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Doe v. United States

United States Court of Appeals, Fifth Circuit

April 11, 2017

JOHN DOE, Plaintiff-Appellant,

         Appeal from the United States District Court for the Southern District of Texas

          Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.


         John Doe filed suit against the United States in the Southern District of Texas, asserting that the Government violated his Fifth Amendment due process rights by accusing him of a crime during the course of a criminal proceeding in which he was not named a defendant. Doe sought a declaratory judgment that his Fifth Amendment rights had been violated, expungement of court records, and other forms of nonmonetary relief. The district court granted a motion to dismiss filed by the Government, holding that the action was barred by limitations. We affirm.


         In 2008, the Government filed a Criminal Information (the Information), charging a defendant to whom we will refer as Roe under 18 U.S.C. § 371 with conspiracy to violate the Foreign Corrupt Practices Act (FCPA) and conspiracy to commit mail and wire fraud for actions that occurred while Roe was "an officer/or director of [ABC Corp.] and its successor company, [XYZ Corp.]" As the basis of the mail and wire fraud count, the Government asserted that Roe and a "Consultant" engaged in a kickback scheme. To effectuate this scheme, the Government alleged, Roe would cause ABC Corp. and XYZ Corp. to enter into consulting contracts with the Consultant or companies controlled by the Consultant; in return, the Consultant would pay a portion of his consulting fee to Roe.

         In the course of explaining the kickback scheme, the Government noted that the Consultant

was a citizen of the United States and a citizen of [a foreign country specifically identified]. From in or about 1977, until in or about 1988, [] Consultant was a salesperson employed by [ABC Corp.] responsible for [projects abroad]. In or about 1988, [] Consultant resigned from [ABC Corp.] and became a consultant to [ABC Corp.] and subsequently [XYZ Corp.], among other firms. At various times after 1988, [] Consultant used corporate vehicles for his consulting business.

The Government identified two of the Consultant's corporate vehicles by name as, respectively, the "[First] Consulting Company" and the "[Second] Consulting Company" and specified the locations of projects-and in one case, the specific project-in which the Consultant allegedly participated in the kickback scheme.

         Roe pleaded guilty to both conspiracy charges. In the plea agreement, the Government described the factual basis for the guilty plea by largely reiterating the allegations in the Information. However, the Government specifically named one of the foreign projects to which it had previously referred more generally in the Information. During the plea hearing, the Government also noted that its "investigation is broad and [that] there are [other] potential defendants, targets, both here and abroad" and again referenced that the Consultant is "a dual U.S. and foreign national."

         Doe maintains that the Government's description of the Consultant identified him "in all respects except by name" because "there are few contractors and customers that comprise" the particular industry in which he worked, and "no other person in the industry possesses these same personal and biographical characteristics." Doe alleges that his clients were able to identify him from this description, causing some clients to cease engaging Doe and his companies for consulting and ultimately costing him "many millions of dollars in consulting fees." He also asserts that he "was unable to obtain further consulting work[, ] . . . which was a direct result of the prosecutor's public statements during the [Roe] plea hearing and elsewhere that the [Government's] investigation of the [] Consultant and others was 'ongoing.'"

         Roe's sentencing did not occur until 2012. During the sentencing hearing, the Government explained the basis for its sentencing recommendation. In pertinent part, it stated that Roe's "involvement in a very substantial kickback scheme with another consultant in which he stole upwards of $11 million from [XYZ Corp.] is certainly something that factor[ed] into [its] recommendation." In response to the district court's question of whether the kickback scheme benefitted XYZ Corp., the Government noted that the scheme benefitted XYZ Corp. "in the sense that the consultants [sic] that [Roe] was working with was hired to engage in bid-rigging" and obtained projects for XYZ Corp. Doe claims that these references to the consultant involved in the kickback scheme triggered renewed interest from colleagues and former clients. He also alleges that, at this time, he experienced difficulties conducting his financial affairs in his native country because authorities believed that Doe was the subject of a criminal investigation in the United States.

         In 2015, Doe filed suit in the Southern District of Texas, contending that the Government violated his right to due process by publicly accusing him of a crime in a criminal proceeding without providing him a public forum for vindication. The relief he sought included: a declaration that the Government violated his Fifth Amendment right to due process; an order directing the Clerk of the Court to "obliterate and strike" all references to him from the publicly filed documents in Roe's criminal proceeding; and an order directing the Government to "obliterate and strike from the [Department of Justice] website, and from any other record available to the public, all references" to him in documents relating to or publicly filed in Roe's criminal proceeding.

         The Government moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that sovereign immunity barred Doe's suit, and pursuant to Rule 12(b)(6), contending that on the face of the Complaint, Doe's action was barred by limitations. The district court concluded that sovereign immunity did not bar Doe's claim and, therefore, declined to dismiss for lack of subject-matter jurisdiction. But the district court held that Doe's claim for relief based on statements made in 2008 was time-barred by 28 U.S.C. § 2401(a).[1] The district court then considered the statements made by the prosecutor at the sentencing hearing in 2012 in isolation from those made in 2008 and held that Doe had not alleged a plausible due process violation. The statements at the sentencing hearing, the district court concluded, were devoid of "potentially identifying information" and furthered the Government's legitimate interest in divulging the details of the case against Roe at sentencing. The district court determined sua sponte that efforts to amend Doe's complaint to set forth additional facts to support equitable tolling of limitations would be futile and dismissed the suit with prejudice. Doe appealed.


         The district court had jurisdiction under 28 U.S.C. § 1331 because Doe's claims arise under the Fifth Amendment and presented a federal question.[2]However, because Doe sued the United States, the district court lacked subject matter jurisdiction unless there has been a waiver of sovereign immunity.[3] "A waiver of sovereign immunity 'cannot be implied but must be unequivocally expressed.'"[4] "[A] waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign."[5] Whether the Government is entitled to sovereign immunity from suit presents a question of law that we review de novo.[6]


         In arguing that sovereign immunity is not implicated, Doe relies on United States v. Briggs, in which this court held that "[s]overeign immunity does not bar . . . relief" when an unindicted individual requests to have his or her name expunged after being accused of a crime in the indictment but is not provided a forum for vindication.[7] We concluded that a request to expunge "in the circumstances . . . presented" in Briggs is "no more subject to the defense of sovereign immunity than the filing of a bill of particulars or the raising of an objection . . . by the named defendants."[8]

         The Government asserts that when 5 U.S.C. § 702, which is part of the Administrative Procedure Act (APA), was amended, Congress intended to preclude proceedings like those in Briggs. The current text of § 702 is set forth in the margin.[9] A 1976 amendment, enacted the year after Briggs was decided, added, in relevant part, the second sentence of § 702.[10] We discern no intent from the text of § 702 to foreclose a claim like that asserted in Briggs that is pursued in an ongoing criminal proceeding. The Government was already a party to the proceeding in Briggs because it had initiated the criminal prosecution.[11] Although it was alleged in Briggs that the Government had committed a constitutional violation, no relief was sought from the Government as a consequence.[12] The unindicted injured party invoked the court's authority to manage and expunge its own records. That did not implicate the Government's sovereign immunity from suit.

         The decision in Briggs, as well as its progeny in our Circuit, [13] addressed a situation procedurally distinct from the present action. Doe has initiated a separate, civil action, "hal[ing] the federal government into a court proceeding"[14] as the named defendant. There is no ongoing criminal proceeding to which the Government is already a party, though the new action has been brought in the same court in which Roe was convicted, and Doe seeks expungement of those criminal court records, in addition to other forms of relief.

         A court seemingly has the power to manage its records, even though the proceeding that generated those records has concluded.[15] A request for expungement or sealing of court records would not appear to implicate sovereign immunity, but we are not called upon to address that question in this case. Doe has directly sued the United States, and Doe seeks relief beyond expungement, including a declaration that the Government violated his Fifth Amendment rights when it accused him of a crime in the Roe criminal prosecution.

          Because the Government has been sued, subject matter jurisdiction is at issue, and we must resolve that issue "prior to addressing the merits" of any claims.[16] The Government moved to dismiss all of Doe's claims, asserting that they are barred by sovereign immunity and arguing that the only potential waiver of sovereign immunity is contained in 5 U.S.C. § 702. The Government contends that there has been no "agency action" within the meaning of 5 U.S.C. § 551(13), and that "agency action" as defined in § 551(13) is required in order for the waiver in § 702 to apply. The district court denied that motion but dismissed on the basis of limitations. However, if subject matter jurisdiction is lacking, this court must dismiss, without reaching the limitations issues.

         As an initial matter, the Government does not contend that the Department of Justice (DOJ) is not an "agency." We note that 5 U.S.C. § 551 defines "agency" as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency, " but it also lists a number of exclusions from the term "agency, " including the courts of the United States and Congress.[17] The DOJ is not among these exclusions. A similar definition of "agency" and a similar list of exclusions appear in 5 U.S.C. § 701. The DOJ is listed as an "Executive department[]" in 5 U.S.C. § 101, and an "Executive department" is included as an "Executive agency" in 5 U.S.C. § 105. It therefore appears that the DOJ may be an agency with regard to certain acts or failures to act, though 5 U.S.C. § 701(a)(2) excludes from Chapter 7 of the APA "agency action [that] is committed to agency discretion by law."

         Congress amended § 702 in 1976 to allow "[t]he United States [to] be named as a defendant" when nonmonetary relief is sought and the plaintiff's claim is that "an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority."[18] The intended effect of the amendment was to "broaden the avenues for judicial review of agency action by eliminating the defense of sovereign immunity in cases covered by the amendment."[19]

         At least two Circuit Courts of Appeals have held that the second sentence of § 702 waives sovereign immunity for all actions seeking equitable, nonmonetary relief against an agency, even if there has been no "agency action" within the meaning of the APA.[20] However, our court has held that sovereign immunity is not waived by § 702 unless there has been "agency action, " as that term is defined in § 551(13).[21] Agency action is statutorily defined to "include[] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act."[22]

         Doe maintains that he has suffered a "sanction." The Government asserts that it is not a "sanction" for a governmental agency to make statements that "allegedly harm a person's reputation or standing in the business community, " citing a 1948 decision from the D.C. Circuit Court of Appeals.[23] The D.C. Circuit has called that decision into question at least twice, [24] observing that "'an agency intent on penalizing a party through adverse publicity, especially false or unauthorized publicity, might well merit a review of its action' as a sanction."[25]

         The term "sanction" is defined in 5 U.S.C. § 551(10), [26] and includes "withholding of relief."[27] The definition of "agency action" includes "the equivalent or denial" of "relief."[28] "[A]gency action" also includes "failure to act, " and the Supreme Court has explained that "'failure to act, ' is in our view properly understood as a failure to take an agency action-that is, a failure to take one of the agency actions (including their equivalents) earlier defined in § 551(13)."[29] As noted, the definition of "agency action" in § 551(13) includes "relief." The term "relief" is defined in § 551(11)(A) to "include[] the whole or a part of an agency . . . (A) grant of . . . remedy."[30] In accusing Doe of a crime without providing a public "forum in which [Doe could seek] to vindicate his rights, "[31] namely a hearing or trial in a criminal court proceeding in which Doe could defend the serious charges against him, the Government failed to act and failed to provide relief or a remedy to Doe. It accused Doe of a crime without indicting him, without introducing evidence to prove the allegations, and without allowing Doe to challenge that evidence and present evidence of his own.


         The district court dismissed Doe's claims under Rule 12(b)(6), concluding they were facially barred by limitations, [32] and we review de novo a dismissal for failure to state a claim.[33] "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."[34] In making this determination, we may consider "the complaint, its proper attachments, 'documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.'"[35]

         The district court observed that our court has "not addressed which statute of limitations period applies to a due process claim seeking expungement of an accusation, " and therefore "adopt[ed] the general statute of limitation provision of 28 U.S.C. § 2401(a), which provides that 'every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.'"[36]Neither party has argued that this statute is inapplicable, and we will therefore assume, without deciding, that it governs all of Doe's claims.

          The district court concluded that § 2401(a) barred relief for the statements made in the Information, the plea agreement, and the plea hearing, each of which occurred in 2008. We will affirm that decision only if "it is evident from the plaintiff's pleadings that the action is ...

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