Chastain v. Kelley

• Decision Date: 02 April 1975
• Docket Number: No. 73--2137,73--2137
• Citation: 167 U.S. App. D.C. 11,510 F.2d 1232
• Parties: Max I. CHASTAIN v. Clarence M. KELLEY, Director, Federal Bureau of Investigation, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1232

510 F.2d 1232

167 U.S.App.D.C. 11

Max I. CHASTAIN v. Clarence M. KELLEY, Director, Federal Bureau of Investigation, Appellant.

No. 73--2137.

United States Court of Appeals District of Columbia Circuit.

April 2, 1975.

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.

I

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 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

II

The federal courts are empowered to order the expungement of Government records where necessary to vindicate rights secured by the Constitution or by statute. See, e.g., Menard v. Saxbe, 162 U.S.App.D.C. 284, 498 F.2d 1017, 1023 (1974); Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938, 966 (1973); Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486 (1970). The cited cases involved the retention and dissemination of criminal records, and it is in that context that the propriety of expungement orders has been most thoroughly explored. Since the power to order expungement is, however, only an instance of the general power of the federal courts to fashion appropriate remedies to protect important legal rights, ³ it may also be invoked when the Government records in question are administrative rather than criminal.

The precedents in this latter regard are few, but they are clear enough. In Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129 (1955), for example, the Supreme Court held that the Loyalty Review Board, an organ of the Civil Service Commission established to review the recommendations of federal agencies that employees be dismissed for disloyalty to the United States, exceeded its jurisdiction in reopening the case of an employee whose loyalty had been approved by the relevant agency. The relief to which the Court found the employee entitled included 'an order directing the respondent members of the Civil Service Commission to expunge from its records the Loyalty Review Board's finding that there is a reasonable doubt as to petitioner's loyalty . . ..' Id. at 348--349, 75 S.Ct. at 799. ⁴

Expungement, no less than any other equitable remedy, is one over which the trial judge exercises considerable discretion. It is a versatile tool: expungement of only some records, from some Government files, may be enough, as may the placing of restrictions on how the information contained in the records may be used. It is a tool which must be applied with close attention to the peculiar facts of each case. Only in that way can it effect a proper reconciliation of the competing interests of the Government in retaining information relevant to job performance, and of the individual in having it forgotten. But it must be rationally and selectively responsive to those interests.

Appellee's interest is in the vindication of the rights alleged in his complaint, that is to say, in not being (i) suspended without pay during the thirty-day notice period in violation of the Veteran's Preference Act, (ii) suspended or dismissed without such hearing as due process requires, (iii) penalized by one who was serving illegally as the Bureau's Acting Director; or (iv) dismissed for improper or unsubstantiated reasons. ⁵ These rights, assuming they exist, were in large part vindicated when appellee was reinstated with back pay.

There may remain a right not to be adversely affected by the information in the future. Such a right may exist if the information (1) is inaccurate, (2) was acquired by fatally flawed procedures, or (3) as may be the case with information about his private and personal relationships, is prejudicial without serving any proper purpose of the Bureau's. But there has not as yet been a finding by the trial court that any of these conditions exist. In fact, appellee has made no objection to the manner in which the Bureau carried out its inquiry, and he has admitted the substantial truth of what it found with respect to the misuse of his credentials. Moreover, the Bureau would appear to have a strong interest in retaining at least some of the information that the District Court ordered expunged. The abuse of official power by appellee in this case may seem a mild one, but even mild abuses, should they be tolerated and allowed to proliferate, will pose a severe threat to the public confidence upon which the Bureau relies.

The order may well have been justified at the time it was originally entered. The new Acting Director's abandonment of the proposed disciplinary action could, in one view of the matter, be taken as implying an admission by him that the charges against appellee were inaccurate, improperly made, or simply insignificant. Such an admission might well have justified expungement, and might be presumed to have been made when the time in which to oppose expungement expired without the new Acting Director's raising any objection. The reasonableness of that presumption was destroyed, however, when the Government filed its subsequent opposition, which included the following statements:

By the cancellation of the proposed dismissal and suspension, plaintiff was not absolved of any wrongdoing. The fact remains plaintiff did misuse his...