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Radack v. United States Dep't of Justice

July 17, 2006

JESSELYN A. RADACK, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

Jesselyn Radack brings this action against her former employer, the United States Department of Justice ("DOJ" or "the Department"), alleging that DOJ's Office of Professional Responsibility ("OPR") violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., by acting contrary to DOJ policy when it referred allegations of Radack's professional misconduct to District of Columbia and Maryland bar authorities. Before the court is DOJ's motion to dismiss, or in the alternative, for summary judgment (Dkt. #13/14). Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that Radack's request for injunctive relief must be dismissed for lack of subject matter jurisdiction, and DOJ's motion for summary judgment must be granted for the remainder of the claim.

I. BACKGROUND

Although the court has previously provided a detailed account of the facts underlying this case, see Radack v. United States Dep't of Justice, 402 F. Supp. 2d 99 (D.D.C. 2005), the court offers a brief synopsis in order to provide context for its review of the instant motion.

Radack worked at DOJ from October 1995 to April 2002, spending her final three years there as a legal advisor in the Professional Responsibility Advisory Office ("PRAO"), which provides advice to DOJ attorneys regarding professional responsibility and choice of law issues. In accordance with her responsibilities at PRAO, in December of 2001 Radack rendered advice to a DOJ attorney inquiring about the "ethical propriety of a proposed FBI interview" of John Walker Lindh.*fn1 Compl. ¶ 11. After discussing the inquiry with PRAO's senior legal advisor, Radack concluded that the proposed interview would be a pre-indictment and custodial overt interview that was not authorized by law. On December 10, 2001, Radack learned that, despite her advice, the FBI had nonetheless interviewed Lindh. Radack immediately told her supervisor, Claudia Flynn, that PRAO's advice had been ignored. Flynn responded by saying that "PRAO's involvement in the matter was over." Id. ¶¶ 14--15.

On January 15, 2002, the United States Attorney's Office filed criminal charges against Lindh in the United States District Court for the Eastern District of Virginia. In response to a discovery letter from Lindh's attorney, the United States Attorney's Office sought all communications concerning PRAO's assistance with the Lindh matter. After an exhaustive search, Radack provided all responsive e-mails to her supervisor to be delivered to the prosecutors handling the criminal proceedings.

Radack eventually came to believe that the e-mails she collected were not produced in their entirety. Radack, however, was unaware that a number of the e-mails she suspected were withheld were in fact submitted to the court, ex parte and under seal, for an in camera inspection in connection with the government's motion for a protective order. On April 1, 2002, the court granted the government's motion for a protective order and prohibited disclosure of the PRAO e-mails.

After being (what she characterizes as) "constructively fir[ed]," id. ¶ 24, Radack resigned from PRAO on April 5, 2002, and began working at a law firm. In June 2002, Radack heard a broadcast on National Public Radio stating that DOJ claimed it never took the position that Lindh was entitled to counsel while in custody in Afghanistan. The broadcast led Radack to believe that her e-mails had not been produced to the United States Attorney's Office or the court "because [she] did not believe the Department would have the temerity to make public statements contradicted by its own court filings." Id. ¶ 27. Still unaware that the e-mails had been turned over and were subject to a protective order, Radack disclosed her e-mails to Newsweek magazine, where they appeared in the online edition on June 15, 2002.

On June 19, 2002, the Lindh court instructed the government to file a written submission that addressed whether the e-mails were disclosed by an individual bound by the protective order. The Office of the Inspector General ("OIG") subsequently initiated an investigation and concluded that Radack had disclosed the e-mails. Though DOJ ultimately did not seek an indictment against her, Radack alleges that during the course of the investigation, an OIG agent informed her law firm that she was under criminal investigation and "enlisted their assistance in interrogating" her. Id. ¶ 35. She claims that her refusal to speak with the agent caused her to be fired from her law firm.

On October 11, 2002, DOJ filed a report with the court identifying Radack as the source of the disclosure. The court, however, determined that Radack's disclosure did not technically violate the protective order. On September 11, 2003, DOJ informed Radack's counsel that it had closed the criminal investigation of Radack. Subsequently, on October 31, 2003, OPR sent letters to the District of Columbia and Maryland bar authorities indicating that Radack "may have violated her duty not to knowingly reveal attorney-client privileged information" by disclosing the e-mails to Newsweek. Id. ¶ 40. The Attorney Grievance Commission of Maryland dismissed the referral against Radack on February 23, 2005, but the District of Columbia bar investigation is still pending, and Radack remains unemployed.

II. DISCUSSION

DOJ moves to dismiss Radack's claims or, in the alternative, for summary judgment. DOJ argues that dismissal is warranted for a variety of reason, among them, that Radack lacks Article III standing. DOJ submits that Radack's claims must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1)*fn2 for lack of subject matter jurisdiction because her injury is not "fairly traceable" to the Department and because the requested relief, if granted, would not redress her injury. The court will address the issue of Article III standing first, as it must. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998).

A. Article III Standing

"To have Article III standing, a plaintiff must demonstrate an 'actual or immediate' 'injury-in-fact' that is 'fairly traceable' to the challenged conduct and 'likely' to be 'redressed by a favorable decision.'" Tozzi v. U.S. Dep't of Health and Human Servs., 271 F.3d 301, 307 (D.C. Cir. 2002) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560--561 (1992)). DOJ asserts that Radack cannot establish the causation element because the complained-of injury was "the result of independent action of third parties not before the Court," Def.'s Mot. at 19, and because the injury "is more fairly traced to her own conduct, rather than to any act of the Department." Id. at 20 (emphasis in original). The Department further asserts that Radack cannot establish the redressability element because "[n]either the ...


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