Twist v. Meese, 87-5371

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtGARTH
Citation272 U.S.App. D.C. 204,854 F.2d 1421
PartiesCharles Russell TWIST, Appellant, v. Edwin MEESE, Attorney General, U.S. Department of Justice, Appellee.
Docket NumberNo. 87-5371,87-5371
Decision Date23 August 1988

Page 1421

854 F.2d 1421
272 U.S.App.D.C. 204
Charles Russell TWIST, Appellant,
Edwin MEESE, Attorney General, U.S. Department of Justice, Appellee.
No. 87-5371.
United States Court of Appeals,
District of Columbia Circuit.
Argued May 16, 1988.
Decided Aug. 23, 1988.

Joseph B. Scott, with whom Irving Kator and David H. Shapiro, Washington, D.C., were on the brief, for appellant.

Jeffrey S. Paulsen, with whom John R. Bolton, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Brook Hedge, Mary E. Goetten and Robin Ball, Washington, D.C., were on the brief, for appellee. Michael Jay Singer, Washington, D.C., also filed an appearance on behalf of the appellee.

Before MARKEY, * Chief Judge, and FRIEDMAN, * Circuit Judges for the Federal Circuit and GARTH, ** U.S. Senior Circuit Judge for the Third Circuit.

Opinion for the court filed by Senior Circuit Judge GARTH.

GARTH, Senior Circuit Judge:

Plaintiff/appellant Charles Russell Twist commenced this action against defendant/appellee Edwin Meese, Attorney General of the United States, alleging that his discharge by the Department of Justice was in violation of his first and fifth amendment rights. The district court dismissed Twist's fifth amendment claim on April 2, 1987, 661 F.Supp. 231, 233-34 (D.D.C.1987), and on October 19, 1987 granted summary judgment to the Attorney General ("government") on Twist's first amendment claim. We affirm.


Twist was hired as an attorney for the Justice Department's antitrust division in 1979. In June 1984, he was reassigned from Washington, D.C., to the Field Office in Cleveland, Ohio. Upon arriving in Cleveland, Twist was assigned to an antitrust investigation involving the Cleveland Press newspaper. Twist was a staff attorney on this investigation.

Soon after his assignment to the Cleveland Press case, Twist expressed his disagreement with the manner in which the Justice Department was conducting the investigation. Eventually, Twist accused several members of the Justice Department with obstructing justice.

Twist, together with another attorney assigned to the investigation, wrote several memoranda to his superiors suggesting that certain grants of immunity would be improper. Twist also spoke to the District Court Judge who would review any immunity requests made by the government in the Cleveland Press investigation. Additionally, Twist initiated two meetings with the law clerk of the district court judge and shared with the law clerk his view that certain immunity requests, then under consideration by the government, were improper. When questioned by his superiors about these incidents, Twist initially denied they had occurred, but later admitted to them.

As a result of these incidents, in June 1985, Twist was removed from the Cleveland Press investigation and reassigned to other duties. He also received an "unsatisfactory" job performance evaluation and was refused a promotion. Twist appealed both of these decisions alleging that they were in retaliation for his claims that the Department was obstructing justice. Twist's claims of retaliation were referred to the Justice Department's Office of Professional Responsibility ("OPR"). After an investigation, the OPR concluded that the actions taken by the government in the Cleveland Press investigation were appropriate

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exercises of prosecutorial discretion, and did not constitute an obstruction of justice. (A300).

Because his performance had been rated deficient, Twist was informed by the Chief of the Cleveland office, John Weedon, that he would be given 90 days to improve his performance or would face discharge. Twist was also ordered to meet with Weedon every Friday for the purpose of discussing his work. At these weekly meetings, Twist was required to produce whatever written material he had produced that week.

At first, Twist complied with these requirements. However, on June 20, 1986, when David Hils, as Acting Chief of the office in the absence of Weedon, attempted to conduct one of the weekly meetings, Twist refused to cooperate. Hils subsequently recommended to the Assistant Attorney General in charge of the antitrust division, Douglas H. Ginsburg (now a United States Circuit Judge of the United States Court of Appeals for the District of Columbia), that Twist be discharged.

Hils documented Twist's conduct in two letters to Ginsburg. In his first letter, dated June 25, 1986, Hils described Twist's refusal to accept an assignment to a pending antitrust investigation involving concrete pipe. Hils wrote that Twist "emphatically said, 'I won't do it.' " (A201). The letter also described a discussion between Weedon, Hils and Twist, concerning Twist's assignment to the concrete pipe investigation. The letter stated that during this discussion, Twist strongly criticized Weedon's refusal to assign him to a different investigation. In that same letter, Hils recited that Twist had accused him, Hils, of lying concerning an unrelated matter. Hils also wrote that Twist, upon the commencement of the meeting, stated that he considered the meeting to be part of a cover-up of a crime, and that Twist had accused Hils of being a co-conspirator and of harassing him. On July 8, 1986, Hils again wrote to Ginsburg and once again requested Twist's discharge.

Upon receiving these letters, Ginsburg called Twist and Hils to Washington for an on-the-record hearing at which Twist could respond to Hils' charges against him and submit a written statement. After reviewing Twist's statement, Ginsburg recommended to the Deputy Attorney General that Twist be discharged. Twist was terminated on August 15, 1986, for "insubordinate and disrespectful conduct toward his supervisor." (A318).

Twist thereupon filed a non-jury action against the Attorney General in the United States District Court for the District of Columbia, alleging violations of his fifth and first amendment rights. On April 2, 1987, the district court dismissed Twist's fifth amendment claim. On September 1, 1987, the Attorney General moved for summary judgment on Twist's first amendment claim. Twist filed his opposition papers including affidavits and other exhibits, on September 14, 1987. However, contrary to the provisions of district court Local Rule 108(h), Twist did not file a required statement of material facts in dispute. Only later, on October 5, 1987, after the Attorney General's reply papers had been served, did Twist file a statement of disputed facts.

The Attorney General's summary judgment motion was heard by the district court on October 8, 1987, and granted by an order entered on October 19, 1987. The district court also denied a pending discovery request by Twist to compel the production of documents in the possession of the OPR.


Twist first argues that the district court abused its discretion in accepting as true, the government's statement of material facts not in dispute because he, Twist, had violated district court Local Rule 108(h) when he failed to submit his counterstatement. The district court, in refusing to accept Twist's statement, relied upon Rule 108(h) which provides, among other things, that:

An opposition to [a summary judgment motion] shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to

Page 1424

which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement .... In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.

The party opposing summary judgment is required, under Rule 108(b), to serve and file its opposition to the motion, including its separate statement of issues setting forth the disputed material facts within 11 days of the date of service of the summary judgment motion. Rule 108(h), which succeeded Rule 1-9(h) is substantively identical to the former Rule. The purpose for promulgating former Rule 1-9(h) was explained in Gardels v. Central Intelligence Agency, 637 F.2d 770 (D.C.Cir.1980), where it was said:

Requiring strict compliance with the local rule is justified both by the nature of summary judgment and by the rule's purposes. The moving party's statement specifies the material facts and directs the district judge and the opponent of summary judgment to the parts of the record which the movant believes support his statement. The opponent then has the opportunity to respond by filing a counterstatement and affidavits showing genuine factual issues. The procedure contemplated by the rule thus isolates the facts that the parties assert are material, distinguishes disputed from undisputed facts, and identifies the pertinent parts of the record. These purposes clearly are not served when one party ... fails in his statement to specify the material facts upon which he relies and merely incorporates entire affidavits and other materials without reference to the particular facts recited therein which support his view that no genuine issues of material fact exist.

Id. at 773 (emphasis added). See also McKinney v. Dole, 765 F.2d 1129, 1135 n. 12 (D.C.Cir.1985).

The importance of complying with the procedures originally established by former Local Rule 1-9(h), and now continued in Local Rule 108(h), has been emphasized by the courts of this Circuit. The failure to file a proper Rule 1-9(h) statement (now a 108(h) statement) in opposing a motion for summary judgment, may be fatal to the position of the non-complying party. See Gardels, 637 F.2d at 773 (citing cases); Tarpley v. Greene, 684 F.2d 1, 6 & n. 15 (D.C.Cir.1980).

In the present case, the government's motion for summary judgment was served and filed on September 1, 1987. Local Rule 108(b) required the opposing papers to be filed...

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