     Case: 16-20567   Document: 00513947822    Page: 1   Date Filed: 04/11/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fif h Circuit
                                No. 16-20567                           FILED
                                                                   April 11, 2017
                                                                  Lyle W. Cayce
JOHN DOE,                                                              Clerk

             Plaintiff–Appellant,

v.

UNITED STATES OF AMERICA,

             Defendant–Appellee.




                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
OWEN, Circuit Judge:
      John Doe filed suit against the United States in the Southern District of
Texas, asserting that the Government violated his Fifth Amendment due
process rights by accusing him of a crime during the course of a criminal
proceeding in which he was not named a defendant. Doe sought a declaratory
judgment that his Fifth Amendment rights had been violated, expungement of
court records, and other forms of nonmonetary relief.       The district court
granted a motion to dismiss filed by the Government, holding that the action
was barred by limitations. We affirm.
    Case: 16-20567    Document: 00513947822      Page: 2   Date Filed: 04/11/2017



                                 No. 16-20567
                                        I
      In 2008, the Government filed a Criminal Information (the Information),
charging a defendant to whom we will refer as Roe under 18 U.S.C. § 371 with
conspiracy to violate the Foreign Corrupt Practices Act (FCPA) and conspiracy
to commit mail and wire fraud for actions that occurred while Roe was “an
officer/or director of [ABC Corp.] and its successor company, [XYZ Corp.]” As
the basis of the mail and wire fraud count, the Government asserted that Roe
and a “Consultant” engaged in a kickback scheme. To effectuate this scheme,
the Government alleged, Roe would cause ABC Corp. and XYZ Corp. to enter
into consulting contracts with the Consultant or companies controlled by the
Consultant; in return, the Consultant would pay a portion of his consulting fee
to Roe.
      In the course of explaining the kickback scheme, the Government noted
that the Consultant
      was a citizen of the United States and a citizen of [a foreign country
      specifically identified]. From in or about 1977, until in or about
      1988, [] Consultant was a salesperson employed by [ABC Corp.]
      responsible for [projects abroad]. In or about 1988, [] Consultant
      resigned from [ABC Corp.] and became a consultant to [ABC Corp.]
      and subsequently [XYZ Corp.], among other firms. At various
      times after 1988, [] Consultant used corporate vehicles for his
      consulting business.

The Government identified two of the Consultant’s corporate vehicles by name
as, respectively, the “[First] Consulting Company” and the “[Second]
Consulting Company” and specified the locations of projects—and in one case,
the specific project—in which the Consultant allegedly participated in the
kickback scheme.
      Roe pleaded guilty to both conspiracy charges. In the plea agreement,
the Government described the factual basis for the guilty plea by largely
reiterating the allegations in the Information. However, the Government
                                        2
    Case: 16-20567    Document: 00513947822       Page: 3     Date Filed: 04/11/2017



                                No. 16-20567
specifically named one of the foreign projects to which it had previously
referred more generally in the Information. During the plea hearing, the
Government also noted that its “investigation is broad and [that] there are
[other] potential defendants, targets, both here and abroad” and again
referenced that the Consultant is “a dual U.S. and foreign national.”
      Doe maintains that the Government’s description of the Consultant
identified him “in all respects except by name” because “there are few
contractors and customers that comprise” the particular industry in which he
worked, and “no other person in the industry possesses these same personal
and biographical characteristics.” Doe alleges that his clients were able to
identify him from this description, causing some clients to cease engaging Doe
and his companies for consulting and ultimately costing him “many millions of
dollars in consulting fees.” He also asserts that he “was unable to obtain
further consulting work[,] . . . which was a direct result of the prosecutor’s
public statements during the [Roe] plea hearing and elsewhere that the
[Government’s] investigation of the [] Consultant and others was ‘ongoing.’”
      Roe’s sentencing did not occur until 2012.            During the sentencing
hearing,   the   Government    explained    the     basis     for   its   sentencing
recommendation. In pertinent part, it stated that Roe’s “involvement in a very
substantial kickback scheme with another consultant in which he stole
upwards of $11 million from [XYZ Corp.] is certainly something that factor[ed]
into [its] recommendation.”    In response to the district court’s question of
whether the kickback scheme benefitted XYZ Corp., the Government noted
that the scheme benefitted XYZ Corp. “in the sense that the consultants [sic]
that [Roe] was working with was hired to engage in bid-rigging” and obtained
projects for XYZ Corp. Doe claims that these references to the consultant
involved in the kickback scheme triggered renewed interest from colleagues
and former clients.    He also alleges that, at this time, he experienced
                                      3
     Case: 16-20567       Document: 00513947822         Page: 4    Date Filed: 04/11/2017



                                      No. 16-20567
difficulties conducting his financial affairs in his native country because
authorities believed that Doe was the subject of a criminal investigation in the
United States.
       In 2015, Doe filed suit in the Southern District of Texas, contending that
the Government violated his right to due process by publicly accusing him of a
crime in a criminal proceeding without providing him a public forum for
vindication. The relief he sought included: a declaration that the Government
violated his Fifth Amendment right to due process; an order directing the Clerk
of the Court to “obliterate and strike” all references to him from the publicly
filed documents in Roe’s criminal proceeding; and an order directing the
Government to “obliterate and strike from the [Department of Justice] website,
and from any other record available to the public, all references” to him in
documents relating to or publicly filed in Roe’s criminal proceeding.
       The Government moved to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1), arguing that sovereign immunity barred Doe’s suit, and
pursuant to Rule 12(b)(6), contending that on the face of the Complaint, Doe’s
action was barred by limitations. The district court concluded that sovereign
immunity did not bar Doe’s claim and, therefore, declined to dismiss for lack of
subject-matter jurisdiction. But the district court held that Doe’s claim for
relief based on statements made in 2008 was time-barred by 28 U.S.C.
§ 2401(a). 1 The district court then considered the statements made by the
prosecutor at the sentencing hearing in 2012 in isolation from those made in
2008 and held that Doe had not alleged a plausible due process violation. The
statements at the sentencing hearing, the district court concluded, were devoid
of “potentially identifying information” and furthered the Government’s


       1  28 U.S.C. § 2401(a) (providing, in pertinent part: “[e]xcept as provided by chapter
71 of title 41, every civil action commenced against the United States shall be barred unless
the complaint is filed within six years after the right of action first accrues.”).
                                             4
     Case: 16-20567        Document: 00513947822          Page: 5     Date Filed: 04/11/2017



                                        No. 16-20567
legitimate interest in divulging the details of the case against Roe at
sentencing. The district court determined sua sponte that efforts to amend
Doe’s complaint to set forth additional facts to support equitable tolling of
limitations would be futile and dismissed the suit with prejudice.                          Doe
appealed.
                                               II
       The district court had jurisdiction under 28 U.S.C. § 1331 because Doe’s
claims arise under the Fifth Amendment and presented a federal question. 2
However, because Doe sued the United States, the district court lacked subject
matter jurisdiction unless there has been a waiver of sovereign immunity. 3 “A
waiver of sovereign immunity ‘cannot be implied but must be unequivocally
expressed.’” 4 “[A] waiver of the Government’s sovereign immunity will be
strictly construed, in terms of its scope, in favor of the sovereign.” 5 Whether
the Government is entitled to sovereign immunity from suit presents a
question of law that we review de novo. 6
                                               A
       In arguing that sovereign immunity is not implicated, Doe relies on
United States v. Briggs, in which this court held that “[s]overeign immunity
does not bar . . . relief” when an unindicted individual requests to have his or
her name expunged after being accused of a crime in the indictment but is not


       2  28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”).
        3 See, e.g., United States v. Mitchell, 445 U.S. 535, 538 (1980) (“It is elementary that

‘[t]he United States, as sovereign, is immune from suit save as it consents to be sued . . ., and
the terms of its consent to be sued in any court define that court’s jurisdiction to entertain
the suit.’”) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)).
        4 Id. (quoting United States v. King, 395 U.S. 1, 4 (1969)).
        5 Lane v. Pena, 518 U.S. 187, 192 (1996) (citing United States v. Williams, 514 U.S.

527, 531 (1995) (noting that in examining a purported waiver of sovereign immunity, the
Court will “constru[e] ambiguities in favor of immunity”)).
        6 See Alabama–Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 488 (5th Cir.

2014).
                                               5
    Case: 16-20567          Document: 00513947822           Page: 6     Date Filed: 04/11/2017



                                         No. 16-20567
provided a forum for vindication. 7 We concluded that a request to expunge “in
the circumstances . . . presented” in Briggs is “no more subject to the defense
of sovereign immunity than the filing of a bill of particulars or the raising of
an objection . . . by the named defendants.” 8
      The Government asserts that when 5 U.S.C. § 702, which is part of the
Administrative Procedure Act (APA), was amended, Congress intended to
preclude proceedings like those in Briggs. The current text of § 702 is set forth
in the margin. 9 A 1976 amendment, enacted the year after Briggs was decided,
added, in relevant part, the second sentence of § 702. 10 We discern no intent
from the text of § 702 to foreclose a claim like that asserted in Briggs that is
pursued in an ongoing criminal proceeding. The Government was already a
party to the proceeding in Briggs because it had initiated the criminal
prosecution. 11      Although it was alleged in Briggs that the Government had



      7 514 F.2d 794, 795, 808 (5th Cir. 1975).
      8 Id. at 808.
      9 5 U.S.C. § 702 provides:


                A person suffering legal wrong because of agency action, or adversely
                affected or aggrieved by agency action within the meaning of a relevant
                statute, is entitled to judicial review thereof. An action in a court of the
                United States seeking relief other than money damages and stating a
                claim that an agency or an officer or employee thereof acted or failed to
                act in an official capacity or under color of legal authority shall not be
                dismissed nor relief therein be denied on the ground that it is against
                the United States or that the United States is an indispensable party.
                The United States may be named as a defendant in any such action,
                and a judgment or decree may be entered against the United States:
                Provided, That any mandatory or injunctive decree shall specify the
                Federal officer or officers (by name or by title), and their successors in
                office, personally responsible for compliance. Nothing herein (1) affects
                other limitations on judicial review or the power or duty of the court to
                dismiss any action or deny relief on any other appropriate legal or
                equitable ground; or (2) confers authority to grant relief if any other
                statute that grants consent to suit expressly or impliedly forbids the
                relief which is sought. (first emphasis added).
      10   See Act of Oct. 21, 1976, Pub.L. No. 94-574, 90 Stat. 2721 (1976).
      11   See Briggs, 514 F.2d at 797.
                                                 6
     Case: 16-20567        Document: 00513947822          Page: 7     Date Filed: 04/11/2017



                                        No. 16-20567
committed a constitutional violation, no relief was sought from the
Government as a consequence. 12 The unindicted injured party invoked the
court’s authority to manage and expunge its own records.                        That did not
implicate the Government’s sovereign immunity from suit.
          The decision in Briggs, as well as its progeny in our Circuit, 13 addressed
a situation procedurally distinct from the present action. Doe has initiated a
separate, civil action, “hal[ing] the federal government into a court
proceeding” 14 as the named defendant.                  There is no ongoing criminal
proceeding to which the Government is already a party, though the new action
has been brought in the same court in which Roe was convicted, and Doe seeks
expungement of those criminal court records, in addition to other forms of
relief.
          A court seemingly has the power to manage its records, even though the
proceeding that generated those records has concluded. 15                      A request for
expungement or sealing of court records would not appear to implicate
sovereign immunity, but we are not called upon to address that question in
this case. Doe has directly sued the United States, and Doe seeks relief beyond
expungement, including a declaration that the Government violated his Fifth
Amendment rights when it accused him of a crime in the Roe criminal
prosecution.



           Id. at 797, 808 (stating that the petitioners were “seeking entry of an order
          12

expunging the references to them in Count One of the indictment” and ordering that the
Clerk provide this relief).
        13 See United States v. Holy Land Found. for Relief & Dev., 624 F.3d 685 (5th Cir.

2010); In re Smith, 656 F.2d 1101 (5th Cir. Unit A Sept. 1981).
        14 Lewis v. Hunt, 492 F.3d 565, 570 (5th Cir. 2007).
        15 See generally Qureshi v. United States, 600 F.3d 523, 525 (5th Cir. 2010) (“That the

court loses jurisdiction over the litigation does not, however, deprive the district court of its
inherent supervisory powers. After the termination of an action, a court may nevertheless
‘consider collateral issues.’”) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395
(1990)).
                                               7
    Case: 16-20567             Document: 00513947822       Page: 8    Date Filed: 04/11/2017



                                           No. 16-20567
         Because the Government has been sued, subject matter jurisdiction is at
issue, and we must resolve that issue “prior to addressing the merits” of any
claims. 16 The Government moved to dismiss all of Doe’s claims, asserting that
they are barred by sovereign immunity and arguing that the only potential
waiver of sovereign immunity is contained in 5 U.S.C. § 702. The Government
contends that there has been no “agency action” within the meaning of 5 U.S.C.
§ 551(13), and that “agency action” as defined in § 551(13) is required in order
for the waiver in § 702 to apply. The district court denied that motion but
dismissed on the basis of limitations. However, if subject matter jurisdiction
is lacking, this court must dismiss, without reaching the limitations issues.
         As an initial matter, the Government does not contend that the
Department of Justice (DOJ) is not an “agency.” We note that 5 U.S.C. § 551
defines “agency” as “each authority of the Government of the United States,
whether or not it is within or subject to review by another agency,” but it also
lists a number of exclusions from the term “agency,” including the courts of the
United States and Congress. 17 The DOJ is not among these exclusions. A
similar definition of “agency” and a similar list of exclusions appear in 5 U.S.C.
§ 701. The DOJ is listed as an “Executive department[]” in 5 U.S.C. § 101, and
an “Executive department” is included as an “Executive agency” in 5 U.S.C.
§ 105. It therefore appears that the DOJ may be an agency with regard to
certain acts or failures to act, though 5 U.S.C. § 701(a)(2) excludes from
Chapter 7 of the APA “agency action [that] is committed to agency discretion
by law.”
         Congress amended § 702 in 1976 to allow “[t]he United States [to] be
named as a defendant” when nonmonetary relief is sought and the plaintiff’s


         16   See Alabama–Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 487 (5th Cir.
2014).
         17   5 U.S.C. § 551(1)(A), (B).
                                                 8
     Case: 16-20567         Document: 00513947822           Page: 9      Date Filed: 04/11/2017



                                         No. 16-20567
claim is that “an agency or an officer or employee thereof acted or failed to act
in an official capacity or under color of legal authority.” 18 The intended effect
of the amendment was to “broaden the avenues for judicial review of agency
action by eliminating the defense of sovereign immunity in cases covered by
the amendment.” 19
       At least two Circuit Courts of Appeals have held that the second sentence
of § 702 waives sovereign immunity for all actions seeking equitable,
nonmonetary relief against an agency, even if there has been no “agency
action” within the meaning of the APA. 20 However, our court has held that
sovereign immunity is not waived by § 702 unless there has been “agency
action,” as that term is defined in § 551(13). 21 Agency action is statutorily
defined to “include[] the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure to act.” 22
       Doe maintains that he has suffered a “sanction.”                       The Government
asserts that it is not a “sanction” for a governmental agency to make


       18 5 U.S.C. § 702.
       19 Bowen v. Massachusetts, 487 U.S. 879, 891-92 (1988).
       20 See Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006) (holding that § 702’s waiver of

sovereign immunity applies even when there has been no “agency action,” reasoning that the
second sentence of that section “does not use either the term ‘final agency action’ or the term
‘agency action’ . . . . [n]or does the legislative history refer to either limitation” and concluding
that declarations in the legislative history “make clear that no such limitations were
intended”); Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525 (9th Cir. 1989)
(holding “[w]e cannot agree with the [Immigration and Naturalization Service] that § 702’s
wavier of sovereign immunity is limited to instances of ‘agency action’ as technically defined
in § 551(13)”; concluding that “[n]othing in the language of the amendment [to § 702] suggests
that the waiver of sovereign immunity is limited to claims challenging conduct falling in the
narrow definition of ‘agency action’”; and holding that “on its face, the 1976 amendment to
§ 702 waives sovereign immunity in all actions seeking relief from official misconduct except
for money damages”).
       21 Alabama–Coushatta Tribe, 757 F.3d at 489 (“Section 702 contains two separate

requirements for establishing a waiver of sovereign immunity. First the plaintiff must
identify some ‘agency action’ affecting him in a specific way. . . . This ‘agency action’ for the
purposes of § 702 is set forth by 5 U.S.C. § 551(13).” (citations omitted)).
       22 5 U.S.C. § 551(13); see id. §701(b)(2) (providing that the term “agency action” “ha[s]

the meaning[] given [it] by section 551”).
                                                 9
    Case: 16-20567        Document: 00513947822          Page: 10     Date Filed: 04/11/2017



                                       No. 16-20567
statements that “allegedly harm a person’s reputation or standing in the
business community,” citing a 1948 decision from the D.C. Circuit Court of
Appeals. 23 The D.C. Circuit has called that decision into question at least
twice, 24 observing that “‘an agency intent on penalizing a party through
adverse publicity, especially false or unauthorized publicity, might well merit
a review of its action’ as a sanction.” 25
       The term “sanction” is defined in 5 U.S.C. § 551(10), 26 and includes
“withholding of relief.” 27       The definition of “agency action” includes “the
equivalent or denial” of “relief.” 28 “[A]gency action” also includes “failure to
act,” and the Supreme Court has explained that “‘failure to act,’ is in our view
properly understood as a failure to take an agency action—that is, a failure to
take one of the agency actions (including their equivalents) earlier defined in
§ 551(13).” 29 As noted, the definition of “agency action” in § 551(13) includes
“relief.” The term “relief” is defined in § 551(11)(A) to “include[] the whole or a
part of an agency . . . (A) grant of . . . remedy.” 30 In accusing Doe of a crime
without providing a public “forum in which [Doe could seek] to vindicate his
rights,” 31 namely a hearing or trial in a criminal court proceeding in which Doe



       23 See Hearst Radio, Inc. v. FCC, 167 F.2d 225, 226-27 (D.C. Cir. 1948) (holding that
the broad definition of “sanctions” in 5 U.S.C. § 551 did not include disparaging or false
statements about the plaintiff in a Federal Communications Commission publication).
       24 See Trudeau, 456 F.3d at 189 (“We have twice questioned ‘the continued validity of

the Hearst Radio decision.’”) (quoting Impro Prods., Inc. v. Block, 722 F.2d 845, 849 (D.C. Cir.
1983) and citing Indus. Safety Equip. Ass’n, Inc. v. EPA, 837 F.2d 1115, 1118 (D.C. Cir. 1988)).
       25 Trudeau, 456 F.3d at 189 (quoting Indus. Safety Equip., 837 F.2d at 1119)).
       26 5 U.S.C. § 551(10); see id. § 701(b)(2) (providing that the term “sanction” “ha[s] the

meaning[] given [it] by section 551.”).
       27 § 551(10)(B).
       28 § 551(13).
       29 Norton v. S. Utah Wilderness All., 542 U.S. 55, 62 (2004).
       30 5 U.S.C. § 551(11)(C).
       31 In re Smith, 656 F.2d 1101, 1106 (5th Cir. Unit A Sept. 1981) (“[N]o legitimate

governmental interest is served by an official public smear of an individual when that
individual has not been provided a forum in which to vindicate his rights.”).
                                              10
    Case: 16-20567       Document: 00513947822         Page: 11     Date Filed: 04/11/2017



                                      No. 16-20567
could defend the serious charges against him, the Government failed to act and
failed to provide relief or a remedy to Doe. It accused Doe of a crime without
indicting him, without introducing evidence to prove the allegations, and
without allowing Doe to challenge that evidence and present evidence of his
own.
                                            III
       The district court dismissed Doe’s claims under Rule 12(b)(6), concluding
they were facially barred by limitations, 32 and we review de novo a dismissal
for failure to state a claim. 33 “To 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.” 34 In making this determination, we may consider “the
complaint, its proper attachments, ‘documents incorporated into the complaint
by reference, and matters of which a court may take judicial notice.’” 35
       The district court observed that our court has “not addressed which
statute of limitations period applies to a due process claim seeking
expungement of an accusation,” and therefore “adopt[ed] the general statute of
limitation provision of 28 U.S.C. § 2401(a), which provides that ‘every civil
action commenced against the United States shall be barred unless the
complaint is filed within six years after the right of action first accrues.’” 36
Neither party has argued that this statute is inapplicable, and we will
therefore assume, without deciding, that it governs all of Doe’s claims.




       32 FED. R. CIV. P. 12(b)(6).
       33 Haase v. Countrywide Home Loans, Inc., 748 F.3d 624, 630 (5th Cir. 2014).
       34 Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
       35 Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio

Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).
       36 28 U.S.C. § 2401(a).

                                             11
    Case: 16-20567       Document: 00513947822          Page: 12     Date Filed: 04/11/2017



                                       No. 16-20567
        The district court concluded that § 2401(a) barred relief for the
statements made in the Information, the plea agreement, and the plea hearing,
each of which occurred in 2008. We will affirm that decision only if “it is
evident from the plaintiff’s pleadings that the action is barred and the
pleadings fail to raise some basis for tolling or the like.” 37
                                              A
       Subject to limited exception, 28 U.S.C. § 2401(a) bars an action “unless
the complaint is filed within six years after the right of action first accrues.”
“[I]t is ‘the standard rule’” that a cause of action first accrues “when the
plaintiff has a ‘complete and present cause of action.’” 38 Stated another way,
accrual occurs “when ‘the plaintiff can file suit and obtain relief.’” 39
       Doe argues that he did not have a complete and present cause of action
until he “was affirmatively denied a forum for vindication,” that is, until either
the Government notified him that he would not be indicted for his alleged
involvement in the kickback scheme or the Government would be barred by
limitations from prosecuting Doe for his alleged criminal activity. However,
we have held that a Fifth Amendment claim seeking expungement of district
court records was cognizable even though prosecution of the party seeking
expungement might yet occur.             In In re Smith, we ordered expungement
despite noting that “[o]ur opinion will in no way interfere with any legitimate
investigation” of the party who obtained expungement, 40 and in United States


       37 Thompson v. Deutsche Bank Nat’l Tr. Co., 775 F.3d 298, 302 (5th Cir. 2014) (quoting
Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003)).
       38 Wallace v. Kato, 549 U.S. 384, 388 (2007) (quoting Bay Area Laundry & Dry

Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)).
       39 Id. (quoting Bay Area Laundry, 522 U.S. at 201); see also Herr v. U.S. Forest Serv.,

803 F.3d 809, 818 (6th Cir. 2015) (“The limitations period in § 2401(a) begins to run when a
party’s ‘right of action first accrues’–‘as soon as (but not before) the person challenging the
agency action can institute and maintain a suit in court.’” (quoting Spannaus v. DOJ, 824
F.2d 52, 56 (D.C. Cir. 1987))).
       40 656 F.2d 1101, 1107 (5th Cir. Unit A Sept. 1981).

                                             12
    Case: 16-20567        Document: 00513947822           Page: 13   Date Filed: 04/11/2017



                                       No. 16-20567
v. Briggs, we granted relief despite acknowledging the possibility of a later
indictment. 41 Vindication of “[t]he fundamental requirement of due process is
the opportunity to be heard ‘at a meaningful time and in a meaningful
manner.’” 42 We note that, although the foregoing statement was made in a
different context, the present case exemplifies the need for a claim such as
Doe’s to be brought at a meaningful time. The 2008 records that Doe seeks to
expunge have been public for many years, and the harm to Doe commenced in
2008.
        In cases like the present one, the accrual of a right to relief is not deferred
until it is clear that no indictment will or can ever issue. The fact that the
Government        might     have     rendered       the     “extraordinary      remedy      of
expungement” 43 unwarranted had it indicted Doe before he brought his claim 44
does not affect the accrual of such a claim. The statute of limitations is not
deferred until the power to indict is legally beyond the Government’s reach or
the Government affirmatively states that it will not indict. Doe’s claim that
the Fifth Amendment was violated when “government charges [were] made
with no opportunity to defend” 45 accrued when the Government purportedly
accused him of criminal activity without indicting him.




        41  514 F.2d 794, 799 (5th Cir. 1975) (noting that an acquittal of the alleged co-
conspirators “does not bar later indictments against [the parties seeking relief]”).
        42 Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380

U.S. 545, 552 (1965)).
        43 Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 701 (5th Cir. 1997).
        44 United States v. Int’l Harvester Co., 720 F.2d 418, 419 (5th Cir. 1983) (“We are

persuaded that the trial court did not abuse its discretion [by refusing expungement] because
the base principle of our expungement cases has not been violated, in that [the party seeking
relief] can defend the charge in an earlier filed and related case in which he is a charged
defendant.”); cf. Powell v. Florida, 579 F.2d 324, 330 (5th Cir. 1978) (holding that a hearing
that comports with due process can eliminate the availability of relief for an earlier due
process violation); see generally Dailey v. Vought Aircraft Co., 141 F.3d 224, 232-33 (5th Cir.
1998) (Smith, J., dissenting) (explaining the “cure doctrine”).
        45 Int’l Harvester Co., 720 F.2d at 420.

                                             13
    Case: 16-20567       Document: 00513947822         Page: 14     Date Filed: 04/11/2017



                                      No. 16-20567
                                             B
       Doe argues that the due process violation is a “continuing” one, and that
the statute of limitations should be equitably tolled until the Government
“afford[s] the opportunity to contest the . . . criminal allegations against him.”
Although courts may equitably toll § 2401(a), 46 they do so “sparingly.” 47
Discrete actions, even if “serial,” 48 “are not entitled to the shelter of the
continuing violation doctrine.” 49
       Generally, in determining if equitable tolling is appropriate, we focus the
inquiry “on what event, in fairness and logic, should have alerted the average
lay person to act to protect his rights.” 50 As we have explained above, when
Doe was “named” as a criminal actor without being indicted, the harm
occurred. Doe admits that there was “extensive publicity about the [Roe] guilty
plea” and Doe asserts that he received calls from clients and colleagues
“[i]mmediately” after the plea proceedings “ask[ing] about the [G]overnment’s
allegations that he had paid kickbacks to [Roe].” But even absent these effects,
when “named,” Doe’s cause of action had accrued, and he could have initiated
expungement proceedings. To the extent that Doe’s failure to initiate suit
within the limitations period was the result of his mistaken belief that he could
not file suit because his claim had not yet accrued, a mistake of this nature
does not provide a valid basis for tolling. 51 The continuing violation doctrine




       46 Clymore v. United States, 217 F.3d 370, 374 (5th Cir. 2000).
       47 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
       48 Id. at 114.
       49 Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003).
       50 Messer v. Meno, 130 F.3d 130, 135 (5th Cir. 1997) (quoting Glass v. Petro–Tex Chem.

Corp., 757 F.2d 1554, 1561 (5th Cir. 1985)).
       51 Wion v. Quarterman, 567 F.3d 146, 149 (5th Cir. 2009) (“[A] mistaken interpretation

of the law is not a ‘rare and exceptional circumstance’ that justifies equitable tolling.”
(quoting Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999))).
                                             14
   Case: 16-20567    Document: 00513947822         Page: 15   Date Filed: 04/11/2017



                                    No. 16-20567
is inapplicable. The statute of limitations bars review of the statements made
in 2008 as well as those in 2012.
                                        IV
      The district court’s dismissal of claims pertaining to the statements
made by the prosecutor at the 2012 sentencing hearing can be affirmed on an
additional basis. For purposes of our review of the dismissal of the Complaint,
we accept as true the allegation that the 2012 statements “spawned renewed
focus on [Doe] and resulted in additional inquiries from former clients and
colleagues . . . regarding whether he had been formally charged with [the]
criminal offenses” described during the sentencing hearing and affected his
ability to open bank accounts in his native country.
      The Government provided information during the course of Roe’s
sentencing hearing to explain the nature of the offense and the reason for its
sentencing recommendation. The Government stated that Roe was “involve[d]
in a very substantial kickback scheme with another consultant” to
“distinguish[]” the sentence the Government was seeking from the sentences
received by others involved in the scheme. The second statement was that the
kickback scheme benefitted XYZ Corp. “in the sense that the consultants [sic]
that [Roe] was working with was hired to engage in bid-rigging” to obtain
business for XYZ Corp.
      The references to a “consultant” during the sentencing hearing contained
minimal identifying information. To the extent that Doe contends it was only
in conjunction with the 2008 statements that the 2012 reference to a
“consultant” made him identifiable, he seeks to expand the limitations period
to include the 2008 statements. That is impermissible. We therefore consider
only the 2012 references, standing alone, and conclude that references as
nondescript as those to which Doe objects do not violate due process. Doe has
not alleged a plausible due process violation.
                                        15
    Case: 16-20567       Document: 00513947822          Page: 16     Date Filed: 04/11/2017



                                       No. 16-20567
       We do not reach the question of whether, when balancing the
governmental       interests    against     the   rights    of   the    individual, 52    the
Government’s interest in referring to a “consultant” for purposes of providing
information about Roe to the sentencing court were paramount. We have
discussed in other decisions circumstances that might permit the provision of
identifying information, such as the need to identify an unindicted co-
conspirator for purposes of Federal Rule of Evidence 801(d)(2)(E), and we have
discussed measures that can be taken to shield the identity, and to protect the
rights, of an unindicted coconspirator. 53 At a minimum, protective measures
should have been employed in the Roe prosecution in 2008. But because Doe
delayed more than six years to seek redress, limitations bars his complaint at
this late date regarding identifying information that has been publicly
available since 2008. It is only when the identifying information available
since 2008 is considered that Doe has a plausible claim that he was “named”
in 2012. The references in 2012 were not, in and of themselves, identifying.
                                             V
       Although we ordinarily review the denial of leave to amend for abuse of
discretion, 54 if the denial was predicated solely on futility, as here, “we apply a
de novo standard of review identical, in practice, to the standard used for
reviewing a dismissal under Rule 12(b)(6).” 55 Doe seeks leave “to articulate
more specifically in an amended complaint the significance of sealed charges



       52 See In re Smith, 656 F.2d 1101, 1106 (5th Cir. Unit A Sept. 1981); United States v.
Briggs, 514 F.2d 794, 804 (5th Cir. 1975) (observing that “due process requirements vary
according to particular circumstances” and that “[t]he role the sovereign plays and the nature
of the governmental interest are weighed against the harm or loss resulting to the
individual”).
       53 See United States v. Holy Land Found. for Relief & Dev., 624 F.3d 685, 688, 690-91

(5th Cir. 2010); Smith, 656 F.2d at 1105-07; Briggs, 514 F.2d at 804-06.
       54 Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004).
       55 City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010).

                                             16
   Case: 16-20567     Document: 00513947822        Page: 17   Date Filed: 04/11/2017



                                    No. 16-20567
to his Due Process claim, and the role of any such charges in the equitable
tolling of the limitations period.” As we stated previously, the possibility of a
future criminal proceeding did not prevent Doe from filing suit and obtaining
relief, and the continuing violation doctrine is inapplicable. Articulating more
specific facts to support these claims would be futile.
                                *        *         *
      For the foregoing reasons, we AFFIRM the district court’s judgment
dismissing Doe’s case.




                                        17
