Bullard v. Webster, 78-3421

• Decision Date: 13 August 1980
• Docket Number: No. 78-3421,78-3421
• Citation: 623 F.2d 1042
• Parties: Louis S. BULLARD, Special Agent, FBI, Plaintiff-Appellee Cross-Appellant, v. William H. WEBSTER et al., Defendants-Appellants Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1042

623 F.2d 1042

Louis S. BULLARD, Special Agent, FBI, Plaintiff-Appellee Cross-Appellant, v. William H. WEBSTER et al., Defendants-Appellants Cross-Appellees.

No. 78-3421.

United States Court of Appeals Fifth Circuit.

Aug. 13, 1980.

Robert E. Hauberg, U. S. Atty., Jackson, Miss., Robert E. Kopp, Patricia G. Reeves, App. Staff, Civ. Div., Dept. of Justice, Washington, D.C., for defendants-appellants cross-appellees.

Alben N. Hopkins, Gulfport, Miss., for plaintiff-appellee cross-appellant.

Appeals from the United States District Court for the Southern District of Mississippi.

Before THORNBERRY, ANDERSON and THOMAS A. CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellant William H. Webster, Director of the Federal Bureau of Investigation (FBI), appeals from a judgment of the United States District Court for the Southern District of Mississippi granting a permanent injunction against the lateral transfer of Special Agent Louis S. Bullard from Gulfport, Mississippi, to Newark, New Jersey. Appellant claims that the grant of the permanent injunction was improper because the FBI's decision to transfer a special agent is not judicially reviewable. In the alternative, if a broader standard of review is applicable, appellant contends that Bullard did not possess a property interest in remaining in his office of preference and there was thus no violation of the due process clause. Bullard cross-appeals, claiming he is entitled to attorney's fees. We reverse the district court with respect to the merits of the case and affirm as to the attorney's fees.

Louis Bullard is a Special Agent of the FBI. He has been assigned to the FBI office in Gulfport, Mississippi since 1968. In late 1977, Bullard was investigated by the FBI on charges of misconduct involving his guarding of a female juror who had signed a statement admitting that she accepted a bribe in order to cause a hung jury. An obstruction of justice investigation was instituted and several FBI agents were assigned to protect her in a Gulfport, Mississippi motel. Bullard and a second agent were assigned the shift from 4:00 p. m. to midnight. When their replacements arrived, they learned that Bullard and the second agent were in the motel bar with the juror. The second agent escorted the juror back to the motel room. When Bullard later appeared, he was carrying an alcoholic beverage and he had alcohol on his breath and impaired speech. Other agents observed Bullard enter the juror's room and close the door. He was later found lying on the bed, fully clothed, next to the juror while watching television. Later that night, Bullard drove home in a government automobile while apparently in somewhat of an intoxicated state. By a letter dated January 17, 1978, Bullard was censured, placed on probation, and suspended for five days beginning January 18, 1978 after a review of his misconduct by FBI headquarters.

During the course of the investigation of Bullard, the Assistant Special Agent in charge of the Jackson, Mississippi office concluded that Bullard's effectiveness in the Jackson Division had been damaged. His working relationship with other agents and the United States Attorney's Office in Jackson had become significantly impaired. Therefore, the Special Agent in charge recommended that Bullard be transferred to another office. The transfer was not recommended as further disciplinary action for the incident that occurred in November 1977. The Administrative Services Division at FBI headquarters agreed that Bullard had lost his effectiveness in Jackson and recommended that he be transferred. A decision was made at FBI headquarters to transfer Bullard to Newark, New Jersey, effective March 1, 1978. Newark was chosen because that office was critically understaffed and because it specifically needed accountants. Bullard was an accountant.

Following the FBI's denial of Bullard's request to delay his transfer until he could prepare an administrative appeal using information requested under the Freedom of Information Act, Bullard filed an action for permanent injunctive and declaratory relief in the United States District Court for the Southern District of Mississippi on February 24, 1978. The district court entered temporary restraining orders on February 27, 1978 and March 10, 1978, directing the FBI not to transfer Bullard and not to interfere with his right to an administrative appeal or to obtain documents through FBI channels.

The district court conducted a hearing on the question of whether to issue a preliminary injunction on March 16, 1978. Testimony was presented by the acting Special Agent in charge of the Jackson Division, the current Special Agent in charge of the Jackson Division, and a representative from FBI headquarters. Bullard also testified that he had consented to the following written condition in 1962:

It is understood you are to proceed on orders to any part of the United States or its possessions where the exigencies of the service may require, and it should be clearly understood that you will be completely available for any assignment whatever and whenever the needs of the service demand * * *. Further, you cannot expect assignment to an office of your own preference.

In addition, Bullard admitted that he had initialled a similar agreement to be transferred each year and as recently as March 1977.

After the hearing, the district court granted permanent injunctive relief on May 17, 1978 from the transfer, pending the exhaustion of Bullard's administrative appeal. On March 24, 1978, the government filed a "Notice of Delivery of Records" stating that the FBI had given Bullard all of the documents and materials he had requested. On April 19, 1978, the FBI filed a motion to vacate the injunction on the grounds that Bullard had not yet made an attempt to pursue an administrative appeal. A hearing was held on the motion to vacate on June 30, 1978. The district court denied the motion to vacate on July 5, 1978, because Bullard had pursued his administrative appeal on June 28, 1978. On July 28, 1978, the FBI Director wrote to Bullard and advised him that:

I have reviewed this entire matter and find that the action taken in your transfer out of Gulfport, Mississippi, and to Newark, New Jersey, was completely justified. The transfer decision was based upon information developed during an administrative inquiry into this matter and included in your statements.

I find no basis for reversing the transfer action taken by this Bureau and your appeal is hereby denied.

Another hearing was held on August 30, 1978. On September 19, 1978, the district court entered a final judgment in favor of Bullard that permanently enjoined his transfer from Gulfport. This appeal follows.

I. Reviewability of Transfer Decision.

As a general rule, a person who suffers a legal wrong because of an agency action or who is adversely affected or aggrieved by an agency action within the meaning of a relevant statute is entitled to judicial review of the agency action. ¹ 5 U.S.C. s702. ¹ The actual language of § 702 is as follows:

The burden of proving nonreviewability is that of the agency involved. See Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). That burden is much easier in this case because special agents of the FBI are not afforded many of the procedural safeguards available to other government employees. First, persons in the FBI are excepted from the competitive civil service. 28 U.S.C. § 536. Therefore, FBI employees do not have the procedural rights guaranteed members of the competitive civil service. 5 U.S.C. § 7501(b). Also, Bullard is not a "preference eligible veteran," a status that would afford him additional protections. 5 U.S.C. § 7512. Therefore, neither the protections of the Administrative Procedure Act, 5 U.S.C. § 7501 et seq., nor the Veterans Preference Act, 5 U.S.C. § 7511 et seq. are available to Bullard.

In the absence of a statute that explicitly precludes judicial review, an agency action is committed to the agency's discretion and is not reviewable when an evaluation of the legislative scheme as well as the practical and policy...