Cabral v. United States Department of Justice

United States Court of Appeals
For the First Circuit

No. 07-1633

ANDREA J. CABRAL, SUFFOLK COUNTY SHERIFF'S DEPARTMENT;
SUFFOLK COUNTY,
Plaintiffs, Appellants,

v.

UNITED STATES DEPARTMENT OF JUSTICE,
Defendant, Appellee.

No. 07-1640

JOHN PORTER, SR., as Personal Representative of the Estate
of SHEILA PORTER,
Plaintiff, Appellee,

v.

ANDREA J. CABRAL, SUFFOLK COUNTY SHERIFF'S DEPARTMENT;
SUFFOLK COUNTY,
Defendants, Appellants.

CORRECTIONAL MEDICAL SERVICES, INC.,
Defendant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Selya, and Dyk,*
Circuit Judges.

*
Of the Federal Circuit, sitting by designation.
 Ellen M. Caulo, Deputy General Counsel, for appellants.
Lowell V. Sturgill, Jr., Attorney, Appellate Staff, Civil
Division, with whom Tony West, Assistant Attorney General, Michael
K. Loucks, Acting United States Attorney, and Michael S. Raab,
Attorney, was on brief for appellee U.S. Department of Justice.
Joseph F. Savage, Jr., with whom James Sweet and Goodwin
Procter LLP, was on brief for appellee John Porter, Sr.

November 12, 2009

-2-
 TORRUELLA, Circuit Judge. This is a consolidated opinion

addressing two related appeals. Each appeal arises from Andrea J.

Cabral ("Cabral"), the sheriff of Suffolk County, Massachusetts,

barring Sheila J. Porter ("Porter"), then a nurse practitioner

working as a contractor, from the Suffolk County House of

Correction ("the HOC") on June 10, 2003.1

In Porter v. Cabral ("the underlying case"), Porter

brought suit against Cabral, the Suffolk County Sheriff's

Department ("the SCSD"), and Suffolk County (collectively "the

Suffolk defendants") claiming that, in violation of her First

Amendment free speech rights, Cabral barred her from the HOC for

informing the Federal Bureau of Investigation ("the FBI") of

alleged prisoner abuse at the HOC. See Civ. Action No. 04-11935-

DPW, 2007 U.S. Dist. LEXIS 12306 (D. Mass. Feb. 21, 2007). Cabral

contends that she barred Porter because Porter had failed to report

that the alleged assault internally, to document the inmate's

medical records, and to submit in a timely manner the report she

was directed to write.

As part of the discovery process in the underlying case,

Cabral served several written requests and subpoenas on the FBI and

the United States Attorney's Office ("the USAO"). In an

1
To be barred is to have one's security clearance revoked.
Cabral was contractually empowered to decide whether to bar a
contract worker from the HOC. Such barring would prevent the
person from entering the HOC but would not terminate the person's
employment.

-3-
Administrative Procedure Act ("APA") proceeding stemming from these

requests ("the APA proceeding"), Cabral v. U.S. Dep't of Justice,

Civ. Action No. 05-12468-DPW, Docket No. 7 (D. Mass. July 27,

2007), the district court denied the Suffolk defendants the

discovery they sought. On appeal from the final order in that

proceeding, the Suffolk defendants contend that the district court

abused its discretion when it dismissed their APA action.

In the underlying case, a jury found in favor of Porter

and awarded her $360,000 in compensatory damages and, against

Cabral alone, $250,000 in punitive damages. The district court

denied motions by the Suffolk defendants for a new trial and for

remittitur, and granted Porter's motion for attorney's fees and

costs in the amount of $275,437.24 plus interest. On appeal from

the final judgment in that underlying case, Cabral challenges the

fairness of her trial, considering the denied discovery and the

award and amount of punitive damages.

After careful review of the record, we affirm the

district court's rulings in both the APA proceeding and the

underlying case.

I. Background

A. Facts

We outline the facts relevant to the appeals. Greater

detail may be found in the district court's opinion in the

underlying case. See Porter, 2007 U.S. Dist. LEXIS 12306.

-4-
 Porter, a nurse practitioner employed by Correctional

Medical Services, Inc. ("CMS"), began working on contract at the

HOC in 1994. In 1999, the FBI recruited Porter to provide

information about events at the HOC, which Porter did through May

2003.

On May 19, 2003, an inmate at the HOC, René Rosario

("Rosario"), showed Porter, who was on duty at the time as a nurse

practitioner, injuries he alleged had been inflicted by a

correction officer. In violation of her department's policy,

Porter did not document her observations of Rosario's bruises and

abrasions in Rosario's medical chart, she did not report the

alleged assault to the Sheriff's Investigation Division ("SID"),

and she submitted a written report to the HOC Deputy

Superintendent, Mary Ellen Mastrorilli, about her encounter with

Rosario nine days late, on May 28, 2003. Porter did promptly

orally report the matter to her supervisor, CMS Health Services

Administrator Donna Jurdak, and, on May 20, to FBI Agent Christa

Snyder ("Snyder").

The following day, May 21, and again approximately two

days later, Snyder spoke with Stan Wojtkonski ("Wojtkonski"), a SID

Investigator at the HOC. During the course of their conversations,

Snyder told Wojtkonski that the FBI had received information that

an alleged assault on an inmate had occurred at the HOC and that

Wojtkonski should check Rosario's medical records for information

-5-
about the incident. Wojtkonski told Snyder that the HOC suspected

Porter was the source of the FBI's information about Rosario's

alleged assault. Snyder neither confirmed nor denied Wojtkonski's

suspicion.

Starting on May 22, SID began conducting an investigation

of the alleged assault on Rosario. SID concluded its investigation

in early June, finding that there was insufficient evidence to

sustain Rosario's allegations. SID notified the FBI, which decided

not to initiate an independent investigation.

On June 10, Cabral barred Porter from the HOC. Cabral

claims that she disciplined Porter for failing to report that the

alleged assault internally, for failing to document Rosario's

medical records, and for failing to submit in a timely manner the

report she was required to write. Cabral also claims that she was

concerned about the fact that Porter wrote her report on

Interdisciplinary Progress Notes, as if the report were a medical

record, and that Porter dated the report the date of the encounter

with Rosario, which Cabral considered to be backdating. Cabral

acknowledges that, by June 10, she had become aware that Porter had

provided information to the FBI about Rosario's allegations but

denies this being a factor in Cabral's decision to bar Porter.

Later that day, Porter informed Snyder that Cabral had

barred her. The following day, June 11, Porter met at the USAO

with Snyder, FBI Agent Maureen Robinson ("Robinson"), and Assistant

-6-
United States Attorney ("AUSA") Stephen Huggard ("Huggard") to

discuss her barring. The next day, June 12, First AUSA Gerard

Leone ("Leone") spoke with SCSD Chief of Staff Elizabeth Keeley

("Keeley") by phone to schedule a meeting for June 16, 2003 ("the

June 16, 2003 meeting") between Cabral and her management team, on

the one hand, and United States Attorney Michael Sullivan

("Sullivan") and FBI Special Agent in Charge Kenneth Kaiser

("Kaiser"), on the other, ostensibly to meet each other and discuss

general collaboration. As discussed below, this June 16 meeting

would become a focal point of the litigation in this case.

The actual participants in the June 16, 2003 meeting were

Cabral, Keeley, and Superintendent in Charge of the Training and

Intelligence Division Victor Theiss ("Theiss"), all from the SCSD,

and Sullivan, Leone, Huggard, Kaiser, AUSA Robert Krekorian

("Krekorian"), and retired FBI Special Agent David T. Nadolski

("Nadolski"). That meeting focused on Porter's barring,

particularly Cabral's reasons for it. During that meeting and in

subsequent correspondence between Cabral, Sullivan, and Huggard,

the USAO indicated that it had opened a grand jury investigation

into whether Cabral's barring of Porter constituted a felony under

18 U.S.C. § 1513 (concerning retaliation against a witness, victim,

or an informant), specifically 18 U.S.C. § 1513(e), which provides:

Whoever knowingly, with the intent to
retaliate, takes any action harmful to any
person, including interference with the lawful
employment or livelihood of any person, for

-7-
 providing to a law enforcement officer any
truthful information relating to the
commission or possible commission of any
Federal offense, shall be fined under this
title or imprisoned not more than 10 years, or
both.

B. Procedural History

On September 3, 2004, Porter filed in the U.S. District

Court for the District of Massachusetts her complaint in the

underlying case, concerning Cabral's motivation for barring her, in

which Porter sought money damages for unlawful termination and

civil rights violations.

During the course of discovery in the underlying case in

2005, the Suffolk defendants made multiple written requests and

served several subpoenas on the FBI and the USAO pursuant to

regulations promulgated by the U.S. Department of Justice ("DOJ"),

28 C.F.R. § 16.21 et seq. The Suffolk defendants sought

information and testimony concerning the June 16, 2003 meeting,

communications between Porter and the FBI, and communications

between Porter and the USAO. Defendants' requests are known as

"Touhy requests," in reference to United States ex rel. Touhy v.

Ragen, 340 U.S. 462, 468 (1951) (upholding the authority of

agencies to promulgate regulations establishing conditions for the

disclosure of information).

In a series of letters addressed to Ellen M. Caulo

("Caulo"), Deputy General Counsel of the SCSD, on June 28 and 30,

2005, Sullivan, acting on behalf of both the USAO and the FBI,

-8-
refused to comply with the Suffolk defendants' Touhy requests,

contending that the requests were too broad and that compliance

would (1) "reveal confidential sources and investigatory records

compiled for law enforcement purposes," (2) "interfere with

enforcement proceedings or disclose investigative techniques and

procedures the effectiveness of which would thereby be impaired,"

and (3) be unduly burdensome. However, in a letter dated

August 26, 2005, Acting U.S. Attorney James B. Farmer ("Farmer")

informed Cabral that the FBI and the USAO had determined that

certain documents and information could be disclosed to Cabral,

including information pertaining to Porter and affidavits by Snyder

and Robinson. Farmer's letter noted that Snyder and Robinson were

authorized to present limited testimony at trial.

On September 28, 2005, the district court declined to

hear a motion by the Suffolk defendants in the underlying case to

compel Sullivan's compliance with their Touhy requests. The court

indicated that a separate action under the APA was required.

Meanwhile, the grand jury investigation concerning

Cabral's possible wrongdoing in barring Porter, during which

Porter, Cabral, Keeley, and others testified, concluded in

September 2005. In a letter dated September 28, 2005, Sullivan

informed Cabral that the USAO had no intention at that time of

seeking an indictment of her or the SCSD. Sullivan noted that the

USAO determined that there was insufficient evidence to establish

-9-
beyond a reasonable doubt that a federal crime was committed in the

process of barring Porter, but indicated that this conclusion

neither exonerated nor inculpated Cabral.

In a letter dated December 5, 2005, Sullivan denied a

further round of Touhy requests that the Suffolk defendants had

submitted on September 8, 2005, explaining that the release of such

information could "(1) reveal information on individuals or

confidential sources without proper consent, (2) reveal

investigatory records compiled for law enforcement purposes, and

(3) interfere with enforcement proceedings or disclose

investigative techniques and procedures the effectiveness of which

would thereby be impaired." Sullivan added that compliance with

such requests could also violate attorney work-product and

attorney-client communications privileges. Through that letter,

though, Sullivan did authorize disclosure of a redacted FBI

memorandum recounting communications between Snyder and Porter and

the SCSD regarding an incident at the HOC on May 19, 20032 (the

date Rosario told Porter he suffered injuries from a correction

officer) and an affidavit from Robinson stating that Porter did not

accompany her to the HOC on June 11, 2003 (the day after Cabral

barred Porter from the HOC).

2
Sullivan's letter states that the date of the incident at the
HOC about which he authorized the disclosure of the memorandum was
"May 19, 2005." It is clear from the letter, however, that
Sullivan meant to write "May 19, 2003."

-10-
 On December 8, 2005, the Suffolk defendants filed a

complaint in the U.S. District Court for the District of

Massachusetts, pursuant to the APA, asking the district court to

set aside what they alleged to be "the arbitrary and capricious

decisions of [Sullivan] not to provide discovery pursuant to

Plaintiff's validly issued discovery requests." Cabral v. U.S.

Dep't of Justice, Civ. Action No. 05-12468-DPW, Compl. p.1, Docket

No. 1 (D. Mass. Dec. 8, 2005). Sullivan responded on January 20,

2006 by filing an opposition on behalf of the USAO and the FBI to

this complaint. Sullivan's memo reiterated the points he made

directly to Caulo in his June 2005 letters. Cabral v. U.S. Dep't

of Justice, Civ. Action No. 05-CA-12468-DPW, Docket No. 2, Answer

(D. Mass. Jan. 20, 2006).

On January 3, 2006, in connection with the underlying

case, the district court requested that Anton P. Giedt, an AUSA and

counsel for the FBI and the USAO, interview employees of the FBI

and the USAO who were present at the June 16, 2003 meeting with

Cabral, Keeley, and Theiss to collect information about Cabral's

possible motives in barring Porter. Two days later, Giedt

submitted an affidavit ("the Giedt Affidavit") to the court, which

then conducted an in camera, ex parte hearing about it. The Giedt

Affidavit reported the recollections the government officials had

about what Cabral, Keeley, and Theiss had said regarding the

reasons Porter was barred from the HOC. The affidavit also

-11-
reported on a subsequent telephone conversation about that meeting

between Cabral and Sullivan. Each of these government officials

recalled that Cabral and/or Keeley stated that one reason Cabral

barred Porter was because the latter disclosed information to an

outside agency, the FBI. The Suffolk defendants acknowledge that

they were aware that an ex parte submission had been made, although

they did not request its disclosure at that time. The Suffolk

defendants state in their brief in their appeal in the APA

proceeding that they did not view the Giedt Affidavit until

February 2009, after they filed a motion to obtain it and after

both the jury trial and the district court's dispositive rulings on

the underlying case and the APA proceeding. The Suffolk defendants

claim that the Giedt Affidavit "contains significant information

supportive of the arguments made by the Plaintiffs at trial.

However, the [district court] withheld the Affidavit and prevented

the Plaintiffs from discovering the information contained within."

On January 5, 2006, the district court requested that the

USAO make Leone available for testimony in the underlying case

because he was the only government official present at the June 16,

2003 meeting who took notes. In response, in a letter dated the

following day, Sullivan authorized Leone to provide deposition and

trial testimony regarding the reasons Cabral, Kelley, and/or Theiss

stated for the barring of Porter from the HOC. The same day Leone

-12-
was deposed by both parties and, on January 12, he testified in the

underlying case.

After a seven-day trial in the underlying case, on

January 19, 2006, a jury found in favor of Porter and awarded her

$360,000 in compensatory damages and $250,000 in punitive damages.

The jury unanimously found that (1) Porter had established by a

preponderance of evidence that her protected speech in relaying

Rosario's allegations of abuse to the FBI was a substantial or

motivating factor in Cabral's decision to bar Porter from the HOC;

(2) Cabral had not established by a preponderance of evidence that

she would have barred Porter from the HOC even if Porter had not

relayed Rosario's allegations to the FBI; and (3) Porter had

established by a preponderance of the evidence that Cabral acted

with a callous and reckless disregard to Porter's federally

protected rights when she barred Porter from the HOC.

Approximately seven months after the trial concluded, on

August 17, the district court provided an oral judgment in the APA

proceeding in which it dismissed the APA petitions of both parties:

the Suffolk defendants on one side and Porter on the other.3 The

court characterized the petition by the Suffolk defendants as

"overbroad" and "unnecessary" to the proper resolution of the case.

The court issued its order in writing on July 27, 2007. Cabral v.

3
Porter had also filed an APA action seeking documents the FBI
and the USAO had not provided during discovery. The result of that
APA action is not on appeal here.

-13-
U.S. Dep't of Justice, Civ. Action No. 05-12468-DPW, Docket No. 7

(D. Mass. July 27, 2007). Porter does not appeal from this

decision, but the Suffolk defendants do.

On February 2, 2006, the Suffolk defendants filed motions

for a new trial and remittitur in the underlying case. On June 23,

2006, Porter moved for attorney's fees.

On February 21, 2007, the district court denied the

Suffolk defendants' motions and granted Porter's motion. Porter,

2007 U.S. Dist. LEXIS 12306, at *52-53. In denying the Suffolk

defendants' motions for new trial and remittitur, the district

court found evidence sufficient to sustain the jury's verdict,

reasoning that "[t]he jury received significant direct and

circumstantial evidence indicating that Ms. Porter's communications

with the FBI about allegations of inmate abuse were a substantial

or motivating factor in Sheriff Cabral's decision to bar her from

the HOC." Id. at *4. The court also rejected the Suffolk

defendants' assertion that the district court's pretrial rulings

denying defendants the opportunity to depose individuals from the

FBI and USAO were unduly prejudicial. The court found that

"[d]efendants have demonstrated neither clear error nor prejudice

in being denied the opportunity to cast their lines further into

restricted FBI and USAO waters." Id. at *16.4

4
The district court, however, offered a caveat:

I continue to have considerable concern that in this and

-14-
 The Suffolk defendants had also argued that the amounts

of compensatory and punitive damages awarded by the jury were

unsupported by the record and either merited a new trial on the

issue of damages or else remittitur of the damage awards. The

court found that the compensation award of $360,000 was less than

the maximum economic damages supported by the evidence, which the

court calculated (without present value adjustment) to be $379,000.

Id. at *26-28. The court also concluded that the $250,000 punitive

damage award met the requirements of fundamental fairness: the jury

rationally could have found that Cabral acted reprehensibly by

causing Porter to be deprived of a job for speaking to the FBI in

violation of her First Amendment rights; the ratio of compensatory-

to-punitive damages in this case, which the court calculated to be

0.69:1, raises no constitutional concerns; and the punitive damages

of $250,000 are well below the civil penalties that could be

imposed for comparable conduct, which, in this case, would have

authorized up to three times Porter's lost wages of $379,000,

benefits, and other remuneration and interest. Id. at *28-33.

other cases the Department of Justice has arrogated to
itself under so-called Touhy protocols, see generally, 28
C.F.R. § 16.21, et seq., far too expansive a view of its
power to restrict discovery from the Department.
Nevertheless, I am satisfied that the interactive
mechanism adapted to resolve disputes in this case struck
a fair balance.

Porter, 2007 U.S. Dist. LEXIS 12306, at *16 n.3.

-15-
 Porter died on September 17, 2007. On November 23, 2007,

this court granted a motion to substitute John Porter, Sr.,

Porter's husband and personal representative of her estate as the

party plaintiff.

The Suffolk defendants appeal the district court's

rulings in both the APA proceeding and the underlying case.

II. Discussion

A. Evidence and Discovery

On appeal from both the APA proceeding and the underlying

case, the Suffolk defendants challenge the district court's

evidentiary and discovery rulings. Because these rulings relate to

the same evidence sought through the Suffolk defendants' Touhy

requests, we consider the district court's denial of them together.

In both cases we affirm the district court's ruling denying the

additional evidence and discovery.

1. The Underlying Case

The Suffolk defendants contend that certain pretrial

rulings of the district court in the underlying case deprived them

of relevant and discoverable evidence, thereby warranting a new

trial. In particular, the Suffolk defendants argue that the

district court abused its discretion in authorizing only limited

production of documents and affidavits and access to government

officials' testimony, resulting in substantial prejudice to the

defendants. "The burden of proving substantial prejudice lies with

-16-
the party asserting error." Hernández-Torres v. Intercontinental

Trading, 158 F.3d 43, 50 (1st Cir. 1998) (internal quotation marks

and citations omitted).

We review the district court's pretrial discovery rulings

for abuse of discretion. Heidelberg Americas, Inc. v. Tokyo Kikai

Seisakusho, Ltd., 333 F.3d 38, 41 (1st Cir. 2003). This court will

only intervene in discovery "upon a clear showing of manifest

injustice, that is, where the lower court's discovery order was

plainly wrong and resulted in substantial prejudice to the

aggrieved party." Id. (internal quotations omitted). We also

review district court rulings admitting or excluding evidence for

abuse of discretion. See United States v. Pakala, 568 F.3d 47, 52

(1st Cir. 2009). As discussed in Section II.A.3, we find nothing

in the record indicating that the district court abused its

discretion in making its pre-trial evidentiary and disclosure

rulings.

2. APA Proceeding

The Suffolk defendants assert that the district court

erred when it dismissed their APA action after concluding that the

final agency action of the USAO and the FBI was not "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with the law." 5 U.S.C. § 706(2)(A). The Suffolk defendants argue

that their need for further disclosure outweighed the government's

assertion of a qualified privilege, and that the district court

-17-
abused its discretion in ordering the dismissal. We affirm the

district court's ruling.

The Housekeeping Act, 5 U.S.C. § 301, authorizes federal

agencies to create rules governing discovery and disclosure. Touhy

affirms this authority. See Puerto Rico v. United States, 490 F.3d

50, 61 (1st Cir. 2007) (citing Touhy, 340 U.S. at 468), cert.

denied, 128 S. Ct. 1738 (2008).

Disclosure regulations of the DOJ are set forth at 28

C.F.R. § 16.21 et seq. Of particular relevance are §§ 16.26(a)-

(c). Section 16.26(a) advises staff to consider the procedural and

substantive background of the case. 28 C.F.R. § 16.26(a).

Sections 16.26(b) and (c) permit disclosure only after balancing

various factors, such as the importance of the legal issues

presented; whether disclosure would violate a statute or

regulation; whether disclosure would interfere with enforcement

proceedings; and whether disclosure would reveal classified

information, a confidential source or informant, investigatory

records or techniques, or trade secrets. 28 C.F.R. § 16.26(b),

(c).

To obtain information from a federal agency, a party

"must file a request pursuant to the agency's regulations, and may

seek judicial review only under the APA." Puerto Rico, 490 F.3d at

61 n.6. Under the APA, a reviewing court may overturn an agency's

decision to deny disclosure only if the decision is found to be

-18-
"arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with the law." 5 U.S.C. § 706(2)(A).

We review de novo a district court's order dismissing an

APA suit challenging an agency's response to a Touhy request. See

Puerto Rico, 490 F.3d at 61. In applying the arbitrary and

capricious standard of review, we apply the same deferential

standard to the agency's decision as the district court. Id. As

also discussed in Section II.A.3, we find nothing in the record

indicating that the agency's denial of the Suffolk defendants'

Touhy requests was arbitrary and capricious, and therefore affirm

the district court's dismissal of the Suffolk defendants' APA

action.

3. Analysis

The DOJ substantially complied with the Touhy requests of

the Suffolk defendants. The DOJ authorized two FBI Agents (Snyder

and Robinson) to provide affidavits and trial testimony, authorized

a third DOJ employee (Leone) -- the only person who took notes

about the June 16, 2003 meeting -- to provide a deposition and

trial testimony, and disclosed certain relevant documents.

The denials of the Touhy requests that the DOJ released

were reasonable. Aspects of the requests, such as the method of

Porter's communication with the FBI, were overly broad and not

directly relevant to the primary issue at hand: why Cabral barred

Porter. Through an affidavit filed in camera and under seal, the

-19-
DOJ also explained how the release of undisclosed information would

directly and adversely impact the FBI's investigations and violate

the Privacy Act, 5 U.S.C. § 552a(b). Courts have found such

explanations of law enforcement privileges persuasive. See Puerto

Rico, 490 F.3d at 54, 62-64 (holding that, given "the public

interest in effective law enforcement," the FBI may assert a

qualified privilege to protect sensitive law enforcement techniques

and procedures from disclosure) (citing Roviaro v. United States,

353 U.S. 53, 59 (1957)).5

Considering the disclosures and testimony the DOJ

provided to the Suffolk defendants, in addition to the information

available to the court through the Giedt Affidavit, the DOJ

reasonably concluded that further disclosures, such as by

authorizing more government officials to testify, would have been

cumulative and unduly burdensome. See Fed. R. Evid. 403 (providing

that relevant evidence may be excluded where it would be cumulative

5
The Suffolk defendants did not request other information about
which they were aware, particularly an ex parte submission that
contained the Giedt Affidavit, until after the jury trial and
district court rulings. While the Suffolk defendants assert that
they were not aware of the contents of the Giedt Affidavit until
after trial, during oral argument counsel acknowledged that it was
the notation of an ex parte submission on the district court's
docket (available before trial) that led her to request the
affidavit after the trial was concluded. The Suffolk defendants
thus waived any claim to this submission. See Campos-Orrego v.
Rivera, 175 F.3d 89, 95 (1st Cir. 1999) ("We have reiterated, with
a regularity bordering on the echolalic, that a party's failure to
advance an issue in the nisi prius court ordinarily bars
consideration of that issue on appellate review.").

-20-
or a waste of time); Fed. R. Civ. P. 26(b)(2)(C)(i) (providing that

discovery sought must not be "unreasonably cumulative or

duplicative"). We have previously upheld such partial responses to

Touhy requests. See, e.g., Puerto Rico, 490 F.3d at 66 (finding

the FBI's decision to withhold certain Touhy materials was neither

arbitrary nor capricious partly because "[t]he United States has

been reasonably forthcoming in releasing [relevant] information").

The Suffolk defendants have also failed to show that the

denial of this additional information was, as they claimed in their

briefs in both the underlying case and the APA proceeding, unduly

prejudicial. The Suffolk defendants offer nothing more than mere

speculation that additional information would have, for example,

damaged Porter's credibility or revealed recollections

contradictory to those presented in the Giedt Affidavit. See

Hernández-Torres, 158 F.3d at 50 (holding that an employee's

"general assertion that the prospective [co-worker] witnesses would

have corroborated his testimony concerning religious harassment

. . . is insufficient"). Combined with our finding that additional

evidence would have been cumulative or duplicative, we find that

the district court properly dismissed the Suffolk defendants' APA

action. See Ameristar Jet Charter, Inc. v. Signal Composites,

Inc., 244 F.3d 189, 193 (1st Cir. 2001) (finding no substantial

prejudice where appellant "has not shown that the information

sought . . . would be anything but cumulative or duplicative");

-21-
Hernández-Torres, 158 F.3d at 49-50 (1st Cir. 1998) (holding that

the appellant failed to make a clear showing of substantial

prejudice because he "ha[d] not shown that [the excluded] testimony

would not be cumulative").

The Suffolk defendants have not shown that the agency's

denial of their Touhy requests was arbitrary and capricious. The

Suffolk defendants also fail to show that the district court abused

its discretion in rendering its pre-trial evidentiary and

disclosure rulings, or that the Suffolk defendants suffered

substantial prejudice as a result. We thus affirm the district

court's denial of this additional evidence and discovery, on the

same grounds as the district court ruled: law enforcement privilege

and that the information would be cumulative and unduly burdensome.

B. Punitive Damages

The Suffolk defendants challenge both the grant and the

amount of punitive damages the jury awarded Porter in the

underlying case, which the district court upheld.

1. The Grant of Punitive Damages

The Suffolk defendants assert that the evidence was

insufficient to establish that Cabral engaged in the callous and

reckless conduct necessary to support an award of punitive damages

under 42 U.S.C. § 1983. We affirm the district court's ruling that

the evidence was sufficient.

-22-
 We review a punitive damages award de novo to determine

whether the evidence presented at trial was constitutionally

sufficient under § 1983. See Méndez-Matos v. Municipality of

Guaynabo, 557 F.3d 36, 52 (1st Cir. 2009). The Supreme Court has

held "that a jury may be permitted to assess punitive damages in an

action under § 1983 when the defendant's conduct is shown to be

motivated by evil motive or intent, or when it involves reckless or

callous indifference to the federally protected rights of others."

Smith v. Wade, 461 U.S. 30, 56 (1983). The inquiry is based on the

defendant's subjective knowledge or intent. Romano v. U-Haul

Int'l, 233 F.3d 655, 669 (1st Cir. 2000). Thus, the plaintiff must

prove that the defendant "discriminate[d] in the face of a

perceived risk that [her] actions [would] violate federal law."

Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536 (1999); see also

Iacobucci v. Boulter, 193 F.3d 14, 26 (1st Cir. 1999).

We agree with the district court that, despite Cabral's

acknowledgment that she knew that speaking to FBI agents was speech

protected by the First Amendment, the jury received significant

evidence indicating that a substantial factor in Cabral's decision

to bar Porter from the HOC was Porter's communications with the

FBI. Porter, 2007 U.S. Dist. LEXIS 12306, at *4, *29-30. The

testimonies of Leone, Keeley, and Theiss provided direct evidence

to this effect. Leone testified that, at the June 16, 2003

meeting, Keeley and Cabral both stated that a reason Cabral barred

-23-
Porter was because of Porter's communication with the FBI. Keeley

testified that, in Cabral's presence at the June 16, 2003 meeting

and without her contradiction, Keeley told DOJ officials that a

reason Cabral barred Porter was because of Porter's communication

with the FBI. Theiss testified that one of the only two reasons

either Cabral, Kelley, or Theiss offered in the June 16, 2003

meeting for barring Porter was because she spoke to the FBI.

Theiss further testified that at a later meeting only between

himself, Cabral, and Kelley, Cabral offered the same reason for

barring Porter. Concerning circumstantial evidence of Cabral's

motive in barring Porter, among other things, Keeley told the

specific person who informed Porter that she was barred that the

reason for the barring was because Porter spoke to an outside

agency.

We therefore agree with the district court that "[t]he

jury could reasonably infer that Sheriff Cabral barred Ms. Porter

with, at a minimum, conscious indifference to her First Amendment

rights." Id. at *29. Cabral's indifference was reckless and

callous to Porter's protected free speech rights because Cabral

admitted she knew such rights were protected. We have upheld such

punitive damages awards in other cases concerning the First

Amendment. See Rodríguez-Marín v. Rivera-González, 438 F.3d 72

(1st Cir. 2006) (upholding a jury's punitive damages award where

appellees discriminated against appellants on political grounds).

-24-
 We further note that deterrence is "often an important

element in punitive damages." Broderick v. Evans, 570 F.3d 68, 75

(1st Cir. 2009). Punitive damages in this case would help deter

disciplinary actions against employees on First Amendment grounds.

We thus see no reason to disturb the jury award of punitive

damages.

2. The Amount of Punitive Damages

The Suffolk defendants contend that the punitive damages

award of $250,000 was excessive as a matter of law. We affirm the

district court's ruling that the award was not excessive.

We will uphold a punitive damage award "unless it clearly

appears that the amount of the award exceeds the outer boundary of

the universe of sums reasonably necessary to punish and deter the

defendant's conduct." Zimmerman v. Direct Fed. Credit Union, 262

F.3d 70, 81 (1st Cir. 2001) (citation omitted). If we find an

award to be "grossly excessive," we may order the district court to

enter judgment in a more appropriate amount of punitive award.

Méndez-Matos, 557 F.3d at 38. The Supreme Court has provided the

following guideposts for determining whether a punitive damage

award was "grossly excessive": "(1) the degree of reprehensibility

of the defendant's misconduct; (2) the disparity between the actual

or potential harm suffered by the plaintiff and the punitive

damages award; and (3) the difference between the punitive damages

award by the jury and the civil penalties authorized or imposed in

-25-
comparable cases." Id. at 52 (citing BMW of N. Am. v. Gore, 517

U.S. 559, 575 (1996)). We have found that the first factor in the

BMW test, concerning the reprehensibility of the conduct, is the

most important. Id. at 52-53 ("As the Supreme Court has repeatedly

stated, and as we have long recognized, the degree of

reprehensibility is the most important guidepost in the BMW test.")

(citations omitted). In measuring such reprehensibility, the

Supreme Court has instructed us to determine whether

the harm caused was physical as opposed to
economic; the tortious conduct evinced an
indifference to or a reckless disregard of the
health or safety of others; the target of the
conduct had financial vulnerability; the
conduct involved repeated actions or was an
isolated incident; and the harm was the result
of intentional malice, trickery, or deceit, or
mere accident.

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419

(2003).

The district court drew several conclusions about the

punitive damage award. First, the district court observed that

"[t]he jury rationally could have found that Sheriff Cabral caused

Ms. Porter to be deprived of a job she found especially satisfying

for speaking to the FBI, knowing full well that Ms. Porter's speech

was constitutionally protected. Such conduct is certainly

reprehensible." Porter, 2007 U.S. Dist. LEXIS 12306, at *31.

Second, the district court found that a ratio of 0.69:1

compensatory-to-punitive damages is not constitutionally

-26-
problematic, given that a ratio of 4:1 has been upheld. Id.

(citing Zimmerman, 262 F.3d at 82). Finally, the district court

determined that civil penalties authorized in comparable cases of

whistleblowing would authorize several times more than the $250,000

Porter was awarded. Id. at *31-32 (citing Mass. Gen. Laws ch. 149

§ 185(d)(4)).

We agree with the district court's conclusions on each

point. That the jury found Cabral's conduct to be reprehensible

indicates that what we view as the most important factor in

determining whether the amount of punitive damages was "grossly

excessive" was met. That Porter's punitive damages award could

have been greater bolsters our view that it was reasonable. We

have previously upheld, on similar bases, the amount of punitive

damages awarded to state employees suffering adverse employment

actions in violation of their civil rights. See Rodríguez-Marín,

438 F.3d at 84-86 (upholding punitive damages awards of $120,000

and $195,000); Acevedo-García v. Monroig, 351 F.3d 547, 567 n.7,

571 (1st Cir. 2003) (upholding twenty punitive damages awards of

$30,000 each); Rivera-Torres v. Ortiz Vélez, 341 F.3d 86, 89, 101-

02 (1st Cir. 2003) (upholding punitive damages award of $250,000).

We thus uphold the punitive damage award here as not grossly

excessive.

Affirmed. Costs are assessed against appellants.

-27-