Liff v. Office of Inspector General for the U.S. Department of Labor ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEWART LIFF, et al.,
Plaintiffs,
v. Civil Action No. 14-1162 (JEB)
OFFICE OF THE INSPECTOR
GENERAL FOR THE U.S.
DEPARTMENT OF LABOR, et al.,
Defendants.
MEMORANDUM OPINION
In 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.
The 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.
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I. Background
As the 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).
A. The Case Unfolds
As 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. Id.These 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.In July 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
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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.)
B. Motion-to-Dismiss Proceedings
Defendants 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.]”)).
Although 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.
In 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
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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.
Following 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.
Recognizing 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)).
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As to 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.
As 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.
C. Further Procedural Developments
What 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.
The 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
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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 to separately. See id. (Given the resolution here,
however, that court may or may not consider the limitations question on an interlocutory appeal
of immunity.)
Shortly after the Court signaled that it would rule on the Motion to Reconsider, the D.C.
Circuit also held the government’s appeal in abeyance until such resolution. See ECF No. 43.
All litigation in this case, then, is on hold until the statute-of-limitations question is resolved
once and for all.
Before answering it, the Court notes a few other developments. While this case was
wending its way through the procedural maze, this Court resolved a similar motion to dismiss in
the related lawsuit of Liff’s DOL contact, Jefferson. Jefferson had also asserted a due-process
violation against the agencies and a Bivens claim against their officers. In addressing the Bivens
piece, the Court first differentiated between the two legal theories — reputation-plus vs. stigma-
plus — that could establish a reputation-based due-process violation. Jefferson v. Harris, 170 F.
Supp. 3d 194, 204-06 (D.D.C. 2016). Although Jefferson had pled both theories (unlike Liff,
who advanced only the latter), the Court concluded that only his reputation-plus claim was
sufficiently supported by factual allegations. Id. at 205.
As to this cause of action, the Court took the Government’s statute-of-limitations defense
head on. It held that “[i]n Doe — a ‘reputation plus’ case like this one — the D.C. Circuit
‘borrowed’ the District of Columbia’s one-year limitations period for defamation actions.” Id. at
213 (citing Doe, 753 F.2d 1092). This Court then concluded that Doe had not been overruled,
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and so the one-year limitations bar applied to Jefferson’s reputation-plus claim, rendering it
untimely. Id. at 213-14.
In so ruling, this Court also explained why it was necessary, as a legal matter, to reach the
statute-of-limitations question in Jefferson but not in Liff: “Although this Court was presented
with this question in Liff, it found no need to grapple with Doe’s precise holding; this was
because Doe’s limitations ruling was specific to ‘reputation plus’ claims, whereas Liff presented
only ‘stigma plus’ claims, which do not require proof of governmental defamation.” Id. at 212.
In other words, it was imprudent in Liff to decide the continuing power of Doe, 753 F.2d 1092,
which did not seem to squarely address stigma-plus claims.
In filing the current Motion to Reconsider, the Government argues that Doe’s one-year
limitations period does apply to Liff’s stigma-plus claims. That issue is now ripe.
II. Legal Standard
Defendants bring the instant Motion under Federal Rules of Civil Procedure 59(e) and
54(b). Rule 59(e) permits a party to move to alter or amend a judgment by filing a motion within
28 days of the entry of judgment. Despite Defendants’ insistence on that Rule’s relevance, it is a
poor fit here. The Court has not entered judgment here at all — indeed, it has not even decided
the statute-of-limitations question. Because what the Government asks the Court to revisit is an
issue lingering from a past decision, Rule 54(b) governs. That Rule provides that “any order or
other decision . . . that adjudicates fewer than all the claims . . . may be revised at any time
before the entry of a judgment adjudicating all the claims.”
In assessing the Rule 54(b) standard, the D.C. Circuit has explained:
Rule 54(b)’s approach to the interlocutory presentation of new
arguments as the case evolves can be more flexible, reflecting the
“inherent power of the rendering district court to afford such relief
from interlocutory judgments as justice requires.” Greene v. Union
7
Mutual Life Ins. Co. of America, 764 F.2d 19, 22 (1st Cir. 1985)
(Breyer, J.) (ellipsis omitted) (quoting Dow Chem., USA v.
Consumer Prod. Safety Comm’n, 464 F. Supp. 904, 906 (W.D. La.
1979)); see Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc.,
630 F.3d 217, 227 (D.C. Cir. 2011) (approving of Greene’s “as
justice requires” standard); Cobell v. Norton, 224 F.R.D. 266, 272
(D.D.C. 2004) (“[T]he standard for reconsideration of interlocutory
orders under Rule 54(b) is distinct from the standard applicable to
[Rule 59(e) ] motions for reconsideration . . . . [I]t is clear that courts
have more flexibility in applying Rule 54(b) than in determining
whether reconsideration is appropriate under Rule 59(e).”) (internal
quotation marks omitted).
Cobell v. Jewell, 802 F.3d 12, 25-26 (D.C. Cir. 2015).
The “as justice requires” standard may be met, for example, where the court has patently
misunderstood a party, made a decision outside the adversarial issues presented by the parties,
erred not in reasoning but in apprehension of the relevant issues, or failed to consider a
significant change in the law or facts since its decision. See Cobell, 224 F.R.D. at 272. “These
considerations leave a great deal of room for the court’s discretion and, accordingly, the ‘as
justice requires’ standard amounts to determining ‘whether [relief upon] reconsideration is
necessary under the relevant circumstances.’” Lewis v. District of Columbia, 736 F. Supp. 2d
98, 102 (D.D.C. 2010) (quoting Cobell, 224 F.R.D. at 272). A court’s discretion under Rule
54(b), however, is “limited by the law of the case doctrine and subject to the caveat that where
litigants have once battled for the court’s decision, they should neither be required, nor without
good reason permitted, to battle for it again.” Singh v. George Washington Univ., 383 F. Supp.
2d 99, 101 (D.D.C. 2005) (internal citations omitted).
III. Analysis
Defendants now ask the Court to resolve the timeliness of Plaintiff’s Bivens claim for
relief against the individual officers. Although the parties “have once battled for the court’s
decision” on this question, id., the Court issued none. Instead, the Liff Opinion left the statute-
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of-limitations question unanswered, both because briefing was thin on whether a central D.C.
Circuit opinion (Doe) remained good law and because it seemed unnecessary at the time to
resolve that case’s vitality. See Liff, 156 F. Supp. 3d at 18; see also Jefferson, 170 F. Supp. 3d at
212.
Now with the benefit of further briefing, this Court obliges Defendants’ request to
consider whether a one-year or three-year statute of limitations applies to Liff’s Bivens action
against individual officers for their stigma-plus deprivation of Plaintiff’s due-process rights.
This question is dispositive: If a one-year clock controls, Liff’s claims would be untimely; if a
three-year clock controls, his claims would survive. See Liff, 156 F. Supp. 3d at 17 (recognizing
all government actions took place over a year before this suit); see also Motion to Dismiss at 16-
17 (acknowledging limitations period started running on July 21, 2011, less than three years prior
to the Complaint, which was filed July 10, 2014).
The Court first elaborates on Bivens timeliness rules generally before exploring a
possible exception in the realm of defamation-based claims and applying that exception.
A. Bivens Statute of Limitations
Federal actions — such as those against individual officers based on Bivens — often lack
independent federal statutes of limitations. See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S.
151, 158 (1983). Yet this does not mean the timeliness analyses of those cases are unguided.
For some time, courts have instead “‘borrow[ed]’ the most suitable statute or other rule of
timeliness from some other source,” typically “the most closely analogous” state-law rule. Id.;
Loumiet v. United States, 828 F.3d 935, 947 (D.C. Cir. 2016) (“When a federal action contains
no statute of limitations, courts will ordinarily look to analogous provisions in state law as a
source of a federal limitations period.”) (quoting Doe, 753 F.2d at 1114).
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Such state-law borrowing can be tricky. Cases resolving § 1983 claims help show why
that is so, and they prove instructive since Bivens claims are generally governed by the same
statute of limitations. See Jones v. Kirchner, 835 F.3d 74, 2016 WL 4488149, at *4 n.7 (D.C.
Cir. 2016); see also Butz v. Economou, 438 U.S. 478, 500 (1978) (“[I]n the absence of
congressional direction to the contrary, there is no basis for according to federal officials a higher
degree of immunity from liability when sued for a constitutional infringement as authorized by
Bivens than is accorded state officials when sued for the identical violation under § 1983.”); but
cf. Earle v. District of Columbia, 707 F.3d 299, 303 n.3 (D.C. Cir. 2012) (only discussing
limitations period for § 1983 claim because Bivens claims were not raised on appeal).
In the § 1983 context, the Supreme Court has described how, historically, “[t]he practice
of seeking state-law analogies for particular § 1983 claims bred confusion and inconsistency in
the lower courts and generated time-consuming litigation.” Owens v. Okure, 488 U.S. 235, 240
(1989); see Wilson v. Garcia, 471 U.S. 261, 266 (1985) (noting “conflict, confusion, and
uncertainty concerning the appropriate statute of limitations”). Borrowing could be
unpredictable because mere “artful pleading” could make a constitutional claim sound in contract
or tort or statutory law, leading to disparate timeliness rulings for causes of action that were
substantively the same. Owens, 488 U.S. at 240; see Wilson, 471 U.S. at 272-73 (“Almost every
§ 1983 claim can be favorably analogized to more than one of the ancient common-law forms of
action . . . .”).
Luckily, that era is over. Acknowledging these practical difficulties, in 1985, the
Supreme Court in Wilson “expressly rejected the practice of drawing narrow analogies between
§ 1983 claims and state causes of action.” Owens, 488 U.S. at 248 (citing Wilson, 471 U.S. at
272). That practice had become too unpredictable, and so the Supreme Court agreed on
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adopting, for statute of-limitations purposes, “a simple, broad characterization of all § 1983
claims.” Wilson, 471 U.S. at 272. Wilson then concluded that those claims — and, by
extension, Bivens actions — would henceforth be governed by each state’s personal-injury
limitations law. See id. at 280.
Wilson was not the final word, however, as that decision left unsolved another
conundrum of what would happen when several personal-injury periods might apply. Not
surprisingly, many states prescribed rules for different “enumerated intentional torts” as well as a
period for “residual” or general torts. Owens, 488 U.S. at 241-42; see Wilson, 471 U.S. at 286(O’Connor, J., dissenting) (describing how opinion left open the question of what might happen
where “not one but two periods . . . govern various injuries to personal rights”). In 1989, the
Supreme Court in Owens weighed whether, in these situations, courts should search for the
nearest intentional-tort analogue or instead rely on each state’s general personal-injury period.
See 488 U.S. at 242-50. Sensing that courts were slipping back to the period where a multitude
of disparate time bars reigned and litigants could not predict which to apply, Owens clarified that
when “state law provides multiple statutes of limitations for personal injury actions,” courts
should borrow the “general or residual statute for personal injury actions.” Id. at 250.
In the District of Columbia, this rule plays out simply. The District has two statutes of
limitations applicable to personal-injury claims: a one-year period for enumerated intentional
torts, D.C. Code § 12-301(4), and a three-year residual period for all other torts. Id. § 12-301(8);
see Earle, 707 F.3d at 305. In the § 1983 context, the D.C. Circuit has held that, faced with these
two options, courts must “apply the three-year residual statute of limitations” found in § 12-
301(8). Earle, 707 F.3d at 305; see Owens, 488 U.S. at 250 n.12 (observing that, under its
standard, the District’s general personal-injury provision would apply).
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Before and after Wilson and Owens, the Court of Appeals has likewise recognized that
the generally appropriate limitations period for Bivens claims is three years. See Bond v. DOJ,
No. 12-5296, 2013 WL 1187396 (D.C. Cir. Mar. 14, 2013) (per curiam); Banks v. Chesapeake
& Potomac Tel. Co., 802 F.2d 1416, 1429 (D.C. Cir. 1986); Hobson v. Wilson, 737 F.2d 1, 32
(D.C. Cir. 1984); Richards v. Mileski, 662 F.2d 65, 68 n.7 (D.C. Cir. 1981); Eikenberry v.
Callahan, 653 F.2d 632, 634-35 (D.C. Cir. 1981); see also Loumiet v. United States, 968 F.
Supp. 2d 142, 149 (D.D.C. 2013); McDonald v. Salazar, 831 F. Supp. 2d 313, 320 (D.D.C.
2011); Lederman v. United States, 131 F. Supp. 2d 46, 62 (D.D.C. 2001).
B. Exception to the Three-Year Period
There is only one arguable exception to the three-year period in this circuit. In the gap
years between Wilson and Owens — i.e., 1985–1989 — the D.C. Circuit in Banks held that the
alternative one-year § 12-301(4) limitations period for intentional torts maintained its hold “for
constitutional torts specifically listed in the statute.” 802 F.2d at 1428; accord Bame v. Clark,
466 F. Supp. 2d 105, 108 (D.D.C. 2006) (repeating rule without citing or analyzing effect of
Owens). That statute restricts to one year the time to file suit “for libel, slander, assault, battery,
mayhem, wounding, malicious prosecution, false arrest or false imprisonment.” D.C. Code § 12-
301(4). So, for instance, a “constitutional assault” claim would need to be brought within one
year of when that claim accrued. McClam v. Barry, 697 F.2d 366, 371-72 (D.C. Cir. 1983),
overruled on other grounds by Brown v. United States, 742 F.2d 1498 (D.C. Cir. 1984) (en
banc); accord Wormley v. United States, 601 F. Supp. 2d 27, 35 (D.D.C. 2009).
Relevant here is another enumerated intentional tort: defamation. In Doe — issued
before Wilson and Owens — the D.C. Circuit addressed whether to apply the one-year period to
“constitutionally based defamation actions.” 753 F.2d at 1115. The answer, then, was easy, as
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the Circuit had already applied the one-year rule in a prior en banc decision. Id. (citing Church
of Scientology v. Foley, 640 F.2d 1335 (D.C. Cir. 1981) (per curiam) (en banc)). Doe explicitly
recognized, however, that the Supreme Court was then considering Wilson, 471 U.S. 261, which
very well could “offer us further guidance.” Id. at 1115 n.30.
No doubt Wilson and then Owens worked a sea change in state-law-borrowing law.
Owens, in particular, weighed the “intentional torts approach” and the “general or residual
personal injury approach,” and ultimately favored the latter. See 488 U.S. at 242. Yet, despite
this instruction, the continuing vitality of the line of cases that applies the District’s one-year
period for intentional torts — the holding in Banks, and exceptions for assault and defamation
laid out in McClam and Doe, respectively — has not been seriously questioned in the Bivens
context. But cf. Earle, 707 F.3d at 305 (choosing District’s residual period in § 1983 context);
Carney v. Am. Univ., 151 F.3d 1090, 1096 (D.C. Cir. 1998) (“The Supreme Court has held that
in states with multiple statutes of limitations, claims under section 1983 are governed by the
residual or general personal injury statute of limitations (like section 12-301(8)), rather than the
statute of limitations for enumerated intentional torts (like section 12-301(4)).”).
As the Government dutifully points out, it is not this Court’s role to stray from binding
precedents that have not been clearly discarded. The Court must instead “attempt to reconcile all
of the judgments binding upon it if possible, [unless] holdings of the Supreme Court and the
D.C. Circuit are irreconcilable.” Lee v. United States, 570 F. Supp. 2d 142, 149-50 (D.D.C.
2008); La. Envt’l Action Network v. Browner, 87 F.3d 1379, 1383 (D.C. Cir. 1996). Here,
fortunately, reconciliation is possible.
This Court observed in Jefferson that, because the one-year rule has not been explicitly
overruled in the Bivens context, the Doe exception remains binding in those actions. See 170 F.
13Supp. 3d at 212-14. But in light of precedent expounding on federal courts’ interests in
predictability and uniformity, its scope must be narrow and defined. See Owens, 488 U.S. at 243(expressing need for “ease and predictability”). That is, the three-year residual period is clearly
favored, and this Court will not apply a different limitations period unless the facts of this case
fall squarely within the ambit of Doe’s one-year period for “constitutionally based defamation
actions.” 753 F.2d at 1115.
C. Applying the Doe Exception
To presage the conclusion, as Liff’s case is not entirely such a defamation action, at least
part of his Bivens count is timely under the three-year statute of limitations. Reaching that result
requires further delving into the structure of reputation-based procedural-due-process actions and
why Liff’s case and Doe do not wholly overlap.
All reputation-based claims depend on some deprivation of liberty — in general terms, a
constitutionally protected interest in one’s good name or in being able to pursue one’s chosen
profession — without procedures that were constitutionally sufficient. See Bd. of Regents of
State Colleges v. Roth, 408 U.S. 564, 572-73 (1972). Even so, such actions are not monolithic.
As mentioned earlier, over the years, as the case law has developed in this circuit, two
independent legal theories for how such deprivations occur have crystallized. See McCormick v.
District of Columbia, 752 F.3d 980, 987 (D.C. Cir. 2014); Hutchinson v. CIA, 393 F.3d 226, 231
(D.C. Cir. 2005); O’Donnell v. Barry, 148 F.3d 1126, 1139-40 (D.C. Cir. 1998); see also DOE v.
Rogers, 139 F. Supp. 3d 120, 159 (D.D.C. 2015).
The first is known as a “reputation-plus” claim. That claim is available only where the
plaintiff asserts “defamation that is ‘accompanied by a discharge from government employment
or at least a demotion in rank and pay.’” O’Donnell, 148 F.3d at 1140 (quoting Mosrie v. Barry,
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718 F.2d 1151, 1161 (D.C. Cir. 1983)). “This theory makes the termination [or demotion]
actionable only where the terminating [or demoting] employer has disseminated the reasons for
the termination and such dissemination is defamatory.” McCormick, 752 F.3d at 988.
The second theory is known as a “stigma-plus” or “stigma or disability” claim. This type
of action arises when the government imposes “a stigma or other disability that foreclose[s] [the
plaintiff’s] freedom to take advantage of other employment opportunities.” O’Donnell, 148 F.3d
at 1140 (quoting Roth, 408 U.S. at 573). The theory is, in essence, that some government action
might impose such a harsh taint that it interferes with an individual’s “right to follow a chosen
trade or profession.” Cafeteria Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886,
895-96 (1961).
Such a claim varies in two ways from its reputation-plus counterpart. First off, the types
of official actions that are recognized are somewhat broader in the stigma-plus context. For such
a claim to be actionable, the government must impose so great a constraint on an individual’s
future employment opportunities that it “involve[s] a tangible change in status” — that is, it must
amount to “an adjudication of status under law.” Kartseva v. Department of State, 37 F.3d 1524,
1527 (D.C. Cir. 1994); O’Donnell, 148 F.3d at 1141 (“[A] plaintiff who . . . seeks to make out a
claim of interference with the right to follow a chosen trade or profession that is based
exclusively on reputational harm must show that the harm occurred in conjunction with, or
flowed from, some tangible change in status.”). Although a tangible change in status may,
incidentally, flow from an adverse employment action (such as a termination or demotion) that
causes disrepute, it need not. See Kartseva, 37 F.3d at 1528; see also O’Donnell, 148 F.3d at
1141. Instead, a plaintiff may show that the “State’s action formally or automatically exclude[d]
[her] from work on some category of future State contracts or from other government
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employment opportunities” or that the “State’s action does not have this binding effect, but
nevertheless has the broad effect of largely precluding [her] from pursuing her chosen career.”
Kartseva, 37 F.3d at 1528; see GE Co. v. Jackson, 610 F.3d 110, 121 (D.C. Cir. 2010).
As a second point, in stigma-plus cases, official speech is not necessarily implicated.
That type of claim “differs from [a reputation-plus claim] in that it does not depend on official
speech, but on a continuing stigma or disability arising from official action.” O’Donnell, 148
F.3d at 1140; see Trifax Corp. v. District of Columbia, 314 F.3d 641, 644 (D.C. Cir. 2003);
Jefferson, 170 F. Supp. 3d at 205. That is, an agency’s purely “internal recommendation[s]”
might disqualify an individual from future government work and give rise to a claim — no
defamatory statement to a third party is required. Kartseva, 37 F.3d at 1530 (emphasis added);
see Trifax, 314 F.3d at 644 (noting that due-process cases regarding “formal exclusion from a
chosen trade or profession” are not directly “analogous to common-law defamation” cases); see
also Blodgett v. Univ. Club, 930 A.2d 210, 222 (D.C. 2007) (requiring, as element of
defamation, publication to a third party).
The D.C. Circuit case of Kartseva, 37 F.3d 1524, provides an instructive example. In that
case, the plaintiff, Kartseva, was a Russian translator who had worked exclusively in
government-related employment. Id. at 1525. While working for a federal-government
contractor, the State Department subjected her to a security-related background check —
involving a questionnaire, fingerprinting, and investigations into personnel records. Id. at 1525-
26. State informed the contractor that Kartseva had flunked the check, and the contractor then
terminated her. Id. at 1526. In addressing her suit, the D.C. Circuit first examined whether State
had formally disqualified her from government employment and, alternatively, whether it had
broadly precluded her from her chosen career as a translator. In finding it plausible that the
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Department had officially barred her by failing her on her security check, the Court of Appeals
described her claim as resting not on State’s statement to the contractor (which arguably could
count as defamatory), but on “three internal State memoranda that discuss [her] disqualification.”
Id. at 1528. Likewise, as to whether Kartseva had been broadly precluded from her field, the
D.C. Circuit acknowledged that the disqualification stemming from internal transmissions
“might be sufficiently stigmatic” if it, in effect, “encompasse[d] all State contracts.” Id. at 1530.
In other words, her claim did not, as an inherent matter, require statements to third parties.
Liff’s claim is also of this stigma-plus variety. See Jefferson, 170 F. Supp. 3d at 212.
During motion-to-dismiss briefing, he dropped any reputation-plus pretense and asserted that his
“due process claims are grounded principally in the ‘stigma-plus’ line of cases.” MTD Opp. at 8,
15-23. Nor could a reputation-plus action have survived, as Liff nowhere pled that the
government was his employer and that it had terminated or demoted him. See Liff, 156 F. Supp.
3d at 6-9. It appears, instead, that all of his claims flowed from a drastic loss of business going
forward. That is why this Court examined the elements of a stigma-plus claim — i.e., whether
his reputation had been damaged (the stigma) and whether that had led to a tangible change in
status (the plus) — in considering Defendants’ Motion to Dismiss. Id. at 11-13.
Even though Plaintiff’s Bivens action rests not on reputation-plus law but on the stigma-
plus theory (which does not require defamation), the Government nonetheless argues that Doe
applies to both types of claims. See Reply at 1-3. In other words, Defendants contend that both
species of due-process actions are “constitutionally based defamation actions.” Doe, 753 F.2d at
1115. If that were so, then Doe’s one-year limitations period would apply, and Liff’s claim
would be untimely.
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The language in Doe, admittedly, is tough to parse. Its focus was on defamation, not on
the reputation/stigma phenotypes. There, the D.C. Circuit found, “The gist of Doe’s claims
against the individual defendants is that they disseminated false and defamatory statements to
other attorneys, statements which ‘destroyed her reputation as a sober and serious person.’”
Doe, 753 F.2d at 1114 (quoting her complaint). That is, Doe “allege[d] that the public
dissemination of those charges — not the mere fact of her termination — has stigmatized her
professional reputation and foreclosed future employment opportunities.” Id. at 1110. That case
could therefore easily be analogized to “an ordinary defamation claim.” Id. at 1114-15 (labeling
case as merely a “constitutionally based defamation action[]”). As another district-court judge
emphasized, the claim for relief in Doe was specifically based on allegations regarding “the
[government’s] action and the subsequent spreading of the charges by [government] officials.’”
De Sousa v. Dep’t of State, 840 F. Supp. 2d 92, 110 (D.D.C. 2012) (emphasis in De Sousa)
(quoting Doe, 753 F.2d at 1098).
Although this defamation-based language seems closer to the reputation-plus than the
stigma-plus end of the spectrum, the Court must bear in mind that Doe was penned years before
that modern-day duality was honed in a line of cases. E.g., McCormick, 752 F.3d at 987;
Hutchinson, 393 F.3d at 231; O’Donnell, 148 F.3d at 1139. Even today, those theories are “not
always distinct.” McCormick, 752 F.3d at 988. While courts have routinely used Doe’s
language to derive the elements of reputation-plus claims, see, e.g., Jefferson, 170 F. Supp. 3d at
205; McGinnis v. District of Columbia, 65 F. Supp. 3d 203, 221 (D.D.C. 2014), the Government
rightly points out that some of its language has also served as the progenitor of stigma-plus
claims. See GE, 610 F.3d at 122 (citing Doe to lay out elements of stigma-plus claim); see also
Aref v. Lynch, 833 F.3d 242, 258 n.11 (D.C. Cir. 2016) (similar). To add to the confusion, the
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Doe plaintiff’s “alleg[ations] that the public dissemination of those charges — not the mere fact
of her termination — has stigmatized her professional reputation and foreclosed future
employment opportunities” seem to meet the elements of either claim. Doe, 753 F.2d at 1110(“Doe was discharged from government employment amidst stigmatizing allegations which have
effectively foreclosed future employment opportunities with the government as well as private
employers.”).
This Court cannot deny that Doe’s language somewhat blends the two theories. Yet the
Government’s reading — that Doe applies to all stigma-plus claims as well as reputation-plus
claims — appears too broad an interpretation. The case’s statute-of-limitations language focused
strictly on “defamatory statements.” Id. at 1114; see id. at 1114-15 (calling plaintiff’s claim “an
ordinary defamation claim” and a “constitutionally based defamation action[]”). Although that
plaintiff’s potential stigma-plus claim may have hinged on defamation, as explained, courts now
recognize a genus of stigma-plus actions that does not involve official speech. See Trifax, 314
F.3d at 644; O’Donnell, 148 F.3d at 1140-41; Kartseva, 37 F.3d at 1528; see also Jefferson, 170
F. Supp. 3d at 205.
The best reading of Doe, therefore, is that it applies to all reputation-plus claims and to
stigma-plus suits based on defamation. Considering that the “practice of drawing narrow
analogies between [certain federal] claims and state causes of action” is now discouraged, the
Court will not guess that the Doe panel would have applied a one-year bar to stigma-plus claims
that do not involve official speech. Owens, 488 U.S. at 248 (citing Wilson, 471 U.S. at 272).
Indeed, even if the Court were to so surmise, it appears unlikely that Doe would have crafted a
holding so broad as to sweep in non-defamation claims. Courts borrow state intentional-tort
limitations periods only “for constitutional torts specifically listed in the statute.” Banks, 802
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F.2d at 1428 (emphasis added). Although D.C. Code § 12-301(4) includes “slander” and “libel”
as intentional torts, it lists no reputational actions where defamation is absent.
From here, Defendants retort that Liff, as a factual matter, brings only a defamation-
based stigma-plus claim. See Reply at 6-7. In its last Opinion, the Court acknowledged that
much of Liff’s allegations rested on DOL’s and OPM’s “defamation.” Liff, 156 F. Supp. 3d at
12. Descriptively, this remains true. But that is not all there is to his Complaint, if it is to be
read in the most favorable light.
Instead, part of Liff’s claim is that he — much like the plaintiff in Kartseva — was
investigated by OPM and DOL and flunked the investigations, ultimately barring or precluding
him from his chosen profession of government consulting. That is, his claim rests in part on
internal blacklisting, as opposed to mere defamation. As to OPM, Liff alleged that the agency
took steps to conclude all past, present, and future business, effectively disqualifying him from
OPM-related work. See Compl., ¶ 50. At least some of OPM’s actions are plausibly read as
resting on purely internal decisions about his character and fitness: for example, it informed Liff
that it would no longer request services under an ongoing task order even before it issued its
(allegedly defamatory) report. See id., ¶ 47.
The claim against DOL similarly does not rest solely on defamation (although, as the
Court acknowledged last time, the reed here is more slender). See Liff, 156 F. Supp. 3d at 14.
Indeed, the DOL report that sparked much of this controversy included a footer that it was not
meant “to be distributed outside of [the] agency.” Compl., ¶ 39; see Kartseva, 37 F.3d at 1530(relying on “internal memorandum”). The Court thus previously described how DOL’s internal
dealings could nonetheless broadly preclude Plaintiff from public-sector consulting. See Liff,
156 F. Supp. 3d at 15 (describing how report could “legally affect other government agencies or
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private employers in their decisions whether to employ” him) (quoting Kartseva, 37 F.3d at
1530). For instance, federal regulations require agencies to investigate contractors’ dealings with
past agencies and obtain an affirmative finding of a satisfactory record, a practice that could spell
doom for Liff even if DOL did not actively spread its supposedly defamatory report. Id. at 15-16
(citing 48 C.F.R. § 9.105-1(c)(5)) (finding dismissal unwarranted “[w]ith no additional
information from the government at this stage about how the communications at issue here
would factor in[]”). Plaintiff, moreover, paints a plausible picture that such broad preclusion
from government contracting actually happened, as other agencies’ inquiries into his services
“essentially ended” and past agency contacts “stopped returning his calls.” Compl., ¶ 52.
Defendants may ultimately prove that all of these ill effects stemmed only from
defamatory speech, but that defense is of fact, not of pleading. At this stage, Liff’s Complaint
may be read as positing that internal decisions of various government actors functionally barred
him from public-sector consulting, leading to the loss of his liberty right to pursue his chosen
profession. See id., ¶¶ 58-60 (complaining of “acts and omissions,” which resulted in “broad
preclusion of Plaintiffs from government contractor work”). As hard as this Court might try, it
thus cannot fit Liff’s round stigma-plus peg (which, at times, involves no speech at all) into the
square defamation statute-of-limitations hole. Liff’s allegations, to the extent that they do not
rest solely on defamation, are therefore timely.
IV. Conclusion
For these reasons, the Court will grant in part and deny in part Defendants’ Motion to
Reconsider. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: November 7, 2016
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