Atherton v. District of Columbia Office of the Mayor

(2012) 182 L.Ed.2d 985 (noting that BROWN, Circuit Judge: this “approach comports [the with Court’s] Today bring nearly we resolution to usual reluctance to decide constitutional litigation. decade’s worth of explained As questions unnecessarily”). v. D.C. Mayor, Atherton Office of If (D.C.Cir.2009) (Ath- District Court chose to F.3d resolve 677-78 matters on the II), prong second and erton officer ask Bailey- Suzanne procedural process whether the due unceremoniously Jones removed owed Peter grand juror prior to James the termination of a grand jury Atherton from protected clearly interest was after established Attorney Assistant United States (AUSA) dismissal, at the time of recognized we Daniel Zachem reported the com- great, Atherton’s plaints burden was of other of the members jury. question presented insurmountable. “The The District appel- Court concluded ... boils to lees down this: Has Bailey-Jones and [Atherton] Zachem were enti- proven that, under three-part tled qualified granted to balanc- immunity ing analysis Eldridge, their of Mathews respective [v. motions to dismiss. Be- cause 47 L.Ed.2d Atherton has to failed convince us (1976) precedents ] and the ap- that he have clearly had established constitu- it, plied ‘clearly he had a right tional established’ comprehen- entitlement to a more process comprehensive more sive than that process termination he when was ex- provided II, by the service, cluded District?” Atherton affirm. we (quoting F.3d Brewster Bd. of Dist., Lynwood Educ. Sch. I Unified (9th Cir.1998)). 149 F.3d We will not rehearse facts already II, length discussed at Foregoing where a formal discussion Math- ews, we dismissed the bulk of Atherton’s case the District Court on remand conclud- save against his due Bailey- claims ed: (1) prece- mine whether state law any legal the absence

Given debate,” establishing “beyond time we look “cases at the relevant dent (2) court, alleged process right, this well Supreme due Court and proce- any formal exhibiting in 2001 absence as to from other courts cases in) (and judicial involvement dures is one.” Bame v. consensus view—if there removing jurors (D.C.Cir.2011) Dillard, 637 F.3d (3) Court, practice informal apparent (citation quotation internal marks juror removal deci- delegating grand omitted). truly If the facts are novel (4) Officer, and sions the Juror cases, there no relevant “officials can implicitly job description Officer’s Juror still be on notice that their conduct violates the Court finds authorizing practice, law” if “conduct violated established their that, right exists even if a constitutional ‘clearly statutory or established constitu- defendants .grand jury, on a serving in person tional of which a reasonable rights ” known that reasonably could not have Pelzer, v. 536 Hope would have known.’ from the plaintiff removal of their 730, 741-42, 122 S.Ct. 153 any clearly 2001 violated jury April (2002) an vio- (finding 666 obvious L.Ed.2d statutory or constitutional established Eighth lation where inmate of Amendment person a reasonable rights which hitching post, to was handcuffed once known. would have to wa- regular seven hours without access breaks). v. District Columbia ter or bathroom Office of (D.D.C. F.Supp.2d 84 Mayor, 813 (internal 2011) (Atherton III) quotation official is government Whether omitted). marks immunity qualified “generally entitled to objective legal turns reasonableness on the District Court agree with We action, light legal of the assessed Assuming that arguendo substance. at the clearly rules that were established judicial determination requires Mathews v. Mil time it was taken.” Messerschmidt dismissal from process prior formal to — lender, U.S. - 132 in Ap- jury, no reasonable official (2012) (internal quotation 182 L.Ed.2d position would have understood pellees’ omitted); Malley Briggs, marks see also v. “clearly to requirements estab- those 106 S.Ct. as a matter. lished” constitutional (“[A]n (1986) allegation L.Ed.2d immunity to defeat malice is not sufficient II objectively reason in] if acted an [official “Qualified immunity gov shields manner.”). It that is thus axiomatic able damages from liabili officials civil ernment immunity ample pro qualified “provides statutory or ty unless the officialviolated plainly incompetent tection to all but the clearly that estab right was law.” knowingly violate the who those challenged con lished the time Briggs, 475 U.S. at Reichle, “Clear 132 S.Ct. at 2093. duct.” Here, due owed procedural a case require does “not ly established” today as it unclear grand juror seems as existing precedent directly point, on ago when Atherton was over a decade statutory have or constitu placed must April on dismissed question beyond debate.” tional Ashcroft — cited no cases parties have 2074, 2001. The al-Kidd, U.S. -, found (2011). this Court has directly point on To deter- Brown, just passing resemblance.1 F.2d at one of Ather- 597. Nor was it our argues analogy, relying ton instead intention to To speak process. the con- Brown, chiefly 23(b) trary, “only we held Rule is not (D.C.Cir.1987). F.2d 591 available a pos- [ ] when evidence discloses judge in The trial Brown had removed a sibility juror that the gov- [ ] believes juror inability confessed an who honor ernment failed present has sufficient apply conspiracy the R.I.C.O. act as support evidence to a conviction.” Id. See id. at Reversing written. 594-95. added). (emphasis pointed The reference conviction, we held that a criminal defen- to Rule 23 underscores Brown’s limited right to a dant’s Sixth Amendment unani- reach implicates only since Rule 23 trial petit may mous means “a court juries, juries. not grand Simply put, noth- juror dismiss a if during deliberations ing suggests grand jurors in Brown had a request discharge stems doubts clearly “[jjudicial right established to the sufficiency harbors about the [bjefore [hjearing [dismissal” Ather- government’s evidence.” Id. at 596. ton requires. Reply believes Mathews Br. Atherton contends that the holding in at 15. apposite Brown is to situations involving grand jurors. dismissal He maintains even if But Brown spoke clearly “grand jurors Brown makes clear that question to the of process, it is simply cannot be dismissed unless and until a inapposite. grand petit While both and judge a finding good makes cause juries a against as vital “aet[ ] check shown, implicitly, only and after notice and wrongful power by exercise of the State opportunity to be Reply heard.” Br. at 15. and its prosecutors,” v. Campbell Louisi This claim is simply bold untenable. ana, 392, 399, 523 U.S. matter, As a threshold Brown does not (1998) (internal quotation L.Ed.2d 551 speak process. concluding In that the omitted), marks the District correct Sixth categorically Amendment barred the ly grand juries noted that exist as “an jurors, certain removal of never opined we institution separate from the courts” for on procedures required what in the which, least,” “as a general matter at no “many may circumstances” where courts “ freely ‘supervisory’ judicial authority use Federal Criminal Rule of exists.” Proce- 23(b) discharge III, dure Rule juror. a F.Supp.2d at 82 (quoting Peters, (7th v. grand United States 791 F.2d juror. 6(g) require Nor does Rule a Cir.1986), superseded by statute on other notify subject investiga- court to grounds Guerrero, stated as in United v. grand tion that a has been dismissed (7th Cir.1990), implicated 894 F.2d explain or to the reason for the dismissal. Rule 6 cedure, Federal Rules of Criminal Pro An hearing disrupt adversarial would analogue the Federal to the delay grand jury proceedings, and therefore Court's Rule 6. The criminal defendant in petitioner requesting hearing a such a bears argued Peters had “that an adversarial hear heavy a burden. ing necessary was to determine whether the Peters, however, Id. distinguishable is insofar grand juror’s prior judicial ap excusal had juror’s request as it involved to be excused proval simply was an arbitrary exercise of grand jury, magistrate judge's ap- prosecutorial discretion.’’ Id. 1283. The and, proval request, might of the excusal as quickly Seventh Circuit argu dismissed the case, expected given facts of an Holding hearing ment. that no such emphasis rights on the of the criminal defen- required, court stated: opposed dant juror. as to those of the 6(g) require Rule does not an adversarial hearing may before the court dismiss a Williams, beggars “clearly tute established” doctrine United States (1992)). 1735, 118 L.Ed.2d 352 belief.2 may true that a decision It well be Ill prove persuasive in one could context other, Batson controlling in the even reasons, For the above the District 84 n. Kentucky, qualified immunity Court’s decision to find (1986) (“The basic 90 L.Ed.2d 69 Bailey-Jones’s grant and Zachem’s re- persons prohibiting exclusion of principles spective motions to dismiss is ac participation Affirmed. essentially the same count their race are (in juries petit juries” for grand ROGERS, Judge, concurring. Circuit omitted)), but for marks quotation ternal least, principle present purposes at join holding I the court in that the feder- can petit “clearly established” employee al in the prosecutor and D.C. grand applied to the seamlessly not be Superior Court Juror Office are entitled the translation im jury especially where it was qualified immunity because — significant pro a difference as plicates “clearly established” at the time of Ather- and, concomitantly, cedure grand jury ton’s from the dismissal the court. jury’s relationship with rights. I either his constitutional violated write Atherton’s chal- separately because thing, For the function of one a lenge has the absence of clear petit uncovered from that of jury “quite is different Case, juror. 976, dismissing grand procedure re F.2d jury.” In Sealed 877 (D.C.Cir.1989). num- greater With 982 emphasized Supreme The Court has jurors, requirement unanimity, no of ber of that petit safeguard of an and the eventual criticism, much notwithstanding periodic Mechanik, 475 jury, United States overlooking of is rele- superficial, which 938, 66, 73, L.Ed.2d 106 89 50 U.S. history, grand jury the continues to vant (1986) (“[T]he petit jury’s verdict rendered or as a to reckless un- function barrier in the any conceivable error harmless office charges.... Its historic founded charging might that [grand jury’s] decision against provide shield has been violation.”), it is not have flowed from the action, by arbitrary or insur- oppressive reasoning underlying clear whether the criminal accusations will ing that serious holding Brown our Sixth Amendment considered brought only upon the here —if apply would with the same force body of representative of a judgment bottom, that suggestion At the all at all. and under acting under oath citizens logic in inferential leaps these —Sixth judicial guidance. instruction Amendment, petit to Fifth Amendment 564, Mandujano, 6, 425 U.S. United States jury, Rule 23 to Rule jury grand (1976). 212 96 S.Ct. L.Ed.2d juror, etc.'—consti- criminal defendant clear, suggest that brazenly we do not mean to say appellees so To be can we acted Nor practices government policies and clearly established informal as to violate Atherton's 741-42, undermine Hope, can defeat or otherwise rights. offices See at clearly or established constitutional contrary, what is To the the S.Ct. 2508. only statutory We mean that informal the law. ad hoc administration of Court's symp- the "objective practices this are sometimes process only sort reaffirms the removal confusion, not the cause. doctrinal legal Appellees’ actions. toms of reasonableness” Messerschmidt, plainly case here. is the at 1245. Such 132 S.Ct. (1979); recognized impor- So too this court has the 60 L.Ed.2d 156 see also D.C.Super. 6(e)(2); role our played grand jury tant the Ct.Crim. Fed. framework, noting 6(e)(2). that de- R.Crim.P. Given insulation of spite criticism it not independent that “is grand jury procedures outside scruti- all,” remains ] “vital[ ny, unsurprising it is to discover that there importan[t],” disregard role “[t]o [its] judicial ais dearth of and academic com- ... effectively would be to emasculate mentary subject. on the Jury Grand Clause of the Constitution.” discussion, The absence of formal how- Coachman, United States v. F.2d ever, is not total. The United States Dis- (D.C.Cir.1985). recently, 690 n. 29 More trict Court for the Eastern Division Supreme has reaffirmed that Northern District of Illinois published has shield, grand jury as a stating acts Jury Foreperson’s a Grand Handbook, is Fifth there doubt” that “the “[n]o which of “problematic addresses the issue grand jury Amendment serves vital right (1997), jury members.” http://www.ilnd. providing function in body for a of citizens uscourts.gov/JURY/Grndjury.htm; prosecutorial pow- that acts as a check on Brenner, also Susan W. Grand Jurors Cotton, er.” United States v. Jury Speak, in Grand 2.0: Per- Modern spectives Jury (Roger Grand (2002). Whether not these character- Fairfax, ed., 2011) Anthony Jr. (discussing grand jury always izations of the match This HANDBOOK makes Handbook). reality, independent idea “prerogative clear that it is the aas “buffer referee between the grand jury foreperson to recommend the people” Government and the is a well- any grand jury dismissal of member for established part jurisprudence. our cause,” due Judge” it is the “Chief Williams, States v. who will make the ultimate “decision.” (1992). 118 L.Ed.2d 352 Similarly, the U.S. Department of Justice’s Moreover, Supreme Court has ob- Jury states that Grand Practice Manual that, served the exception voting, “with staff “the the United States Attor- and/or for most privilege citizens honor and can ney grand to juror move excuse for [a] jury duty significant is their most opportu- cause”; use of the verb “move” and the nity participate pro- to in the democratic exclusion “staff’ as as prosecutors well Ohio, cess.” Powers v. decision-making final im- process (1991). 1364, 111 plies judicial requisite involvement. appears Little to have on been written 1(D)(6) (1991) § MANUAL (emphasis add- subject of the of a grand dismissal ed), http://www.justice.gov/atr/public/ juror, action, which, an depending on who guidelines/206542.htm# ID6. it, takes implicates and could possibly Atherton was sworn as a substitute threaten the heralded independence of the grand juror grand and served grand jury. jury on for operates The Grand “at days, three Branch, “summarily when he length” arm’s from the and Judicial Williams, permanently 1735, at dismissed” for allegedly be- proceedings ing “disruptive.” secrecy and its in Atherton v. cloaked District of reasons, Columbia, (D.C.Cir. notably for various to 567 F.3d order 2009) (“Atherton ”); ensure the free II protection deliberation and also Affidavit of grand jurors themselves, III, of the Doug- Judge King Chief Rufus Supe- G. D.C. Aff.”). Stops Court, las Oil Co. v. Petrol rior Nov. (“King California Northwest, n. by 99 S.Ct. He was dismissed the Juror Office em- grand jury,” Op. from a to dismissal prior United on the Assistant based ployee procedur- notes that “the grand the court that other Attorney’s report States juror grand owed a seems him. See al due complaining about were jurors today it was over a decade II, far as as unclear F.3d at 676. So indicates, was an Atherton was dismissed ago his dismissal when the record 11, 2001,” at 515. April Op. Nei- on at 676-77. See id. response. hoc ad job description nor employee’s ther counsel could shed Although neither explicitly author- court order local rule nor charge of the to light on the content juror. Some a sworn her to dismiss ized they clarified that “conven- jurors, grand dismissal, the then- after Atherton’s time juries in the judges” charge grand ing Superior Court Judge of the D.C. Chief Joint Appellees’ Court. See Superior D.C. that he require procedures changed Instructions, Oct. Jury Notice Re Grand any imposition before be “consulted follow, at 1. It would seem to During King Aff. jury discipline.” grand in the judge involvement of a given the however, counsel for argument, oral jury, charging grand of the convening Attorney’s and the Office grand juror of a is also that the dismissal light no could shed District of Columbia case, In Atherton’s judge. for a decision Does by “consultation.” is intended what understanding of the Judge’s the Chief the dismissal deci- Judge make the Chief grand dismissal of a seriousness of not, If who does? sion? agreement from his might be inferred the D.C. The rules of and his later decision meet with Atherton until jury “shall serve grand that a provide informal procedures for change the other Judge or discharged by the Chief clarifica- jury discipline. Further grand Judge.” by the Chief judge designated dismissing a procedures tion of the (“Rule 6(g)”). D.C.Super. 6(g) Ct.Crim. however, juror, would grand Nonetheless, in this case indi the record integrity protecting interests of dismissing a procedure cates that jury. independence clarity juror is unclear. Whatever see, rules, may be the statutes there ll-1908(b)(4); 6(g), Rule §

e.g., D.C.Code matter,

is, practical as a undermined interpretations conflicting plausible informal parties and the

offered time of Atherton’s dismiss at the

practice May

al, Atherton v. D.C. Office of (D.D.C.2011).1 or, F.Supp.2d

Indeed, arguendo that “[ajssuming 319, 96 Eldridge, 424 U.S. [v.

Mathews (1976),] requires a and formal

judicial determination with Reply Br. at 20 27 and lant’s Br. at divergent interpretations of the parties’ 1. The Appellee juror dismissal reveal and rules on Br. at 45-46 Appellee statutes Zachem’s misinterpretation— course, susceptible they Of nei- Bailey-Jones’s Br. at 24-25. authority to exclude e.g., the Court's whether policies practices can defeat nor ther informal 1908(b) § exclu- is jurors under D.C.Code 11— statutory requirements. Cf. §11- by judge, id. sively exercised to be Op. n.2. at 517 "Court”). Appel- 1902(4) Compare (defining

Case Details

Case Name: Atherton v. District of Columbia Office of the Mayor

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 8, 2013

Citation: 706 F.3d 512

Docket Number: 11-5298

Court Abbreviation: D.C. Cir.