510 F.2d 1232 (D.C. Cir. 1975), 73--2137, Chastain v. Kelley

Docket Nº:73--2137.
Citation:510 F.2d 1232
Party Name:Max I. CHASTAIN v. Clarence M. KELLEY, Director, Federal Bureau of Investigation, Appellant.
Case Date:April 02, 1975
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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510 F.2d 1232 (D.C. Cir. 1975)



Clarence M. KELLEY, Director, Federal Bureau of

Investigation, Appellant.

No. 73--2137.

United States Court of Appeals, District of Columbia Circuit

April 2, 1975

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Barbara L. Herwig, Atty., Dept. of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., Earl J. Silbert, U.S. Atty., and Robert E. Kopp, Atty., Dept. of Justice, were on the brief, for appellant. Harold H. Titus, Jr., U.S. Atty. at the time the record was filed, John A. Terry and Robert M. Werdig, Jr., Asst. U.S. Attys., also entered appearances for appellant.

Lawrence Speiser, Washington, D.C., for appellee.

Before FAHY, Senior Circuit Judge, and McGOWAN and TAMM, Circuit Judges.

Opinion for the Court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

The District Court ordered the Federal Bureau of Investigation to expunge all records of an incident giving rise to charges by it that one of its agents had, among other things, misused his credentials. After first suspending the agent and giving him notice of proposed dismissal, the Bureau subsequently decided not to take this action. It was two days late in filing an opposition to the motion to expunge, which had been promptly filed after the Bureau's decision and as promptly granted. We think that there are interests at stake going beyond those of the immediate parties to this litigation, and which warrant our vacating the judgment entered by the District Court in order that the Government may be heard on the question of expungement.


Plaintiff-appellee became a Special Agent of the FBI in November of 1970. On March 8, 1973, he received a letter from L. Patrick Gray, III, then the Bureau's Acting Director, informing him of his immediate suspension without pay and of his proposed dismissal as of thirty days from the letter's receipt. The letter set out a number of grounds for these actions. They all arose from the circumstances we now summarize.

On January 29, 1973, appellee was on leave from his duties in the Bureau's Washington Field Office, and was spending several days in Virginia Beach, Virginia. His purpose, at least in part, was to visit a female friend who was married to a naval officer then absent on assignment. Plaintiff had grown intimate with the woman during his own earlier naval service. She informed him upon arrival that another woman, a mutual acquaintance and also a resident of Virginia Beach, had recently complained of receiving a number of obscene telephone calls. Appellee came to the complainant's aid. He went to the home of the neighbor whom she suspected was responsible for the calls. Gaining entrance, he displayed his FBI credentials and asked the neighbor a number of probing questions aimed at discovering whether he was indeed the culprit. The neighbor's mother, who was present at the time, later reported the incident to the local FBI office in Norfolk, Virginia. After the interview, appellee reported back to the recipient of the telephone calls his conclusion that her suspicions about the neighbor were correct. He also divulged the neighbor's true name, which he had discovered during the interview.

For this conduct, which appellee recounts in somewhat more innocuous terms but does not really deny, 1 the Acting Director charged him with misuse of his FBI credentials, unauthorized disclosure (to the complainant about the telephone calls) of investigative information gained through his official position, and failure to inform the Special Agent in charge of the Norfolk office of an investigation within that agent's territory. Appellee was further accused of not having kept his Washington superiors sufficiently informed of his whereabouts (he had left only the post office box number

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of his female friend) and also of 'deception, lack of integrity, (and) uncooperative attitude.' The Acting Director gave as an example of the latter the fact that, in the course of applying to become a Special Agent, appellee had responded negatively to the question of whether he had any moral deficiencies, and had not reported the relationship he had had with the female friend during his earlier naval days.

On March 26, 1973, before final action was taken by the Bureau pursuant to its March 8 letter, appellee sued in the District Court for an order prohibiting his dismissal and restoring him to active duty. A temporary restraining order was entered against dismissal only. While appellee's motion for a preliminary injunction was still pending, William Ruckelshaus replaced Gray as the Bureau's Acting Director. Ruckelshaus cancelled the suspension and proposed dismissal, and also awarded plaintiff his back pay. On May 23 the Government moved that the case be dismissed as moot. Appellee moved the following day for an order requiring the FBI (1) to expunge all records relating to the suspension and proposed dismissal, (2) never to base any further personnel action on those matters, and (3) to inform all those agencies to which the FBI had disseminated information about them that the charges had been withdrawn. On June 6 the District Court dismissed the case as moot, and, no opposition having been filed by the Government, granted the motion for expungement. 2


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