Indispensable Party (Sasha McCandless Legal Thriller No. 4) (23 page)

“What’s it mean to be an
indispensable party?”

Sasha considered her answer for a
moment.

“Okay, this is a little bit of an
oversimplification, but under the Federal Rules of Civil Procedure—Rule 19, to
be exact—all parties who have an interest in the outcome of a case have to be
included in a case. It’s called mandatory joinder, and it’s a good rule.” She
continued, warming to her subject. “The purpose of Rule 19 is to consolidate
litigation. Let’s say you, Naya, and I start a business together and it falls
apart. I can’t sue for damages, claiming you ran it into the ground unless Naya
is in the case, too. Because resolving my case without also addressing any
claims she might have wouldn’t dispose of the case. It wouldn’t be a good use
of judicial resources. Are you with me so far?”

“Sure. It sounds like a reasonable
approach,” he said.

“It is, except for the fact that
Rule 19 has been turned on its head. Instead of being used as a tool to bring
people into court to ensure conflicts get resolved in their entirety, it’s
routinely used to shut down a case entirely.”

“How?” he asked.

He took her arm as they crossed a
cobblestone alley. The last thing he needed was for her to twist an ankle in
her ridiculous boots. He half-expected her to shake his hand off, but instead
she covered it with her own gloved hand and smiled up at him before continuing
with the civil procedure lesson.

“In a lot of cases, when a
governmental entity or foreign sovereign has an interest that would merit
mandatory joinder, the case ends up being dismissed because those parties have
sovereign immunity. They can’t be sued unless they consent to the court’s
jurisdiction. And dismissal of the whole case could keep the plaintiff out of
court for good because there’s no other forum that can exercise jurisdiction
over the matter. That’s
not
what the rule was intended to do.”

Sasha shook her head, her green
eyes dark with annoyance at the misuse of the rule.

Leo still wasn’t following the
argument. His antenna, finely tuned to governmental bureaucracy, vibrated:
something was off.

“So, even though you told the
government lawyers today that the details of our contract to supply the
vaccines wouldn’t need to come in to court, the CIA is saying it will?”

She spread her hands wide,
signaling she was at a loss herself. “Beats me, Connelly. I would expect
ViraGene to make the argument, maybe. But, I can’t see a reason for any third
party to stand up and say, no, this really does involve us,
especially
when the moving party has explicitly said it doesn’t. And I can’t see what the
CIA has to do with a domestic contract anyway. But, honestly, it doesn’t matter.
Judge Minella had the discretion to do what he did, even if the CIA hadn’t sent
a lawyer. But, he’s not an idiot, he’s a federal judge. I’m sure he reached out
to someone in the government who put him in touch with Bardman. Now his ruling
is basically appeal-proof, because I doubt the Court of Appeals would find he
abused his discretion now that the United States said it’s an indispensable
party and it won’t waive its immunity and consent to jurisdiction.”

Leo pondered this development.

“What?” she demanded.

Startled, he met her angry gaze. “What
what?”

“You’re ruminating. I can tell
you have a theory, Connelly. Spit it out.”

He smiled despite himself. To a
person, everyone who knew him called him unreadable. He suspected they’d call
him inscrutable if they weren’t afraid it would sound racist. His expressions
and gestures never provided a clue as to what he was thinking or feeling to
anyone—except Sasha.

“The judge didn’t call the CIA.
They called him, guaranteed. National security issue override,” he said, more
to himself than to her.

Although all the participating
agencies had assigned experienced employees to the task force, the only
decision maker in the room had been Hank. He ran through his memory of the CIA’s
structure.

Sasha waited.

“Bardman doesn’t call the shots.
He’s the equivalent of some mid-level associate in private practice. After the
task force meeting, he reported back to his boss, who probably briefed the
General Counsel. That’s a Presidential appointment, so he has a lot of
authority. But given the specter of a pandemic, I’d guess he’s in constant
contact right now with the Director, too,” Leo explained.

“Are you saying the Director of
the Central Intelligence Agency personally intervened to prevent a civil
lawsuit between two private entities?”

He kept his tone mild when he
answered. “I’m saying it’s not unthinkable. And maybe I have it all wrong;
maybe ViraGene has its hooks in someone at GAO, and that’s where the pressure
came from. Or maybe this judge did take the initiative. But, unless the
government has changed pretty dramatically in the last few months, the first
and most important job right now, across all agencies, will be finding and
containing the virus. The second most important job will be disaster
planning—having contingency plans in place to respond to and contain an
outbreak of the killer flu, with a strong emphasis on preventing panic. And our
temporary restraining order probably wouldn’t have impacted the first part, but
I can see an argument that the news of the vaccine manufacturer suing a
competitor for unspecific bad behavior could undermine confidence in the
government’s abilities to handle any outbreak.”

Sasha considered this. “Well,
Esposito did lead with a national security argument, but Judge Minella shut her
down pretty fast. That was probably to keep us in the dark. And it explains his
refusal to put the hearing on the record.”

They stopped in front of the
parking garage and looked at each other. Leo could read in her face that they
were having the same thought: they were in way over their heads.
Again.

Gavin floated in
and out of wakefulness. He didn’t know what time it was when he heard the
voices outside his cabin but he strained to listen, pressing his ear right up
against the wall by his bed.

He could make out Bricker’s
booming voice, and one other voice. He thought he recognized the other man as
Rollins. It sounded as though they were right outside the window.

That would make sense. The cabin
was set off from the others and, by the window, the group wouldn’t be visible
from either the recreation center or the perimeter where the sentries
patrolled. It seemed to Gavin to be a good spot for conspirators to meet.

He listened hard, trying to keep
his wheezing breath quiet so he could hear.

“Tomorrow, we move,” Bricker
said.

The man who Gavin believed to be
Rollins spoke in an uncertain voice. “Sir, I don’t understand.”

“Which part escapes you, George?”
Bricker asked, exasperated.

Gavin nodded to himself. Yep, it
was Rollins all right.

“Sir, more than two hundred
members have already reported and been vaccinated. We have reports that another
fifty to seventy-five are on their way. The organization has responded. We’re
going to weather any storm that comes. If the virus strikes, we’ll survive. But
… if I understand you correctly, you want to attack the government. I’m just
not sure I follow,” Rollins said in a quick, apologetic voice.

“George, it’s not an attack. It’s
a warning. Yes, we’re safe, but what about all the civilians out there who are
counting on their leaders to protect them? They’re exposed, vulnerable. We need
to send a message. A message to the government to take care of its people and a
message to the people to learn to take care of themselves.” Bricker’s voice
took on the cadence of a speech from the pulpit.

Gavin suspected that was an
effort to distract Rollins from the fact that the words rolling off Bricker’s
tongue were nonsensical and inconsistent. And it seemed to be working

“Okay. Thank you for explaining,
Captain. So, can we go over the plan one more time?”

Bricker snorted. “I’m going to
leave tomorrow morning for Pittsburgh. I will release the virus and return
here. All you have to do is keep an eye on the prisoner and help Anna maintain
order here for several hours. It’s not rocket science.”

“Yes, sir. But, Mrs. Bricker, she’s
your second-in-command.”

Rollins said it as a statement,
but Bricker seemed to understand the question.

“This is delicate, George. Anna
can’t know about the virus. Not because she can’t be trusted. She is, as you
note, the second-in-command. But, we need to insulate her. To give her
plausible deniability, just in case my mission fails or I’m apprehended. In
addition, Anna has been busy helping your girlfriend care for Russell. She’ll
welcome your assistance in my absence.”

“Yes, sir,” Rollins said, his
voice more confident now.

The voices faded away.

Gavin repeated the pertinent
information over and over to sear it into his tired, feverish brain before he
drifted back to sleep: Bricker was planning an attack. Lydia was Rollins’
girlfriend. The kind-eyed woman was married to Bricker.

He didn’t yet know what he was
going to do with this information, but he knew he couldn’t forget it.

While Oliver Tate
and his twins swooshed down the black diamond slopes under the bright Wyoming
sky, Sasha covered his desk with printouts of cases, legal pads filled with
scrawled notes, and cup after cup of coffee. Every few hours, she would stand,
stretch, and stare out Tate’s window at the snow that continued to fall
throughout the day. After the sun set, she could still see the flakes swirling
under the security lights that lit the perimeter of the building.

True to his word, Connelly had
handled Tate. They’d called and reported the results of the disastrous ‘argument’
in front of Judge Minella, and Connelly had been adamant that there was nothing
Sasha could have done to change the judge’s mind. To Sasha’s amusement, he also
shared his sincerely held theory that the judge was bipolar.

Tate took the news better than
Sasha had hoped. He asked her to look into filing an appeal. He and she both
knew it was a lost cause. With no record, a government agency stating that it
was an indispensable party, and the specter of national security lurking in the
background, they had less than the proverbial hell-dwelling snowball’s chance
of success of convincing an appellate court that the judge had abused his
discretion.

But, Sasha understood that, to
appease the board, Tate needed a thoroughly researched memorandum that laid out
the dismal reality in minute detail. She needed the same memorandum for a very
different reason—to appease her malpractice insurer. But, in the end,
Serumceutical wouldn’t file an appeal. It would be an utter waste of money.

She was reading a mind-numbing
law review article on the misuse of Rule 19 when Connelly poked his head
through the doorway and caught her eye. He tapped the face of his watch. Sasha
checked the time. Almost eight o’clock.

She shook her head. “I want to
get this memo out to Tate tonight so I can catch an early flight back to
Pittsburgh in the morning.”

As competent and reliable as Naya
was, Sasha knew it was a strain on her to run the office single-handedly.

She expected Connelly would argue
with her, but he reached in his pocket and pulled out his car key. He crossed
the room and pressed the ring into her hand.

“I had a feeling you’d say that.
I’ll catch a ride home with Grace.”

Sasha placed the key ring on Tate’s
desk. “Thanks. I shouldn’t be much longer. Maybe two more hours tops.”

Connelly kissed the top of her
head. “I’ll wait for you to eat dinner, then.”

Grace appeared outside the door.

“Leo, are you ready?” she asked, buttoning
a tawny leather trench coat.

“I’ll see you in a bit,” Connelly
said. Then he turned to Grace, “Let me just grab my coat.”

They watched him leave, and then
Grace turned to Sasha.

“How’s it going?”

“Fine, I guess. Oliver wants to
explore all avenues, but we’re really just spinning our wheels,” Sasha answered
honestly.

Grace nodded. She picked up a
framed picture of a man and two dark-haired girls standing in front of a cabin,
squinting into the sun and smiling, examined it for a moment, and then returned
it to its spot on the desk.

“I think he’s under a lot of
pressure. When we caught that janitor stealing papers, the board instructed him
to go hard after ViraGene, and he did. But as soon as the legal bills started
rolling in, they lost their stomach for it and pulled back. It’s kind of
unfair. They took away his weapons, and now they blame him for losing the
battle.”

Sasha considered the middle-aged
man in the photograph. He looked perfectly pleasant—one arm thrown over the
shoulder of each of his daughters—but not particularly driven. It could have
been the setting. Even a formidable general counsel might not seem imposing
while wearing a plaid flannel shirt and standing in front of a log cabin.
Unless maybe he was wielding an axe.

Connelly reappeared in the
doorway, with his leather bag slung across his chest. Grace slid down from Tate’s
desk and joined him at the door.

“The roads might be icy,”
Connelly warned Sasha before following Grace out the door.

“I know how to drive in winter
conditions,” Sasha told him.

He turned. “I know
you
do,
but you’re not in Pittsburgh. There’ll be a lot of nervous drivers out there.
Just be careful, okay?”

“Okay.”

She turned back to her research
as Connelly and Grace disappeared down the hallway. She worked without pause
for another forty-five minutes, her fingers flying over the keys. She
summarized both the standard to appeal and the cases that established the
effort would almost certainly be futile. She reviewed the memorandum for typos
then, satisfied, sent an email message to Tate forwarding the document. She
rolled her neck, cracked her back, and shut down her laptop.