285 F.3d 74 | D.C. Cir. | 2002
Lead Opinion
Opinion for the Court filed by Circuit Judge HENDERSON.
Concurring Opinion filed by Circuit Judge RANDOLPH.
The appellant, Sheryl L. Hall, seeks reversal of the district court’s March 28, 2001 opinion and order denying her motion to disqualify the Department of Justice (DOJ) from representing appellee Hillary Rodham Clinton (Clinton) and dismissing her lawsuit against Clinton and the Democratic National Committee (DNC). See Hall v. Clinton, 143 F.Supp.2d 1 (D.D.C. 2001) (Hall II). In the district court, Hall, a former White House employee, sued Clinton under common-law tort theories of tortious interference with contractual relations and intentional infliction of emotional distress. In addition, she sued the DNC, alleging that it conspired to interfere with her civil rights and that it engaged in civil conspiracy.
As to Hall’s claims against Clinton, the district court held that the DOJ can represent Clinton pursuant to 28 U.S.C. § 517 because its decision to do so is either
As to Hall’s claims against the DNC, the district court, which assumed arguendo that the doctrine of issue preclusion did not bar her civil rights conspiracy claim, see id. at 6, held that the CSRA preempts that claim, see id. Additionally, it found that — irrespective of the CSRA — Hall’s civil rights conspiracy claim would be barred by the statute of limitations. See id. Finally, it held that the DNC could not be liable for civil conspiracy because the alleged conspiracy “does not have as its object an objectionable wrong.” Id. (quotation omitted).
Point by point, Hall contests on appeal each of the district court’s conclusions. Because her arguments are without merit, see infra Part II, we affirm the district court.
I.
Hall is a former computer systems manager of the Office of Administration in the Executive Office of the President. She alleges that in November 1993 she was directed to develop software for the “White House Office Database” (WhoDB), which she asserts was being developed for “partisan, political purposes.” Joint Appendix (JA) 10 (Compl. ¶ 12).
On May 17, 1999 Hall filed a pro se complaint in the Eastern District against Clinton and senior White House officials. She subsequently filed an amended com
On December 13, 1999 — just ten days after the dismissal of her complaint against Clinton and others — Hall initiated this suit in the district court. She brought two common-law tort claims against Clinton: a claim of tortious interference with contractual relations on the ground that “Clinton willfully and intentionally interfered with Hall’s long-standing employment relationship with the United States Government in an attempt to force Hall to terminate that relationship,” JA 14 (Compl. ¶ 33); and a claim of intentional infliction of emotional distress on the ground that “Clinton’s conduct towards Hall ... was extreme and outrageous, not only due to the nature of the conduct itself but also because such acts and conduct constitute^] a gross abuse of Mrs. Clinton’s position as First Lady of the United States,” JA 15 (Compl. ¶ 36). In addition, Hall brought two claims against the DNC: a claim that it violated section 1985 in that Clinton and the DNC “conspired to injure Hall ... on account of [her] having discharged her budgetary, managerial, supervisory and other duties,” JA 17 (Compl. ¶ 44); and a claim of civil conspiracy on the ground that Clinton and the DNC “tacitly or explicitly agreed to develop the WhoDB using United States Government personnel and United States Government resources, in direct violation of the Hatch Act,” JA 16 (Compl. ¶ 40). Finally, Hall filed a motion to disqualify the DOJ from representing Clinton in the litigation.
As mentioned above, the district court held that the DOJ’s decision under section 517 to represent the former First Lady is not subject to judicial review or, alternatively, that section 517 expressly authorizes the decision. See Hall II, 143 F.Supp.2d at 3 4. Further, it dismissed all four of Hall’s claims for various and alternative reasons, see id. at 5-6, that Hall now challenges.
We discuss the district court’s holdings on the motions presented — and address Hall’s challenges thereto — in turn.
A.
Hall claims, first, that the district court erred in failing to disqualify the DOJ from representing Clinton because “Clinton was neither an officer nor an employee of the U.S. Government” at the time Hall filed her complaint. Br. of Appellant at 28. We review the court’s denial of a motion to disqualify counsel for abuse of discretion, see Wheat v. United States, 486 U.S. 153, 163-64, 108 S.Ct. 1692, 1699-1700, 100 L.Ed.2d 140 (1988), and therefore will not lightly cast its decision aside.
Under 28 U.S.C. § 517,
[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.
28 U.S.C. § 517 (emphasis added). The district court concluded that “a decision to provide representation subject to § 517 is non-reviewable” by a federal court because, under the United States Supreme Court’s decision in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), it is “committed to the [DOJ’s] sole discretion and there [is] no law for a reviewing court to apply.” Hall II, 143 F.Supp.2d at 4. In support of this proposition, the district court cited Falkowski v. EEOC, 764 F.2d 907 (D.C.Cir.1985), reh’g denied, 783 F.2d 252 (D.C.Cir.), cert. denied, 478 U.S. 1014, 106 S.Ct. 3319, 92 L.Ed.2d 727 (1986), in which we held that the DOJ’s decision not to provide legal representation under section 517 was un-reviewable. Falkowski, 764 F.2d at 911 (DOJ’s decision “involve[d] the allocation of [the] agency’s scarce legal resources” and was therefore “better suited to the expertise of the agency than of the courts”). If we were dealing here with the DOJ’s decision not to represent Clinton, Falkowski would settle the matter; we could not review, much less second-guess, the agency’s discretionary call. Heckler makes clear, however, that “when an agency does act ..., that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.” Heckler, 470 U.S. at 832, 105 S.Ct. at 1656 (emphasis in original);
Nevertheless, we affirm the district court’s denial of Hall’s motion to disqualify the DOJ on a narrower ground: “[T]he government has articulated a suffi-
As we discuss below, the district court’s erroneous reliance on one basis for departure, combined with lack of advance notice of its use of a second departure provision and the uncertain sufficiency of the third provision as the sole basis for the departure, requires that the case be remanded for re-sentencing. We explain our conclusion by addressing each of the three relevant provisions of the guidelines.
A. The Departure under U.S.S.G. § ¿Al. 8, p.s.
This provision allows a district court to depart from the otherwise applicable sentencing range “[i]f reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.... ” Appellant’s criminal history score of 19 gave him six points more than the threshold for Criminal History Category VI, the highest category in the guidelines. In such a case, a court seeking to impose a sentence appropriate for the defendant’s record may depart from the guideline range by moving down the sentencing table to a higher offense level. U.S.S.G § 4A1.3, p.s.; see Chapman, 241 F.3d at 63. In other words, when the criminal history category cannot be adjusted upward to account for a defendant’s score because he already is in the top category, a court “may instead adjust upward the offense level in order to arrive at an appropriate sentence.” Chapman, 241 F.3d at 63. Based on this provision, the district court moved two levels from offense level 20 to offense level 22, which provided a sentencing range of 84 to 105 months, an increase of eighteen months at the maximum end of the range.
Appellant challenges this departure on two fronts. First, he contends that his criminal history was not sufficiently “egregious” to trigger § 4A1.3. See U.S.S.G. § 4A1.3, p.s. (allowing departure in the case of “an egregious, serious criminal record”). Second, he argues that he is entitled to a remand because he received no notice that the district court intended to depart on this basis — which, as acknowledged by the government, was a violation of U.S.S.G. § 6A1.3(a), p.s. and Fed. R.Crim.P. 32(c)(1). See Burns v. United States, 501 U.S. 129, 138-39, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991); United States v. Martin, 221 F.3d 52, 55-56 (1st Cir.2000). He asserts that the omission was not harmless, as the lack of notice deprived him of the opportunity to fully demonstrate why this departure was unwarranted. He further argues that the record fails to show that the court would have imposed a four-level upward departure even if § 4A1.3 were not considered.
We need not evaluate the egregiousness of appellant’s record because we find his notice argument to be dispositive. The court departed a total of four levels based on three provisions. Two levels were attributed explicitly to § 4A1.3 — the basis for which appellant received no notice. The other departures were not assigned any particular increase; the court simply moved up to the statutory maximum in reliance on the two additional provisions. To find harmless error, as indeed the government argues, we would have to conclude that the court inevitably would have departed upward by four levels based solely on those two other factors. See Williams v. United States, 503 U.S. 193, 204, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) (“[A] remand is appropriate unless the reviewing court concludes, on the record as a whole ... that the error did not affect the district court’s selection of the sentence
B.
Next, Hall asserts that the district court erroneously dismissed her common-law tort claims against Clinton. She contends that the doctrine of issue preclusion does not apply because “the Eastern District was not required to consider whether the CSRA provided the sole remedy [for] the conduct at issue, as opposed to claims at issue” and because “there is an important difference between the law of this Circuit and the law in the Fourth Circuit.” Br. of Appellant at 10. She argues as well that in enacting the CSRA the Congress did not intend to preempt common-law tort claims “against non-federal employees ... such as Mrs. Clinton.” Id. at 17. We review the district court’s dismissal de novo, see Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C.Cir.1998), and conclude that Hall’s arguments for reversal do not avail her.
Under the doctrine of issue preclusion, as we held in Yamaha Corp. of Am. v. United States, 961 F.2d 245 (D.C.Cir.1992), cert. denied, 506 U.S. 1078, 113 S.Ct. 1044, 122 L.Ed.2d 353 (1993), the standards for establishing the preclusive effect of an earlier holding are:
First, the same issue now being raised must have been contested by the parties and submitted for judicial determination in the prior case. Second, the issue must have been actually and necessarily determined by a court of competent jurisdiction in that prior case.... Third, preclusion in the second case must not work a basic unfairness to the party bound by the first determination. An example of such unfairness would be when the losing party clearly lacked any incentive to litigate the point in the first trial, but the stakes of the second trial are of a vastly greater magnitude.
Yamaha Corp., 961 F.2d at 254 (citations omitted). Hall believes that the doctrine
[i]f a new legal theory or factual assertion put forward in the second action is related to the subject-matter and relevant to the issues that were litigated and adjudicated previously, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged.
Yamaha Corp., 961 F.2d at 257-58 (quotation omitted) (emphasis in original). Hall could have raised her tort claims in the Eastern District in Hall I. Nowhere does she assert that she lacked incentive to raise them. Because her contention that Clinton committed common-law torts against her is “relevant to the issue[ ] that [was] litigated and adjudicated previously” — namely, whether the CSRA constituted the sole remedy for Clinton’s conduct— the Eastern District’s judgment in Hall I precluded the district court in Hall II from considering the tort claims.
C
Finally, Hall asserts that the district court erroneously dismissed her section 1985 and civil conspiracy claims against the DNC. She argues: that her section 1985 claim is not time-barred by the District of Columbia’s three-year statute of limitations because “she did not and could not discover crucial facts concerning the bases for her claims ... until November 30, 1998,” Br. of Appellant at 10; that she “clearly states a cause of action for ... civil conspiracy” against the DNC because she “plainly alleges that Mrs. Clinton and the DNC agreed to a common, unlawful plan — to convert government resources and utilize government personnel to create a database for ... partisan political purposes,” id. at 10-11; and that the CSRA does not preempt either of her conspiracy claims against the DNC because the DNC is not a federal entity, see id. at 10. Once again, we review de novo the district court’s dismissal of Hall’s claims, see Artis, 158 F.3d at 1306, and, once again, we find her arguments for reversal unavailing.
Hall resists this conclusion, pointing to an allegation in her complaint that she “did not discover the operative facts alleged [tjherein until after the publication on or about November 30, 1998 of a report by the United States House of Representatives Committee on Government Reform and Oversight [about] the WhoDB.” JA 14 (Compl. ¶ 28). In light of this allegation, she says, we must assume to be true — for motion-to-dismiss purposes— that the statute-of-limitations clock did not start until November 30, 1998. See Br. of Appellant at 21-22 (citing Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994)). Hall’s argument is misguided. Indeed, the very case she cites for her proposition makes clear that we need not defer to her legal “allegations” about the statute of limitations any more than we would have to accept as true an “allegation” asserting, for instance, that “existing precedent requires the court to award me the damages I seek.” See Kowal, 16 F.3d at 1276 (“[T]he court need not accept ... legal conclusions cast in the form of factual allegations.” (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944-45, 92 L.Ed.2d 209 (1986))). The complaint itself reveals that Hall knew in November 1993 that the WhoDB was allegedly “to be used to further the private, political interest of the Clintons and the DNC.” JA 11 (Compl. ¶ 12); see Hall II, 143 F.Supp.2d at 6. The district court, therefore, properly dismissed her section 1985 claim against the DNC.
It is equally clear that Hall has not stated a cause of action against the DNC for civil conspiracy. Civil conspiracy, of course, is not actionable in and of itself but serves instead “as a device through which vicarious liability for the underlying wrong may be imposed upon all who are a party to it, where the requisite agreement exists among them.” Riddell v. Riddell Wash. Corp., 866 F.2d 1480, 1493 (D.C.Cir.1989). The district court quoted our case law, quite rightly, for the proposition that “ ‘as a matter of substantive law, one cannot be liable for a conspiracy that does not have as its object an actionable wrong.’ ” Hall II, 143 F.Supp.2d at 6 (quoting Riddell, 866 F.2d at 1494) (emphasis added). Hall contends that, for the purpose of civil conspiracy, it does not matter whether the predicate conduct is independently actionable or merely illegal; in both instances, she asserts, an action lies for conspiracy. See Reply Br. of Appellant at 7. Yet again, the very case Hall cites, Halberstam v. Welch, 705 F.2d 472 (D.C.Cir.1983), refutes her assertion in no uncertain terms. Halberstam holds that the two essential elements of civil conspir
III.
For the foregoing reasons, the district court’s denial of Hall’s motion to disqualify the DOJ and its dismissal of her claims against Clinton and the DNC are
Affirmed.
. In reviewing the district court's grant of the defendants’ motions to dismiss, we accept as true the allegations that Hall sets forth in her complaint. See El-Hadad v. United Arab Emirates, 216 F.3d 29, 32 n. 5 (D.C.Cir.2000) (citing Saudi Arabia v. Nelson, 507 U.S. 349, 351, 113 S.Ct. 1471, 1474, 123 L.Ed.2d 47 (1993)).
. 42 U.S.C. § 1985 provides, in pertinent part, that
[i]f two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; ... or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties; ... the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
42 U.S.C. § 1985(1), (3).
. Acknowledging that Heckler suggests “a decision to act may be reviewable, even though a decision not to act is not reviewable,” Hall II, 143 F.Supp.2d at 4, the district court held in the alternative that if the DOJ's decision to represent Clinton is reviewable, the decision was lawful. See infra.
. The Congress has explicitly acknowledged the First Lady's quasi-official role in White House affairs: "Assistance and services ... are authorized to be provided to the spouse of the President in connection with assistance provided by such spouse to the President in the discharge of the President’s duties and responsibilities." 3 U.S.C. § 105(e). Indeed, expressly relying on this provision, we have construed the Federal Advisory Committee Act’s phrase, "fulltime officers or employees of the Federal Government," 5 U.S.C.App. 2, § 3(2)(iii), to include Clinton. See Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 911 (D.C.Cir.1993).
. Even if it were true that the Fourth Circuit's law on CSRA preemption differs from ours, as Hall contends, see Br. of Appellant at 15-17, a difference in substantive law “does not affect the application of issue preclusion.” Yamaha Corp., 961 F.2d at 258.
. The district court found it unnecessary to consider “whether Hall's claims [against Clinton] are barred by the doctrine of claim preclusion.” Hall II, 143 F.Supp.2d at 5 n. 3. Because affirmance is justified on issue pre-elusion grounds, we also decline to reach the claim preclusion question. Likewise, while it may be true that "Congress intended for the CSRA to be a comprehensive remedy for federal employees with individualized job grievances,” id. at 5 (citing, inter alia, Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); Spagnola v. Mathis, 809 F.2d 16, 30 (D.C.Cir.1986)), we do not reach that issue.
. Because we affirm the district court's dismissal of Hall's section 1985 claim on statute-of-limitations grounds, we need not address whether the CSRA preempts that claim. Cf. supra note 6.
. Perhaps realizing that the district court applied Riddell and Halberstam correctly, Hall asserts for the first time on appeal that the underlying torts were actually Clinton's alleged intentional interference with contractual relations and intentional infliction of emotional distress. See Br. of Appellant at 28. We are precluded from considering her assertion because she did not raise it below. See District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084 (D.C.Cir.1984).
. Because the district court properly dismissed Hall's civil conspiracy claim on this ground, we need not inquire whether the CSRA preempts the claim. Cf. supra notes 6-7. Moreover, although the civil conspiracy claim is governed by the same three-year statute of limitations as the section 1985 claim, see D.C.Code § 12-301(8) — and might well have been barred on that ground — the district court did not consider the prospect because the parties did not raise it. Likewise, we need not consider whether Hall's civil conspiracy claim is time-barred.
Concurrence Opinion
concurring: If the government had raised a separation of powers argument in support of its claim that the Justice Department’s decision to represent now-Senator Clinton is non-reviewable, I might have been persuaded to reach a different conclusion in this case. See U.S. Const., art. II, § 3. Several cases, perhaps dating as far back as Hayburn’s Case, 2 U.S. 408, 2 Dall. 409, 1 L.Ed. 436 (1792), have reviewed the Attorney General’s decision to undertake legal representation in pending cases. But see Maeva Marcus, Hayburn’s Case: A Misinterpretation of Precedent, 1988 Wis. L. Rev. 527, 535 (concluding that the real issue in Hayburn’s Case was whether Attorney General Randolph had the power to proceed without specific authorization from the President). But none of these cases expressly addresses whether the separation of powers inherent in the Constitution precluded the courts from questioning the judgment of the Executive Branch on such a matter. See, e.g., Booth v. Fletcher, 101 F.2d 676, 681-82 (D.C.Cir.1938); Meredith v. Van Oosterhout, 286 F.2d 216, 220 (8th Cir.1960); Int’l Prods. Corp. v. Koons, 325 F.2d 403, 408 (2d Cir.1963); Brawer v. Horowitz, 535 F.2d 830, 834-35 (3d Cir.1976). The issue therefore remains open. See Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411 (1925).