Goldstein v. Moatz

DIANA GRIBBON MOTZ, Circuit Judge,

dissenting:

With great respect, I dissent. Although purported constitutional violations provide the sole ground for federal jurisdiction here, Goldtein’s complaint utterly fails to allege facts giving rise to any constitutional violation. It thus fails to state a claim on which relief can be granted. Accordingly, we should remand this case so that the district court can dismiss it pursuant to Fed.R.Civ.P. 12(b)(6). 1

*221 Even ascertaining the parameters of Goldstein’s asserted constitutional claim presents a challenge. His 33-page, 113-paragraph, complaint barely mentions the purported constitutional violation and his factual allegations, although lengthy, do little to clarify his legal theory. The most that can be gleaned from them is that, as the majority puts it, Goldstein has “brought Bivens actions ... for the violation of his constitutional rights to free speech and due process through issuance of the RFIs.” Ante at 210.

But the OED’s “issuance of the RFIs” to Goldstein simply does not provide the basis for any cause of action against OED. In fact, almost half a century ago, the Supreme Court considered and expressly rejected a contention very similar to Gold-stein’s. See Hannah v. Larche, 363 U.S. 420, 424 , 80 S.Ct. 1502 , 4 L.Ed.2d 1307 (1960).

In Hannah , the plaintiffs complained, inter alia, of the “315 written interrogatories” sent to them by a commission in the course of an investigation. The Court upheld the constitutionality of all of the commission’s procedures, including its issuance of the assertedly burdensome and irrelevant interrogatories and its refusal to furnish the targets of the investigation with the names of the complainants and contents of the complaints. Id. at 424, 451 , 80 S.Ct. 1502 . The Court explained that the commission had engaged in “purely investigatory and fact-finding” activities, which might “subsequently be used as the basis for legislative or executive action,” but which did not in themselves “affect an individual’s legal rights.” Id. at 441 , 80 S.Ct. 1502 . To impose in this context the constitutional procedures appropriate when “governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals” would, the Court concluded, “make a shambles of the investigation and stifle the agency in its gathering of facts.” Id. at 442-44 , 80 S.Ct. 1502 .

So it is here. As my colleagues have emphasized, ante at 215-17, the OED, like the agency in Hannah , has engaged only in “purely investigative and fact-finding” activities. Id. at 441 , 80 S.Ct. 1502 . The OED has not disbarred Goldstein from the patent bar or even determined that there is probable cause that he violated a disciplinary rule. In short, the OED has not taken (and indeed could not take) any final action “affect[-ing]” Goldstein’s “individual ] legal rights,” id., and thus, necessarily, the OED could not have even arguably violated any of Goldstein’s due process rights. 2

*222 Of course, as in Hannah , the facts found by the OED “may subsequently be used as the basis for ... executive action.” Id. Conceivably, the OED investigation, like the investigation in Hannah , may subject Goldstein “to public opprobrium and scorn,” loss of employment, or even “the possibility of criminal prosecutions.” Id. at 443 , 80 S.Ct. 1502 . And Goldstein ultimately could be punished for failure to respond to the RFIs issued by OED investigators. But “even if such collateral consequences were to flow from” the investigation, these consequences do not give rise to a constitutional claim against OED because they “would not be the result of any affirmative determinations made by” OED. Id. The OED investigators cannot even make a determination about whether to sanction Goldstein if he should refuse to reply to an RFI. Goldstein can only be punished for failure to reply if (in proceedings from which the investigators are wholly insulated by regulation) the Director convenes the Committee on Discipline, that body makes a probable cause finding, the Director files a complaint, an administrative law judge rules against Goldstein as to the complaint, and that ruling is upheld on appeal.

Not only does Hannah itself provide a singularly compelling precedent here, in addition, courts, including the Supreme Court, have continued to apply the Hannah principle in related contexts. For example, “because an administrative investigation adjudicates no legal rights,” they have summarily rejected a number of constitutional challenges to similar SEC investigative procedures. SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 742 , 104 S.Ct. 2720 , 81 L.Ed.2d 615 (1984) (rejecting Fourth, Fifth, and Sixth Amendment challenges); RNR Enters., Inc. v. SEC, 122 F.3d 93, 98 (2d Cir.1997); Gold v. SEC, 48 F.3d 987, 991-92 (7th Cir.1995). This is so despite the fact that the SEC often engages in wide-ranging investigations (certainly broader than the OED investigation of Goldstein) “without any knowledge of which of the parties involved,” among “thousands of purchasers,” might “have violated the law.” O’Brien, Inc., 467 U.S. at 749 & n. 21, 104 S.Ct. 2720 .

Of even greater relevance here, courts have also applied these principles in rejecting challenges to attorney discipline and public corruption investigations. See, e.g., Anonymous Nos. 6 & 7 v. Baker, 360 U.S. 287, 291-96 , 79 S.Ct. 1157 , 3 L.Ed.2d 1234 (1959) (holding no due process right to refuse to answer questions before “purely investigatory and advisory” attorney disciplinary hearings); In re Bailey, 182 F.3d 860, 872 (Fed.Cir.l999)(rejecting an array of constitutional claims and finding even if Committee on Admission and Practice for the Court of Appeals for Veterans Claims did engage in “dilatory and abusive tactics,” it violated no due process right of the complainant because the “court, not the Committee” ultimately makes “the determination whether [the complainant] would be subject to discipline”); Romero-Barcelo v. Acevedo-Vila, 275 F.Supp.2d 177, 202 (D.P.R.2003) (finding that “[attorneys who will be accorded all the traditional judicial safeguards at a subsequent adjudicative proceeding ... should some type of adjudicative proceeding subsequently b[e] instituted, cannot successfully complain that they were not provided with the procedural due process at an investigatory hearing”) (internal quotation marks and citations omitted); see also In re Logan, 70 N.J. 222 , 358 A.2d 787, 789-92 (1976).

Indeed, this court has been especially observant of the Hannah principle. Thus, even when an administrative body could *223 issue a “finding of reasonable cause,” we have held that “due process considerations do not attach” to its investigatory proceedings. Georator Corp. v. EEOC, 592 F.2d 765, 768 (4th Cir.1979). We reasoned that even then an agency simply “utilize[s]” its “investigative powers” and its finding “carries no determinative consequences” without subsequent judicial enforcement. Id. Notably, we reached this conclusion notwithstanding recognition that the “determination of reasonable cause” was “final in itself,” and might be admissible in a subsequent federal suit. Id. at 769 . Surely, if “due process considerations do not attach” in such circumstances, they do not attach here given that the OED cannot even issue a probable cause determination.

For all of these reasons, I must respectfully dissent.

. Of course, as the majority notes, ante at 212 n. 11, a court need not determine whether a plaintiff has alleged a constitutional violation prior to determining the defendant’s entitlement to absolute immunity. However, when, as here, the immunity question is close and the lack of a constitutional violation obvious, resolving the immunity claim first seems to *221 me a waste of judicial resources, serving only to prolong a plainly meritless case.

. Goldstein’s "free speech” claim is of even less substance. The factual allegations in his complaint totally foreclose his sole First Amendment argument. Goldstein argues that OED "targeted” him for what he had "been saying” and that he was "singled out ... because of the types of clients he represents,” conceivably a First Amendment retaliation/Fifth Amendment selective enforcement claim. But in his complaint Goldstein alleges that the OED generally issues RFIs in an abusive manner to members of the patent bar. E.g,, J.A. 7 (referencing OED’s "pattern and practice of forcing attorneys like the Plaintiff who are licensed to practice before the USP-TO, to provide burdensome amounts of documents”) (emphasis added); J.A. 8 (asserting "[d]efendants have routinely initiated such investigations without regard for their legitimacy or fairness, as a means to burden the Plaintiff and other patent practitioners.”) (emphasis added); J.A. 35 ("Defendants have used RFIs as a harassment tool in fighting a 'war of attrition’ following a nearly identical pattern of abuse against numerous other licensed patent practitioners”) (emphasis added). Thus, Goldstein affirmatively asserts in his complaint that OED treated him in the same manner that it treated other members of *222 the patent bar, completely subverting his only possible First Amendment argument.