United States District Court, D. Maryland
MEMORANDUM AND ORDER
J. Garbis United States District Judge
Court has before it the Government's Motion to Vacate ECF
165 and Court's Order, ECF 166 [ECF No. 167] and the
materials submitted relating thereto. The Court finds that a
hearing is unnecessary.
settlement conference before Magistrate Judge Copperthite,
counsel for the United States, Assistant United States
Attorney (“AUSA”) McDonald and counsel for Mary
VanSickle of the law firm of Brown & Nieto reached the
agreement reflected in the filed joint status report [ECF No.
164], which states:
“The parties have agreed in principle to a resolution
of claims specific to Mary Vansickle. ECF 107. Ms. Vansickle
has agreed to dismiss her claims, and the government has
agreed that it will not seek to amend the Samuel Vansickle
forfeiture order to include his mortgage on her home on
Blackwood Road. As soon as the parties have agreed on
the language of a joint motion and proposed order, it will be
submitted to Judge Garbis.”
Status Report at 1, ECF No. 164 (emphasis added). Thereafter,
Brown & Nieto drafted a proposed “Joint Motion to
Dismiss Motion to Set Aside Forfeiture” that stated:
“The United States agrees that it will not pursue any
new or additional forfeitures related to this case against
Mary VanSickle.” ECF No. 165.
draft was sent to Government counsel on September 13 for
approval. AUSA McDonald was absent from the
office on this date, but the draft was read by her
supervisor, AUSA Shea, who - without communication with AUSA
McDonald - approved the draft and gave permission for Brown
& Nieto to file it. In doing so, Mr. Shea stated that
Brown & Nieto could use Ms. McDonald's signature
September 21 at 12:30 P.M., Brown & Nieto filed the draft
as a Joint Motion [ECF No. 165]. The Joint Motion reflected
that it had been signed by C. Justin Brown and AUSA McDonald,
although AUSA McDonald had not agreed to the motion or signed
it. AUSA McDonald received a copy of the filed document and
promptly, at 3:22 P.M. on September 21, spoke to a Brown
& Nieto attorney. She communicated her disagreement with
the draft and proposed using the agreed language in the Joint
Status Report. Following this call, she sent an amended draft
to Brown & Nieto but did not receive a response.
parties contacted chambers regarding the Joint Motion but
offered differing positions. AUSA McDonald states that she
called chambers to ask that the motion not be ruled upon.
However, the Government did not file anything formal
indicating that the Joint Motion did not accurately reflect
the agreement of AUSA McDonald. Parties also state that
chambers corresponded with an attorney at Brown & Nieto,
who indicated that no additional or amended motions would be
October 6, the Court, believing that the Joint Motion was
agreed upon, granted the motion.
instant motion, the United States seeks to have the Court
vacate its granting of the Joint Motion. The Government notes
that the drafting issue may be moot because the Government is
not aware of any assets upon which it could base a claim
against Mary VanSickle. But the Government contends that it
should not be held to have agreed not to pursue any
forfeiture claim against Mary VanSickle of which it may
become aware in the future.
Court finds that it issued the Order [ECF No. 166] granting
the Joint Motion by virtue of its erroneous belief that its
action was in accordance with the parties' agreement.
However, Government counsel had promptly communicated to
Brown & Nieto that the proposed Order was not agreed upon
within 3 hours of its filing, on September 21 at 3:22 P.M.
While Brown & Nieto may contend that the motion would
have been granted even if contested, once they were aware
that there was no agreement, they should promptly have
ensured that the Court was not misled.Thus, the Court finds
that it must rescind its grant of the Joint Motion.
course, this rescission does not resolve the question of
whether the Government is bound by the agreement stated in
the draft submitted as the Joint Motion. The parties have not
yet reached agreement upon the reduction to writing of the
oral agreement stated in the Joint Status Report. If the
parties can do so, they may reach such an agreement. If the
parties cannot agree, they may pursue their legal rights. For
example, Mary VanSickle would be free to seek to enforce what
she may contend is the binding agreement of AUSA Shea to her
proposed draft Joint Motion. Such a motion would require
consideration of whether there was a mistake by AUSA Shea and
whether there was any reliance by Mary VanSickle upon the
agreement as stated by AUSA Shea. Also, the Government may be
able to seek to enforce a right to have a contract using the
language set forth in the agreement stated in the Joint
1. The Government's Motion to Vacate ECF 165 and
Court's Order, ECF 166 [ECF ...