Hall, Sheryl L. v. Clinton, Hillary R.

                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

        Argued February 19, 2002    Decided April 5, 2002 

                           No. 01-5142

                         Sheryl L. Hall, 
                            Appellant

                                v.

                     Hillary Rodham Clinton, 
                  In her personal capacity, and 
                 DNC Services Corporation d/b/a 
                 Democratic National Committee, 
                            Appellees

          Appeal from the United States District Court 
                  for the District of Columbia 
                         (No. 99cv03281)

     Larry E. Klayman argued the cause for the appellant.

     Michael S. Raab, Attorney, United States Department of 
Justice, argued the cause for appellee Hillary Rodham Clin-
ton.  Roscoe C. Howard, Jr., United States Attorney, and 

Mark B. Stern, Attorney, United States Department of Jus-
tice, were on brief.

     Joseph E. Sandler argued the cause for appellees DNC 
Services Corporation and Democratic National Committee.

     Before:  Henderson, Randolph and Rogers, Circuit Judges.

     Opinion for the Court filed by Circuit Judge Henderson.

     Concurring Opinion filed by Circuit Judge Randolph.

     Karen LeCraft Henderson, Circuit Judge:  The appellant, 
Sheryl L. Hall, seeks reversal of the district court's March 28, 
2001 opinion and order denying her motion to disqualify the 
Department of Justice (DOJ) from representing appellee 
Hillary Rodham Clinton (Clinton) and dismissing her lawsuit 
against Clinton and the Democratic National Committee 
(DNC).  See Hall v. Clinton, 143 F. Supp. 2d 1 (D.D.C. 2001) 
(Hall II).  In the district court, Hall, a former White House 
employee, sued Clinton under common-law tort theories of 
tortious interference with contractual relations and intention-
al infliction of emotional distress.  In addition, she sued the 
DNC, alleging that it conspired to interfere with her civil 
rights and that it engaged in civil conspiracy.

     As to Hall's claims against Clinton, the district court held 
that the DOJ can represent Clinton pursuant to 28 U.S.C. 
s 517 because its decision to do so is either unreviewable 
generally or is in this case supported by "a sufficient interest 
to pass muster under the flexible mandate of that statute."  
Hall II, 143 F. Supp. 2d at 4.  The court found that an earlier 
decision of the United States District Court for the Eastern 
District of Virginia (Eastern District) precluded it from con-
sidering either of Hall's tort claims.  It went on to hold that, 
in any event, the Civil Service Reform Act (CSRA), 5 U.S.C. 
ss 1101 et seq., "provides the sole remedy for the actions by 
Clinton in this case."  Id. at 5.

     As to Hall's claims against the DNC, the district court, 
which assumed arguendo that the doctrine of issue preclusion 
did not bar her civil rights conspiracy claim, see id. at 6, held 
that the CSRA preempts that claim, see id.  Additionally, it 

found that--irrespective of the CSRA--Hall's civil rights 
conspiracy claim would be barred by the statute of limita-
tions.  See id.  Finally, it held that the DNC could not be 
liable for civil conspiracy because the alleged conspiracy 
"does not have as its object an objectionable wrong."  Id. 
(quotation omitted).

     Point by point, Hall contests on appeal each of the district 
court's conclusions.  Because her arguments are without mer-
it, see infra Part II, we affirm the district court.

                                I.

     Hall is a former computer systems manager of the Office of 
Administration in the Executive Office of the President.  She 
alleges that in November 1993 she was directed to develop 
software for the "White House Office Database" (WhoDB), 
which she asserts was being developed for "partisan, political 
purposes."  Joint Appendix (JA) 10 (Compl. p 12).1  Among 
these purposes, she alleges, were the "tracking [of] informa-
tion on thousands of Clinton/DNC campaign contributors, the 
amounts that had been contributed and perquisites that had 
been doled out, such as White House coffees and overnight 
stays, as well as the coordination of Clinton/DNC political and 
fund-raising events."  JA 11 (Compl. p 12).  Hall further 
alleges that she "expressed reservations about whether the 
project complied with the Hatch Act," 18 U.S.C. ss 594 et 
seq., and that she was thereafter "assigned only menial tasks 
and was excluded from projects in which she previously had 
been involved and for which she had been employed."  JA 11, 
13 (Compl. p p 15, 22).  Hall asserts that in November 1996 
her "position was eliminated and her duties and supervisory 
responsibilities were assigned to a lesser qualified individual 
under whose supervision she was assigned to work."  JA 13 
(Compl. p 23).  According to Hall, "these actions were under-

__________
     1 In reviewing the district court's grant of the defendants' mo-
tions to dismiss, we accept as true the allegations that Hall sets 
forth in her complaint.  See El-Hadad v. United Arab Emirates, 
216 F.3d 29, 32 n.5 (D.C. Cir. 2000) (citing Saudi Arabia v. Nelson, 
507 U.S. 349, 351 (1993)).

taken at the direction of Mrs. Clinton and in retaliation for 
Hall's challenging the unlawfulness of the WhoDB, in an 
attempt to force Hall to terminate her employment at [t]he 
White House."  JA 13 (Compl. p 24).  Hall claims that she 
suffered "extreme emotional distress and stress-related phys-
ical conditions" as well as "additional, substantial pecuniary 
losses" because of the alleged goings-on at the White House.  
JA 14 (Compl. p 27).  She ultimately resigned from her 
position effective September 10, 1999.  See JA 14.

     On May 17, 1999 Hall filed a pro se complaint in the 
Eastern District against Clinton and senior White House 
officials.  She subsequently filed an amended complaint in 
which she claimed, inter alia, that Clinton had conspired with 
other officials to "hinder or impede [her] by intimidation or 
threat, in the lawful discharge of her duties, and/or to injure 
[her] in her person or property on account of the lawful 
discharge of her duties," in violation of 42 U.S.C. s 1985 
(section 1985).2  JA 116.  Clinton and her co-defendants 
moved to dismiss and, on December 3, 1999, the Eastern 
District granted the defendants' motion, holding that the 
court lacked subject matter jurisdiction over Hall's section 
1985 claim because "the actions of the defendants [were] 
clearly employment-related and [were] encompassed under 
the [preemptive] remedial scope of the CSRA."  JA 127 (Hall 

__________
     2 42 U.S.C. s 1985 provides, in pertinent part, that

     [i]f two or more persons in any State or Territory conspire to 
     prevent, by force, intimidation, or threat, any person from 
     accepting or holding any office, trust, or place of confidence 
     under the United States, or from discharging any duties there-
     of;  ... or to injure him in his person or property on account of 
     his lawful discharge of the duties of his office, or while engaged 
     in the lawful discharge thereof, or injure his property so as to 
     molest, interrupt, hinder, or impede him in the discharge of his 
     official duties;  ... the party so injured or deprived may have 
     an action for the recovery of damages, occasioned by such 
     injury or deprivation, against any one or more of the conspira-
     tors.
     
42 U.S.C. s 1985(1), (3).

v. Clinton, No. 99-694-A, mem. op. at 6 (E.D. Va. Dec. 3, 
1999)).  On December 19, 2000 the United States Court of 
Appeals for the Fourth Circuit affirmed, holding that "Con-
gress intended that the CSRA would operate to the exclusion 
of all other statutory remedies for claims arising out of the 
federal employment relationship."  Hall v. Clinton, 235 F.3d 
202, 206 (4th Cir. 2000) (Hall I), cert. denied, 532 U.S. 995 
(2001).

     On December 13, 1999--just ten days after the dismissal of 
her complaint against Clinton and others--Hall initiated this 
suit in the district court.  She brought two common-law tort 
claims against Clinton:  a claim of tortious interference with 
contractual relations on the ground that "Clinton willfully and 
intentionally interfered with Hall's long-standing employment 
relationship with the United States Government in an attempt 
to force Hall to terminate that relationship," JA 14 (Compl. 
p 33);  and a claim of intentional infliction of emotional dis-
tress on the ground that "Clinton's conduct towards Hall ... 
was extreme and outrageous, not only due to the nature of 
the conduct itself but also because such acts and conduct 
constitute[d] a gross abuse of Mrs. Clinton's position as First 
Lady of the United States," JA 15 (Compl. p 36).  In addition, 
Hall brought two claims against the DNC:  a claim that it 
violated section 1985 in that Clinton and the DNC "conspired 
to injure Hall ... on account of [her] having discharged her 
budgetary, managerial, supervisory and other duties," JA 17 
(Compl. p 44);  and a claim of civil conspiracy on the ground 
that Clinton and the DNC "tacitly or explicitly agreed to 
develop the WhoDB using United States Government person-
nel and United States Government resources, in direct viola-
tion of the Hatch Act," JA 16 (Compl. p 40).  Finally, Hall 
filed a motion to disqualify the DOJ from representing Clin-
ton in the litigation.

     As mentioned above, the district court held that the DOJ's 
decision under section 517 to represent the former First Lady 
is not subject to judicial review or, alternatively, that section 
517 expressly authorizes the decision.  See Hall II, 143 
F. Supp. 2d at 3-4.  Further, it dismissed all four of Hall's 

claims for various and alternative reasons, see id. at 5-6, that 
Hall now challenges.

                               II.

     We discuss the district court's holdings on the motions 
presented--and address Hall's challenges thereto--in turn.

                                A.

     Hall claims, first, that the district court erred in failing to 
disqualify the DOJ from representing Clinton because "Clin-
ton was neither an officer nor an employee of the U.S. 
Government" at the time Hall filed her complaint.  Br. of 
Appellant at 28.  We review the court's denial of a motion to 
disqualify counsel for abuse of discretion, see Wheat v. United 
States, 486 U.S. 153, 163-64 (1988), and therefore will not 
lightly cast its decision aside.

     Under 28 U.S.C. s 517,

     [t]he Solicitor General, or any officer of the Department 
     of Justice, may be sent by the Attorney General to any 
     State or district in the United States to attend to the 
     interests of the United States in a suit pending in a court 
     of the United States, or in a court of a State, or to attend 
     to any other interest of the United States.
     
28 U.S.C. s 517 (emphasis added).  The district court con-
cluded that "a decision to provide representation subject to 
s 517 is non-reviewable" by a federal court because, under 
the United States Supreme Court's decision in Heckler v. 
Chaney, 470 U.S. 821 (1985), it is "committed to the [DOJ's] 
sole discretion and there [is] no law for a reviewing court to 
apply."  Hall II, 143 F. Supp. 2d at 4.  In support of this 
proposition, the district court cited Falkowski v. EEOC, 764 
F.2d 907 (D.C. Cir. 1985), reh'g denied, 783 F.2d 252 (D.C. 
Cir.), cert. denied, 478 U.S. 1014 (1986), in which we held that 
the DOJ's decision not to provide legal representation under 
section 517 was unreviewable.  Falkowski, 764 F.2d at 911 
(DOJ's decision "involve[d] the allocation of [the] agency's 
scarce legal resources" and was therefore "better suited to 

the expertise of the agency than of the courts").  If we were 
dealing here with the DOJ's decision not to represent Clinton, 
Falkowski would settle the matter;  we could not review, 
much less second-guess, the agency's discretionary call.  
Heckler makes clear, however, that "when an agency does act 
..., that action itself provides a focus for judicial review, 
inasmuch as the agency must have exercised its power in 
some manner.  The action at least can be reviewed to deter-
mine whether the agency exceeded its statutory powers."  
Heckler, 470 U.S. at 832 (emphasis in original);3  cf. 5 U.S.C. 
s 706(2)(A) ("The reviewing court shall ... hold unlawful and 
set aside agency action ... found to be ... arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance 
with law...." (emphasis added)).  Thus, although Clinton 
appropriately emphasizes the "lengthy history of discretion-
ary authority enjoyed by the Attorney General in determining 
whether to provide [legal counsel] to federal personnel," Br. 
of Appellee Clinton at 32 (quotation omitted), we decline to 
extend Heckler to the DOJ's affirmative decision to represent 
her.

     Nevertheless, we affirm the district court's denial of Hall's 
motion to disqualify the DOJ on a narrower ground:  "[T]he 
government has articulated a sufficient interest to pass mus-
ter under the flexible mandate of" section 517.  Hall II, 143 
F. Supp. 2d at 4.  The statute plainly confers upon the 
Attorney General broad discretion in his decision to dispatch 
government lawyers "to attend to any ... interest of the 
United States."  28 U.S.C. s 517 (emphasis added);  see 
Falkowski, 783 F.2d at 253 (footnote omitted).  Indeed, as the 
district court pointed out, the statute would appear to permit 
representation of private individuals as long as a government 
interest is at stake.  Hall II, 143 F. Supp. 2d at 4 (citing 
Brawer v. Horowitz, 535 F.2d 830, 834 (3d Cir. 1976) (it 
"approaches the frivolous" to argue that "the Department of 

__________
     3 Acknowledging that Heckler suggests "a decision to act may be 
reviewable, even though a decision not to act is not reviewable," 
Hall II, 143 F. Supp. 2d at 4, the district court held in the 
alternative that if the DOJ's decision to represent Clinton is review-
able, the decision was lawful.  See infra.

Justice possesses no statutory or regulatory authority [under 
section 517] to represent a nongovernment defendant in a 
civil case")).  Therefore, even if Clinton were a purely private 
citizen at all times relevant to Hall's suit--and, arguably, she 
was not4--it was well within the DOJ's discretion to deter-
mine that the United States has (and continues to have) an 
interest in representing the former First Lady in litigation 
based upon actions she allegedly undertook while at the 
White House.  The district court did not abuse its discretion 
in so concluding.

                                B.

     Next, Hall asserts that the district court erroneously dis-
missed her common-law tort claims against Clinton.  She 
contends that the doctrine of issue preclusion does not apply 
because "the Eastern District was not required to consider 
whether the CSRA provided the sole remedy [for] the con-
duct at issue, as opposed to claims at issue" and because 
"there is an important difference between the law of this 
Circuit and the law in the Fourth Circuit."  Br. of Appellant 
at 10.  She argues as well that in enacting the CSRA the 
Congress did not intend to preempt common-law tort claims 
"against non-federal employees ... such as Mrs. Clinton."  
Id. at 17.  We review the district court's dismissal de novo, 
see Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998), 
and conclude that Hall's arguments for reversal do not avail 
her.

__________
     4 The Congress has explicitly acknowledged the First Lady's 
quasi-official role in White House affairs:  "Assistance and services 
... are authorized to be provided to the spouse of the President in 
connection with assistance provided by such spouse to the President 
in the discharge of the President's duties and responsibilities."  3 
U.S.C. s 105(e).  Indeed, expressly relying on this provision, we 
have construed the Federal Advisory Committee Act's phrase, "full-
time officers or employees of the Federal Government," 5 
U.S.C.App. 2, s 3(2)(iii), to include Clinton.  See Ass'n of Am. 
Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 911 (D.C. Cir. 
1993).

     Under the doctrine of issue preclusion, as we held in 
Yamaha Corp. of Am. v. United States, 961 F.2d 245 (D.C. 
Cir. 1992), cert. denied, 506 U.S. 1078 (1993), the standards 
for establishing the preclusive effect of an earlier holding are:

     First, the same issue now being raised must have been 
     contested by the parties and submitted for judicial deter-
     mination in the prior case.  Second, the issue must have 
     been actually and necessarily determined by a court of 
     competent jurisdiction in that prior case....  Third, 
     preclusion in the second case must not work a basic 
     unfairness to the party bound by the first determination.  
     An example of such unfairness would be when the losing 
     party clearly lacked any incentive to litigate the point in 
     the first trial, but the stakes of the second trial are of a 
     vastly greater magnitude.
     
Yamaha Corp., 961 F.2d at 254 (citations omitted).  Hall 
believes that the doctrine is inapplicable here because, she 
says, the Eastern District did not need to determine whether 
the CSRA forecloses the common-law tort claims she raises in 
Hall II but did not "submit for judicial determination" in Hall 
I.  Hall's definition of "issue," however, is far too narrow.  As 
the district court recognized, the "issue" before the Eastern 
District in Hall I was not whether the CSRA preempted 
Hall's section 1985 claim against Clinton;  rather, it was 
whether the CSRA "constituted the sole remedy for [Clin-
ton's] alleged conduct."  Hall II, 143 F. Supp. 2d at 5 
(emphasis in original);  see also Hall I, 235 F.3d at 205.  
Thus, Hall's common-law tort allegations in this litigation are 
not new issues but simply new legal theories.  And, as we 
made clear in Yamaha Corp.,

     [i]f a new legal theory or factual assertion put forward in 
     the second action is related to the subject-matter and 
     relevant to the issues that were litigated and adjudicated 
     previously, so that it could have been raised, the judg-
     ment is conclusive on it despite the fact that it was not in 
     fact expressly pleaded or otherwise urged.
     
Yamaha Corp., 961 F.2d at 257-58 (quotation omitted) (em-
phasis in original).  Hall could have raised her tort claims in 

the Eastern District in Hall I.  Nowhere does she assert that 
she lacked incentive to raise them.  Because her contention 
that Clinton committed common-law torts against her is 
"relevant to the issue[ ] that [was] litigated and adjudicated 
previously"--namely, whether the CSRA constituted the sole 
remedy for Clinton's conduct--the Eastern District's judg-
ment in Hall I precluded the district court in Hall II from 
considering the tort claims.5  The district court, therefore, 
correctly dismissed the claims for lack of subject matter 
jurisdiction.6

                                C.

     Finally, Hall asserts that the district court erroneously 
dismissed her section 1985 and civil conspiracy claims against 
the DNC.  She argues:  that her section 1985 claim is not 
time-barred by the District of Columbia's three-year statute 
of limitations because "she did not and could not discover 
crucial facts concerning the bases for her claims ... until 
November 30, 1998," Br. of Appellant at 10;  that she "clearly 
states a cause of action for ... civil conspiracy" against the 
DNC because she "plainly alleges that Mrs. Clinton and the 
DNC agreed to a common, unlawful plan--to convert govern-
ment resources and utilize government personnel to create a 
database for ... partisan political purposes," id. at 10-11;  
and that the CSRA does not preempt either of her conspiracy 

__________
     5 Even if it were true that the Fourth Circuit's law on CSRA 
preemption differs from ours, as Hall contends, see Br. of Appellant 
at 15-17, a difference in substantive law "does not affect the 
application of issue preclusion."  Yamaha Corp., 961 F.2d at 258.

     6 The district court found it unnecessary to consider "whether 
Hall's claims [against Clinton] are barred by the doctrine of claim 
preclusion."  Hall II, 143 F. Supp. 2d at 5 n.3.  Because affirmance 
is justified on issue preclusion grounds, we also decline to reach the 
claim preclusion question.  Likewise, while it may be true that 
"Congress intended for the CSRA to be a comprehensive remedy 
for federal employees with individualized job grievances," id. at 5 
(citing, inter alia, Bush v. Lucas, 462 U.S. 367 (1983);  Spagnola v. 
Mathis, 809 F.2d 16, 30 (D.C. Cir. 1986)), we do not reach that 
issue.

claims against the DNC because the DNC is not a federal 
entity, see id. at 10.  Once again, we review de novo the 
district court's dismissal of Hall's claims, see Artis, 158 F.3d 
at 1306, and, once again, we find her arguments for reversal 
unavailing.

     Hall's section 1985 claim against the DNC is time-barred.  
No one disputes that "the relevant statute of limitations for a 
s 1985(1) violation in this jurisdiction is three years."  Hall 
II, 143 F. Supp. 2d at 6.  The statute-of-limitations clock 
starts ticking when the plaintiff has sufficient "notice of the 
conduct ... which is now asserted as the basis for [her] 
lawsuit."  Fitzgerald v. Seamans, 553 F.2d 220, 228-29 (D.C. 
Cir. 1977).  The last act that allegedly caused Hall damage 
occurred in November 1996, when "Hall's position was elimi-
nated and her duties and supervisory responsibilities were 
assigned to a lesser qualified individual under whose supervi-
sion she was assigned to work."  JA 13 (Compl. p 23).  Be-
cause Hall did not file her complaint until December 13, 
1999--outside the three-year window--the statute of limita-
tions bars her section 1985 claim.

     Hall resists this conclusion, pointing to an allegation in her 
complaint that she "did not discover the operative facts 
alleged [t]herein until after the publication on or about No-
vember 30, 1998 of a report by the United States House of 
Representatives Committee on Government Reform and 
Oversight [about] the WhoDB."  JA 14 (Compl. p 28).  In 
light of this allegation, she says, we must assume to be true--
for motion-to-dismiss purposes--that the statute-of-
limitations clock did not start until November 30, 1998.  See 
Br. of Appellant at 21-22 (citing Kowal v. MCI Communica-
tions Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).  Hall's 
argument is misguided.  Indeed, the very case she cites for 
her proposition makes clear that we need not defer to her 
legal "allegations" about the statute of limitations any more 
than we would have to accept as true an "allegation" assert-
ing, for instance, that "existing precedent requires the court 
to award me the damages I seek."  See Kowal, 16 F.3d at 
1276 ("[T]he court need not accept ... legal conclusions cast 
in the form of factual allegations." (citing Papasan v. Allain, 

478 U.S. 265, 286 (1986))).  The complaint itself reveals that 
Hall knew in November 1993 that the WhoDB was allegedly 
"to be used to further the private, political interest of the 
Clintons and the DNC."  JA 11 (Compl. p 12);  see Hall II, 
143 F. Supp. 2d at 6.  The district court, therefore, properly 
dismissed her section 1985 claim against the DNC.7

     It is equally clear that Hall has not stated a cause of action 
against the DNC for civil conspiracy.  Civil conspiracy, of 
course, is not actionable in and of itself but serves instead "as 
a device through which vicarious liability for the underlying 
wrong may be imposed upon all who are a party to it, where 
the requisite agreement exists among them."  Riddell v. 
Riddell Wash. Corp., 866 F.2d 1480, 1493 (D.C. Cir. 1989).  
The district court quoted our case law, quite rightly, for the 
proposition that " 'as a matter of substantive law, one cannot 
be liable for a conspiracy that does not have as its object an 
actionable wrong.' "  Hall II, 143 F. Supp. 2d at 6 (quoting 
Riddell, 866 F.2d at 1494) (emphasis added).  Hall contends 
that, for the purpose of civil conspiracy, it does not matter 
whether the predicate conduct is independently actionable or 
merely illegal;  in both instances, she asserts, an action lies 
for conspiracy.  See Reply Br. of Appellant at 7.  Yet again, 
the very case Hall cites, Halberstam v. Welch, 705 F.2d 472 
(D.C. Cir. 1983), refutes her assertion in no uncertain terms.  
Halberstam holds that the two essential elements of civil 
conspiracy are (1) "an agreement to take part in an unlawful 
action or a lawful action in an unlawful manner";  and (2) "an 
overt tortious act in furtherance of the agreement that causes 
injury."  Id. at 479 (emphasis added).  The hornbook defini-
tion of a "tort" is "[a] civil wrong for which a remedy may be 
obtained."  Black's Law Dictionary 1496 (7th ed. 1999) (em-
phasis added).  With regard to the civil conspiracy claim 
against the DNC, Hall's complaint alleges only that Clinton 
and the DNC "tacitly or explicitly agreed to develop the 
WhoDB using United States Government personnel and Unit-

__________
     7 Because we affirm the district court's dismissal of Hall's section 
1985 claim on statute-of-limitations grounds, we need not address 
whether the CSRA preempts that claim.  Cf. supra note 6.

ed States Government resources, in direct violation of the 
Hatch Act."  JA 16 (Compl. p 40).  "Violation of the Hatch 
Act," however, is not a tort.8  Thus, because the Act does not 
make a violation thereof privately actionable, see Brooks v. 
Nacrelli, 331 F. Supp. 1350, 1354 (E.D. Pa. 1971) (Hatch Act's 
provisions enforced exclusively by government), aff'd, 473 
F.2d 955 (3d Cir. 1973), a conspiracy to violate the Act is not 
actionable either.9

                               III.

     For the foregoing reasons, the district court's denial of 
Hall's motion to disqualify the DOJ and its dismissal of her 
claims against Clinton and the DNC are

                                                                 Affirmed.

__________
     8 Perhaps realizing that the district court applied Riddell and 
Halberstam correctly, Hall asserts for the first time on appeal that 
the underlying torts were actually Clinton's alleged intentional 
interference with contractual relations and intentional infliction of 
emotional distress.  See Br. of Appellant at 28.  We are precluded 
from considering her assertion because she did not raise it below.  
See District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084 (D.C. 
Cir. 1984).

     9 Because the district court properly dismissed Hall's civil con-
spiracy claim on this ground, we need not inquire whether the 
CSRA preempts the claim.  Cf. supra notes 6-7.  Moreover, al-
though the civil conspiracy claim is governed by the same three-
year statute of limitations as the section 1985 claim, see D.C. Code 
s 12-301(8)--and might well have been barred on that ground--the 
district court did not consider the prospect because the parties did 
not raise it.  Likewise, we need not consider whether Hall's civil 
conspiracy claim is time-barred.

     Randolph, Circuit Judge, concurring:  If the government 
had raised a separation of powers argument in support of its 
claim that the Justice Department's decision to represent 
now-Senator Clinton is nonreviewable, I might have been 
persuaded to reach a different conclusion in this case.  See 
U.S. Const., art. II, s 3.  Several cases, perhaps dating as far 
back as Hayburn's Case, 2 U.S. (2 Dall.) 408 (1792), have 
reviewed the Attorney General's decision to undertake legal 
representation in pending cases.  But see Maeva Marcus, 
Hayburn's Case:  A Misinterpretation of Precedent, 1988 Wis. 
L. Rev. 527, 535 (1988) (concluding that the real issue in 
Hayburn's Case was whether Attorney General Randolph had 
the power to proceed without specific authorization from the 
President).  But none of these cases expressly addresses 
whether the separation of powers inherent in the Constitution 
precluded the courts from questioning the judgment of the 
Executive Branch on such a matter.  See, e.g., Booth v. 
Fletcher, 101 F.2d 676, 681-82 (D.C. Cir. 1938);  Meredith v. 
Van Oosterhout, 286 F.2d 216, 220 (8th Cir. 1960);  Int'l 
Prods. Corp. v. Koons, 325 F.2d 403, 408 (2d Cir. 1963);  
Brawer v. Horowitz, 535 F.2d 830, 834-35 (3d Cir. 1976).  
The issue therefore remains open.  See Webster v. Fall, 266 
U.S. 507, 511 (1925).