[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4862 Introduced in House (IH)]
103d CONGRESS
2d Session
H. R. 4862
For the relief of INSLAW, INC., a Delaware Corporation, and William A.
Hamilton and Nancy Hamilton, individually.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 29, 1994
Mr. Rose introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
For the relief of INSLAW, INC., a Delaware Corporation, and William A.
Hamilton and Nancy Hamilton, individually.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That jurisdiction be,
and the same is hereby, conferred upon the United States Court of
Federal Claims to hear, determine, and render judgment upon the claims
of INSLAW, INC., a Delaware Corporation, and William A. Hamilton and
Nancy Hamilton, individually, as hereinafter described and in the
manner set out, which claims arise out of the furnishing of computer
software and services to the United States Department of Justice.
SECTION 1. FINDINGS OF THE HOUSE COMMITTEE ON THE JUDICIARY.
That the findings of the House Committee on the Judiciary in the
INSLAW Affairs, dated September 10, 1992, and committed to the
Committee of the Whole House on the State of the Union are hereby
reaffirmed and adopted, verbatim herein, as follows:
``(1) The Department, in an attempt to implement a
standardized case management system, ignored advice from
vendors--including INSLAW--that PROMIS should not be adapted to
word processing equipment. As predicted, problems arose with
adapting PROMIS to word processing equipment. The Department
immediately set out to terminate that portion of the contract
and blamed INSLAW for its failure.
``(2) The Department exhibited extremely poor judgment by
assigning C. Madison Brewer to manage the PROMIS implementation
contract. Mr. Brewer had been asked to leave his position as
general counsel of INSLAW under strained relations with
INSLAW's owner, Mr. William Hamilton. INSLAW's problems with
the Department, which started almost immediately after the
award of the contract in March 1982, were generated in large
part by Mr. Brewer, with the support and direction of high
level Department officials. The potential conflict of interest
in the hiring of Mr. Brewer was not considered by Department
officials. However, Mr. Brewer's past strained relationship
with Mr. Hamilton, and the fact that he lacked experience in
ADP management and understanding of Federal procurement laws,
raises serious questions about why he was selected as the
PROMIS project manager.
``(3) Mr. Brewer's attitude toward INSLAW, combined with
Mr. Videnieks' harsh contract philosophy, led to the rapid
deterioration of relations between the Department and INSLAW.
Any semblance of fairness by key Department officials toward
INSLAW quickly evaporated when Mr. Hamilton attempted to
protect his companies' proprietary rights to a privately funded
enhanced version of the PROMIS software. In a highly unusual
move, Mr. Brewer recommended just 1 month after the contract
was signed that INSLAW be terminated for convenience of the
Government even though INSLAW was performing under the
contract. From that point forward there is no indication that
Mr. Brewer or Mr. Videnieks ever deviated from their plan to
harm INSLAW. The actions taken by Messrs. Brewer and Videnieks
were done with the full knowledge and support of high level
Department officials.
``(4) Peter Videnieks, the Department's contracting
officer, negotiated Modification 12 of the contract which
resulted in INSLAW agreeing to provide its proprietary Enhanced
PROMIS software for the Department's use. This negotiation was
conducted in bad faith because Justice later refused to
recognize INSLAW's rights to privately financed PROMIS
enhancements. Mr. Videnieks and Mr. Brewer, supported by Deputy
Attorney General Jensen and other high level officials,
Unilaterally concluded that the Department was not bound by the
property laws that applied to privately developed and financed
software.
``(5) Therefore, the Department ignored INSLAW's data
rights to its enhanced version of its PROMIS software and
misused its prosecutorial and litigative resources to
legitimize and cover up its misdeeds. This resulted in
extremely protracted litigation and an immense waste of
resources both for the Government and INSLAW. These action were
taken even though the Department had already determined that
INSLAW's claim was probably justified and that the Department
would lose in court. In fact, Deputy Attorney General Burns
acknowledged this fact to OPR investigators.
``(6) Department of Justice documents show that a `public
domain' version of the PROMIS software was sent to domestic and
international entities including Israel. Given the Department's
position regarding its ownership of all versions of PROMIS,
questions remain whether INSLAW's Enhanced PROMIS was
distributed by Department officials to numerous sources outside
the Department, including foreign governments.
``(7) Several witnesses, including former Attorney General
Elliot Richardson, have provided testimony, sworn statements or
affidavits linking high level Department officials to a
conspiracy to steal INSLAW's PROMIS software and secretly
transfer PROMIS to Dr. Brian. According to these witnesses, the
PROMIS software was subsequently converted for use by domestic
and foreign intelligence services. This testimony was provided
by individuals who knew that the Justice Department would be
inclined to prosecute them for perjury if they lied under oath.
No such prosecutions have occurred.
``(8) Justice had made little effort to resolve conflicting
and possibly perjurious sworn statements by key departmental
witnesses about the alleged attempt by high level Department
officials to liquidate INSLAW and steal its software. It is
very possible that Judge Blackshear may have perjured himself
and even today his explanations for his recantation of his
sworn statement provided to INSLAW are highly suspicious. The
investigation of this matter by the Department's Office of
Professional Responsibility was superficial.
``(9) The Department's response to INSLAW's requests for
investigations by an independent counsel and the Public
Integrity Section was cursory and incomplete.
``(10) The reviews of the INSLAW matter by Congress were
hampered by Department tactics designed to conceal many
significant documents and otherwise interfere with an
independent review. The Department actions appear to have been
motivated more by an intense desire to defend itself from
INSLAW's charges of misconduct rather than investigating
possible violations of the law.
``(11) Justice officials have asserted that, as a result of
the recent ruling by the Appeals Court and the refusal of the
Supreme Court to hear INSLAW's appeal, the Findings and
Conclusions of Bankruptcy Judge George Bason and senior Judge
William Bryant of the District Court are no longer relevant.
The Appeals Court decision, in fact, did not dispute the
Bankruptcy Court's ruling that the Department ``stole . . .
through trickery, fraud and deceit'' INSLAW's PROMIS software.
Its decision was based primarily on the narrow question of
whether the Bankruptcy Court had jurisdiction; the Appeals
Court ruled that it did not. This decision in no way vindicates
the Department nor should it be used to insulate Justice from
the criticism it deserves over the mishandling of the INSLAW
contract.
``(12) The Justice Department continues to improperly use
INSLAW's proprietary software in blatant disregard of the
findings of two courts and well established property law. This
fact coupled with the general lack of fairness exhibited by
Justice officials throughout this affair is unbefitting of the
agency entrusted with enforcing our Nation's laws.
``(13) Further investigation into the circumstances
surrounding Daniel Casolaro's death is needed.
``(14) The following criminal statutes may have been
violated by certain high level Justice officials and private
individuals:
``18 U.S.C. Sec. 371--Conspiracy to commit an
offense.
``18 U.S.C. Sec. 654--Officer or employee of the
United States converting the property of another.
``18 U.S.C. Sec. 1341--Fraud.
``18 U.S.C. Sec. 1343--Wire fraud.
``18 U.S.C. Sec. 1505--Obstruction of proceedings
before departments, agencies and committees.
``18 U.S.C. Sec. 1512--Tampering with a witness.
``18 U.S.C. Sec. 1513--Retaliation against a
witness.
``18 U.S.C. Sec. 1621--Perjury.
``18 U.S.C. Sec. 1951--Interference with commerce
by threats or violence (RICO).
``18 U.S.C. Sec. 1961 et seq.--Racketeer Influenced
and Corrupt Organizations.
``18 U.S.C. Sec. 2314--Transportation of stolen
goods, securities, moneys.
``18 U.S.C. Sec. 2315--Receiving stolen goods.
``(15) Several key documents subpoenaed by the committee on
July 25, 1991, were reported missing or lost by the Department.
While Justice officials have indicated that this involves only
a limited number of documents, it was impossible to ascertain
how many documents or files were missing because the Department
did not have a complete index of the INSLAW materials. The
Department failed to conduct a formal investigation to
determine whether the subpoenaed documents were stolen or
illegally destroyed.'' Investigative Report by the Committee on
the Judiciary, THE INSLAW AFFAIR, Report 102-857, pp. 110-113.
SEC. 2. SATISFACTION OF CLAIMS AGAINST THE UNITED STATES.
The Secretary of the Treasury shall pay, out of money in the
Treasury not otherwise appropriated:
(1) To INSLAW, INC. (INSLAW) an amount of money in
compensation for any and all direct, consequential, incidental
and/or punitive damages sustained by INSLAW as a result of a
negligent or wrongful act, or acts, or failure to act, on the
part of the United States Department of Justice (DOJ), its
officials, officers, employees, and agents, and other United
States agencies, their officials, officers, employees and
agents. The negligent or wrongful acts of the aforestated
agencies of the United States government arise out of complex
issues of fact, and involve willful, wanton and malicious
breaches of contract, tortious activity, deceit, trickery,
conversion, copyright and trademark infringement, abuse of
software licensing agreements, and other such unjustified,
egregious and fraudulent conduct of officials and agents of the
United States government, relating to the unauthorized use and/
or dissemination and/or conversion, theft or other
misappropriation, of computer software proprietary to INSLAW,
including INSLAW's PROMIS software and INSLAW's Enhanced PROMIS
software, and/or a conspiracy to sell, transfer and distribute
INSLAW's Enhanced PROMIS software to other Federal agencies
and/or foreign governments and/or agencies, all to the damage
of INSLAW in the loss of its software, service contracts, loss
or termination of business relationships with other companies
or entities, and the loss of the profits thereof, and the
prevention of growth that INSLAW would otherwise have had, all
to the unjust enrichment of the DOJ, other government agencies,
and officials, officers, agents and employees of such agencies,
as well as other persons, entities and conspirators.
(2) To William A. Hamilton and Nancy Hamilton,
individually, any and all direct, consequential, incidental
and/or punitive damages, and/or all reasonable legal expenses
and other costs to the Hamiltons, not directly related to the
contract between INSLAW and DOJ, but caused by the actions
taken by DOJ, its officials, officers, employees and agents to
harm INSLAW or its officers and/or employees.
SEC. 3. WAIVER OF SOVEREIGN IMMUNITY AND DEFENSES.
(a) Any available defense of sovereign immunity of the United
States, the DOJ, any other United States government agency, or any
United States government official, officer, agent or employee is
specifically waived as to the respective claims of INSLAW, William A.
Hamilton and Nancy Hamilton, and the amounts payable to them under
section 2 above.
(b) INSLAW, INC., William A. Hamilton and Nancy Hamilton shall each
be entitled to payment of said claims notwithstanding any defense
pertaining to lack of personal and/or subject matter jurisdiction,
statutes of limitation, statutes of repose, statute of frauds, laches,
stare decisis, waiver, estoppel, including, but not limited to,
judicial estoppel, equitable estoppel, collateral estoppel, estoppel by
judgment and promissory estoppel, res judicata, failure to exhaust all
legal remedies, administrative or otherwise, payment, accord and
satisfaction, release, pendency of claims in others courts, tribunals
or departments, or any other equitable or legal defense that might have
otherwise been available to the United States, the Department of
Justice, or any other United States agencies, and their respective
officials, officers, employees, agents and/or conspirators, all such
defenses being hereby waived with respect to the claims of INSLAW, and/
or William A. Hamilton and Nancy Hamilton, individually, and the
amounts payable under section 2.
(c) The amounts payable under section 2 shall be in satisfaction of
all claims, legal or equitable, by INSLAW, William A. Hamilton and
Nancy Hamilton, individually, against the United States of America, any
agency thereof, or its officials, officers, employees, agents and/or
conspirators, and shall include interest accrued on all damages,
attorneys' fees and expenses.
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