Doe v. U.S. Dept. of Justice

Citation753 F.2d 1092,243 U.S.App.D.C. 354
Decision Date01 February 1985
Docket NumberNo. 84-5006,84-5006
PartiesJane DOE, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

W.W. Sleater, Clayton, Mo., for appellant, with whom Jane Doe was on the brief.

Thomas Millet, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty., and Paul Blankenstein, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellee.

Before WRIGHT and WALD, Circuit Judges, and MacKINNON, Senior Circuit Judges.

Opinion for the Court as to Parts I-IV.A & V filed by Circuit Judge WALD.

Opinion for the Court as to Part IV.B filed by Circuit Judge J. SKELLY WRIGHT.

Opinion dissenting as to Part IV.B filed by Circuit Judge WALD.

Opinion dissenting in part and concurring in part filed by Senior Circuit Judge MacKINNON.

WALD, Circuit Judge:

This appeal involves an action brought by a former Department of Justice ("DOJ" or "Department") attorney against the Department and various DOJ officials in their individual and official capacities. On May 26, 1981, the plaintiff, proceeding in this case under the fictitious name of Jane Doe, was discharged from her position as a DOJ attorney amidst charges of unprofessional conduct and dishonesty. After unsuccessfully petitioning the government for a hearing on these allegations, Doe brought suit in district court, claiming that her termination violated Department regulations and that it deprived her of a constitutionally protected liberty interest without due process. The plaintiff also sued several Department officials, in their individual and official capacities, for infringing her liberty interest in reputation without due process. Doe sought reinstatement, back pay and other appropriate relief from the Department; she sought damages from the individual defendants.

Pursuant to the Department's motion under Rule 12 of the Federal Rules of Civil Procedure, 1 the district court dismissed the entire complaint for failure to state a claim upon which relief could be granted. See Doe v. United States Dep't of Justice, Civ. No. 83-1499 (Oct. 31, 1983) [hereinafter cited as "Opinion "]. Specifically, the district court ruled that the claim against the individual defendants was barred by the relevant statute of limitations, that the Department had not violated any mandatory internal regulations, and that Doe's liberty interest claim against the DOJ must be dismissed for failure to seek the proper remedy. On appeal, Doe challenges each of these rulings. We now affirm the district court's dismissal of Doe's claims against the Department based on internal DOJ regulations. See infra Part II. The panel (Judges Wright and MacKinnon) also affirms the district court's dismissal of Doe's damage action against the individual defendants. See infra Part IV. We conclude, however, that Doe's liberty interest claim against the Department states a cause of action upon which relief can be granted and that a genuine issue of material fact remains with respect to that claim. See infra Part III. We therefore vacate the district court's dismissal of Doe's liberty interest claim against the DOJ and remand for further proceedings consistent with this opinion.


From 1974 until her discharge, Doe worked as an attorney in the Lands and Natural Resources Division of the Department. In 1978, she was assigned to the Indian Resources Section of that Division and placed under the supervision of defendants Myles Flint and Rembert Gaddy. In September of 1980, she was chosen to head up a major water rights lawsuit in Cheyenne, Wyoming. On March 18, 1981, Doe received a phone call from Flint's secretary requesting that she attend a meeting at his Washington office in five days. The plaintiff claims that she asked Gaddy and Flint about the subject of the meeting and was told to expect a routine briefing on pending cases. See Plaintiff's Complaint p 13, Joint Appendix ("J.A.") at 5. At the March 24th meeting, however, Flint charged that Doe had become "loud and disorderly" and had "lost control" of herself in a discussion with another Department attorney involved in the Wyoming litigation. 2 He also alleged that, several months earlier, she had consumed beer during a deposition and had encouraged others, including the deponent, to drink. Doe flatly denied both charges and complained that she had not been given the opportunity to review her notes concerning the events in question. Id. p 16, J.A. at 6.

Approximately one hour later, the plaintiff was summoned to a second meeting with Gaddy, Flint and defendant Anthony Liotta, Acting Assistant Attorney General of the Lands and Natural Resources Division. At that meeting, Flint reiterated the allegations of unprofessional conduct, and Doe again denied the charges. Liotta stated that the Department would have to investigate the allegations and he directed Flint to establish procedures for obtaining statements from those present at the events in question. Id. paragraphs 17-18, J.A. at 6-7. The plaintiff was also informed at the meeting that defendant Tom Echohawk, a junior attorney assisting Doe in the Wyoming litigation, had provided the initial information to Gaddy.

Flint undertook a further investigation of the two charges over the next few days. 3 See Affidavit of Myles E. Flint at paragraphs 15-17, J.A. 31-33. According to Flint, some of the people he contacted confirmed, at least in part, the allegations, see id. (describing conversations with Echohawk and a government expert witness involved in the Wyoming litigation); others, according to the plaintiff, told Flint that the charges were untrue. See Plaintiff's Complaint p 19, J.A. at 7. On March 27, 1981, the Department removed Doe as the head counsel for the Wyoming litigation and reassigned her to Washington pending the outcome of the investigation. Id. p 20, J.A. at 7-8. Immediately after the reassignment, several attorneys involved in the Wyoming litigation urged Flint, Gaddy and Liotta to retain Doe on the case, asserting that Doe had not done anything that had interfered with the case or that had hampered the Department's interests. See Affidavit of Myles E. Flint p 15, J.A. at 32; Affidavit of Anthony C. Liotta p 5, J.A. at 20-21; see also Plaintiff's Complaint p 21, J.A. at 8. According to Gaddy, however, at least one of the attorneys indicated that Doe had indeed used "bad judgment" in the two incidents at issue. See Affidavit of Rembert A. Gaddy, p 7, J.A. at 37-38.

No further action was taken until Doe was summoned to a meeting with Flint and Gaddy on May 14, 1981. At that meeting, Flint informed her that the "investigation" was complete and confronted her with affidavits concerning the incidents in question from Liotta, Flint, Gaddy, Echohawk and an expert witness Flint had contacted at the suggestion of Echohawk. Plaintiff's Complaint p 22, J.A. at 8-9. Flint then demanded the plaintiff's resignation by May 15 and indicated that, if she refused to resign, she would be terminated and the affidavits placed in her personnel file. Id. Flint also suggested that the investigation and eventual termination decision had been approved by defendant Edward Schmults, Deputy Attorney General. Id. On May 15, Doe requested a three day extension for the resignation decision from Assistant Attorney General Carol Dinkins, also a defendant in this case. Dinkins granted the extension but declined to discuss the merits of the allegations. Id. p 23, J.A. at 9. On May 18, Doe, through her attorney, refused to resign and formally requested a hearing at which she could confront her accusers and present evidence that the charges were untrue. Id. p 24, J.A. at 9; see also Appellant's Appendix at Exhibit A (letter from plaintiff's attorney to Schmults denying charges and requesting a hearing).

On May 26, 1981, the hearing request was denied and Doe received a formal memorandum of termination. See Memorandum from Edward Schmults to Jane Doe (May 26, 1981), J.A. at 47-48. The memorandum reiterated the original charges and stated that Doe's actions violated the Department's Standards of Conduct, see 28 C.F.R. Part 45 (1984), and the Canons of Ethics of the American Bar Association. The memorandum also stated that "[t]he adverse effect of your conduct on the Department is aggravated ... because you lied to your [immediate supervisors] by denying that these incidents occurred. Later you also lied to the Acting Assistant Attorney General by denying the same incidents." Memorandum from Edward Schmults to Jane Doe 2 (May 26, 1981), J.A. at 48.

On June 15, 1981, Doe appealed her termination to the Merit Systems Protection Board (MSPB), requesting, among other things, a hearing concerning the circumstances leading to her removal. The Department actively opposed this appeal, arguing that the MSPB lacked jurisdiction to hear Doe's case because she was a member of the excepted civil service. 4 See Reply Brief for the Appellant at Exhibit C (the Department's motion to dismiss Doe's MSPB appeal). An MSPB examiner agreed with the Department and dismissed the appeal for want of jurisdiction, see Jane Doe v. Department of Justice, No. 0607528110628 (July 30, 1981), and the full MSPB later upheld the examiner's dismissal. The plaintiff simultaneously sought redress from the Office of the Special Counsel; on December 8, 1981, that office also declined to investigate the circumstances leading to the termination. See Appellant's Supplemental Appendix (letter from Special Counsel's office declining to investigate Doe's termination).

Doe, proceeding pro se, subsequently filed a complaint in district court alleging that her discharge violated Department regulations and that the termination and surrounding allegations of unprofessionalism and...

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