710 F.2d 292 (7th Cir. 1983), 80-2503, Egger v. Phillips

Docket Nº:80-2503.
Citation:710 F.2d 292
Party Name:Charles E. EGGER, Plaintiff-Appellant, v. Harlan C. PHILLIPS, Defendant-Appellee.
Case Date:June 02, 1983
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 292

710 F.2d 292 (7th Cir. 1983)

Charles E. EGGER, Plaintiff-Appellant,


Harlan C. PHILLIPS, Defendant-Appellee.

No. 80-2503.

United States Court of Appeals, Seventh Circuit

June 2, 1983

Argued Oct. 19, 1982.

Rehearing Denied June 22, 1983.

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Belle T. Choate, Indianapolis, Ind., for plaintiff-appellant.

Elois E. Davies, Dept. of Justice, Washington, D.C., for defendant-appellee.

Before CUMMINGS, Chief Judge, and PELL, BAUER, WOOD, CUDAHY, ESCHBACH, POSNER and COFFEY, Circuit Judges.

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ESCHBACH, Circuit Judge. [*]

In this case a former Special Agent of the Federal Bureau of Investigation claims that certain personnel decisions made by his former supervisor violated his rights under the First, Fifth, Sixth, and Ninth Amendments of the United States Constitution. The district court granted defendant's motion for summary judgment on all of plaintiff's claims. A panel of this court unanimously affirmed the district court's grant of summary judgment on plaintiff's Fifth, Sixth, and Ninth Amendment claims, but a majority of the panel reversed the grant of summary judgment on the First Amendment claim, observing that the question on that claim was a close one. See 669 F.2d 497, 504 (7th Cir.1982). On August 9, 1982, defendant-appellee's petition for rehearing with suggestion for rehearing en banc was granted. For the reasons which follow, we now affirm the judgment of the district court granting defendant's motion for summary judgment on all of plaintiff's claims. 1


Shortly after he was dismissed from his employment as a Special Agent of the Federal Bureau of Investigation for failing to report to a new duty station in Chicago, Illinois, plaintiff-appellant Egger brought this action for money damages against his former supervisor at the FBI's Indianapolis (Indiana) Field Office, defendant-appellee Phillips, who had recommended Egger's transfer away from the Indianapolis office. Egger's complaint, filed on August 18, 1978 in the United States District Court for the Southern District of Indiana, alleges that Phillips recommended the transfer and took other administrative actions adversely affecting Egger's employment with the FBI because of Egger's allegations of wrongful conduct directed against other personnel in the Indianapolis office. Styling Phillips' actions as retaliation against him for his efforts to expose alleged corruption in the Indianapolis office, Egger contends that Phillips violated his freedom of speech secured by the First Amendment.

Defendant filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) on October 27, 1978, contending, inter alia, that the complaint failed to state a cause of action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and its progeny, the only possible source of a federal remedy in this case. On February 8, 1979, defendant filed his answer, generally denying the material allegations of the complaint and raising the defense of immunity. The district court denied defendant's motion to dismiss without discussion on July 9, 1979. On November 1, 1979, defendant filed a motion for summary judgment, together with supporting affidavits and other material, pursuant to Fed.R.Civ.P. 56, arguing that defendant's actions toward plaintiff were taken to preserve the effective functioning of the FBI's Indianapolis Field Office and also

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asserting that his actions were taken in good faith. Plaintiff responded to the summary judgment motion on December 7, 1979 with a "Statement of Genuine Facts" signed by counsel and in memorandum in opposition, arguing that the crucial issue in the case--defendant Phillips' state of mind--was not amenable to resolution via summary judgment. In addition, on January 31, 1980, plaintiff filed two affidavits, the first discussing certain personnel regulations of the FBI, and the second relating a portion of a telephone conversation between Egger and Phillips which Egger had recorded without Phillips' knowledge. Defendant filed a reply brief on January 31, 1980, together with additional affidavits and materials. 2

After hearing oral argument on defendant's summary judgment motion, and receiving supplemental briefs and material, including a submission personally prepared by plaintiff, 3 the district court granted the motion for summary judgment on September 22, 1980. Based on a close examination of the large amount of documentary evidence before it, 4 the court's opinion consists largely of a detailed chronology of Egger's employment history with the FBI and his relationship with the personnel of the Indianapolis Field Office from the fall of 1977 through the spring of 1978. The court rejected plaintiff's First Amendment claim of retaliatory transfer, stating that plaintiff had failed to demonstrate a liberty or property interest in remaining assigned to the Indianapolis Field Office. Moreover, the district court concluded:

Egger's activities substantially contributed to creating havoc in the Indianapolis Field Office of his employer. The Court takes judicial notice of the fact that the Federal Bureau of Investigation is a paramilitary organization wherein security of information, discipline and teamwork are of primary importance. Egger was disliked and not trusted by the majority of the personnel in the Indianapolis office.

* * *

* * *

Even assuming that Phillips' efforts to have Egger transferred were in part motivated by Egger's attempts to uncover what he considered to be wrongdoing by other agents, the substantial legitimate basis for Egger's transfer supplants any element of causation between the assumed wrong motive and the transfer.

Dist.Ct.Op. at 48.

On appeal, the majority of the panel stated that the district court incorrectly characterized

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the controlling First Amendment doctrine regarding public employers' actions against their employees in retaliation for the exercise of free speech. The majority observed that appellant need not show a legitimate claim of entitlement to continued employment at the Indianapolis office in order to prevail on his claim that the transfer was carried out in retaliation for his exercise of First Amendment rights. 669 F.2d at 501-02. The majority, noting that summary judgment is often inappropriate when questions of intent are presented, concluded that the evidence before the district court created a genuine issue of material fact concerning the reason for appellee's recommendation to transfer Egger. Id. at 502-03. Moreover, the majority could not conclude on the record before the district court that "Egger's criticisms were so abrasive or disruptive of office routine as to be denied First Amendment protection as a matter of law," id. at 503, and the majority rejected appellee's defense of qualified immunity based on an analysis of the then controlling authority of Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), noting that under Economou, the defense of good faith immunity raised the same issues of subjective intent as appellant's First Amendment claim. 669 F.2d at 504.

Panelist Senior District Judge Dumbauld, dissenting from the majority's reversal of summary judgment on the First Amendment issue, concluded that Egger's transfer was necessary for the effective functioning of the Indianapolis Field Office and that Egger's attempt to "clothe his peculiar behavior in the garb of the First Amendment" should be rejected. Id. at 505.

On rehearing en banc, appellee first resurrects an argument suggested below but not passed on by the district court and never presented to the panel on appeal: that the employment relationship between the FBI and its Special Agents counsels against judicial recognition of a damage remedy arising directly under the Constitution. See generally, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, supra, 403 U.S. at 396, 91 S.Ct. at 2004. Appellee also argues that even if a Bivens claim is entertained, summary judgment was appropriate, contending that the undisputed facts demonstrate that his recommendation to transfer Egger was not retaliatory, and also arguing that under the recent case of Harlow v. Fitzgerald, --- U.S. ----, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), decided after the panel's decision in this case, he should prevail on the ground of qualified immunity.


A party seeking summary judgment under Fed.R.Civ.P. 56 must demonstrate the absence of a genuine issue of material fact. E.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-61, 90 S.Ct. 1598, 1609-1610, 26 L.Ed.2d 142 (1970). In judging whether or not the movant has met this burden, the court must view the evidence submitted by the movant in the light most favorable to the non-moving party. Id.; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). If, and only if, the movant meets his initial burden, it is incumbent upon the opposing party "to set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate [as a matter of the governing law], shall be entered against him." Fed.R.Civ.P. 56(e). See Thornton v. Evans, 692 F.2d 1064, 1074-1076 & n. 29 (7th Cir.1982). See generally, Markwell v. General Tire and Rubber Co., 367 F.2d 748, 750 (7th Cir.1966); Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir.1970). However, it is always prudent to respond to a motion for summary judgment, even if the opposing party believes that the movant has failed to sustain his initial burden.

Moreover, a factual dispute does not preclude summary judgment unless, of course, the disputed fact is outcome determinative under the governing law. It is thus axiomatic that even in the face of some factual disputes, "where the undisputed facts demonstrate that one party is entitled to...

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