# Jane Doe v. United States Department of Justice > Court of Appeals for the D.C. Circuit · March 1, 1985 · 753 F.2d 1092 URL: https://www.frixlaw.com/law-library/cases/9473109 ## Case - **Full name:** Jane DOE, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Et Al. - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** March 1, 1985 - **Citations:** 753 F.2d 1092; 243 U.S. App. D.C. 354 - **Precedential status:** Published - **Opinion:** Dissent by Wald - **Judges:** Wright, Wald, MacKinnon, I-Iv - **Cited by:** 451 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9473109 ## How later opinions describe it (automated extraction) - holding that the plaintiff, an at-will employee who was never afforded an opportunity to refute potentially defamatory charges during the course of her termination, was entitled to a name-clearing hearing but disavowing any suggestion that the court’s holding compelled such a … - finding that plaintiff’s complaint unquestionably established that back pay would exceed $10,000 where plaintiff was “a GS-14 attorney earning approximately $45,000 a year” who had been “discharged over two years before she brought this lawsuit” - holding that because a Fifth Amendment liberty interest claim implicates an interest in one’s “post- employment reputation rather than any right to continued employment,” the “well-settled remedy” is a name-clearing hearing - holding that because a Fifth Amendment liberty interest claim implicates an interest in one’s “post-employment reputation rather than any right to continued employment,” the “well-settled remedy” is a name-clearing hearing - holding that damage to one's reputation plus termination from employment would jeopardize that individual's future employment opportunities with the government and thus constitutes a due process violation under Paul ## Opinion text WALD, Circuit Judge, dissenting as to Part IV.B: I would remand Doe’s Bivens claims against the individual defendants with directions to the district court to grant Doe leave to amend her complaint in order to allege timely publication. The law in this circuit is clear: a defense based on the statute of limitations is an affirmative defense that cannot succeed on a Rule 12(b)(6) motion unless it is unequivocally apparent from the face of the complaint that the statute precludes the action. See Richards v. Mileski, 662 F.2d 65, 72 (D.C.Cir.1981); Jones v. Rogers Memorial Hosp., 442 F.2d 773, 775 (D.C.Cir.1971); cf. Gordon v. National Youth Work Alliance, 675 F.2d 356, 360 (D.C.Cir.1982) (noting that title VII complaints should not ordinarily be dismissed on Rule 12(b)(6) motion for failure to file within statutory time limits). Accordingly, Doe’s Bivens claims should not be dismissed with prejudice at this stage simply because she failed to allege publication specifically within the relevant time period. Instead, a Rule 12(b)(6) dismissal would only be warranted if the complaint itself unmistakably indicated that Doe could not prove any set of facts that could give rise to a timely action. See, e.g., Hepperle v. Johnston, 544 F.2d 201, 202-03 (5th Cir.1976) (per curiam). Although the majority concedes, as it must, that the district court was obliged to resolve any ambiguity in the complaint in Doe’s favor on a Rule 12 motion, it none *1117 theless concludes that Doe unequivocally alleged defamation on the day she was discharged, and on that day only. I cannot agree. In Richards , we allowed a constitutionally based defamation action to proceed despite a Rule 12(b)(6) motion based on the applicable statute of limitations. In doing so, we noted that: There is an inherent problem in using a motion to dismiss for purposes of raising a statute of limitations defense. Although it is true that a complaint sometimes discloses such defects on its face, it is more likely that the plaintiff can raise factual setoffs to such an affirmative defense. The filing of an answer, raising the statute of limitations, allows both parties to make a record adequate to measure the applicability of such a defense, to the benefit of both the trial court and any reviewing tribunal. We do not hold that the use of a motion to dismiss is always improper to raise a statute of limitations defense, but we do suggest that a responding party often imposes an undue burden on the trial court and impedes the orderly administration of the lawsuit when he relies on a motion to dismiss to raise such an affirmative defense. Richards, 662 F.2d at 72 . In my view, the majority’s conclusion that Doe’s complaint must be read to exclude the possibility that she could prove timely publication cannot be squared with this standard. First, I cannot agree that the critical paragraph of Doe’s complaint, see Maj.Op. at p. 1115, expressly and unambiguously alleges that the defamatory statements were published at any particular time. The phrase “upon her removal” might refer to the time of the discharge, but it might as easily mean “after her removal” or “due to her removal.” Moreover, this paragraph must be read in the context of Doe’s lawsuit taken as a whole. The gist of Doe’s claim is that persistent defamation by Department officials has prevented her from obtaining employment in her preferred field; indeed Doe alleges at several points in her complaint that she continues to suffer from the Department’s defamation. See id.; id. ¶ 29, J.A. at 12-13. Although her “continuing harm” theory (i.e. that she has been forced to repeat the defamatory charges herself) is plainly unacceptable, 1 I think a fair reading of her complaint makes clear that she alleges that the continued actions of DOJ officials prevent her from obtaining employment in her preferred field. Indeed, Doe’s allegation that various DOJ officials aided and abetted in the spreading of the allegedly defamatory charges against her surely connotes a continuing practice of some sort, not a discrete, one-time defamation. And while a more detailed factual account of this alleged continuing practice may or may not bring the Bivens claim within the relevant limitations period, the allegation itself is squarely at odds with the majority’s conclusion that Doe unambiguously alleged publication on one day, namely the day she was discharged. It certainly creates enough doubt in my mind to render appropriate a remand with leave to replead. Doe need only allege that the defendants published— or republished — false allegations concerning her lack of professionalism within the year before she filed her complaint in order to survive a Rule 12 motion on her Bivens claims. The district court also relied on the failure of Doe’s attorney to cite a more recent publication when asked to do so at the Rule 12(b)(6) hearing. See Opinion at 3 n. 2. Yet a reading of the relevant portion of that hearing shows that it was concerned with which statute of limitations (the one year or the three year provision) should *1118 apply, not with the factual specificity of the allegations. If the district court sought factual material outside the pleadings in order to convert the Department’s Rule 12 motion into a motion for summary judgment, it was required to give the parties reasonable notice of its intent to do so and an opportunity to submit relevant factual material. See Maj.Op. at p. 1095 n. 1. On appeal, Doe concedes that her attorney did not have this factual material before him at the Rule 12(b)(6) hearing. See Reply Brief for Appellant at 7 n. 3. She alleges, however, that she has always been prepared to prove publication of the alleged defamation within the one year period and is prepared to do so now. See id. To be sure, a prudent attorney might well have submitted allegations of timely publication after the Rule 12 hearing or on a motion to reconsider the judgment. Nonetheless, I would be reluctant to dismiss Doe’s Bivens claims solely because her attorney could not produce factual material concerning publication at a hearing on the legal sufficiency of the complaint. Cf. Gordon, 675 F.2d at 360 . Indeed, the district court clearly understood that Doe could survive the Department’s Rule 12 motion to dismiss by simply alleging a more recent publication. The court nonetheless concluded from Doe’s lawyer’s statement at oral argument, that Doe could not, as a matter of fact, allege timely publication. At oral argument, plaintiff’s counsel was specifically asked by the Court when the plaintiff contends the most recent publication took place. Counsel could provide nothing more than vague allegations of publication at an unspecified time by a Justice Department attorney now deceased, and it is apparent to the Court that plaintiff cannot point to an instance of publication within the statutory period. Opinion at 3 n. 2. I read this statement to indicate that the district judge himself appreciated the ambiguities in Doe’s complaint and the possibility that Doe could rather easily defeat the Rule 12 motion by alleging, albeit with some specificity, a recent publication. In this context, the appropriate way to resolve the statute of limitations issue was to allow Doe to amend her complaint, to entertain a motion for a more definite statement on the publication issue, see Fed.R.Civ.P. 12(e), or to proceed to a summary judgment proceeding at which the requisite factual material — including Doe’s allegations of timely publication to this court — could be placed at issue. A Rule 12(b)(6) motion is simply not the appropriate vehicle for resolving a decisive factual question against the pleader. See, e.g., Gordon, 625 F.2d at 366-67; Richards, 662 F.2d at 65 ; see also Maj.Op. at p. 1095 n. 1. A majority of this court has concluded that Doe has alleged a constitutionally protected liberty interest in reputation and may be able to demonstrate a set of facts that would entitle her to an opportunity to clear her name. A Codd hearing at this late date, however, cannot completely undo the harms that Doe alleges she has suffered as a result of the DOJ’s actions. Moreover, Doe alleges in this court that she is prepared to demonstrate that the Department has continued to disseminate the allegedly false charges against her up to the time of this appeal. The federal rules are designed to ensure that cases are tried on the merits, not on the pleadings. In my view, Doe should be allowed the opportunity to point to timely publication in order to seek Bivens damages against Department officials. See Fed.R.Civ.P. 8(f) (“All pleadings shall be so construed as to do substantial justice.”); see also Hickman v. Taylor, 329 U.S. 495, 500-01 , 67 S.Ct. 385, 388-89 , 91 L.Ed. 451 (1947); Shapiro v. Secretary of State, 499 F.2d 527, 533-34 (D.C.Cir.1974). 2 . See Maj.Op. at pp. 1115-16 n. 24. If,- however, the Department’s allegedly defamatory affidavits and memorandum of termination have been placed in Doe’s personnel file and the contents of that file disclosed to prospective employers or other government agencies, the plaintiff may have a somewhat stronger "continuing publication” argument. See, e.g., Old Dominion Dairy Products, Inc. v. Secretary of Defense, 631 F.2d 953 , 966 n. 24 (D.C.Cir.1980); Larry v. Lawler, 605 F.2d 954, 958 (7th Cir.1978). . The Department argues that, even if Doe’s Bivens claims are not barred by the statute of limitations, they are precluded by the Supreme Court’s recent decision in Bush v. Lucas, 462 U.S. 367 , 103 S.Ct. 2404, 2408 , 76 L.Ed.2d 648 (1983). Bush declined to allow a career employee of the competitive civil service to bring a *1119 damages action under the first amendment. Id. at 2406. In particular, the Court held that Because such claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, we conclude that it would be inappropriate for us to supplement that regulatory scheme with a new judicial remedy. Id. The majority’s disposition of the statute of limitations questions renders inappropriate any detailed discussion of Bush’s applicability to Doe who, as a member of the excepted civil service, does not enjoy any meaningful remedies for constitutional violations under the relevant civil service laws that were decisive in Bush . Suffice it to say that I would decline to extend the Bush holding to bar a Bivens action by a federal employee who has no statutory forum, including judicial review, for her constitutional claims. Cf. Williams v. IRS, 745 F.2d 702, 706 (D.C.Cir.1984) (per curiam) (declining to impose Bush as a bar to an action by a federal employee in part because the employee did not enjoy substantive or procedural protections under the relevant civil service law). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473109. Public record. Not legal advice.