USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
______________________

No.

96-1430

JOHN R. KIELY

Plaintiff, Appellant,

v.

RAYTHEON COMPANY,

Defendant, Appellee.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

___________________
____________________

Before

Torruella, Chief Circuit Judge,

___________________

Bownes, Senior Circuit Judge, and

____________________

Stahl, Circuit Judge,

_____________
____________________

William F. Green with whom

_________________
William F. Green
_________________

and

Robert A. Rossi,
_______________

George E. Brankey
___________________

were

Law Office of
_____________
on

brief

for

appellant.
James F. Kavanaugh, Jr. with
________________________

whom Christine G. Messer and

____________________

Conn, Kavanaugh, Rosenthal, Peisch & Ford, L.L.P.

__________________________________________________
for appellee.

were on brief

____________________

January 28, 1997

____________________

Per Curiam.
Per Curiam.
___________

two

contract

Plaintiff John

Raytheon

This is an appeal from a dismissal of

claims.

was to

("DOD") documents.

R.

P.

12(b)(6).

employed by defendant

from 1967 to

1990.

Some of those documents were

Part of

of Defense

released by

defense contractors like Raytheon,

some were not officially

documents is

Civ.

obtain classified Department

DOD to representatives of

latter

Fed.

R. Kiely ("Kiely") was

Company ("Raytheon")

Kiely's job

and

See
___

released.

federal crime,

Raytheon have been convicted

thereof.

The

and

receipt of the

both Kiely

and

Those convictions are

not at issue here.

Raytheon's sentence required the corporation to pay

fines and damages of

$1,000,000.

It was not

precluded from

entering into

two

government contracts.

Kiely

years imprisonment, with all but

to be served

from

six months, which were

in a halfway house, suspended.

working on government

was sentenced to

contracts for a

He was debarred

period of three

years.

Kiely sued

Raytheon, asserting five claims.

tort claims were dismissed

and

on statute of limitations grounds

have not been appealed to this court.

claims sounded in contract:

Kiely's "forced"

agreement

learned

that

they

Kiely's other two

promissory estoppel relating to

retirement, and breach of

that was

Three

a mutual defense

allegedly made

when Kiely

were

of

targets

-2-

and Raytheon

federal

criminal

-2-

investigation.

The district court

to dismiss both claims.

granted Raytheon's motion

We now affirm.

On appeal, we "review[] the granting of a motion to

dismiss de novo, applying the same criteria that obtained

__ ____

the court below."

in

Garita Hotel Ltd. v. Ponce Fed. Bank, 958

____________________________________

F.2d 15, 17 (1st Cir. 1992).

We must accept the complaint's

allegations as

favor of Kiely.

true, indulging all reasonable

Id.
___

inferences in

Dismissal is proper only if it is clear

that no relief could be granted, under any theory, "under any

set

of

facts

allegations."

that

could

be proved

consistent

Hishon v. King & Spalding, 467

___________________________

with

the

U.S. 69,

73

(1984); Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir.

_________________________

1994).

I.
I.

Promissory Estoppel
Promissory Estoppel
___________________

Kiely's promissory estoppel claim is that Raytheon,

"by requesting Kiely to

security

laws

documents) over

commit acts in violation of

(receiving

the course

unreceipted

classified

of Kiely's employment

the DOD

from 1967

through 1985, [was] implicitly

commit these acts

promising Kiely that he could

without being coerced at some

into taking early retirement"

related detriment.

future time

or suffering other employment-

Am. Compl.

43.

Kiely

alleges that he

"relied on this promise to his detriment, as Raytheon in fact

did

coerce

January 2,

him

into

1990."

taking

early

Kiely

asserts

-3-3-

retirement

that

effective

"Raytheon

is,

therefore, estopped from

denying the unenforceability

of this promise which it made to him."

This claim fails.

recognizes

reliance

that

on

45-46.

The applicable Massachusetts law

promisee's

promise

Id.,
___

[sic]

may

reasonable

serve

as

and

detrimental

substitute

for

consideration and render the promise "enforceable pursuant to

a traditional contract

prove

theory," but only if the promisee can

"all the necessary

consideration."

Varadian, 647
________

omitted).

elements of a

contract other than

Rhode Island Hosp. Trust Nat. Bank v.

__________________________________________

N.E.2d 1174, 1178-79

(Mass. 1995)

(quotation

The district court held

a valid promissory

that

Kiely

failed

promissory estoppel

promise be

made.

that Kiely failed to state

estoppel claim.

to

meet the

First, the court

first

cause of action, namely,

The

court agreed with

company's alleged

promise

was

not

explicit enough to bind the company

that

carry,

the

promise alleged

even implicitly,

bound, so that it

i.e.,

at 179.

definite,

the

certain,

or

to any specific actions.

in

in particular,

this case

manifestations of

would be binding under a

so that it would "justify

174, 179

Raytheon that

Raytheon asserts,

by Kiely

for

that a binding

Id.; Santoni v. FDIC, 677 F.2d

___ ________________

(1st Cir. 1982).

Santoni, 677 F.2d

_______

requirement

found

does not

an intent

to be

contract theory,

a promisee in understanding

____

that

a commitment had been

made."

Rhode Island Hosp., 647

___________________

-4-4-

N.E.2d at 1179 (quoting

(1981)).

Raytheon also

Kiely to rely on such a

Restatement (Second) of Contracts

avers that it

was unreasonable for

vague, implicit promise, so he fails

to meet the reasonable

estoppel

claim.

90(1) & cmt.

245

reliance requirement for a promissory

See Restatement
___

Contracts,

b; cf. United States v. Maling, 988 F.2d

___ ________________________

(1st Cir. 1993) (estoppel

district

(Second) of

court also

in criminal sentencing).

agreed with

agreement was to violate

against public policy.

242,

Raytheon that

the alleged

the law, which is unenforceable

See
___

The

Green v. Richmond, 337

__________________

as

N.E.2d

691, 695 (Mass. 1975).

We reach a different

court did

as to its first

ground for dismissal.

applicable standard of review,

that

Raytheon

certain

tasks

hired

as

Kiely

part

conclusion than the

of

district

Under the

we must accept as established

and requested

his

job,

him

including

to

perform

receiving

unreceipted classified

allegations,

it

documents.

seems

to

us

Based

upon such

sufficiently

factual

"definite

and

certain" that Raytheon was implicitly promising that it would

not

terminate

or

discipline

superiors' orders.1

The

Kiely

key is the

for

following

his

parties' understanding

____________________

1.

Kiely

is not

employment,
Kiely

as

claiming a

contractual right

Raytheon misstates

appears to

claim that,

without stating any reason

is improper to

instructions

to

position.

while Raytheon

fire him solely

co-conspire

-5-5-

with

Rather,

can fire

at all, if Raytheon does

reason, it cannot be an improper one.

it

his

to lifetime

him

state a

And Kiely asserts that

for following Raytheon's
the

company

in

the

and

intent:

were

negotiations, with

their

closer

negotiate;

that

to be

develop no

more

his job

firm commitment?

There

were not

failed

to

bound, from

than a

engaged

in

be worked out

commitment.

the parties

commitment

perform

on a

a firm

negotiations"

merely

details to

minds meet

to

they

later, or

Here,

to

"well-founded hope"

functions without

left to

mere "inchoate

the

which Kiely

did

it appears

was nothing

engaged in

rise

preliminary

level

of

could reasonably

that he

fear of reprisals.

could

See

___

Hall v. Horizon House Microwave, Inc.,

______________________________________

(Mass. App.

effect

Ct.

1987).

is not necessary to

may reasonably rely on

certain tasks

perform

An

those

"explicit" statement

create a contract.

to

184

that

An employee

an employer's instructions to perform

as including an

tasks

506 N.E.2d 178,

without

implicit promise that

he can

fear of

solely

being

fired

because he performed them.

On the other hand, we agree with the district court

that the

alleged contract was an agreement to achieve mutual

benefit from

Such a

the parties' cooperative violation

contract,

even

if

explicitly

agreed

of the law.

to

by

both

parties, is void and unenforceable as against public policy.2

____________________

commission of a crime.

2.

Kiely

relies

on the

Restatement

inapplicable.

If an

that

central

to

does

not

involve

portion

of

is

provision
illegal

not

to

render this

rule

agreement contains an illegal provision

the

the

agreement
serious

agreement is

and

moral

the

illegal

turpitude, the

discarded,

and

the

-6-6-

See Green, 337 N.E.2d at 695.

___ _____

"[C]ourts will

not lend their

aid

to relieve parties from the results of their own illegal

adventures."

1950).

such an

Tocci v. Lembo, 92
________________

N.E.2d

254, 256

It would have been unreasonable for Kiely to

illegal contract.

Cf.
___

which is

relied upon).

reasonable

unenforceable cannot

We reject

to commit

rely on

American Viking Contractors,

____________________________

Inc. v. Scribner Equip. Co., 745 F.2d 1365, 1372

____________________________

1984) (promise

(Mass.

Kiely's

crime in

(11th Cir.

be reasonably

contention that

reliance

on an

it

was

implicit

promise that he would not be fired for doing so.

II.
II.

Raytheon

Breach of Contract
Breach of Contract
__________________

Kiely's

breach

"entered

into

of

an

contract

oral

claim

agreement"

alleges

with

that

Kiely,

____________________

balance

of the

(Second)
the

agreement is

of Contracts,

184.

695.

public policy.

enforcement of contracts
See Green,
___ _____

337 N.E.2d

at

The very essence of the contract alleged in Kiely's own

complaint

is

violation

of national

only

that

Raytheon

asked him

or

cannot

be

for no

reason.

interfered

involvement

in

this

illegal

ironically, he is claiming
otherwise

engaged in

on

activity.

is the

for any

his employment

account
As

of
a

his

result,

that his employment status, which

at-will,

was

criminal acts (or that

prerogatives

strengthened

because he

his employer's management

were diminished because the company joined with

employee

equitable

be

claims that
solely

acts in

a position different

would be terminable

He

with

commit

Indeed, this

to be in

at-will employee, who

reason

to

security laws.

reason why Kiely claims

from any

its

or incidental, which might

from the rule forbidding

that are against

See Restatement
___

In the instant case, however,

illegal conduct is not minor

remove it

would

enforceable.

in committing

estoppel claim

such acts).

-- that

This is

the employer

more an

is estopped

from exercising its normal management prerogatives because it

conspired with its employee to commit criminal acts -- than a
promissory

estoppel

contract-based

claim.

claims before us are the contract claims.

But

the only

-7-7-

"fiduciary

in

nature, where

confidence

in the other and promised mutually to support and

defend each other

[United

party

placed trust

with respect to any and all

and

claims by the

States] Government" in its investigation of unlawful

use of documents.

mention

each

Am.

any written

Compl.

agreement.3

64.

The complaint

It alleges

does not

that Raytheon

"undertook a

clandestine course

of action against

breach of these promises" (without

of

which

exculpate

any further specification

"promises" were

broken),

itself and

officers and

its

Kiely in

"whereby

it sought

directors from

to

any

actionable wrongdoing or debarment from bidding on government

contracts,

by

falsely

and

in bad

faith

stating

to

DOJ

officers and by falsely and in bad faith giving oath before a

U.S. District

Raytheon

Judge that Kiely

policy,

management

and

acted alone and

without

the

in knowingly obtaining

[documents]."

Id.
___

at

65.

in

its

plea

and conveying

The

Raytheon's "clandestine campaign"

"culminated"

knowledge

complaint

in breach of

agreement,

contrary to

of

Raytheon

secret DOD

adds

that

its promises

"without

Kiely's

____________________

3.

Kiely

moved

reference to a

to amend

his

complaint

again

to

written mutual defense agreement

add

of which he

claims he had been unaware at the time he drafted his initial

complaint.

He

asserts that he

only recently learned

about

this written agreement when his prior lawyer (on the criminal
case) provided him
oral

and

a copy.

The

written agreements

need not

should any implications (such

by

inconsistencies between the

detain us

here, nor

as credibility questions noted

Raytheon) which might flow

recounted by Kiely.

-8-8-

from the series

of events as

knowledge or participation," in which

plea Raytheon "falsely

and in bad faith blamed the entire matter on Kiely."4

Id. at
___

66.

This

than

the

breach of

promissory estoppel

dismissed

the breach

the alleged contract is

to

contract claim

of contract

is

more merit

The district

claim for

court

three reasons:

unenforceable because it is contrary

public policy; Kiely has

redress

claim.

has no

available; and

not alleged any

there

is

harm for which

no causal

connection

between Raytheon's alleged conduct and Kiely's claimed harm.

In accepting Raytheon's public policy argument, the

district

court misinterprets

Kiely's claim.

As

worded by

Raytheon in its brief,

that

the

agreement

"in essence plaintiff's allegation is

prohibited

Raytheon

from

providing

information to the government or conducting plea negotiations

without

at 35-36.

his knowledge or

participation."

Defendant's Brief

Having set up this straw man, Raytheon knocks it

down by asserting that

such an agreement cannot be

enforced

because it would violate public policy by restricting parties

____________________

4.

Kiely

also alleged that

Raytheon breached its agreement

by sending to its own professional staff a memorandum stating

that the

criminal charge to

was the result of

69.

We cannot

which Raytheon had

one former employee's

conduct.

understand how this memorandum --

pled guilty
Id. at
___
sent after

entry of the plea agreement -- could conceivably constitute a

breach of

the alleged

agreement to mutually

defend against

government claims, especially where those claims

been

concluded as

to

Raytheon.

The

had already

agreement cannot

be

deemed

to

survive

Raytheon's

entry

of

separate

plea

agreement and Kiely's learning of that plea agreement.

-9-9-

from negotiating with the government and discouraging parties

from providing

entering into

public policy.

true information

to the government

plea agreements, all

of which are

and from

favored by

Kiely,

defense

however, does

agreement should

worthy

goals.

He

(2) required

only

that

that

the mutual

to preclude

the

those

agreement

making false statements about

_____

Raytheon

defense agreement was

understood

claims

precluded Raytheon from

and

be

not assert

to notify
______

terminated so he

him

(1)

Kiely

that the

mutual

would be aware

that

Raytheon was pursuing its own defense separately and possibly

in conflict

with his.

Kiely apparently takes

that, if he had received

different

claim

course in

for enforcement

Raytheon

from

the position

such notice, he might have

his own

defense.

of the

pursuing its

negotiating a plea bargain.

So framed,

agreement would

own

separate

taken a

Kiely's

not prohibit

defense or

from

Nor would it restrict Raytheon's

ability to

provide true information to the government in its

criminal investigation.

The notice to

which Kiely claims he

was entitled under the agreement would simply permit Kiely to

defend

himself

most

circumstances.

effectively

under

Such a mutual defense agreement

the

changed

is not void

as against public policy.

On

court's second

the

other hand,

we

agree

reason for dismissing the

-10-10-

with the

district

breach of contract

claim:

of

that the damages alleged

specific,

given."

demonstrable

A. 294-95.

contract --

Kiely

through its

harm

by Kiely are "not the kind

for which

allegedly false statements

to notify

him that

it was

defense

agreement

-- caused

him

(2)

(1) he

be

and its

terminating the

to

suffer the

mutual

following

refrained from effectively defending himself;

he was denied the

government; (3) he was

to

can

alleges that Raytheon's breach of

failure

harms:

remedy

opportunity to plea

bargain with the

denied the de facto immunity

________

granted

other Raytheon employees; (4) he was indicted; and (5) he

suffered emotional

Am. Compl.

injuries

27, 33, 35,

resulting from

36, 40.

too

speculative to

See
___

Johnson v. Comm'r of Correction, 652

_________________________________

(Conn. App.),

be legally

These

cert. denied, 659

_____ ______

the

foregoing.

alleged harms are

cognizable and

redressable.

A.2d 1050,

A.2d 183 (Conn.

1057

1995); cf.
___

Veranda Beach Club v. Western Sur. Co., 936 F.2d 1364, 1380_______________________________________

81 (1st Cir. 1991) (tort and promissory estoppel claims).

As

legal

right

to the

as

first alleged

Raytheon

did

harm, Kiely had

to pursue

his

own

separately,

whether or not he thought it immoral.

represented

by counsel

during

the course

of the

as much

defense

Kiely was

criminal

investigation and his trial; indeed, Kiely's attorney was one

of

the

architects

of

the mutual

defense

agreement

with

Raytheon.

as

to

Presumably, his counsel advised him in some detail

the

advantages

and

disadvantages,

the

risks

and

-11-11-

pitfalls

of each

possibility that

might

at

some

possible course

his

point

of action,

alleged partner

decide to

in

pursue

including the

crime,

its

own

Raytheon,

separate

interests

which

addition, Kiely

might

not

coincide

was no doubt

with

Kiely's.

aware, through counsel

In

if not

otherwise, that the mutual

defense agreement did not deprive

the

to make

parties of

themselves

the right

strategic

regarding their respective

defenses, since their

interests were similar but not identical.

his

decisions for

Kiely himself made

own decisions and took his chances, for his own reasons.

Kiely has

not alleged any ineffectiveness

he received from counsel, nor

in the assistance

any conflict of interest based

on the fact that his counsel was chosen and paid by Raytheon.

As

for Kiely's

Kiely did

not have

immunity.

Those

second

a legal

were

and

right to a

within

the

third alleged

harms,

plea bargain

discretion

or to

of

the

prosecutor, which this court

will not second-guess.5

Virgin
______

____________________

5.

It

appears to us that Kiely's real complaint is with the

prosecutors and the Pentagon

Raytheon
on

off the hook with what Kiely considers to be a slap

the wrist,

forms of

permitting

Raytheon not

criminal punishment

officers or employees
to

for prosecuting him and letting

only to

avoid some

(incarceration for any

of its

other than Kiely) but also to continue

bid on government contracts.

Kiely may be right that he

might have been able to arrange a favorable plea bargain with

the

prosecutors

Raytheon,
course

in

if the

exchange

government

for

testifying

had wanted

against the "bigger fish."

that his chances

his

of obtaining

to

pursue such

Kiely may

such a deal

against
a

also be right

might have

been

enhanced if he had pursued that course from the outset rather

than relying on his "mutual defense agreement" with Raytheon.
But

it is

not the

role

of this

-12-12-

court

to second-guess

Islands v. Scotland,
_____________________

Moreover,

later

legally

614 F.2d

Kiely's indictment

convicted surely

does

cognizable harm.

is not legally

for a

365

(3d Cir.

1980).

crime

of which

he was

not rise

to

Finally, Kiely's

suffered emotional harm as

of harm

360,

the level

claim that

a result of the first

cognizable because

of

he

four types

the four

events

underlying the emotional harm are not cognizable.

Kiely's allegations are

if Raytheon had not

doubly speculative:

breached their agreement, he might

that,

have

had

some opportunity to plea

bargain; and that

such a plea

might have been more advantageous to him than the sentence he

received

Kiely's

sentence

after

trial.

claim

is

had he

that

plea

right to go to trial.6

be enforceable.

The

he

have

received

underlying

a lesser

than exercised

his

This assumption is too speculative to

See Bush v. United States, 765 F.2d 683, 685

___ _____________________

obtaining

crime, with

If Kiely

thought it

____________________

474 U.S. 1012 (1985).

unreceipted

constituted a

had

would

assumption

bargained rather

(7th Cir.), cert. denied,

____________

Kiely's

basic

classified

or without Raytheon's

helpful,

he could

have

After all,

documents

knowledge.

provided

prosecutor's decision
vigorously

as to

which defendant to

pursue more

or what sentence to seek in each case.

Moreover,

having chosen one course of action, Kiely cannot now complain

about what might have been if he had made a different choice.

6.

We

legal
_____

leave aside
right

that

here the
Raytheon

fact that
exercised

Kiely had
to

the same

take independent

action that best served his own interests.

-13-13-

information -- to the

prosecutors after he was

indicted, to

the

jury at

trial, or to

the court prior

to sentencing --

contradicting Raytheon's "rogue employee" statements.

offered no

because

alone
_____

has

reason to believe that his

of Raytheon's

He has

sentence was enhanced

alleged statements

that

rather than in concert with Raytheon.

Kiely acted

In short, Kiely

failed to allege that he has suffered cognizable harm as

required

in order to state a claim

upon which relief may be

Moreover,

alleged a

granted.7

connection

between

suffered.

Raytheon

claim based on

Kiely has

not

Raytheon's

breach

argues that:

the allegation of

someone else, rather than his

"To

and

valid

the

sustain a

causal

damage

he

contract

a convicted criminal

that

own conduct, was the proximate

cause of his conviction would entirely subvert the policy and

societal interests inherent in criminal punishment.

a convicted

harm

criminal to

Allowing

receive civil compensation

for the

caused by his conviction would lessen the effect of the

punishment determined by the

criminal justice system,

allow

____________________

7.

Thus, while Raytheon's provision of false

DOJ or

the

liability
false

court
(if the

and

liability to
flow

government

exercises

third parties

contract claims

extent that Kiely

of

intentional

the

interference

to

to

criminal

information was

prosecute),

civil

like Kiely does

not necessarily

Such liability is

not embraced by

which are

sought to

defamation,

company

believes the

its discretion

from such conduct.

Kiely's

claims

might subject

information to

now before

impose civil

negligent
with

business

To the

liability in

misrepresentation,

causes of action have not been appealed.

-14-14-

us.

relations,

his
and
those

him to profit from

deterrent

and retributive purposes

Defendant's

Raytheon

it too

his own wrongful acts, and

Brief

at

47.

We

undermine the

of criminal punishment."

need

not

address

whether

is estopped from arguing this point, either because

was convicted

for its

role in

the

same crime,

because of the unseemly cynicism of Kiely's partner

relying on such

a position

to escape civil

or

in crime

liability.

In

circumstances such

conviction

was

as these,

based

on

the law presumes

his

own

illegal

Raytheon's breach of a mutual defense

that Kiely's

acts,

agreement.

not

on

The breach

of contract claim was properly dismissed.

In

Raytheon's

conclusion, it

treatment

of

is not

Kiely

was

Plaintiff's Brief, Addendum at 54.

the

question of whether Kiely might

claim against anyone

for us

to say

immoral

or

whether

"nasty."

Nor are we presented with

have a legitimate legal

not a party to this litigation.

decide today is that Kiely's claims against

appeal are without merit.

Affirmed.
Affirmed.
________

All we

Raytheon in this

-15-15-