Hall, Sheryl L. v. Clinton, Hillary R.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 19, 2002 Decided April 5, 2002

No. 01-5142

Sheryl L. Hall,

Appellant

v.

Hillary Rodham Clinton,

In her personal capacity, and

DNC Services Corporation d/b/a

Democratic National Committee,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 99cv03281)

Larry E. Klayman argued the cause for the appellant.

Michael S. Raab, Attorney, United States Department of

Justice, argued the cause for appellee Hillary Rodham Clin-

ton. Roscoe C. Howard, Jr., United States Attorney, and

Mark B. Stern, Attorney, United States Department of Jus-

tice, were on brief.

Joseph E. Sandler argued the cause for appellees DNC

Services Corporation and Democratic National Committee.

Before: Henderson, Randolph and Rogers, Circuit Judges.

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 intention-

al 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.

s 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 II, 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 con-

sidering 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.

ss 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 limita-

tions. 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 mer-

it, 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. p 12).1 Among

these purposes, she alleges, were the "tracking [of] informa-

tion 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. p 12). Hall further

alleges that she "expressed reservations about whether the

project complied with the Hatch Act," 18 U.S.C. ss 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. p p 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. p 23). According to Hall, "these actions were under-

__________

1 In reviewing the district court's grant of the defendants' mo-

tions 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 (1993)).

taken 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. p 24). Hall claims that she

suffered "extreme emotional distress and stress-related phys-

ical conditions" as well as "additional, substantial pecuniary

losses" because of the alleged goings-on at the White House.

JA 14 (Compl. p 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. s 1985

(section 1985).2 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 (Hall

__________

2 42 U.S.C. s 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 there-

of; ... 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 conspira-

tors.

42 U.S.C. s 1985(1), (3).

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 "Con-

gress 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

(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.

p 33); and a claim of intentional infliction of emotional dis-

tress 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[d] a gross abuse of Mrs. Clinton's position as First

Lady of the United States," JA 15 (Compl. p 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. p 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 person-

nel and United States Government resources, in direct viola-

tion of the Hatch Act," JA 16 (Compl. p 40). Finally, Hall

filed a motion to disqualify the DOJ from representing Clin-

ton 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 3-4. 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 "Clin-

ton 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 (1988), and therefore will not

lightly cast its decision aside.

Under 28 U.S.C. s 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. s 517 (emphasis added). The district court con-

cluded that "a decision to provide representation subject to

s 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 (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 (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 deter-

mine whether the agency exceeded its statutory powers."

Heckler, 470 U.S. at 832 (emphasis in original);3 cf. 5 U.S.C.

s 706(2)(A) ("The reviewing court shall ... hold unlawful and

set aside agency action ... found to be ... arbitrary, capri-

cious, an abuse of discretion, or otherwise not in accordance

with law...." (emphasis added)). Thus, although Clinton

appropriately emphasizes the "lengthy history of discretion-

ary 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 mus-

ter 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. s 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

__________

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 review-

able, the decision was lawful. See infra.

Justice possesses no 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 not4--it was well within the DOJ's discretion to deter-

mine 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 dis-

missed 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 con-

duct 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.

__________

4 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. s 105(e). Indeed, expressly relying on this provision, we

have construed the Federal Advisory Committee Act's phrase, "full-

time officers or employees of the Federal Government," 5

U.S.C.App. 2, s 3(2)(iii), to include Clinton. See Ass'n of Am.

Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 911 (D.C. Cir.

1993).

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 (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 deter-

mination 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

I. 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 [Clin-

ton'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 judg-

ment 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) (em-

phasis 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 judg-

ment in Hall I precluded the district court in Hall II from

considering the tort claims.5 The district court, therefore,

correctly dismissed the claims for lack of subject matter

jurisdiction.6

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 govern-

ment 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

__________

5 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.

6 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 preclusion 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 (1983); Spagnola v.

Mathis, 809 F.2d 16, 30 (D.C. Cir. 1986)), we do not reach that

issue.

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

s 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 elimi-

nated and her duties and supervisory responsibilities were

assigned to a lesser qualified individual under whose supervi-

sion she was assigned to work." JA 13 (Compl. p 23). Be-

cause Hall did not file her complaint until December 13,

1999--outside the three-year window--the statute of limita-

tions 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 No-

vember 30, 1998 of a report by the United States House of

Representatives Committee on Government Reform and

Oversight [about] the WhoDB." JA 14 (Compl. p 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 Communica-

tions 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" assert-

ing, 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. Allain,

478 U.S. 265, 286 (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. p 12); see Hall II,

143 F. Supp. 2d at 6. The district court, therefore, properly

dismissed her section 1985 claim against the DNC.7

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 defini-

tion of a "tort" is "[a] civil wrong for which a remedy may be

obtained." Black's Law Dictionary 1496 (7th ed. 1999) (em-

phasis 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 Unit-

__________

7 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.

ed States Government resources, in direct violation of the

Hatch Act." JA 16 (Compl. p 40). "Violation of the Hatch

Act," however, is not a tort.8 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), aff'd, 473

F.2d 955 (3d Cir. 1973), a conspiracy to violate the Act is not

actionable either.9

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.

__________

8 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).

9 Because the district court properly dismissed Hall's civil con-

spiracy claim on this ground, we need not inquire whether the

CSRA preempts the claim. Cf. supra notes 6-7. Moreover, al-

though the civil conspiracy claim is governed by the same three-

year statute of limitations as the section 1985 claim, see D.C. Code

s 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 time-barred.

Randolph, Circuit Judge, concurring: If the government

had raised a separation of powers argument in support of its

claim that the Justice Department's decision to represent

now-Senator Clinton is nonreviewable, I might have been

persuaded to reach a different conclusion in this case. See

U.S. Const., art. II, s 3. Several cases, perhaps dating as far

back as Hayburn's Case, 2 U.S. (2 Dall.) 408 (1792), have

reviewed the Attorney General's decision to undertake legal

representation in pending cases. But see Maeva Marcus,

Hayburn's Case: A Misinterpretation of Precedent, 1988 Wis.

L. Rev. 527, 535 (1988) (concluding that the real issue in

Hayburn's Case was whether Attorney General Randolph had

the power to proceed without specific authorization from the

President). But none of these cases expressly addresses

whether the separation of powers inherent in the Constitution

precluded the courts from questioning the judgment of the

Executive Branch on such a matter. See, e.g., Booth v.

Fletcher, 101 F.2d 676, 681-82 (D.C. Cir. 1938); Meredith v.

Van Oosterhout, 286 F.2d 216, 220 (8th Cir. 1960); Int'l

Prods. Corp. v. Koons, 325 F.2d 403, 408 (2d Cir. 1963);

Brawer v. Horowitz, 535 F.2d 830, 834-35 (3d Cir. 1976).

The issue therefore remains open. See Webster v. Fall, 266

U.S. 507, 511 (1925).