Atherton v. District of Columbia Office of the Mayor

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 12, 2012 Decided February 8, 2013

No. 11-5298

PETER JAMES ATHERTON,

APPELLANT

v.

DISTRICT OF COLUMBIA OFFICE OF THE MAYOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:04-cv-00680)

Benjamin R. Dryden argued the cause for appellant. With

him on the briefs was David T. Ralston, Jr.

Richard S. Love, Senior Assistant Attorney General for

the District of Columbia, argued the cause for appellee

Suzanne Bailey-Jones. With him on the brief were Irvin B.

Nathan, Attorney General for the District of Columbia, Todd

S. Kim, Solicitor General, and Donna M. Murasky, Deputy

Solicitor General.

Alan Burch, Assistant United States Attorney, argued the

cause for appellee Daniel Zachem. With him on the brief

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were Ronald C. Machen, Jr., United States Attorney, and R.

Craig Lawrence, Assistant United States Attorney.

Before: ROGERS, BROWN, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge BROWN.

Concurring opinion by Circuit Judge ROGERS.

BROWN, Circuit Judge: Today we bring resolution to

nearly a decade’s worth of litigation. As explained in

Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 677–78

(D.C. Cir. 2009) (Atherton II), juror officer Suzanne Bailey-

Jones unceremoniously removed Peter James Atherton from

grand jury service after Assistant United States Attorney

(AUSA) Daniel Zachem reported the complaints of other

members of the grand jury. The District Court concluded

appellees Bailey-Jones and Zachem were entitled to qualified

immunity and granted their respective motions to dismiss.

Because Atherton has failed to convince us that he had a

clearly established constitutional entitlement to a more

comprehensive termination process when he was excluded

from jury service, we affirm.

I

We will not rehearse the facts already discussed at length

in Atherton II, where we dismissed the bulk of Atherton’s

case save his due process claims against Bailey-Jones and

AUSA Zachem. Because “qualified immunity . . . was not

addressed below and was only thinly briefed on appeal,” we

remanded the matter, emphasizing that the District Court

would:

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retain[] the discretion to decide “which of the two prongs

of the qualified immunity analysis should be addressed

first” — (1) whether the alleged facts show that the

officials’ conduct violated a statutory or constitutional

right and (2) whether that right was clearly established at

the time of the incident — “in light of the circumstances

in the particular case at hand.”

Id. at 690–91 (quoting Pearson v. Callahan, 555 U.S. 223,

236 (2009)); see also Reichle v. Howards, 132 S. Ct. 2088,

2093 (2012) (noting that this “approach comports with [the

Court’s] usual reluctance to decide constitutional questions

unnecessarily”).

If the District Court chose to resolve matters on the

second prong and ask whether the procedural due process

owed a grand juror prior to the termination of a protected

interest was clearly established at the time of dismissal, we

recognized that Atherton’s burden was great, but not

insurmountable. “The question presented . . . boils down to

this: Has [Atherton] proven that, under the three-part

balancing analysis of Mathews [v. Eldridge, 424 U.S. 319

(1976)] and the precedents that have applied it, he had a

‘clearly established’ right to process more comprehensive

than that provided by the District?” Atherton II, 567 F.3d at

691 (quoting Brewster v. Bd. of Educ. of the Lynwood Unified

Sch. Dist., 149 F.3d 971, 984 (9th Cir. 1998)).

Foregoing a formal discussion of Mathews, the District

Court on remand concluded:

Given (1) the absence of any legal precedent at the

relevant time establishing the alleged due process right,

(2) the absence in 2001 of any formal procedures for (and

judicial involvement in) removing grand jurors in

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Superior Court, (3) the apparent informal practice of

delegating grand juror removal decisions to the Juror

Officer, and (4) the Juror Officer’s job description

implicitly authorizing the practice, the Court finds that,

even if a constitutional right exists in serving on a grand

jury, defendants could not have reasonably known that

their removal of plaintiff from the grand jury in April

2001 violated any clearly established statutory or

constitutional rights of which a reasonable person would

have known.

Atherton v. District of Columbia Office of the Mayor, 813 F.

Supp. 2d 78, 84 (D.D.C. 2011) (Atherton III) (internal

quotation marks omitted).

We agree with the District Court in substance. Assuming

arguendo that Mathews requires a judicial determination and

formal process prior to dismissal from a grand jury, no

reasonable official in Appellees’ position would have

understood those requirements to be “clearly established” as a

constitutional matter.

II

“Qualified immunity shields government officials from

civil damages liability unless the official violated a statutory

or constitutional right that was clearly established at the time

of the challenged conduct.” Reichle, 132 S. Ct. at 2093.

“Clearly established” does “not require a case directly on

point, but existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd,

131 S. Ct. 2074, 2083 (2011). To determine whether the state

of the law was “beyond debate,” we look to “cases from the

Supreme Court and this court, as well as to cases from other

courts exhibiting a consensus view — if there is one.” Bame

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v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011) (citation and

internal quotation marks omitted). If the facts are truly novel

and there are no relevant cases, “officials can still be on notice

that their conduct violates established law” if their “conduct

violated ‘clearly established statutory or constitutional rights

of which a reasonable person would have known.’ ” Hope v.

Pelzer, 536 U.S. 730, 741–42 (2002) (finding an obvious

violation of Eighth Amendment where inmate was handcuffed

to hitching post, once for seven hours without regular access

to water or bathroom breaks).

Whether a government official is entitled to qualified

immunity “generally turns on the objective legal

reasonableness of the action, assessed in light of the legal

rules that were clearly established at the time it was taken.”

Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012)

(internal quotation marks omitted); see also Malley v. Briggs,

475 U.S. 335, 341 (1986) (“[A]n allegation of malice is not

sufficient to defeat immunity if [official acted in] an

objectively reasonable manner.”). It is thus axiomatic that

qualified immunity “provides ample protection to all but the

plainly incompetent or those who knowingly violate the law.”

Briggs, 475 U.S. at 341.

Here, the procedural due process owed a grand juror

seems as unclear today as it was over a decade ago when

Atherton was dismissed from jury service on April 11, 2001.

The parties have cited no cases directly on point and this

Court has found just one of passing resemblance.1 Atherton

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United States v. Peters, 791 F.2d 1270 (7th Cir. 1986),

superseded by statute on other grounds as stated in United States v.

Guerrero, 894 F.2d 261, 267 (7th Cir. 1990), implicated Rule 6 of

the Federal Rules of Criminal Procedure, the Federal analogue to

the Superior Court’s Rule 6. The criminal defendant in Peters had

argued “that an adversarial hearing was necessary to determine

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instead argues by analogy, relying chiefly on United States v.

Brown, 823 F.2d 591 (D.C. Cir. 1987).

The trial judge in Brown had removed a juror who

confessed an inability to honor or apply the R.I.C.O.

conspiracy act as written. See id. at 594–95. Reversing the

conviction, we held that a criminal defendant’s Sixth

Amendment right to a unanimous petit jury means “a court

may not dismiss a juror during deliberations if the request for

discharge stems from doubts the juror harbors about the

sufficiency of the government’s evidence.” Id. at 596.

Atherton contends that the holding in Brown is apposite to

situations involving dismissal of grand jurors. He maintains

that Brown makes clear that “grand jurors cannot be

dismissed unless and until a judge makes a finding of good

cause shown, and implicitly, only after notice and opportunity

to be heard.” Reply Br. at 15. This bold claim is simply

whether the grand juror’s excusal had prior judicial approval or was

simply an exercise of arbitrary prosecutorial discretion.” Id. at

1283. The Seventh Circuit quickly dismissed the argument.

Holding that no such hearing was required, the court stated:

Rule 6(g) does not require an adversarial hearing before the

court may dismiss a grand juror. Nor does Rule 6(g)

require a court to notify the subject of the investigation that

a grand juror has been dismissed or to explain the reason

for the dismissal.

An adversarial hearing would disrupt and delay

grand jury proceedings, and therefore a petitioner

requesting such a hearing bears a heavy burden.

Id. Peters, however, is distinguishable insofar as it involved a

juror’s request to be excused from the grand jury, a magistrate

judge’s approval of the excusal request, and, as might be expected

given the facts of the case, an emphasis on the rights of the criminal

defendant as opposed to those of the juror.

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untenable.

As a threshold matter, Brown does not speak to process.

In concluding that the Sixth Amendment categorically barred

the removal of certain jurors, we never opined on what

procedures are required in the “many circumstances” where

courts may freely use Federal Rule of Criminal Procedure

Rule 23(b) to discharge a juror. Brown, 823 F.3d at 597. Nor

was it our intention to speak to process. To the contrary, we

held “only that Rule 23(b) is not available when [] evidence

discloses a possibility that the juror believes [] the

government has failed to present sufficient evidence to

support a conviction.” Id. (emphasis added). The pointed

reference to Rule 23 underscores Brown’s limited reach since

Rule 23 implicates only trial juries, not grand juries. Simply

put, nothing in Brown suggests grand jurors had a clearly

established right to the “[j]udicial [h]earing [b]efore

[d]ismissal” that Atherton believes Mathews requires. Reply

Br. at 15.

But even if Brown spoke clearly to the question of

process, it is simply inapposite. While both grand and petit

juries “act[] as a vital check against the wrongful exercise of

power by the State and its prosecutors,” Campbell v.

Louisiana, 523 U.S. 392, 399 (1998) (internal quotation

marks omitted), the District Court correctly noted that grand

juries exist as “an institution separate from the courts” for

which, “as a general matter at least,” no “ ‘supervisory’

judicial authority exists.” Atherton III, 813 F. Supp. 2d at 82

(quoting United States v. Williams, 504 U.S. 36, 47 (1992)).

It may well be true that a decision in one context could

prove persuasive or even controlling in the other, see Batson

v. Kentucky, 476 U.S. 79, 84 n.3 (1986) (“The basic principles

prohibiting exclusion of persons from participation in jury

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service on account of their race are essentially the same for

grand juries and for petit juries” (internal quotation marks

omitted)), but for present purposes at least, a principle

“clearly established” for a petit jury cannot be seamlessly

applied to the grand jury — especially where the translation

implicates a difference as significant as procedure and,

concomitantly, the grand jury’s relationship with the court.

For one thing, the function of a grand jury is “quite

different from that of a petit jury.” In re Sealed Case, 877

F.2d 976, 982 (D.C. Cir. 1989). With a greater number of

jurors, no requirement of unanimity, and the safeguard of an

eventual petit jury, see United States v. Mechanik, 475 U.S.

66, 73 (1986) (“[T]he petit jury’s verdict rendered harmless

any conceivable error in the [grand jury’s] charging decision

that might have flowed from the violation.”), it is not clear

whether the reasoning underlying our Sixth Amendment

holding in Brown would apply with the same force here — if

at all. At bottom, the suggestion that all these leaps in

inferential logic — Sixth Amendment to Fifth Amendment,

petit jury to grand jury, Rule 23 to Rule 6, criminal defendant

to juror, etc. — constitute “clearly established” doctrine

beggars belief.2

2

Nor can we say appellees acted so brazenly as to violate

Atherton’s clearly established rights. See Hope, 536 U.S. at 741–

42. To the contrary, the Superior Court’s ad hoc administration of

the juror removal process only reaffirms the “objective legal

reasonableness” of Appellees’ actions. Messerschmidt, 132 S. Ct.

at 1245.

To be clear, we do not mean to suggest that informal policies

and practices in government offices can defeat or otherwise

undermine what is clearly established constitutional or statutory

law. We mean only that informal practices of this sort are

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III

For the above reasons, the District Court’s decision to

find qualified immunity and grant Bailey-Jones’s and

Zachem’s respective motions to dismiss is

Affirmed.

sometimes the symptoms of doctrinal confusion, not the cause.

Such is plainly the case here.

ROGERS, Circuit Judge, concurring. I join the court in

holding that the federal prosecutor and the employee in the D.C.

Superior Court Juror Office are entitled to qualified immunity

because it was not “clearly established” at the time of Atherton’s

dismissal from the grand jury that either violated his

constitutional rights. I write separately because Atherton’s

challenge has uncovered the absence of a clear procedure for

dismissing a grand juror.

The Supreme Court has emphasized that

notwithstanding periodic criticism, much of which is

superficial, overlooking relevant history, the grand jury

continues to function as a barrier to reckless or

unfounded charges . . . . Its historic office has been to

provide a shield against arbitrary or oppressive action,

by insuring that serious criminal accusations will be

brought only upon the considered judgment of a

representative body of citizens acting under oath and

under judicial instruction and guidance.

United States v. Mandujano, 425 U.S. 564, 571 (1976). So too

this court has recognized the important role played by the grand

jury in our constitutional framework, noting that despite criticism

that it “is not independent at all,” the grand jury remains “vital[]

and importan[t],” and “[t]o disregard [its] role . . . would be to

effectively emasculate the Grand Jury Clause of the

Constitution.” United States v. Coachman, 752 F.2d 685, 690

n.29 (D.C. Cir. 1985). More recently, the Supreme Court has

reaffirmed that the grand jury acts as a shield, stating that there

is “[n]o doubt” that “the Fifth Amendment grand jury right

serves a vital function in providing for a body of citizens that

acts as a check on prosecutorial power.” United States v. Cotton,

535 U.S. 625, 634 (2002). Whether or not these

characterizations of the grand jury always match reality, the idea

of the independent grand jury as a “buffer or referee between the

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Government and the people” is a well-established part of our

jurisprudence. United States v. Williams, 504 U.S. 36, 47

(1992). Moreover, the Supreme Court has observed that, “with

the exception of voting, for most citizens the honor and privilege

of jury duty is their most significant opportunity to participate in

the democratic process.” Powers v. Ohio, 499 U.S. 400, 407

(1991).

Little appears to have been written on the subject of the

dismissal of a grand juror, an action, which, depending on who

takes it, implicates and could possibly threaten the heralded

independence of the grand jury. The Grand jury operates “at

arm’s length” from the Judicial Branch, Williams, 504 U.S. at 47,

and its proceedings are cloaked in secrecy for various reasons,

notably in order to ensure the free deliberation and protection of

the grand jurors themselves, see Douglas Oil Co. of California

v. Petrol Stops Northwest, 441 U.S. 211, 219 n.10 (1979); see

also D.C. SUPER. CT. CRIM. R. 6(e)(2); FED. R. CRIM. P. 6(e)(2).

Given the insulation of grand jury procedures from outside

scrutiny, it is unsurprising to discover that there is a dearth of

judicial and academic commentary on the subject.

The absence of formal discussion, however, is not total. The

United States District Court for the Eastern Division of the

Northern District of Illinois has published a GRAND JURY

FOREPERSON’S HANDBOOK, which addresses the issue of

“problematic jury members.” (1997),

http://www.ilnd.uscourts.gov/JURY/Grndjury.htm; see also

Susan W. Brenner, Grand Jurors Speak, in GRAND JURY 2.0:

MODERN PERSPECTIVES ON THE GRAND JURY 42 (Roger Anthony

Fairfax, Jr. ed., 2011) (discussing the HANDBOOK). This

HANDBOOK makes clear that it is the “prerogative of the grand

jury foreperson to recommend the dismissal of any grand jury

member for due cause,” but that it is the “Chief Judge” who will

make the ultimate “decision.” Similarly, the U.S. Department of

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Justice’s GRAND JURY PRACTICE MANUAL states that “the staff

and/or the United States Attorney can move to excuse [a] grand

juror for cause”; use of the verb “move” and the exclusion of

“staff” as well as prosecutors from the final decision-making

process implies requisite judicial involvement. MANUAL

§I(D)(6) (1991) (emphasis added),

http://www.justice.gov/atr/public/guidelines/206542.htm#ID6.

Atherton was sworn as a substitute grand juror and served on

a grand jury for three days, when he was “summarily and

permanently dismissed” for allegedly being “disruptive.”

Atherton v. District of Columbia, 567 F.3d 672, 676 (D.C. Cir.

2009) (“Atherton II”); see also Affidavit of Chief Judge Rufus G.

King III, D.C. Superior Court, Nov. 14, 2006 (“King Aff.”). He

was dismissed by the Juror Office employee based on the

Assistant United States Attorney’s report that other grand jurors

were complaining about him. See Atherton II, 567 F.3d at 676.

So far as the record indicates, his dismissal was an ad hoc

response. See id. at 676-77. Neither the employee’s job

description nor local rule nor court order explicitly authorized

her to dismiss a sworn juror. Some time after Atherton’s

dismissal, the then-Chief Judge of the D.C. Superior Court

changed the procedures to require that he be “consulted before

any imposition of grand jury discipline.” King Aff. During oral

argument, however, counsel for the United States Attorney’s

Office and the District of Columbia could shed no light on what

is intended by “consultation.” Does the Chief Judge make the

dismissal decision? If not, who does?

The rules of the D.C. Superior Court provide that a grand

jury “shall serve until discharged by the Chief Judge or other

judge designated by the Chief Judge.” D.C. SUPER. CT. CRIM. R.

6(g) (“Rule 6(g)”). Nonetheless, the record in this case indicates

that the procedure for dismissing a grand juror is unclear.

Whatever clarity there may be in the statutes and rules, see, e.g.,

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D.C. Code § 11-1908(b)(4); Rule 6(g), is, as a practical matter,

undermined by the plausible but conflicting interpretations

offered by the parties and the informal practice at the time of

Atherton’s dismissal, see Atherton v. D.C. Office of the Mayor,

813 F. Supp. 2d 78, 84 (D.D.C. 2011).1 Indeed, in “[a]ssuming

arguendo that Mathews [v. Eldridge, 424 U.S. 319 (1976),]

requires a judicial determination and formal process prior to

dismissal from a grand jury,” Op. at 4, the court notes that “the

procedural due process owed a grand juror seems as unclear

today as it was over a decade ago when Atherton was dismissed

from jury service on April 11, 2001,” Op. at 5.

Although neither counsel could shed light on the content of

the charge to the grand jurors, they clarified that “convening

judges” charge grand juries in the D.C. Superior Court. See

Appellees’ Joint Notice Re Grand Jury Instructions, Oct. 17,

2012, at 1. It would seem to follow, given the involvement of a

judge in the convening and charging of the grand jury, that the

dismissal of a grand juror is also a decision for a judge. In

Atherton’s case, the Chief Judge’s understanding of the

seriousness of dismissal of a grand juror might be inferred from

his agreement to meet with Atherton and his later decision to

change the informal procedures for grand jury discipline.

Further clarification of the procedures for dismissing a grand

1

The parties’ divergent interpretations of the statutes and

rules on juror dismissal reveal they are susceptible to misinterpretation

– e.g., whether the Court’s authority to exclude jurors under D.C.

Code § 11-1908(b) is exclusively to be exercised by a judge, see id.

§ 11-1902(4) (defining “Court”). Compare Appellant’s Br. at 27 and

Reply Br. at 20 with Appellee Zachem’s Br. at 45-46 and Appellee

Bailey-Jones’s Br. at 24-25. Of course, neither informal policies nor

practices can defeat constitutional or statutory requirements. Cf. Op.

at 8 n.2.

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juror, however, would be in the interests of protecting the

integrity and independence of the grand jury.