 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 12, 2012            Decided February 8, 2013

                       No. 11-5298

                 PETER JAMES ATHERTON,
                       APPELLANT

                             v.

   DISTRICT OF COLUMBIA OFFICE OF THE MAYOR, ET AL.,
                     APPELLEES



        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:04-cv-00680)


    Benjamin R. Dryden argued the cause for appellant. With
him on the briefs was David T. Ralston, Jr.

    Richard S. Love, Senior Assistant Attorney General for
the District of Columbia, argued the cause for appellee
Suzanne Bailey-Jones. With him on the brief were Irvin B.
Nathan, Attorney General for the District of Columbia, Todd
S. Kim, Solicitor General, and Donna M. Murasky, Deputy
Solicitor General.

    Alan Burch, Assistant United States Attorney, argued the
cause for appellee Daniel Zachem. With him on the brief
                              2
were Ronald C. Machen, Jr., United States Attorney, and R.
Craig Lawrence, Assistant United States Attorney.

    Before: ROGERS, BROWN, and KAVANAUGH, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge BROWN.

    Concurring opinion by Circuit Judge ROGERS.

     BROWN, Circuit Judge: Today we bring resolution to
nearly a decade’s worth of litigation. As explained in
Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 677–78
(D.C. Cir. 2009) (Atherton II), juror officer Suzanne Bailey-
Jones unceremoniously removed Peter James Atherton from
grand jury service after Assistant United States Attorney
(AUSA) Daniel Zachem reported the complaints of other
members of the grand jury. The District Court concluded
appellees Bailey-Jones and Zachem were entitled to qualified
immunity and granted their respective motions to dismiss.
Because Atherton has failed to convince us that he had a
clearly established constitutional entitlement to a more
comprehensive termination process when he was excluded
from jury service, we affirm.

                              I

    We will not rehearse the facts already discussed at length
in Atherton II, where we dismissed the bulk of Atherton’s
case save his due process claims against Bailey-Jones and
AUSA Zachem. Because “qualified immunity . . . was not
addressed below and was only thinly briefed on appeal,” we
remanded the matter, emphasizing that the District Court
would:
                              3
    retain[] the discretion to decide “which of the two prongs
    of the qualified immunity analysis should be addressed
    first” — (1) whether the alleged facts show that the
    officials’ conduct violated a statutory or constitutional
    right and (2) whether that right was clearly established at
    the time of the incident — “in light of the circumstances
    in the particular case at hand.”

Id. at 690–91 (quoting Pearson v. Callahan, 555 U.S. 223,
236 (2009)); see also Reichle v. Howards, 132 S. Ct. 2088,
2093 (2012) (noting that this “approach comports with [the
Court’s] usual reluctance to decide constitutional questions
unnecessarily”).

     If the District Court chose to resolve matters on the
second prong and ask whether the procedural due process
owed a grand juror prior to the termination of a protected
interest was clearly established at the time of dismissal, we
recognized that Atherton’s burden was great, but not
insurmountable. “The question presented . . . boils down to
this: Has [Atherton] proven that, under the three-part
balancing analysis of Mathews [v. Eldridge, 424 U.S. 319
(1976)] and the precedents that have applied it, he had a
‘clearly established’ right to process more comprehensive
than that provided by the District?” Atherton II, 567 F.3d at
691 (quoting Brewster v. Bd. of Educ. of the Lynwood Unified
Sch. Dist., 149 F.3d 971, 984 (9th Cir. 1998)).

   Foregoing a formal discussion of Mathews, the District
Court on remand concluded:

    Given (1) the absence of any legal precedent at the
    relevant time establishing the alleged due process right,
    (2) the absence in 2001 of any formal procedures for (and
    judicial involvement in) removing grand jurors in
                               4
    Superior Court, (3) the apparent informal practice of
    delegating grand juror removal decisions to the Juror
    Officer, and (4) the Juror Officer’s job description
    implicitly authorizing the practice, the Court finds that,
    even if a constitutional right exists in serving on a grand
    jury, defendants could not have reasonably known that
    their removal of plaintiff from the grand jury in April
    2001 violated any clearly established statutory or
    constitutional rights of which a reasonable person would
    have known.

Atherton v. District of Columbia Office of the Mayor, 813 F.
Supp. 2d 78, 84 (D.D.C. 2011) (Atherton III) (internal
quotation marks omitted).

    We agree with the District Court in substance. Assuming
arguendo that Mathews requires a judicial determination and
formal process prior to dismissal from a grand jury, no
reasonable official in Appellees’ position would have
understood those requirements to be “clearly established” as a
constitutional matter.

                               II

     “Qualified immunity shields government officials from
civil damages liability unless the official violated a statutory
or constitutional right that was clearly established at the time
of the challenged conduct.” Reichle, 132 S. Ct. at 2093.
“Clearly established” does “not require a case directly on
point, but existing precedent must have placed the statutory or
constitutional question beyond debate.” Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2083 (2011). To determine whether the state
of the law was “beyond debate,” we look to “cases from the
Supreme Court and this court, as well as to cases from other
courts exhibiting a consensus view — if there is one.” Bame
                                 5
v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011) (citation and
internal quotation marks omitted). If the facts are truly novel
and there are no relevant cases, “officials can still be on notice
that their conduct violates established law” if their “conduct
violated ‘clearly established statutory or constitutional rights
of which a reasonable person would have known.’ ” Hope v.
Pelzer, 536 U.S. 730, 741–42 (2002) (finding an obvious
violation of Eighth Amendment where inmate was handcuffed
to hitching post, once for seven hours without regular access
to water or bathroom breaks).

     Whether a government official is entitled to qualified
immunity “generally turns on the objective legal
reasonableness of the action, assessed in light of the legal
rules that were clearly established at the time it was taken.”
Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012)
(internal quotation marks omitted); see also Malley v. Briggs,
475 U.S. 335, 341 (1986) (“[A]n allegation of malice is not
sufficient to defeat immunity if [official acted in] an
objectively reasonable manner.”). It is thus axiomatic that
qualified immunity “provides ample protection to all but the
plainly incompetent or those who knowingly violate the law.”
Briggs, 475 U.S. at 341.

    Here, the procedural due process owed a grand juror
seems as unclear today as it was over a decade ago when
Atherton was dismissed from jury service on April 11, 2001.
The parties have cited no cases directly on point and this
Court has found just one of passing resemblance.1 Atherton
    1
      United States v. Peters, 791 F.2d 1270 (7th Cir. 1986),
superseded by statute on other grounds as stated in United States v.
Guerrero, 894 F.2d 261, 267 (7th Cir. 1990), implicated Rule 6 of
the Federal Rules of Criminal Procedure, the Federal analogue to
the Superior Court’s Rule 6. The criminal defendant in Peters had
argued “that an adversarial hearing was necessary to determine
                                  6
instead argues by analogy, relying chiefly on United States v.
Brown, 823 F.2d 591 (D.C. Cir. 1987).

     The trial judge in Brown had removed a juror who
confessed an inability to honor or apply the R.I.C.O.
conspiracy act as written. See id. at 594–95. Reversing the
conviction, we held that a criminal defendant’s Sixth
Amendment right to a unanimous petit jury means “a court
may not dismiss a juror during deliberations if the request for
discharge stems from doubts the juror harbors about the
sufficiency of the government’s evidence.” Id. at 596.
Atherton contends that the holding in Brown is apposite to
situations involving dismissal of grand jurors. He maintains
that Brown makes clear that “grand jurors cannot be
dismissed unless and until a judge makes a finding of good
cause shown, and implicitly, only after notice and opportunity
to be heard.” Reply Br. at 15. This bold claim is simply


whether the grand juror’s excusal had prior judicial approval or was
simply an exercise of arbitrary prosecutorial discretion.” Id. at
1283. The Seventh Circuit quickly dismissed the argument.
Holding that no such hearing was required, the court stated:
        Rule 6(g) does not require an adversarial hearing before the
        court may dismiss a grand juror. Nor does Rule 6(g)
        require a court to notify the subject of the investigation that
        a grand juror has been dismissed or to explain the reason
        for the dismissal.
               An adversarial hearing would disrupt and delay
        grand jury proceedings, and therefore a petitioner
        requesting such a hearing bears a heavy burden.
Id. Peters, however, is distinguishable insofar as it involved a
juror’s request to be excused from the grand jury, a magistrate
judge’s approval of the excusal request, and, as might be expected
given the facts of the case, an emphasis on the rights of the criminal
defendant as opposed to those of the juror.
                              7
untenable.

     As a threshold matter, Brown does not speak to process.
In concluding that the Sixth Amendment categorically barred
the removal of certain jurors, we never opined on what
procedures are required in the “many circumstances” where
courts may freely use Federal Rule of Criminal Procedure
Rule 23(b) to discharge a juror. Brown, 823 F.3d at 597. Nor
was it our intention to speak to process. To the contrary, we
held “only that Rule 23(b) is not available when [] evidence
discloses a possibility that the juror believes [] the
government has failed to present sufficient evidence to
support a conviction.” Id. (emphasis added). The pointed
reference to Rule 23 underscores Brown’s limited reach since
Rule 23 implicates only trial juries, not grand juries. Simply
put, nothing in Brown suggests grand jurors had a clearly
established right to the “[j]udicial [h]earing [b]efore
[d]ismissal” that Atherton believes Mathews requires. Reply
Br. at 15.

     But even if Brown spoke clearly to the question of
process, it is simply inapposite. While both grand and petit
juries “act[] as a vital check against the wrongful exercise of
power by the State and its prosecutors,” Campbell v.
Louisiana, 523 U.S. 392, 399 (1998) (internal quotation
marks omitted), the District Court correctly noted that grand
juries exist as “an institution separate from the courts” for
which, “as a general matter at least,” no “ ‘supervisory’
judicial authority exists.” Atherton III, 813 F. Supp. 2d at 82
(quoting United States v. Williams, 504 U.S. 36, 47 (1992)).

    It may well be true that a decision in one context could
prove persuasive or even controlling in the other, see Batson
v. Kentucky, 476 U.S. 79, 84 n.3 (1986) (“The basic principles
prohibiting exclusion of persons from participation in jury
                                8
service on account of their race are essentially the same for
grand juries and for petit juries” (internal quotation marks
omitted)), but for present purposes at least, a principle
“clearly established” for a petit jury cannot be seamlessly
applied to the grand jury — especially where the translation
implicates a difference as significant as procedure and,
concomitantly, the grand jury’s relationship with the court.

     For one thing, the function of a grand jury is “quite
different from that of a petit jury.” In re Sealed Case, 877
F.2d 976, 982 (D.C. Cir. 1989). With a greater number of
jurors, no requirement of unanimity, and the safeguard of an
eventual petit jury, see United States v. Mechanik, 475 U.S.
66, 73 (1986) (“[T]he petit jury’s verdict rendered harmless
any conceivable error in the [grand jury’s] charging decision
that might have flowed from the violation.”), it is not clear
whether the reasoning underlying our Sixth Amendment
holding in Brown would apply with the same force here — if
at all. At bottom, the suggestion that all these leaps in
inferential logic — Sixth Amendment to Fifth Amendment,
petit jury to grand jury, Rule 23 to Rule 6, criminal defendant
to juror, etc. — constitute “clearly established” doctrine
beggars belief.2



    2
       Nor can we say appellees acted so brazenly as to violate
Atherton’s clearly established rights. See Hope, 536 U.S. at 741–
42. To the contrary, the Superior Court’s ad hoc administration of
the juror removal process only reaffirms the “objective legal
reasonableness” of Appellees’ actions. Messerschmidt, 132 S. Ct.
at 1245.
     To be clear, we do not mean to suggest that informal policies
and practices in government offices can defeat or otherwise
undermine what is clearly established constitutional or statutory
law. We mean only that informal practices of this sort are
                             9

                             III

    For the above reasons, the District Court’s decision to
find qualified immunity and grant Bailey-Jones’s and
Zachem’s respective motions to dismiss is

                                                   Affirmed.




sometimes the symptoms of doctrinal confusion, not the cause.
Such is plainly the case here.
    ROGERS, Circuit Judge, concurring. I join the court in
holding that the federal prosecutor and the employee in the D.C.
Superior Court Juror Office are entitled to qualified immunity
because it was not “clearly established” at the time of Atherton’s
dismissal from the grand jury that either violated his
constitutional rights. I write separately because Atherton’s
challenge has uncovered the absence of a clear procedure for
dismissing a grand juror.

    The Supreme Court has emphasized that

         notwithstanding periodic criticism, much of which is
         superficial, overlooking relevant history, the grand jury
         continues to function as a barrier to reckless or
         unfounded charges . . . . Its historic office has been to
         provide a shield against arbitrary or oppressive action,
         by insuring that serious criminal accusations will be
         brought only upon the considered judgment of a
         representative body of citizens acting under oath and
         under judicial instruction and guidance.

United States v. Mandujano, 425 U.S. 564, 571 (1976). So too
this court has recognized the important role played by the grand
jury in our constitutional framework, noting that despite criticism
that it “is not independent at all,” the grand jury remains “vital[]
and importan[t],” and “[t]o disregard [its] role . . . would be to
effectively emasculate the Grand Jury Clause of the
Constitution.” United States v. Coachman, 752 F.2d 685, 690
n.29 (D.C. Cir. 1985). More recently, the Supreme Court has
reaffirmed that the grand jury acts as a shield, stating that there
is “[n]o doubt” that “the Fifth Amendment grand jury right
serves a vital function in providing for a body of citizens that
acts as a check on prosecutorial power.” United States v. Cotton,
535 U.S. 625, 634 (2002).                Whether or not these
characterizations of the grand jury always match reality, the idea
of the independent grand jury as a “buffer or referee between the
                                 2

Government and the people” is a well-established part of our
jurisprudence. United States v. Williams, 504 U.S. 36, 47
(1992). Moreover, the Supreme Court has observed that, “with
the exception of voting, for most citizens the honor and privilege
of jury duty is their most significant opportunity to participate in
the democratic process.” Powers v. Ohio, 499 U.S. 400, 407
(1991).

     Little appears to have been written on the subject of the
dismissal of a grand juror, an action, which, depending on who
takes it, implicates and could possibly threaten the heralded
independence of the grand jury. The Grand jury operates “at
arm’s length” from the Judicial Branch, Williams, 504 U.S. at 47,
and its proceedings are cloaked in secrecy for various reasons,
notably in order to ensure the free deliberation and protection of
the grand jurors themselves, see Douglas Oil Co. of California
v. Petrol Stops Northwest, 441 U.S. 211, 219 n.10 (1979); see
also D.C. SUPER. CT. CRIM. R. 6(e)(2); FED. R. CRIM. P. 6(e)(2).
Given the insulation of grand jury procedures from outside
scrutiny, it is unsurprising to discover that there is a dearth of
judicial and academic commentary on the subject.

     The absence of formal discussion, however, is not total. The
United States District Court for the Eastern Division of the
Northern District of Illinois has published a GRAND JURY
FOREPERSON’S HANDBOOK, which addresses the issue of
“problematic jury members.” (1997),
http://www.ilnd.uscourts.gov/JURY/Grndjury.htm; see also
Susan W. Brenner, Grand Jurors Speak, in GRAND JURY 2.0:
MODERN PERSPECTIVES ON THE GRAND JURY 42 (Roger Anthony
Fairfax, Jr. ed., 2011) (discussing the HANDBOOK). This
HANDBOOK makes clear that it is the “prerogative of the grand
jury foreperson to recommend the dismissal of any grand jury
member for due cause,” but that it is the “Chief Judge” who will
make the ultimate “decision.” Similarly, the U.S. Department of
                                3

Justice’s GRAND JURY PRACTICE MANUAL states that “the staff
and/or the United States Attorney can move to excuse [a] grand
juror for cause”; use of the verb “move” and the exclusion of
“staff” as well as prosecutors from the final decision-making
process implies requisite judicial involvement. MANUAL
§I(D)(6)          (1991)        (emphasis          added),
http://www.justice.gov/atr/public/guidelines/206542.htm#ID6.

     Atherton was sworn as a substitute grand juror and served on
a grand jury for three days, when he was “summarily and
permanently dismissed” for allegedly being “disruptive.”
Atherton v. District of Columbia, 567 F.3d 672, 676 (D.C. Cir.
2009) (“Atherton II”); see also Affidavit of Chief Judge Rufus G.
King III, D.C. Superior Court, Nov. 14, 2006 (“King Aff.”). He
was dismissed by the Juror Office employee based on the
Assistant United States Attorney’s report that other grand jurors
were complaining about him. See Atherton II, 567 F.3d at 676.
So far as the record indicates, his dismissal was an ad hoc
response. See id. at 676-77. Neither the employee’s job
description nor local rule nor court order explicitly authorized
her to dismiss a sworn juror. Some time after Atherton’s
dismissal, the then-Chief Judge of the D.C. Superior Court
changed the procedures to require that he be “consulted before
any imposition of grand jury discipline.” King Aff. During oral
argument, however, counsel for the United States Attorney’s
Office and the District of Columbia could shed no light on what
is intended by “consultation.” Does the Chief Judge make the
dismissal decision? If not, who does?

      The rules of the D.C. Superior Court provide that a grand
jury “shall serve until discharged by the Chief Judge or other
judge designated by the Chief Judge.” D.C. SUPER. CT. CRIM. R.
6(g) (“Rule 6(g)”). Nonetheless, the record in this case indicates
that the procedure for dismissing a grand juror is unclear.
Whatever clarity there may be in the statutes and rules, see, e.g.,
                                   4

D.C. Code § 11-1908(b)(4); Rule 6(g), is, as a practical matter,
undermined by the plausible but conflicting interpretations
offered by the parties and the informal practice at the time of
Atherton’s dismissal, see Atherton v. D.C. Office of the Mayor,
813 F. Supp. 2d 78, 84 (D.D.C. 2011).1 Indeed, in “[a]ssuming
arguendo that Mathews [v. Eldridge, 424 U.S. 319 (1976),]
requires a judicial determination and formal process prior to
dismissal from a grand jury,” Op. at 4, the court notes that “the
procedural due process owed a grand juror seems as unclear
today as it was over a decade ago when Atherton was dismissed
from jury service on April 11, 2001,” Op. at 5.

     Although neither counsel could shed light on the content of
the charge to the grand jurors, they clarified that “convening
judges” charge grand juries in the D.C. Superior Court. See
Appellees’ Joint Notice Re Grand Jury Instructions, Oct. 17,
2012, at 1. It would seem to follow, given the involvement of a
judge in the convening and charging of the grand jury, that the
dismissal of a grand juror is also a decision for a judge. In
Atherton’s case, the Chief Judge’s understanding of the
seriousness of dismissal of a grand juror might be inferred from
his agreement to meet with Atherton and his later decision to
change the informal procedures for grand jury discipline.
Further clarification of the procedures for dismissing a grand



        1
            The parties’ divergent interpretations of the statutes and
rules on juror dismissal reveal they are susceptible to misinterpretation
– e.g., whether the Court’s authority to exclude jurors under D.C.
Code § 11-1908(b) is exclusively to be exercised by a judge, see id.
§ 11-1902(4) (defining “Court”). Compare Appellant’s Br. at 27 and
Reply Br. at 20 with Appellee Zachem’s Br. at 45-46 and Appellee
Bailey-Jones’s Br. at 24-25. Of course, neither informal policies nor
practices can defeat constitutional or statutory requirements. Cf. Op.
at 8 n.2.
                            5

juror, however, would be in the interests of protecting the
integrity and independence of the grand jury.
