Richard W. Goldstein v. HARRY I. MOATZ, Director, Office of Enrollment

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 RICHARD W. GOLDSTEIN,
Plaintiff-Appellant,
v.
HARRY I. MOATZ, Director, Office of
Enrollment and Discipline;
LAWRENCE ANDERSON; JAMES E.
ROGAN, Under Secretary of No. 03-1257 
Commerce for Intellectual Property
and Director of the USPTO; JAMES
A. TOUPIN; DAVID M. PUROL,
USPTO, Patent Examiner; JOHN
DOES 1-5; UNITED STATES OF
AMERICA,
Defendants-Appellees. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-02-1734-A)
Argued: October 29, 2003
Decided: April 14, 2004
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge King wrote the opinion, in which Judge Williams joined. Judge
Motz wrote a dissenting opinion.

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COUNSEL
ARGUED: Adam Augustine Carter, Washington, D.C., for Appel-
lant. Richard Parker, Assistant United States Attorney, Alexandria,
Virginia, for Appellees. ON BRIEF: Paul J. McNulty, United States
Attorney, Alexandria, Virginia, for Appellees.
OPINION
KING, Circuit Judge:
Richard W. Goldstein, a patent lawyer, appeals an award of abso-
lute immunity accorded certain officials of the Patent and Trademark
Office for their conduct in an attorney disciplinary investigation.
Goldstein also appeals the denial of his challenge to a certification on
the scope of defendant David Purol’s employment and the denial of
discovery on the certification. Because defendants Harry Moatz, Law-
rence Anderson, and James Toupin are not absolutely immune from
Goldstein’s Bivens claim for damages,1 and because the district court
did not separately consider whether the defendants are immune from
suit for declaratory relief, we vacate and remand on those aspects of
this appeal. We affirm the court’s dismissal of defendant James
Rogan and its ruling on the scope of employment certification.
I.
A.
Plaintiff Richard W. Goldstein is an attorney admitted to practice
before the United States Patent and Trademark Office (the "PTO").
He alleges that certain PTO officials — specifically James E. Rogan,
the Under Secretary of Commerce for Intellectual Property and Direc-
tor of the PTO; Harry Moatz, the Director of the PTO’s Office of
Enrollment and Discipline ("OED"); OED staff attorney Lawrence
1See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcot-
ics, 403 U.S. 388 (1971) (recognizing cause of action against federal
officials for violation of constitutional rights).
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Anderson, and PTO General Counsel James Toupin — contravened
his constitutional rights in the course of a disciplinary investigation
conducted by the OED.2
Pursuant to PTO regulations, the OED Director is responsible for
investigating allegations of misconduct by members of the patent bar.
37 C.F.R. §§ 10.2(b)(2), 10.131(a). When the Director conducts a
disciplinary investigation, practitioners are required to report and
reveal to him any unprivileged knowledge they possess of PTO disci-
plinary rule violations. Id. §§ 10.24(a), 10.131(b). If, after investiga-
tion, the Director believes that a practitioner has violated a
disciplinary rule, he is obliged to convene the PTO’s Committee on
Discipline (the "Committee"). Id. § 10.132(a). The Committee is a
body of at least three PTO staff attorneys appointed by the Commis-
sioner for Patents. Id. § 10.4(a). The Committee decides whether there
is probable cause to believe that a disciplinary rule has been violated.
Id. § 10.4(b). If the Committee makes a finding of probable cause, the
Director initiates formal disciplinary proceedings by filing a com-
plaint against the attorney and referring the matter to an administra-
tive law judge (an "ALJ"). Id. § 10.132(b), (c). Such disciplinary
proceedings may result in the issuance of a reprimand, or they can
lead to the suspension or expulsion of a lawyer from the patent bar.
Id. § 10.132(b).
Between December 6, 2000, and June 28, 2002, the OED received
complaints regarding Goldstein from at least four of his clients. The
complaints, apparently forwarded to the PTO by South Carolina’s
Department of Consumer Affairs, pertained to Goldstein’s representa-
tion of patent-seekers in his work with an invention promotion com-
pany. OED Director Moatz assigned staff attorney Anderson to
investigate the complaints against Goldstein.
In the course of his investigation, Anderson sought information
from Goldstein through the use of the PTO’s Requirements for Infor-
mation ("RFIs"). The first RFI served on Goldstein, dated December
5, 2000, required information pertaining to Goldstein’s representation
2For purposes of this appeal, we accept as true the allegations of Gold-
stein’s Complaint. See Spriggs v. Diamond Auto Glass, 165 F.3d 1015,
1016 n.1 (4th Cir. 1999).
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of "client C00-95" and contained sixty-four discovery requests,
including multiple subparts. The RFI required Goldstein to submit
written responses to the OED, together with supporting documenta-
tion, within thirty days. Anderson’s RFI transmittal letter recited
Goldstein’s duty to report and reveal knowledge or evidence pursuant
to 37 C.F.R. § 10.131(b), and it warned Goldstein that "[f]ailure to
respond and answer the questions can be construed as failure to coop-
erate, and can be submitted to the Committee on Discipline for appro-
priate action." Anderson also referred Goldstein to 37 C.F.R.
§ 10.23(c)(16), which provides that willfully refusing to reveal or
report knowledge of a disciplinary rule violation itself constitutes a
disciplinary rule violation. Goldstein submitted his responses to the
first RFI on December 19, 2000.
On March 15, 2001, Anderson served Goldstein with a second RFI,
this time seeking information concerning Goldstein’s representation
of "client C00-117." This RFI contained approximately forty-eight
inquiries, to which responses and supporting materials were due
within thirty days.
On March 28, 2001, Anderson forwarded Goldstein another RFI
concerning "client C00-95," containing forty-three requests with simi-
lar requirements. Anderson’s transmittal letter indicated that the ques-
tions were based on Goldstein’s previous responses of December 19,
2000, and also on newly discovered information. When Goldstein
requested that Anderson identify the newly discovered information,
however, Anderson indicated that he only meant Goldstein’s answers
to the first RFI. Out of concern for his client’s confidences, Goldstein
also sought from Anderson the identity of the person who had com-
plained to the South Carolina authorities. Anderson replied that Gold-
stein was not then permitted to engage in discovery. Goldstein
responded to this RFI on May 15, 2001.
On June 5, 2001, Goldstein wrote to Anderson, advising him that,
as there was no indication that "client C00-117" intended to waive the
attorney-client privilege, he could not ethically provide responses to
Anderson’s inquiries pertaining to that client. Anderson responded by
reiterating the requests for information made in the second RFI, to
which Goldstein reasserted the attorney-client privilege. On July 11,
2001, Goldstein responded to the requests to the extent that he could
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do so without violating the privilege. The PTO subsequently obtained
a waiver of attorney-client privilege from "client C00-117" and
instructed Goldstein to respond to the second RFI’s remaining
requests. Goldstein did so on August 16, 2001.
On November 20, 2001, Anderson served Goldstein yet another
RFI concerning "client C00-95." The next day, Anderson mailed
Goldstein an RFI regarding a third client, "client C2002-12." Five
days later, Anderson forwarded Goldstein an RFI regarding a fourth
client, "client C2002-13." Together, these final three RFIs required
responses to approximately 152 requests, to be submitted to the OED,
along with supporting documentation, within thirty-six days.
On December 20, 2001, Goldstein filed with the PTO a "Petition
to Invoke the Supervisory Authority of the Commissioner," challeng-
ing the PTO’s use of RFIs in its attorney disciplinary investigations
and requesting that "the Commissioner" (presumably the Commis-
sioner for Patents) supervise the OED Director with respect to their
issuance. On April 12, 2002, PTO General Counsel Toupin responded
to Goldstein’s Petition, denying relief and asserting that the RFIs
were neither excessive nor an abuse of discretion. Toupin’s letter also
advised Goldstein that the April 12, 2002, letter was not a final deci-
sion from which Goldstein could appeal or otherwise seek review,
and it instructed Goldstein to respond to the outstanding requests
within thirty days. On June 28, 2002, Goldstein filed his responses to
the three outstanding RFIs, making general objections to the RFI
investigative process and asserting other objections to specific ques-
tions. At the time this appeal was filed, the OED had not initiated any
disciplinary charges against Goldstein, nor had it informed him that
its investigation had been closed.
In the midst of this process, in August 2001, "client C2002-13"
contacted patent examiner Purol, inquiring why Purol had rejected his
patent application.3 Purol informed the client that he would reject the
client’s application no matter how many times it was filed, apparently
3The Goldstein client who spoke with Purol had previously provided
Goldstein with a power of attorney. The PTO’s previous communications
concerning the client’s patent application had been between Goldstein
and the PTO.
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because similar products had already been patented. Purol then
advised the client that "something didn’t sound right" with the com-
pany that had retained Goldstein to file the client’s patent application,
in that six prior patents should have been discovered in a patent
search.
B.
On November 26, 2002, Goldstein filed his Complaint in this mat-
ter, initiating suit against Rogan, Moatz, Anderson, Toupin, and Purol
in their individual capacities. In Counts I and II, Goldstein brought
Bivens actions for damages and declaratory relief, respectively, for
the violation of his constitutional rights to free speech and due pro-
cess through issuance of the RFIs.4 In Count III, Goldstein sought
damages under state tort law for Purol’s alleged interference with his
business relationship with "client C2002-13."5
On January 31, 2003, the defendants filed a motion, pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure, seeking to dis-
miss the Complaint for failure to state a claim upon which relief can
be granted. They contended that (1) Rogan was not personally
involved in any violation of Goldstein’s constitutional rights; (2)
Moatz, Toupin, and Anderson are absolutely immune from Gold-
stein’s claims or, in the alternative, are protected by qualified immu-
nity; (3) Count II fails to state a declaratory judgment claim against
the defendants in their individual capacities; and (4) the Federal Tort
Claims Act ("FTCA") provides Goldstein’s exclusive remedy for
Purol’s allegedly tortious act.
4In his Complaint, Goldstein purports to assert separate claims (i.e.,
Count I and Count II) for damages and declaratory relief. Because
Counts I and II allege virtually identical facts and each seeks relief under
Bivens, we view Counts I and II as seeking separate remedies for the
same wrong rather than as asserting separate causes of action.
5Construing Goldstein’s Complaint in his favor, see Gladstone, Real-
tors v. Village of Bellwood, 441 U.S. 91, 112 (1979), he has sued defen-
dants Rogan, Moatz, Anderson, and Toupin in Counts I and II, and he
has sued only defendant Purol in Count III.
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In support of the motion to dismiss Count III, the United States
Attorney certified, pursuant to 28 U.S.C. § 2679(d)(1), that Purol was
acting within the scope of his employment at all relevant times, and
thereby the United States was substituted as the party defendant in
that Count.6 Goldstein then challenged the certification and sought
discovery regarding the scope of Purol’s employment.
At the conclusion of a motions hearing conducted on February 21,
2003, the district court ruled from the bench in favor of the defen-
dants. In its ruling, the court dismissed all three counts of the Com-
plaint, granting, inter alia, the 12(b)(6) motion as to defendants
Moatz, Anderson, and Toupin on the basis of absolute immunity, and
denying Goldstein’s challenge to the scope of employment certifica-
tion and his request for discovery.7 Goldstein has appealed from these
rulings, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.8
6Pursuant to the Federal Tort Claims Act:
Upon certification by the Attorney General that the defendant
employee was acting within the scope of his office or employ-
ment at the time of the incident out of which the claim arose, any
civil action or proceeding commenced upon such claim in a
United States district court shall be deemed an action against the
United States under the provisions of this title and all references
thereto, and the United States shall be substituted as the party
defendant.
28 U.S.C. § 2679(d)(1). The various United States Attorneys have been
delegated the authority to make such certifications. 28 C.F.R. § 15.3(a).
7The court dismissed the claims made against defendant Rogan in
Counts I and II because the allegations against him were devoid of per-
sonal involvement and failed to state a claim. The court went on to note
that, even assuming otherwise, Rogan would be entitled to absolute
immunity. On appeal, Goldstein does not challenge the court’s ruling that
he failed to allege sufficient personal involvement on Rogan’s part. We
therefore leave undisturbed the dismissal of Goldstein’s claims against
Rogan.
8Although the parties do not contend that we lack jurisdiction, we note
that jurisdiction over this appeal does not lie in the Federal Circuit. Pur-
suant to 28 U.S.C. § 1295(a)(1), "The United States Court of Appeals for
the Federal Circuit shall have exclusive jurisdiction — (1) of an appeal
from a final decision of a district court . . . if the jurisdiction of that court
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II.
We review de novo a district court’s dismissal of a complaint for
failure to state a claim. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130,
1134 (4th Cir. 1993). Accordingly, we review de novo the district
court’s determination that the defendants are protected by absolute
immunity. We also review de novo a district court’s scope of employ-
was based, in whole or in part, on section 1338 of this title . . . ." Section
1338(a) of Title 28 provides that "[t]he district courts shall have original
jurisdiction of any civil action arising under any Act of Congress relating
to patents . . . ." In assessing § 1338, the Supreme Court has explained
that:
§ 1338(a) jurisdiction . . . extend[s] only to those cases in which
a well-pleaded complaint establishes either that federal patent
law creates the cause of action or that the plaintiff’s right to
relief necessarily depends on resolution of a substantial question
of federal patent law, in that patent law is a necessary element
of one of the well-pleaded claims.
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808-09
(1988).
We agree with the parties that Goldstein’s claims do not arise under
federal patent law or depend substantially on the interpretation thereof.
Goldstein’s Bivens and tortious interference causes of action are created
by the federal courts and by state common law, respectively, not by fed-
eral patent law. Furthermore, no issue of patent law is a necessary ele-
ment of Goldstein’s claims. His Bivens claim for damages and
declaratory relief requires proof of two elements: (1) a violation of his
constitutional rights, (2) by agents acting under color of federal law. See
Bivens, 403 U.S. at 389. And the elements of Goldstein’s tortious inter-
ference claim are: (1) existence of a business relationship, (2) defen-
dant’s knowledge of the relationship, (3) intentional interference causing
a termination of the relationship, and (4) resulting damage. See Chaves
v. Johnson, 230 Va. 112, 120 (1985). None of these elements requires
resolution of a substantial question of federal patent law.
In sum, although the circumstances giving rise to Goldstein’s com-
plaint concern his ability to practice law before the PTO, his claims are
neither created by federal patent law nor require us to resolve a substan-
tial question of patent law. We therefore possess jurisdiction pursuant to
28 U.S.C. § 1291.
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ment determination, Gutierrez de Martinez v. DEA, 111 F.3d 1148,
1152 n.3 (4th Cir. 1997), and we review for abuse of discretion the
denial of a request for discovery on a scope of employment issue. Id.
at 1155.
III.
A.
We consider first whether the Defendants9 are absolutely immune
from Goldstein’s Bivens action for damages.10 As the Supreme Court
has explained, the defense of absolute immunity bars suit against "of-
ficials whose special functions or constitutional status requires com-
plete protection from suit . . . ." Harlow v. Fitzgerald, 457 U.S. 800,
807 (1982) (citing Butz v. Economou, 438 U.S. 478, 508-512 (1978)
(according absolute immunity to executive officers engaged in adjudi-
cative functions); Stump v. Sparkman, 435 U.S. 349 (1978) (accord-
ing absolute immunity to judges for judicial functions); Eastland v.
U.S. Servicemen’s Fund, 421 U.S. 491 (1975) (according absolute
immunity to legislators for legislative functions)). As the Court has
recognized, the purpose of absolute immunity "is not to protect an err-
ing official, but to insulate the decisionmaking process from the
harassment of prospective litigation." Westfall v. Erwin, 484 U.S. 292,
295 (1988). In this regard, courts are obliged to apply absolute immu-
nity sparingly, because "[t]he presumption is that qualified rather than
absolute immunity is sufficient to protect government officials in the
exercise of their duties." Burns v. Reed, 500 U.S. 478, 486-87 (1991).
9Our references to the "Defendants" in Subparts III.A and III.B of this
opinion include only defendants Moatz, Anderson, and Toupin. Our use
of the term "Defendants" excludes defendant Purol, who is discussed
separately in Subpart III.C, and defendant Rogan, the claims against
whom we have disposed of separately. See supra note 7.
10We address Goldstein’s request for declaratory relief in Subpart
III.B, as that remedy must be analyzed independently of Goldstein’s
request for damages. The district court failed to separately address Gold-
stein’s request for declaratory judgment; rather, it discussed the quasi-
judicial nature of the actions taken by Toupin, Moatz, and Rogan, and it
then dismissed all three counts. Because, as explained infra, different
doctrines apply, we address the request for damages and the request for
declaratory relief separately.
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Qualified immunity will bar a civil action against a government
official unless the plaintiff has alleged the deprivation of a constitu-
tional right that was clearly established at the time of the alleged vio-
lation. Conn v. Gabbert, 526 U.S. 286, 290 (1999). Absolute
immunity, as its name suggests, differs from qualified immunity in
that absolute immunity acts as a complete bar to damages claims of
any sort, constitutional or otherwise. See Austin v. Borel, 830 F.2d
1356, 1358 (5th Cir. 1987).11
The Supreme Court has made it clear that government officials
seeking the protection of absolute rather than qualified immunity
"bear the burden of showing that public policy requires an exemption
of that scope." Butz, 438 U.S. at 506. The Defendants seek to meet
this burden by asserting that our decision in Ostrzenski v. Seigel, 177
F.3d 245 (4th Cir. 1999), controls the disposition of this appeal. Gold-
stein responds that Ostrzenski is distinguishable and that its holding
should neither be expanded nor extended.
In order to recognize the grounds on which Ostrzenski may be dis-
tinguishable, we must first understand the parameters of absolute
immunity established in Supreme Court precedent. First, in Butz, the
11We note that, because we are reviewing an award of absolute rather
than qualified immunity, it is not necessary to determine whether Gold-
stein has alleged a constitutional violation. See Buckley v. Fitzsimmons,
509 U.S. 259, 261 (1993) (assuming that plaintiff alleged constitutional
violations under 42 U.S.C. § 1983 and proceeding with absolute immu-
nity analysis); see also Megenity v. Stenger, 27 F.3d 1120, 1123 (6th Cir.
1994) ("Analytically, the key difference between a qualified immunity
analysis and an absolute immunity analysis begins with the first step.
When an official is cloaked with absolute immunity, it is not necessary
to determine whether the plaintiff has a clearly established legal right
because, even if he does, no relief is forthcoming."); Kenyatta v. Moore,
744 F.2d 1179, 1184 (5th Cir. 1984) (noting that absolute immunity dif-
fers from qualified immunity in that "[a]bsolute immunity may be deter-
mined solely on the basis of the official status of the defendant and
whether he acted in the course of that duty. Qualified immunity cannot
be decided without a complete determination of the nature of both the
wrongful act [i.e., whether it constitutes a constitutional violation] and
the law applicable at the time it was committed, in addition to those fac-
tors.").
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Supreme Court addressed the types of immunity typically accorded
administrative agency officials. Butz, 438 U.S. at 478. There, the
plaintiff had alleged that certain officials of the Department of Agri-
culture, involved in investigating, prosecuting, and adjudicating
enforcement proceedings against him, had violated his due process
and free speech rights. Id. at 480. The Court accorded the Butz defen-
dants absolute immunity, observing that "agency officials performing
certain functions analogous to those of a prosecutor should be able to
claim absolute immunity with respect to such acts." Id. at 515. In
assessing the absolute immunity issue presented here, we must there-
fore decide whether the Defendants, who are neither judges, legisla-
tors, nor prosecutors, performed functions analogous to those for
which prosecutors would be absolutely immune.
1.
a.
In analyzing the functions for which prosecutors enjoy absolute
immunity, the controlling line of authority begins with the Supreme
Court’s 1976 decision in Imbler v. Pachtman, 424 U.S. 409 (1976).
In Imbler, the Court explained that, when prosecutors perform advo-
cative functions that are "intimately associated with the judicial phase
of the criminal process," they are absolutely immune from civil suit.
Id. at 430. Imbler had initiated suit against a prosecutor, alleging that
the prosecutor had conspired with other government officials to allow
a witness to provide false testimony and to have a sketch of the sus-
pect altered to resemble Imbler more closely. Id. at 415-16. In addi-
tion, Imbler claimed that the prosecutor was personally liable because
he was responsible for a fingerprint expert’s suppression of evidence.
Id. at 416.
In addressing the immunity issue, the Court first explained that, at
common law, prosecutors had been protected by absolute immunity.
The Court then determined that the policy concerns recognized under
common law supported an award of absolute immunity in that pro-
ceeding. Id. at 424. Those public policy considerations included the
need for prosecutors to focus on their duties rather than on defending
civil suits, and the corollary need for prosecutors to exercise indepen-
dent discretion without fear of retaliation. Id. at 423. The Court
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explained that qualified immunity provides insufficient protection for
prosecutors because they must often act quickly and with little infor-
mation. Id. at 424-35. Although recognizing that absolute immunity
"does leave the genuinely wronged defendant without civil redress
against a prosecutor whose malicious or dishonest action deprives
him of liberty," Justice Powell observed that "the alternative of quali-
fying a prosecutor’s immunity would disserve the broader public
interest." Id. at 427.
The Imbler Court declined to specify the specific prosecutorial
functions that give rise to the protection of absolute immunity, but it
approved of the Ninth Circuit’s "functional" analysis — "focus[ing]
upon the functional nature of the activities rather than respondent’s
status [as a government official]." Id. at 430 (citing Imbler v. Pacht-
man, 500 F.2d 1301, 1302 (9th Cir. 1974), aff’d, 424 U.S. 409
(1976)). The Ninth Circuit had recognized that "the reasons for abso-
lute immunity apply with full force" to those prosecutorial functions
that are "intimately associated with the judicial phase of the criminal
process." Id. (citing Imbler, 500 F.2d at 1302). Because the factual
scenario presented in Imbler required the Supreme Court to consider
only the type of immunity to be afforded a prosecutor involved in ini-
tiating and prosecuting a criminal case, the Court had "no occasion to
consider whether like or similar reasons require immunity for those
aspects of the prosecutor’s responsibility that cast him in the role of
an administrator or investigative officer rather than that of advocate."
Id. at 430-31.
In 1991, the Supreme Court had occasion, in its Burns decision, to
address the issue it had reserved in Imbler. See Burns, 500 U.S. 478.
Prior to Burns, the inferior federal courts generally had interpreted
Imbler to stand for the proposition that prosecutors are not entitled to
absolute immunity for their administrative or investigative activities.
See id. at 483 n.2. It remained to be determined, however, at what
point in the process a prosecutor ceases to function as an administra-
tor or an investigator and begins to act as an advocate. In Burns, the
Court confirmed the distinction between investigative and advocative
activities in deciding whether absolute immunity should be accorded
a prosecutor who provides legal advice to police officers concerning
probable-cause issues or to a prosecutor’s participation in a probable-
cause hearing. Id. at 487-96. The Court held that, under Imbler, the
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prosecutor enjoyed absolute immunity for his actions in the probable-
cause hearing. Id. at 492. Because "appearing at a probable-cause
hearing is ‘intimately associated with the judicial phase of the crimi-
nal process,’" the Court found that the prosecutor was acting as an
advocate. Id. at 492 (quoting Imbler, 424 U.S. at 430) (internal cita-
tion omitted). The Court also ruled, however, that under the common
law of immunity and the guidelines of Imbler, a prosecutor is not enti-
tled to absolute immunity for providing legal advice to police officers.
Id. at 492-96. The common law afforded no such immunity to prose-
cutors, the Court observed, and this function is not sufficiently tied to
the judicial process to warrant such protection. Id.
Although the Burns decision provided the lower courts with guid-
ance on how the functional analysis should be applied, many prosecu-
torial functions were yet to be categorized. In 1993, the Court’s
decision in Buckley v. Fitzsimmons established an important principle.
509 U.S. 259. Buckley, the plaintiff in that proceeding, had been
charged with murder. Id. at 261. He initiated a § 1983 claim alleging,
inter alia, that prosecutor Fitzsimmons had fabricated evidence during
the murder investigation. Id. at 261-62. Buckley claimed that, when
three separate studies failed to connect him to a boot print at the crime
scene, Fitzsimmons sought out an expert "who was allegedly well
known for her willingness to fabricate unreliable expert testimony."
Id. at 262. The Court applied the Imbler decision’s functional analysis
to those circumstances and ruled that Fitzsimmons was not entitled to
absolute immunity. His acts were investigative rather than advocative,
the Court decided, and a prosecutor should not be accorded absolute
immunity for actions for which a police officer would enjoy only
qualified immunity. Id. at 273-74. Rejecting Fitzsimmons’s assertion
that he was acting as an advocate while seeking a shoeprint expert
witness, the Court, through Justice Stevens, observed that, "[a] prose-
cutor neither is, nor should consider himself to be, an advocate before
he has probable cause to have anyone arrested." Id. at 274 (emphasis
added). A prosecutor, then, is not protected by absolute immunity for
his activities prior to a probable cause determination, because he is
not yet — and should not yet be — acting as an advocate. Id.
This proposition — that officials do not enjoy absolute immunity
for acts committed prior to a probable cause determination (i.e., dur-
ing investigation) — flows logically from the Supreme Court’s decla-
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rations that the purpose of absolute immunity is to protect the exercise
of discretion by key government officials. See Westfall, 484 U.S. at
295 (explaining that the purpose of absolute immunity is "to insulate
the decisionmaking process from the harassment of prospective litiga-
tion"); Imbler, 424 U.S. at 423 (noting that absolute immunity serves
the public policy need for prosecutors to exercise unfettered discre-
tion). The protection afforded by absolute immunity extends to activi-
ties "intimately associated with the judicial phase of the criminal
process," Imbler, 424 U.S. at 430, because those activities, like judi-
cial decisionmaking, involve the substantial exercise of discretion.
Once a prosecutor possesses probable cause, he must decide whether
to prosecute, which charges to initiate, what trial strategy to pursue,
and a multitude of other important issues that require him to exercise
discretion. In a pre-probable-cause investigation, on the other hand,
a prosecutor exercises no more discretion than a police officer and
thus should enjoy no more protection than qualified immunity. See
Buckley, 509 U.S. at 273 ("When a prosecutor performs the investiga-
tive functions normally performed by a detective or police officer, it
is ‘neither appropriate nor justifiable that, for the same act, immunity
should protect the one and not the other.’") (quoting Hampton v. City
of Chicago, 484 F.2d 602, 608 (7th Cir. 1973)). We therefore must
determine whether, in this setting, the Defendants are akin to prosecu-
tors possessing probable cause and exercising their discretion, or
whether they are akin to investigators involved in pre-probable-cause
activities.
b.
In the circumstances presented, Moatz, Anderson, and Toupin
acted merely as investigators and are therefore not entitled to absolute
immunity. Most significantly, there has been no probable cause
assessment or determination, as required to initiate formal disciplin-
ary charges against Goldstein. In fact, the Defendants do not make a
probable cause determination — that task, under the applicable regu-
lations, belongs to the Committee. 37 C.F.R. § 10.4(b) (providing that
"[t]he Committee on Discipline shall meet at the request of the Direc-
tor and after reviewing evidence presented by the Director shall, by
majority vote, determine whether there is probable cause to bring
charges under § 10.132 against a practitioner"). Indeed, the Director
has not convened the Committee; therefore, the OED has not been
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afforded an opportunity to assess whether there is probable cause to
believe that Goldstein has committed a disciplinary rule violation.
Moatz, Anderson, and Toupin thus have not acted as advocates.
Not only is a formal probable cause determination lacking, but
Moatz himself is not "of the opinion that [Goldstein] has violated a
Disciplinary Rule" because, if he so believes, he is required by regula-
tion to "call a meeting of the Committee on Discipline." Id.
§ 10.132(a). Because Moatz does not believe that Goldstein has vio-
lated a disciplinary rule, he could not, in pursuing his investigation
through the RFIs, have been gathering information as an advocate.
Accordingly, he was functioning as an investigator, seeking evidence
regarding whether a disciplinary rule may have been violated.
Furthermore, the PTO’s regulations require only that the Director
convene the Committee — they do not contemplate him making a
recommendation to the Committee on whether it should find probable
cause against a lawyer. See id. (providing that, if he believes a disci-
plinary rule has been violated, "the Director shall . . . call a meeting
of the Committee on Discipline"); id. § 10.132(b) (providing that, if
the Committee finds probable cause, "the Director shall institute a
disciplinary proceeding"). Under the regulations, Director Moatz is
not called upon to act as an advocate until after the Committee has
made a finding of probable cause. He therefore did not exercise dis-
cretion such as would entitle to him to absolute immunity.
It is all the more apparent that staff attorney Anderson functioned
simply as an investigator rather than as an advocate, because Ander-
son’s belief (unlike Director Moatz’s) about whether Goldstein vio-
lated a disciplinary rule has no regulatory significance. Indeed, PTO
staff attorneys such as Anderson do not act as advocates under this
regulatory scheme and do not decide whether charges should be
brought; they simply gather information. Anderson’s actions, there-
fore, were purely investigatory.
Toupin also performed no role as an advocate in the course of the
disciplinary proceedings; his actions in responding to Goldstein’s
Petition of December 20, 2001, and in upholding the RFI process in
his letter of April 12, 2002, are not analogous to the advocative activi-
ties performed by prosecutors. See Butz, 438 U.S. at 515. In addition,
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although Toupin did not himself seek information from Goldstein, he
asserted his authority over the investigative process by ratifying the
OED’s actions and requiring that Goldstein respond to the RFIs
within a certain time frame. In these circumstances, Toupin acted in
the role of supervisor over Moatz and the OED’s investigation; he did
not perform discretionary tasks so entwined with judicial proceedings
that they require the protection of absolute immunity.
c.
Despite the Defendants’ assertions to the contrary, our ruling today
does not run counter to our decision in Ostrzenski.12 There, a doctor
who had been investigated by the Maryland Board of Physician Qual-
ity Assurance sued a peer reviewer who had investigated him at the
Board’s request. Ostrzenski, 177 F.3d at 247. We held the peer
reviewer to be protected by absolute immunity. The peer review func-
tions in Ostrzenski are readily distinguishable from those performed
by the Defendants, however, in that the peer reviewer was obliged by
regulation not only to investigate but also to make recommendations
to the Board concerning the actions it should take. See Md. Code
Ann., Health Occ. § 14-401(e)(1)(i),(e)(2) (1994 & Supp. 1998). As
Judge Wilkins carefully explained, the peer reviewer could enjoy
absolute immunity only when performing a protected prosecutorial
function, which in that instance was "reviewing the evidence to deter-
mine whether to recommend prosecution." Ostrzenski, 177 F.3d at
250. The function of recommending prosecution is protected by abso-
lute immunity because it requires the exercise of discretion. And the
12The Defendants also rely on professional discipline decisions of
other circuits for the propositions that determining an attorney’s fitness
to practice law and deciding whether to prosecute are inherently judicial
functions. Although these propositions may have validity in the proper
setting, they are of no help to the Defendants, who have not been sued
for performing either of these functions, but rather have been sued for
acts committed in their investigation of Goldstein. Furthermore, as the
Second Circuit has explained, heavy reliance on such authorities is mis-
placed because disciplinary procedures vary, and a careful analysis of the
pertinent facts of each case is required. DiBlasio v. Novello, 344 F.3d
292, 299-300 n.2 (2d Cir. 2003) (holding New York health fraud investi-
gator not entitled to absolute immunity).
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doctrine of absolute immunity was designed to protect, among other
things, the free exercise of discretion. See Imbler, 424 U.S. at 423.
The Defendants here, unlike the peer reviewer in Ostrzenski, have
neither the statutory nor regulatory authority to recommend disciplin-
ary action; they merely investigate.13 Although the peer reviewer
enjoyed absolute immunity for the intertwined activities of making
his recommendation to the Board and conducting the investigation to
support his recommendation, we decline to expand or extend Ostrzen-
ski to cover circumstances such as these, involving purely investiga-
tive activities without a concomitant recommendation.14
2.
The importance of denying absolute immunity to the Defendants in
this proceeding is underscored by the utter lack of procedural safe-
13The Defendants also maintain that their investigative activities
should afford them absolute immunity because their investigation gath-
ered evidence that would inform the Committee’s decision on whether to
initiate disciplinary action. This contention must also be rejected. As the
Supreme Court has explained, "[a]lmost any action by a prosecutor,
including his or her direct participation in purely investigative activity,
could be said to be in some way related to the ultimate decision whether
to prosecute, but we have never indicated that absolute immunity is that
expansive." Burns, 500 U.S. at 495.
14Our Ostrzenski decision is also distinguishable for another apparent
reason. Maryland law specifically provided that officials conducting phy-
sician reviews enjoyed absolute immunity for purely investigative activi-
ties:
A person who acts without malice and is a member of the [State
Board of Physician Quality Assurance] or a legally authorized
agent of the Board, is not civilly liable for investigating, prose-
cuting, participating in a hearing under § 14-405 of the Health
Occupations Article, or otherwise acting on an allegation of a
ground for Board action made to the Board or the Faculty.
Md. Code Ann., Cts. & Jud. Proc. § 5-715(b) (1994 & Supp. 1998)
(emphasis added). The law we must apply here, however, does not abso-
lutely protect government actors performing purely investigative func-
tions. See Pachaly v. City of Lynchburg, 897 F.2d 723, 727 (4th Cir.
1990).
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guards protecting Goldstein’s rights and his clients’ secrets. The
Supreme Court has indicated that, in assessing whether absolute
immunity applies in a particular situation, we should consider whether
the system in question contains adequate procedural safeguards, such
that private litigation is unnecessary to protect constitutional rights.
See Butz, 438 U.S. at 512. On this point, Goldstein maintains — and
the Defendants agree — that Goldstein has no means of challenging
the RFIs because he has not been formally charged with a disciplinary
violation. Furthermore, Goldstein contends that he had no option but
to answer the RFIs because failure to comply would itself constitute
a violation of the disciplinary rules. We agree with Goldstein that the
denial of any avenue for challenge, and the threats of charges for non-
compliance, are indicative of a system lacking sufficient procedural
safeguards.
In assessing the available safeguards protecting the recipient of an
RFI, we are naturally inclined to turn to the regulation authorizing
issuance of RFIs, found at 37 C.F.R. § 1.105. That regulation, titled
"Requirements for information," provides that, "[i]n the course of
examining or treating a matter in a pending or abandoned application
. . . , in a patent, or in a reexamination proceeding, the examiner or
other Office employee may require the submission . . . of such infor-
mation as may be reasonably necessary to properly examine or treat
the matter . . . ." 37 C.F.R. § 1.105(a)(1). It plainly appears, therefore,
that RFIs are to be used only to gather information on patent applica-
tions, not information concerning possible violations of attorney
disciplinary rules.
At oral argument, however, the Defendants maintained for the first
time that, in serving the RFIs on Goldstein, they did not intend to
invoke the authority of § 1.105. There was "nothing talismanic" about
the use of the term "RFI," the Defendants now assert; the submissions
to Goldstein were labeled "RFIs" simply because that term is familiar
to lawyers in the patent community. The Defendants make this con-
tention to rebut Goldstein’s allegation that the RFIs were used to cir-
cumvent the standard discovery procedures in place to protect an
attorney under investigation.
The regulations governing disciplinary procedures provide for dis-
covery only after the initiation of disciplinary proceedings, and then
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only under the supervision of an ALJ.15 Clearly, the proper procedure
for obtaining discovery from an attorney facing discipline — after
formal charges have been initiated — contains adequate safeguards,
in that the discovery process, pursuant to the applicable regulations,
is then supervised by an ALJ and limited to a reasonable number of
necessary and relevant requests. Id. § 10.152(a). In this instance, how-
ever, because the RFIs were issued prior to the initiation of a disci-
plinary charge, Goldstein enjoyed no such protection. In response, the
Defendants now assert that they were not seeking "discovery" from
Goldstein in the technical sense of the term, but that they were merely
requesting information from him. We must reject these apparent after-
thoughts. The Defendants’ "mere requests" to Goldstein in the RFIs
carried with them explicit threats of disciplinary charges for failure to
comply. And the applicable regulations simply do not provide for
such discovery prior to the initiation of formal disciplinary charges or
absent ALJ supervision.
The Defendants concede that, as charges have not been filed, there
is no vehicle by which Goldstein can challenge the RFIs as unduly
burdensome or as protected by attorney-client privilege or attorney
work-product privilege. According to the Defendants, Goldstein could
assert such challenges before an ALJ if he were to refuse to comply
15The applicable regulation with respect to discovery in disciplinary
proceedings against patent attorneys provides:
Discovery shall not be authorized except as follows:
(a) After an answer is filed under § 10.136 and when a party
establishes in a clear and convincing manner that discovery is
necessary and relevant, the administrative law judge, under such
conditions as he or she deems appropriate, may order an oppos-
ing party to:
(1) Answer a reasonable number of written requests for admis-
sion or interrogatories;
(2) Produce for inspection and copying a reasonable number
of documents; and
(3) Produce for inspection a reasonable number of things other
than documents.
37 C.F.R. § 10.152(a).
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and if the OED were to initiate disciplinary charges against him based
on that refusal. The Defendants maintain that this speculative oppor-
tunity for review is sufficient to protect Goldstein’s rights. As
explained below, we are constrained to disagree.
An attorney should not be compelled to subject himself to disci-
plinary charges, and the adverse consequences that may flow there-
from, in order to protect his client’s confidences or to challenge
unduly burdensome discovery. Cf. Steffel v. Thompson, 415 U.S. 452,
459 (1974) (declaring that "it is not necessary that petitioner first
expose himself to actual arrest or prosecution to be entitled to chal-
lenge a statute that he claims deters the exercise of his constitutional
rights"); Hickory Fire Fighters Ass’n v. City of Hickory, 656 F.2d
917, 922 (4th Cir. 1981). Under the OED’s current system, nothing
but good conscience would prevent an OED investigator from requir-
ing responses to an unlimited and burdensome array of questions by
noon tomorrow and bringing charges against an attorney who fails to
comply. Unfortunately, the only available limitation in this system is
a private lawsuit; therefore, it is all the more important that the Defen-
dants not be accorded absolutely immunity. In light of the foregoing,
we remand this proceeding to the district court, with leave to assess
whether the Defendants are entitled to qualified immunity.16
B.
We next turn to Goldstein’s request for declaratory relief. In decid-
ing whether a government official is immune from suit for specific
relief, a court must first determine whether the suit is actually a suit
against the sovereign; that is, "whether, by obtaining relief against the
16The Defendants maintain that Goldstein conceded at the motions
hearing that they are protected by qualified immunity, and that his suit
cannot go forward. Our review of the hearing record reveals that Gold-
stein conceded only the undisputable point that the Defendants are offi-
cers to whom the doctrine of qualified immunity applies. He specifically
refused to concede that he had failed to allege a constitutional violation
such that the Defendants are actually immune. Although the district court
expressed the view that Goldstein may have failed to allege enough, the
qualified immunity issue was not fully litigated and decided by the court;
therefore, remand is appropriate.
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officer, relief will not, in effect, be obtained against the sovereign."
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688
(1949). The Larson Court explained that, in such a situation, "the
compulsion, which the court is asked to impose, may be compulsion
against the sovereign, although nominally directed against the indi-
vidual officer." Id. Of course, not all suits against government offi-
cials are suits against the sovereign. Id. at 689. "If the officer purports
to act as an individual and not as an official, a suit directed against
that action is not a suit against the sovereign." Id. As the Supreme
Court carefully explained:
where the officer’s powers are limited by statute, his actions
beyond those limitations are considered individual and not
sovereign actions. The officer is not doing the business
which the sovereign has empowered him to do or he is
doing it in a way which the sovereign has forbidden. His
actions are ultra vires his authority and therefore may be
made the object of specific relief.
Id. If a declaratory judgment proceeding actually constitutes a suit
against the sovereign, it is barred absent a waiver of sovereign immu-
nity. See id. at 688. Because the district court has not separately
addressed the application of immunity principles to Goldstein’s
request for declaratory relief, we must also remand Count II for a
determination of whether the Defendants are subject to that form of
relief.17
17On remand, the court may also consider whether Goldstein possesses
standing to assert his claim for declaratory relief. Goldstein must show
a realistic threat of future harm in order to bring suit. See City of Los
Angeles v. Lyons, 461 U.S. 95, 104 (1983) (concluding that plaintiff
lacked standing to seek declaratory judgment that officers’ use of choke-
holds was illegal where plaintiff failed to demonstrate sufficiently real
and immediate threat that police would again utilize chokehold against
him). Although Goldstein has complied with the RFIs, the investigation
into his activities remains open, and it is not clear whether he faces such
a threat of future harm. The district court is in the best position to resolve
this factual issue.
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C.
Finally, Goldstein challenges the United States Attorney’s certifi-
cation that Purol was acting within the scope of his employment when
he committed the acts alleged in Count III. Goldstein further asserts
that the court erred in denying him discovery on the scope of Purol’s
employment. We agree with the district court on this issue.
Contrary to Goldstein’s assertions, he has no right to discovery on
the certification issue. The assessment of whether discovery is appro-
priate on such an issue is within the sound discretion of the district
court, and any discovery that is authorized should be narrowly cir-
cumscribed. Gutierrez de Martinez, 111 F.3d at 1154-55.18 As we
have explained, "the district court may allow (in its discretion) limited
discovery or conduct an evidentiary hearing, but should not do so if
the certification, the pleadings, the affidavits, and any supporting doc-
umentary evidence do not reveal an issue of material fact." Id. at
1155. Goldstein has failed to identify any issue of material fact that
would prompt us to conclude that the court abused its discretion in
denying his discovery request, and we have no reason to believe that
Purol’s duties were in any way different from those of the ordinary
patent examiner.
Although Goldstein contests the district court’s rejection of his
challenge to the scope of employment certification, he does not assert
that he has shown that Purol acted outside the scope of his employ-
ment. See id. at 1153 (explaining that certification "serves as prima
facie evidence and shifts the burden to the plaintiff to prove, by a pre-
ponderance of the evidence, that the defendant federal employee was
acting outside the scope of his employment"). To the contrary, Gold-
stein maintains that he cannot meet his burden without the benefit of
discovery. Because the court did not abuse its discretion in denying
Goldstein discovery on this issue, we reject Goldstein’s challenge to
the scope of employment certification.
18Discovery should be as narrowly circumscribed as possible because
the immunity that flows from a scope of employment certification is, like
other immunities, an absolute bar to suit. Gutierrez, 111 F.3d at 1154.
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IV.
Pursuant to the foregoing, we affirm the district court on the scope
of employment issue and on its dismissal of defendant Rogan; we
vacate its ruling on absolute immunity as to defendants Moatz,
Anderson, and Toupin; and we remand for such further proceedings
as may be appropriate.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
With great respect, I dissent. Although purported constitutional
violations provide the sole ground for federal jurisdiction here, Gold-
stein’s complaint utterly fails to allege facts giving rise to any consti-
tutional 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
Even ascertaining the parameters of Goldstein’s asserted constitu-
tional claim presents a challenge. His 33-page, 113-paragraph, com-
plaint barely mentions the purported constitutional violation and his
factual allegations, although lengthy, do little to clarify his legal the-
ory. 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 issu-
ance of the RFIs." Ante at 6.
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
1Of course, as the majority notes, ante at 10 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. How-
ever, when, as here, the immunity question is close and the lack of a con-
stitutional violation obvious, resolving the immunity claim first seems to
me a waste of judicial resources, serving only to prolong a plainly merit-
less case.
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rejected a contention very similar to Goldstein’s. See Hannah v.
Larche, 363 U.S. 420, 424 (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 com-
mission’s procedures, including its issuance of the assertedly burden-
some 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. 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 "af-
fect an individual’s legal rights." Id. at 441. To impose in this context
the constitutional procedures appropriate when "governmental agen-
cies 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.
So it is here. As my colleagues have emphasized, ante at 14-16, the
OED, like the agency in Hannah, has engaged only in "purely investi-
gative and fact-finding" activities. Id. at 441. The OED has not dis-
barred 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, necessar-
ily, the OED could not have even arguably violated any of
Goldstein’s due process rights.2
2Goldstein’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 prac-
tice before the USPTO, to provide burdensome amounts of documents")
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Of course, as in Hannah, the facts found by the OED "may subse-
quently be used as the basis for . . . executive action." Id. Conceiv-
ably, the OED investigation, like the investigation in Hannah, may
subject Goldstein "to public opprobrium and scorn," loss of employ-
ment, or even "the possibility of criminal prosecutions." Id. at 443.
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 conse-
quences do not give rise to a constitutional claim against OED
because they "would not be the result of any affirmative determina-
tions 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 Dis-
cipline, 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 prece-
dent here, in addition, courts, including the Supreme Court, have con-
tinued 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, 467
U.S. 735, 742 (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
(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 the patent bar,
completely subverting his only possible First Amendment argument.
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(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, 467 U.S. at
749 & n.21.
Of even greater relevance here, courts have also applied these prin-
ciples in rejecting challenges to attorney discipline and public corrup-
tion investigations. See, e.g., Anonymous Nos. 6 & 7 v. Baker, 360
U.S. 287, 291-96 (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.
1999)(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 vio-
lated 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
"[a]ttorneys who will be accorded all the traditional judicial safe-
guards at a subsequent adjudicative proceeding . . . should some type
of adjudicative proceeding subsequently b[e] instituted, cannot suc-
cessfully 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, 358 A.2d 787, 789-92
(N.J. 1976).
Indeed, this court has been especially observant of the Hannah
principle. Thus, even when an administrative body could issue a
"finding of reasonable cause," we have held that "due process consid-
erations 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 subse-
quent 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.
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