Hubbard v. E.P.A., s. 90-5250

Citation949 F.2d 453
Decision Date02 March 1992
Docket NumberNos. 90-5250,90-5233,s. 90-5250
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeals from the United States District Court for the District of Columbia (Civil Action No. 83-00564).

John D. Bates, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., R. Craig Lawrence and Mark E. Nagle, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant in 90-5250 and appellee in 90-5233.

Peter B. Broida, Arlington, Va., for appellee in 90-5250 and appellant in 90-5233.

Before EDWARDS and WALD, Circuit Judges, and FAIRCHILD, * Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Opinion concurring in part and dissenting in part filed by Circuit Judge WALD.

HARRY T. EDWARDS, Circuit Judge:

In 1982, Michael Hubbard applied for but was denied a job with the Environmental Protection Agency ("EPA"). The District Court found that EPA acted unlawfully in failing to hire Hubbard because of his exercise of First Amendment rights. The District Court ruled that, as appropriate equitable relief, Hubbard was entitled to be instated as a criminal investigator at EPA, at a grade and pay scale equal to that of persons hired in 1982; however, the trial court ruled that Hubbard could not be awarded back pay pursuant to an equitable action under the First Amendment. The District Court also refused to consider Hubbard's claim for attorney's fees under 28 U.S.C. § 2412(d) (1988). Hubbard here appeals from the denial of back pay and the trial court's failure to rule on his request for fees; the Government cross-appeals on the question of liability.

We agree with the trial judge that EPA violated Hubbard's First Amendment rights, so we affirm the judgment of the District Court on the question of liability. We reverse and remand, however, on the judgments with respect to back pay and fees.


This litigation has now consumed a decade; unfortunately, the disagreements between the parties seem as great now as when this law suit was initiated. The history of the case is detailed in the District Court's first judgment issued in 1984, a prior panel opinion of this court reviewing that judgment, a subsequent decision by this court sitting en banc, and two decisions of the District Court rendered following a remand of the case after en banc review. See Hubbard v. EPA, 809 F.2d 1 (D.C.Cir.1986), vacated in part and aff'd sub. nom. Spagnola v. Mathis, 859 F.2d 223 (D.C.Cir.1988) (en banc), on remand, Hubbard v. EPA, 735 F.Supp. 435 (D.D.C.1990), modified, 739 F.Supp. 654 (D.D.C.1990). To put the case in focus, we offer here a brief review of the principal facts.

In 1981, while a detective with the District of Columbia Metropolitan Police Department ("MPD"), Hubbard participated in the highly publicized Capitol Hill drug investigation, pursuing allegations of drug use and distribution by Members of Congress and their staffs. Hubbard's involvement, and apparently the entire investigation, began when he received a tip from members of columnist Jack Anderson's staff, Jack Mitchell and Indy Badhwar. Following the tip, Hubbard arranged, with the help of Anderson's staff, to use a phone in Representative Robert K. Dornan's office as a cover to receive messages. The investigation eventually led to a number of arrests for alleged drug violations.

After the initial arrests in the case became public, Representative Dornan, who was a member of the Select Committee on Narcotics, requested an update on the investigation. Hubbard then met with the congressman, his assistant, Mitchell and Badhwar. Hubbard outlined the investigation and began to name suspects. Representative Dornan cut him off and requested a written memo, which Hubbard later provided; the memo named several suspects. The memo was later sent by Dornan's office to Anderson's office and to the Select Committee. Anderson published several columns about the investigation, although none of the suspects was named in any of the initial stories.

Sometime after publication of the story, officials at MPD removed Hubbard from the investigation; however, upon considering the situation, the MPD Chief of Police rejected a recommendation of disciplinary action against Hubbard. Accordingly, Hubbard was never sanctioned by MPD for any improper communications with Representative Dornan or the press. On this point, the trial court specifically found that "Hubbard's communications regarding the investigation were not insubordinate.... Hubbard was removed from the case after the publicity broke, but ultimately, was neither reassigned nor demoted. It was the considered judgment of his superiors in the police department that Hubbard did not act inappropriately in his communications regarding the investigation." 735 F.Supp. at 439.

In 1982, Hubbard applied for an investigator position with the newly formed Criminal Investigations Division at EPA. EPA's personnel division rated Hubbard's application "highly qualified." He was invited for an interview with Peter Beeson, the hiring official and Division director, William Graff, the chief of investigations, and Gary Steakley, the deputy chief. Both Graff and Steakley recommended that Hubbard be hired. Beeson, however, acted to block Hubbard's application.

Before his interview with Hubbard, Beeson apparently had talked with his fiancee, Laura Kiernan, a Washington Post reporter, about Hubbard's supposed press contacts. Although Kiernan refused to offer any information, Beeson claims to have had a "gut feeling" that Hubbard had made improper contacts with the press during the Capitol Hill investigation. Although Beeson admitted that he acted on these unverified suspicions, he did not share them with Graff or Steakley. As a consequence, Hubbard was told that he was rejected for employment because he lacked the requisite experience in white collar and corporate investigations. The District Court found as follows:

Because Hubbard had veteran's preference status, Beeson was required to prepare a "passover" document to justify selection of any applicant with a lower ranking than Hubbard on the certificate of eligibles. The passover document finally submitted to the EPA Personnel Office indicated that Hubbard was not selected because he lacked the requisite white collar or corporate investigative experience. However, Hubbard had some white collar experience through training and school and, furthermore, had extensive experience in class I felony investigations. This experience satisfied the criteria listed in the Vacancy Announcement. See Joint Exhibit 1 (position requires skill in conducting investigations involving major corporations, white collar crime, and fraud). Moreover, several of the successful applicants had less white collar or corporate experience than Hubbard.

735 F.Supp. at 437.

Later in 1982, Hubbard discovered that MPD colleagues with no corporate or white collar crime investigation experience had been hired. After pursuing administrative remedies, he sued, originally bringing actions under the Privacy Act, 5 U.S.C. § 552a, and the Constitution. Under the Constitution, Hubbard sought both equitable relief based on the First Amendment and Bivens-type damages. After the District Court dismissed all of his claims, Hubbard appealed and this court reinstated his equitable action, but affirmed the dismissal of his damages action. Hubbard v. EPA, 809 F.2d at 11-12; Spagnola v. Mathis, 859 F.2d at 226-30.

Following remand and trial on the First Amendment claim, the District Court found that EPA had refused to hire Hubbard in violation of his First Amendment rights. Hubbard v. EPA, 735 F.Supp. 435 (D.D.C.1990). In its initial opinion on remand, the District Court ruled that Hubbard should be instated and awarded back pay, but that no attorneys' fees would be awarded. Id. at 440. In a subsequent memorandum opinion, 739 F.Supp. 654 (D.D.C.1990), the District Court affirmed its liability ruling but reversed its award of back pay.

Hubbard's appeal challenges the denial of back pay and attorneys' fees. EPA cross appeals, contending that the District Court erred in finding that it violated Hubbard's speech rights.


In Pickering v. Board of Education, 391 U.S. 563, 574, 88 S.Ct. 1731, 1738, 20 L.Ed.2d 811 (1968), the Supreme Court held that an employee's "exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment." In evaluating challenges under Pickering, the courts have utilized a four-prong test:

[T]he Pickering cause of action has four elements. First, the public employee must have been speaking on a matter of public concern. If the speech is not of public concern, "it is unnecessary ... to scrutinize the reasons for [the] discharge," at least "absent the most unusual circumstances." Second, the court must "balance" the interests of the employee, "as a citizen, in commenting upon matters of public interest and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through it employees." Third, the employee must prove that his speech was a substantial or motivating factor in his discharge. Finally, the government employer must be given an opportunity to prove that it would have reached the same decision even absent the protected conduct.

The first two inquiries are questions of law for the court to resolve. The latter two are questions of fact ordinarily left to the jury.

Hall v. Ford, 856 F.2d 255, 258 (D.C.Cir.1988) (citations omitted).


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