (see June 19, 1987). Following the failure of a recusal motion to Bason (see January 19, 1988), the department argues a motion before Chief Judge of the District Court for Columbia Aubrey Robinson for a writ of mandamus directing Judge Bason to recuse himself over allegations of bias. Robinson denies the department’s writ, ruling: “I can’t see anything in this record that measures up to the standards that would be applicable to force another judge to take over this case. There isn’t any doubt in my mind, for example, that the declaration filed by the Justice Department in support of the original motion is inadequate.” When the department appeals Bason’s ruling (see Between February 2, 1988 and November 22, 1989), it will again raise the issue of recusal, but District Court Judge William Bryant will say, “This court like the courts before it can find no basis in fact to support a motion for recusal.” [US Congress, 9/10/1992]
The Bankruptcy Court for the District of Columbia awards $8 million in damages to Inslaw in the dispute over the Justice Department’s use of the enhanced PROMIS software. The decision follows on from a ruling by the court that the department had violated Inslaw’s automatic stay bankruptcy protection rights by using and copying an enhanced version of Inslaw’s PROMIS software (see September 28, 1987). The award consists of $6.8 million in actual and punitive damages, as well as $1.2 million in attorneys’ fees. [US Congress, 9/10/1992]
A news reporter tells George Bason, a bankruptcy judge who found in favor of Inslaw in a dispute over the alleged theft of enhanced PROMIS software (see September 28, 1987), that his failure to be reappointed to the bench was because of pressure from the Justice Department. According to the House Judiciary Committee, Bason says that the reporter has “excellent contacts and sources in the department.” Bason will say the reporter suggests his removal from the bench could have been procured as follows: “The district judge chairperson of the Merit Selection Panel [Judge Norma Johnson, who was crucial to his non-reappointment (see December 15, 1987)] could have been approached privately and informally by one of her old and trusted friends from her days in the Justice Department. He could have told her that I was mentally unbalanced, as evidenced by my unusually forceful ‘anti-government’ opinions. Her persuasive powers coupled with the fact that other members of the panel or their law firms might appear before her as litigating attorneys could cause them to vote with her.” The reporter also tells Bason that a high-level department official has boasted to him that Bason’s removal was because of his rulings on the Inslaw affair. [US Congress, 9/10/1992]
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