Ryan v. U.S. Dept. of Justice, 91-1467

• Citation: 950 F.2d 458
• Decision Date: 09 December 1991
• Docket Number: No. 91-1467,91-1467
• Parties: 57 Fair Empl.Prac.Cas. (BNA) 854, 57 Empl. Prac. Dec. P 41,113, 60 USLW 2451 John C. RYAN, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 458

950 F.2d 458

57 Fair Empl.Prac.Cas. (BNA) 854,

57 Empl. Prac. Dec. P 41,113, 60 USLW 2451

John C. RYAN, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee.

No. 91-1467.

United States Court of Appeals Seventh Circuit.

Argued Oct. 15, 1991.

Decided Dec. 9, 1991.

Arthur G. Greenberg (argued), Jeremy H. Heiple, Westervelt, Johnson, Nicoll & Keller, Peoria, Ill., for plaintiff-appellant.

David Hoff, Asst. U.S. Atty., Danville, Ill., James A. Lewis, Asst. U.S. Atty. (argued) Springfield, Ill., for defendant-appellee.

Before CUMMINGS, WOOD, Jr., and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Incidents of vandalism at military recruiting facilities in October 1986 were accompanied by messages linking the destruction to pacifist groups. The next month the FBI issued a memo identifying the groups "Veterans Fast for Life" and "Plowshares" as potentially responsible and instructing agents "to contact logical law enforcement departments and other sources deemed appropriate to determine any similar incidents." A copy came to John C. Ryan, who was in charge of domestic security and terrorism investigations at the FBI's office in Peoria, Illinois. Ryan replied with a memo of his own:

Because of writer's personal, religious, and human beliefs concerning the issues that appear to be involved, writer is not willing to conduct this lead or be involved in this case and feels the FBI is ill-advised to be so involved in this case as a Domestic Security/Terrorism; Sabotage case based on the following reasons:

1. The acts performed by the "PLOWSHARES" Group, although clearly involving Destruction of Government Property, have been consistently nonviolent symbolic statements against violence....

Agent James Swinford volunteered to swap assignments with Ryan. He declined. An agent had taken off Ryan's hands an earlier order to investigate a group of peace activists including nuns and priests; this time Ryan chose confrontation. Thomas Jones, then the agent in charge of the Springfield, Illinois, office (of which the Peoria office is a branch), expressly instructed Ryan to carry out the order, adding that refusal "would leave me no choice but to initiate insubordination proceedings against you." Ryan replied: "Writer's stance remains as set forth".

Jones charged Ryan with insubordination, and the FBI commenced a lengthy process of recommendations and responses by multiple layers of the bureaucracy. In August 1987 the file reached John D. Glover, the Executive Assistant Director of the FBI and its highest authority in personnel matters. Glover fired Ryan, concluding (as he later testified) that refusal to carry out a lawful direct order is unpardonable--especially as Ryan would not promise to conduct future investigations into the activities of antiwar groups and expressed doubt whether he could arrest persons unlawfully demonstrating at a local military facility. Ryan, an agent with 21 years of exemplary service, was sacked only nine months before his 50th birthday, when he would have been eligible to retire with immediate pension. Ryan now must wait until he turns 62 before beginning to receive a (smaller) pension. The present value of the loss is approximately $500,000.

Ryan pursued his administrative remedies. First an administrative law judge, and then the Merit Systems Protection Board, concluded that discharge is an appropriate response to refusal to investigate, and that the FBI is not obliged to accommodate religious beliefs that interfere with its mission. The district court, reviewing the administrative record under 5 U.S.C. § 7703(b)(2), concluded that the MSPB's decision is consistent with law and supported by substantial evidence. Next the court held a trial de novo on Ryan's complaint of religious discrimination under Title VII of the Civil Rights Act of 1964. The district court concluded that the FBI did not discriminate against Ryan on account of his beliefs but instead had enforced a neutral, reasonable rule. Glover testified at the trial that he had agonized over the decision in light of Ryan's good record and proximity to eligibility for retirement but concluded in the end that the Bureau could not tolerate agents who insisted, for any reason, on being able to choose among assignments. Never in the history of the FBI had an agent flatly refused to carry out an investigation; Glover decided not to allow the camel's nose inside the tent. The district court wrote: "[T]he sincerity of the witness Glover and his reluctance to do what he did was evident. Nothing in the record describing the actions of Mr. Ryan's fellow agents suggests that they were motivated in any way by religious discrimination."

Ryan, a Roman Catholic, believes that the U.S. Bishops' Pastoral Letter on War and Peace, issued May 3, 1983, shows the impropriety of conducting investigations into groups that destroy governmental property to express their opposition to violence. The Pastoral Letter states in part:

Peacemaking is not an optional commitment. It is a requirement of our faith. We are called to be peacemakers, not by some movement of the moment, but by our Lord Jesus. The content and context of our peacemaking is set not by some political agenda or ideological program, but by the teaching of His church.

In the fall of 1983 Ryan told his immediate superior that this letter might affect his ability to handle particular assignments. Ryan's sincerity is unquestioned. He did not, however, ask to be relieved of his assignment in domestic security and terrorism. That put him on a collision course with the FBI, for it was inevitable that he would from time to time receive assignments relating to persons opposed to military activities. Ryan's religious beliefs prevent him from investigating anti-military activity that is not characterized by violence. Ryan believes that the persons and groups he was asked to investigate in November 1986 are committed to nonviolent (albeit illegal) acts. When Ryan replied to the directive with formal disobedience rather than a request to be relieved of the assignment, he invited a formal reply. He did not expect the reply he received and contends that dismissal is too severe--indeed, that any discipline is too severe.

Ryan submits that discharge is a brutal response to a religiously motivated refusal to accept a single assignment. Judicial review of the MSPB's decision is deferential, 5 U.S.C. § 7703(c), and we agree with the district judge that substantial evidence supports its decision. Ryan repeatedly refused to carry out a lawful order to investigate an unsolved federal offense; he declined to swap assignments he would not promise to carry out similar orders in the future and implied that he would refuse to participate in related matters (such as arrests of persons engaging in illegal, but nonviolent, protests). A law enforcement agency is entitled to insist that...