McCabe v. Barr, Civil Action No. 19-2399 (RDM)

• Decision Date: 24 September 2020
• Docket Number: Civil Action No. 19-2399 (RDM)
• Citation: 490 F.Supp.3d 198
• Parties: Andrew G. MCCABE, Plaintiff, v. William P. BARR, in his official capacity as Attorney General of the United States, et al., Defendants.
• Court: U.S. District Court — District of Columbia

490 F.Supp.3d 198

Andrew G. MCCABE, Plaintiff,

v.William P. BARR, in his official capacity as Attorney General of the United States, et al., Defendants.

Civil Action No. 19-2399 (RDM)

United States District Court, District of Columbia.

Signed September 24, 2020

Murad Hussain, Arnold & Porter Kaye Scholer LLP, Washington, DC, for Plaintiff.

Justin Michael Sandberg, Kyla Marie Snow, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge Plaintiff Andrew McCabe brings this action against the Department of Justice ("DOJ") and the Federal Bureau of Investigation ("FBI"), alleging that he was unlawfully demoted from his position as Deputy Director of the FBI in January 2018 and then fired from his career civil service position in March 2018—on the night of his planned retirement—based on his perceived political affiliation, decision not to vote for then-candidate Trump in the 2016 presidential election, and unwillingness to pledge his personal loyalty to President Trump. Dkt. 1. The Complaint asserts five claims based on alleged violations of the First Amendment and the due process clause of the Fifth Amendment. Id. at 37–47. Defendants move to dismiss, in part, for lack of subject matter jurisdiction and, in part, for failure to state a claim upon which relief can be granted and move, in the alternative, for summary judgment, in part. Dkt. 23. In Defendants’ view, the Court lacks jurisdiction over Plaintiffs’ statutory and regulatory claims, while his constitutional claims fail on both the law and the facts. Most significantly, Defendants contend that Plaintiff was not fired because of his perceived political affiliation, vote in the 2016 presidential election, or refusal to pledge personal loyalty to the President but because he lacked candor (including under oath) in an investigation conducted by the FBI's Inspection Division and the DOJ's Office of Inspector General. Dkt. 23 at 13–18.

As explained below, portions of Defendants’ motion are premised on a misunderstanding of the claims that Plaintiff asserts (and does not assert), while the remainder of the motion turns on disputed questions of fact that the Court cannot resolve at this stage of the proceeding. In short, it is too early in the case to determine which, if either, of the parties’ competing versions of the relevant facts is correct. The Court will, accordingly, DENY Defendants’ motion and will set a schedule for discovery and further proceedings.

I. BACKGROUND

To the extent Defendants move to dismiss for failure to state a claim, the Court must accept the allegations contained in the Complaint as true and, to the extent they move for summary judgment, the Court must view the evidence in the light most favorable to Plaintiff. See Owens v. BNP Paribas, S.A. , 897 F.3d 266, 272 (D.C. Cir. 2018) ; McCready v. Nicholson , 465 F.3d 1, 7 (D.C. Cir. 2006).

A. Factual Background

Plaintiff Andrew McCabe was employed by the FBI from July 1996 until March 2018. Dkt. 1 at 8 (Compl. ¶ 22). Over the course of his lengthy career, McCabe "was never a political appointee" and was promoted to the FBI Senior Executive Service in 2009. Id. (Compl. ¶¶ 27–28). He served as Deputy Director from February 1, 2016, id. at 9 (Compl. ¶ 29), until January 2018 according to McCabe, id. at 4 (Compl. ¶ 7), and until March 2018 according to Defendants, Dkt. 23 at 48 (Defs’ SUMF ¶ 51).

In 2015, prior to his promotion to Deputy Director, McCabe's wife, Dr. Jill McCabe, ran for Virginia state senate as a Democrat, ultimately losing to the Republican incumbent in Virginia's November 2015 election. Dkt. 1 at 12 (Compl. ¶ 47). McCabe attests that prior to his wife announcing her candidacy, he consulted with various "FBI officials, including [the] FBI Deputy Director, FBI General Counsel, [the FBI Director's] Chief of Staff, and [the] FBI chief ethics officer, to ensure [that he] complied with government ethics obligations and avoided conflicts of interest." Dkt. 27-21 at 2 (McCabe Decl. ¶ 6). "None of those officials," according to McCabe, "expressed any concerns about [Dr. McCabe's] campaign," and the FBI provided him "with specific ethics guidance," which he "followed." Id. (McCabe Decl. ¶¶ 7–8).

In the summer of 2015, amidst Dr. McCabe's campaign, Plaintiff and Dr. McCabe attended their "children's swim meet, where [Plaintiff] posed for a family photograph in which [they] all wore campaign T-shirts that read ‘DR. JILL MCCABE FOR STATE SENATE.’ " Id. (McCabe Decl. ¶ 9). The photograph was later posted on a social media account for Dr. McCabe's campaign. Dkt. 1 at 13 (Compl. ¶ 50). The photo did not mention McCabe's employment with the FBI and "did not violate the ethics guidance that the FBI had provided" to Plaintiff. Dkt. 27-21 at 2 (McCabe Decl. ¶ 10). The same year, and of particular importance to this case, Dr. McCabe's campaign received a $467,500 contribution from a political action committee, "Common Good VA," which was affiliated with then-Governor Terence R. McAuliffe, a Democrat. Dkt. 1 at 13 (Compl. ¶ 51). Plaintiff attests that he had no knowledge of the donation until late October 2016. Dkt. 27-21 at 2 (McCabe Decl. ¶ 11); Dkt. 1 at 13 (Compl. ¶ 52).

The U.S. presidential primaries meanwhile commenced, with former Secretary of State Hillary Clinton announcing her candidacy in April 2015 and now-President Trump announcing his candidacy in June 2015. Dkt. 1 at 10 (Compl. ¶¶ 39–40). In July 2015, the FBI opened an investigation into Secretary Clinton's use of a private email server while she was serving as Secretary of State. Id. (Compl. ¶ 40). According to Plaintiff, he played no role in this investigation prior to his promotion to Deputy Director in February 2016. Dkt. 27-21 at 3 (McCabe Decl. ¶¶ 13–14). On July 5, 2016, FBI Director James Comey announced the conclusion of the Clinton email investigation and his recommendation that the facts did not support bringing criminal charges against Secretary Clinton. Dkt. 1 at 12 (Compl. ¶ 45). Several weeks later, on July 31, 2016, the FBI allegedly began a counter-intelligence investigation into whether individuals associated with the Trump campaign were linked to the Russian-government-backed efforts to interfere with the 2016 presidential election. Dkt. 27-21 at 3 (McCabe Decl. ¶ 15).

On October 23, 2016, the Wall Street Journal ("WSJ ") published an online article, which was published in the paper's print edition the following day, reporting that Dr. McCabe had received a campaign contribution from a political action committee affiliated with Governor McAuliffe; describing the Governor's close relationship with Bill and Hillary Clinton; and asserting that Plaintiff subsequently "helped oversee" the investigation into Secretary Clinton's use of a private email server. Devlin Barrett, Clinton Ally Aided Campaign of FBI Official's Wife , Wall St. J., https://www.wsj.com/articles/clinton-ally-aids-campaign-of-fbi-officials-wife-1477266114 (last updated Oct. 24, 2016); see also Dkt. 27-30 at 22 (Pl's Resp. to Defs’ SUMF ¶ 13); Dkt. 31 at 46–47 (Defs’ Resp. to Pl's CSUMF ¶ 13). The next day, then-candidate Trump asserted at a campaign rally:

[O]ne of the closest people to Hillary Clinton [...] gave more than $675,000 to the campaign of the spouse, the wife of the top FBI official, who helped oversee the investigation into Mrs. Clinton's illegal email server. So the man that was investigating her from the FBI, his wife runs for office and they give her more than $675,000 to run. [...] And it's unbelievable how Hillary Clinton got away with the email lie, the email scam, the email corruption, but now at least we have a pretty good idea.

Dkt. 1 at 14 (Compl. ¶ 54). A day later, on October 25, 2016, President Trump returned to the subject, stating during an interview with Fox News:

Terry McAuliffe, they gave to the FBI person at the high level, who was doing the investigation, who was in charge of the investigation. They gave his wife $675,000. Now you think of that. Now, that's Clinton giving the money because that's how close they are. So Clinton gave the FBI agent, who was—top person, who's the top person in charge of her email case, which is a disgrace that she got off of that. [...] She gave money at a huge clip, $675,000, to the wife of the FBI agent who was in charge of her investigation.

Id. (Compl. ¶ 55). After the election, President Trump continued to make similar statements about Plaintiff and his wife. See e.g., id. at 24–27 (Compl. ¶¶ 95, 101–02, 104).

On October 30, 2016, the WSJ ran a follow-up story regarding Plaintiff's oversight of a second, politically sensitive investigation. Dkt. 23 at 41–42 (Defs’ SUMF ¶ 4); Dkt. 23-2 at 21 (Ex. 1). But before the story ran, Plaintiff authorized his Special Counsel, Lisa Page, to speak with the reporter in an effort to preemptively correct the story. Dkt. 27 at 17; Dkt. 27-1 at 10 (Hussain Decl. ¶ 11); Dkt. 27-21 at 8 (McCabe Decl. ¶¶ 30–31). According to a report prepared by the DOJ's Office of the Inspector General ("OIG") after the fact, Plaintiff sought to correct the reporter's belief that Plaintiff had stopped the second investigation. Dkt. 23-2 at 20–21 (Ex. 1). For support, Plaintiff disclosed to Page a conversation he had with the DOJ Principal Associate Deputy Attorney General ("PADAG"), in which the PADAG "expressed anger at [Plaintiff]" for not "shut[ting] down the Clinton Foundation investigation." Id. at 21. Plaintiff further informed Page that he "pushed back against" the PADAG, telling "him that the FBI would continue to take appropriate and logical investigative steps in the Clinton Foundation investigation." Id. Page then recounted this conversation to the reporter on background, and the reporter included it in his story without disclosing his source. Id. at 21–22.

On October 31, 2016, Plaintiff met with Director Comey, who raised the October 30, 2016 WSJ article. Id. at 22–23. The parties...