Atherton v. District of Columbia Office of the Mayor

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 6, 2009 Decided June 2, 2009

No. 07-5195

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. 04cv00680)

Sarah Campbell, Student Counsel, argued the cause as
amicus curiae in support of appellant. With her on the briefs
were James E. Coleman, Jr., appointed by the court, Sean E.
Andrussier, Attorney, and James McDonald, Eugenie Montague,
Emily Sauter, and Eric Wiener, Student Counsel.
Peter J. Atherton, Pro Se, was on the briefs for appellant.
Judith A. Kidwell, Assistant U.S. Attorney, argued the cause
for Federal Appellees. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Richard S. Love, Senior Assistant Attorney General, Office
of the Attorney General for the District of Columbia, argued the
cause for appellees Suzanne Bailey-Jones, et al. With him on
 2

the brief were Peter J. Nickles, Attorney General, Todd S. Kim,
Solicitor General, and Donna M. Murasky, Deputy Solicitor
General.
Before: KAVANAUGH, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: On April 9, 2001,
appellant Peter James Atherton was sworn in as a District of
Columbia Superior Court grand juror. The grand jury was
scheduled to deliberate for 25 days. However, on April 11,
Atherton was permanently removed from grand jury service
after an Assistant United States Attorney (“AUSA”) who was
presenting evidence to the grand jurors reported to the
supervising AUSA, Daniel Zachem, that the jurors were
complaining about Atherton. After meeting with members of
the grand jury, Zachem contacted the Director of Special
Operations at the Superior Court, Roy Wynn, who directed him
to juror officer Suzanne Bailey-Jones. Zachem discussed the
matter with Bailey-Jones and then returned to the jury room,
confiscated Atherton’s notes, and directed him to report to the
Juror Office. Bailey-Jones then summarily and permanently
removed Atherton from the grand jury for being “disruptive.”
Atherton was never given a written explanation for his removal
from the grand jury, and he was not afforded a hearing before
any court official or judge.
In April 2004, Atherton filed a pro se complaint in the
District Court, contending that he was unlawfully removed from
grand jury service because of his deliberative judgments and his
Hispanic ethnicity. Atherton’s complaint named Bailey-Jones,
Wynn, Zachem, and several other city and federal officials, as
well as the District of Columbia and the Department of Justice
Office of the Attorney General. The complaint alleged
 3

constitutional violations of due process and equal protection
against the District of Columbia (“District”) defendants and the
federal defendants, citing 42 U.S.C. §§ 1983, 1985(3), 1986,
and Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), as well as a common law fraud
claim.
The District Court granted the District and federal
defendants’ motions to dismiss the complaint for failure to state
a claim. Atherton v. District of Columbia Office of the Mayor,
et al., No. 04-0680, 2007 WL 1041659 (D.D.C. Apr. 5, 2007).
The District Court first found that Atherton had failed to allege
that any defendants other than Bailey-Jones and Zachem were
directly involved in his dismissal, and that Atherton had not
stated a claim for municipal liability against the District of
Columbia. The court also dismissed the §§ 1985(3) and 1986
claims, and found that the fraud claim against Zachem was
barred by sovereign immunity. Finding that Atherton’s
allegations did not support any personal involvement by Wynn
in the decision to remove Atherton from the grand jury, the
District Court dismissed the equal protection and due process
claims against Wynn on the ground that Atherton had failed to
state claims upon which relief may be granted. Although the
District Court found that Atherton had stated claims against
Bailey-Jones and Zachem for due process and equal protection
violations, these claims were dismissed on the ground that
Bailey-Jones and Zachem were entitled to absolute immunity.
Atherton, with the able support of appointed amicus curiae, now
seeks reversal of the District Court’s judgment.
We reverse the District Court’s dismissal of the due process
claims against Bailey-Jones and Zachem. The District Court
erred in holding that Bailey-Jones and Zachem enjoy absolute
immunity for the removal of a grand juror. We will remand the
case to allow the District Court to assess whether Bailey-Jones
and Zachem are protected by qualified immunity. We affirm the
 4

District Court’s dismissal of Atherton’s equal protection and
§ 1985(3) claims, and his due process claim against Wynn,
because the complaint and supporting submissions fail to state
causes of action. We affirm the District Court’s dismissal of all
remaining claims.
I. BACKGROUND
A. Facts
On review of a motion to dismiss, we “treat the complaint’s
factual allegations as true . . . and must grant [Atherton] the
benefit of all inferences that can be derived from the facts
alleged.” Holy Land Found. for Relief & Dev. v. Ashcroft, 333
F.3d 156, 165 (D.C. Cir. 2003) (quotation marks and citation
omitted). The facts recited below are drawn from the complaint
and from additional materials submitted by Atherton, including
affidavits and exhibits incorporated therein. The parties do not
dispute that these documents may be considered for the purposes
of this appeal. See Amicus Br. at 3 n.1; D.C. Br. at 4 n.2;
Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007)
(noting courts may “consider supplemental material filed by a
pro se litigant in order to clarify the precise claims being
urged”); Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C.
Cir. 2006) (“In determining whether a complaint states a claim,
the court may consider the facts alleged in the complaint,
documents attached thereto or incorporated therein, and matters
of which it may take judicial notice.”).
1. Atherton’s Complaint
Atherton is a D.C. resident with degrees in electrical and
nuclear engineering. Compl. ¶¶ 1, 68. On April 9, 2001, he was
sworn in as a D.C. Superior Court grand juror for a term
scheduled to last 25 days. Id. ¶¶ 1, 16. However, on April 11,
2001, Atherton was permanently removed from the grand jury.
Id. ¶¶ 22-24.
 5

Atherton and the grand jurors with whom he served were
given jury instruction books identifying crimes and their
elements. Atherton believed that some of the cases for which
indictments were being sought included alleged crimes which
were not in the instruction book. Id. ¶ 18. Concerned that grand
jurors had voted to indict without knowing the elements of the
crimes, Atherton requested additional information from an
AUSA on the elements of crimes that were not contained in the
instruction book. Id. ¶¶ 18-19. Some jurors “seemed upset”
because they had voted to indict without knowledge of the
elements “and a new vote would be needed once the elements of
the charge were known.” Id. ¶ 20. Atherton “felt a hostile
attitude from a few members of the jury when there was
continuing rebuttal to every comment [he] made concerning
deliberation on elements of crimes.” Id. ¶ 66.
Atherton also felt that his fellow grand jurors reacted
negatively to his Hispanic ethnicity. At one point during their
deliberations, the grand jury was considering a homicide case
involving an altercation between black and Hispanic individuals.
After a Hispanic witness had finished testifying, Atherton
thanked the witness in Spanish. Atherton subsequently
perceived hostility from other grand jurors based on this
incident. Id. ¶¶ 64-67. He is half Mexican and “was the only
semi-fluent [S]panish speaking grand juror.” Id. ¶ 67.
During the course of grand jury deliberations on April 11,
2001, supervising AUSA Zachem entered the jury room where
the grand jurors were deliberating, confiscated Atherton’s notes,
and directed Atherton to immediately report to Wynn’s office.
Id. ¶ 23-24. Atherton went to Wynn’s office as he had been
instructed. Id. Atherton was then directed to Bailey-Jones, who
“permanently dismissed” him. Id. ¶ 24. Atherton “was never
permitted the opportunity to defend himself,” id. ¶ 28, and
Bailey-Jones did not provide reasons for his dismissal, other
than that he was allegedly “disruptive.” Id. ¶ 24. Atherton
 6

asked for a written explanation and Bailey-Jones assented to this
request. However, written notice was never given. Id. ¶¶ 28,
44. “Atherton left feeling very humiliated, embar[r]assed and
questioning his self worth, and did not return to grand jury
duty.” Id. ¶ 27.
2. Additional Materials Submitted by Atherton in Support
of His Complaint
The record before the District Court includes a copy of an
email that Zachem wrote to Bailey-Jones the day after
Atherton’s removal. See Email from Dan Zachem to Suzanne
Bailey-Jones (Apr. 12, 2001), reprinted in Joint Appendix
(“J.A.”) 61-62 (“Zachem email”). According to Zachem’s
account, an AUSA who was presenting evidence to the grand
jury informed Zachem that some of the grand jurors had
requested to see a supervisor about a “scientist” who was
frustrating his colleagues. Id., J.A. 61. The email states:
[T]he AUSA reported that “the scientist” was desirous of
additional written materials, including additional jury
instructions and code provisions, and these requests, in
conjunction with extensive questioning of both prosecutor
and witness alike, [were] clearly agitating other members of
the grand jury. Efforts were made to satisfy the requests of
“the scientist” by, for example, providing xerox copies of
several code provisions, but these efforts proved
unsuccessful in mollifying his concerns. At approximately
3:00 p.m., Deputy Chief Dan Zachem was informed by the
AUSA that the grand jury was demanding to see a
supervisor “immediately.”. . . Thereafter, behind closed
doors, on the record and in the presence of the scientist,
several grand jurors, no fewer than 5-6 in number,
expressed the view that a single grand jury member was
frustrating the grand jury’s ability to conduct business.
More specifically, these grand jurors, who were not
contradicted by any of their number, expressed in emotional
 7

terms their belief that the offending grand juror was “either
unwilling or unable to follow the rules” regarding, among
other things, the burden of proof, an orderly deliberative
process and voting.
Id.
Zachem’s email states further that he spoke briefly to
defendant Roy Wynn in the D.C. Superior Court Juror’s Office,
and that Wynn directed him to defendant Bailey-Jones. Id.
Zachem acknowledged that he did “not think it appropriate for
the US Attorney’s Office . . . to take a position with respect to
the removal of a particular juror from service.” Id., J.A 62. But
he added: “I am entirely confident in reporting, however, that
based upon my observations, if [Atherton] was permitted to
remain, that [the] Grand Jury . . . would not have been able to
discharge its function.” Id.
In addition to Zachem’s email, the District Court record
also includes a copy of Superior Court rules covering the
removal of grand jurors. These rules, which were in effect when
Atherton was removed from grand jury service, stated:
(g) Discharge and excuse.
A grand jury ordered by the Superior Court shall serve until
discharged by the Chief Judge or other judge designated by
the Chief Judge; but no grand jury may serve more than 18
months unless the Chief Judge or designee extends the
service of the grand jury for a period of 6 months or less
upon a determination that such extension is in the public
interest. At any time for cause shown, the Chief Judge or
other judge designated by the Chief Judge may excuse a
juror either temporarily or permanently, and in the latter
event the Chief Judge or designee may impanel another
person in place of the juror excused.
 8

D.C. Sup. Ct. R. Crim. P. 6(g) (emphasis added). Rufus G. King
III, the Chief Judge of the Superior Court during the relevant
time, submitted an affidavit stating that he “was never contacted
by anyone from the Court’s jury office or the U.S. Attorney’s
office before or at the time of the removal of grand juror
Atherton.” Affidavit of Rufus G. King III, J.A. 83. The
affidavit also states that “[t]he practice then in place did not
include contacting the chief judge before a grand juror was
involuntarily dismissed. . . . I [later] changed the procedures to
require that I be consulted before imposition of any grand jury
discipline.” Id., J.A. 84.
B. Proceedings Before the District Court
Atherton alleges that as a result of the defendants’ conduct,
he was denied the right to complete his service on the grand jury
and suffered humiliation, embarrassment, emotional trauma, and
injury to his reputation. Compl. ¶¶ 27, 80. He commenced a
pro se action in the District Court in April 2004, naming as
defendants the District of Columbia Office of the Mayor, the
Superior Court Office of the Clerk, Superior Court Clerk Duane
Delaney, Director of Special Operations Division Roy Wynn,
Juror Officer Suzanne Bailey-Jones, the Department of Justice
Office of the Attorney General, and Assistant United States
Attorney Daniel M. Zachem. The District Court substituted the
District of Columbia as the proper defendant for the Office of
the Mayor and the Superior Court Clerk’s Office. Atherton,
2007 WL 1041659, at *1 n.1. The complaint alleged civil rights
violations under 42 U.S.C. §§ 1983, 1985(3), and 1986, and
Bivens, 403 U.S. 388, as well as a common law fraud claim.
Atherton asked for “actual damages equal to the amount of
money he would have earned had he completed his 25 day jury
service,” as well as punitive damages. Compl. ¶ 79.
The District Court initially dismissed the case sua sponte
for lack of subject matter jurisdiction. On June 21, 2005, this
court reversed and remanded the case to the District Court.
 9

Atherton v. District of Columbia Office of the Mayor, et al., No.
04-5268 (D.C. Cir. June 21, 2005) (Order). Beginning in
September 2006, defendants filed motions to dismiss and to
quash service.
In an opinion issued on April 5, 2007, the District Court
granted the defendants’ motions to dismiss. Atherton, 2007 WL
1041659. The District Court first rejected the defendants’
claims of improper service and statute of limitations bar as
grounds for dismissal. Id. at *2. The Court then held, without
explanation, that the complaint provided no basis for § 1985(3)
liability, and that the § 1986 claim was time-barred. Id. at *3.
The District Court dismissed the official capacity claims
brought under § 1983 against the municipality of D.C. on the
ground that juror officer Bailey-Jones was acting outside the
scope of her authority when she removed Atherton from the
grand jury, id. at *5, and dismissed the individual capacity
claims against supervisors Delaney and Wynn on the ground
that the allegations did not support any personal involvement by
these defendants in the decision to remove Atherton from the
grand jury, id. at *3. The District Court declined to exercise
supplemental jurisdiction over the fraud claim alleged against
Wynn and Delaney. Id. at *3 n.2.
As for the fraud claim against Zachem, the District Court
held that Atherton did not allege sufficient facts to rebut the
government’s certification that Zachem was acting within the
scope of his employment, so the Federal Torts Claim Act was
the exclusive remedy for the fraud claim and the United States
was substituted as the defendant. Because the United States is
exempt from liability based on “[a]ny claim arising out of . . .
misrepresentation [or] deceit,” 28 U.S.C. § 2680(h), the fraud
claim was barred by sovereign immunity. Id. at *7.
The District Court found that Atherton had stated viable
claims against both Bailey-Jones and Zachem for deprivation of
 10

a liberty interest without due process and denial of equal
protection. However, the District Court held that both
defendants were entitled to absolute immunity and dismissed the
§ 1983 and Bivens claims against these defendants.
Atherton appealed the District Court’s judgment dismissing
his case. This court then appointed Professor James E.
Coleman, Jr., of the Duke University School of Law, as amicus
curiae to present arguments in favor of appellant (“Amicus”).
Atherton v. District of Columbia Office of the Mayor, et al., No.
07-5195 (D.C. Cir. Sept. 24, 2008) (Order). Professor Coleman
was assisted by Sean E. Andrussier and third-year law students
Sarah Campbell, James McDonald, Eugenie Montague, Emily
Sauter, and Eric Wiener in Duke’s Appellate Litigation Clinic.
Sarah Campbell did a fine job in representing Atherton during
oral arguments before this court.
II. ANALYSIS
A. Standard of Review
We review a dismissal for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6) de novo. See Muir v.
Navy Fed. Credit Union, 529 F.3d 1100, 1108 (D.C. Cir. 2008).
A plaintiff’s complaint need only provide “a short and plain
statement of the claim showing that the pleader is entitled to
relief” in order to survive a motion to dismiss. Fed. R. Civ. P.
8(a)(2). A complaint must give the defendants notice of the
claims and the grounds upon which they rest, but “[s]pecific
facts are not necessary.” Erickson v. Pardus, 551 U.S. 89, 93
(2007).
“[W]hen ruling on a defendant’s motion to dismiss, a judge
must accept as true all of the factual allegations contained in the
complaint.” Erickson, 551 U.S. at 94 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007)) (other citations
omitted). A court may not grant a motion to dismiss for failure
to state a claim “even if it strikes a savvy judge that . . . recovery
 11

is very remote and unlikely.” Twombly, 550 U.S. at 556
(internal quotation marks and citation omitted). “So long as the
pleadings suggest a ‘plausible’ scenario to ‘sho[w] that the
pleader is entitled to relief,’ a court may not dismiss.” Tooley v.
Napolitano, 556 F.3d 836, 839 (D.C. Cir. 2009) (quoting
Twombly, 550 U.S. at 557). However, the Supreme Court
recently made it clear that,
[w]here the claim is invidious discrimination . . . the
plaintiff must plead . . . that the defendant acted with
discriminatory purpose. Under extant precedent purposeful
discrimination requires more than intent as volition or intent
as awareness of consequences. It instead involves a
decisionmaker’s undertaking a course of action “because
of,” not merely “in spite of,” [the action’s] adverse effects
upon an identifiable group.
Ashcroft v. Iqbal, No. 07-1015, ___ U.S. ___, slip op. at 12
(U.S. May 18, 2009) (internal quotation marks and citations
omitted). This means that,
[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Where a complaint
pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.
Id. at 14 (internal quotation marks and citations omitted).
A pro se complaint, such as Atherton’s, “must be held to
less stringent standards than formal pleadings drafted by
 12

lawyers.” Erickson, 551 U.S. at 94 (internal quotation marks
and citation omitted). But even a pro se complainant must
plead “factual matter” that permits the court to infer “more than
the mere possibility of misconduct.” Iqbal, slip op. at 15.
B. Absolute Immunity
When government “officials are threatened with personal
liability for acts taken pursuant to their official duties, they may
well be induced to act with an excess of caution or otherwise to
skew their decisions in ways that result in less than full fidelity
to the objective and independent criteria that ought to guide their
conduct. In this way, exposing government officials to the same
legal hazards faced by other citizens may detract from the rule
of law instead of contributing to it.” Forrester v. White, 484
U.S. 219, 223 (1988). Because “the nature of the adjudicative
function requires a judge frequently to disappoint some of the
most intense and ungovernable desires that people can have,”
judges are protected by absolute judicial immunity. Id. at 226.
As the Court made clear in Bradley v. Fisher, 80 U.S. (13 Wall.)
335 (1871), judges “are not liable to civil actions for their
judicial acts, even when such acts are in excess of their
jurisdiction, and are alleged to have been done maliciously or
corruptly.” Id. at 351. “If judges were personally liable for
erroneous decisions, the resulting avalanche of suits, most of
them frivolous but vexatious, would provide powerful incentives
for judges to avoid rendering decisions likely to provoke such
suits. The resulting timidity would be hard to detect or control,
and it would manifestly detract from independent and impartial
adjudication.” Forrester, 484 U.S. at 226-27 (citation omitted).
However, as a general matter, the Supreme Court has “been
quite sparing in its recognition of claims to absolute official
immunity,” to ensure against extending “the scope of the
protection further than its purposes require.” Id. at 224.
Judicial immunity from liability, as with absolute immunity
in other contexts, “is justified and defined by the functions it
 13

protects and serves, not by the person to whom it attaches.” Id.
at 227. In other words, “Judges have absolute immunity not
because of their particular location within the Government but
because of the special nature of their responsibilities.” Butz v.
Economou, 438 U.S. 478, 511 (1978). It is therefore
unsurprising that absolute immunity has been extended to cover
executive branch officials who perform either quasi-judicial
functions that are “‘functionally comparable’ to th[ose] of a
judge,” id. at 513 (citing hearing examiners and administrative
law judges), or prosecutorial functions “intimately associated
with the judicial phase of the criminal process,” Imbler v.
Pachtman, 424 U.S. 409, 430 (1976).
The courts have continued to apply “a ‘functional’ approach
to immunity questions other than those that have been decided
by express constitutional or statutory enactment.” Forrester,
484 U.S. at 224. Following this approach, absolute immunity
has been granted to a court-appointed mediator or neutral case
evaluator, performing tasks within the scope of his official
duties, Wagshal v. Foster, 28 F.3d 1249 (D.C. Cir. 1994); clerks
of the court accused of issuing a false order against a pro se
plaintiff barring his access to the court, Sindram v. Suda, 986
F.2d 1459 (D.C. Cir. 1993); probation officers alleged to have
improperly investigated and prepared a presentence report,
Turner v. Barry, 856 F.2d 1539 (D.C. Cir. 1988); and a
court-appointed committee monitoring the unauthorized practice
of law, Simons v. Bellinger, 643 F.2d 774 (D.C. Cir. 1980).
However, absolute immunity has been rejected for judges acting
in an administrative capacity, Forrester, 484 U.S. at 229; court
reporters charged with creating a verbatim transcript of trial
proceedings, Antoine v. Byers & Anderson, Inc., 508 U.S. 429
(1993); prosecutors providing legal advice to the police, Burns
v. Reed, 500 U.S. 478, 492-96 (1991); and a judge engaged in
the selection of jurors, Ex Parte Virginia, 100 U.S. 339 (1879).
 14

As this court noted in Wagshal, “[w]e have distilled the
Supreme Court’s [functional] approach to quasi-judicial
immunity into a consideration of three main factors.” Wagshal,
28 F.3d at 1252. These factors include:
(1) whether the functions of the official in question are
comparable to those of a judge; (2) whether the nature of
the controversy is intense enough that future harassment or
intimidation by litigants is a realistic prospect; and (3)
whether the system contains safeguards which are adequate
to justify dispensing with private damage suits to control
unconstitutional conduct.
Id. (citing Butz, 438 U.S. at 512) (other citation omitted).
“The common-law immunity of a prosecutor is based upon
the same considerations that underlie the common-law
immunities of judges and grand jurors acting within the scope of
their duties.” Imbler, 424 U.S. at 422-23 (footnote omitted).
Like judicial immunity, absolute prosecutorial immunity turns
on the function performed by the prosecutor. Absolute
immunity is granted only for conduct “intimately associated
with the judicial phase of the criminal process.” Id. at 430.
Thus, courts look to whether the particular activity in dispute
was performed by a prosecutor in his or her official capacity as
an advocate for the state in the course of judicial proceedings.
See Kalina v. Fletcher, 522 U.S. 118, 125 (1997). A prosecutor
is not entitled to absolute immunity when performing
“administrative duties and those investigatory functions that do
not relate to an advocate’s preparation for the initiation of a
prosecution or for judicial proceedings.” Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993).
“[T]he official seeking absolute immunity bears the burden
of showing that such immunity is justified for the function in
question.” Burns, 500 U.S. at 486. “The presumption is that
qualified rather than absolute immunity is sufficient to protect
 15

government officials in the exercise of their duties.” Id. at 486-
87. For the reasons explained below, we hold that neither
Bailey-Jones nor Zachem is entitled to absolute immunity from
liability on the due process and equal protection claims raised by
Atherton. The issues in this case are distinct from – and thus do
not require us to decide – questions concerning whether judges
and prosecutors have absolute immunity for exercising or ruling
on peremptory challenges or challenges for cause at trial.
1. Juror Officer Bailey-Jones is Not Entitled to Quasi-
Judicial Immunity
The District argues that Bailey-Jones is entitled to absolute
immunity because, as a juror officer of the Superior Court, she
performed tasks “‘that are basic and integral parts of the judicial
function . . . .’” D.C. Br. at 9 (quoting Sindram, 986 F.2d at
1461). We disagree.
Bailey-Jones’s act of dismissing Atherton from the grand
jury was not an exercise of a judicial function, nor was it
“integrally related to adjudication.” Wagshal, 28 F.3d at 1253.
She was not involved in the resolution of any factual or legal
issue; and her responsibilities did not involve handling any
pleadings, disputes, or controversies of law. In fact, Bailey-
Jones’s role in Atherton’s dismissal was entirely removed from
the adjudicative context. The juror officer is primarily
responsible for administrative tasks, such as determining the
number of jurors needed by the Superior Court each day,
managing the computer systems and equipment for the Juror’s
Office, and overseeing juror orientation and the administration
of the oath for jurors. See Juror Officer Job Description, J.A.
71-76. The juror officer also “[r]eviews written requests for
juror excuses or deferrals” and grants or denies such requests “in
conformity with policies established by the court.” Id., J.A. 72.
These administrative and managerial activities, even if essential
to the smooth and efficient functioning of Superior Court
operations, are not functions that justify the application of quasi-
 16

judicial immunity. “[T]he touchstone for the . . . applicability
[of judicial immunity] has been performance of the function of
resolving disputes between parties, or of authoritatively
adjudicating private rights. When judicial immunity is extended
to officials other than judges, it is because their judgments are
functionally comparable to those of judges – that is, because
they, too, exercise a discretionary judgment as a part of their
function.” Antoine, 508 U.S. at 435-36 (internal quotation
marks and citations omitted).
The District concedes that Bailey-Jones was performing an
administrative act when she dismissed Atherton, but is
nonetheless entitled to absolute immunity because her actions
were “taken in furtherance of a judicial function.” D.C. Br. at
10. This argument fails. The “functional approach” does not
allow for the extension of absolute immunity merely because a
public official performs an act that is arguably “part of the
judicial function.” Antoine, 508 U.S. at 435 (rejecting the claim
that absolute immunity should be extended to court reporters).
Indeed, certain activities performed by public officials may be
“quite important in providing the necessary conditions of a
sound adjudicative system,” but remain “not themselves judicial
or adjudicative” in nature. Forrester, 484 U.S. at 229.
Moreover, Bailey-Jones’s argument that she is entitled to
absolute immunity cannot be reconciled with Ex Parte Virginia,
100 U.S. 339. In that case, the Supreme Court held that a
judge’s selection and exclusion of persons for jury service was
not a judicial function entitled to absolute immunity. The Court
held:
Whether the act done by him was judicial or not is to be
determined by its character, and not by the character of the
agent. Whether he was a county judge or not is of no
importance. The duty of selecting jurors might as well have
been committed to a private person as to one holding the
office of a judge. . . . [I]t surely is not a judicial act, in any
 17

such sense as is contended for here. It is merely a
ministerial act . . . . That the jurors are selected for a court
makes no difference. So are court-criers, tipstaves, sheriffs,
&c. Is their election or their appointment a judicial act?
Id. at 348.
Ex Parte Virginia was cited with approval in Forrester,
where the Court stated that “[a]dministrative decisions, even
though they may be essential to the very functioning of the
courts, have not . . . been regarded as judicial acts.” Forrester,
484 U.S. at 228. The Forrester Court went on to say:
In Ex parte Virginia, 100 U.S. 339 (1880), for example, this
Court declined to extend immunity to a county judge who
had been charged in a criminal indictment with
discriminating on the basis of race in selecting trial jurors
for the county’s courts.
....
Although [Ex Parte Virginia] involved a criminal charge
against a Judge, the reach of the Court’s analysis was not in
any obvious way confined by that circumstance.
Forrester, 484 U.S. at 228.
The District attempts to distinguish Ex Parte Virginia,
claiming that it involved “the ministerial act of drawing up a list
of potential jurors, which could have been done by anyone,”
while in this case “Bailey-Jones had to decide whether or not to
excuse Mr. Atherton based on his reported disruptive behavior,
an act which . . . was solely entrusted to the Court.” D.C. Br. at
12 n.6. This contention has no merit. Whether an act is “solely
entrusted to the Court” is not the test to determine whether it is
a “judicial function” for purposes of absolute immunity. The
court reporter in Antoine was engaged in acts solely entrusted to
the court, but those acts did not entitle the court reporter to
absolute immunity.
 18

In assessing Bailey-Jones’s claim for absolute immunity,
we must also consider “whether the nature of the controversy is
intense enough that future harassment or intimidation by
litigants is a realistic prospect.” Wagshal, 28 F.3d at 1252. It is
arguably conceivable that the threat of litigation might inhibit a
juror officer’s ability to make some decisions necessary for the
“smooth operation” of grand jury proceedings. But the District
concedes that the need to excuse a juror rarely arises. D.C. Br.
at 13. Therefore, there is no evidence in this case that rejecting
absolute immunity will impede independent and responsible
decisionmaking by juror officers in the future. See Antoine, 508
U.S. at 437 (“Respondents have not provided us with empirical
evidence demonstrating the existence of any significant volume
of vexatious and burdensome actions against reporters . . . .”).
Furthermore, qualified immunity should more than suffice to
protect juror officers and other like public officials in the
Superior Court. See Cleavinger v. Saxner, 474 U.S. 193, 207-08
(1985).
Finally, we must assess “whether the system contains
safeguards which are adequate to justify dispensing with private
damage suits to control unconstitutional conduct.” Wagshal, 28
F.3d at 1252. In Butz, the Supreme Court noted:
[T]he safeguards built into the judicial process tend to
reduce the need for private damages actions as a means of
controlling unconstitutional conduct. The insulation of the
judge from political influence, the importance of precedent
in resolving controversies, the adversary nature of the
process, and the correctability of error on appeal are just a
few of the many checks on malicious action by judges.
Advocates are restrained not only by their professional
obligations, but by the knowledge that their assertions will
be contested by their adversaries in open court. Jurors are
carefully screened to remove all possibility of bias.
Witnesses are, of course, subject to the rigors of
 19

cross-examination and the penalty of perjury. Because
these features of the judicial process tend to enhance the
reliability of information and the impartiality of the
decisionmaking process, there is a less pressing need for
individual suits to correct constitutional error.
438 U.S. at 512. There were no such “safeguards” available to
Atherton when he was summarily dismissed from grand jury
service.
In sum, it is clear that Bailey-Jones was performing
administrative/managerial functions when she dismissed
Atherton from the Superior Court grand jury. The District has
failed to meet its burden to show that the acts performed by
Bailey-Jones were quasi-judicial functions that were
functionally comparable to those of a judge. Therefore, the
District Court erred in dismissing Atherton’s claims against
Bailey-Jones on the ground that she is entitled to absolute
immunity.
2. Supervising AUSA Zachem is Not Entitled to Absolute
Prosecutorial Immunity
Unlike Bailey-Jones, who is employed by the District of
Columbia, Zachem is a federal employee. However, “the law of
immunity in a Bivens claim against a federal official mirrors that
in a section 1983 claim against a state official.” Moore v.
Valder, 65 F.3d 189, 192 (D.C. Cir. 1995) (citing Butz, 438 U.S.
at 504). Absolute prosecutorial immunity, like judicial
immunity, turns on the function performed by the prosecutor.
And not all work done by prosecutors is covered by absolute
immunity. See Kalina, 522 U.S. at 125 (noting that absolute
immunity does not encompass some of the official activities of
a prosecutor).
As noted above, prosecutors are entitled to absolute
immunity for conduct “intimately associated with the judicial
phase of the criminal process.” Imbler, 424 U.S. at 430. The
 20

Supreme Court has explained that “acts undertaken by a
prosecutor in preparing for the initiation of judicial proceedings
or for trial, and which occur in the course of his role as an
advocate for the State, are entitled to the protections of absolute
immunity.” Kalina, 522 U.S. at 126 (citing Buckley, 509 U.S.
at 273) (emphasis added). But “the defense [is] unavailable
when the prosecutor was performing a different function.” Id.
(citing prosecutors’ provision of legal advice to the police
during their pretrial investigation of the facts, holding a press
conference, and allegedly fabricating evidence concerning an
unsolved crime as acts that are not covered by prosecutorial
immunity).
In this case, Zachem is alleged to have procured or
participated in the unlawful removal of a sworn grand juror. His
conduct certainly was not “intimately associated with the
judicial phase of the criminal process.” And it surely did not
“occur in the course of his role as an advocate for the State.”
Indeed, Zachem’s conduct was not comparable to any of the
advocative functions for which prosecutors traditionally have
been protected by absolute immunity: His role in Atherton’s
dismissal from the grand jury was not related to a decision
whether to prosecute an individual, Imbler, 424 U.S. 409; it did
not involve his participation in a probable cause hearing, Burns,
500 U.S. 478; it was not a presentation of the state’s case at trial,
see Buckley, 509 U.S. at 273; and it did not concern the
evaluation or selection of evidence for presentation to a grand
jury, Kalina, 522 U.S. 118.
Simply because a prosecutor’s conduct is connected with
the grand jury does not make it advocatory. Prosecutorial
immunity undoubtedly may extend to cover prosecutors’
conduct before grand juries, see, e.g., Burns, 500 U.S. at 490
(noting immunity at common law extended to prosecutors
participating in “any hearing before a tribunal which performed
a judicial function”) (quotation marks and citation omitted); id.
 21

at 490 n.6 (citing cases involving grand juries). In this case,
however, Zachem was not the AUSA who was presenting
evidence to the grand jury. He was the supervising AUSA who
was called in to address complaints raised by members of the
grand jury who were allegedly annoyed with Atherton’s
behavior during grand jury deliberations. Indeed, Zachem
acknowledged that he did “not think it appropriate for the US
Attorney’s Office . . . to take a position with respect to the
removal of a particular juror from service,” Zachem email, J.A
62, so he knew that his involvement had nothing to do with his
advocatory duties as a prosecutor. Atherton’s dismissal could
have been performed by anyone. It had nothing to do with
Zachem’s advocatory functions.
This determination is not inconsistent with the Supreme
Court’s recent decision in Van de Kamp v. Goldstein, 129 S. Ct.
855 (2009), where the Court held that administrative activities
conducted by a supervising prosecutor which were “directly
connected with the prosecutor’s basic trial advocacy duties” may
be protected by absolute immunity. Id. at 863. Van de Kamp
involved a lawsuit by a criminal defendant, who alleged, among
other things, that the supervising prosecutor’s failure to train and
supervise attorneys under his charge resulted in a prosecutor
improperly withholding impeachment evidence which deprived
the defendant of a fair trial. The principal claim in the case was
the alleged withholding of trial evidence, a claim with respect to
which prosecutors have long enjoyed the protection of absolute
immunity. The Supreme Court held that it would be anomalous
to deny immunity to a supervising prosecutor for failure to train
when the trial prosecutor – whose “error in the plaintiff’s
specific criminal trial constitutes an essential element of the
plaintiff’s claim” – would be entitled to absolute immunity
protection. Id. at 862. It is plain that the Court’s analysis in Van
de Kamp is inapposite here. In this case, Zachem’s alleged
activities – improperly removing a grand juror on the basis of
his ethnicity and/or for the content and quality of his
 22

deliberations – had nothing to do with a prosecutor’s preparation
for or participation in a criminal trial.
In sum, Zachem is not entitled to absolute immunity
because the activities for which he is being sued do not relate to
his performance as an advocate for the government. As
discussed above in relation to Bailey-Jones, the final two factors
of the immunity inquiry, see Wagshal, 28 F.3d at 1252, do not
change this outcome. Zachem did not demonstrate that “the
nature of the controversy is intense enough that future
harassment or intimidation by litigants is a realistic prospect,”
id., and the absence of safeguards in this case counsels against
extending absolute immunity to those involved.
C. Atherton’s Equal Protection Claims: §§ 1983 and
1985(3)
The District Court found that Atherton’s complaint and
supporting submissions viably stated claims of equal protection
violations by Bailey-Jones and Zachem. Atherton’s right not to
be excluded from a grand jury on the basis of race or ethnicity
was clearly established when he was dismissed from the
Superior Court grand jury. See Carter v. Jury Comm’n of
Greene County, 396 U.S. 320, 329 (1970) (noting that “[p]eople
excluded from juries because of their race are as much aggrieved
as those indicted and tried by juries chosen under a system of
racial exclusion”); Campbell v. Louisiana, 523 U.S. 392, 398
(1998) (stating that there is a well-established equal protection
right not to be excluded from grand jury service on the basis of
race). Appellees do not contest this point. Rather, appellees
contend that Atherton failed to state claims under the equal
protection clause against Bailey-Jones and Zachem. We agree.
The only factual allegations in Atherton's complaint on his
equal protection claim are that: (1) after a witness who could
not speak English testified before the grand jury, Atherton
openly thanked the witness in Spanish, Compl. ¶¶ 64-65; (2)
 23

“based on information, Atherton was the only semi-fluent
Spanish speaking grand juror,” id. at ¶ 67; and (3) Atherton is
“half Mexican,” id. From these facts, Atherton alleges that,
“based upon information,” his removal without cause from the
grand jury was an act of discrimination against him “and
Hispanics in particular because there were no other Hispanics on
the jury.” Id. at ¶ 73. He also alleges that the defendants
conspired to illegally remove him from the grand jury “for
ethnic purposes.” Id. at ¶ 68. These spare facts and allegations
are not enough to survive a motion to dismiss under Iqbal and
Twombly. The complaint and supporting materials simply do
“not permit the court to infer more than the mere possibility of
misconduct,” Iqbal, slip op. at 15, and this is insufficient to
show that Atherton is entitled to relief. See FED. R. CIV. P.
8(a)(2). As the Court noted in Iqbal, “[w]here a complaint
pleads facts that are merely consistent with a defendant's
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Iqbal, slip op. at 14
(internal quotation marks and citation omitted). We therefore
reverse the District Court’s finding that Atherton stated claims
of equal protection violations by Bailey-Jones and Zachem.
Atherton’s claims under § 1985(3) fare no better. Section
1985(3) provides a cause of action against two or more persons
who participate in a conspiracy motivated by class-based
discriminatory animus. 42 U.S.C. § 1985(3); see also Griffin v.
Breckenridge, 403 U.S. 88, 96-102 (1971) (examining the
meaning of § 1985(3)). To state a claim under § 1985(3),
Atherton was required to allege:
(1) a conspiracy; (2) for the purpose of depriving, either
directly or indirectly, any person or class of persons of the
equal protection of the laws, . . . and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either
injured in her person or property or deprived of any right or
privilege of a citizen of the United States.
 24

Martin v. Malhoyt, 830 F.2d 237, 258 (D.C. Cir. 1987)
(alteration in original). “The statute does not apply to all
conspiratorial tortious interferences with the rights of others, but
only those motivated by some class-based, invidiously
discriminatory animus.” Id. (internal quotation marks and
citation omitted).
Atherton’s complaint and supporting materials merely
allege that Zachem, Bailey-Jones, and Wynn communicated
about his removal before he was dismissed from the grand jury.
See Zachem email, J.A. 61-62. These bare facts clearly do not
raise an inference that Zachem, Bailey-Jones, and Wynn were
conspiratorially motivated by some class-based, invidiously
discriminatory animus. The complaint also asserts that the
defendants “conspired under color of law to illegally remove
Atherton . . . for ethnic purposes,” Compl. ¶ 68, and that
Atherton was illegally removed from the grand jury in violation
of the Constitution and D.C. law. But these “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” to state a cause of action
under § 1985(3). Iqbal, slip op. at 14. We therefore affirm the
District Court’s dismissal of Atherton’s § 1985(3) claims.
D. Atherton’s Due Process Claims and Qualified Immunity
Although government officials may be sued in their
individual capacities for damages under § 1983 and Bivens,
qualified immunity protects officials from liability “insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
When determining whether a right was “clearly established,”
“[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). The District Court did not decide whether Bailey-Jones
or Zachem are entitled to qualified immunity
 25

Traditionally, courts have approached the qualified
immunity analysis through a two-step inquiry mandated in
Saucier v. Katz, 533 U.S. 194 (2001), asking, first, whether the
alleged facts show that the individual’s conduct violated a
statutory or constitutional right, and, second, whether that right
was clearly established at the time of the incident. Id. at 200.
However, the Supreme Court recently announced that the
Saucier protocol “should no longer be regarded as mandatory.”
Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). Rather, a
district court judge now retains discretion to decide “which of
the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case
at hand.” Id.
Whether the defendants in this case are entitled to qualified
immunity on the due process claim is a challenging question.
Atherton alleges he was denied due process in violation of the
Fifth Amendment of the Constitution. See Butera v. District of
Columbia, 235 F.3d 637, 645 n.7 (1987) (explaining that while
due process violations are typically analyzed under the
Fourteenth Amendment, the District of Columbia – which is not
a state – is subject to the Due Process Clause of the Fifth
Amendment). The Fifth Amendment Due Process Clause
protects individuals from deprivations of “life, liberty, or
property, without due process of law.” U.S. Const. amend. V.
A procedural due process violation occurs when an official
deprives an individual of a liberty or property interest without
providing appropriate procedural protections. Liberty interests
may either be located in the Constitution itself or “may arise
from an expectation or interest created by state laws or policies.”
Wilkinson v. Austin, 545 U.S. 209, 221 (2005). “State
regulations may give rise to a constitutionally protected liberty
interest if they contain substantive limitations on official
discretion, embodied in mandatory statutory or regulatory
language.” See Price v. Barry, 53 F.3d 369, 370 (D.C. Cir.
 26

1995) (citing Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454
(1989)).
Although the District Court found that there was a liberty
interest in grand jury service, the court did not explain the
source of the liberty interest, its parameters, or the particular
portions of Atherton’s allegations which stated a due process
claim. Much hinges on these determinations, because the
qualified immunity analysis “depends substantially upon the
level of generality at which the relevant ‘legal rule’ is to be
identified.” Anderson, 483 U.S. at 639. The Supreme Court has
explained:
For example, the right to due process of law is quite clearly
established by the Due Process Clause, and thus there is a
sense in which any action that violates that Clause (no
matter how unclear it may be that the particular action is a
violation) violates a clearly established right. Much the
same could be said of any other constitutional or statutory
violation. But if the test of “clearly established law” were
to be applied at this level of generality, it would bear no
relationship to the “objective legal reasonableness” that is
the touchstone of Harlow. Plaintiffs would be able to
convert the rule of qualified immunity that our cases plainly
establish into a rule of virtually unqualified liability simply
by alleging violation of extremely abstract rights. Harlow
would be transformed from a guarantee of immunity into a
rule of pleading.
Id.; see also Butera, 235 F.3d at 646. The Court has cautioned,
however, that “[t]his is not to say that an official action is
protected by qualified immunity unless the very action in
question has previously been held unlawful; but it is to say that
in the light of pre-existing law the unlawfulness must be
apparent.” Anderson, 483 U.S. at 640 (internal citation omitted).
 27

Amicus, on behalf of Atherton, argues that D.C. law limits
official discretion to remove a sworn grand juror and pointed to
several possible sources of the liberty interest. For example, the
D.C. Superior Court Rules of Criminal Procedure provide that
a grand juror may be dismissed at any time by the Chief Judge,
or another appointed judge, for cause shown. D.C. Sup. Ct. R.
Crim. P. 6(g) (emphasis added). Additionally, counsel for the
District agreed at oral argument that a juror has a recognized
interest in not being dismissed because of his or her “views on
the merits” and that this right was clearly established under D.C.
law; but he argued that Atherton’s complaint does not advance
the claim. Whether this or any other source of District of
Columbia law creates a liberty or property interest is a matter
that must be addressed by the District Court on remand.
As noted above, the District Court retains 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.” Pearson, 129 S.
Ct. at 818.
“Once it is determined that due process applies, the question
remains what process is due.” FDIC v. Mallen, 486 U.S. 230,
240 (1988) (quoting Morrissey v. Brewer, 408 U.S. 471, 481
(1972)). “[A] fundamental requirement of due process is the
opportunity to be heard . . . at a meaningful time and in a
meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552
(1965) (internal quotation marks and citation omitted). “In
determining whether due process requirements have been
satisfied – whether an appropriate hearing has been provided at
a meaningful time and in a meaningful matter – a court should
consider: [f]irst, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of
 28

such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards;
and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirements would entail.”
Garraghty v. Va. Dep’t of Corr., 52 F.3d 1274, 1282 (4th Cir.
1995) (citing the Supreme Court’s seminal decision in Mathews
v. Eldridge, 424 U.S. 319, 335 (1976)). It is not always clear,
however, whether and to what extent a predeprivation hearing
is required or whether a post-deprivation hearing will suffice.
See, e.g., Mallen, 486 U.S. at 240. Furthermore, whether it be
pre- or post-deprivation, “[t]he question of ‘what process is due’
is more easily asked than answered.” Brewster v. Bd. of Educ.
of Lynwood Unified Sch. Dist., 149 F.3d 971, 983 (9th Cir.
1998).
In assessing a qualified immunity defense to a due process
claim, a court invariably must consider the context and weigh
the Mathews factors. And
notwithstanding the fact that procedural due process rights
oftentimes will not be “clearly established” within the
meaning of Harlow and Anderson, [a court] must consider
the specific facts of [the] case to determine whether it
presents one of those occasions in which the rights are
clearly established. The question presented therefore boils
down to this: Has [the complainant] proven that, under the
three-part balancing analysis of Mathews and the precedents
that have applied it, he had a “clearly established” right to
process more comprehensive than that provided by the
District?
Brewster, 149 F.3d at 984.
In this case, it is possible that any constitutionally required
process may be found in the law that gives content to the liberty
interest. In other words, the process required by the substantive
 29

law may coincide with the constitutional minimum. For
example, D.C. Superior Court Rule of Criminal Procedure 6(g)
prescribes a procedure to be followed when persons are removed
from jury service: a juror may only be removed by the Chief
Judge or another appointed judge for cause shown. Atherton
alleges that he was deprived of even this process.
Because the qualified immunity issue was not addressed
below and was only thinly briefed on appeal, we are not in a
position to address the questions that remain to be answered
here. We will leave it to the District Court on remand to
consider these matters.
E. The Claims Against the District of Columbia
Finally, we affirm the District Court’s dismissal of the
§ 1983 claims against the District of Columbia. “Under § 1983
a municipality is liable not under principles of respondeat
superior, but only for constitutional torts arising from ‘action
pursuant to official municipal policy.’” Triplett v. District of
Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997) (quoting
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691
(1978)); see also Iqbal, slip op. at 11-12. The facts alleged by
Atherton do not support an inference of a course the city’s
“policymakers consciously chose to pursue.” Triplett, 108 F.3d
at 1453.
III. CONCLUSION
The judgment of the District Court is affirmed in part,
reversed in part, and remanded for further proceedings
consistent with this opinion.