Zummer v. Sallet

• Decision Date: 15 June 2022
• Docket Number: 21-30219
• Parties: Michael S. ZUMMER, Plaintiff—Appellant, v. Jeffery S. SALLET, Special Agent in Charge, FBI, New Orleans Division, in his individual capacity; Daniel Halphen Evans, Assistant Special Agent in Charge, FBI, New Orleans Division, Criminal Branch, in his individual capacity; Laura A. Bucheit, Assistant Director, FBI, Security Division, in her individual capacity; Brigette Class, former-Deputy Assistant Director, FBI, Security Division, in her individual capacity; Daniel Powers, former-Section Chief, FBI, Security Division, in his individual capacity; Michelle Anne Jupina, Assistant Director, FBI, Records Management Division, in her individual capacity; David M. Hardy, Chief, FBI, Records Management Division, Record/Information Dissemination Section, in his individual capacity; Michael G. Seidel, Acting/Assistant Section Chief, FBI, Records Management Division, Record/Information Dissemination Section, in his individual capacity; Gregory A. Brower, former Deputy General Counsel, FBI, currently Assistant Director, FBI, Office of Congressional Affairs, in his individual capacity; Richard R. Brown, Assistant General Counsel, FBI, in his individual capacity; Valerie Parlave, Executive Assistant Director, FBI, Human Resources Branch, in her individual and official capacities; Federal Bureau of Investigation ; David W. Schlendorf, Jr., Assistant Director, Federal Bureau of Investigation, Human Resources Division, in his individual capacity; Stephen P. Rees, Assistant Director, Federal Bureau of Investigation, Records Management Division, in his individual capacity; Gerald Roberts, Jr., Assistant Director, Federal Bureau of Investigation, Security Division, in his individual and official capacities, Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

37 F.4th 996

Michael S. ZUMMER, Plaintiff—Appellant,

v.Jeffery S. SALLET, Special Agent in Charge, FBI, New Orleans Division, in his individual capacity; Daniel Halphen Evans, Assistant Special Agent in Charge, FBI, New Orleans Division, Criminal Branch, in his individual capacity; Laura A. Bucheit, Assistant Director, FBI, Security Division, in her individual capacity; Brigette Class, former-Deputy Assistant Director, FBI, Security Division, in her individual capacity; Daniel Powers, former-Section Chief, FBI, Security Division, in his individual capacity; Michelle Anne Jupina, Assistant Director, FBI, Records Management Division, in her individual capacity; David M. Hardy, Chief, FBI, Records Management Division, Record/Information Dissemination Section, in his individual capacity; Michael G. Seidel, Acting/Assistant Section Chief, FBI, Records Management Division, Record/Information Dissemination Section, in his individual capacity; Gregory A. Brower, former Deputy General Counsel, FBI, currently Assistant Director, FBI, Office of Congressional Affairs, in his individual capacity; Richard R. Brown, Assistant General Counsel, FBI, in his individual capacity; Valerie Parlave, Executive Assistant Director, FBI, Human Resources Branch, in her individual and official capacities; Federal Bureau of Investigation ; David W. Schlendorf, Jr., Assistant Director, Federal Bureau of Investigation, Human Resources Division, in his individual capacity; Stephen P. Rees, Assistant Director, Federal Bureau of Investigation, Records Management Division, in his individual capacity; Gerald Roberts, Jr., Assistant Director, Federal Bureau of Investigation, Security Division, in his individual and official capacities, Defendants—Appellees.

No. 21-30219

United States Court of Appeals, Fifth Circuit.

FILED June 15, 2022

Robert Bruce McDuff, Esq., Jackson, MS, Daniel Bernard Centner, Esq., Peiffer Wolf Carr Kane & Conway, New Orleans, LA, for Plaintiff—Appellant.

Michael Zummer, New Orleans, Pro Se.

Joshua Koppel, Charles Wylie Scarborough, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, for Defendants—Appellees.

Before Smith, Elrod, and Oldham, Circuit Judges.^*

Jerry E. Smith, Circuit Judge:

Former FBI special agent Michael Zummer asked a federal district court to order the FBI to issue him a top secret clearance and reinstate his employment. He also sought damages against FBI officials for revoking his clearance and suspending him, for preventing him from taking other employment while suspended, and for delaying the release of letters that Zummer says contain his protected speech.

The district court dismissed those claims. It concluded that Zummer has no cause of action against the officers in their individual capacities. And it reasoned that its subject matter jurisdiction does not include the power to order the FBI to reinstate Zummer's security clearance. We agree and affirm.

I.

A.

As a special agent, Zummer investigated public corruption in Louisiana. He worked on a high-profile case in which a district attorney was accused of pressuring over twenty women into giving him sexual favors in return for lenient treatment for themselves or their family members. Zummer felt strongly that the evidence that he helped unearth merited a severe charge. But a U.S. Attorney initially declined to bring any charges. Years later, the U.S. Attorney's successor agreed, in a plea deal, to prosecute the district attorney for only obstruction of justice—an offense with a three-year maximum sentence.

Zummer was unsatisfied, believing that there was substantial evidence of grave wrongdoing, which made the prosecutor's decision "perplexing." Throughout the process, Zummer perceived self-interested resistance from several government attorneys. He also regarded a high-level prosecutor's apparent personal relationship with a defense attorney as a conflict of interest. So he concluded that the whole process was illegitimate.

Accordingly, Zummer refused to sign the government's draft of the factual basis for the plea. He considered it inaccurate in that it "substantially minimized" the district attorney's wrongdoing. He wished to persuade the presiding court not to accept it.

Zummer's solution was to write the court a letter detailing his concerns. But he recognized that doing so might ruffle feathers at the U.S. Attorney's Office and strain its relationship with the FBI. So he asked his superiors for permission before sending the letter, which emphasized that he was writing "as a private citizen" without authority to communicate the FBI's official position.

Zummer's superiors directed him to get permission from the Department of Justice before sending the letter. Nine days before the former district attorney was due to be sentenced for obstructing justice, Zummer still hadn't heard back. So he changed course. He submitted the letter to the FBI's prepublication review office and requested expedited appraisal.¹ He wanted approval to send the letter to the presiding court and to make it public.

An FBI prepublication reviewer first denied Zummer's requests entirely. Zummer says that that employee later partially relented and offered to work with Zummer to allow the public release of a redacted version of the letter. But the FBI would not clear Zummer to release the letter to the court in any form.

That answer didn't suit Zummer's purpose in drafting the letter. So, having failed to get permission, he took his chances with forgiveness. He sent the letter to the court and told his superiors what he had done.²

There was no forgiveness. Zummer says his superiors demanded that he retract the letter and threatened him with discipline. Zummer refused. Instead, he sent the court a second letter, explaining his view that the information in the first letter wasn't protected by privilege.

Zummer's supervisors carried out their threats. They suspended him "from investigative activity" and assigned him to sit alone in an unused office.³ Then the FBI suspended his security clearance. Though Zummer had not disclosed any classified information, FBI management said it could not trust him to learn new classified information because of his "position that information [he] personally gather[s] in the performance of [his] duties ... may be disclosed [in his capacity] as a private citizen."

FBI special agents must have a "Top Secret Sensitive Compartmented Information Clearance."⁴ So after Zummer's clearance was suspended, his employment was automatically suspended without pay. But since he was technically still an FBI employee, he remained under its thumb. He asked for permission to work another job while suspended. The FBI allowed him to apply for other jobs but prevented him from accepting when one was offered.

Meanwhile, Zummer continued his efforts to publish the letters that he had sent to the court. The FBI eventually consented to the release of a heavily redacted version of the first letter. Unsatisfied, Zummer appealed the redactions, but to no avail.

Finally, the FBI permanently revoked Zummer's security clearance. It explained that Zummer had violated the terms of his employment and was guilty of "untrustworthy or unreliable behavior in the unauthorized release of sensitive government protected information."

B.

Zummer sued the FBI and everyone involved in managing his employment status or reviewing his requests to send and publish the letters. He characterized their decisions as retaliation for sending his first letter to the court. He claimed that was protected speech and that punishing him in response violated the First Amendment.

Zummer requested five categories of relief. First , he sought an injunction ordering the FBI and some of its officers to allow him to publish the unredacted letters.⁵ Second , he asked the court to reinstate his security clearance and to order him returned to duty.⁶ Third , he requested compensatory and punitive damages for the delay in publishing his letter.⁷ Fourth , he solicited compensatory and punitive damages for the adverse employment actions, including the suspension and revocation of his security clearance.⁸ Fifth , he called for a declaratory judgment establishing that the events described above amounted to unlawful retaliation.

The district court dismissed the claims in the second, third, and fourth categories. It concluded that the Civil Service Reform Act ("CSRA") divests federal courts of subject matter jurisdiction to hear Zummer's claims arising from adverse employment actions. Alternatively, it reasoned that those claims must be dismissed because courts cannot require the Executive Branch to explain its security-clearance decisions. And the court dismissed Zummer's claims arising from his delayed speech, reasoning that those individual-capacity claims arise in a new context, and special factors counsel hesitation in recognizing a cause of action.⁹

The court declined to dismiss the claims seeking unredacted publication of Zummer's letters. It observed that no evidence established that the letters' contents were "classified[ ] or otherwise privileged." The parties then settled those claims. The FBI agreed to allow Zummer to publish the full, unredacted letters. The parties moved for final judgment, and the court agreed.

Zummer appeals the dismissal of his official- and individual-capacity claims arising from the suspension and revocation of his security clearance and the delay in publishing his letters and sending them to the court. His appeal presents two questions. First , does the district court have subject matter jurisdiction to hear his challenges to the FBI's security-clearance decisions? Second , for claims within the district court's jurisdiction, does Zummer have a cause of action against any of the individual-capacity defendants? The answer to both questions is "no."¹⁰

II.

Zummer's First Amendment challenge arises under federal law. Ordinarily, that would end our inquiry into subject matter...