Taylor v. Resolution Trust Corp., 95-5001

• Decision Date: 04 October 1995
• Docket Number: No. 95-5001,95-5001
• Citation: 56 F.3d 1497,312 U.S.App. D.C. 427
• Parties: Jacqueline P. TAYLOR, et al., Appellants, v. RESOLUTION TRUST CORPORATION, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1497

56 F.3d 1497

312 U.S.App.D.C. 427

Jacqueline P. TAYLOR, et al., Appellants, v. RESOLUTION TRUST CORPORATION, et al., Appellees.

No. 95-5001.

United States Court of Appeals,

District of Columbia Circuit.

Argued May 19, 1995.

Decided June 23, 1995.

As Amended on Petition for Rehearing Oct. 4, 1995.

Appeal from the United States District Court for the District of Columbia (No. 94CV01916).

Robert C. Seldon, Washington, DC, argued the cause for appellants. With him on the briefs was Joanne Royce.

Marina U. Braswell, Asst. U.S. Atty., Washington, DC, argued the cause for appellees. With her on the brief were Eric H. Holder, Jr., U.S. Atty., and R. Craig Lawrence, Asst. U.S. Atty.

Before: SILBERMAN, WILLIAMS and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

This is an interlocutory appeal from a denial of preliminary injunctive relief. The four individual plaintiffs are former employees of the Resolution Trust Corporation who allege that they suffered illegal retaliation for publicly exposing instances of RTC mismanagement and waste. The fifth plaintiff, the Government Accountability Project, is a self-described public-interest group dedicated to supporting government employees who come forward with reports of official misconduct. All five plaintiffs sought a preliminary injunction barring the RTC from persisting in the alleged harassments of the four individual plaintiffs and from taking action against other would-be whistleblowers who have not come forward or joined the suit for fear of agency retaliation.

We vacate the district court's order to the extent it is moot and affirm that order in all other respects. The motion is moot with respect to three of the individual plaintiffs, who have left the RTC and have not alleged any retaliation that would extend beyond the period of their employment. The fourth individual plaintiff has alleged post-termination retaliation, but in light of the district court's specific findings of fact--findings to which we owe deference--we find he has not adequately shown that he will succeed on the merits of his suit or suffer irreparable injury in the absence of interim relief. Finally, although we find that the group plaintiff has standing to bring one of its claims, its motion for preliminary injunctive relief fails for want of an ongoing injury that the injunction would relieve.

I.

The four individual plaintiffs worked for the RTC in different capacities and in different offices, and they challenge different agency actions. Before their reassignment and later resignation, Jacqueline Taylor and Bruce Pederson were both senior attorneys in the Professional Liability Section of the RTC's Western Regional Office in Denver. In 1992, they began protesting a reorganization of their office, claiming that it was both grossly mismanaged and designed to gut their section just as it was getting ready to bring several large fraud suits against fiduciaries of failed savings and loan institutions. In addition to preparing briefings on the subject for RTC senior management, the agency's Inspector General's Office, and the General Accounting Office, Pederson and Taylor testified several times before the Senate Banking Committee, and their testimony received substantial publicity. They allege that as punishment for going public with their complaints, the RTC eliminated their positions and "exiled" them to another unit, where they were given make-work duties and physically isolated from other agency employees. They further complain that their applications to return to substantive management positions were summarily denied, that their mail and computer files were opened and monitored, and that their superiors slandered them to other employees and took action against co-workers who continued to socialize with them. In addition, Taylor says that the RTC General Counsel put her under a "gag order" by commanding her in a memorandum not to speak publicly about any matter concerning the agency without prior approval. In response, the RTC argues that it downsized the Denver office in anticipation of having to phase out the entire agency's operations by the end of 1995, that Pederson's and Taylor's complaints were simply efforts to preserve their own status during the reorganization, that the two were less qualified than the candidates hired for the new positions for which they applied, and that the supposed "gag order" was merely a reminder to Taylor of her ethical obligations as an attorney not to disclose client confidences.

The third individual plaintiff, Juan Luis Burgos-Gandia, was a litigator in the RTC's Dallas field office. Burgos alleges that he was assigned to "problem cases" and temporarily stripped of all responsibilities after he complained to RTC management and the GAO about overbillings by one of the agency's outside law firms. The RTC responds that Burgos's assignments changed only as a result of a general reallocation of work in his division. In addition, the agency accuses Burgos of severe misconduct with respect to one of his cases. Burgos's supervisors asked him to have outside counsel move to vacate a default judgment entered against the agency, but Burgos disagreed with this strategy and instead ordered the motion withdrawn; when his superiors countermanded the order, Burgos filed what he called an "informative motion" with the court detailing his dispute with his supervisors and, according to the RTC, disclosing client confidences and litigation strategy in an attempt to avoid being sanctioned for his own conduct in the episode. The RTC initially notified Burgos that he would be fired for his insubordination but later placed him on paid administrative leave; in December 1994, the agency ultimately decided not to terminate Burgos but instead to demote him by two pay grades.

Richard Dunn, the fourth individual plaintiff, was employed for about two years by an RTC office in Pennsylvania as an asset manager, overseeing the consolidation of banks taken over by the RTC and the sale of their properties to other banks. Dunn discovered that an outside contractor had overcharged the agency and brought the matter to the attention of RTC management. Several months later, Dunn failed to receive an expected promotion to a higher pay grade; he alleges that he was punished for exposing a favored contractor's wrongdoing, while the agency points to an unfavorable performance review he received for his previous year's work. The RTC allowed Dunn's temporary appointment to lapse, citing his poor interpersonal skills, inflexibility, and poor judgment.

Dunn's problems with the RTC continued after his employment ended. Shortly after his departure, private security officers began conducting surveillance on him; these detectives presented homemade "RTC Special Agent" credentials to local police who investigated when Dunn reported that he was being followed by unknown men. An investigation of the incident by the RTC Inspector General concluded that there had been a miscommunication between the private detective agency and the RTC: the agency had retained the firm to provide extra security at some upcoming meetings that it thought Dunn might disrupt, but it had never authorized surveillance of Dunn or the use of false credentials.

Dunn also alleges that he applied for a number of jobs after leaving the agency but did not find employment until he was hired as an asset manager by Coopers & Lybrand in May 1994. He was fired on his fifth day of work. When Dunn, through counsel, pressed Coopers for an explanation, the firm replied that "sources within the RTC" had informed it that Dunn had threatened employees at the agency, that he had claimed to have a gun, and that "[t]he situation [had become] so serious that at one meeting of senior RTC officials, four armed guards were hired by the RTC for protection." Coopers also reported that the agency had told the firm it was "specifically prohibited from using Mr. Dunn on any RTC related work." Dunn denies that he ever engaged in such conduct, and the RTC does not now suggest otherwise. The agency asserts that it never put Dunn on any formal list of suspended or excluded contractors nor adopted any informal policy of excluding him from work on RTC contracts; it does not otherwise challenge his depiction of the Coopers incident.

Joining these four individual plaintiffs is the Government Accountability Project ("GAP"), an organization that represents individual whistleblowers and uses the information they provide to mount public education campaigns about government waste, fraud and misconduct. One of GAP's projects has been to challenge alleged mismanagement in the RTC; as part of this campaign, the group has helped RTC employees testify before congressional banking committees and has helped to draft and pass RTC-reform and whistleblower-protection legislation. As discussed below in greater detail, GAP claims that the RTC's retaliation against would-be whistleblowers has interfered with its attempts to communicate with willing speakers inside the agency.

The five plaintiffs filed a complaint alleging that the RTC's actions violated 12 U.S.C. Sec. 1441a(q), which prohibits the RTC and its agents from discriminating against employees who disclose agency or contractor wrongdoing to certain overseeing authorities. (Both parties refer to this provision as the RTC Whistleblower Act, as will we.) In addition, they assert numerous constitutional violations: for example, Taylor alleges that the General Counsel's alleged "gag order" was a prior restraint on her speech violating the First Amendment, GAP argues that the agency's conduct violated its First Amendment rights to receive information from willing speakers, Dunn maintains that the RTC's contacts with outside employers following his termination deprived him of a Fifth Amendment liberty interest, and Burgos...