United States District Court, District of Columbia
E. BOASBERG, UNITED STATES DISTRICT JUDGE
poker parlance, sometimes it's better to fold at the turn
than to toss in more chips to see the river. After a round of
motion-to-dismiss briefing, the Court largely sided with
Plaintiffs Stewart Liff and his eponymous business, Stewart
Liff & Associates, Inc., leaving intact their
procedural-due-process claim against several government
agencies and their Bivens claim against those
agencies' officers. The gist of Liff's Complaint was
that Defendants had sullied his good name and precluded him
from his chosen profession after they investigated and then
outed him for wasting government resources while serving as a
public-sector consultant. The Court, in allowing the claims
to proceed, deferred ruling on Defendants'
statute-of-limitations defense to the Bivens cause
of action. Because of less-than-comprehensive briefing on a
particularly thorny issue, the Court left it on the table.
Government now requests that the Court flip over that last
card. In Defendants' Motion to Reconsider, they ask to
have their limitations-period argument resolved. Like many a
bettor, seeing another card does not improve the outcome, as
the Court ultimately denies the Motion and concludes that at
least some of Liff's Bivens claim is timely.
present Motion concerns an issue addressed in the prior
Opinion on Defendants' Motion to Dismiss, the Court
presumes that the reader is familiar with that decision.
See Liff v. OIG for the U.S. Dep't of Labor, 156
F.Supp.3d 1 (D.D.C. 2016).
The Case Unfolds
described there, Liff was a civil-service retiree who then
pursued a follow-on career in government consulting.
Id. at 5-6. In late 2009, through a contact at the
U.S. Department of Labor - Ray Jefferson - Liff and his
company began work as a subcontractor on various DOL
projects. Id. at 6. (For ease of reference, the
Court will refer to Liff in the singular, although his
company is also a Plaintiff.) Then, in 2011, he started
consulting with the Office of Personnel Management.
relationships were short lived. Following an eight-month
investigation into contracting improprieties, DOL's
Office of Inspector General issued a report in July 2011,
concluding that Jefferson had disregarded federal-procurement
rules, ethics principles, and fiscal responsibilities in
retaining Liff. Id. That report also effectively
implied that the government had not obtained good value for
Plaintiff's services. Id. at 7. The bad news
streamed forth, as OIG then held a press conference and
issued a follow-up memorandum reiterating much of the same
allegations; then, in early 2013, OPM proceeded with its own
investigation, report, and memorandum. Id. at 7-9.
During and after this time, Plaintiff lost various
federal-government clients and speaking opportunities, and
his consulting revenue dwindled to a tiny fraction of what it
had been. Id.
2014, Liff and Jefferson filed separate lawsuits, which were
designated in this Court as related cases. See Jefferson
v. Harris, No. 14-1247 (D.D.C.). As for Liff, he
asserted in Count I that the agencies at issue had degraded
his professional reputation, which effectively barred him
from government contracting, without adequate process as
guaranteed by the Fifth Amendment's Due Process Clause.
In Count II, he brought similar claims in a damages action
against several individual officers pursuant to Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971). (Last, in Count III, he asserted the
same variety of process violations against the agency
Defendants under the Administrative Procedure Act, although
those claims would later be dismissed.)
then sought to dismiss the Complaint. The Government first
argued that Plaintiff had not staked out a plausible
procedural-due-process claim that Defendants had deprived him
of any liberty interest without notice and an opportunity to
be heard on the issue. Specifically, Defendants asserted that
Count I housed only a defamation claim, which alone would be
insufficient to trigger due-process protections. See
ECF No. 17 (Motion to Dismiss) at 9 (citing Siegert v.
Gilley, 500 U.S. 226, 233 (1991) (“[I]njury to
reputation by itself [is] not a ‘liberty' interest
protected under the [Due Process Clause.]”)).
Defendants then acknowledged that an individual could bring a
so-called “reputation-plus claim, ” they
argued, among other things, that such a claim was only
actionable if reputational damage arose from defamatory
statements and was accompanied by an adverse
employment action, such as termination (the
“plus” element). Id. at 10-12. Neither
was present here, they contended. Id.
response, Plaintiff attempted to clear the air. Liff
explained that two types of procedural-due-process claims
were available to litigants in his position:
reputation-plus and stigma-plus.
See ECF No. 20 (MTD Opposition) at 7; see also
O'Donnell v. Barry, 148 F.3d 1126, 1140-41 (D.C.
Cir. 1998) (differentiating between the two theories).
Although Defendants had framed the action as a
reputation-plus case, Liff argued that his “due process
claims are grounded principally in the
‘stigma-plus' line of cases.” MTD Opp. at 8,
15-23. The “plus” in the latter cases was not any
adverse employment action but rather that a
government-imposed stigma had effected a tangible change in
the individual's status under the law, which stigma
effectively closed the gates on his future career
opportunities. In making this clarification, Plaintiff also
retorted that such “stigma-plus claims do not require
defamatory statements.” Id. at 19 n.5.
this briefing, the Court sided with Liff's theory of the
case and determined that he had made out a
procedural-due-process claim against the agency Defendants.
See Liff, 156 F.Supp.3d at 10-12. The Court first
concluded that the investigations and statements relating to
Liff's services sufficiently suggested a stigma - that
is, “a pall had been cast over Plaintiffs' honesty
and integrity.” Id. at 12.
that such a reputational cloud, without more, was not enough,
the Court then proceeded to analyze whether this stigma had
worked a “tangible change in status” for Liff.
Id. In the Court's view, Liff had alleged
enough: OPM's actions had effectively barred him from
future work with the agency, as Plaintiff contended that OPM
“took steps” to immediately conclude business
ties with him, canceled an outstanding task order, and
suggested Liff “would not be used again by OPM for
consulting services.” Id. at 14 (quoting
Compl., ¶ 50). As to DOL, the Court commented that it
was plausible that the agency's public report put
Plaintiff out of business, as his disqualification from DOL
work could affect his overall employability, given that other
agencies might need to investigate his past performance
before they retained him. Id. at 15-16 (citing 48
C.F.R. § 9.105-1(c)(5)).
Liff's Bivens claim that the individual
Defendants should be liable for violating his
procedural-due-process rights, the Court addressed a number
of defenses. It first disposed of the Government's
qualified-immunity position and then deferred ruling on its
argument that no Bivens remedy existed for
reputational-harm cases. Id. at 18-21.
particularly relevant here, the Court also held off on
deciding Defendants' statute-of-limitations defense. The
Government argued that the D.C. Circuit had, in Doe v.
DOJ, 753 F.2d 1092 (D.C. Cir. 1985), held that in
reputation-based procedural-due-process actions, the District
of Columbia's one-year limitations period for defamation
applied. Plaintiff retorted that, four years after
Doe, the Supreme Court in Owens v. Okure,
488 U.S. 235 (1989), had scaled back on state-law borrowing
of particular statutes of limitations and instead instructed
courts to rely on the residual period, which was three years
in the District. Because the briefing was lacking on the
continuing vitality of Doe, this Court set aside the
statute-of-limitations defense for a later time. See
Liff, 156 F.Supp.3d at 18.
Further Procedural Developments
followed from that Opinion procedurally is somewhat tricky.
First the individual Defendants filed the present Motion to
Reconsider the Bivens statute-of-limitations
question, asking the Court to decide the issue in
the first instance. On February 25, 2016, before the Court
could resolve the Motion, however, they filed a Notice of
Appeal to challenge the Court's decision on qualified
immunity. See ECF No. 29 (Notice of Appeal); see
also No. 16-5045 (D.C. Cir.). This Court stayed the case
pending that appeal.
Government swiftly requested a lift of the stay so that this
Court could resolve the instant Motion. Following further
briefing on the stay question, this Court obliged. See
Liff v. OIG for the U.S. Dep't of Labor, No.
14-1162, 2016 WL 4506970 (D.D.C. Aug. 26, 2016). In doing so,
it reasoned that a resolution could benefit the parties and
ultimately expedite the proceedings. Id. at *3. If
the Court now ruled on the limitations-period question, it
might be possible for the Court of Appeals to resolve both
the already-appealed qualified-immunity issue and the
timeliness issue together, as opposed ...