John DOE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 16-20567
United States Court of Appeals, Fifth Circuit.
FILED April 11, 2017
REVISED April 12, 2017
Acker has not demonstrated any dispute of material fact that his untimely phone calls, could have sought a reasonable accommodation under the ADA. He failed to follow GM‘s absence procedure, was disciplined, and has successfully followed GM‘s absence procedure since. As a consequence, Acker has not proved how GM denied him any accommodation.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Jimmy Anthony Rodriguez, Assistant U.S. Attorney, U.S. Attorney‘s Office, Houston, TX, for Defendant-Appellee.
Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
John Doe filed suit against the United States in the Southern District of Texas, asserting that the Government violated his Fifth Amendment due process rights by accusing him of a crime during the course of a criminal proceeding in which he was not named a defendant. Doe sought a declaratory judgment that his Fifth Amendment rights had been violated, expungement of court records, and other forms of nonmonetary relief. The district court granted a motion to dismiss filed by the Government, holding that the action was barred by limitations. We affirm.
I
In 2008, the Government filed a Criminal Information (the Information), charging a defendant to whom we will refer as Roe under
In the course of explaining the kickback scheme, the Government noted that the Consultant
was a citizen of the United States and a citizen of [a foreign country specifically identified]. From in or about 1977, until in or about 1988, [ ] Consultant was a salesperson employed by [ABC Corp.] responsible for [projects abroad]. In or about 1988, [ ] Consultant resigned from [ABC Corp.] and became a consultant to [ABC Corp.] and subsequently [XYZ Corp.], among other firms. At various times after 1988, [ ] Consultant used corporate vehicles for his consulting business.
The Government identified two of the Consultant‘s corporate vehicles by name as, respectively, the “[First] Consulting Company” and the “[Second] Consulting Company” and specified the locations of projects—and in one case, the specific project—in which the Consultant allegedly participated in the kickback scheme.
Roe pleaded guilty to both conspiracy charges. In the plea agreement, the Government described the factual basis for the guilty plea by largely reiterating the allegations in the Information. However, the Government specifically named one of the foreign projects to which it had previously referred more generally in the Information. During the plea hearing, the Government also noted that its “investigation is broad and [that] there are [other] potential defendants, targets, both here and abroad” and again referenced that the Consultant is “a dual U.S. and foreign national.”
Doe maintains that the Government‘s description of the Consultant identified him “in all respects except by name” because “there are few contractors and customers that comprise” the particular industry in which he worked, and “no other person in the industry possesses these same personal and biographical characteristics.” Doe alleges that his clients were able to identify him from this description, causing some clients to cease engaging Doe and his companies for consulting and ultimately costing him “many millions of dollars in consulting fees.” He also asserts that he “was unable to obtain further consulting work[,] . . . which was a direct result of the prosecutor‘s public statements during the [Roe] plea hearing and elsewhere that the [Government‘s] investigation of the [ ] Consultant and others was ‘ongoing.‘”
Roe‘s sentencing did not occur until 2012. During the sentencing hearing, the Government explained the basis for its sentencing recommendation. In pertinent part, it stated that Roe‘s “involvement in a very substantial kickback scheme with another consultant in which he stole upwards of $11 million from [XYZ Corp.] is certainly something that factor[ed] into [its] recommendation.” In response to the district court‘s question of whether the kickback scheme benefitted XYZ Corp., the Government noted that the scheme benefitted XYZ Corp. “in the sense that the consultants [sic] that [Roe] was working with was hired to engage in bid-rigging” and obtained projects for XYZ Corp. Doe claims that these references to the consultant involved in the kickback scheme triggered renewed interest from colleagues and former clients. He also alleges that, at this time, he experienced difficulties conducting his financial affairs in his native
In 2015, Doe filed suit in the Southern District of Texas, contending that the Government violated his right to due process by publicly accusing him of a crime in a criminal proceeding without providing him a public forum for vindication. The relief he sought included: a declaration that the Government violated his Fifth Amendment right to due process; an order directing the Clerk of the Court to “obliterate and strike” all references to him from the publicly filed documents in Roe‘s criminal proceeding; and an order directing the Government to “obliterate and strike from the [Department of Justice] website, and from any other record available to the public, all references” to him in documents relating to or publicly filed in Roe‘s criminal proceeding.
The Government moved to dismiss pursuant to
II
The district court had jurisdiction under
Whether the Government is entitled to sovereign immunity from suit presents a question of law that we review de novo.6
A
In arguing that sovereign immunity is not implicated, Doe relies on United States v. Briggs, in which this court held that “[s]overeign immunity does not bar . . . relief” when an unindicted individual requests to have his or her name expunged after being accused of a crime in the indictment but is not provided a forum for vindication.7 We concluded that a request to expunge “in the circumstances . . . presented” in Briggs is “no more subject to the defense of sovereign immunity than the filing of a bill of particulars or the raising of an objection . . . by the named defendants.”8
The Government asserts that when
The decision in Briggs, as well as its progeny in our Circuit,13 addressed a situa
A court seemingly has the power to manage its records, even though the proceeding that generated those records has concluded.15 A request for expungement or sealing of court records would not appear to implicate sovereign immunity, but we are not called upon to address that question in this case. Doe has directly sued the United States, and Doe seeks relief beyond expungement, including a declaration that the Government violated his Fifth Amendment rights when it accused him of a crime in the Roe criminal prosecution.
Because the Government has been sued, subject matter jurisdiction is at issue, and we must resolve that issue “prior to addressing the merits” of any claims.16 The Government moved to dismiss all of Doe‘s claims, asserting that they are barred by sovereign immunity and arguing that the only potential waiver of sovereign immunity is contained in
As an initial matter, the Government does not contend that the Department of Justice (DOJ) is not an “agency.” We note that
Congress amended
At least two Circuit Courts of Appeals have held that the second sentence of
Doe maintains that he has suffered a “sanction.” The Government asserts that it is not a “sanction” for a governmental agency to make statements that “allegedly harm a person‘s reputation or standing in the business community,” citing a 1948 decision from the D.C. Circuit Court of Appeals.23 The D.C. Circuit has called that decision into question at least twice,24 observing that ” ‘an agency intent on penalizing a party through adverse publicity, especially false or unauthorized publicity, might well merit a review of its action’ as a sanction.”25
The term “sanction” is defined in
III
The district court dismissed Doe‘s claims under
The district court observed that our court has “not addressed which statute of limitations period applies to a due process claim seeking expungement of an accusation,” and therefore “adopt[ed] the general statute of limitation provision of
The district court concluded that
A
Subject to limited exception,
Doe argues that he did not have a complete and present cause of action until he “was affirmatively denied a forum for vindication,” that is, until either the Government notified him that he would not be indicted for his alleged involvement in the kickback scheme or the Government would be barred by limitations from prosecuting Doe for his alleged criminal activity. However, we have held that a Fifth Amendment claim seeking expungement of district court records was cognizable even though prosecution of the party seeking expungement might yet occur. In In re Smith, we ordered expungement despite noting that “[o]ur opinion will in no way interfere with any legitimate investigation” of the party who obtained expungement,40 and in United States v. Briggs, we granted relief despite acknowledging the possibility of a later indictment.41 Vindication of “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ”42 We note that, although the foregoing statement was made in a different context, the present case exemplifies the need for a claim such as Doe‘s to be brought at a meaningful time. The 2008 records that Doe seeks to expunge have been public for many years, and the harm to Doe commenced in 2008.
In cases like the present one, the accrual of a right to relief is not deferred until it is clear that no indictment will or can ever issue. The fact that the Government might have rendered the “extraordinary remedy of expungement”43 unwarranted had it indicted Doe before he brought his claim44
B
Doe argues that the due process violation is a “continuing” one, and that the statute of limitations should be equitably tolled until the Government “afford[s] the opportunity to contest the criminal allegations against him.” Although courts may equitably toll
Generally, in determining if equitable tolling is appropriate, we focus the inquiry “on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights.”50 As we have explained above, when Doe was “named” as a criminal actor without being indicted, the harm occurred. Doe admits that there was “extensive publicity about the [Roe] guilty plea” and Doe asserts that he received calls from clients and colleagues “[i]mmediately” after the plea proceedings “ask[ing] about the [G]overnment‘s allegations that he had paid kickbacks to [Roe].” But even absent these effects, when “named,” Doe‘s cause of action had accrued, and he could have initiated expungement proceedings. To the extent that Doe‘s failure to initiate suit within the limitations period was the result of his mistaken belief that he could not file suit because his claim had not yet accrued, a mistake of this nature does not provide a valid basis for tolling.51 The continuing violation doctrine is inapplicable. The statute of limitations bars review of the statements made in 2008 as well as those in 2012.
IV
The district court‘s dismissal of claims pertaining to the statements made by the prosecutor at the 2012 sentencing hearing can be affirmed on an additional basis. For purposes of our review of the dismissal of the Complaint, we accept as true the allegation that the 2012 statements “spawned renewed focus on [Doe] and resulted in additional inquiries from former clients and colleagues . . . regarding whether he had been formally charged with [the] criminal offenses” described
The Government provided information during the course of Roe‘s sentencing hearing to explain the nature of the offense and the reason for its sentencing recommendation. The Government stated that Roe was “involve[d] in a very substantial kickback scheme with another consultant” to “distinguish[ ]” the sentence the Government was seeking from the sentences received by others involved in the scheme. The second statement was that the kickback scheme benefitted XYZ Corp. “in the sense that the consultants [sic] that [Roe] was working with was hired to engage in bid-rigging” to obtain business for XYZ Corp.
The references to a “consultant” during the sentencing hearing contained minimal identifying information. To the extent that Doe contends it was only in conjunction with the 2008 statements that the 2012 reference to a “consultant” made him identifiable, he seeks to expand the limitations period to include the 2008 statements. That is impermissible. We therefore consider only the 2012 references, standing alone, and conclude that references as nondescript as those to which Doe objects do not violate due process. Doe has not alleged a plausible due process violation.
We do not reach the question of whether, when balancing the governmental interests against the rights of the individual,52 the Government‘s interest in referring to a “consultant” for purposes of providing information about Roe to the sentencing court was paramount. We have discussed in other decisions circumstances that might permit the provision of identifying information, such as the need to identify an unindicted coconspirator for purposes of Federal Rule of Evidence 801(d)(2)(E), and we have discussed measures that can be taken to shield the identity, and to protect the rights, of an unindicted coconspirator.53 At a minimum, protective measures should have been employed in the Roe prosecution in 2008. But because Doe delayed more than six years to seek redress, limitations bars his complaint at this late date regarding identifying information that has been publicly available since 2008. It is only when the identifying information available since 2008 is considered that Doe has a plausible claim that he was “named” in 2012. The references in 2012 were not, in and of themselves, identifying.
V
Although we ordinarily review the denial of leave to amend for abuse of discretion,54 if the denial was predicated solely on futility, as here, “we apply a de novo standard of review identical, in practice, to the standard used for reviewing a dismissal under
* * *
For the foregoing reasons, we AFFIRM the district court‘s judgment dismissing Doe‘s case.
H. Kenneth LEFOLDT, Jr., in his capacity as Trustee FOR the NATCHEZ REGIONAL MEDICAL CENTER LIQUIDATION TRUST, Plaintiff-Appellee,
v.
HORNE, L.L.P., Defendant-Appellant.
No. 16-60245
United States Court of Appeals, Fifth Circuit.
FILED April 11, 2017
REVISED April 12, 2017
See also 2017 WL 1279258.
Notes
(first emphasis added).A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.