Mosrie v. Barry

Decision Date07 October 1983
Docket NumberNo. 82-1200,82-1200
Citation718 F.2d 1151,231 U.S.App.D.C. 113
PartiesArif H. MOSRIE, Appellant, v. Marion S. BARRY, Jr., et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-02220).

Axel Kleiboemer, Washington, D.C., for appellant.

William J. Earl, Jr., Asst. Corp. Counsel, Washington, D.C., of the Bar of the District of Columbia Court of Appeals, pro hac vice, by special leave of the Court, with whom Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellees.

Before ROBINSON, Chief Judge, GINSBURG and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge BORK.

Concurring opinion filed by Circuit Judge GINSBURG.

BORK, Circuit Judge:

This case involves a municipal employee's complaint that his lateral transfer and public criticism of his performance by supervisory officials deprived him of a liberty interest and thereby gave rise to due process rights that were not accorded him prior to the adverse actions. Relying principally on Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the district court held after trial that the employee had not been deprived of a liberty interest. We assume on this appeal that the transfer and public criticism injured the employee financially and otherwise as he alleged in his complaint. We nevertheless affirm.

I.

In the spring of 1979, appellant Arif H. Mosrie (plaintiff below) was commanding officer of the Homicide Branch of the Criminal Investigations Division of the District of Columbia Metropolitan Police Department. He had pursued a plainclothes career for all but the first few years of his more than eighteen years as a police officer and had attained the rank of captain. Appellant's supervisor was William C. Trussell, commanding officer of the Criminal Investigations Division. Trussell's supervisor was appellee Burtell M. Jefferson, Chief of Police. Jefferson's supervisor, in turn, was appellee Marion S. Barry, Mayor of the District of Columbia.

In mid-March 1979, a union representative complained to Jefferson that Trussell was interfering with the work of officers in the Homicide Branch. Jefferson contacted Trussell indirectly and was told that nothing was amiss. Jefferson also had at least two conversations with Mosrie prior to mid-April. Mosrie informed Jefferson that, although there was some dissatisfaction in the Homicide Branch, morale problems were under control. Mosrie had told his officers that what they regarded as interference was management prerogative.

The officers of the Homicide Branch did not remain quiet for long. On April 26, Trussell transferred Lieutenant Raymond Pierson, an officer in the Homicide Branch, to a uniformed position. He did this with Jefferson's knowledge and consent but without informing Mosrie, who was Pierson's direct supervisor. The members of the Homicide Branch strongly disapproved of the transfer. They brought their union into the dispute. On several occasions in the days following April 26, Mosrie told his officers that the transfer had been ordered by the Chief of Police and so was not open to union discussion. He directed his officers not to protest. The union nonetheless sought to discuss the transfer with Trussell and Jefferson, both of whom refused on the ground that the matter was closed and was not the union's business.

Early on May 1, Mosrie heard of the union's efforts. A bit later that day, Trussell called Mosrie into his office to insist on his support. Mosrie then told his officers that the matter was closed because, as he had learned a few days earlier, Pierson had decided to retire rather than to accept the transfer. In mid-afternoon, two union representatives handed Mosrie a memorandum, signed by almost all of the officers in the Homicide Branch, complaining in sharp terms of Pierson's transfer. They asked Mosrie to forward the memorandum to Jefferson. Mosrie asked the union representatives to withdraw the document, to think again about sending it, and to return the next day. They agreed.

The following day, May 2, Mosrie told the union representatives that he would not forward the memorandum to Jefferson. That afternoon, though, the union was able, through the intercession of someone on Mayor Barry's staff, to talk with Jefferson. Though informed of the memorandum, Jefferson did not ask to see it. Rather, he agreed to meet with the Homicide Branch on May 7--he planned to be out of town for several days before then--and asked that a list of specific grievances be drawn up for that meeting. Homicide Branch officers, without Mosrie present, met on May 3 to prepare the requested list.

By May 5, someone had given the list to the Washington Post, which ran a story about the entire affair on the front page of its Sunday, May 6, edition. The article reported the union's initially unsuccessful efforts to discuss the matter with Jefferson and quoted statements by Lt. Pierson that criticized Jefferson for not taking investigative and corrective action sooner than he did. When Jefferson returned to town on May 6, he read the article and became angry; Pierson's statements upset him most of all.

Early on Monday, May 7, Jefferson met with Mosrie. He demanded the memorandum of May 1 and criticized Mosrie for not forwarding it to him earlier. At his meeting with the Homicide Branch later that day, Jefferson was given the list of specific grievances that he had requested. The list named Mosrie, without his knowledge, as a witness to an alleged racial slur by Trussell. Jefferson gave Trussell a copy of the list to afford him an opportunity to respond. Shortly thereafter, Jefferson received a telephone call from Mayor Barry. He told Barry that he would investigate the matter thoroughly and would give special attention to the allegation of Trussell's racial remark.

On May 8, Jefferson decided to convene a panel of three persons to conduct the investigation. He told Mayor Barry of this decision. Barry asked to be kept informed of the investigation's progress and conclusions so that he could consider taking appropriate action. The same day, Jefferson met with the members of the panel. He gave them the list of grievances and instructed them to concentrate on the racial matter first. He also told them that he was surprised, in light of his several conversations with Mosrie, that the situation had reached the point it had. In addition, he told the panel of Mosrie's failure to forward the May 1 memorandum to him.

When the panel began its proceedings on May 9, it called Mosrie to testify and asked him for his copy of the May 1 memorandum. The panel told him that it was investigating allegations against Trussell. It did not tell him that it was investigating Mosrie's own conduct. Nor did the panel inform Mosrie that he could present his own evidence or seek legal assistance. In his testimony on May 9, however, and again in testimony on May 22, Mosrie discussed his several conversations with Jefferson, the number of which (two or three) was a subject of dispute.

The panel gave Trussell many procedural protections it did not give Mosrie. It told Trussell of the charges against him, gave him an opportunity to respond to them, allowed him to present his own evidence, and permitted him to consult with counsel. It also listened to suggestions that the panel pursue certain evidentiary leads as well as to arguments and a summation. On one occasion, Trussell and the panel met privately and off the record.

On May 11, Trussell, through his lawyer, told Jefferson of an alleged anonymous telephone call in which Mosrie was accused of misusing the Department car assigned to him. Jefferson referred the charge to the Internal Affairs Division (IAD). On May 14 or 15, Trussell contacted the IAD to make further allegations of misconduct on the part of Mosrie and others. When the IAD expressed hesitancy to investigate the additional charges, Trussell complained to Jefferson, who ordered the IAD to consider the new charges along with the old. The panel was aware of the IAD investigations. 1 In February 1980 the IAD determined that the charges against Mosrie were unfounded.

The panel completed its investigation of the alleged racial slur in late May 1979. It recommended issuance to Trussell of a written reprimand. At about the same time, Jefferson wrote to Mayor Barry that he intended to issue Trussell a Letter of Prejudice and to reassign Trussell, a reassignment that would be "temporary" and "non-punitive." The panel completed the remainder of its investigation and delivered its final report to Jefferson by early August.

On August 14, 1979, the press reported that the panel had recommended a transfer of Mosrie from his command of the Homicide Branch. (It remains unknown how the press obtained the information.) Two days later, Mosrie, who by this time had counsel, delivered a letter to Jefferson asking him not to take any steps to implement the recommendation or to take any other adverse action without providing specified due process protections. In particular, Mosrie requested that he be given the panel's report and access to the record of its proceedings; that he be informed of the accusations against him, the names of his accusers, and the authority relied on by Jefferson in convening the panel; and that he be afforded an opportunity to introduce evidence, to cross-examine witnesses, and to present argument before the panel. Mosrie delivered a copy of the letter to Mayor Barry and asked him to consult with Jefferson about the requests for process.

On August 27, almost two weeks after the press report of the panel's recommendations, Jefferson met with Mayor Barry and gave him the panel report as well as a transmittal memorandum Jefferson had prepared. In the memorandum, Jefferson responded...

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