Charles E. Egger v. Harlan C. Phillips

CUDAHY, Circuit Judge,

concurring in Parts III and V and the result.

Judge Eschbach is to be commended on his exhaustive exploration of all aspects of this multifaceted controversy. I concur in the result reached in light of Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). Harlow , which was decided after the panel opinion in this case was issued on February 1, 1982, changed the elements of the qualified immunity defense so as to remove from consideration the question whether the government official acted with malicious intention. Since it was this question which properly precluded the original panel from accepting Phillips’ qualified immunity defense, see Egger v. Phillips, 669 F.2d 497, 504 (7th Cir.1982), I am inclined to agree that under present standards the qualified immunity defense should prevail. In Harlow , the Court held that officials should be granted immunity unless their conduct, at the time it was undertaken, violated “clearly established *324 statutory or constitutional rights of which a reasonable person would have known.” Harlow, 102 S.Ct. at 2737 . In the case before us, under the Harlow test, Phillips’ transfer of Egger seems protected, since it was not until July 1979 that this circuit specifically held that a job transfer, in contrast to a discharge, could be the subject of a first amendment challenge. McGill v. Board of Education, 602 F.2d 774, 780 (7th Cir.1979). See also Givhan v. Western Line Consolidated School District, 439 U.S. 410 , 99 S.Ct. 693 , 58 L.Ed.2d 619 (1979). 1

In all other respects, however, I adhere to the panel opinion of which I am the author, Egger v. Phillips, 669 F.2d 497 (7th Cir. 1982). In particular, I adopt for purposes of this separate opinion the observations made there regarding the difficulties, in a summary judgment context, of sorting out problems of motivation and other questions of state of mind. The problem in the instant case is, of course, to distinguish between Phillips’ reactions to Egger as a “whistleblower” and corruption fighter and his reactions to Egger as an eccentric troublemaker.

Also, it may be, as is suggested, that Egger could have avoided some hard feelings and disruption by keeping his complaints against Naum anonymous. See supra at 318-319. This approach, however, although practical, seems at the same time furtive and cowardly. It is also unclear to me why Egger should necessarily bear the entire cost of speech that, if it should prove justified by the facts, would be manifestly helpful to the public and to the Bureau. See supra at 323. 2

Finally, I am disappointed that the arguments regarding FBI immunity from Bi vens actions and Egger’s waiver of his first amendment rights were entertained by this court en banc. Neither argument was presented to the panel, though the argument that Bivens actions should be denied to FBI agents was the government’s foremost contention on rehearing. The government explained lamely in its Petition for Rehearing that the “[Bivens] issue was raised by Motion to Dismiss (10/27/78) in the district court but we prevailed there on different grounds and thus did not raise the issue in the court of appeals.” Defendant’s Petition for Rehearing at 8 n. 6. ' I need hardly point out the disorder and wasted effort — not to mention denigration' of the work of panel members — that result from allowing new arguments to be made and considered on rehearing. Some of the same considerations which argue for solicitude for other tribunals with respect to the exhaustion of claims and remedies argue at least equally for solicitude for the panels of this court. Litigants should not be encouraged to save their most sweeping — if not their most meritorious — claims for the rehearing petition. Although I object to the after-the-fact nature of these arguments, I nevertheless concur here in their rejection on the merits.

I therefore respectfully concur in the result and in Parts III and V of Judge Esch-bach’s opinion.

POSNER, Circuit Judge, with whom BAUER, HARLINGTON WOOD, Jr., and COFFEY, Circuit Judges, join, concurring.

I join in all but Parts III and V of Judge Eschbach’s thorough and meticulous opinion. Part III holds that an FBI agent may bring a .damages suit for an alleged viola *325 tion of his constitutional rights brought about by a transfer from one FBI office to another. Part Y holds that one does not give up his right of free speech by becoming an FBI agent. In view of the disposition of the case, neither Part III nor Part V is essential to the court’s decision, and Part III in particular reaches a conclusion that I find difficult to accept. I would think it the better part of valor to avoid trying to resolve either question in this case.

In a recent decision not cited by the court, Jones v. Reagan, 696 F.2d 551 (7th Cir.1983), a panel of this court held that members of an army reserve unit could not bring a damages action for alleged violation of their constitutional rights brought about by a transfer from one reserve unit to another. The case is distinguishable from this case on several grounds but I am not convinced that this case should be decided differently, in view of the potential disruptive effect of damages liability on the FBI’s ability to maintain discipline and cohesion. I also am not completely persuaded that FBI agents have a First Amendment right to criticize their superiors. The adverse effect of such a right on discipline and cohesion may outweigh the benefits of allowing FBI agents to participate fully in the marketplace of ideas.

If I thought either of these issues was inescapably presented by this case I would roll up my sleeves and grapple with them and maybe in the end would be persuaded by Judge Eschbach’s analysis. But since they are at once difficult and inessential I would prefer to see the court defer their resolution until a case arises where they are inescapably presented. As only four of the eight judges voting have joined in Parts III and V, in effect the court has deferred their resolution to another day.

. It is not clear to me, under this analysis (assuming that it is correct), how progress in the development of the law is to be accomplished since defendants presumably will be able to avoid liability in unprecedented situations by invoking the Harlow defense. Whether a court could recognize a defendant’s right to immunity but then go on to hold the conduct complained of illegal for future cases would seem to raise serious Article III problems as well as removing the incentive of plaintiffs to advance contentions requiring a change in the law. See Stovall v. Denno, 388 U.S. 293, 301 , 87 S.Ct. 1967, 1972 , 18 L.Ed.2d 1199 (1967). See generally Mackey v. United States, 401 U.S. 667, 675-702 , 91 S.Ct. 1160, 1164-1165 , 28 L.Ed.2d 404 (Harlan, J., dissenting).

. Whatever else may be said about Egger’s concerns, they assumed sufficient public importance and reality to become the subject of a national network television story on the ABC news program, “20/20” (November 4, 1982).