Michael Langeman v. Merrick Garland

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 11, 2023          Decided December 12, 2023

                        No. 22-5264

                  MICHAEL W. LANGEMAN,
                       APPELLANT

                              v.

    MERRICK B. GARLAND, IN HIS OFFICIAL CAPACITY AS
    ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
                     APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:21-cv-02888)



    Lawrence Berger argued the cause and filed the briefs for
appellant.

     Lowell V. Sturgill Jr., Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
were Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Joshua M. Salzman, Attorney.

    Before: KATSAS, CHILDS and PAN, Circuit Judges.
                                 2
    Opinion for the Court filed by Circuit Judge CHILDS.

     CHILDS, Circuit Judge: Michael W. Langeman
(Langeman) appeals the district court’s dismissal of his
complaint for failure to state a claim. Langeman v. Garland,
Civil Case No. 21-2888, 

 (D.D.C. Aug. 23,
2022). Langeman brought suit after he was summarily
terminated from his position as a Special Agent with the
Federal Bureau of Investigation (FBI) when a probe by the
United States Department of Justice (DOJ) revealed
Langeman’s role in the mishandling of the investigation into
sexual abuse allegations against USA Gymnastics Physician
Lawrence Gerard Nassar. Langeman alleged violations of his
constitutional rights as protected by the Fifth Amendment’s
Due Process Clause against Merrick B. Garland, in his official
capacity as the Attorney General of the United States, the DOJ,
the FBI, and two FBI officials (FBI Director Christopher A.
Wray and FBI Deputy Director Paul Abbate) (collectively
Appellees). Langeman alleged that his termination violated a
constitutionally protected property interest in his continued
employment and deprived him of a constitutionally protected
liberty interest in his reputation, thereby damaging his future
employment in law enforcement. For the reasons below, we
affirm the district court’s dismissal of Langeman’s claims.

                                 I.

    The background for this appeal is derived from
Langeman’s “complaint, any documents either attached to or
incorporated in the complaint and matters of which [the court]
may take judicial notice.”1 EEOC v. St. Francis Xavier

1
 Consideration of facts subject to judicial notice does not convert a
motion to dismiss into a motion for summary judgment. See Hurd v.
District of Columbia, 

 (D.C. Cir. 2017).
                                3
Parochial Sch., 

, 624–25 (D.C. Cir. 1997)
(citations omitted). Additionally, relevant “[p]ublic records are
subject to judicial notice on a motion to dismiss when referred
to in the complaint and integral to the plaintiff’s claim.” Owens
v. BNP Paribas, S.A., 

 (D.C. Cir. 2018)
(citing Kaempe v. Myers, 

 (D.C. Cir. 2004)).
A court may also consider documents attached to a motion to
dismiss if they are “referred to in the complaint,” integral to the
claim(s), and if their authenticity is undisputed. Kaempe, 

 (citations omitted).

                                A.

     As alleged, the FBI employed Langeman as a Special
Agent for approximately 19 years, from 2002 until 2021.
Langeman characterized himself as a career civil servant and
alleged that he was a recipient of numerous positive
performance appraisals and awards and did not have a
disciplinary record. Nevertheless, on August 31, 2021,
Langeman “was summarily dismissed from the employment
rolls of the FBI effective on that date.” Langeman’s dismissal
stemmed from an investigation by the DOJ’s Office of
Inspector General (OIG) into the FBI’s alleged mishandling of
charges of sexual abuse against Nassar, who molested young
gymnasts placed in his care. The OIG issued a report (the OIG
Report) that did not identify Langeman by name but found that
he failed to follow basic investigative procedures. See OIG,
Investigation and Review of the Federal Bureau of
Investigation’s Handling of Allegations of Sexual Abuse by
Former USA Gymnastics Physician Lawrence Gerard Nassar
17–21 (July 2021), https://perma.cc/C5UZ-2GXW.

    According to the OIG Report, USA Gymnastics officials
met with three FBI agents, including Langeman, on July 28,
2015, at the FBI’s Indianapolis Field Office, to report
                              4
allegations that Nassar had sexually abused multiple gymnasts.
Following that meeting, the agents conducted only limited
follow-up, mishandled evidence, and failed to open a formal
investigation of the matter. The FBI’s Lansing Resident
Agency did not learn of the Nassar allegations until October
2016, after the Michigan State University Police Department
opened a separate investigation.

    Media outlets began reaching out to the FBI with inquiries
regarding its handling of the case after news broke of Nassar’s
crimes. The OIG initiated an investigation, which involved
over sixty witnesses and 1.5 million documents. Langeman
declined voluntary interviews with the OIG, invoking his Fifth
Amendment privilege against self-incrimination, but the OIG
was ultimately able to compel interviews with Langeman on
two occasions — first on September 3, 2020, and again on
February 4, 2021.

     The OIG published its report in July 2021, which heavily
focused on Langeman because he was one of three officials in
the Indianapolis Field Office who handled the Nassar
allegations. The OIG concluded that Langeman mishandled
evidence and failed to refer allegations through the proper
channels, which delayed the investigation by over a year and
led to the abuse of seventy or more athletes during the delay.
The OIG also concluded that Langeman made false statements
during both of his OIG-compelled interviews. Although the
report did not disclose Langeman’s identity, news sources and
this litigation have since identified the “Indianapolis SSA” in
the OIG Report as Michael Langeman. See, e.g., CNN, The
FBI failed Olympic gymnasts. What does that mean for
everyone else? (Sept. 16, 2021), https://perma.cc/9AJ8-7PYW;
see also Declaration of L. Stuart Platt, J.A. 65.
                                5
     On August 31, 2021, Langeman was summarily dismissed
from the FBI in a letter authored by Deputy Director Abbate.
Abbate stated that he had “carefully reviewed the findings of
the OIG” and concluded that Langeman had violated various
FBI Offense Codes. J.A. 22. Abbate further expressed that due
in part to Langeman’s misconduct, “a perpetrator was able to
victimize dozens of individuals,” and that Langeman’s actions
“severely and negatively impacted the reputation of the FBI
and diminished the trust and confidence of the American
people.” J.A. 22. Abbate concluded that he was “summarily
dismissing” Langeman from the FBI “[i]n accordance with
established policy, [and the] decision in this matter is final and
not subject to further appeal or consideration.” J.A. 22.

     A few months after his termination, Langeman sued
Appellees alleging that they deprived him of his Fifth
Amendment right to both a property interest in continued
employment and a liberty interest in his reputation, and that
such stigma to his reputation hampered future employment.
He also requested mandamus relief pursuant to 

. In support of his property interest claim, Langeman
alleged that he was entitled to adequate process pursuant to a
March 5, 1997 memorandum on Standards of Conduct
Disciplinary Matters — Revision of the FBI’s Disciplinary
Process issued by then FBI Director Louis J. Freeh (the Freeh
Memo), which set forth the following procedural protections
for FBI personnel:

       Any employee who is subject to a proposed
       sanction of suspension without pay for more
       than fourteen calendar days, demotion or
       dismissal, arising from the disciplinary process
       will be afforded the following procedural
       protections: 1) Thirty calendar days’ advance
       written notice of the proposed adverse action; 2)
                               6
       The opportunity to contact and use an attorney
       to assist in the disciplinary matter, . . . 3) An
       opportunity to review . . . the material which
       was relied on by the [Office of Professional
       Responsibility (OPR)] official in reaching a
       proposed determination that the employee has
       committed misconduct and of the appropriate
       sanction to be imposed; 4) An opportunity for
       the employee and his/her attorney to provide a
       written response to the proposed action . . . ; 5)
       Fifteen days’ notice of a hearing in which the
       employee and his/her attorney may make an
       oral presentation to a senior OPR official, after
       submission of any written response but before
       any action is taken . . . ; 6) A written decision
       from a senior FBI official . . . ; and 7) An appeal
       ....

Id. at ¶ 22 (J.A. 29–31). Freeh further noted:

       [t]hese protections will not apply to
       extraordinary cases which require immediate
       summary dismissal action. In such matters, I
       must preserve discretion to act without
       hesitation where the safety of the public, our
       fellow employees, national security interests or
       other compelling considerations may be at
       stake. However, to ensure that summary
       dismissal of an employee is exercised only
       under exigent and compelling circumstances,
       authority for that decision will not be delegated
       below the rank of Assistant Director.

Id. (J.A. 30–31). Langeman supported his liberty interest claim
with allegations that Appellees’ publication and dissemination
                                7
of untrue assertions of Langeman’s dishonesty and
unprofessional conduct to Congress, the news media, and the
public led to the stigmatization of his reputation and the loss of
future law enforcement employment opportunities.

                               B.

     Appellees moved to dismiss Langeman’s complaint for
failure to state a claim.2 Mot. To Dismiss at 2 (J.A. 42). They
attached as supporting documentation “the August 31, 2021
dismissal letter.” See Platt Declaration ¶ 2 (J.A. 65). They also
incorporated by reference the OIG Report, a “publicly
available” document. See id. at ¶ 3 (J.A. 65) (referencing
https://oig.justice.gov/sites/default/files/reports/21-093.pdf
(last visited Nov. 22, 2023)). We conclude that it is proper to
consider both the termination letter and the OIG Report to
resolve Appellees’ motion to dismiss. See Kaempe, 

.

                               C.

     With the above backdrop, the district court dismissed the
action in its entirety. Langeman, 

, at *4.
The district court observed that Langeman failed to state a
property interest claim because the Freeh Memo, that is “the
document on which he relies to establish ‘substantive
limitations on official discretion[,]’ in fact preserves the FBI
Director’s discretion to summarily terminate employees.” 

at *3 (citing Wash. Legal Clinic for the Homeless v. Barry, 

 (D.C. Cir. 1997)). The district court further
concluded that “[e]ven if Langeman has sufficiently pleaded

2
  Appellees also moved to dismiss for lack of jurisdiction but
withdrew that argument. See Langeman, 

, at *2
n.3 (citations omitted).
                                8
the existence of a liberty interest infringed by the FBI, he has
failed to allege facts on which the Court could find the FBI
denied him due process.” 

    Langeman timely appealed.

                                II.

     We have appellate jurisdiction pursuant to 

. The court reviews de novo the district court’s
dismissal of a complaint for failure to state a claim upon which
relief can be granted. See Stewart v. Nat’l Educ. Ass’n, 

 (D.C. Cir. 2006) (citing Barr v. Clinton, 

 (D.C. Cir. 2004)).

      “To survive a motion to dismiss, a complaint must have
‘facial plausibility,’ meaning it must ‘plead[ ] factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Hettinga v.
United States, 

 (D.C. Cir. 2012) (quoting
Ashcroft v. Iqbal, 

 (2009)). “In evaluating a
Rule 12(b)(6) motion, the Court must construe the complaint
‘in favor of the plaintiff, who must be granted the benefit of all
inferences that can be derived from the facts alleged.’” 

(quoting Schuler v. United States, 

 (D.C. Cir.
1979)). “Factual allegations, although assumed to be true, must
still ‘be enough to raise a right to relief above the speculative
level.’” 

 (quoting Bell Atl. Corp. v. Twombly, 

 (2007)). “But the Court need not accept inferences drawn
by plaintiff if those inferences are not supported by the facts set
out in the complaint, nor must the court accept legal
conclusions cast as factual allegations.” 

 (citing Kowal v.
MCI Commc’ns Corp., 

 (D.C. Cir. 1994)).
                               9
                              III.

                              A.

    Langeman contends that the Freeh Memo created a
constitutionally “protectable property interest in his continued
employment” which Appellees deprived him of without due
process of law. Compl. ¶ 17 (J.A. 28).

     For a property interest to be constitutionally protected by
procedural due process, a person must “have a legitimate claim
of entitlement to it,” beyond “an abstract need or desire.” Bd.
of Regents of State Colls. v. Roth, 

 (1972).
Such protectable property interests are derived from “existing
rules or understandings that stem from an independent source
such as state law.” 

 To create this legitimate claim of
entitlement, the independent source must place “substantive
limitations on official discretion.” Wash. Legal Clinic, 

 (citation and internal quotations omitted). In this
regard, the independent source must “contain ‘explicitly
mandatory language,’ i.e., specific directives to the
decisionmaker that if the regulations’ substantive predicates
are present, a particular outcome must follow.” Tarpeh-Doe v.
United States, 

 (D.C. Cir. 1990) (quoting Ky.
Dep’t of Corr. v. Thompson, 

 (1989)).

     Serving as an “expansion of procedural protections,” the
Freeh Memo set forth new procedures available to FBI
employees who were subject to “suspension without pay for
more than fourteen calendar days, demotion or dismissal.” J.A.
11. However, the Freeh Memo explicitly informed employees
that the new protocols did not apply to summary dismissals,
because Director Freeh expressly retained and preserved the
“discretion to act without hesitation.” J.A. 13. The Freeh
Memo thus does not contain “explicitly mandatory language”
                               10
limiting official discretion and does not create a protectable
property interest.

     Langeman posits that the district court erred because the
Freeh Memo contained substantive limits on official discretion
to terminate employment by requiring a predicate finding of
“exigent and compelling circumstances” before the occurrence
of summary dismissal. Appellant Br. 16 (referencing J.A. 13).
Langeman further contends that this limiting language was
sufficient to create a legitimate claim of entitlement by limiting
unfettered discretion. We think otherwise.

     Langeman’s interpretation is not supported by the plain
language of the sentence containing the phrase “exigent and
compelling circumstances.” See J.A. 13 (“However, to ensure
that summary dismissal of an employee is exercised only under
exigent and compelling circumstances, authority for that
decision will not be delegated below the rank of Assistant
Director.”). The reasonable interpretation of that sentence is
that the authority to exercise summary dismissals is reserved
for high-ranking officials in the FBI — i.e., Assistant Director
or higher — without providing any substantive limit on official
discretion. More importantly, the language does not contain
any “specific derivatives” to the referenced decisionmakers
that would indicate a “particular outcome must follow” from
predicate findings. Tarpeh-Doe, 

; see also Ky.
Dep’t of Corr., 

 (“The regulations at issue here,
however, lack the requisite relevant mandatory language. They
stop short of requiring that a particular result is to be reached
upon a finding that the substantive predicates are met.”).

     The Freeh Memo does not contain explicit mandatory
language, but instead reserves “expansive authority and
discretion” for FBI leadership to determine the circumstances
where an FBI employee may be summarily dismissed. See
                              11
Crooks v. Mabus, 

 (D.C. Cir. 2016). It
provides a list of circumstances in which summary dismissal is
warranted, including where “compelling considerations may be
at stake.”      J.A. 13 (emphasis added). That language
undoubtedly “stop[s] short of requiring that a particular result
is to be reached upon a finding that the substantive predicates
are met.” Ky. Dep’t of Corr., 

. In the absence
of substantive limitations on official discretion, the Freeh
Memo does not create a legitimate property interest sufficient
to state a claim under procedural due process. Therefore, the
district court did not err in dismissing Langeman’s property
interest claim.

                              B.

     Langeman contends he was deprived of a liberty interest
because his “unblemished reputation has been stigmatized with
false charges including dishonesty, his prospects for future
employment with the Defendants have been foreclosed, and his
prospects for other future public and private employment in
law enforcement and related professions have been hampered.”
Compl. ¶ 42 (J.A. 38).

     We have previously “recognized the possibility of an
action for deprivation of a liberty interest without due process
where an employee is terminated.” McCormick v. District of
Columbia, 

 (D.C. Cir. 2014). We further
recognized two theories of recovery: “reputation-plus” and
“stigma or disability.” O’Donnell v. Barry, 

 (D.C. Cir. 1998). Langeman fails to state a claim under
either theory.

                               1.

    A “reputation-plus” claim requires a plaintiff to identify an
                               12
act of defamation made in “conjunction” with an adverse
employment action. O’Donnell, 

. “[O]nly
defamation that is ‘accompanied by a discharge from
government employment . . .’ is actionable.” 

 (quoting
Mosrie v. Barry, 

 (D.C. Cir. 1983)). A
reputation-plus claim “rests on the fact that official criticism
will carry much more weight if the person criticized is at the
same time demoted or fired.” 

     Langeman alleged that Appellees defamed him by
accusing him of “dishonest and other unprofessional behavior”
and by publishing those accusations “in their official capacities
and through official channels, for review by the public at
large.” Compl. ¶ 41 (J.A. 37). Langeman further alleged that
Appellees disseminated the untrue charges of dishonesty “to
Congress, news media and the public.” Id. at ¶ 43 (J.A. 38).
He also indicated that this publication occurred both “[b]efore
and after” his dismissal. Id. at ¶ 41 (J.A. 37).

     Langeman’s allegations are insufficient to state a
reputation-plus claim because they do not establish that any
allegedly defamatory conduct accompanied his discharge from
government employment. Although Langeman alleges that
Appellees “publish[ed] their allegations in their official
capacities and through official channels,” he does not assert
facts demonstrating that the FBI actually revealed his identity
in any defamatory public statement. Compl. ¶ 41 (J.A. 37).
First, the OIG never referred to Langeman by name in the OIG
Report or otherwise disclosed his identity. Second, the fact that
the media reported on his termination does not establish that
Appellees made a “public disclosure” of any defamatory
statements. See Crooks, 

 (denying a reputation-
plus claim where adverse publicity “appear[ed] to have
emanated from . . . reports in a local newspaper that were not
attributed to the [government].”). And third, FBI Director
                              13
Wray’s testimony at a September 15, 2021 Senate Judiciary
hearing — in which he publicly identified Langeman as one of
the agents from the Indianapolis Field Office who mishandled
the Nassar investigation depicted in the OIG Report — is
privileged and is not actionable defamatory conduct. Director
Wray’s testimony about Langeman is privileged because it
occurred during a legislative proceeding and its substance was
sufficiently related to the purpose of the hearing. See Webster
v. Sun Co., 

 (D.C. Cir. 1984) (citing Restatement
(Second) of Torts § 590A (Am. L. Inst. 1977)); see also
Dereliction of Duty: Examining the Inspector General’s Report
on the FBI’s Handling of the Larry Nassar Investigation:
Hearing Before the S. Comm. on the Judiciary, 117th Cong.
(2021). By reason of the legislative privilege, Director Wray’s
testimony does not support either a common law claim for
defamation or a due process claim that requires “defamation in
the course of the termination of employment.” O’Donnell, 

 (citation omitted); see also 

 (“Requiring a
demotion or firing to trigger a defamation claim also helps to
limit the scope of permissible due process claims to a small set
of truly serious claims, thus limiting the constitutionalization
of tort law.”). As a result, Langeman’s reputation-plus claim
fails because he cannot establish that he suffered defamation
that accompanied his dismissal. Therefore, the district court
did not err in dismissing this claim.

                               2.

    Moving on to Langeman’s second theory of recovery for
deprivation of a protected liberty interest, a “stigma or
disability” claim is predicated on a “combination of an adverse
employment action” and “a stigma or other disability that
foreclosed [the plaintiff’s] freedom to take advantage of other
employment opportunities.” O’Donnell, 

.
The plaintiff must allege that this combination either “formally
                               14
or automatically exclude[d] [plaintiff] from work on some
category of future [agency] contracts or from other government
employment opportunities” or had the effect of broadly
“precluding [plaintiff] from pursuing her chosen career.”
Kartseva v. Dep’t of State, 

 (D.C. Cir.
1994). We have further required that there be some statement
of an attempt to obtain subsequent employment and a rejection
for the job resulting from the alleged stigma or disability. See
Orange v. District of Columbia, 

 (D.C. Cir.
1995) (dismissing stigma claim where plaintiffs had yet to
apply for jobs in their chosen careers); O’Donnell, 

 (dismissing stigma claim where plaintiff was employed
elsewhere but within his chosen career).

     The allegations in Langeman’s complaint fail to
demonstrate the automatic exclusion or broad preclusion
outlined in Kartseva. Langeman may very well be excluded
from working with the FBI again, but it does not necessarily
follow that he would be unable to find employment with any
other federal agency indefinitely; nor is any such exclusion or
explicit prohibition present in his dismissal letter. See J.A. 21–
23. The complaint is similarly lacking in identifying in what
ways Langeman is broadly precluded from pursuing his chosen
career or foreclosed from public and private employment in
law enforcement. Finally, Langeman does not allege that he
attempted to obtain employment elsewhere and was rejected
because of Appellees’ alleged conduct. Therefore, Langeman
fails to articulate allegations that sufficiently support a stigma
claim.

   Accordingly, the district court did not err in dismissing
Langeman’s stigma claim.
                               15
                               C.

     Having concluded that Langeman failed to sufficiently
plead deprivation of a property interest or liberty interest
without due process, we need not and do not reach the issue of
the adequacy of process which Langeman was afforded.

                               D.

    Pursuant to 

, Langeman requested
mandamus relief “[i]f no other remedy is available through
which [he] can be properly granted due process and through
which the unlawful dismissal may be rescinded.” Compl. ¶ 49
(J.A. 39).

     “Mandamus is available only if: ‘(1) the plaintiff has a
clear right to relief; (2) the defendant has a clear duty to act;
and (3) there is no other adequate remedy available to
plaintiff.’” Power v. Barnhart, 

 (D.C. Cir.
2002) (citations omitted). We need not discuss all these
elements because Langeman cannot show a clear right to relief
due to his deficient due process allegations. Accordingly, the
district court did not err in finding that mandamus relief was
unavailable to Langeman. See Langeman, 

,
at *4 n.6 (citing In re Cheney, 

 (D.C. Cir.
2005) (en banc)).

                             *****
     Accordingly, for the foregoing reasons, we affirm the
district court’s dismissal of Michael W. Langeman’s complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim.

                                                    So ordered.