Murray v. Gardner

• Decision Date: 14 August 1984
• Docket Number: No. 83-1750,83-1750
• Parties: Paul C. MURRAY, Appellant, v. Theodore M. GARDNER, Special Agent, Federal Bureau of Investigation, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 434

741 F.2d 434

239 U.S.App.D.C. 212

Paul C. MURRAY, Appellant, v. Theodore M. GARDNER, Special Agent, Federal Bureau of Investigation, et al.

No. 83-1750.

United States Court of Appeals District of Columbia Circuit.

Argued March 26, 1984.

Decided Aug. 14, 1984.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-02405).

Gilbert Kenneth Davis, Herndon, Va., with whom Kevin P. Donovan, Falls Church, Va., was on the brief, for appellant.

John D. Bates, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before GINSBURG, Circuit Judge, MacKINNON, Senior Circuit Judge, and PARKER, ^* District Judge for the District of Columbia.

Opinion for the Court filed by Senior Circuit Judge MacKINNON.

MacKINNON, Senior Circuit Judge:

This case presents questions concerning the First Amendment rights of public employees. Similar questions have recently been resolved by the Supreme Court. The facts of this case are clearly covered by these Supreme Court precedents and thus we affirm the District Court's dismissal of appellant's claims.

I.

Appellant Paul Murray, plaintiff below, is a special agent in the Federal Bureau of Investigation. Murray sued six of his fellow agents who were his superiors in the Bureau's Washington Field Office ("Field Office") for alleged violations of his First and Fifth Amendment rights, and for defamation, intentional infliction of mental distress, and conspiracy. He also sought injunctive relief.

In November of 1981, the FBI was forced to develop a plan to furlough approximately one-third of the agents in the Field Office due to funding delays:

The [Field Office] management had decided to meet this one-third furlough requirement by creating a lottery pool. Individuals who were in the pool would be furloughed if the individuals' name[s] were drawn out of a hat which contained the names of all people in the lottery pool. Management personnel and their secretaries were not a part of the pool. No considerations of seniority, veteran status, or performance appraisals were used in determining who would be a part of the pool. The [Field Office] was the only FBI office to use this furlough method. [Murray's supervisor] informed Murray that his name had been pulled out of the hat and that he was to be placed on furlough.

Joint Appendix at 6 (hereinafter "J.A.").

At the time of the announcement of the plan, Murray was involved in a custody battle for his children, and he believed that even a temporary lay-off would damage his case for custody. Murray contacted the Principal Legal Advisor of the Field Office, Defendant Barry Laken, to explain his objections to the plan. The following day Murray attempted to carry these objections up the ladder by talking to the Special Agent in Charge ("SAC") of the Field Office, Defendant Theodore Gardner, and Gardner's assistant, Defendant John Schreiber. Both Gardner and Schreiber put Murray off, stating "that he would have his opportunity to speak at an 'all employees conference' which was to be held on November 25, 1981." Id. at 7.

The events critical to Murray's First Amendment claim occurred following the aborted attempt to meet with Gardner and Schreiber:

15. Later that day the Plaintiff was approached by the Defendant Laken. Laken explained to Murray how a furlough system could result in the furloughing of an individual with a lengthy service record while a person with lesser time on the job might retain his position. These and other statements of the Defendant Laken were intended to give an impression that opposition to the furlough plan could be detrimental to a person's career status.

16. On November 25, 1981, at the all employees conference, Defendant Gardner explained the furlough lottery and opened the floor to questions and comments. When the Plaintiff Murray took the floor to give his observations, he stated that the furlough lottery was arbitrary and capricious, and that consideration of factors such as veteran status and length of time on the job would have provided a more reasonable standard. He stated that the Bureau had "dropped the ball" by failing to plan ahead and have a furlough plan. He also stated that he found it appalling that the best method the FBI could develop regarding furlough was to throw the careers and lives of their employees, and their employees' families into a hat. Murray also stated that he objected to efforts that were made to keep him silent in regards to his views. The Defendant Gardner asked Murray how he felt he had been coerced into silence. Murray responded by stating that he had been approached by Principal Legal Advisor Laken who informed him how an individual with Murray's tenure could be replaced based on sub-standard job performance. Gardner then ordered Murray to report to the Defendant ASAC Schreiber's office after the conference.

Id. at 8-9. Murray's charge of coercion, on its face a very serious accusation, set in motion a chain of events which would eventually lead to disciplinary action against Murray. The complaint alleges that SAC Gardner demanded that Murray make formal charges against Laken. Id. at 9. "Gardner stated that he ... needed a memo to start an official investigation into charges that Laken coerced Murray. Murray and Gardner agreed that the memo could be submitted by close of business of November 30, 1981." Id. Murray turned in a "rough draft" on November 30. The draft was wholly unsatisfactory to his supervisors. Though Murray's complaint lacks specificity at this point, it appears that Murray failed to adequately state his allegations concerning coercion and, in his supervisors' view, explain his charges that the furlough system was arbitrary and capricious. Nor did Murray even include his name in the memo. Id. Defendant Schreiber wrote to Murray detailing the dissatisfaction with the memo, stating that Murray's conduct was "unacceptable, unprofessional and bordering on insubordination." Id. at 9-10. "Schreiber verbally advised Murray that he was the subject of an administrative inquiry." Id. at 10. The confrontation grew worse:

22. In compliance with the Schreiber letter of 12/1/81, Paul Murray wrote a detailed letter concerning the allegations of coercion and the arbitrary and capricious nature of the proposed furlough. Murray retrieved his "unacceptable" rough draft from Schreiber. He was not asked to return the rough draft which he had recovered to aid him in reworking his memorandum, but that evening after he had turned in his final memorandum, Schreiber accused him of insubordination for not returning the rough draft.

Id. at 10. Two days later Murray was "confined to perform work in the office rather than his normal duties." Id.

[Murray's supervisor] also told Murray that Vatter [another assistant to Gardner] was referring Murray for discipline to the Office of Professional Responsibility within the Bureau because Murray would not cooperate. On December 11, 1981, Murray was interviewed by Ivan Ford, an FBI agnet [sic] assigned to the Office of Professional Responsibility, who informed him only that they had heard there were some problems at [the Field Office] over the lottery. Murray was asked to tell the agents all about the events surrounding the all employees conference. He was not told by the special agent that he was being investigated, although as the interview progressed, it became apparent that Murray was a target.

Id. at 11. Defendant Oliver Revell, Assistant Director of the FBI, wrote Murray on January 20, 1982, informing him that consideration was being given to a number of disciplinary actions which might be taken against Murray. The same letter also notified Murray of a number of procedural protections due him given the kind of discipline contemplated:

(1) review of the entire matter by an executive assistant director of the FBI; (2) the right to respond to all charges; (3) use of an attorney in all future proceedings; (4) a written decision from an executive assistant director of the FBI shortly after thirty days from the date of the January 20 letter; (5) a copy of all supporting documents used by the Bureau in pursuit of the action; (6) appeal to the Merit Systems Protection Board if the proposed [30 day] suspension should go into effect.

Id. at 12. Murray responded to this letter on January 28, 1982. No action was taken against Murray until March 11, 1982:

37. On March 11, 1982, Paul Murray received a letter of that date from Oliver Revell. At no time between the date of the initial Revell letter and this one had Murray's retained attorney been contacted by the FBI regarding the charges, and all efforts by Murray to involve his attorney in such meetings with his supervisors had been rebuffed by the supervisors.

38. In the March 11, 1982 letter, Revell notified Murray that he was suspended without pay for fourteen (14) days and that he was on probation for six months. In that letter Murray was told, although this was never mentioned to him previously as part of the investigation, that the situation was caused by personal problems that Murray was having with his son. The letter continued: "these problems were accentuated by your fear, however misguided, of being furloughed and how this would affect your current attempt to gain custody of your son." ...

39. In the March 11, 1982 letter Revell also states that Murray's counter-allegations in his January 28 letter were reviewed in depth and proven to be without substance, yet Revell offered not one shred of evidence that demonstrates that the counter-allegations are without substance....

40. The March 11 Revell letter continues by saying that it is the FBI's duty to protect long term employees from episodic abhorrent conduct caused by an employee's personal problems. Revell then wrote that Murray was suspended...