The opinion of the court was delivered by: Emmet G. Sullivan, Judge
MEMORANDUM OPINION & ORDER
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
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 § 517 is non-reviewable or, alternatively,
that the government has articulated a sufficient interest to pass ...