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Collateral Estoppel Bars $17 Million FTCA Claim Against Judges

By Robyn Hagan Cain on October 21, 2011 | Last updated on March 21, 2019

Suspension from legal practice may be embarrassing, but it's not the end of the world. Some attorneys might take up a new hobby during suspension. Others would bide their time contracting as a researcher. Alexander Zeno passed his suspension time with a $17 million pro se lawsuit against the Justice Department under the Federal Tort Claims Act (FTCA).

Zeno is a criminal defense attorney who practices law primarily in Puerto Rico. He currently resides in Maryland, (which explains how this case made its way to the Fourth Circuit Court of Appeals).

In 2007, the United States District Court for the District of Puerto Rico sanctioned Zeno. Consequently, he was suspended from the practice of law before that court for 3 months and from the court's Criminal Justice Act (CJA) panel for 15 months. Zeno appealed the sanctions to the First Circuit Court of Appeals, which affirmed the Puerto Rico district court.

Later that year, Zeno filed suit pro se in the United States District Court for the District of Maryland against several federal judges in the Puerto Rico District Court and the First Circuit seeking injunctive relief and damages. Zeno claimed that the judges had abused their authority by sanctioning him, and by withholding or delaying payments he was owed for representing CJA defendants.

Zeno subsequently added the U.S. Attorney and several Assistant U.S. Attorneys for the District of Puerto Rico, alleging that the federal prosecutors had improperly interfered with Zeno's attorney-client relationship with a criminal defendant, and that they had violated Zeno's privacy rights by requesting to inspect Zeno's financial records in connection with his representation of a different criminal defendant.

Zeno filed an administrative tort claim with the Department of Justice, seeking $17 million in damages under the FTCA based upon the same conduct described in his 2007 complaint. The Administrative Office of the United States Courts denied Zeno's claim in 2008. The letter notified Zeno of his right to challenge the decision by bringing suit in a federal district court within six months of its mailing.

Zeno challenged, but missed the deadline.

This week, the Fourth Circuit Court of Appeals affirmed dismissal of Zeno's FTCA claims in an unpublished opinion, finding that Zeno filed after the expiration of the relevant statute of limitations, and that his claims were barred by collateral estoppel.

Collateral estoppel serves to "foreclose the relitigation of issues of fact or law that are identical to issues which have been actually determined and necessarily decided in prior litigation in which the party against whom [collateral estoppel] is asserted had a full and fair opportunity to litigate." Here, the Fourth Circuit Court of Appeals found that Zeno's claims were the same as those previously litigated in his 2007 suit in Puerto Rico, and were subject to collateral estoppel.

What would you do if you were in Zeno's shoes? Is an FTCA claim the proper route to remedy, or should Zeno have taken the more traditional route of filing a judicial misconduct claim?

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