Sheryl L. HALL, Appellant, v. Hillary Rodham CLINTON, In her personal capacity, and DNC Services Corporation d/bla Democratic National Committee, Appellees, 350 U.S. App. D.C. 422

Opinion for the Court filed by Circuit Judge HENDERSON. Concurring Opinion filed by Circuit Judge RANDOLPH. KAREN LeCRAFT HENDERSON, Circuit Judge: The appellant, Sheryl L. Hall, seeks reversal of the district court’s March 28, 2001 opinion and order denying her motion to disqualify' the Department of Justice (DOJ) from representing appellee Hillary Rodham Clinton (Clinton) and dismissing her lawsuit against Clinton and the Democratic National Committee (DNC). See Hall v. Clinton, 143 F.Supp.2d 1 (D.D.C. 2001) (Hall II).

In the district court, Hall, a former White House employee, sued Clinton under common-law tort theories of tortious interference with contractual relations and intentional infliction of emotional distress. In addition, she sued the DNC, alleging that it conspired to interfere with her civil rights and that it engaged in civil conspiracy.

As to Hall’s claims against Clinton, the district court held that the DOJ can represent Clinton pursuant to 28 U.S.C. § 517 because its decision to do so is either unreviewable generally or is in this case supported by “a sufficient interest to pass muster under the flexible mandate of that statute.” Hall 11, 143 F.Supp.2d at 4. The court found that an earlier decision of the United States District Court for the Eastern District of Virginia (Eastern District) precluded it from considering either of Hall’s tort claims.

It went on to hold that, in any event, the Civil Service Reform Act (CSRA), 5 U.S.C. §§ 1101 et seq., “provides the sole remedy for the actions by Clinton in this case.” Id. at 5. As to Hall’s claims against the DNC, the district court, which assumed arguendo that the doctrine of issue preclusion did not bar her civil rights conspiracy claim, see id. at 6, held that the CSRA preempts that claim, see id. Additionally, it found that — -irrespective of the CSRA — Hall’s civil rights conspiracy claim would be barred by the statute of limitations. See id.

Finally, it held that the DNC could not be liable for civil conspiracy because the alleged conspiracy “does not have as its object an objectionable wrong.” Id. (quotation omitted). Point by point, Hall contests on appeal each of the district court’s conclusions. Because her arguments are without merit, see infra

Part II, we affirm the district' court. I. Hall is a former computer systems manager of the Office of Administration in the Executive Office of the President. She alleges that in November 1993 she was directed to develop software for the “White House Office Database” (WhoDB), which she asserts was being developed for “partisan, political purposes.” Joint Appendix (JA) 10 (Compl. ¶ 12).

Among these purposes, she alleges, were the “tracking [of] information on thousands of Clinton/DNC campaign contributors, the amounts that had been contributed and perquisites that had been doled out, such as White House coffees and overnight stays, as well as the coordination of Clinton/DNC political and fund-raising events.” JA 11 (Compl. ¶ 12).

Hall further alleges that she “expressed reservations about whether the project complied with the Hatch Act,” 18 U.S.C. §§ 594 et seq., and that she was thereafter “assigned only menial tasks and was excluded from projects in which she previously had been involved and for which she had been employed.” JA 11, 13 (Compl. ¶ ¶ 15, 22). Hall asserts that in November 1996 her “position was eliminated and her duties and supervisory responsibilities were assigned to a lesser qualified individual under whose supervision she was assigned to work.” JA 13 (Compl. ¶ 23).

According to Hall, “these actions were undertaken at the direction of Mrs. Clinton and in retaliation for Hall’s challenging the unlawfulness of the WhoDB, in an attempt to force Hall to terminate her employment at [t]he White House.” JA 13 (Compl. ¶ 24). Hall claims, that she suffered “extreme emotional distress and stress-related physical conditions” as well as “additional, substantial pecuniary losses” because of the alleged goings-on at. the White House. JA 14 (Compl. ¶ 27). She ultimately resigned from her position effective September 10, 1999. See JA 14.

On May 17, 1999 Hall filed a pro se complaint in the Eastern District against Clinton and senior White House officials. She subsequently filed an amended complaint in which she claimed, inter alia, that Clinton had conspired with other officials to “hinder or impede [her] by intimidation or threat, in the lawful discharge of her duties, and/or to injure [her] in her person or property on account of the lawful discharge of her duties,” in violation of 42 U.S.C. § 1985 (section 1985). JA 116.

Clinton and her co-defendants moved to dismiss and, on December 3, 1999, the Eastern District granted the defendants’ motion, holding that the court lacked subject matter jurisdiction over Hall’s

section 1985 claim because “the actions of the defendants [were] clearly employment-related and [were] encompassed under the [preemptive] remedial scope of the CSRA.” JA 127 CHall v. Clinton, No. 99-694-A, mem. op. at 6 (E.D. Va. Dec. 3, 1999)). On December 19, 2000 the United States Court of Appeals for the Fourth Circuit affirmed, holding that “Congress intended that the CSRA would operate to the exclusion of all other statutory remedies for claims arising out of the federal employment relationship.” Hall v.

Clinton, 235 F.3d 202, 206 (4th Cir.2000) (Hall I), cert. denied, 532 U.S. 995, 121 S.Ct. 1656, 149 L.Ed.2d 639 (2001). On December 13, 1999 — just ten days after the dismissal of her complaint against Clinton and others — Hall initiated this suit in the district court.

She brought two common-law tort claims against Clinton: a claim of tortious interference with contractual relations on the ground that “Clinton -willfully and intentionally interfered with Hall’s long-standing employment relationship with the United States Government in an attempt to force Hall to terminate that relationship,” JA 14 (Compl. ¶ 33); and a claim of intentional infliction of emotional distress on the ground that “Clinton’s conduct towards Hall ... was extreme and outrageous, not only due to the nature of the conduct itself but also because such acts and conduct constitute^] a gross abuse of Mrs.

Clinton’s position as First Lady of the United States,” JA 15 (Compl. ¶ 36). In addition, Hall brought two claims against the DNC: a claim that it violated

section 1985 in that Clinton and the DNC “conspired to injure Hall ... on account of [her] having discharged her budgetary, managerial, supervisory and other duties,” JA 17 (Compl. ¶ 44); and a claim of civil conspiracy on the ground that Clinton and the DNC “tacitly or explicitly agreed to develop the WhoDB using United States Government personnel and United States Government resources, in direct violation of the Hatch-Act,” JA 16 (Compl. ¶ 40). Finally, Hall filed a motion to disqualify the DOJ from representing Clinton in the litigation. As mentioned above, the district court held that the DOJ’s decision under

section 517 to represent the former First Lady is not subject to judicial review or, alternatively, that

section 517 expressly authorizes the decision. See Hall II, 143 F.Supp.2d at 3^1. Further, it dismissed all four of Hall’s claims for various and alternative reasons, see id. at 5-6, that Hall now challenges. II. We discuss the district court’s holdings on the motions presented — and address Hall’s challenges thereto — in turn. A. Hall claims, first, that the district court erred in failing to disqualify the DOJ from representing Clinton because “Clinton was neither an officer nor an employee of the U.S. Government” at the time Hall filed her complaint. Br. of Appellant at 28.

We review the court’s denial of a motion to disqualify counsel for abuse of discretion, see Wheat v. United States, 486 U.S. 153, 163-64, 108 S.Ct. 1692, 1699-1700, 100 L.Ed.2d 140 (1988), and therefore will not lightly cast its decision aside.

Under 28 U.S.C. § 517, [t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States. 28 U.S.C. § 517 (emphasis added). The district court concluded that “a decision to provide representation subject to § 517 is non-reviewable” by a federal court because, under the United States Supreme Court’s decision in Heckler v.

Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), it is “committed to the [DOJ’s] sole discretion and there [is] no law for a reviewing court to apply.” Hall II, 143 F.Supp.2d at 4. In support of this proposition, the district court cited Falkowski v. EEOC, 764 F.2d 907 (D.C.Cir.1985), reh’g denied, 783 F.2d 252 (D.C.Cir.), cert. denied, 478 U.S. 1014, 106 S.Ct. 3319, 92 L.Ed.2d 727 (1986), in which we held that the DOJ’s decision not to provide legal representation under

section 517 was unreviewable. Falkowski, 764 F.2d at 911 (DOJ’s decision “involve[d] the allocation of [the] agency’s scarce legal resources” and was therefore “better suited to the expertise of the agency than of the courts”). If we were dealing here with the DOJ’s decision not to represent Clinton, Falkowski would settle the matter; we could not review, much less' second-guess, the agency’s discretionary call. Heckler makes clear, however, that “when an agency does act ..., 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, 105 S.Ct. at 1656 (emphasis in original); cf. 5 U.S.C. § 706(2)(A) (“The reviewing court shall ... hold unlawful and set aside agency action ... found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law....” (emphasis added)).

Thus, although Clinton appropriately emphasizes the “lengthy history of discretionary authority enjoyed by the Attorney General in determining whether to provide [legal counsel] to federal personnel,” Br. of Appellee Clinton at 32 (quotation omitted), we decline to extend Heckler to the DOJ’s affirmative decision to represent her. Nevertheless, we affirm the district court’s denial of Hall’s motion to disqualify the DOJ on a narrower ground: “[T]he government has articulated a sufficient interest to pass muster under the flexible mandate of’

section 517. Hall II, 143 F.Supp.2d at 4. The statute plainly confers upon the Attorney General broad discretion in his decision to dispatch government lawyers “to attend to any ... interest of the United States.” 28 U.S.C. § 517 (emphasis added); see Falkowski, 783 F.2d at 253 (footnote omitted). Indeed, as the district court pointed out, the statute would appear to permit representation of private individuals as long as a government interest is at stake. Hall II, 143 F.Supp.2d at 4 (citing Brawer v. Horowitz, 535 F.2d 830, 834 (3d Cir.1976) (it “approaches the frivolous” to argue that “the Department of Justice possesses po statutory or regulatory authority [under

section 517] to represent a nongovernment defendant in a civil case”)). Therefore, even if Clinton were a purely private citizen at all times relevant to Hall’s suit— and, arguably, she was not — it was well within the DOJ’s discretion to determine that the United States has (and continues to have) an interest in representing the former First Lady in litigation based upon actions she allegedly undertook while at the White House. The district court did not abuse its discretion in so concluding. B. Next, Hall asserts that the district court erroneously dismissed her common-law tort claims against Clinton.

She contends that the doctrine of issue preclusion does not apply because “the Eastern District was not required to consider whether the CSRA provided the sole remedy [for] the conduct at issue, as opposed to claims at issue” and because “there is an important difference between the law of this Circuit and the law in the Fourth Circuit.” Br. of Appellant at 10. She argues as well that in enacting the CSRA the Congress did not intend to preempt common-law tort claims “against non-federal employees ... such as Mrs. Clinton.” Id. at 17. We review the district court’s dismissal de novo, see Artis v.

Greenspan, 158 F.3d 1301, 1306 (D.C.Cir.1998), and conclude that Hall’s arguments for reversal do not avail her. Under the doctrine of issue preclusion, as we held in Yamaha Corp. of Am. v. United States, 961 F.2d 245 (D.C.Cir.1992), cert. denied, 506 U.S. 1078, 113 S.Ct. 1044, 122 L.Ed.2d 353 (1993), the standards for establishing the preclusive effect of an earlier holding are: First, the same issue now being raised must have been contested by the parties and submitted for judicial determination in the prior case.

Second, the issue must have been actually and necessarily determined by a court of competent jurisdiction in that prior case.... Third, preclusion in the second case must not work a basic unfairness to the party bound by the first determination. An example of such unfairness would be when the losing party clearly lacked any incentive to litigate the point in the first trial, but the stakes of the second trial are of a vastly greater magnitude. Yamaha Corp., 961 F:2d at 254 (citations omitted).

Hall believes that the doctrine is inapplicable here because, she says, the Eastern District did not need to determine whether the CSRA forecloses the common-law tort claims she raises in Hall II but did not “submit for judicial determination” in Hall /.• Hall’s definition of “issue,” however, is far too narrow. As the district court recognized, the “issue” before the Eastern District in Hall I was not whether the CSRA preempted Hall’s

section 1985 claim against Clinton; rather, it was whether the CSRA “constituted the sole remedy for [Clinton’s] alleged conduct.” Hall II, 143 F.Supp.2d at 5 (emphasis in original); see also Hall I, 235 F.3d at 205. Thus, Hall’s common-law tort allegations in this litigation are not new issues but simply new legal theories.

And, as we made clear in Yamaha Corp., [i]f a new legal theory or factual assertion put forward in the second action is related to the subject-matter and relevant to the issues that were litigated and adjudicated previously, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. Yamaha Corp., 961 F.2d at 257-58 (quotation omitted) (emphasis in original). Hall could have raised her tort claims in the Eastern District in Hall I. Nowhere does she assert that she lacked incentive to raise them.

Because her contention that Clinton committed common-law torts against her is “relevant to the issue[ ] that [was] litigated and adjudicated previously” — namely, whether the CSRA constituted the sole remedy for Clinton’s conduct— the Eastern District’s judgment in Hall I precluded the district court in Hall II from considering the tort claims. The district court, therefore, correctly dismissed the claims for lack of subject matter jurisdiction. C. Finally, Hall asserts that the district court erroneously dismissed her

section 1985 and civil conspiracy claims against the DNC. She argues: that her

section ■1985 claim is not time-barred by the District of Columbia’s three-year statute of limitations because “she did not and could not discover crucial facts concerning the bases for her claims ... until November 30, 1998,” Br. of Appellant at 10; that she “clearly states a cause of action for ... civil conspiracy” against the DNC because she “plainly alleges that Mrs.

Clinton and the DNC agreed to a common, unlawful plan — to convert government resources and utilize government personnel to create a database for ... partisan political purposes,” id. at 10-11; and that the CSRA does not preempt either of her conspiracy claims against the DNC because the DNC is not a federal entity, see id. at 10. Once again, we review de novo the district court’s dismissal of Hall’s claims, see Artis, 158 F.3d at 1306, and, once again, we find her arguments for reversal unavailing. Hall’s

section 1985 claim against the DNC is time-barred. No one disputes that “the relevant statute of limitations for a § 1985(1) violation in this jurisdiction is three years.” Hall II, 143 F.Supp.2d at 6. The statute-of-limitations clock starts ticking when the plaintiff has sufficient “notice of the conduct ... which is now asserted as the basis for [her] lawsuit.” Fitzgerald v. Seamans, 553 F.2d 220, 228-29 (D.C.Cir. 1977).

The last act that allegedly caused Hall damage occurred in November 1996, when “Hall’s position was eliminated and her duties and supervisory responsibilities were assigned to a lesser qualified individual under whose supervision she was assigned to work.” JA 13 (Compl. ¶ 23). Because Hall did not file her complaint until December 13, 1999 — outside the three-year window — the statute of limitations bars her

section 1985 claim. Hall resists this conclusion, pointing to an allegation in her complaint that she “did not discover the operative facts alleged [t]herein until after the publication on or about November 30, 1998 of a report by the United States House of Representatives Committee on. Government Reform and Oversight [about] the WhoDB.” JA 14 (Compl. ¶ 28). In light of this allegation, she says, we must assume to be true — for motion-to-dismiss purposes— that the statute-of-limitations clock did not start until November 30, 1998. See Br. of Appellant at 21-22 (citing Kowal v.

MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994)). , Hall’s argument is misguided. Indeed, the very case she cites for her proposition makes clear that we need not defer to her legal “allegations” about the statute of limitations any more than we would have to accept as true an “allegation” asserting, for instance, that “existing precedent requires the court to award me the damages I seek.” See Kowal, 16 F.3d at 1276 (“[T]he court need not accept ... legal conclusions cast in the form of factual allegations.” (citing Papasan v.

Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944-45, 92 L.Ed.2d 209 (1986))). The complaint itself reveals that Hall knew in November 1993 that the WhoDB was allegedly “to be used to further the private, political interest of the Clintons and the DNC.” JA 11 (Compl. ¶ 12); see Hall II, 143 F.Supp.2d at 6. The district court, therefore, properly dismissed her

section 1985 claim against the DNC. It is equally clear that Hall has not stated a cause of action, against the DNC for civil conspiracy. Civil conspiracy, of course, is not actionable in and of itself but serves instead “as a device through which vicarious liability for the underlying wrong may be imposed upon all who are a party to it, where the requisite agreement exists among them.” Riddell v. Riddell Wash. Corp., 866 F.2d 1480, 1493 (D.C.Cir.1989).

The district court quoted our case law, quite rightly, for the proposition that “ ‘as a matter of substantive law, one cannot be liable for a conspiracy that does not have as its object an actionable wrong.’ ” Hall II, 143 F.Supp.2d at 6 (quoting Riddell, 866 F.2d at 1494) (emphasis added). Hall contends that, for the purpose- of civil conspiracy, it does not matter whether the predicate conduct is independently actionable or merely illegal; in both instances, she asserts, an action lies for conspiracy. See Reply Br. of Appellant at 7. Yet again, the very case Hall cites, Halberstam v.

Welch, 705 F.2d 472 (D.C.Cir.1983), refutes her assertion in no uncertain terms. Halberstam holds that the two essential elements of civil conspiracy are (1) “an agreement to take

part in an unlawful action or a lawful action in an unlawful manner”; and (2) “an overt tortious act in furtherance of the agreement that causes injury.” Id. at 479 (emphasis added). The hornbook definition of a “tort” is “[a] civil wrong for which a remedy may be obtained.” Black’s Law Dictionary 1496 (7th ed.1999) (emphasis added).

With regard to the civil conspiracy claim against the DNC, Hall’s complaint alleges only that Clinton and the DNC “tacitly or explicitly agreed to develop the WhoDB using United States Government personnel and United States Government resources, in direct violation of the Hatch Act.” JA 16 (Compl. ¶ 40). “Violation of the Hatch Act,” however, is not a tort. Thus, because the Act does not make a violation thereof privately actionable, see Brooks v.

Nacrelli, 331 F.Supp. 1350, 1354 (E.D.Pa. 1971) (Hatch Act’s provisions enforced exclusively by government), ajifd, 473 F.2d 955 (3d Cir.1973), a conspiracy to violate the Act is not actionable either. III. For the foregoing reasons, the district court’s denial of Hall’s motion to disqualify the DOJ and its dismissal of her claims against Clinton and the DNC are Affirmed. . In reviewing the district court’s grant of the defendants’ motions to dismiss, we accept as true the allegations that Hall sets forth in her complaint. See El-Hadad v.

United Arab Emirates, 216 F.3d 29, 32 n. 5 (D.C.Cir.2000) (citing Saudi Arabia v.

Nelson, 507 U.S. 349, 351, 113 S.Ct. 1471, 1474, 123 L.Ed.2d 47 (1993)). . 42 U.S.C. § 1985 provides, in pertinent part, that [i]f two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; ... or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties; ... the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators. 42 U.S.C. § 1985(1), (3). .

Acknowledging that Heckler suggests "a decision to act may be reviewable, even though a decision not to act is not reviewable,” Hall II, 143 F.Supp.2d at 4, the district court held in the alternative that if the DOJ’s decision to represent Clinton is reviewable, the decision was lawful. See infra. .

The Congress has explicitly acknowledged the First Lady's quasi-official role in White House affairs: "Assistance and services ... are authorized to be provided to the spouse of the President in connection with assistance provided by such spouse to the President in the discharge of the President's duties and responsibilities.” 3 U.S.C. § 105(e). Indeed, expressly relying on this provision, we have construed the Federal Advisory Committee Act's phrase, "fulltime officers or employees of the Federal Government,” 5 U.S.C.App. 2, § 3(2)(iii), to include Clinton. See Assn of Am. Physicians & Surgeons, Inc. v.

Clinton, 997 F.2d 898, 911 (D.C.Cir.1993). . Even if it were true that the Fourth Circuit's law on CSRA preemption differs from ours, as Hall contends, see Br. of Appellant at 15-17, a difference in substantive law "does not affect the application of issue preclusion.” Yamaha Corp., 961 F.2d at 258. . The district court found it unnecessary to consider "whether Hall’s claims [against Clinton] are barred by the doctrine of claim preclusion.” Hall II, 143 F.Supp.2d at 5 n. 3. Because affirmance is justified on issue preelusion grounds, we also decline to reach the claim preclusion question.

Likewise, while it may be true that "Congress intended for the CSRA to be a comprehensive remedy for federal employees with individualized job grievances,” id. at 5 (citing, inter alia, Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); Spagnola v. Mathis, 809 F.2d 16, 30 (D.C.Cir.1986)), we do not reach that issue. , Because we affirm the district court's dismissal of Hall's

section 1985 claim on statute-of-limitations grounds, we need not address whether the CSRA preempts that claim. Cf. supra note 6. . Perhaps realizing that the district court applied Riddell and Halberstam correctly, Hall asserts for the first time on appeal that the underlying torts were actually Clinton's alleged intentional interference with contractual relations and intentional infliction of emotional distress. See Br. of Appellant at 28. We are precluded from considering her assertion because she did not raise it below. See District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084 (D.C.Cir. 1984). .

Because the district court properly dismissed Hall’s civil conspiracy claim on this ground, we need not inquire whether tire CSRA preempts the claim. Cf. supra notes 6-7. Moreover, although the civil conspiracy claim is governed by the same three-year statute of limitations as the

section 1985 claim, see D.C.Code § 12-301(8) — and might well have been barred on that ground — the district court did not consider the prospect because the parties did not raise it. Likewise, we need not consider whether Hall's civil conspiracy claim is lime-barred.