On Monday, March 18, 2024, the Metropolitan News-Enterprise reported that the Ninth Circuit Court of Appeals publicly reprimanded a former U.S. attorney for his role in a frivolous legal effort.

The article described how the Ninth Circuit publicly reprimanded Gregory A. Vega, a former U.S. attorney for the Southern District of California, for his involvement in seeking reconsideration of an attorney fee order in federal district court. The reconsideration motion had claimed there was newly discovered evidence to challenge the fee award, but the evidence was actually not new at all. Vega was also involved in an appeal of the denial of the reconsideration motion, which the Ninth Circuit found to be frivolous.

Vega is currently a shareholder at the San Diego law firm Seltzer Caplan McMahon Vitek, where he chairs the Litigation Department. In addition to his previous role as U.S. attorney from 1999 to 2001, Vega had an extensive legal career, including positions like president of the National Association of Former United States Attorneys. However, his involvement in the frivolous reconsideration effort and appeal led to a public reprimand from the Ninth Circuit.

The fee order in question is related to an underlying 2018 False Claims Act lawsuit brought by a competitor and whistleblower against Tungsten Heavy Powder, Inc. (THP). That case alleged THP falsely certified materials supplied to Israel under a U.S. defense contract actually came from China rather than the U.S. as required. The case was ultimately settled for over $5 million. The district court then awarded over $500,000 in attorney fees to the plaintiffs, a ruling which was upheld by the Ninth Circuit.

Vega’s law firm represented THP in seeking reconsideration of the fee award in district court. An associate at Vega’s firm drafted an application claiming there was newly discovered evidence to challenge the award under Rule 60(b)(2), but the evidence was actually known to THP and Vega’s firm earlier in related litigation in federal court in Wyoming. The district court denied reconsideration based on an affidavit filed in the Wyoming case.

Vega was faulted for “blindly accepting” the associate’s faulty argument about newly discovered evidence without properly investigating the facts and law himself. He then also participated in the frivolous appeal of the reconsideration denial to the Ninth Circuit. The appeals court found Vega should have known the evidence was not actually new based on his experience.

The Ninth Circuit’s sanctions order held Vega personally liable for up to 20% of the sanctions imposed, approximately $49,000. Two other lawyers involved were also sanctioned, but only Vega received discipline in the form of a public reprimand. Special Master Richard Tallman, a Ninth Circuit judge appointed to handle the disciplinary matter, recommended the public reprimand for Vega after an evidentiary hearing where Vega took responsibility for his errors.

Tallman distinguished Vega’s role from that of lawyers suspended in a prior Ninth Circuit case, noting Vega did not participate in drafting the actual appellate briefs or have as extensive involvement in the entire frivolous litigation. While a serious issue, Tallman felt a public reprimand rather than a suspension was the appropriate level of discipline for Vega. The Ninth Circuit judges fully agreed with and adopted Tallman’s recommendation.

Vega’s attorney commented that his client had an otherwise long career of integrity and was disappointed in the conclusion, noting Vega had not participated in drafting the appellate briefs or been consulted on the actual grounds for appeal. However, Vega accepted responsibility for the misrepresentations in the reconsideration motion he had signed despite not thoroughly checking the associate’s work.

The sanctions order also imposed liability on the associate who drafted the reconsideration motion, THP’s in-house counsel, and clarified another lawyer was not disciplined. Overall, the Ninth Circuit’s public reprimand of Vega served as a reminder that even experienced attorneys must properly vet factual and legal arguments presented to the court instead of blindly relying on subordinates. It underscored the seriousness of participating in reconsideration efforts and appeals lacking merit.

Source: Metropolitan News-Enterprise