Krieger v. Fadely

Decision Date05 May 2000
Docket NumberNo. 99-5311,99-5311
Citation341 U.S. App. D.C. 163,211 F.3d 134
Parties(D.C. Cir. 2000) Roy W. Krieger, Appellant v. Kathlynn G. Fadely, et al.,Appellees
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia(98cv01703)

Roy W. Krieger, appearing pro se, argued the cause and filed the briefs for appellant.

Mark B. Stern, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were David W. Ogden, Acting Assistant Attorney General, and Wilma A. Lewis, U.S. Attorney.

Before: Edwards, Chief Judge, Ginsburg and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

After working for four years as a trial attorney in the Civil Division of the Department of Justice, Roy W. Krieger returned to private practice. The first law firm he joined went bankrupt. Six months later, Krieger found work at a second firm and remained there for a year before leaving to join a third. The third firm fired him after he had been there a little more than a year. Krieger believes Kathlynn Fadely, his immediate supervisor at Justice and his co-counsel in a lengthy trial still ongoing when he resigned, instigated his firing. His complaint named Fadely, the Justice Department and the United States as defendants.

The Attorney General certified that Fadely was acting within the scope of her employment with respect to local law counts 1 through 6 and moved to substitute the United States for Fadely as a defendant under 28 U.S.C. S 2679(d)(1). Two days later, the district court issued an order directing the substitution.

Krieger objects that the district court acted too precipitously, that the local rule entitled him to eleven days to respond, and that he was therefore improperly denied an "opportunity to be heard." Brief for Appellant at 10. He has a point. Krieger should have been heard, particularly since the effect of the substitution was to render the defendant--now the United States--completely immune on three counts (for defamation--count 1--and interference with contract--counts 5 & 6). See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 427-29 (1995); Williams v. United States, 71 F.3d 502, 505-06 (5th Cir. 1995). The trouble for Krieger is that in the eleven months between the substitution and the dismissal of his complaint, he voiced not a word of protest to the district court. His objection to the substitution order appeared for the first time on appeal. Had he made his objection known to the district court, the problem could easily have been cured. The court could have vacated its order and treated the matter de novo, in light of whatever evidence and arguments Krieger then mustered. That Krieger had not objected immediately to the certification would not have been held against him. Rule 46 of the Federal Rules of Civil Procedure provides that "if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party." See Insurance Servs. of Beaufort, Inc. v. Aetna Cas. & Sur. Co., 966 F.2d 847, 852 (4th Cir. 1992). In any event, Krieger had a duty to speak out and make his objection known--if, in fact, he had an objection. We add the qualification because Krieger's silence may have been for tactical reasons: although the United States had immunity on some of the counts, it had a deeper pocket than Fadely on others. See Gutierrez de Martinez, 515 U.S. at 427. Krieger's failure to object, for whatever reason, cannot be excused. To use the terminology of United States v. Olano, 507 U.S. 725, 732 (1993), his neglect in the district court at least "forfeited" his right to raise the issue in this court. Id. at 732; see also, e.g., Singleton v. Wulff, 428 U.S. 106, 120 (1976); Doe v. DiGenova, 779 F.2d 74, 89 (D.C. Cir. 1985). We may go further and say, again in the Olano phrasing, that he "waived" the issue. 507 U.S. at 733. When the government moved to dismiss counts 1, 5 and 6 on the basis of its immunity, Krieger--rather than opposing on the ground that the United States was improperly substituted for Fadely--stated to the district court that he could "not in good faith oppose" the motion. Plaintiff's Response in Opposition to Defendants' Motion to Dismiss at 2.

One of Krieger's other contentions relates to the district court's dismissal, for failure to state a cause of action, of count 8, which alleged that "[t]hrough the acts and omissions of Defendant Fadely within the scope of her employment, Defendant DOJ wrongfully disclosed to unauthorized persons records concerning Plaintiff subject to protection under the Privacy Act, 5 U.S.C. S 552a(b)." Earlier paragraphs, incorporated by reference, alleged that Fadely had precipitated Krieger's firing by "secretly" calling the senior partner in Krieger's firm and telling him that Krieger's performance at the Justice Department "had been deficient." The district court dismissed count 8 on the basis that Krieger failed to "identify any 'records' or arguably confidential information that has been wrongly disclosed." Krieger v. Fadely, Civ. No. 98-1703, mem. op. at 15 (D.D.C. Aug. 9, 1999) ("mem. op.").

Among the elements of a civil action for damages under the Privacy Act are that the agency disclosed "any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains...." 5 U.S.C. S 552a(b); see Pilon v. United States Dep't of Justice, 73 F.3d 1111 (D.C. Cir. 1996); Tomasello v. Rubin, 167 F.3d 612 (D.C. Cir. 1999). If his lawsuit went forward, there would come a...

To continue reading

Request your trial
225 cases
  • SWEDISH AMERICAN HOSPITAL v. Sebelius
    • United States
    • U.S. District Court — District of Columbia
    • March 5, 2010
    ...506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.2000) (internal quotation marks and citation Yet, "to survive a motion to dismiss, a complaint must contain sufficient factual ma......
  • Wayne Epps v. United States Capitol Police Bd.
    • United States
    • U.S. District Court — District of Columbia
    • June 28, 2010
    ...506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), or “plead law or match facts to every element of a legal theory,” Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.2000) (internal quotation marks and citation omitted). That said, “it is possible for a plaintiff to plead too much: that is, to ......
  • Ficken v. Golden
    • United States
    • U.S. District Court — District of Columbia
    • March 16, 2010
    ...506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.2000) (internal quotation marks and citation Yet, "to survive a motion to dismiss, a complaint must contain sufficient factual ma......
  • Alston v. District of Columbia
    • United States
    • U.S. District Court — District of Columbia
    • June 19, 2008
    ...506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.2000) (internal quotation marks and citation Yet, the plaintiff must allege "any set of facts consistent with the allegations." B......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT