McCabe v. Barr
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ANDREW G. MCCABE,
Plaintiff,
v. Civil Action No. 19-2399 (RDM) WILLIAM P. BARR, in his official capacity as Attorney General of the United States, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
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
2 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
3 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.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ANDREW G. MCCABE,
Plaintiff,
v. Civil Action No. 19-2399 (RDM) WILLIAM P. BARR, in his official capacity as Attorney General of the United States, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
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
2 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
3 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.
4 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.
5 On October 31, 2016, Plaintiff met with Director Comey, who raised the October 30,
2016 WSJ article. Id. at 22–23. The parties disagree about the contents of the conversation that
ensued. According to Defendants, Director Comey expressed his displeasure about leaks to the
press and about how the October 31, 2016 article would “poison” the FBI’s relationship with the
DOJ. Id. at 22. They further contend that, although Director Comey’s recollection was not
clear, he believes that Plaintiff “gave [him] the impression [that] he didn’t know what was going
on” by saying “something like[,] can you believe this crap?” Id. Plaintiff, in contrast, maintains
“that he kept Director Comey updated regarding his communications with the WSJ, that the
Director knew that he and [others] were providing information to the WSJ in order to shape those
stories, and that [Plaintiff] had no reason to hide this fact from Director Comey based on their
prior interactions.” Dkt. 23-6 at 6 (Ex. 5).
According to Plaintiff, the subject of his wife’s campaign and the contribution came up
again during a January 27, 2017 dinner attended by President Trump and then-Director Comey.
Dkt. 1 at 17 (Compl. ¶ 68). At the dinner, the President allegedly told Director Comey that “he
needs and expects loyalty” from public servants and asked whether McCabe had a problem with
him, explaining that he “was pretty rough on [Plaintiff] and [Dr. McCabe] during the campaign.”
Id. The President returned to the subject on February 8, 2017 and again asked Director “Comey
whether Plaintiff had a problem with [him], because [he] had criticized Plaintiff during the 2016
presidential campaign.” Id. (Compl. ¶ 69). Plaintiff further alleges that, in his presence,
Attorney General Sessions “expressed support for discriminatory considerations in FBI
personnel decisions,” id. at 18 (Compl. ¶ 70), and that “White House officials . . . question[ed]
Plaintiff’s commitment to the Trump administration,” id. (Compl. ¶ 71); see also id. (Compl.
¶ 72).
6 On May 9, 2017, President Trump fired Director Comey, leaving Plaintiff to become the
Acting Director of the FBI. Id. at 9 (Compl. ¶ 31). According to Plaintiff, President Trump had
drafted a letter explaining his reasons for firing Director Comey, and one such reason involved
Dr. McCabe’s campaign and Plaintiff’s oversight of the Clinton email investigation. Dkt. 27-21
at 4 (McCabe Decl. ¶ 20). On May 10, 2017, Plaintiff received a telephone call from the
President, during which the President allegedly “stated that most FBI personnel likely voted for
him in the 2016 U.S. presidential election.” Id. at 5 (McCabe Decl. ¶ 23). According to
Plaintiff, the President also “commented on” Dr. McCabe’s “2015 Virginia state senate
campaign, saying that it must have been ‘tough’ to ‘be a loser.’” Id.
Later that same day, Plaintiff met with President Trump in the Oval Office. Plaintiff
attests that:
During the meeting, [President] Trump stated that FBI personnel loved Trump and supported him, and that at least 80 percent of FBI personnel voted for him. [President] Trump then asked [Plaintiff] how [he] voted in the 2016 U.S. presidential election. The question made [Plaintiff] profoundly uncomfortable, because no superior had ever asked [him] about [his] voting history in [his] entire career as a public servant, and [he] knew it to be improper. [Plaintiff] did not directly respond to the question and simply stated that [he] ‘always played it right down the middle.’ [President] Trump was visibly displeased by [Plaintiff’s] statement.
Id. at 5–6 (McCabe Decl. ¶ 24).
On May 13, 2017, Plaintiff met with Attorney General Sessions and Deputy Attorney
General Rosenstein, and, during the meeting, an aide “brought in a smartphone showing the 2015
swim-meet photograph of [Dr. McCabe], [their] children, and [Plaintiff] wearing [Dr. McCabe’s]
campaign T-shirts.” Id. at 6 (McCabe Decl. ¶ 25). According to Plaintiff, he “explained that the
photograph was being mischaracterized,” and, at the end of the meeting, Plaintiff revealed to the
Attorney General and Deputy Attorney General that he planned to retire when he became eligible
7 in March 2018. Id. Three days later, Plaintiff met with Deputy Attorney General Rosenstein,
who told him that he had “a ‘political problem,’ and referenced [Dr. McCabe’s] 2015 Virginia
state senate campaign.” Id. at 6 (McCabe Decl. ¶ 26). Deputy Attorney General Rosenstein also
“criticized” Plaintiff for the family photograph, which showed Plaintiff wearing a campaign T-
shirt. Id.
Plaintiff met with President Trump on May 17, 2017, ostensibly “to interview for the
position of FBI Director.” Id. at 7 (McCabe Decl. ¶ 27). At that meeting, the President allegedly
“returned to the topic of the 2016 U.S. presidential election.” Id. Plaintiff told the President that
he “considered himself a lifelong Republican and had always voted for the Republican candidate
for president, except in the 2016 general election, when [he] did not cast a vote for president.”
Id.
Around the same time, the FBI’s Inspection Division (“INSD”) “began investigating
whether information published in [the] October 30, 2016 WSJ article ‘was [derived] from an
unauthorized leak and, if so, who was [responsible for] the leak.’” Dkt. 23 at 41 (Defs’ SUMF
¶ 4). As part of that investigation, INSD spoke to Plaintiff but did not conduct an interview
under oath. Dkt. 23-2 at 14–15 (Ex. 1); Dkt. 23 at 42 (Defs’ SUMF ¶ 5). According to the INSD
agents, Plaintiff was given a copy of the article to review, and, after doing so, he told the agents
that he “did not know who leaked the information.” Dkt. 23-2 at 7 (Ex. 1). Plaintiff has a
different view of the “brief discussion that took place at the end of a meeting on a different
topic” and attributes the agents’ conclusions to an honest misunderstanding, which explains why
he refused to sign the summary of the conversation that the agents prepared. Dkt. 23-6 at 6–8
(Ex. 5).
8 On July 28, 2017, while still serving as the Acting Director, Plaintiff was contacted by an
assistant inspector general from the DOJ’s OIG, who indicated that he needed to speak with
Plaintiff “urgently and immediately.” Dkt. 27-21 at 8 (McCabe Decl. ¶ 30). Later that same day,
Plaintiff met with the assistant inspector general and other OIG staff. Dkt. 1 (Compl. ¶ 97). He
alleges that he understood that he was a subject of the broader OIG investigation and that he
informed the assistant inspector general that he did not wish to be interviewed for such an
investigation without his lawyer present. Id. Plaintiff further alleges that, in response to his
concerns, he was assured the meeting “would not be . . . an interview, but rather an opportunity
to bring something urgent to Plaintiff’s attention.” Id.
During the course of the meeting, Plaintiff was shown “multiple text messages between
FBI employees Peter Strzok and Lisa Page.” Dkt. 27-21 at 8 (McCabe Decl. ¶ 30). Among
those materials were text messages reflecting that Page had spoken to the WSJ “about the Clinton
email investigation in late October 2016.” Id. Plaintiff was then asked, while under oath,
whether Page was “ever authorized to speak to reporters in this time period.” Dkt. 23-2 at 9 (Ex.
1). According to Defendants, Plaintiff responded, “Not that I’m aware of.” Id. Plaintiff further
stated that he “was not even in town during those days” and thus couldn’t “tell [OIG] where
[Page] was or what she was doing.” Id. Plaintiff counters that, “[a]t no time did [he] respond to
th[o]se questions, or any other questions from anyone in the DOJ or FBI, with any intentionally
false or misleading statements.” Dkt. 27-21 at 8 (McCabe Decl. ¶ 30). In any event, two
business days later, Plaintiff contacted the same assistant inspector general and explained that he
recalled authorizing Page to speak to the WSJ and recommended that the assistant inspector
general speak to the FBI Assistant Director for Public Affairs about the matter. Dkt. 1 at 25
(Compl. ¶ 98).
9 The following day, Defendant Christopher Wray was sworn in as the new FBI Director,
and Plaintiff resumed his responsibilities as Deputy Director. Id. at 26 (Compl. ¶ 99). Plaintiff
alleges that, “on or about this date, [Attorney General] Sessions, acting at [President] Trump’s
urging, asked Defendant Wray to fire Plaintiff” and that “Wray refused on the basis that he
would not allow personnel decisions at the FBI to be politicized” and threatened to resign if such
requests were made in the future. Id. Several months later, on December 2, 2017, President
Trump retweeted another Twitter user’s statement that “Wray needs to clean house. Now we
know the politicization [is] even worse than McCabe’s ties to McAuliffe/Clinton.” Id. (Compl.
¶ 101). The next day, President Trump tweeted about “Clinton money going to [the] wife of an[]
FBI agent in charge.” Id. (Compl. ¶ 102).
The OIG interviewed Plaintiff under oath again on November 29, 2017. Dkt. 23 at 42
(Defs’ SUMF ¶ 11). During that interview, Plaintiff told the OIG that he had authorized Page
and the FBI’s Assistant Director for Public Relations to speak with the WSJ reporter “to try to
correct what [Plaintiff] perceived as ‘incredibly damaging inaccuracies’ in [the reporter’s] story.”
Dkt. 23-2 at 10 (Ex. 1). Defendants do not doubt the veracity of those statements, but they
question two additional statements Plaintiff made during this interview—first, that he told
Director Comey on October 31, 2016 that he had authorized the disclosure of the August 12 call
with the PADAG to the WSJ reporter and, second, that he did not deny to the INSD agents on
May 9, 2017 that he had authorized the disclosure. Id. at 11–12, 14–15. Plaintiff, in turn, once
again disputes that he made “any intentionally false or misleading statements.” Dkt. 27-21 at 9
(McCabe Decl. ¶ 34).
10 B. Administrative Background
On December 23, 2017, the press reported Plaintiff’s plans to retire in March 2018. Dkt.
1 at 27 (Compl. ¶ 104). At 3:27 p.m. that same day, President Trump tweeted: “How can FBI
Deputy Director Andrew McCabe, the man in charge, along with leakin’ James Comey, of the
Phony Hillary Clinton investigation (including her 33,000 illegally deleted emails) be given
$700,000 for wife’s campaign by Clinton Puppets during investigation?” Dkt. 27-1 at 4 (Hussain
Decl. ¶ 10); see also Dkt. 1 at 27 (Compl. ¶ 104). “Three minutes later,” the President “tweeted:
‘FBI Deputy Director Andrew McCabe is racing the clock to retire with full benefits. 90 days to
go?!!!’” Dkt. 1 at 27 (Compl. ¶ 104). Plaintiff alleges that “in late December 2017” some
combination of White House personnel and Department of Justice officials “decided to
accelerate the completion of part of the investigation into events surrounding the 2016 election”
that pertained to Plaintiff’s actions and specifically decided to issue a “separate report about
Plaintiff’s actions.” Id. at 26 (Compl. ¶ 103). Plaintiff further alleges that this decision was
made “because of pressure from [President] Trump.” Id.
A month later, according to Plaintiff, Director Wray informed him that he could no
longer serve as Deputy Director because of the results of the OIG investigation. Id. at 27
(Compl. ¶ 105). Director Wray allegedly declined to discuss the specifics of this decision with
Plaintiff, citing a promise he made to Attorney General Sessions. Dkt. 27-21 at 9 (McCabe Decl.
¶ 37). Plaintiff attests that Director Wray told him that he could either transition to a lesser role
of his own choosing, if he announced to FBI personnel that he had stepped down voluntarily, or
Director Wray would reassign him to a lesser role of Director Wray’s choosing. Id. Plaintiff
alleges that he declined to step down voluntarily; that he intended to take “terminal leave until
[he] became eligible to retire;” and that Wray promoted David Bowdich to Deputy Director. Id.
11 at 9 (McCabe Decl. ¶ 38). Thus, Plaintiff alleges, as of January 29, 2018, he “no longer served
in a duty status, and he relinquished all access to FBI offices, networks, and workstations” but
“remained an FBI employee for the purpose of establishing eligibility for his retirement annuity
and continuance of health benefits for himself and his family.” Dkt. 1 at 28 (Compl. ¶ 108).
On or about February 15, 2018, Plaintiff informed the FBI that his first full day of
retirement would be March 17, 2018 and that, as a result, Friday, March 16, 2018 would be his
last day of work. Id. at 9–10 (Compl. ¶ 36). Nearly two weeks later, on February 28, 2018, the
OIG delivered its report—entitled “A Report of Investigation of Certain Allegations Relating to
Former FBI Deputy Director Andrew McCabe” (“February 2018 OIG Report”)—to the FBI’s
Office of Professional Responsibility, led by career civil servant Candice M. Will, for review and
potential discipline. Id. at 28–29 (Compl. ¶¶ 110–11). “The OIG report concluded that Plaintiff
had lacked candor on four occasions, in violation of FBI rules: once when speaking with then-
FBI Director James Comey on October 31, 2016; once while being questioned, under oath, by
Inspection Division Agents on May 9, 2017; and twice while being questioned, under oath, by
OIG on July 28, 2017 and November 29, 2017.” Dkt. 23 at 42 (Defs’ SUMF ¶ 11). The Report
further “concluded that Plaintiff authorized the disclosure of information to the Wall Street
Journal in violation of the FBI’s and the Department of Justice’s media policy.” Id. (Defs’
SUMF ¶ 12). Plaintiff alleges that the “investigative conclusions [in the report] are incorrect;”
that the report “relies on material mischaracterizations and omissions;” and that it “fail[s] to
reference any testimony by exculpatory witnesses,” such as the FBI’s Assistant Director for
Public Affairs, Michael Kortan. Dkt. 1 at 28–29 (Compl. ¶ 111).
On March 7, 2018, Will recommended Plaintiff’s termination. Id. at 29 (Compl. ¶ 115).
This recommendation, according to Plaintiff, was “based solely on her review of the February
12 2018 OIG report;” Will conducted “no independent investigation.” Id. Will was unpersuaded
that Plaintiff was under oath when he spoke to the INSD agents but otherwise agreed with the
OIG’s conclusion that Plaintiff lacked candor while under oath during both of his OIG
interviews. Dkt. 23 at 43 (Defs’ SUMF ¶ 18). Will observed that the “standard penalty” for lack
of candor while under oath is dismissal. Dkt. 23-2 at 15 (Ex. 1). Will wrote:
I have considered all mitigating factors supported by the record, including, but not limited to, your 21 years of remarkable FBI service and your truly outstanding performance record. At the time of the misconduct, you were facing unprecedented and unimaginable pressure and challenges. Notwithstanding all relevant and significantly mitigating factors, however, I find that dismissal is appropriate because all FBI employees know that lacking candor under oath results in dismissal and that our integrity is our brand. Without it, we are nothing. As the Deputy Director, you held the second-highest position in the FBI and are expected to comport yourself with the utmost integrity. Despite this, you repeatedly lacked candor with the Director of the FBI, the OIG, and the FBI’s Inspection Division. Your lack of candor is incompatible with the FBI’s Core Values. Based on the circumstances of this case, I propose dismissing you for your . . . offenses.
Id. at 16. Attached to Will’s recommendation was a note from Will reading: “It seems unlikely
that [the proposed termination] will reach final resolution before Mr. McCabe’s March 18[,
2018] retirement date, but that is up to the [Deputy Attorney General].” Dkt. 1 at 29–30 (Compl.
¶ 116).
The next day, another career official, Associate Deputy Attorney General Scott N.
Schools, sent a letter to Plaintiff indicating that he had received Will’s notice of proposed
removal and that a final decision would be made in accordance with DOJ Order 1202—the DOJ
policy governing removal of FBI senior executives. Id. at 30 (Compl. ¶ 117). That letter
informed Plaintiff that his response was due to Schools by “close of business” on March 15,
2018, and that he would receive access to the relevant files beginning on Friday, March 9, 2018.
Id. (Compl. ¶ 118). Plaintiff and his counsel were also scheduled to meet with Schools to make
13 an oral presentation on March 15, 2018. Id. at 32 (Compl. ¶ 123). On the morning of March 9,
2018, Schools allegedly told Plaintiff’s counsel on a telephone call: “We’re making it up as we
go along.” Id. at 31 (Compl. ¶ 119).
On Wednesday March 14, 2018, Schools permitted Plaintiff to review the transcripts
from Kortan’s interview with the OIG. Id. (Compl. ¶ 120). The same day, Plaintiff’s counsel
requested that the hearing and written submission deadlines be postponed. Id. (Compl. ¶ 121).
The record consisted of over 1,000 pages of written materials and was made available only four
business days before Plaintiff’s response was due and the hearing was to be held. Id. Plaintiff’s
counsel explained that he was “simply unable to properly prepare for both the oral presentation
and written presentation that are necessary to adequately represent Mr. McCabe.” Id. The
request to postpone the hearing was denied, but Schools extended the deadline for providing a
written submission by half a day to 12:00 p.m. on Friday, March 16, 2018. Id. at 32 (Compl.
¶ 122).
McCabe and his counsel met with Schools for an oral hearing on Thursday, March 15,
2018, and McCabe provided his written submission to Schools on Friday, March 16, 2018 at
12:00 p.m. Id. (Compl. ¶¶ 123–24). McCabe alleges that at 5:00 p.m. on Friday, March 16,
2018, he “fulfilled his final week of service with the FBI and retired from the agency.” Id.
(Compl. ¶ 125). He further contends that, at that time, “[t]he FBI charged [his] accrued leave
account for a full week of leave time, confirming that the FBI deemed [him] to have been
employed for the entire week preceding his retirement.” Id.
That night, at around 10:00 p.m., Attorney General Sessions issued a statement to the
media announcing that McCabe had been fired “pursuant to [DOJ] Order 1202.” Id. (Compl.
¶ 126). This statement was not sent to Plaintiff, although he received an email around the same
14 time attaching a letter dated March 16, 2018 from Schools to Attorney General Sessions
recommending that Plaintiff be terminated. Id. Schools prepared a decision memorandum for
Attorney General Sessions, which recounted the relevant background and included Schools’ own
recommendations. Dkt. 23-7 (Ex. 6). In particular, Schools disagreed with Will’s finding that
McCabe lacked candor during his October 31, 2016 meeting with then-Director Comey, but
otherwise agreed with her findings, and, most importantly, agreed that termination was the
appropriate penalty. Id. Although the memorandum is not timestamped, Attorney General
Sessions signed it sometime on March 16, 2018. Id. at 8. Just above Attorney General Session’s
signature, the memorandum states: “Decision: For the reasons stated in the foregoing
recommendation, I have decided that Andrew G. McCabe should be removed from the Federal
Bureau of Investigation and from the civil service.” Id. But, as McCabe observes, the
memorandum does not specify when that decision was to become effective. Dkt. 1 at 32–33
(Compl. ¶ 126). At around 10:30 p.m., McCabe saw media reports that Attorney General
Sessions had announced his termination “effective immediately.” Id. at 33 (Compl. ¶ 127).
Plaintiff alleges that this termination process deviated from the procedures typically used to
effect terminations from the FBI. Id. (Compl. ¶ 129).
Since these events, Defendants have identified March 16, 2018 as the effective date of
Plaintiff’s termination, which is “one day earlier than the date set forth on [his] notice of
retirement and application for retirement benefits.” Id. (Compl. ¶ 130). Plaintiff alleges that
“[t]his discrepancy has materially altered and diminished the benefits to which [he] is entitled by,
among other things, eliminating the benefits Plaintiff would have otherwise received beginning
at age 50.” Id. On or about March 21, 2018, Director Wray was asked by the press about
Plaintiff’s termination. Id. at 33 (Compl. ¶ 131). He responded: “I want to be careful about what
15 I can say about the process.” Id. at 34 (Compl. ¶ 131) (quotation marks omitted). On April 11,
2018, the FBI’s Office of General Counsel informed McCabe that his termination “was not due
to gross misconduct.” Id. (Compl. ¶ 132) (quotation marks omitted).
After Plaintiff’s termination, President Trump continued to comment on Plaintiff’s tenure
at the FBI and Dr. McCabe’s receipt of the campaign contribution from the political action
committee affiliated with Governor McAuliffe. On March 17, 2018 at 12:08 a.m., for example,
he tweeted:
Andrew McCabe FIRED, a great day for the hard working men and women of the FBI - A great day for Democracy. Sanctimonious James Comey was his boss and made McCabe look like a choirboy. He knew all about the lies and corruption going on at the highest levels of the FBI!
Id. (Compl. ¶ 134). Thirteen hours later, President Trump tweeted:
The Fake News is beside themselves that McCabe was caught, called out and fired. How many hundreds of thousands of dollars was given to wife’s campaign by Crooked H friend, Terry M, who was also under investigation? How many lies? How many leaks? Comey knew it all, and much more!
Id. at 35 (Compl. ¶ 135). On April 15, 2018, President Trump sent a tweet criticizing a book
written by former Director Comey on the ground that it did not discuss “McCabe’s $700,000.”
Id. (Compl. ¶ 136) (quotation marks omitted). A month later, on May 18, 2018, he tweeted:
“Why isn’t disgraced FBI official Andrew McCabe being investigated for the $700,000 Crooked
Hillary Democrats in Virginia, led by Clinton best friend Terry M (under FBI investigation that
they killed) gave to McCabe’s wife in her run for office? Then dropped case on Clinton!” Id.
(Compl. ¶ 137) (quotation marks omitted). The following month, on June 28, 2018, President
Trump tweeted that Plaintiff and former Director Comey “took their orders from you know
who,” which McCabe alleges was a reference to the President’s partisan opponents. Id. (Compl.
¶ 138) (quotation marks omitted).
16 On February 19, 2019, President Trump tweeted: “I never said anything bad about
Andrew McCabe’s wife other than she (they) should not have taken large amounts of campaign
money from a Crooked Hillary source when Clinton was under investigation by the FBI. I never
called his wife a loser to him (another McCabe made up lie)!” Id. at 36 (Compl. ¶ 143)
(quotation marks omitted). During a March 27, 2019 television interview President Trump
stated that Plaintiff “was running the FBI and running all sorts of cases, and his wife got
hundreds of thousands of dollars from essentially Clinton’s, from Clinton’s closest friend. And
then he rules so favorably. I mean, he tries to say that he wasn’t involved. . . . I don’t believe
that. But, you know, she got all those good rulings.” Id. (Compl. ¶ 144) (quotation marks
omitted). President Trump continued to speak negatively about Plaintiff in public during the
following months. Id. (Compl. ¶¶ 144–146). Finally, in an arguable reference to Plaintiff and
others, the President stated at a White House press conference on December 24, 2019: “[W]e
found out they’re a bunch of dirty cops. . . . I hope that someday I’m going to consider it my
greatest—or one of my greatest achievements—getting rid of them. Because we have no place
in our country for people like that.” Dkt. 28-2 at 2.
C. Procedural Background
Plaintiff brought this action on August 8, 2019. Dkt. 1. He alleges that his termination
was a “legal nullity” or was otherwise “ultra vires” in violation of the Fifth Amendment’s due
process clause, id. at 37 (Count I); that Defendants’ “sham and accelerated” proceedings that
resulted in his terminations also violated the due process clause, id. at 39 (Count II); that his
termination was impermissibly motivated by Defendants’ perception of his partisan affiliation, in
violation of the First Amendment, id. at 42 (Count III); and that he was demoted and terminated
in retaliation for his political expression and intimate association, also in violation of the First
17 Amendment, id. at 45 (Count IV). Finally, if no other form of relief is available, Plaintiff seeks a
writ of mandamus “compelling Defendants to recognize Plaintiff as retired from the role of
Deputy Director in good standing with the FBI or, alternatively, to rescind the unlawful
demotion and termination orders.” Id. at 46 (Count V).
Defendants “move to dismiss, in part, Plaintiff’s complaint under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), and seek summary judgment as to the remainder of the
complaint, under Federal Rule of Civil Procedure 56.” Dkt. 23 at 1. Plaintiff opposes that
motion. Dkt. 27. For the following reasons, the Court will deny Defendants’ motion.
II. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(1) may raise a “facial” or a “factual” challenge to
the Court’s jurisdiction. A facial challenge asks whether the plaintiff has alleged facts sufficient
to establish the Court’s jurisdiction, while a factual challenge asks whether “the complaint [as]
supplemented by undisputed facts evidenced in the record, or the complaint [as] supplemented
by undisputed facts plus the [C]ourt’s resolution of disputed facts” are sufficient to establish the
Court’s jurisdiction. Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). The
plaintiff bears the burden of demonstrating that the Court has subject-matter jurisdiction. Lujan
v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
A motion to dismiss for failure to state a claim under Rule 12(b)(6), in contrast, tests the
legal sufficiency of the allegations contained in the complaint. A complaint must contain “‘a
short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to
‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). Although “detailed factual allegations” are not necessary to withstand a
18 Rule 12(b)(6) motion to dismiss, a plaintiff must furnish “more than labels and conclusions” or
“a formulaic recitation of the elements of a cause of action.” Id. Instead, the complaint’s
“[f]actual allegations must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id.
(citations omitted).
Finally, a party is entitled to summary judgment under Rule 56 if that party can show that
“there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986). A fact is “material” if it is capable of affecting the outcome of the litigation. Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute is “‘genuine’ if ‘the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.’” Id. (quoting Anderson, 477
U.S. at 248). “A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A).
III. ANALYSIS
Defendants raise a host of arguments, one that goes to the Court’s jurisdiction, others that
go to the sufficiency of the Complaint, and still others that go to the ultimate merits of the
dispute. As explained below, Defendants’ jurisdictional challenge is premised on a
misunderstanding of the claims that Plaintiff seeks to pursue; their challenge to the sufficiency of
the Complaint fails as a matter of law; and their challenge to Plaintiff’s claims on the merits is
premature. The Court will accordingly deny Defendants’ motion.
A. Jurisdiction Under the Civil Service Reform Act
Defendants first argue that Plaintiff’s “statutory and regulatory claims” must be
dismissed for lack of jurisdiction pursuant to Rule 12(b)(1) because the Civil Service Reform Act
19 (“CSRA”), 5 U.S.C. § 1101 et seq., “precludes judicial review of such claims,” Dkt. 23 at 19, 23.
The CSRA, among other things, sets forth procedures for terminating certain federal employees,
identifies certain bases upon which those employees may challenge their terminations, and
channels those challenges through an administrative process culminating in judicial review in the
Court of Appeals for the Federal Circuit. See Graham v. Ashcroft, 358 F.3d 931, 933 (D.C. Cir.
2004). Both the Supreme Court and the D.C. Circuit have held that the CSRA provides the
exclusive means of judicial review for certain claims brought by civil servants relating to the
termination of their employment. See United States v. Fausto, 484 U.S. 439, 443, 448–49
(1988); Graham, 358 F.3d at 933–35. “Although FBI employees are generally excluded from
CSRA provisions,” Graham, 358 F.3d at 933, exclusion of a class of employees from the judicial
review provisions of the CSRA means that those employees have lesser, not greater, rights to
judicial review, see Fausto, 484 U.S. 449; see also Filebark v. Dep’t of Transp., 555 F.3d 1009,
1013 (D.C. Cir. 2009). Thus, in Defendants’ view, the CSRA strips the Court of jurisdiction to
consider Plaintiff’s “statutory and regulatory claims.” Dkt. 23 at 19, 21.
Plaintiff’s answer to this argument is brief yet conclusive: he asserts only constitutional
claims, and thus the CSRA’s channeling rules for statutory and regulatory employment-related
claims have nothing to do with this case. 1 Dkt. 27 at 23–25. To be sure, the Complaint
references various statutory and regulatory provisions. See, e.g., Dkt. 1 at 37–40 (Compl.
¶¶ 150, 153–54, 158, 160–63). But it does so, Plaintiff explains, only to lay the predicate for his
1 The one possible exception to this blanket assertion is Count V of the Complaint, which seeks a writ of mandamus compelling certain ministerial acts. Dkt. 1 at 47 (Compl. ¶ 193). As Plaintiff explains, however, he asserts that claim “solely as an alternative remedy if constitutional relief [is] deemed unavailable.” Dkt. 27 at 24 n.5. Because Plaintiff merely seeks to preserve his ability to argue that mandamus is available in a case in which the CSRA provides no remedy, see id. at 25 n.8, and in which no constitutional remedy is available, the question of the Court’s jurisdiction to consider such a hypothetical claim is not ripe for consideration.
20 constitutional challenges—establishing, for example, that he has a property right sufficient to
sustain his due process challenge. Dkt. 27 at 25; see also id. at 13 n.2 (“Plaintiff’s claims are
constitutional.”). For their part, Defendants agree that “[t]he CSRA does not preclude judicial
review of . . . constitutional claims,” including Plaintiff’s First and Fifth Amendment claims,
Dkt. 23 at 22 n.5; see also id. at 21 (CSRA, with certain exceptions, provides the exclusive
remedy “for non-constitutional employment-related claims”). And, perhaps acknowledging that
their first defense takes aim at an empty target, Defendants make no reference to this defense in
their reply brief. Dkt. 31.
Given Plaintiff’s clarification that he intends to pursue only constitutional claims and
Defendants’ concession that the CSRA poses no hurdle to constitutional claims, there is nothing
left for the Court to decide with respect to this issue—at least at this juncture. If at a later point
in the litigation it appears that Plaintiff’s constitutional claims are indistinguishable from the
statutory or regulatory claims that Defendants initially discerned—if Plaintiff argues, for
example, that the failure to comply with a statutory requirement constituted, without more, a due
process violation—the Court can return to the CSRA at that time. For now, however, the Court
is persuaded that it has jurisdiction over Plaintiff’s claims.
B. First Amendment Claims
Defendants also maintain that “Plaintiff’s First Amendment claim[s],” which they treat
collectively, “cannot survive summary judgment.” Dkt. 23 at 37. They argue that “[t]he
documents charting the course of the Attorney General’s removal decision establish that the but-
for cause behind Plaintiff’s removal was his lack of candor” and not Plaintiff’s perceived
political affiliation. Id. at 36. In his Complaint, Plaintiff recounts a series of statements by
President Trump that suggested or directly called for Plaintiff’s termination and that invoked the
21 President’s perception that Plaintiff supported his political rivals. See e.g., Dkt. 1 at 24–27, 34–
35 (Compl. ¶¶ 95, 101–02, 104, 133–37). In light of these statements, Plaintiff alleges that
Defendants’ proffered basis for Plaintiff’s termination was pretextual and that his termination
was, in fact, motivated by Defendants’ perception of Plaintiff’s political affiliation and his
refusal to pledge his personal loyalty to President Trump—or pressure from President Trump
based on his perception of Plaintiff’s political allegiances. See Dkt. 1.
Defendants wisely do not argue that Plaintiff’s First Amendment claims fail at the
pleading stage, but they instead move for summary judgment on the ground that no reasonable
jury could find that they were motivated by Plaintiff’s perceived political affiliation or pressure
from the President. 2 Defendants do so before answering the Complaint and before Plaintiff has
had any opportunity for discovery. That approach is contrary to settled law, which provides that
a plaintiff “must be afforded the opportunity to prove . . . that [any] legitimate reasons offered by
the defendant were not its true reasons but were a pretext for discrimination.” Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000) (quotation marks and citation
omitted); see also Anderson, 477 U.S. at 250 n.5 (“Rule 56[(d)] provi[des] that summary
judgment [must] be refused where the nonmoving party has not had the opportunity to discover
information that is essential to his opposition.”); Convertino v. U.S. Dep’t of Justice, 684 F.3d
93, 99 (D.C. Cir. 2012) (“[S]ummary judgment is premature unless all parties have had a full
2 Defendants argue in their reply brief that “Plaintiff’s First Amendment claims are . . . subject to dismissal under Rule 12(b)(6) or summary judgment under Rule 56 without further discovery.” Dkt. 31 at 14. But, as Plaintiff’s sur-reply correctly notes, Defendants’ operative motion, Dkt. 23, “never asserted any defense to [Plaintiff’s] First Amendment claims under Rule 12(b)(6),” Dkt. 32-1 at 3 (Ex. A) (cleaned up). The Court will therefore evaluate whether Plaintiff’s First Amendment claims should survive summary judgment. See, e.g., 2910 Georgia Ave. LLC v. District of Columbia, 983 F. Supp. 2d 127, 137–38 (D.D.C. 2013) (citing Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008)). But, even if the Court were to apply Rule 12(b)(6), the result would be the same.
22 opportunity to conduct discovery.” (quotation marks and citation omitted)). Plaintiff has had no
such opportunity. In accord with Rule 56(d), he offers a declaration from his counsel identifying
the discovery that he will seek that would bear on whether the asserted basis for his termination
(before he could leave the FBI voluntarily with his retirement benefits intact) was pretextual,
including, but not limited to:
a. Information and documents relating to Defendants’ decisions to demote and terminate Plaintiff; their motivation for doing so; the timing, process, and pace of Plaintiff’s disciplinary proceedings; and why Defendants decided to complete those proceedings before Plaintiff could retire.
b. Information and documents relating to Department of Justice (“DOJ”) and FBI officials’ awareness and perception of, and their responses to, (i) a belief by Trump (or their own belief) that Plaintiff was not politically loyal to Trump (or to them), or (ii) a desire by Trump (or their own desire) to remove Plaintiff from the position of Deputy Director or Acting FBI Director, or to terminate Plaintiff’s employment.
c. Information and documents relating to DOJ or FBI officials’ belief or conclusion in 2017 that a photograph of Plaintiff with his family, wearing T-shirts supporting his wife’s 2015 Virginia state senate campaign, was a “political” problem for Plaintiff.
d. Information and documents relating to DOJ and FBI officials’ awareness and perception of, and responses to, Trump’s tweets, including but not limited to his tweets on December 23, 2017, at 3:27 p.m. and 3:30 p.m.:
• “How can FBI Deputy Director Andrew McCabe, the man in charge, along with leakin’ James Comey of the Phony Hillary Clinton investigation (including her 33,000 illegally deleted emails) be given $700,000 for wife’s campaign by Clinton Puppets during investigation?” . . .
• “FBI Deputy Director Andrew McCabe is racing the clock to retire with full benefits. 90 days to go?!!!” ....
e. Information and documents relating to whether [President] Trump or [Attorney General] Sessions asked [Director] Wray to fire Plaintiff at any time(s). . . . ....
23 h. Information and documents relating to . . . why [Deputy Attorney General Rosenstein] did not exercise final decision-making authority despite Candice Will’s understanding that he would . . . .
i. Information and documents relating to penalties imposed on government employees after OIG issued findings substantiating charges of “lack of candor” against those other employees, including whether or not any such employees were permitted to retire before a penalty was imposed ....
j. Information and documents showing that OIG investigations and Defendants’ disciplinary proceedings for “lack of candor” need not be accelerated to completion before the subjects of those proceedings are able to retire . . . .
Dkt. 27-1 at 3–7 (Husain Decl. ¶ 10). Plaintiff’s counsel also seeks the opportunity to obtain
discovery “relating to Plaintiff’s January 2018 demotion, including the appointment and service
of David Bowdich as FBI Deputy Director or ‘Acting’ Deputy Director beginning on January 29,
2018,” and other evidence relating to whether Plaintiff was demoted in January 2018, as he
contends, or whether he remained Deputy Director until his termination, as Defendants contend.
Id. at 8–9 (Husain Decl. ¶ 11).
Under Rule 56(d), this declaration suffices to preclude the entry of summary judgment. It
“outline[s] the particular facts [the party] intends to discover” with respect to Plaintiff’s First
Amendment claims, and those facts, including Defendants’ subjective motivations and
knowledge, are clearly “necessary to the litigation.” Convertino, 684 F.3d at 99. Moreover,
because these facts relate to the subjective motivations of Defendants and include
communications to which Plaintiff was not privy, Plaintiff could not have offered them himself
in response to Defendants’ pre-discovery motion for summary judgment. See id. at 99–100.
Finally, the information that Plaintiffs seeks “is in fact discoverable” through typical civil
discovery. Id. at 100.
24 Defendants respond that “[a] Rule 56(d) request is properly denied where the requesting
party has offered only a conclusory assertion without any supporting facts to justify the
proposition that the discovery sought will produce the evidence required,” Dkt. 31 at 13
(quotation marks omitted), and, here, Plaintiff offers no reason to believe that Attorney General
Sessions—as opposed to President Trump—was motivated by Plaintiff’s “perceived political
affiliation,” id. at 14, and no reason to doubt that the Attorney General acted solely because of
Plaintiff’s lack of candor, id. at 20. Without providing some opportunity for discovery, however,
the Court cannot foreclose the possibility that Attorney General Sessions felt overwhelming
pressure from President Trump to take punitive action against Plaintiff (based on the President’s
belief regarding Plaintiff’s political affiliation and personal loyalty) and that, to avoid angering
or disappointing the President, he fired Plaintiff late on a Friday night before Plaintiff could
voluntarily retire and receive all of his accrued benefits.
Finally, without citing any authority, Defendants contend that the “cat’s paw” theory of
liability—which posits liability for a decisionmaker influenced by another official who was
motivated by an improper motive, see, e.g., Noisette v. Lew, 211 F. Supp. 3d 73, 94 (D.D.C.
2016)—ought not be extended “to a Cabinet Secretary acting under an oath to uphold the
Constitution,” Dkt. 31 at 20 n.5. But that argument ignores the fact that all federal officials take
an oath to uphold the Constitution and that no one is entitled to an irrebuttable presumption of
virtue under the law. Defendants might ultimately show that the Attorney General was not
swayed by the President’s tweets and comments, but Plaintiff is entitled to test his claim of
improper influence through discovery and the usual rules of civil litigation.
25 For all of these reasons, the Court concludes that Defendants’ motion for summary
judgment with respect to Plaintiff’s First Amendment claims is premature and will, accordingly,
deny the motion without prejudice. 3
C. Due Process Claims
Plaintiff asserts two claims under the Fifth Amendment’s due process clause: Count One
claims that his termination was a legal nullity or, in the alternative, was ultra vires such that the
deprivation of his employment-related rights, including his retirement benefits, violated the due
process clause. Dkt. 1 at 36 (Count I). The termination was a nullity, according to Plaintiff,
because: (1) he completed his work obligations at 5:00 p.m. on Friday, March 16, 2018, and was
3 Defendants argue for the first time in their reply brief that Plaintiff lacks Article III standing to pursue his First Amendment claim based on his alleged demotion from his position as Deputy Director. Dkt. 31 at 15. According to Defendants, “Plaintiff’s personnel documents [do not] reflect” that he was “demot[ed] . . . [but instead] reflect that he was the FBI’s Deputy Director at the time he was removed.” Id. As a result, Defendants say, Plaintiff cannot obtain the equitable relief he seeks—an order requiring Defendants to “expunge Plaintiff’s personnel file of all records related to Defendants’ unconstitutional demotion.” Dkt. 1 at 47 (Compl. ¶ 194). There is simply “no record [of demotion] to expunge.” Dkt. 31 at 15.
Plaintiff disagrees. In his view, there is indeed a record that can be expunged from his personnel file: the OIG Report that evidences his demotion. Dkt. 27 at 30 (“[T]he February 2018 OIG Report’s title says Plaintiff was [the] Former FBI Deputy Director” (quotation marks omitted)); id. (OIG report “states that Plaintiff held the position of Deputy Director ‘until January 29, 2018’” (quoting Dkt. 27-30 at 19 (Pl’s Resp. Defs’ SUMF ¶ 1))). On the present record, the Court cannot determine whether the OIG Report is part of Plaintiff’s personnel file or whether it can be redacted in a manner that would redress Plaintiff’s alleged injury. As a result, and mindful of the pre-discovery posture of Defendants’ motion, the Court is persuaded that Plaintiff has done enough to allege Article III standing at this early juncture of the case. That conclusion may change, of course, if, after discovery, Plaintiff cannot adduce evidence that his “personnel file” contains the OIG Report or other records “related to Defendants’ unconstitutional demotion and termination decisions.” Dkt. 1 at 47 (Compl. ¶ 194). Significantly, “standing is not dispensed in gross,” Town of Chester, New York v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quotation marks omitted)—a plaintiff must establish at it at each “successive stage[] of the litigation,” Lujan, 504 U.S. at 561, “for each claim he seeks to press,” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006), and “for each form of relief sought,” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 185 (2000).
26 thus “deemed to have been employed for the full pay period,” which did not end until Saturday;
(2) under DOJ Order 1202, only Director Wray was authorized to fire him; (3) Attorney General
Sessions was recused from the investigation of any matter related in any way to the 2016
presidential campaigns, and he thus lacked to power to terminate or discipline Plaintiff; (4) the
memorandum that Attorney General Sessions signed late in the evening on March 16, 2018 did
not specify an effective date for Plaintiff’s purported termination; and (5) the email that Plaintiff
received late that evening stated only that the Attorney General believed that Plaintiff ‘“should
be’ removed” but did not specify the reasons for his termination or set an effective date. Id. at
37–39 (Compl. ¶¶ 148–56).
Count Two of the Complaint alleges that Plaintiff was terminated pursuant to “sham and
accelerated proceedings” that failed to comply with required procedures and policies in violation
of his Fifth Amendment right to procedural due process. Id. at 39 (Count II). He alleges, in
particular, that Defendants (1) ignored the established processes in order to accelerate his
termination; (2) deprived him of a meaningful opportunity to respond to the charges against him;
(3) failed to provide him with the thirty days’ notice before termination to which he was entitled;
(4) did not provide him with seven days to evaluate the evidentiary record upon which his
removal was premised; (5) conducted a sham proceeding designed to implement President
Trump’s desire to fire him before his benefits fully vested; (6) “violated the FBI’s longstanding
administrative policies and practices,” which “explicitly contemplate that an employee subject to
a personnel inquiry might instead submit his or her resignation rather than see the inquiry
continue,” and (7) deprived Plaintiff of his “protected liberty interest in his reputation, in
violation of the Fifth Amendment.” Id. at 39–42 (Compl. ¶¶ 157–69). Above all else, the
proceeding was unfair and inconsistent with due process, in Plaintiff’s view, because “[i]n truth
27 and in fact, the sole decision-maker concerning Plaintiff’s termination was [President] Trump,
whose decision was made and finalized before Defendants ever commenced their pretextual
termination process.” Id. at 41 (Compl. ¶¶ 164).
Faced with this long list of allegations, Defendants offer their own, equally lengthy list of
responses. They move to dismiss or for summary judgment on the grounds that: (1) Plaintiff
lacked any protected property interest in his continued employment or retirement benefits and
any tarnish to his reputational interest was premised on a “solid foundation;” (2) Plaintiff waived
any argument that Attorney General Sessions was personally biased; (3) the Attorney General
was not recused from the proceeding and was an appropriate decisionmaker; (4) Plaintiff has not,
in any event, stated a plausible claim of bias; (5) Plaintiff had adequate time to respond to the
notice of proposed removal; and (6) Plaintiff failed to plead a substantive due process claim and,
even if he did, the Complaint fails to allege facts sufficient to state a substantive due process
claim. 4
4 “Plaintiff contends that Defendants’ motion [as to Plaintiff’s due process claims] should be treated as seeking solely summary judgment as to his due process claims—not dismissal under Rule 12(b)(6)—because it relies on documents outside the pleadings.” Dkt. 31 at 12. But “[i]n weighing a motion to dismiss, a court may consider . . . any documents either attached to or incorporated in the complaint.” Mills v. Hayden, 284 F. Supp. 3d 14, 17 (D.D.C. 2018) (quotation marks omitted). Those are precisely the documents on which Defendants rely here. Dkt. 31 at 12–13. Defendants are therefore entitled to have their motion treated as one seeking both dismissal and summary judgment.
With that said, “[w]hen considering [a complaint’s] incorporation [of documents], it is necessary to consider why a plaintiff attached the documents, who authored the documents, and the reliability of the documents.” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133–34 (D.C. Cir. 2015) (quotation marks omitted). Here, it strains belief that Plaintiff, who alleges the DOJ investigation was pretext for a politically-motivated and ultra vires removal, would attach or incorporate documents purporting to legitimatize his removal with the intention that they be taken to be true for purposes of the pleading stage. Thus, the Court will not take as true every statement contained in the documents on which Defendants’ rely that the Complaint incorporates. Dkt. 31 at 12–13 (listing documents).
28 For present purposes, the Court need not resolve each and every dispute between the
parties but, instead, must determine whether one or both of Plaintiff’s due process claims—his
claim that his termination was, in fact, a nullity, and his claim that, even if he was removed, the
process was both a “sham” and illegally rushed—should be dismissed. If either claim can be
sustained on any of the theories Plaintiff proffers, the Court can—and should—leave for another
day the question whether each of Plaintiff’s asserted grievances would suffice. See Cavalier v.
Catholic Univ., 306 F. Supp. 3d 9, 27 (D.D.C. 2018) (denying a motion to dismiss because at
least one set of facts in Plaintiff’s Complaint gave rise to a plausible claim to relief).
1. Protected Property Right or Liberty Interest
In addressing whether Plaintiff has asserted an interest sufficient to trigger protection
under the due process clause, the parties treat Counts One and Two together, recognizing that
Plaintiff must establish that he was deprived “life, liberty, or property” to prevail on either
Count. See, e.g., Dodson v. U.S. Capitol Police, 2019 WL 4860720, at *5 (D.D.C. Sept. 30,
2019) (“To prevail on [a] procedural due process claim, the plaintiff must first show a
deprivation of ‘life, liberty, or property’ and must then show that ‘the procedures used by the
Government in effecting the deprivation [did not] comport with due process of law.’” (quoting
Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014))); George
Washington Univ. v. District of Columbia, 318 F.3d 203, 206 (D.C. Cir. 2003), as amended (Feb.
11, 2003) (“The [plaintiff’s] primary challenges sound in substantive due process. Although that
doctrine normally imposes only very slight burdens on the government to justify its actions, it
imposes none at all in the absence of a liberty or property interest.”); see also Schroer v.
Billington, 525 F. Supp. 2d 58, 65 (D.D.C. 2007).
29 Defendants maintain that Plaintiff lacked a protected property interest in his continued
employment with the FBI and in his retirement benefits, Dkt. 23 at 24–26, which include “his
law enforcement pension and health insurance,” Dkt. 1 at 5 (Compl. ¶ 9). With respect to his
continued employment, Defendants observe that a government employee lacks a constitutionally
protected interest in his job if he serves “at his employer’s ‘will’” and can be removed without
‘“cause.’” Thompson v. District of Columbia, 530 F.3d 914, 918 (D.C. Cir. 2008). Plaintiff does
not take issue with that premise. But the parties disagree about whether Plaintiff was an at-will
employee. In Defendants’ view, “Plaintiff did not enjoy for-cause removal protection” because
the CSRA, with certain exceptions not applicable here, excludes FBI employees from its for-
cause removal protections. Dkt. 23 at 24 (citing 5 U.S.C. § 7511(b)(8) (“This subchapter does
not apply to an employee . . . whose position is within . . . the Federal Bureau of Investigation
. . . .”). As Defendants observe, courts have rejected due process challenges brought by former
FBI employees for this just this reason. See Lamb v. Holder, 82 F. Supp. 3d 416, 424–35
(D.D.C. 2015); Mack v. United States, 814 F.2d 120, 123 (2d Cir. 1987).
Plaintiff responds that Defendants’ argument overlooks two other statutes, which extend
for-cause removal protection to members of the FBI’s Senior Executive Service (“FBI SES”).
Dkt. 27 at 46. The first of those statutes, 5 U.S.C. § 3151(a)(5)(D), provides that “[t]he Attorney
General may by regulation establish a personnel system for senior personnel within the Federal
Bureau of Investigation” and specifies that “[t]he regulations establishing the [FBI SES] shall . . .
provide for . . . removal or suspension consistent with subsections (a), (b), and (c) of section
7543 (except that any hearing or appeal to which a member of the [FBI SES] is entitled shall be
held or decided pursuant to procedures established by regulations of the Attorney General).”
The second statute, 5 U.S.C. § 7543(a), provides that, “[u]nder regulations prescribed by the
30 Office of Personnel Management, an agency may take an action covered by this subchapter
against an employee only for misconduct, neglect of duty, malfeasance, or failure to accept a
directed reassignment or to accompany a position in a transfer of function.” Section 7543 also
provides certain procedural protections which, in turn, appear “almost verbatim on page 16 of the
FBI SES Policy.” Dkt. 27 at 46. According to Plaintiff, these statutes authorize the Attorney
General to create the FBI SES and, should he do so, require him to promulgate regulations
extending to the FBI SES the for-cause removal restrictions contained in § 7543. That limitation
on the Attorney General’s removal authority, Plaintiff argues, is sufficient to create a property
interest in continued employment.
At least on the present record, the Court agrees that the combination of 5 U.S.C.
§§ 3151(a)(5)(D) and 7543 require good cause to remove a member of the FBI SES and that this
protection is sufficient to create a property interest. Defendants offer only one response to
Plaintiff’s argument, and that response is unconvincing. Although conceding that 5 U.S.C.
§ 7543 creates a property interest for covered employees, Defendants argue that § 7543 differs
from the FBI SES Policy adopted by the Attorney General in one dispositive respect: “Section
7543 states that ‘[a]n agency may take an action covered by this subchapter against an employee
only for misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or
to accompany a position in a transfer of function,’” while “the FBI’s SES Policy omits the word
‘only,’” and, instead, provides that an “[a]ction may be taken against a member of the SES for
misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to
accompany a position in a transfer of function.” Dkt. 31 at 26–27.
That argument fails for several reasons. First, and most importantly, it ignores the text of
the governing statutes. Section 3151(a)(5)(D) is, in fact, mandatory—although the Attorney
31 General was not required to establish an FBI SES, if he elected to do so, he was required (the
statute says “shall”) to provide for removal “consistent with subsections (a), (b), and (c) of
section 7543.” 5 U.S.C. § 3151(a)(5)(D). Nor can there be any mistake that Congress intended
to include for-cause removal protection. In cross-referencing § 7543, Congress made specific
reference to § 7543(a), and that paragraph does only one thing—it provides for-cause removal
protection, using the word “only,” which, under Defendants’ own view of the law,
unambiguously precludes at-will removal.
Second, Defendants misread the governing provision of the FBI SES Policy. To be sure,
the Policy omits the word “only.” But it does not, as Defendants suggest, replace that term with
the word “may.” To the contrary, the Policy tracks § 7543 in essential respects. Both the Policy
and the statute provide that agency “may” take an action against a covered employee for one of
the enumerated forms of misconduct or neglect. That is, both use the word “may” to convey that
the agency is not required to take an adverse action. Both then list the circumstances under
which the agency “may” take such an action. To be sure, the statute includes the word “only”
before the list of covered misconduct and the Policy does not. But, when read in light of
§ 3151(a)(5)(D)’s command that the governing regulations comport with § 7543(a), one cannot
plausibly read the Policy to provide that a member of the FBI SES “may” be removed for one of
the listed forms of misconduct or neglect and, by the way, for any other rationale that might
occur to the deciding official (or for no reason at all). After all, expressio unius est exclusio
alterius.
Third, this reading of the Policy is consistent with Supreme Court precedent. Just last
term in Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020), the
Court considered the constitutionality of a statutory provision similar to the SES policy here:
32 “The President,” the CFPB’s governing statute provided, “may remove the [CFPB’s] Director for
inefficiency, neglect of duty, or malfeasance in office.” 12 U.S.C. § 5491(c)(3) (emphasis
added). There, like here, the word “only” was missing. Id. But despite the use of “may” and the
absence of “only,” the Supreme Court held that § 5491(c)(3) nevertheless delineated the
exclusive categories of conduct for which the CFPB director could be removed. See Seila Law,
140 S. Ct. at 2193 (“The [CFPB] Director serves for a term of five years, during which the
President may remove the Director from office only for ‘inefficiency, neglect of duty, or
malfeasance in office.’” (emphasis added) (quoting 12 U.S.C. § 5491(c)(3))).
The Seila decision was hardly breaking new ground: The Supreme Court made the same
point eighty-five years earlier in Humphrey’s Executor v. United States, 295 U.S. 602 (1935). At
issue in Humphrey’s Executor was whether “the provisions of section 1 of the Federal Trade
Commission Act, stating that ‘any commissioner may be removed by the President for
inefficiency, neglect of duty, or malfeasance in office’, restrict[ed] or limit[ed] the power of the
President to remove a commissioner except upon one or more of the causes named.”
Humphrey’s Ex’r, 295 U.S. at 619 (1935) (quoting 15 U.S.C. § 41) (emphasis added). “Yes,” the
Court unanimously concluded, “the intent of the act [wa]s to limit the executive power of
removal to the causes enumerated,” missing “only” notwithstanding. Id. at 626, 632. “The
words of the act [were] definite and unambiguous.” Id. at 623. So they are here. 5
5 The Supreme Court has embraced a similar reading of removability clauses elsewhere. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 496 (2010) (interpreting statute providing that “[a] member of the Board may be removed. . . for good cause shown,” 15 U.S.C. § 7211(e)(6) (emphasis added), to mean that Board members can be removed “only for good cause” (emphasis added) (quotation marks omitted)); see also Seila, 140 S. Ct. at 2201 n.4 (declining dissent’s invitation to “ignore the reasoning of Humphrey’s Executor”).
33 Defendants also argue that Plaintiff cannot show that he has a protected property interest
in his retirement benefits, Dkt. 23 at 25–26, but that argument fails for the same reason that the
preceding argument fails. According to Defendants, Plaintiff “did not satisfy the requirements
for entitlement to [his] law-enforcement officer annuity because he was not employed as a law
enforcement officer ‘after becoming 50 years of age and completing 20 years of service,’” and as
a result, “he has no protected property interest in the annuity.” Id. at 25. That argument,
however, turns on the premise that Plaintiff was lawfully removed hours before his retirement
benefits vested. But if Plaintiff can show that he had a property interest in his continued
employment and that he was unlawfully terminated, his termination might be treated as a nullity
and, if so, his retirement benefits might have vested. It is too early in the litigation to decide
whether Plaintiff can clear these hurdles, but it is also too early to pretermit his efforts to do so.
Defendants’ contention that Plaintiff cannot show that he had a protected property
interest in his retirement benefits fails—at least at this stage of the proceeding—for a second
reason as well: Defendants’ argument is premised on at least one disputed fact. Plaintiff
contends that his purported termination from the FBI late on the evening of March 16, 2018
came too late to deprive him of his retirement benefits. Dkt. 27 at 39. He alleges that at 5:00
p.m. on March 16, 2018, he “fulfilled his final week of service with the FBI and retired from the
agency. The FBI charged Plaintiff’s accrued leave account for a full week of leave time,
confirming that [it] deemed Plaintiff to have been employed for the entire week preceding his
retirement.” Dkt. 1 at 32 (Compl. ¶ 125); see also id. at 10 (Compl. ¶ 36) (alleging that because
Plaintiff’s date of eligibility for retirement benefits “would fall during a weekend, Plaintiff’s last
day of service was scheduled for Friday, March 16, 2018”). In his opposition brief, Plaintiff also
cites to his own declaration and agency manuals to show that the administrative workweek at the
34 FBI runs from Monday morning to close of business (at 5:00 p.m.) on Friday. Dkt. 27 at 39–41.
This is significant, he explains, because federal agencies ‘“deem[]’” individuals ‘“employed for a
full biweekly pay period if [they] [are] employed during the days within that period, exclusive of
holidays and nonworkdays . . . which fall within [their] basic administrative workweek.’” Id. at
39 (emphases omitted) (quoting 5 U.S.C. § 6302(b)). And, if Plaintiff reached retirement before
Attorney General Sessions purported to terminate him, his property interest in his retirement
benefits indisputably vested.
Defendants counter by arguing that “[a]n FBI Agent’s day does not stop at 5 p.m., even
on a Friday,” and, in support of that contention, they point to “[t]he FBI’s Special Agent Hiring
Policy Guide,” which explains that “‘[a]pplicants must be advised that [Special Agents] are
expected to be available for duty at all times, based upon the needs of the FBI,’” and to the FBI
website, which asserts “that ‘FBI Special Agents must . . . [w]ork a minimum of 50 hours a
week, which may include irregular hours, and be on call 24/7, including holidays and
weekends.’” Dkt. 31 at 30–31 (quoting Federal Bureau of Investigation, Special Agent Selection
Process: All you Need to Know to Apply, https://www.fbijobs.gov/sites/default/files/how-to-
apply.pdf (last visited Sept. 23, 2020, 7:12 PM)). The fact that the FBI gave Plaintiff credit for
accrued leave pursuant to § 6302(b) carries no weight, according to Defendants, because that
statute “is focused solely on leave accrual, and . . . does not establish a general rule for work
hours at the FBI.” Id. at 31.
Putting aside Plaintiff’s reliance on § 6302, the parties have briefed the question of when
Plaintiff completed his “tour of duty” for purposes of the vesting of his retirement benefits as a
question of fact. Id. at 30. Both point to FBI policies, statements, and manuals, and both draw
competing conclusions from those materials. To take one example, in response to Defendants’
35 contention that all FBI agents—including those in senior management positions—are on call
“24/7” and that the workweek does not end at 5:00 p.m. on Friday evening, Plaintiff contends
that he was on “pre-approved terminal leave,” was “no longer serv[ing] in a duty status,” and
thus was not “on duty” at the time of his removal. Dkt. 32-1 at 6 (Ex. A) (emphases omitted).
Framed in this manner, the Court can only conclude that Defendants’ motion turns on a disputed
issue of fact and is, accordingly, premature.
Defendants also challenge Plaintiff’s alternative theory that Defendants interfered with
his protected liberty interest in his reputation. Dkt. 1 at 39, 41–42 (Compl. ¶¶ 156, 166, 169).
“In this circuit, a plaintiff may avail himself of two different legal theories to establish a
reputation-based due-process violation.” Jefferson v. Harris, 170 F. Supp. 3d 194, 205 (D.D.C.
2016). “The first, commonly called a ‘reputation plus’ claim, requires ‘the conjunction of
official defamation and [an] adverse employment action.’” Id. (quoting O’Donnell v. Barry, 148
F.3d 1126, 1140 (D.C. Cir. 1998). A plaintiff pursing such a claim must demonstrate that:
(1) “the government’s defamation resulted in a harm to some interest beyond reputation,” like
the “[l]oss of present or future government employment;” and (2) “the government has actually
stigmatized his or her reputation by, for example, charging the employee with dishonesty, and
that the stigma has hampered future employment prospects.” Doe v. U.S. Dep’t of Justice, 753
F.2d 1092, 1111 (D.C. Cir. 1985).
The “second option is to pursue what is known as a ‘stigma plus’ theory,” Jefferson, 170
F. Supp. 3d at 205, which “differs from [a reputation-plus claim] in that it does not depend on
official speech, but on a continuing stigma or disability arising from official action.” O’Donnell,
148 F.3d at 1140 (emphases added). “In other words, where a ‘reputation plus’ theory requires
some form of defamatory or stigmatizing speech by the government, the [stigma-plus theory]
36 depends only on governmental imposition of ‘a continuing stigma or other disability arising from
official action’ that ‘foreclosed the plaintiff’s freedom to take advantage of other employment
opportunities.’” Jefferson, 170 F. Supp. 3d at 205 (quoting O’Donnell, 148 F.3d at 1140).
Plaintiff does not specify which type of claim he is bringing and devotes strikingly little
of his briefing to establishing that he has a sufficient property or liberty interest in his reputation.
See, e.g., Dkt. 27 at 37–38 n.14. Defendants’ responses to Plaintiff’s allegations are similarly
anemic. Both of Defendants’ principal arguments—that the “statements about Plaintiff’s
misconduct rest[ed] on a solid foundation” and that “[Plaintiff] has not been sidelined by his
removal,” Dkt. 23 at 26—involve questions of disputed fact that cannot be resolved at this
juncture. For present purposes, the Court expresses no view on whether Plaintiff retains a
cognizable property interest in his reputation and merely holds that Defendants have not carried
their burden of showing that the claim fails at this early stage of the proceeding.
Finally, Defendants correctly observe that Plaintiff’s substantive due process claim
requires more than a property interest; it requires a “significant property interest[].” Dkt. 31 at
12 (emphasis added); see also Fuentes v. Shevin, 407 U.S. 67, 86 (1972); Tri Cty. Indus., Inc. v.
District of Columbia, 104 F.3d 455, 459 (D.C. Cir. 1997). Defendants contend that Plaintiff’s
interests here are not significant because substantive due process simply “does not protect
property interests in public employment.” Dkt. 31 at 25 (collecting cases). But Defendants
misread the caselaw on which they rely. The D.C. Circuit’s decision in American Federation of
Government Employees, AFL-CIO v. United States, 330 F.3d 513 (D.C. Cir. 2003), does not
question that government employment can, at least at times, constitute a property interest
protected by substantive due process. To be sure, the decision held that such a property interest
is not “fundamental” and thus does not trigger strict scrutiny; the court, accordingly, applied
37 rational basis scrutiny in considering the plaintiff’s substantive due process claim. Id. at 523.
Nothing in the parties’ briefing, however, turns on the level of constitutional scrutiny applicable
in this case. For now, the question is merely whether Plaintiff’s property interest in his
continued employment with the FBI and in his retirement benefits qualifies as “significant.”
Turning to that question, the Court is unpersuaded—at least at this early stage of the
proceedings and on the existing record—that Plaintiff’s substantive due process claim fails to
clear this hurdle. First, although the caselaw on whether a particular property interest is
significant for purposes of substantive due process is undeveloped, the procedural due process
caselaw makes clear that “the significance of the private interest in retaining employment cannot
be gainsaid.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 (1985); see also
Thompson v. District of Columbia, 428 F.3d 283, 287 (D.C. Cir. 2005) (a career employee at the
District of Columbia Lottery Control Board retained “significant interest in continued
employment”); Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 212 (2d Cir. 2003) (“A
public employee has a [protected] property interest in continued employment if the employee is
guaranteed continued employment absent ‘just cause’ for discharge.”); James v. City of Houston,
Texas, 2002 WL 31114951, at *7 (5th Cir. Sept. 12, 2002) (assistant director at Department of
Health and Human Services in Houston “had a significant interest in continued employment”);
Edelman v. W. Airlines, Inc., 892 F.2d 839, 848 (9th Cir. 1989); Baxter v. Anello, 2007 WL
925766, at *4 (W.D.N.Y. Mar. 26, 2007) (“[I]t is clear that a public employee’s interest in
continued employment . . . constitutes a significant property interest for purposes of the
Fourteenth Amendment.”). The parties do not address whether, and to what extent, a significant
38 property interest in the procedural due process context qualifies as a significant property interest
in the substantive due process context. 6
Much is the same for Plaintiff’s property interest in his retirement benefits. It is true that
the Supreme Court has recognized that the due process clause’s “protection of property . . . has
been read broadly to extend protection to statutory entitlements,” Shevin, 407 U.S. at 86, and that
here, Plaintiff’s right to receive an annuity upon completion of a certain tenure at the FBI is
expressly guaranteed by statute, 5 U.S.C. § 8412(d)(2). It is also true that Plaintiff alleges that he
was deprived of substantial property itself—his “full retirement benefits . . . and health
insurance.” Dkt. 1 at 5 (Compl. ¶ 9) (emphasis added). But Plaintiff does not explain what he
means by this—did he lose all of his retirement benefits, most of them, or a small portion of
them? Did he lose a portion or all of his health insurance? The answer to these questions is
important because a small loss might fail to qualify as a significant property interest. Cf. Fox v.
District of Columbia, 851 F. Supp. 2d 20, 34 n.18 (D.D.C. 2012) (suggesting, in the procedural
due process context, that a loss of $35 is not a significant property interest). The Court
recognizes, of course, that many individuals commonly depend on retirement benefits and health
insurance to obtain the necessities of life after their working years. But neither party has
established that Plaintiff is (or is not) one of these individuals. As a result, it is again too early to
6 Defendants, for example, while arguing that Plaintiff’s property interest is not significant, cite decisions that instead address whether interests in government employment are “fundamental.” Dkt. 31 at 25 (citing Am. Fed’n, 330 F.3d at 523; Said v. Nat’l R.R. Passenger Corp., 317 F. Supp. 3d 304, 341 (D.D.C. 2018); Am. Fed’n of Gov’t Employees, Local 2741 v. District of Columbia, 689 F. Supp. 2d 30, 36 (D.D.C. 2009); McManus v. District of Columbia, 530 F. Supp. 2d 46, 71 (D.D.C. 2007); Winder v. Erste, 511 F. Supp. 2d 160, 182 (D.D.C. 2007), aff’d in part, rev’d in part and remanded, 566 F.3d 209 (D.C. Cir. 2009)). Plaintiff, for his part, fails to distinguish between protected property interests in the procedural due process context and the limited subset of significant property interests that substantive due process protects. Dkt. 27 at 46–47, 51–52.
39 conclude that Plaintiff’s property interest in his retirement benefits is insignificant. The Court
therefore cannot reject Plaintiff’s substantive due process claim based solely on the significance
of the property interest that it seeks to protect.
2. Procedural Due Process Claims
Defendants maintain that Plaintiff’s procedural due process claims fail because:
(1) Plaintiff waived the argument that Attorney General Sessions was personally biased;
(2) Attorney General Sessions was not recused and was the appropriate decisionmaker;
(3) Plaintiff has not plausibly alleged that Attorney General Sessions was biased; and
(4) Plaintiff had ample time to respond to the charges against him. Dkt. 23 at 23–35.
Plaintiff responds that his claim does not turn on an allegation that the Attorney General
was actually biased, Dkt. 27 at 43; rather, he alleges that the Attorney General was already
recused and thus without power to act, and that the DOJ proceedings were a “sham” because:
(1) “the sole decision-maker concerning Plaintiff’s termination was [President] Trump, whose
decision was made and finalized before Defendants ever commenced their pretextual termination
process;” and (2) Defendants unreasonably accelerated the termination policy in order to satisfy
the President’s professed “desire[]” to remove Plaintiff before he could retire. Dkt. 1 at 41
(Compl. ¶ 164).
For present purposes, the Court need not reach the question whether Attorney General
Sessions lacked authority to act because Plaintiff’s alternative theory suffices to state a claim.
Under that theory, the President’s attacks on Plaintiff—including his assertion that Plaintiff was
“racing the clock to retire with full benefits[] 90 days to go?!!!”, id. at 27 (Compl. ¶ 104)—
infected the process and left senior DOJ management with only one palatable option: to remove
Plaintiff before the ninety days expired. In other words, Plaintiff does not contend that Attorney
40 General Sessions was personally biased against him but, rather, alleges that the President wanted
Plaintiff gone before his retirement benefits vested, and the Attorney General followed what he
would have understood to be an unmistakable direction from his boss. The question before the
Court is not whether Plaintiff’s factual allegations are correct but only whether he has alleged a
plausible claim that raises a disputed issue of material fact. Anderson, 477 U.S. at 247; Fed. R.
Civ. P. 56(a). Plaintiff easily clears that modest hurdle.
Plaintiff states a procedural due process claim for a second reason as well: He plausibly
alleges that he was not provided sufficient time to review the relevant materials and to present
his defense. Dkt. 1 at 31–32, 40 (Compl. ¶¶ 120–25, 161–62). “The essential requirements of
due process,” the Supreme Court has explained, “are notice and an opportunity to respond.”
Loudermill, 470 U.S. at 546. These requirements are “flexible”—“procedural protections” wax
and wane “as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
Thus, a plaintiff may receive sufficient due process even if, for example, he “desire[s] a greater
opportunity to present [his] case than the limited nature of the [agency] hearing provided.”
Louisiana Ass’n of Indep. Producers & Royalty Owners v. F.E.R.C., 958 F.2d 1101, 1115 (D.C.
Cir. 1992). In McBryde v. Committee to Review Circuit Council Conduct & Disability Orders of
Judicial Conference of the United States, 83 F. Supp. 2d 135, 168 (D.D.C. 1999), aff’d in part,
vacated in part, 264 F.3d 52 (D.C. Cir. 2001), for example, this Court held that a plaintiff
received sufficient process despite “enjoy[ing] less than two weeks to prepare his response” to a
“159-page final [r]eport” accusing him of judicial misconduct.
Plaintiff and Defendants each contend that they have the better of the due process
argument, and accordingly, both point to a number of decisions that, they say, compel a finding
that the process here was enough (in Defendants’ view) or not enough (in Plaintiff’s). Compare
41 Dkt. 23 at 33–34 with Dkt. 27 at 53 n.23. But this “battle of the string citations can have no
winner.” Smith v. Wade, 461 U.S. 30, 93 (1983) (O, Connor, J., dissenting). That is because the
question here—whether the process afforded was the process due—turns on the facts. Due
process requires not just notice, but meaningful notice. Bellagio, LLC v. N.L.R.B., 854 F.3d 703,
712 (D.C. Cir. 2017). And the gravamen of the parties’ dispute is just that: was Plaintiff, in
practice, given sufficient time to respond to charges against him?
Plaintiff says he was not. In his view, he “and his counsel were given hardly any time to
review key pieces of essential evidence,” including “exculpatory evidence” that Plaintiff alleges
was withheld from him “until the eve of his termination hearing.” Dkt. 1 at 31 (Compl. ¶ 120).
Plaintiff alleges that “[t]he record consisted of over 1,000 pages of materials, and [that he] and
his counsel [were] given only four business days to review the materials, prepare for a hearing
. . . and draft a written response.” Id. (Compl. ¶ 121). Finally, Plaintiff claims that “Defendants
kept producing documents in a piecemeal fashion as late as the morning of the hearing.” Dkt. 27
at 54.
In response, Defendants argue that “Plaintiff learned of the conclusions underlying the
notice of proposed removal weeks before the notice was delivered to him,” Dkt. 23 at 32; “the
notice of proposed removal spanned only 15 substantive pages,” id. at 33; and that the “seven
days” Defendants gave Plaintiff “to respond to the notice of proposed removal” were
constitutionally sufficient, id. at 34; but see id. at 33 (Defendants acknowledging that
“[r]esponding to a 15-page document in a week might be a burdensome task for a team of
experienced attorneys”). Defendants, however, neither address their purported delay in turning
over evidence nor refute Plaintiff’s allegation that he was denied timely access to crucial portions
of the administrative record. Id. at 32–35; Dkt. 31 at 37.
42 At this point, then, the Court is faced with a factually laden claim that can neither be
dismissed nor summarily adjudged.
3. Substantive Due Process
Plaintiff also alleges that Defendants violated his substantive due process rights by
arbitrarily and without authority depriving him of his full retirement benefits. Dkt. 27 at 37, 44–
45. As the Supreme Court has observed, the guarantee of substantive due process “[i]s intended
to prevent government officials from abusing [their] power[] or employing it as an instrument of
oppression.” County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (quotation marks
omitted); see also Robinson v. District of Columbia., 736 F. Supp. 2d 254, 261 (D.D.C. 2010).
As a result, “the doctrine of substantive due process constrains only egregious government
misconduct,” George Washington, 318 F.3d at 209, for example, “an act of ‘grave unfairness’”
or ‘“a deliberate flouting of the law that trammels significant personal or property rights,’”
American Federation of Government Employees, AFL-CIO, Local 446 v. Nicholson, 475 F.3d
341, 353 (D.C. Cir. 2007) (quoting Tri County, 104 F.3d at 459). By contrast, “[i]nadvertent
errors, honest mistakes, agency confusion, even negligence in the performance of offic[i]al
duties, do not warrant redress.” Silverman v. Barry, 845 F.2d 1072, 1080 (D.C. Cir. 1988).
Defendants argue that Plaintiff’s substantive due process claim fails for two reasons.
First, they contend that Plaintiff’s Complaint refers only to due process generally, not to
substantive due process specifically. Dk. 31 at 23. This argument fails for two reasons. First,
although the Complaint does not use the phrase “substantive due process,” neither does it use the
phrase “procedural due process.” On Defendants’ logic, then, the Complaint fails to allege a
procedural or a substantive due process claim. To be sure, procedural due process claims are
more common than substantive due process claims. But that is no reason to construe the
43 Complaint, which fails expressly to invoke either doctrine, to state only a procedural due process
claim. Dkt. 1 at 6, 37, 39 (Compl. ¶¶ 11, 149). Second, the Complaint succeeds in alleging a
substantive due process claim despite failing to use that label. The Complaint alleges that
Plaintiff’s termination was “ultra vires,” id. at 37, 39 (Compl. ¶¶ 149, 156), recurrently alleges
that Attorney General Sessions was without authority to fire Plaintiff, id. at 38–39 (Compl.
¶¶ 153–55), and notes that Attorney General Sessions suffered from “conflicts of interest and
recusals” that should have prevented or disabled him from terminating Plaintiff, id. at 38
(Compl. ¶ 155). This is sufficient to allege that Defendants “deliberate[ly] flout[ed] . . . the law
[in a manner] that trammel[ed] significant personal or property rights.’” Nicholson, 475 F.3d at
353 (quotation marks omitted).
For much the same reason, Defendants’ second argument against Plaintiff’s substantive
due process claim fares no better. Defendants contend (for the first time in their reply brief) that
even if Plaintiff had pled a substantive due process claim, that claim would fail because
Defendants did not engage in any “conscience-shocking” conduct. But conscience-shocking
conduct is, as explained, not the only way of establishing a substantive due process claim. See
Jacinto-Castanon de Nolasco v. ICE, 319 F. Supp. 3d 491, 499 (D.D.C. 2018); see also
Nicholson, 475 F.3d at 353. Plaintiff’s allegations that, as of 5:00 p.m. on March 16, 2018, he
had completed his tour of duty, earned his retirement benefits as a consequence of twenty years
of service, and retired from the FBI, only to be denied those benefits against the backdrop of
pointed, public denunciation by the President of the United States suggests a plausible claim that
44 Defendants “deliberately flouted” the law in order to deprive Plaintiff of his retirement benefits.
See Nicholson, 330 F.3d 513, 523. 7
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss or, in the alternative, for
summary judgment, Dkt. 23, is hereby DENIED.
SO ORDERED.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: September 24, 2020
7 As with Plaintiff’s procedural due process claim, the Court concludes that, at this juncture, it “need not reach the question whether Attorney General Sessions lacked authority to act because Plaintiff’s alternative theory”—namely, that the deprivation of his retirement benefits was the product of wholly arbitrary government action—“suffices to state a claim.” See supra at 40.
Related
Cite This Page — Counsel Stack
McCabe v. Barr, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccabe-v-barr-dcd-2020.