Mings v. Department of Justice

• Decision Date: 05 March 1987
• Docket Number: No. 86-1277,86-1277
• Citation: 813 F.2d 384
• Parties: Dwayne T. MINGS, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 384

813 F.2d 384

Dwayne T. MINGS, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent.

Appeal No. 86-1277.

United States Court of Appeals, Federal Circuit.

March 5, 1987.

Thomas J. Griffith, Lubbock, Tex., argued, for petitioner. With him on the brief was George E. Gilkerson, Lubbock, Tex.

Tamra Phipps, of the Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for respondent. With her on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, and Robert A. Reutershan, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C.

Before FRIEDMAN, Circuit Judge, BALDWIN, Senior Circuit Judge, and ARCHER, Circuit Judge.

FRIEDMAN, Circuit Judge.

The petitioner challenges a decision of the Merit Systems Protection Board (Board) sustaining his removal from the Immigration and Naturalization Service of

the Department of Justice (agency), on the grounds that the petitioner (1) used insulting and abusive language concerning agency employees and others in a letter to an agency official, and (2) made an implied threat to change his testimony in a suit against the agency unless the agency hired his son, 30 M.S.P.R. 424. We affirm.

I

The petitioner was employed as a border patrol agent in Lubbock, Texas. Effective May 17, 1985, he was removed from his position, based on four charges. After a hearing, the presiding official of the Board sustained two of these charges and affirmed the removal. The full Board refused to review that decision.

The first sustained charge involved the petitioner's use of insulting and abusive language toward agency employees and others in a letter, dated November 16, 1984, that the petitioner wrote on official stationery to James H. Smith, who was then an assistant district director for investigations. The letter strongly criticized the agency's form I-293, which the border patrol used nationwide to notify aliens of hearings, hearing dates, and hearing locations. The letter first asserted that "[t]he I-293 is the poorest example of an official document, and could only have been designed by those desiring to further the give-away [sic] of the U.S. to hispanics." The letter then stated:

All the I-293 accomplishes is to give an illegal alien more time to become further entrenched and hinder the Service efforts in removing him. So why are investigators and border patrol agents passing out I-293 forms? I'll tell you why--those officers are either Catholic, and have not studied the history of those countries that are predominently Catholic (all of them are corrupt, backward, beggarly countries) or they are too damned incompetent to break the aliens off their lies, and too damned lazy to process the aliens!

If someone's feelings get hurt, tough! My country is worth more than some Catholic's pride. The truth is--I have to smuggle the illegal aliens by my own Catholic Chiefs, District Directors, etc., etc. in order to get them out of the United States.

....

There are many persons in this service who need to be challenged where their loyalty lies; with the United States??

(Grammar, punctuation and spelling are as in original.)

The Board found that the petitioner's letter contained insulting and abusive language disparaging Catholics, Hispanics and agency employees, and that the agency could reasonably apprehend that the petitioner's attitude would adversely affect his ability to act impartially in performing his duties as a law enforcement agent. The Board ruled that the first amendment did not bar disciplinary action against the petitioner based upon the letter, since the letter related only "peripherally to a matter of public concern," and was likely to have a seriously disruptive impact on agency operations.

The second sustained charge was that the petitioner made an implied threat to change his testimony in a pending case to coerce the agency to hire the petitioner's son. This charge was based on a conversation that the petitioner had with Michael Creppy, a Department of Justice attorney who represented the agency in the trial of Ortega v. Rowe. Ortega was a class action suit against the agency brought by aliens who alleged that local jails in which they were confined were unsafe and unsanitary. The petitioner met with Mr. Creppy on September 29, 1984. At this time, the petitioner had already testified as a witness for the government in the Ortega case, but there was a possibility that he would later be called as a witness for the plaintiffs.

According to the presiding official, Mr. Creppy testified at the Board hearing that during his conversation with the petitioner, the petitioner informed him that his son had recently failed the oral portion of the border patrol examination and attempted to show Mr. Creppy a folder of jobs with the agency that the petitioner's son had applied for and had not received. Mr. Creppy further The petitioner gave a different version of his conversation with Mr. Creppy. According to the petitioner, he made contact with Mr. Creppy in order to inform Mr. Creppy that he believed that his earlier testimony in the Ortega case had been viewed as unfavorable to the government, and that the agency had refused to hire his son in retaliation for this testimony. The petitioner denied threatening to alter his testimony in the Ortega case.

testified that the petitioner "stated that he was going to let the judge know the true conditions of the jail."

In sustaining the charge that the petitioner had used an implied threat in an attempt to coerce a government official, the presiding official found Mr. Creppy to be a "credible" witness who testified in a "direct and forthright manner," but that the petitioner's testimony was implausible and inconsistent.

II

The petitioner challenges the Board's decision sustaining his removal on three grounds. First, he contends that his May 16, 1984 letter to the assistant director of the agency was protected by the first amendment and could not be a basis for his removal. Second, he argues that substantial evidence does not support the Board's finding that he made an implied threat to change his testimony in an effort to secure employment for his son. Finally, the petitioner claims that the agency failed to establish a causal nexus between his removal and the efficiency of the service, and that the penalty imposed was grossly disproportionate to the misconduct involved.

A. First Amendment Protection. On several occasions the Supreme Court has considered the scope of the first amendment protection applicable to speech by public employees. See, e.g., Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Although the Court has recognized that a public employee has a constitutionally protected interest in freedom of expression, see Connick, 461 U.S. at 142, 103 S.Ct. at 1687, the Court has ruled that in determining the measure of that right, the employee's interest must be balanced against the need of government officials for "wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Id. at 146, 103 S.Ct. at 1690. Accordingly, the determination of the free speech rights of government employees involves:

a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. Accord Connick, 461 U.S. at 142, 103 S.Ct. at 1687; Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 414, 99 S.Ct. 693, 695, 58 L.Ed.2d 619 (1979); Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 284, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977).

Applying the Supreme Court's balancing test requires a two-part analysis. It is necessary to determine (1) whether an employee's statement addressed a matter of public concern and, if so, (2) whether the interest of the governmental agency in promoting the service it performs outweighs the employee's interest as a citizen. Brown v. Department of Transp., FAA, 735 F.2d 543, 546 (Fed.Cir.1984).

1. Matter of Public Concern. The petitioner wrote a letter to an agency director, on agency stationery, in which he criticized the agency's nationwide use of form I-293 to notify aliens of their hearing rights. The petitioner did not confine his comments to the alleged deficiencies of the form, however, but instead used the letter as a vehicle for a personal diatribe against Hispanics, Catholics, and the competency of the agency's border patrol.

The first amendment "does not require a public office to be run as a roundtable for employee complaints over internal office affairs." Connick, 461 U.S. at 149, 103 S.Ct. at 1691. Accordingly, where speech involves only internal agency grievances rather than matters of "political, social, or other concern to the community," the speech does not involve matters of public concern. Id. at 146, 103 S.Ct. at 1690 (speech did not involve matter of public concern where employee distributed a questionnaire to other employees regarding agency transfer procedures); see also Fiorillo v. Department of Justice, 795 F.2d 1544, 1550 (Fed.Cir.1986) (speech did not involve matter of public concern where prison guard released damaging statements about prison to the press); Roseman v. Indiana Univ., 520 F.2d 1364, 1367-68 (3d Cir.1975), cert. denied, 421 U.S. 921, 96 S.Ct. 1128, 47 L.Ed.2d 329 (1976) (speech did not involve matter of public concern where university faculty member made critical remarks regarding the chairman of her department).

We agree with the Board that under this standard the petitioner's...