Charles E. Egger v. Harlan C. Phillips

COFFEY, Circuit Judge,

concurring in part.

I agree with Judges Bauer, Wood and Posner that this court need not resolve the issues addressed in Parts III and V of the plurality opinion. However, I am compelled to write separately as the plurality opinion fails to adequately address the compelling needs of the Federal Bureau of Investigation and indeed all law enforcement agencies, in maintaining the highest degree of esprit de corps, confidentiality, efficiency, discipline and supervision, in fact far greater than those of any other unit of government. In this respect, the interests and needs of law enforcement agencies are closely allied, but not exactly similar to, those of the military. Although I agree that cases pertaining to the constitutional rights of military personnel are not controlling in this case, many of the considerations underlying the military’s need for esprit de corps, confidentiality, efficiency, discipline and supervision are equally compelling in the context of civilian police forces. Therefore, I disagree with the plurality’s criticism of the district court’s statement:

“The district court also erred in characterizing the FBI as a para-military organization if it was thereby suggesting Eg-ger’s constitutional rights could be subject to constraints appropriate in a military environment. See generally, Brown v. Gliens, 444 U.S. 348 , 100 S.Ct. 594 , 62 L.Ed.2d 540 (1980) (analyzing special status of military personnel’s constitutional rights). We have repeatedly rejected the invitations to analogize state and local law enforcement agencies to military forces for purposes of analyzing the police officers’ liberties .... ”

I read the district court’s brief statement that the FBI is a “para-military organization wherein security of information, discipline and teamwork are of primary importance” as an analogy recognizing the unique and compelling requirements of law enforcement agencies, and not as a finding that cases relating to the constitutional rights of military personnel are controlling in this fact situation.

I.

The Supreme Court in Kelley v. Johnson, 425 U.S. 238 , 96 S.Ct. 1440 , 47 L.Ed.2d 708 (1976) recognized the unique considerations which come into play when an employment related decision of a police department is *326 subjected to constitutional challenge. In Kelley , a police officer challenged the constitutionality of a police department regulation governing the length of officers’ hair. The Court of Appeals for the Second Circuit had held the regulation unconstitutional:

“The court of appeals held that cases characterizing the uniformed civilian services as ‘para-military’ and sustaining hair regulations on that basis were not soundly grounded historically. It said that the fact that a police force is organized ‘with a centralized administration and a disciplined rank and file for efficient conduct of its affairs’ did not foreclose respondent’s claim, but instead bore only upon ‘the existence of a legitimate state interest to be reasonably advanced by the regulation.’ ”

Id. at 241 , 96 S.Ct. at 1442 . The Supreme Court reversed the Second Circuit and held that the hair length regulation was constitutionally valid. In so holding, the Supreme Court stated:

“[T]he court of appeals [reasoned] that the ‘unique judicial deference’ accorded by the judiciary to regulation of members of the military was inapplicable because there was no historical or functional justification for the characterization of the police as ‘para-military’. But the conclusion that such cases are inapposite, however correct, in no way detracts from the deference due Suffolk County’s choice of an organizational structure for its police force. Here the county has chosen a mode of organization which it undoubtedly deems the most efficient in enabling its police to carry out the duties assigned to him under state and local law. Such a choice necessarily gives weight to the overall need for discipline, esprit de corps, and uniformity.”

Id. at 246 , 96 S.Ct. at 1445 (emphasis added).

The Ninth Circuit relied on the Kelley holding in a case involving facts similar to this case. In Kannisto v. City and County of San Francisco, 541 F.2d 841 (9th Cir. 1976), cert. denied, 430 U.S. 931 , 97 S.Ct. 1552 , 51 L.Ed.2d 775 (1977), a police lieutenant stated, during a morning inspection, that his superior was an “unreasonable, contrary and vindictive individual.” Following this statement, the plaintiff was disciplined by the police department for violating its regulation prohibiting “misconduct or any conduct ... which tends to subvert the good order, efficiency or discipline of this department.” The plaintiff brought an action alleging that the police department had violated the First Amendment in disciplining him. The Ninth .Circuit rejected this argument and held that the police department’s interests in discipline outweighed the plaintiff’s First Amendment rights. The court stated:

“It is true ... that the [police] department has a substantial interest in developing ‘discipline, esprit de corps, and uniformity,’ Kelley v. Johnson, supra, 425 U.S. at 246 [ 96 S.Ct. at 1445 ], to ensure adequate ‘promotion of safety of persons and property.’ ”

Id. at 843. The court went on to distinguish its holding from the Supreme Court’s opinion in Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), stating:

“The Court’s decision in Pickering provides considerable guidance. The plaintiff in Pickering was a teacher discharged for submitting a letter to the local newspaper criticizing school board budgetary policies. The Court found that the public statement at issue related to a matter of general public concern and that ‘the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication.’ ... The Court concluded that no peculiar state interest arising from the employment relationship was at stake and that Pickering was therefore entitled to the same First Amendment protection afforded the general public.

The Pickering Court noted:

‘These statements [were] in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of *327 maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant’s employment relationships with the Board and, to somewhat lesser extent, with the superintendent [were] not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence [were] necessary to their proper functioning.’

The Court also emphasized that it was not shown, nor could it be presumed, that the statements at issue ‘in any way either impeded the teacher’s proper performance of his daily duties in the classroom, or ... interfered with the regular operation of the school generally.’

The facts in this case sharply contrast with those in Pickering . Here, Kannis-to’s comments were directed against one under whose direction he worked in close daily contact. Questions of discipline and harmony are clearly presented here. Kannisto’s diatribe, delivered as it was before his men while in formation for inspection, can presume to have had a substantial disruptive influence on the regular operations of the department ... the department’s conclusion that this was the case is entitled to considerable deference.”

Id. at 843-44.

The Eighth Circuit recently discussed the similarities between the military and a civilian police force in Vorbeck v. Schnicker, 660 F.2d 1260 (8th Cir.1981), cert. denied, 455 U.S. 921 , 102 S.Ct. 1278 , 71 L.Ed.2d 462 (1982). In Vorbeck , the St. Louis Police Officers Association brought an action alleging that the police department regulations prohibiting conduct “unbecoming to a member of the department” or “contrary to the good order and discipline of the department” were unconstitutionally vague and would “unnecessarily chill the officers’ exercise of their constitutional rights.” In rejecting this argument, the Eighth Circuit stated:

“[T]he Court [in Parker v. Levy, 417 U.S. 733 , 94 S.Ct. 2547 , 41 L.Ed.2d 439 (1974)] held that special considerations relevant to military needs warranted a ‘broader sweep’ in military regulations than might be permissible in a civilian criminal code.

Police regulations, like military regulations, are generally by necessity cast in broad terms.

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As illustrated by Parker and Bence [v. Breier, 501 F.2d 1185 (7th Cir.1974)], there is a delicate balance to be struck in cases such as that now before us. Equally legitimate interests appear on both sides of the scale. On the one side there are the needs of institutions, such as the military and the police, which must demand a high level of discipline and duty of their members in order to function effectively for the good of all members of society.”

Id. at 1262-63 (emphasis added).

Based on this case law, the following analysis is mandated in this case. First, it cannot be emphasized too strongly that the interests at issue in this case are entirely different than those in Pickering . Here, Egger’s allegations of wrongdoing were directed against one with whom he worked in close daily contact and involved a possible disclosure of sensitive agency information. Moreover, Egger’s comments directly concerned a co-employee’s performance of his duties and thus directly interfered with the confidentiality, esprit de corps and efficient operation of the FBI office, whereas in Pickering “the fact of employment [was] only tangentially and insubstantially involved in the subject matter of the public communication.” Most importantly, this case involves the FBI, an agency whose sensitive and dangerous duties demand the utmost in confidentiality, discipline and esprit de corps, far different than the school setting involved in Pickering . Although cases dealing with the constitutional rights of military personnel are not controlling in this instance, many of the same considerations relevant in a military context are equally important to government law enforcement agencies, whether they be the FBI, Secret Service, U.S. Marshal, local police forces, sheriffs, etc. — discipline, supervi *328 sion, confidentiality, efficiency and esprit de corps if they are to continue to protect not only the general public but themselves as well.

Government law enforcement agencies, whether they be the FBI, Secret Service, U.S. Marshal, local police forces, sheriffs, etc., are indeed very similar to the military in terms of the need for direction, supervision, discipline, confidentiality, efficiency and esprit de corps. Thus, courts should defer, whenever possible consistent with the Constitution, to the superior expertise of law enforcement professionals in dealing with their respective personnel. As the Supreme Court stated in an analogous context, prison administration, courts “should not ‘second-guess the expert administrators on matters on which they are better informed’ .... Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline .... ” Bell v. Wolfish, 441 U.S. 520, 544, 547 , 99 S.Ct. 1861, 1876, 1878 , 60 L.Ed.2d 447 (1979). Likewise, questions regarding the orderly and efficient operation of a police force are analogous to those concerning administration of health care facilities, in that both situations involve administrative determinations which are best left to the superior expertise of trained professionals. The Supreme Court in Youngberg v. Romeo, 457 U.S. 307 , 102 S.Ct. 2452 , 73 L.Ed.2d 28 (1982) stated:

“In determining what is ‘reasonable’ . .. we emphasize that courts must show deference to the judgment exercised by a trained professional. By so limiting judicial review of challenges to conditions in state institutions, interference by the federal judiciary with the internal operations of these institutions should be minimized. Moreover, there certainly is no reason to think judges or juries are better qualified than appropriate professionals in making such decisions.” (emphasis added).

The Supreme Court’s recent statement regarding the employment requirements of a prosecuting attorney’s office is equally significant in the context of law enforcement agencies: “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” Connick v. Myers, ___ U.S. ___, ___, 103 S.Ct. 1684, 1692 , 75 L.Ed.2d 708 (1983).

II.

The plurality opinion puts undue emphasis on the district court’s brief statement that the FBI is a “para-military organization wherein security of information, discipline and teamwork are of primary importance.” This brief reference to the paramilitary nature of the FBI should not be construed as a finding by the district court that cases pertaining to the constitutional rights of members of the military are controlling in this fact situation. Rather, the district court’s statement, when viewed in its proper context, is merely a recognition of the considerations discussed above. Thus, I have concurred in the result reached by the court, but have written separately to emphasize the unique and compelling requirements of law enforcement agencies. I believe the personnel decisions of the FBI and of all law enforcement agencies must be afforded broad deference if these agencies are to be able to perform their proper roles. More is at stake when dealing with the personnel decisions of a law enforcement agency than with those of any other governmental agency. The safety of not only the law enforcement personnel themselves but also the general public, depend on the ability of the administrators of these agencies to maintain proper discipline, confidentiality, supervision and esprit de corps.

Before CUMMINGS, Chief Judge, and PELL, BAUER, WOOD, CUDAHY, * ESCHBACH, POSNER, COFFEY and FLAUM, Circuit Judges.

ORDER

This cause is now before the court on appellant’s “Motion to Reconsider, for Stay, and for Remand to the District Court for *329 Purposes of Supplementing the Record and for Further Consideration” filed June 9, 1983.

Appellant seeks reconsideration of this case based on newly discovered evidence. His request is the equivalent of a motion under Fed.R.Civ.P. 60(b)(2) requesting relief from judgment because of newly discovered evidence which could not have been discovered by due diligence prior to the district court’s judgment. The motion is not properly before this court. “When an appeal from judgment is pending a motion under Rule 60(b) for relief from the judgment because of newly discovered evidence should be filed in the district court and that court should proceed to hear the motion. If the district court indicates that it will allow the motion the court of appeals should then be requested to remand the cause.” Binks Manufacturing Co. v. Ransburg Electro-Coating Corp., 281 F.2d 252, 260 (7th Cir.1960), ce rt. dismissed, 366 U.S. 211 , 81 S.Ct. 1091 , 6 L.Ed.2d 239 (1961); Accord, Washington v. Board of Education, 498 F.2d 11, 16 (7th Cir.1974) (citing 11 Wright & Miller, Federal Practice and Procedure: Civil § 2873, at 263-65 (1973), commending this practice); First National Bank of Salem, Ohio v. Hirsch, 535 F.2d 343, 345-46 (6th Cir.1976) (per curiam); see generally, Greater Boston Television Corp. v. FCC, 463 F.2d 268 , 280 & n. 22 (D.C.Cir.1971), cert. denied sub nom., WHDH, Inc. v. FCC, 406 U.S. 950 , 92 S.Ct. 2042 , 32 L.Ed.2d 338 (1972); J. Moore, Moore’s Federal Practice, 160.30[2] (1982). Appellant failed to comply with this procedure, and hence ordinarily we would deny such a motion without prejudice and permit appellant to follow the established procedure. However, in this case, it appears clear that the district court would be required to deny a Rule 60(b)(2) motion in this case on the ground that it is untimely. Such motions must be filed, under the express terms of the Rule, within one year of entry of judgment, and this time limit is not extended by the maintenance of an appeal, e.g. Greater Boston Television Corp. v. FCC, supra, 463 F.2d at 280; J. Moore, Moore’s Federal Practice, H60.28[2] at 399-400 & n. 37, 160.30[2] at 424 (1982). The motion in this case comes years after the judgment was entered, and comes far too late. Lastly, the motion and accompanying affidavit do not contain facts which support the conclusion that the newly discovered evidence could not have been obtained earlier through due diligence. Typical of this failure is 13 of appellant’s affidavit, in which appellant points to information obtained by a reporter in an interview with appellee. Through the exercise of due diligence, appellant could have deposed appellee, and his contention that he could not have earlier secured the results of a particular reporter’s interview with appel-lee, even if true, in no way establishes that he could not have obtained the information which constitutes the purported newly discovered evidence.

While the thrust of appellant’s motion is that reconsideration of this cause is required on the basis of newly discovered evidence, to the extent it can be interpreted as a petition for rehearing of the court’s en banc decision on the same record we previously considered, the petition for rehearing is denied.

Accordingly, appellant’s June 9,1983 motion is hereby denied.

Judge Cudahy would deny the motion without prejudice to its being brought in the district court.