Martin v. Lauer, 83-1991

• Decision Date: 27 July 1984
• Docket Number: No. 83-1991,83-1991
• Citation: 740 F.2d 36
• Parties: Emily C. MARTIN, et al. v. Charles A. LAUER, Acting Administrator, Office of Juvenile Justice and Delinquency Prevention, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 36

740 F.2d 36

238 U.S.App.D.C. 286

Emily C. MARTIN, et al. v. Charles A. LAUER, Acting Administrator, Office of Juvenile Justice and Delinquency Prevention, et al., Appellants.

No. 83-1991.

United States Court of Appeals District of Columbia Circuit.

Argued April 17, 1984.

Decided July 27, 1984.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-0587).

Douglas Letter, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellants. William Kanter, Washington, D.C., also entered an appearance for appellants.

Mona Lyons, Washington, D.C., with whom John W. Karr, Washington, D.C., was on the brief, for appellees.

Before TAMM and EDWARDS, Circuit Judges, and HAYNSWORTH, ^* Senior Circuit Judge, United States Court of Appeals for the Fourth Circuit.

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

Dissenting opinion filed by Senior Circuit Judge HAYNSWORTH.

HARRY T. EDWARDS, Circuit Judge:

In March 1982, plaintiffs Emily Martin and David West brought suit against their employer, the Office of Juvenile Justice and Delinquency Prevention (OJJDP), and the agency's acting administrator, Charles Lauer. The plaintiffs argued that by imposing various restrictions on their right to communicate with counsel, OJJDP and Lauer (the defendants) had violated the

                First Amendment and various provisions in the Civil Service Reform Act of 1978, 5 U.S.C. Secs. 2301, 2302 (1982).  Although the plaintiffs' claims were dismissed by the District Court, Martin v. Lauer, No. 82-0587 (D.D.C. Mar. 19, 1982) ("Martin I"), this decision was reversed on appeal by this court on First Amendment grounds.   Martin v. Lauer, 686 F.2d 24 (D.C.Cir.1982) ("Martin II ").  After settling the remaining disputes in the case, the plaintiffs successfully applied for an award of attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412 (1982).  562 F.Supp. 503.  In this appeal we are asked to review this award.  After careful consideration of the parties' contentions, we conclude that the award must be affirmed in part and reversed in part
                

BACKGROUND

The plaintiffs are employed by OJJDP in senior-level management positions. On December 3, 1981, they and other OJJDP employees received notification that because of budgetary constraints the OJJDP would soon have a reduction in force (RIF). Although the defendants indicate that the plaintiffs' jobs were secure, the plaintiffs joined a majority of OJJDP employees in retaining counsel to contest this personnel action. On February 23, 1982, the plaintiffs notified defendant Lauer of their participation in an anticipated lawsuit challenging the RIF.

Lauer responded the next day with a memorandum imposing prospective and retrospective restrictions on the plaintiffs' communications with counsel. Paragraphs three and five of the memorandum provided as follows:

3. You may not provide information or documents to the attorney representing these employees or to any other person assisting the employees or that attorney. In addition, there is a Department of Justice regulatory procedure governing the release of information involving litigation (See 28 C.F.R. Sec. 16.21 et seq.). Employees are prohibited from releasing any information, producing any materials or disclosing any information in those materials except with the approval of the appropriate Department official which in this matter would be the Assistant Attorney General of the Civil Division.

Any requests under the Freedom of Information Act should not be responded to until I have been informed of the nature of the request and the information that you propose to release in response to that request. I will then consult with the Office of General Counsel concerning the release of the information. This restriction is intended to allow the Federal Government to assert any exemptions that it may be entitled to under the Freedom of Information Act (5 C.F.R. Sec. 735.206).

....

5. If you or your employees have already provided information or documents to the attorney, either directly or indirectly, I want a report concerning all oral information provided and a copy of all such documents delivered to me by February 26.

Memorandum From Charles Lauer To Emily Martin & David West 2 (Feb. 24, 1982). The memorandum warned that senior-level managers would "not be permitted to take actions which violate DOJ regulations or impinge upon the ability of DOJ counsel to effectively defend the Government in litigation. I will not hesitate to take immediate and appropriate disciplinary action to assure that the Government's interests are protected." Id. at 3.

On March 1, 1982, the plaintiffs filed suit alleging that these restrictions violated the First Amendment and the "whistleblower" provisions in the Civil Service Reform Act of 1978. 5 U.S.C. Secs. 2301, 2302 (1982). While considering the plaintiffs' request for injunctive relief, the District Court judge directed the parties to attempt an informal resolution of the dispute. After counsel for the parties met, Lauer issued a temporary "Clarification Memorandum" on March 4, modifying paragraphs three and 3. Paragraph 3 has been narrowed to prohibit you from disclosing any Government information which could be subject to the Privacy Act and that may result in an unwarranted invasion of personal privacy if it is released. This includes information contained in the official personnel file of an agency employee (other than your own file) or any other information which may have identifying characteristics to a particular employee and which may amount to an unwarranted invasion of personal privacy if released. Any questions concerning particular information should be presented to me or to the Office of General Counsel. Because of the inherent conflict between your duties as a manager and Government employee and your participation in the preparations for the proposed lawsuit, it would be improper for you to make a decision concerning the release of any such information. This modification is effective until further notice.

five of the original memorandum in the following manner:

....

5. The deadline under Paragraph 5 is extended until there is a resolution of this matter by the District Court or by agreement between the parties involved.

Memorandum From Charles Lauer To Emily Martin & David West 2 (Mar. 4, 1982). The plaintiffs subsequently filed a Praecipe with the court withdrawing their application for a temporary restraining order because "it appears that defendant Lauer's second memorandum will preserve the status quo ante pending this Court's resolution of this case on the merits." Martin I, No. 82-0587 (D.D.C. Mar. 4, 1982) (Praecipe ).

It should be emphasized that the March 4 modifications were temporary. As this court observed in its prior consideration of this case in Martin II, "[a]lthough the clarification memorandum appeared to narrow the issues in this case, the government's brief opposing [plaintiffs'] motion for a preliminary injunction made clear that the government would return to the broader requirements of the February 24th memorandum if it prevailed before the district court." Martin II, 686 F.2d 24, 29 (D.C.Cir.1982) (footnote omitted). See Defendants' Memorandum of Points and Authorities in Opposition To Plaintiffs' Motion For a Preliminary Injunction 4 (Mar. 8, 1982) (The discussions between the parties "resulted in a subsequent memorandum to plaintiffs from Mr. Lauer dated March 4, 1982 which clarified and modified some of the restrictions contained in the February 24 memorandum. If the government prevails in this action, the scope of the information which is restricted from being disclosed will be broadened to include any government information.") (emphasis added). Hence, in Martin II, this court characterized the defendants' "position" before the trial court as follows: "the clarification memorandum withdrew any need for preliminary injunctive relief, but [the plaintiffs'] case on the merits should be decided with respect to the original memorandum." Martin II, 686 F.2d at 29 n. 17.

At a March 15 proceeding before the District Court, the defendants continued to assert the need for broad restrictions on disclosure of government information. ¹ Although they made generalized statements concerning this necessity, the defendants did not proffer evidence to show that the plaintiffs had access to, or intended to disclose, sensitive government information. ²

Nor did they respond to the plaintiffs' contention that the defense of the restrictions was "replete with vague and abstract references to defendants' interest" ³ without any specification of the information that concerned the government. ⁴

During the March 15 hearing, the plaintiffs argued that the challenged restrictions were sweeping prior restraints on their right to communicate with counsel and contravened the First Amendment. Their attorney emphasized that disclosure of sensitive material was not involved in this case, and repeatedly represented to the trial court that she had "not asked for, nor ... received from [the plaintiffs], information that ... could even arguably be within the reach of a Fourth Amendment or a Privacy Act consideration." Transcript of March 5, 1982 Proceeding, at 43 (Mar. 15, 1982). ⁵ The attorney then indicated that she was immediately willing to show the court in camera all documentary material supplied by the plaintiffs. Id. at 44.

Later during the proceedings before the trial court, the District Court judge, without any objection from the parties, stated that he would decide the case on the merits, based on the papers as supplemented by any proffers made by the parties. See Transcript of March 15, 1982 Proceeding, at 50, 60 (Mar. 15, 1982). The trial court...