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).