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March 28, 2001


The opinion of the court was delivered by: Emmet G. Sullivan, Judge


I. Introduction

Plaintiff Sheryl Hall is a former computer systems manager for the White House. Hall and other White House employees were allegedly instructed to create a partisan, political database on Democratic contributors and fundraising using government staff and resources. Hall alleges that after she complained that this practice violated the Hatch Political Activity Act, 18 U.S.C. § 594 et seq, defendant Hillary Rodham Clinton and others conspired to force her out of her job. Hall claims that she suffered damages as a result of this treatment, including emotional distress and stress-related physical ailments.

Hall commenced this action against Clinton and the Democratic National Committee ("DNC"). Specifically, she sued Clinton for tortious interference with contractual relations and intentional infliction of emotional distress. She also sued DNC alleging civil conspiracy and, pursuant to section 1985(1), conspiracy to injure her on account of the lawful discharge of her duties.

Hall brought an earlier case in the Eastern District of Virginia, Hall v. Clinton, No. 99-694-A ("Hall I"), which involved the same facts but stated claims under different legal theories. The Eastern District of Virginia dismissed on two alternate grounds: (1) the court had no subject matter jurisdiction due to preemption under the Civil Service Reform Act, 5 U.S.C. § 1201 et seq. ("CSRA"); and (2) failure to state a claim upon which relief can be granted. See Hall I, No. 99-469-A December 3, 1999 Order (E.D.Va.). The Court of Appeals for the Fourth Circuit affirmed. See Hall v. Clinton, 235 F.3d 202 (4th Cir. 2000).

Clinton and DNC filed motions to dismiss this case. Hall opposes both motions and filed a motion to disqualify the United States Department of Justice ("DOJ") from representing Clinton. Upon consideration of Hall's motion to disqualify DOJ, the opposition thereto, and the arguments in court, the motion to disqualify DOJ from representing Clinton is DENIED. Further, upon consideration of the two motions to dismiss, and the oppositions thereto, each defendant's motion to dismiss is GRANTED. This case is DISMISSED WITH PREJUDICE.

II. Hall's Motion to Disqualify DOJ and to Strike the Pleadings Filed on Clinton's Behalf.

Early in this case, Clinton indicated that she was seeking representation from DOJ under 28 C.F.R. § 50.15(a)(1), which authorizes representation for federal employees sued for activity within the scope of employment and where representation is deemed in the interest of the United States.*fn1 However, Clinton now states that DOJ is not providing her with representation pursuant to 28 C.F.R. § 50.15(a)(1), but, rather, under the department's broader authorization to provide representation to protect U.S. interests. See 28 U.S.C. § 516, 517. Specifically, 28 U.S.C. § 516 gives the Attorney General responsibility for the conduct of litigation in which the U.S. is a party or U.S. interests are at stake. Section 517 states that the "Solicitor General, or any officer of the Department of Justice, may . . . attend to the interests of the United States in a suit pending in a court of the United States. . . ."

DOJ contends that the department has unreviewable authority to decide who to represent under 28 U.S.C. § 517, citing to Falkowski v. EEOC, 764 F.2d 907, 911 (D.C. Cir. 1985). Falkowski reviewed the Supreme Court's decision in Heckler v. Chaney, 470 U.S. 835, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). There, the Supreme Court held that the FDA's decision not to regulate lethal injections was unreviewable because, like a decision not to prosecute, it was committed to the agency's sole discretion and there was no law for a reviewing court to apply. Accordingly, the Circuit held that DOJ's decision not to provide legal representation under 28 U.S.C. § 517 was also unreviewable. See Falkowski, 764 F.2d at 911.

Hall challenges this basis for representation arguing that the government has no interest here because this is a private tort action between Hall and Clinton. Hall cites the cautionary language of In re Debs, 158 U.S. 564, 586, 15 S.Ct. 900, 39 L.Ed. 1092 (1985), that "it is not the province of the government to interfere in any mere matter of private controversy between individuals, or to use its great powers to enforce the rights of one against another."

Before reaching the merits of Hall's argument, the Court must determine whether it can review DOJ's decision to represent Clinton. If this were a decision not to provide representation then Falkowski would settle the question. See e.g, Flanagan v. Reno, 8 F. Supp.2d 1049 (N.D.Ill. 1998); Guiken Corp. v. I.R.S., 1987 WL 15112 (S.D.N.Y. July 28, 1987). However, Heckler holds that "when an agency does act to enforce, 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. This suggests that a decision to act may be reviewable, even though a decision not to act is not reviewable.

To support its position, DOJ cites Brawer v. Horowitz, 535 F.2d 830 (3rd Cir. 1976), which upheld DOJ's decision to represent a non-government defendant in a civil case where the case was deemed to implicate the interests of the United States. That case involved a criminal informant who was subsequently sued in a civil action for an alleged conspiracy to use perjured testimony. The Brawer Court dismissed the contention that DOJ had no authority to represent a non-government defendant in a civil suit as "approach[ing] the frivolous," noting that the only limitation in 28 U.S.C. § 517 is that an interest of the United States be at stake. Id. at 836. Further, that court found that the United States did have an interest in ensuring that criminal informants are free from the threat of harassing civil suits due to their testimony. See id.*fn2

DOJ also cites, Booth v. Fletcher, 101 F.2d 676 (D.C. Cir. 1938), that underscores the breadth of the attorney general's discretion to determine the interests of the United States under the predecessor statute to §§ 516, 517. The Booth Court noted that the Attorney General is empowered to provide representation "whenever in his opinion those interests may be jeopardized." Id. at 681. The Circuit in Booth also noted that Congress has tacitly sanctioned the appearance of DOJ in many cases between private persons where a U.S. interest is involved. See id. at 682. Thus, it appears that the discretion afforded to the attorney general under §§ 516, 517 is as extensive as contemplated by DOJ.

Accordingly, the Court concludes that a decision to provide representation subject to ยง 517 is non-reviewable or, alternatively, that the government has articulated a sufficient interest to pass ...

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