Petition — Borrell v. United States Information Agency
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83-1665 [PTT Ep
No. 83 APR 12 1984
—— STEVAS.
CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1983
PHYLLIs F. BORRELL,
. Petitioner
UNITED STATES INFORMATION AGENCY,
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
COURTS OULAHAN *
1302 18th Street, N.W.
Washington, D.C. 20036
(202) 833-2540
GEORGE BREZNA
8008 Garland Avenue
Takoma Park, Maryland 20912
(301) 585-6471
Attorneys for Petitioner
* Counsel of Record
April 12, 1984
WILSON - Eres Printinc Co . Inc - 789.0096 - WasHINGTON. D C 20001
QUESTION PRESENTED
Whether, on a review of the third successive district
court dismissal of a 1979 complaint for federal agency
violation of the First Amendment, due process, and Pri-
vacy Act rights of an employee judicially recognized as a
whistle-blower, a 22-line per curiam judgment by a panel
majority, one judge dissenting, which affirmed without
a statement of facts or disposition of substantial legal
issues the district court’s decision written more than 18
months after a bench trial, should be reversed and re-
manded by this Court under its supervisory powers as
a matter of more effective judicial review, improved ap-
pellate procedure, and substantial justice.
(i)
ii
PARTIES TO THE PROCEEDINGS
Petitioner is Phyllis F. Borrell, a former probationary
employee of Respondent, United States Information
Agency (formerly United States International Communi-
cation Agency). The American Federation of Govern-
ment Employees as amicus curiae appeared by brief in
support of Petitioner during prior proceedings before the
court of appeals.
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW ........ nba i
PARTIES TO THE PROCEEDINGS .......0.2..........0:0:00++ ii
RE SE PT INTE cab cdtansanctesitcishcenercevinieomnicitiagste iii
po SF GF i 5 a 5s. FR ene iv
EIT ERUNIIITED ” sinsdiccdccenstieissiesinaiiismmaneiabsimcammeaniananen 1
RRR ee NE RR TED SE nS Ere BI 1
CONSTITUTIONAL PROVISIONS INVOLVED ........ 2
gt Bk a aT Ieee 2
STATEMENT OF THE CASE 2...cccccccscccececsecsescocssoscscese 2
REASONS FOR GRANTING THE WRIT .................... 4
I. A NOVEL AND SUBSTANTIAL QUESTION
OF APPELLATE JUDICIAL ADMINISTRA-
ONE BA ITED cisncissctsccstectetesenbinenbeeeteones 4
II. THE INTERESTS OF JUSTICE WERE NOT
SERVED BY THE FORM AND SCOPE OF
THE TERSE DECISION BELOW ................... 7
INE icpeiercanecasesesthicaniinssecdvenadeavsete anisandeciniegaananeli 9
(iii)
iv
TABLE OF AUTHORITIES
CASES: Page
Barber v. United States, 711 F.2d 128 (9th Cir.
|” SERGE AR Satan Rs Nn eae Pee as. Wet eA edn a bale EMER PE TOR 5
Borrell v. United States International Communica-
tion Agency (now United States Information
Agency), 221 U.S. App. D.C. 32, 682 F.2d 981
ER 5 as. ce econecignataerreiomecaaie dines ieeenastaaeomansciaretas 3, 5,8
Browder V. Director, 4384 U.S. 257 (1978) .............. 7
Bundy v. Jackson, 205 U.S. App. D.C. 444, 641
F.2d 934 (1981) . 9
Case V. Morrisette, “155 US. “App. “D.C. 81, “475
ee I aden ee cca -inc Sacptatesntemaenenntanese 8
Ex Parte Crane, 30 U.S. (5 Pet.) 190 (1831) ae mn 5
Gibson v. Lockheed Aircraft Service, Inc., 350 U.S
I SU a ae ea 10
Jones V. Superintendent, Virginia State Farm, 465
A & 8 fe 3. | a 10
Mazaleski v. Truesdell, 183 U.S. App. D.C. 182, 562
FR Eg g heer Ran UC Peele Coreen 3
NLRB v. Sears, Roebuck & Co., 421 U.S. 132
I ek Th At DO oS ccietconmnvntes 9
Public Service Com'n of Wisconsin Vv. Wisconsin
Telephone Co., 289 U.S. 67 (1933) ........................ 4
Pullman-Standard V. Swint, 456 U.S. 273 (1982).... 8
Ramsey Vv. United Mine Workers of America, 401
Sis: SI CRITE Bncatc:casiadasbictsensabsvetdesacoataceastopiemanniite 9
Swope v. Lubbers, 560 F. Supp. 1828 (W.D. Mich.
AR Reach ate ev IR EN eI ED EET &
United States v. Chicago, M., St. P., & P. R. Co.,
Le EF, ——_| ae eee ea oe 9
United States v. Glover, No. 83-2088 (D.C. Cir.
BI, Ts I seiciphcecenietdecireeeetcchtcshieleccesnnboninapialhdlionnlp 6
United States v. Munsingwear. Inc., 340 U.S. 40
a a 4-5
United States v. National City Lines, Inc., 334 U.S.
a ae eee is en ae ees es ee 4
United States v. United States Gypsum, 333 U.S.
BE HID ocnsttinscenseemnbencccadenibapicbicaidiantianawimminias 8
Widmar Vv. Vincent, 454 U.S. 263 (1981) ................ 8
v
TABLE OF AUTHORITIES—Continued
CONSTITUTION: Page
Ee Se 2, 3,4
SS AEE ELA OT 2,4
STATUTES AND RULES:
Pub. L. No. 89-554, 80 Stat. 398 (1978) —............... 3
EE A 3
5 U.S.C. § 552a ................. Si anmligeeninhibieniiercnisemaiinsiesed 2
I ricci cnessnacsinsinssniclasseagetnecnnececussosereocsen 9
I I cn cectineencecesetninewnnsentneunenpenoewenene 1
5
a caceeiueipucesenansion 3,
D.C. Cir. R. 13(c), 128 U.S. App. D.C. XXXII
a closammamsaeiniuneian 3, 4, 5, 6, 7, 10
OTHER AUTHORITIES:
ABA Opinions on Professional Ethics, Judicial
Canon 19— Judicial Opinions (1967) ...... ee 6,7
Burger, School for Judges, 33 F.R.D. 139 (1963) .... 4
Hellman, “Granted, Vacated, and Remanded’’—
Shedding Light on a Dark Corner of Supreme
Court Practice, 67 Judicature 389 (1984) _......... 10
Leflar, Some Observations Concerning Judicial
Opinions, 61 Colum. L. Rev. 810 (1961) ............ 8
Leflar, The Multi-Judge Decisional Process, 42 Md.
i setilinaniionin 10
Report of President’s Comm. on Crime in the Dis-
trict of Columbia (1966) ....000000000000... ERIN TREED 6
Reports of the Proceedings of the Judicial Confer-
ence of the United States (1964) 6
Reynolds & Richman, An Evaluation of Limited
Publication in the United States Courts of Ap-
peals: The Price of Reform, 48 U. Chi. L. Rev.
573 (1981) (Study Sponsored by Federal Ju-
RE eo A eA RI Ao 7, 8,11
Standards Relating to Appellate Courts (Approved
RN ERS aS x
Stevenson & Zappen, An Approach to Writing Trial
Court Opinions, 67 Judicature 336 (1984) ........ 8
Wald, The Problem with the Courts: Black-Robed
Bureaucracy, or Collegiality Under Challenge?
42 Md. L. Rev. 766 (1988) ............................... wok 6-7
IN THE
Supreme Court of the United States
OCTOBER TERM, 1983
No. 83-
PHYLLIS F.. BORRELL,
Petitioner
Vv.
UNITED STATES INFORMATION AGENCY,
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petitioner prays that a writ of certiorari issue to re-
view the judgment of the United States Court of Appeals
for the District of Columbia Circuit in this case.
OPINION BELOW
The opinion of the court of appeals, not reported, is
printed in Appendix C, infra, pp. 24a-25a.
JURISDICTION
The judgment of the court of appeals was entered on
November 15, 1983 (Appendix C, infra, pp. 24a-25a).
Petitioner’s petition for rehearing by panel and sugges-
tion for hearing or rehearing en banc, timely filed on De-
cember 30, 1983 (Appendix D, infra, pp. 26a-38a), were
denied on January 13, 1984 (Appendices E and F, infra,
pp. 39a, 40a). The jurisdiction of this Court is invoked
pursuant to 28 U.S.C. § 1254(1).
2
CONSTITUTIONAL PROVISIONS INVOLVED
The First Amendment of the United States Constitu-
tion provides, in pertinent part:
Congress shall make no law . . . abridging the free-
dom of speech... .
The Fifth Amendment of the United States Constitu-
tion provides, in pertinent part:
No person shall be . . . deprived of life, liberty, or
property, without due process of law....
STATUTES INVOLVED
The relevant portions of 5 U.S.C. § 552a are set forth
in Appendix G, infra, pp. 4la-44a.
STATEMENT OF THE CASE
This petition for a writ of certiorari seeks reversal of
a terse 22-line judgment entered by a court of appeals
panel, one member dissenting. The panel mechanically
affirmed a 24-page decision by the district court. That
decision purported, for the third time, to dispose of First
Amendment, due process, and Privacy Act (5 U.S.C.
§ 552a(g)) issues raised by a complaint filed by Peti-
tioner in 1979. Petitioner initially obtained a temporary
restraining order barring her dismissal as a probationary
federal employee on December 31, 1979 (Parker, J.). Her
original complaint was dismissed for lack of jurisdiction
on January 10, 1980. (June L. Green, J.). The court of
appeals initially affirmed but, on rehearing, reversed and
remanded the case for trial.
After a bench trial involving 1,700 transcript pages,
more than 250 exhibits, and 21 witnesses, held in March
1981, the district court (June L. Green, J.) dismissed,
three and one-half months after trial, all of the causes
of action. The court of appeals on June 22, 1982, re-
versed the dismissal of three causes of action relating to
the First Amendment, due process, and the Privacy Act.
3
Borrell v. United States International Communication
Agency (now United States Information Agency), 221
U.S. App. D.C. 32, 682 F.2d 981 (1982).' The court held
that Petitioner was a bona fide whistle-blower before ad-
verse personnel action was taken against her, as the re-
sult of which her employment was terminated. 682 F.2d
at 991.
The case was remanded for compliance with its man-
date and with Fed. R. Civ. P. 52(a) (Appendix G, infra,
p. 45a). 682 F.2d at 991-93. Without the benefit of
proposed findings of fact and conclusions of law sug-
gested by Petitioner and refused by the district court,
its memorandum opinion and order was issued Novem-
ber 24, 1982, eighteen months after the bench trial, dis-
missing the three remaining causes of action. (Appendix
A, infra, pp. la-22a).
After the submission of briefs and oral argument, a
majority of the panel of the court of appea!s issued its
judgment on November 15, 1983 (Appendix C, infra, pp.
24a-25a). One judge dissented.
Relying upon Local Rule 13(c) (Appendix G, infra,
p. 46a), the majority held that, “[w]hile the issues pre-
sented occasion no need for an opinion, they have been
accorded full consideration by the court.” The “clearly
erroneous” rule was held to bar reversal of the “dis-
trict court’s conclusion that Appellant [Petitioner] failed
1 Dismissal of causes of action under the Civil Service Reform
Act, Pub. L. No. 89-554, 80 Stat. 398 (1978), and the Freedom of
Information Act, 5 U.S.C. § 552, was affirmed. 682 F.2d at 985-88,
993.
2? The court of appeals directed the district court on remand to
make “specific findings” of fact on a number of issues. These in-
cluded, under the First Amendment, “the employee's job perform-
ance considered in its entirety,” as required by Mazaleski v. Trues-
dell, 188 U.S. App. D.C. 182, 562 F.2d 701, 715 (1977). 682 F.2d
at 991. The district court failed to do so. Appendix A, infra,
pp. 8a-15a; Appendix D, pp. 34a-35a. The court of appeals panel
did not deal with this important legal issue at all.
4
to prove that her complaints were a substantial or moti-
vating factor in her discharge.” The district court’s dis-
missal of Petitioner’s due process and Privacy Act claims
“also withstands review.” The majority concluded:
* * * Essential to our decision, especially with
regard to the finding that Appellant [Petitioner]
was not discharged for exercising her first amend-
ment rights, is a necessary deference to the district
court’s “benefit of observing the demeanor of the
witnesses and otherwise evaluating their credibility
during the trial.” * * *
Petitioner filed a timely petition for rehearing by
panel and suggestion for hearing or rehearing en bane.
{Appendix D, infra, pp. 26a-38a). Her petition and sug-
gestion were denied. (Appendices E and F, infra, pp.
39a, 40a).
REASONS FOR GRANTING THE WRIT
I. A Novel and Substantial Question of Appellate Judicial
Administration Is Presented
Because of its First and Fifth Amendment issues, the
case on appeal below should have been given “special
and extended treatment.” School for Judges, 33 F.R.D.
139, 143 (1963) (Burger, C.J.). This Court has “re-
peatedly emphasized the importance of a statement of the
grounds for decision, both as to facts and law, as an aid
to litigants and to this court.” Public Service Com’n of
Wisconsin Vv. Wisconsin Telephone Co., 289 U.S. 67, 69
(1933) (Hughes, C.J.). These principles of judicial re-
view present a novel and substantial question with re-
gard to the use of Local Rule 13(c) in this case, thus
affecting this Court’s exercise of its “general power to
supervise the administration of justice in the federal
courts.” United States v. Nutional City Lines, Inc., 334
U.S. 573, 589 (1948). This case warrants the exercise
of the Court’s “broad” and “extensive control over all
the courts of the United States.” United States v. Mun-
5
singwear, Inc., 340 U.S. 36, 40 (1950); Ex Parte Crane,
30 U.S. (5 Pet.) 190, 192, 194 (1831).
The court of appeals panel misplaced its reliance upon
Local Rule 13(c). The effect of its terse memorandum
judgment is to “rubber stamp” district court findings
and conclusions reached more than eighteen months after
a bench trial, without the benefit of proposed findings
and conclusions and not surprisingly vindicating the
prior decisions theretofore consistently set aside by the
court of appeals. Barber v. United States, 711 F.2d 128,
131 (9th Cir. 1983) (“* * * Since the findings of fact
are stated in a way to suggest that they were predeter-
mined by the outcome, we hold that they are clearly er-
roneous”). The panel also ignored the earlier court of
appeals’ injunction against a “laconic” disposition of con-
stitutional issues, and committed the same error. As
stated in Borrell, 682 F.2d at 991:
Unfortunately, the district court made one laconic
finding only: that appellant’s discharge was “not
tainted by unconstitutional improprieties.” Surely,
that cannot be enough to satisfy the requirements of
Rule 52(a) of the Federal Rules of Civil Procedure
in this kind of case, where the core of the dispute is
whether the employee was discharged for complain-
ing about agency irregularities, admitted in part,
or for poor job performance. Here the content of
her complaint was later shown clearly to be reason-
able. * * * (emphasis added).
Under these conditions, more than a perfunctory af-
firmance was required. Clear nd egregious errors on the
face of the district court’s decision* should bar the use
’The most egregious factual error of the district court was
that Petitioner “did not challenge the accuracy of . . . [documents
upon which her discharge was based]. Neither did any other
witness.” Appendix A, infra, p. lla. No such finding could have
been made by the district court had the court reviewed the record,
including Petitioner's extensive testimony, supported by that of
eight other ICA personnel, and numerous exhibits, to the contrary.
Appendix D, infra, pp. 3la-32a.
6
of the “clearly erroneous” rule. (Appendix D, infra, pp.
3la-36a). These errors were ignored by the panel ma-
jority. Its silence on these important issues and others
of constitutional dimension effectively precludes Peti-
tioner from filing a petition for certiorari with this
Court on the substantial merits of her case.
The panel majority abused its discretion in resorting
to Local Rule 13(c). The latter was issued May 14,
1968, 128 U.S. App. D.C. XXXII. The rule states that
it was adopted “[i]n accordance with recommendations
for the improvement of judicial administration,” citing
authorities in a footnote. (Appendix G, infra, p. 46a).
The authorities thus cited do not support the form and
scope of the decision below. The District of Columbia
crime “Report” dealt only with “amendment of the local
rules to achieve an expeditious timetable for appellate
proceedings in criminal cases.’”’ Canon 19 counsels a
judge to “indicate the reasons for his action in an opin-
ion showing that he has not disregarded or overlooked
serious arguments of counsel.” ABA Opinions on Pro-
fessional Ethics, Judicial Canon 19—Judicial Opinions
209 (1967). The “Position” adopted by the 1964 Judi-
cial Conference of the United Sta es was contained in
the following resolution:
RESOLVED: That the judges of the courts of
appeals and the district courts authorize the pub-
lication of only those opinions which are of general
precedential value and that opinions authorized to
be published be succinct.
Reports of the Proceedings of the Judicial Conference of
the United States 11 (1964).
Indeed, recently two D.C. Circuit judges have criticized
the administration of, or rationale for, Local Rule 13(c).
United States v. Glover, No. 83-2088, Slip Op. at 5
(D.C. Cir. Apr. 6, 1984) (Mikva, J., dissenting: “* * *
The hastened nature of a summary affirmance belies
every vestige of an appeal. * * *”) (criminal case);
Wald, The Problems with the Courts: Black-Robed Bu-
7
reaucracy, or Collegiality Under Challenge? 42 Md. L.
Rev. 766, 782-83 (1983) (“We have no consistent en-
forcement of rules or criteria on when to issue per
curiam opinions. * * * Some of these practices need to
be reevaluated. * * *’’).
This Court does not appear to have dealt directly with,
or construed the scope of, the procedural authority which
is provided for under courts of appeals’ rules analogous
to that of Local Rule 13(c) here invoked.* The writ
should be granted in order that this important procedural
issue can be correctly decided for the benefit of federal
courts, the bar, and civil litigants, including, as here,
government employees.
Il. The Interests of Justice Were Not Served by the Form
and Scope of the Terse Decision Below
Cases that contain
* *+ *
dissents . . . are, by definition contro-
versial [i.e., controverted] ; the court disagrees either
about the result to be reached or about the method
used to reach it. * * *
Reynolds & Richman, supra, at 612. In disposing of con-
troverted cases,
. . . a judge should indicate the reasons for his ac-
tion .... He thus shows his full understanding of
the case, avoids the suspicion of arbitrary conclusion,
promotes confidence in his intellectual integrity, and
may contribute useful precedent to the growth of
the law.
ABA Opinions on Professional Ethics, Judicial Canon 19
—Judicial Opinions, supra, at 209.
*“CA) claim of denial of equal treatment by the courts” under
the Seventh Amendment was made and raised before the Court in
Browder v. Director, 434 U.S. 257 (1978). The opinion “did not
address that issue.” Reynolds & Richman, An Evaluation of
Limited Publication in the United States Courts of Appeals: The
Price of Reform, 48 U. Chi. L. Rev. 573, 623 (1981) (study spon-
sored by the Federal Judicial Center).
8
The judgment below should have contained a “thought-
ful review of the facts... and of the laws bearing upon
them.” Leflar, Some Observations Concerning Judicial
Opinions, 61 Colum. L. Rev. 810 (1961). Contrary to
this Court’s supervisory authority, Petitioner was “en-
titled to [but did not receive] assurance that... [her]
case has been thoroughly considered.” Standards Relat-
ing to Appellate Courts § 3.36 at 60 (Approved Draft
1977). “That sort of opinion fas in Borrell] complete
with dissent not only fails to accomplish the restraining
and correcting functions [of judicial opinions] but also
fails to assure ‘that the case was fully considered by the
bench as a whole.’” Reynolds & Richman, supra, at
614 n.114.
Therefore, the decision below does not implement the
function of appellate courts “to review individual cases
to assure that substantial justice has been rendered and
to develop the law for general application in the legal
system.” Stevenson & Zappen, An Approach to Writing
Trial Court Opinions, 67 Judicature 336, 338 (1984)
(footnote omitted). The decision below adversely af-
fects and transforms the “clearly erroneous” rule as a
“buckler and shield” for district court findings into a
“sword” to make them conclusive. Case v. Morrisette, 155
U.S. App. D.C. 31, 475 F 2d 1300, 1306 (1973); accord,
Pullman-Standard v. Swint, 456 U.S. 273, 277-82 (1982);
United States v. United States Gypsum, 333 U.S. 364,
394-96 (1948).
The court of appeals’ disposition of exceptions to the
“clearly erroneous” rule cannot be gleaned from ;
terse judgment. (See, Appendix D, infra, pp. 3la-34a).
Nor can the panei’s judgment as to clearly egregious
misstatements of the record by the district court, as well
as the latter’s legal errors, be ascertained. (/d., pp. 32a-
36a). There was no “strict scrutiny” of governmental
action in a case involving “precious” constitutional rights.
Swope v. Lubbers, 560 F. Supp. 1328, 1331 (W.D. Mich.
1983), citing Widmar v. Vincent, 454 U.S. 263, 276
(1981) ; Borrell, 682 F.2d at 991.
9
For example, deference to the credibility findings of a
district court which took the word of Petitioner’s senior
supervisor, who himself repeatedly took the Fifth Amend-
ment on deposition and at trial, does not stand the test of
human experience, much less of legal validity. The 100-
page agency report, based on and confirming Petitioner’s
whistle-blowing, implicated, directly or indirectly, three
of her supervisors who could have been charged with
violations of law, including 18 U.S.C. § 208(a). These
were the very witnesses upon whose “credibility” the dis-
trict court relied in its decision. (Appendix D, infra, pp.
30a-3la). See, Bundy v. Jackson, 205 U.S. App. D.C.
444, 641 F.2d 934, 950 (1981):
[W]e would readily reject as clearly erroneous the
District Court’s finding that the supervisors in...
| Petitioner’s] agency never took the ritual of harass-
ment [her complaints] seriously and that they there-
fore had no motive for retaliation against... [her].
Tr form and scope of the decision below do not serve
the interests of justice. Exercise of Petitioner’s right to
seek a writ of certiorari, and this Court’s discretionary
review by such a writ, are effectively curtailed. NLRB
Vv. Sears, Roebuck & Co., 421 U.S. 132, 163-64 (1975)
(“not clear whether the [Appeals] Court . . . passed on
the claim’) ; Ramsey v. United Mine Workers of America,
401 U.S. 302, 312 (1971) (“unsure whether it [issue]
was presented below” and decided by court of appeals).
“We must know what a decision means before the duty
becomes ours to say whether it is right or wrong.” United
States v. Chicago, M., St. P. and P. R. Co., 294 US.
499, 510-11 (1935).
CONCLUSION
Petitioner prays that the writ be granted and the
case be argued, heard, and decided. However, this may
well be a situation where this Court, as a matter of ju-
dicial economy, appellate procedure, and substantial
10
justice should consider the issuance of a summary order
granting certiorari, reversing the per curiam judgment
below, and remanding the case for further consideration
in the light of Petitioner’s petition for rehearing and sug-
gestion for rehearing en banc. Gibson v. Lockheed Air-
craft Service, Inc., 350 U.S. 356, 357 (1956) (per cu-
riam); see, Hellman, “Granted, Vacated, and Remanded”
—Shedding Light on a Dark Corner of Supreme Court
Practice, 67 Judicature 389, 391 and n. 6 (1984).
Under either procedure, this Court could deal with
court of appeals’ rules similar to D.C. Circuit Rule 13(c).
See, Jones Vv. Superintendent, Virginia State Farm, 465
F.2d 1091, 1094 (th Cir. 1972) (“imperfection” in
“sereening procedures and disposition by unreported
memorandum decisions’). As indicated by the consensus
of a thousand participants in Appellate Judges Seminars
over the last twenty-eight years:
Appeals present ultimate issues, including law-
making possibilities, and so deserve superior han-
dling. (emphasis added).
The appellate process demands not. only sound de-
cisions but public confidence in their soundness. Pub-
lic confidence in judicial integrity is part of the
demand.
Leflar, The Multi-Judge Decisional Process, 42 Md. L.
Rev. 722, 723 (1983). Further,
. . every court would be helped in conducting its
decisional processes if all the details of those proc-
esses were fixed and publicly known. * * * This en-
ables the judges themselves, especially new judges,
and the bar and interested citizens, including liti-
gants, to know what the procedures are. This can
add to any court’s effectiveness by ussuring added
public confidence in the court’s collegial responsibility
and integrity. The public can know through the
published procedures that the court does operate as
11
a court and not as a collection of one-judge decision-
makers. (emphasis added).
Id. at 730-31.
Formulation of a definitive and fair, yet judicially eco-
nomic.:l, mode! rule on minimal standards would be in
the public interest. A model rule proposed in 1981 pro-
vides the following:
Every [court of appeals] decision will be accom-
panied by an opinion that sufficiently states the
facts of the case, its procedural stance and history,
and the relevant legal authority so that the basis
for the disposition can be understood from a read-
ing of this court’s opinion.
Reynolds & Richman, supra, at 626-27.
Respectfully submitted,
COURTS OULAHAN *
1302 18th Street, N.W.
Washington, D.C. 20036
(202) 833-2540
GEORGE BREZNA
8008 Garland Avenue
Takoma Park, Maryland 20912
(301) 585-6471
Attorneys for Petitioner
* Counsel of Record
April 12, 1984
APPENDICES
APPENDICES
Memorandum Opinion, United States District Court
for the District of Columbia, November 24, 1982...
Plaintiff’s Notice of Appeal, January 19, 1983 ...... :
Judgment and Order, United States Court of Ap-
peals for the District of Columbia Circuit, Novem-
it 3e ee CELE eta
Appellant’s Petition for Rehearing by Panei and
Suggestion for Hearing or Rehearing En Bane,
December 30, 1983 ......
Order, United States Court of Appeals for the Dis-
trict of Columbia Circuit, denying Appellant’s peti-
tion for rehearing, January 13, 1984 .................
Order, United States Court of Appeals for the Dis-
trict of Columbia Circuit, denying Appellant’s sug-
gestion for rehearing en banc, January 13, 1984.
Statutes and Rules ..
Page
la
23a
24a
40a
4la
la
APPENDIX A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 79-3492
PHYLLIS F. BORRELL,
Plaintiff
Vv.
INTERNATIONAL COMMUNICATION AGENCY,
Defendant
MEMORANDUM OPINION
{Filed Nov. 24, 1982]
This case was brought on December 31, 1979 by Dr.
Phyllis F. Borrell, a former employee of the Exhibits
Service of the United States International Communica-
tions Agency ‘ICA). She was discharged during her
probationary period for allegedly unsatisfactory work
performance.
Dr. Borrell alleged five cares of action in her
amended complaint against ICA and its director, John
Reinhardt. First, she claimed her termination was in
retaliation for her exposure of prohibited personne! prac-
tices, thus violating the ‘“whistleblowing’” statute, 5
U.S.C. $ 2302(b), and regulations thereunder, 5 C.F.R.
£ 1250.3/¢'. Second, she asserted that the actions of her
supervisor, Gail Becker; division chief, Richard Suib;
and Exhibits Service Chief, John Jacobs, abridged her
First Amendment right to “freely and constructively .. .
comment upon and improve the functions of Defendant
ICA and its Exhibits Service.” Complaint %5.1. Dr.
2a
Borrell also said she was denied “an opportunity to clear
her good name, reputation, honor and integrity’ and
that this “stigma” violated her liberty interest under the
due process clause of the Fifth Amendment by impairing
her employment opportunities. Complaint 76.1. For her
fourth cause of action, Dr. Borrell asserted that Section
552a(g)(1)(C) of the Privacy Act, 5 U.S.C. § 552a, was
violated when a memorandum dated October 31, 1979
was placed in her personnel file on or about that date
without her knowledge. This memorandum, she con-
tended, contained false, incomplete and inaccurate state-
ments which resulted in her discharge. Dr. Borrell’s
final cause of action was a claim under the Freedom of
Information Act, 5 U.S.C. § 552.
After a two-week trial, this Court issued a memoran-
dum opinion finding for the defendants on all of the
claims. Phyllis F. Borrell v. International Communica-
tion Agency, No. 79-3492 (D. D.C. June 30, 1981). On
appeal, the United States Court of Appeals for the Dis-
trict of Columbia Circuit affirmed with respect to the
“whistleblowing” and Freedom of Information Act causes
of action, but remanded the case for further findings on
Dr. Borrell’s constitutional and Privacy Act claims.
Phyllis F. Borrell v. United States International Com-
munications Agency, 682 F.2d 981 (D.C. Cir. 1982).
In order to determine the validity of her First Amend-
ment claim, the Court has reviewed the entire record in
this action again, and makes specific findings regarding
the nature and truth of Dr. Borrell’s allegations, the
circumstances and timing of her complaints, and the
history of her work performance. The Court further re-
appraised whether or not in discharging plaintiff, her
liberty interest under the due process clause of the Fifth
Amendment was violated and whether or not ICA vio-
lated her right to procedural due process under the Fifth
Amendment by failing to follow its own regulations, Fed-
eral Personnel Manual, ch. 315; subch. 8.3a(3), (4); 8.4(a)
8a
(2), (4) and 8.4c. Finally, recognizing that the Court
earlier misconstrued Dr. Borrell’s cause of action under
the Privacy Act, the Court makes findings about the
accuracy and fairness of the contents of the October 31,
1979 memorandum and determines whether any inaccu-
rate statement contained therein resulted in her dis-
charge.
1. FINDINGS OF FACT
A. Background
To understand this case, the kind of office in which Dr.
Borrell worked must be described at the outset. The
Exhibits Service is not an ordinary government adminis-
trative office. It is composed primarily of artists, writers,
photographers, and designers. These people plan, create,
and operate exhibits about the United States overseas
under extremely tight schedules. The attitude of the
office managers and project directors, expressed through-
out the trial, was that “the show must go on.” They
spared no effort to make each exhibit represent as well
as possible that aspect of the United States it depicted.
Project directors traveled abroad frequently to attend
a particular exhibit, leaving their deputies to manage
plans for other exhibits in their absence.
There was constant tension in the Exhibits Service
between the production and creative services divisions, or
more precisely, between the creative, visionary employees
who developed ideas for exhibits and those prosaic man-
agers who ensured that each show opened on time.
Dr. Borrell was hired by Richard Suib, head of the
production division, in January 1979. She was the first
professional employee hired from outside ICA in several
years. The position which she received had been open for
sixteen months before he could find someone he felt was
suitable. Mr. Suib had great expectations of her. Mr.
Suib expected Dr. Borrell to become a project officer.
Transcript (Tr.) 1865 (testimony of Richard Suib) ; Tr.
4a
26 (testimony of Phyllis Borrell). Mr. Suib recognized
that Dr. Borrell was a bright individual with outstand-
ing academic qualifications and enthusiasm, and he an-
ticipated that she would make a positive contribution to
a new exhibit to be shown in the Soviet Union. Tr. 1371.
B. Plaintiff's Allegations of Improper Activities
Dr. Borrell complained about several alleged impropri-
eties in the Exhibits Service. The most important re-
lated to Mr. Arthur, an employee who frequently engaged
in telephone calls at work concerning his private real
estate business. See Tr. 237, 241. Dr. Borrell stated
that she was unable to talk to this individual for several
weeks in July because of his constant telephone calls
about his real estate business. On July 26, she discussed
with two colleagues how wrong it was for this senior
official to be spending vast amounts of time on private
business during office hours. Tr. 243. Nearly everyone
in the Exhibits Service, including his secretary, knew
and complained about this employee’s conducting his real
estate business on work time. This was not an unusual
complaint.
Dr. Borrell alleged that her former supervisor, Ernest
Gerran, made an unnecessary three- or four-day trip in
July 1979 to agricultural colleges in Texas, Utah and
California to obtain material that was not needed for
the exhibit, “Seeds of Hope.” Tr. 229-30. She voiced
this complaint to several of her colleagues. This allega-
tion was not merited, in view of the other testimony on
this point. J. Gardiner Meade, project director for “Seeds
of Hope” when Mr. Gerran was busy with other ex-
hibits, testified that Mr. Gerran’s trip was necessary to
gather information, and that the information he collected
was usable for other exhibits as well. Tr. 483-34,
Other complaints by Dr. Borrell concerned nepotism
in hiring within the Exhibits Service. One such com-
plaint was about the chief of the Exhibits Service for
5a
hiring his wife as a translator from 1970-76 in Austria,
three years before Dr. Borrell was employed at ICA, and
for arranging ten days of employment for his son as a
roustabout to complete an exhibit in Yugoslavia in June
1979. Another claim concerned an employee who was
about to retire who suggested hiring his wife in August
1979 to write a brochure for the ‘‘New York, New York”
exhibit. That employee also allegedly contributed to the
brochure.
Dr. Borrell testified that on August 24, 1979, she told
Gail Becker that it was wrong for the wife of an agency
employee to write the brochure for the “New York, New
York” exhibit. Tr. 250-B. When she learned that the em-
ployee was working on the brochure, too, she complained
to Ms. Becker again. Tr. 250-F, 250-H. Ms. Becker told
her to tell Richard Suib, manager of the production di-
vision of the Exhibits Service. He expressed disapproval
of the employee’s participation, according to Dr. Borrell.
Id. Dr. Borrell claimed she raised the matter again in a
meeting with Ms. Becker and Mr. Suib on October 16,
1979, in the context of complaining about her exclusion
from aspects of the “New York, New York” exhibit, in-
cluding the brochure work. /d.; Tr. 250 U-V.
Dr. Borrell expressed her concern about the appropri-
ateness and credentials of the brochure writers to at
least two other colleagues in late August or September
1979. Tr. 456 (testimony of Williams Caldwell, Jr.) ;
Tr. 878 (testimony of Edward Hunter, ICA exhibits
project officer). There is no evidence that Dr. Borrell
complained about the hiring of Mr. Jacob’s son or his
wife at any time before November 14, the day plaintiff
received official notice of her termination. (She was
informed on October 25 by Mr. Suib of his intention to
request her termination.)
Dr. Borrell’s additional allegation of improper activity
by her colleagues concerned the continued renewal of two
6a
purchase order contracts without the persons having
obtained a security clearance. Dr. Borrell was also con-
cerned that they maintained regular office hours and
were under the supervision of ICA employees rather
than working on the outside as she had been required to
do when under contract. Dr. Borrell said she complained
to her union representative sometime in the summer of
1979 about the two persons working regularly in the
office who were purchase order contractors. Tr. 250-
EEE. However, her union representative did not men-
tion such a conversation at trial. Rather, she said Dr.
Borrell complained “she was having a hard time working
under Ms. Becker,” Tr. 767, and that Ms. Becker wasn’t
showing her the budget allocation books for the exhibit,
Tr. 768.
These allegations made by Dr. Borrell through her
attorney in November 1979 were thoroughly investigated
and referred to the Department of Justice, which did not
file any criminal charges. Discussions among ICA man-
agers were held to ensure tighter management controls.
Tr. 1532-33 (Harold Schneidman). The questioned pur-
chase order vendors were terminated or properly hired.
The three agency employees complained about retired in
due course in 1979 and early 1980.
C. Plaintiff's Work Performance
The ICA Exhibits Service hired Dr. Borrell initially
on a purchase order contract. For the first three months,
she did research on audience reaction to ICA exhibits in
Eastern Europe and the Soviet Union, in preparation for
an exhibit scheduled to be held in the Soviet Union in
1980. After a three-week interruption in April caused
by the expiration of her purchase order contract and the
delay in getting a security clearance, Dr. Borrell was
hired on April 23, 1979 as a permanent employee, with
probationary status for one year.
7a
Dr. Borrell was then assigned to work on “Seeds of
Hope,” a small agricultural exhibit to be shown in
Mogadishu, Somalia. Dr. Borrell’s experience in Africa
gave useful background for this particular project. This
project had a budget of less than $100,000 and would fill
1,500 square feet of exhibit space.
Dr. Borrell spent a lot of time at the Library of
Congress in late May, June and July. Richard Suib, the
production division chief of the Exhibits Service, did not
believe that Dr. Borrell spent all the time she charged
at the Library of Congress, for three reasons. First, he
didn’t see the results of all the time she spent there. Tr.
1391. Second, once when plaintiff called in early one
morning to ask to be signed in, he answered the phone,
and he heard a baby crying in the background. This led
him to doubt that Dr. Borrell was in the Library at that
time. Tr. 1395. (Dr. Borrell testified that she left her
child during this period at the Department of Labor Day
Care Center. She alleged that she used the Labor De-
partment’s telephone to call her office and asked to be
signed in.) Tr. 1607. Third, Mr. Suib discovered that
one couldn’t get into the Library before 8:30 a.m. with-
out a special pass. Yet, Dr. Borrell would call regularly
between 7:45 and 8:00 a.m. to say she was doing work
there. Dr. Borrell told Mr. Suib that she got in on her
husband’s pass, since he worked there. Mr. Suib found
out that this was not allowed under the Library’s regula-
tions. Tr. *° 91-92.
On July 12, 1979, Richard Suib assigned Dr. Borrell
to work on the Soviet Union exhibit, which was to focus
on the performing and visual arts in New York City.
Tr. 1048 (testimony of Gail Becker). This “New York,
New York” exhibit had a budget of over $5 million and
was the agency’s biggest show at the time. It was to
have 20,000 square feet of exhibit space. Dr. Borrell was
to be deputy project director and Ms. Becker, the
project director; they met on July 12, in Mr. Suib’s office
8a
to discuss the new show. The first meeting for the “New
York, New York” team followed on July 17, 1979. Dr.
Borrell wished to complete some work on the “Seeds of
Hope” show and did not begin to work full time on this
project until August 8, 1979.
On July 23, Dr. Borrell met briefly with Ms. Becker
and turned over her files of thematic research without
discussing them. Tr. 276-77. At this meeting, Ms.
Becker asked her to obtain useful periodicals, articles,
and books, and to start keeping lists on various fine arts
topics. Tr. 1966.
Ms. Becker asked Dr. Borrell at a meeting on August
8 or 9 to prepare lists for the exhibit by August 17. The
two disagreed on which topics to research. Tr. 1080-81.
Sporadically, Dr. Borrell submitted lists of printmakers,
dancers, playwrights, video artists, and composers—on
August 17, 27, 29, and the typed list on September 24.
On Mr. Suib’s return from an overseas trip about
August 11 he asked Ms. Becker how the project was
going and how Dr. Borrell was working out. She told
him that Dr. Borrell was not meeting deadlines, and
spending too much time at the Library of Congress. Tr.
1108, 1310 (testimony of Gail Becker); Tr. 1390-91
(testimony of Richard Suib). Mr. Suib then asked Lu-
cinda Cooke, a personnel management specialist at ICA,
for advice. He told her Dr. Borrell was not working at
the level expected. Tr. 968 (testimony of Lucinda
Cooke). Mr. Suib also checked with Dr. Borrell’s pre-
vious supervisors. Both of them, Mr. Meade and Mr.
Gerran, said she had done a very good job for them
although “sometimes she got carried away with her own
opinions as to what should or should not be included in
the scope of the project itself.” Tr. 1011 (testimony of
Ernest Gerran). Mr. Suib met with Dr. Borrell on
August 15 to express concern about her “New York,
New York” work performance, and he mentioned Ms.
9a
Becker’s name at that meeting. Tr. 1421-22 (testimony
of Richard Suib).
Gail Becker expressed her dismay to Mr. Suib a couple
of times in September on different aspects of plaintiff's
work. Tr. 1396 (testimony of Richard Suib). Another
meeting occurred on October 16, at which Di. Borrell
complained about her work assignments on the “New
York, New York” project, and Ms. Becker and Mr. Suib
expressed dissatisfaction with Dr. Borrell’s work per-
formance. Despite Ms. Becker’s objections, Dr. Borrell
insisted on using flextime by coming in early in the
morning (or to the Library of Congress). Ms. Becker
was concerned that Dr. Borrell was not in the office
between 4:00 and 5:00 p.m., the time when outside con-
tractors for the “New York, New York” project usually
called. Ms. Becker was also concerned that Dr. Borrell
failed to keep adequate telephone logs of her conversa-
tions with outside contractors. Plaintiff has submitted
some seven days of phone logs.
On Friday, October 19, Joan Peyser, one of the outside
writers for the “New York, New York” exhibit called in
frustration because she had not yet received her pur-
chase order contract and wanted to work on the project
over the weekend. Because Dr. Borrell had already gone
home, Ms. Becker took the cal] and went to Dr. Borrell’s
desk to look for a copy. In Dr. Borrell’s office she found
the papers in disarray, other incompleted purchase orders
and the order Ms. Peyser sought. Ms. Becker called Dr.
Borrell at home to express unhappiness with the delay,
and Dr. Bo: rell agreed to come to the office on Saturday
to place the items in the mail.
On Sunday, October 21, after a reception for a panelist
on an Eastern European exhibit, Ms. Becker mentioned
to Mr. Suib Dr. Borrell’s difficulties following through
on purchase orders. Tr. 1401 (testimony of Richard
Suib). Later that day Ms. Becker decided to ask Mr.
Suib to remove Dr. Borrell from the “New York, New
10a
York” project. Tr. 1144-45 (testimony of Gail Becker).
Ms. Becker was going to Bulgaria in November for an-
other exhibit and was upset about entrusting the ongoing
project to Dr. Borrell as the deputy project manager.
Ms. Becker drafted a memorandum late Sunday eve-
ning in which she recoinmended removing Dr. Borrell
from the project and suggested assigning her to a smaller
project with more defined and narrower topics. Tr. 1150;
see memorandum to Richard Suib from Gail Becker dated
October 22, 1979, plf’s ex. 10, enclosure 1. On October
22, Mr. Suib met with Ms. Becker and told her if she
were convinced that Dr. Borrell couldn’t adapt to the
“New York, New York” project, he would have to rec-
ommend termination. Tr. 1403-04 (testimony of Richard
Suib).
Mr. Suib informed Dr. Borrell by memorandum on
October 23 to attend a meeting in his office on October
25, with a union representative if she wished. See
memorandum to Ms. Phyllis Borrell from Richard Suib
dated October 23, 1979, plf’s ex. 10, enclosure 2. At this
meeting, Mr. Suib told Dr. Borrell that he was going to
recommend termination because she apparently could not
adapt to the work program. Tr. 1406. Neither Dr. Bor-
rell, her union steward, nor the union lawyer in attend-
ance spoke in rebuttal at this meeting.
Afterwards, Ms. Cooke told Mr. Suib and Ms. Becker
that they would have to write down the matters de-
scribed orally to Dr. Borrell. Tr. 1002 (testimony of
Lucinda Cooke). As a result, sometime between October
24 and October 31, Ms. Becker prepared two supporting
but repetitious memoranda. See plf’s ex. 10, enclosures 3
(seven pages) and 4 (nine pages). Dr. Borrell did not
see these memoranda or the covering memorandum dated
October 31 from Mr. Suib to Ms. Cooke, plf’s ex. 20,
until she filed a Freedom of Information Act request
after her discharge. Tr. 250-Z (testimony of Dr. Bor-
rell).
lla
At trial, Dr. Borrell did not challenge the accuracy of
these documents. Neither did any other witness. Instead,
she asserted they were trivial and a pretext to cover her
discharge for exposure of improper activities in the Ex-
hibits Service. The Court has reviewed enclosures 3 and
4 in the context of the entire record. The complaint
about plf’s tardy completion of a travel voucher for
reimbursement, plf’s ex. 10, enclosure 3, at page 5, is
certainly trivial. In all other respects, the Court finds
enclosures 3 and 4 accurate and complete in explaining
Dr. Borrell’s inability to meet deadlines.
Upon receipt of the supporting memoranda, Ms. Cooke
drafted the termination letter. It was approved by
Angie Garcia, the director of personnel at ICA, and
issued over her name on November 14, 1979. The rea-
sons Ms. Garcia provided for Dr. Borrell’s termination
were “a! an inability to adapt to the overall work pro-
gram in the Exhibits Service, and b) an inability to
meet deadlines, primarily related to purchase order con-
tracts.” See plf’s ex. 19, at 1. Ms. Becker’s supporting
memoranda, plf’s ex. 10, enclosures 3 and 4, accurately
and completely presented the specific instances under-
lying the second reason for Dr. Borrell’s discharge. The
first reason, Dr. Borrell’s inability to adapt to the over-
all work program, was documented in part by Ms.
Becker’s memoranda. Additionally, Mr. Suib used his
judgment from his personal interaction with Dr. Borrell,
including the amount of time Dr. Borrell spent, or al-
legedly spent, at the Library of Congress, and the reports
of other supervisors in deciding whether Dr. Borrell
could adapt to the overall work program in the Exhibits
Service.
Ms. Garcia stated pointedly that “Your termination
during probation is not based on delinquency or mis-
conduct and does not affect your eligibility for future
reinstatement in the Federal Service in a position for
which you qualify.” Plf’s ex. 19, at 2. She closed the
12a
letter wishing Dr. Borrell good fortune in obtaining
suitable employment.
Dr. Borrell worked on two other smaller projects
under Mr. Meade and Mr. Gerran without any problems
efter October 25. Dr. Borrell’s termination was post-
poned during the investigation of the charge of whistle-
blowing by legal action from December 14, 1979 until
January 8, 1980.
II. CONCLUSIONS OF LAW
First Amendment Claim
Mt. Healthy School District v. Doyle, 429 U.S. 274
(1977) and Mazaleski v. Truesdell, 562 F.2d 701 (D.C.
Cir. 1977) set forth the analysis for determining whether
a public employee’s first amendment rights have been
violated by her discharge. The burden is on the plaintiff
to show that her conduct was constitutionally protected
and that this conduct was a substantial or motivating
factor in the decision to discharge her. Then the burden
is on the defendant to show by a preponderance of the
evidence that it would have reached the same decision
even in the absence of the protected conduct. Mt. Healthy
School District v. Doyle, supra at 287; Mazaleski v.
Truesdell, supra at 715.
In determining whether or not the plaintiff’s speech
was constitutionally protected, courts balance the in-
terests of the public employee as a citizen in communi-
eating upon matters of public concern and the interest
of the State, as an employer, in promoting the efficiency
of the public services it performs through its employees.
Pickering v. Board of Education, 391 U.S. 563 (1968).
The Supreme Court in Pickering looked at four factors:
(1) whether the speech involved a matter of legitimate
public concern; (2) whether it affected close working re-
lationships, a need for confidentiality, or other special
13a
employment relationship; (3) whether the statement was
true, negligently false, or knowingly and recklessly false;
and (4) the degree of harm caused by the statement in
terms of disruption of the employee’s duties or the em-
ployer’s operations. Jd., 569-72; see Harper v. Blumen-
thal, 478 F. Supp. 176, 182 (D. D.C. 1979).
Dr. Borrell’s complaints to her colleagues and super-
visors about the alleged improprieties in the Exhibits
Service fall within the range of constitutionally pro-
tected conduct. Her allegations concerned the conduct of
a personal real estate business on agency time, wasteful
expenditure of public funds, hiring relatives of govern-
ment employees, and improper extension of contracts by
the government. These matters obviously involve a mat-
ter of crucial concern to the public: the honest and effi-
cient operation of sovernment.
In addition, none of Dr. borrell’s complaints were
knowingly or recklessly false. At the least, the complaint
about the conduct of a real estate business was well
founded and true. No disruption of agency operations
or working relationships occurred as a result of the
complaints Dr. Borrell made during her employment.
And there is no question that First Amendment protec-
tion extends to public employees communicating privately
with their supervisors. Givhan v. Western Line Consoli-
dated School District, 439 U.S. 410, 415-16 (1979).
Although Dr. Borrell’s complaints were constitution-
ally protected, the Court was not persuaded after trial
that her complaints were a substantial or motivating
factor in Ms. Becker’s recommendation to remove plain-
tiff from the “New York, New York” project. Ms.
Becker was dissatisfied with Dr. Borrell’s work perform-
ance on the project; and that motivated her recommenda-
tion.
Neither did the Court find nor infer from the record
that Dr. Borrell’s complaints were a substantial or moti-
l4a
vating factor in Mr. Suib’s recommendation of discharge.
Mr. Suib relied on his knowledge of Dr. Borrell’s work
performance, including her inability to meet deadlines
and her expressed dissatisfaction with her work assign-
ments.
The “touchstone” for decision, the Mazaleski Court
emphasized, “is the employee’s job performance con-
sidered in its entirety.” 562 F.2d at 715. The Court
finds that Dr. Borrell was discharged for legitimate rea-
sons, set forth in Ms. Garcia’s letter of termination,
plf’s ex. 19, and supported by Ms. Becker’s memoranda,
plf’s ex. 10, enclosures 3 and 4, and Mr. Suii’s man-
agerial judgment. This case differs from those in which
there was no claim for discharge for reasons other than
the protected constitutional conduct. “f. Tygrett v.
Barry, 627 F.2d 1279, 1287 n.9 (D.C. “ir. 1980) and
543 F.2d 840, 845 (D.C. Cir. 1974) (police officer dis-
charged for advocating “sick-in” or “blue flu” and for no
other reasons): Porter v. Califano, 592 F.2d 770, 775-
76. 780 (5th Cir. 1979) (plaintiff discharged for dis-
tributing letter to fellow employees critical of super-
visors: no claim that plaintiff wasn’t performing her
job adequately); Ring v. Schlesinger, 502 F.2d 479, 490
(D.C. Cir. 1974) (teacher discharged because of letter
criticizing principal’s conduct and not for any other
reasons such as inadequacies of performance or conduct).
Under federal regulations, a probationary federal em-
ployee is subject to termination whenever his ‘“‘work per-
formance or conduct fails to demonstrate his fitness or
his qualifications for continued employment.” 5 C.F.R.
§ 315.804 (1982); Federal Personnel Manual, ch. 315,
subch. 8, section 4(a)(2). Review of dismissal from
federal employment, especially during the probationary
period, is “limited to a determination of whether the
agency substantially complied with its statutory and
regulatory procedures, whether its factual determina-
tions were supported by substantial evidence, and
15a
whether its action was arbitrary, capricious or an abuse
of discretion.” Heaphy v. United States Treasury Dept.
Bureau of Customs, 354 F. Supp. 396, 399 (S.D. N.Y.
1973), aff'd mem., 489 F.2d 735 (2d Cir. 1974), quoting
Toohey v. Nitze, 429 F.2d 1332, 13834 (9th Cir. 1970).
See also Shaw v. United States, 622 F.2d 520 (Ct. Cl.)
cert. denied, 449 U.S. 881 (1980); Templeton v. Vet-
erans Administration, 540 F. Supp. 695, 098 (S.D. N.Y.
1982).
Dr. Borrell did not contest her failure to meet various
deadlines for the “New York, New York” project.
Rather, she characterized them as trivial. In Heaphy,
supra, a probationary Customs Inspector alleged his dis-
missal was based on his immediate supervisor's preju-
dicial disposition and active dislike towards him. The
reasons given for his discharge were improper and
lengthy examination of baggage, general attitude and
behavior on one occasion, absence without leave on an-
other, and failure to report on a certain day. 354 F.
Supp. at 398. The employee in Heaphy, as with Dr.
Borrel, did not contest the occurrence of the incidents,
but their characterization. Jd. 399. The Court held that
the plaintiff had not overcome the presumption of good
faith conduct by government employees, id. at 401, and
that “once it appears that the reasons given for dis-
charge are work related, and that there is a rational
relation between the discharge and the reasons, it cannot
seriously be disputed that the discharge is arbitrary or
capricious.” Jd. 402.
Ms. Becker, as the “New York, New York” project
director, had the right, subject to her superiors, to de-
termine what work would be done on the project, by
whom, and when. See National Treasury Employees
Union v. Federal Labor Relations Authority, No. 80-
1895, slip op. at 20-21 (D.C. Cir. Oct. 12, 1982) (“With-
out a doubt, the right to determine what work will be
done, and by whom and when it is to be done, is at the
16a
very core of successful management of the employers’
business, whether a private-sector enterprise or the pub-
lie service operations of a federal agency”). Mr. Suib
had the right under federal regulations to recommend
discharging Dr. Borrell rather than merely reassigning
her to another project. His decision was not so “totally
unwarranted” that the Court will substitute its view of
the appropriate response. Cf. Gibson v. Veterans Ad-
ministration and the United States, 682 F.2d 1004, 1011
(D.C. Cir. 1982) (reviewing court’s function in con-
sidering the appropriate sanction for employee mis-
conduct).
Fifth Amendment Claim
In her complaint, Dr. Borrell claimed that her dis-
charge violated her liberty interest secured by the due
process clause of the Fifth Amendment. The Court re-
jected this argument because the letter of discharge
stated explicity that the termination was not based on
misconduct or delinquency and did not affect her eligi-
bility for future federal employment. “To infringe one’s
liberty,” stated the Court of Appeals in Mazaleski v.
Truesdell, 562 F.2d at 713, “the effect of government
action on future employment must extend beyond a dis-
advantage or impediment; it must ‘foreclose his freedom
to take advantage of other employment opportunities,’ ”’
citing Board of Regents v. Roth, 408 U.S. 564 (1972).
Plaintiff’s discharge for failing to meet deadlines and
adapt to the overall work program of the agency is in
the area of work performance for which no infringement
of liberty interests was found in Mazaleski itself and
the cases cited therein at 562 F.2d at 714. See also
Templeton v. Veterans Administration, supra at 697;
Heaphy v. United States Treasury Dept. Bureau of
Customs, supra at 400.
Dr. Borrell’s right to procedural due process in her
employment is measured by “existing rules or under-
17a
standings that secure . .. benefits and that support
claims of entitlement to those benefits.” Bishop v. Wood,
426 U.S. 341, 344 n.7 (1975); Arnett v. Kennedy, 416
U.S. 134, 153-54 (1974); Board of Regents v. Roth, 408
U.S. 564, 577 (1972). Federal Personnel Manual, ch.
315, subch. 8, section 3, concerns the evaluation of proba-
tionary employees. Sections 3a(3) and (4) obligate the
supervisor of a probationer “to study the employee’s po-
tentialities closely and try to determine whether the
employee is suited for successful Government work” and
to “initiate action to separate the employee... if it
becomes apparent, after full and fair trial, that the em-
ployee’s conduct, general character traits, or capacity do
not fit him or her for satisfactory service.” F.P.M. ch.
315, subch. 8, section 4, entitled “separation of proba-
tioners,” mandates the procedures for termination of
employment for unsatisfactory performance or conduct.
Plaintiff did not allege these procedures were constitu-
tionally insufficient. Section 4(a)(2) provides that “a
decision to terminate should not be made in haste or
until the employee has had a full and fair trial. The
length of such a trial cannot be described in terms of so
many days, weeks or months. It is whatever time it
takes for the agency to appraise the employee’s post-
appointment performance and conduct carefully and to
arrive at a considered judgment whether he should be
retained or separated.” Mr. Suib talked with Dr. Borrell
in mid-August and mid-October concerning her work
performance, and told her on October 25 he would recom-
mend termination. The date of termination was set for
December 14, 1979. This action complied with the re-
quirements of Sections 3a(3), (4) and 4(a) (2).
Section 4(a) (3) provides the information required to
be given an employee upon notice of termination: “The
information in the notice on why he is being terminated
must, at a minimum, consist of the agency’s conclusions
on the inadequacies of his performance or conduct; it
i8a
need not require complete and specific reasons. The em-
ployee is not given a right of reply.” (Emphasis added. )
The information in Ms. Garcia’s letter notifying plaintiff
of discharge complied with the requirements of this sub-
section: the two reasons were stated clearly. Section
8.4c requires the agency to follow its own procedural
regulations. The agency complied with the regulations in
F.P.M. ch. 315, subch. 8 and did not violate Dr. Borrell’s
procedural due process right in her job.
Privacy Claim
The Privacy Act states in pertinent part:
Whenever any agency... fails to maintain any
record concerning any individual with such accuracy,
relevance, timeliness, and completeness as is neces-
sary to assure fairness in any determination relat-
ing to the qualifications, character, rights, or oppor-
tunities of, or benefits to the individual that may be
made on the basis of such record, and consequently a
determination is made which is adverse to the indi-
vidual . . . the individual may bring a civil action
against the agency, and the district courts of the
United States shall have jurisdiction in the matters
under the provisions of this subsection.
5 U.S.C. § 552a(g) (1) (C).
A violation of the Privacy Act under this provision
occurs when an agency maintains inaccurate, irrelevant,
untimely or incomplete personnel records and then relies
upon such records to take an unfair action against an
employee. Further, if it can be shown that in such cir-
cumstances the preparation, retention and use of such
records by the agency was intentional or willful, then the
individual is entitled to actual damages but in no case
less than $1,000, reasonable attorney fees and costs. /d.,
§ 552a(g) 14).
Dr. Borrell alleged that placing Ms. Becker’s memo-
randa, plif's ex. 10, enclosures 3 and 4, in a file vio
lated the Privacy Act. Ms. Cuoke testified these docu-
19a
ments were not in plaintiff’s personnel file, but since
they may be considered evaluations by a supervisor, they
fit within the definition of a record under the Privacy
Act. See 5 U.S.C. § 552a(a) (4) (record includes informa-
tion about an individual’s employment history); White
v. United States Civil Service Commission, 589 F.2d 713,
714-15 (D.C. Cir. 1978), cert. denied, 444 U.S. 830
(1979).
Plaintiff has the burden of proof in cases such as this
one which allege the maintenance of inaccurate records.
Mervin v. F.T.C., 591 F.2d 821, 827 (D.C. Cir. 1978).
She has not shown that the documents were inaccurate.
Cf. R.R. v. Department of Army, 482 F. Supp. 770, 775
(D.D.C. 1980) (factual assertions shown conclusively
false). Neither were they incomplete in explaining Dr.
Borrell’s discharge for failure to meet deadlines. The
memoranda were relevant: Ms. Cooke had requested them
to provide documentation for Mr. Suib’s recommendation
of discharge. They were filed October 31, 1979, within
a few days of the meeting so were timely.
The plaintiff did not carry her burden of proof with
respect to the four criteria contained in the Privacy Act.
On the contrary, the evidence shows that the memoranda
challenged were sufficiently accurate, relevant, timely
and complete to assure a fair determination of plaintiff’s
job performance. Plaintiff charges that she did not re
ceive copies of these memoranda before she sought them
with other items under FOIA. This point is of no con-
sequence since the agency was under no requirement to
supply them to her. As pointed out earlier, the Federal
Personnel Manual requires the agency in issuing termi-
nation notices to give their conclusions on the inadequacy
of the performance or conduct and “it need not require
complete and specific reasons.”” The notice given was in
conformance with the FPM requirements.
Further, the basic correctness of the allegation has
been established in this trial. Since the agency acted in
20a
compliance with the provisions of the Privacy Act and
the FPM, plaintiff’s claim under the Privacy Act count
is denied.
Conclusion
The Court was not persuaded that Dr. Borrell’s com-
plaints about improprieties in the Exhibits Service were
a factor in her exclusion from working on the “New
York, New York” brochure or any other aspect of that
project. Other employees were also excluded from design
work on the project, to their displeasure. See, e.g., Tr.
829-30 (testimony of John Vorhes). Dr. Borrell was ap-
pointed as the deputy project director for the “New
York, New York” exhibit. Ms. Becker, with many years
experience managing smaller exhibits in Eastern Europe
and the Soviet Union, was appointed as the project di-
rector. Mr. Suib expected the two to complement each
other. Instead, Dr. Borrell insisted constantly that she
needed more training, assistance, and time before she
could perform adequately as deputy project director.
Neither had ever managed a budget or exhibit on the
scale of this project. Ms. Becker was most anxious for
the Soviet show to be superb. She feared that Dr. Borrell
would be inadequate to take over the directorship in her
absence.
There was insufficient evidence to show or infer that
Ms. Becker or Mr. Suib perceived Dr. Borrell to be com-
plaining about allegedly improper activities of other em-
ployees while she was assigned to the “New York, New
York” project. Rather, her colleagues knew basically
that she was dissatisfied with the research approach to
the “New York, New York” show. See, e.g., Tr. 876
(testimony of Edward Hunter); Tr. 818 (testimony of
John Vorhes). The Court’s overall conclusion was that
the job as deputy project manager for the “New York,
New York” show was simply too big for Dr. Borrell.
She needed more direction than she got from Ms. Becker,
2la
the project director, and less responsibility. The project’s
tight schedule did not permit this.
In finding that Dr. Borrell was discharged not for
exercising her First Amendment rights, but for failing
to perform the job of deputy project director adequately,
the Court had the benefit of observing the demeanor of
the witnesses and otherwise evaluating their credibility
during the trial. See Rogers v. Lodge, 50 USLW 5041,
5044 (June 29, 1982); Pullman Standard v. Swint, 50
USLW 4425, 4429 ‘April 27, 1982).
An appropriate order accompanies this opinion.
/s/ June L. Green
JUNE L. GREEN
U.S. District Judge
November 24, 1982
22a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 79-3492
PHYLLIS F. BORRELL,
. Plaintiff
INTERNATIONAL COMMUNICATION AGENCY,
Defendant
JUDGMENT
[Filed Nov. 24, 1982]
This case having been remanded for reconsideration of
plaintiff’s constitutional and Privacy Act Claims, upon
consideration of the entire record in this action, the briefs
of the parties in the United States Court of Appeals
submitted by plaintiff at the Court’s request, and de-
fendants’ proposed findings as to the Privacy Act claim
submitted at the Court’s request, it is by the Court this
24th day of November 1982, for the reasons expressed in
the accompanying memorandum opinion,
ORDERED that judgment be and hereby is entered for
defendants on plaintiff’s second cause of action under the
First Amendment, plaintiff’s third cause of action for
denial of due process, and plaintiff’s fourth cause of
action for violation of the Privacy Act; and it is further
ORDERED that, the Court’s dismissal of plaintiff's
remaining causes of action having been affirmed by the
Court of Appeals, no further issues remain and this
action be and hereby is dismissed.
/s/ June L. Green
JUNE L. GREEN
U.S. District Judge
23a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 79-3492
Judge June L. Green
PHYLLIS F. BORRELL,
Plaintiff,
v.
INTERNATIONAL COMMUNICATION AGENCY,
Defendant.
NOTICE OF APPEAL
Notice is hereby given that PHYLLIS F. BORRELL,
Plaintiff above named, hereby appeals to the United
States Court of Appeals for the District of Columbia
Circuit from the Judgment and Memorandum Opinion
for Defendants and further ordering that Plaintiff’s re
maining causes of action be dismissed, which were en-
tered in this action on the 24th day of November, 1982.
s/ Courts Oulahan
CoURTS OULAHAN
Bar No. 26922
1527 Eighteenth St., N.W.
Washington, D.C. 20036
(202) 462-1721
Attorney for Plaintiff
January 19, 1983
24a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1983
Civil Action No. 79-3492
No. 83-1137
PHYLLIS F. BORRELL,
Appellant
v.
UNITED STATES INFORMATION AGENCY,
Appellee
Appeal from the United States District Court
for the District of Columbia
Before: Tamm, Wilkey, and Mivka, Circuit Judges.
JUDGMENT
[Filed Nov. 15, 1983]
This cause came on to be heard on the record from the
United States District Court for the District of Co-
lumbia and was briefed and argued by counsel. While
the issues presented ocvasion no need for an opinion, they
have been accorded full consideration by the court. See
Local Rule 13(c).
The district court’s conclusion that appellant failed to
prove that her complaints were a substantial or moti-
vating factor in her discharge is not clearly erroneous.
25a
The district court’s finding that the agency complied
with its procedural regulations regarding dismissal of
probationary employees and that appellant established no
claim under the Privacy Act, 5 U.S.C. § 552a(g) (1) (ce)
(1982), upon which relief could be granted also with-
stands review. Essential to our decision, especially with
regard to the finding that appellant was not discharged
for exercising her first amendment rights, is a necessary
deference to the uistrict court’s “benefit of observing the
demeanor of the witnesses and otherwise evaluating their
credibility during the trial.” Borrell v. International
Communication Agency, No. 79-8492, at 28 (D.D.C. Nov.
24, 1982).
On consideration of the foregoing, it is ORDERED
AND ADJUDGED by this court that the judgment of the
district court appealed from herein is hereby affirmed.
Per Curiam.
FOR THE COURT:
‘s/ George A. Fisher
GEORGE A. FISHER,
Clerk
Circuit Judge Wilkey respectfully dissents.
26a
APPENDIX D
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 83-1187
PHYLLIS F. BORRELL,
Appellant,
Ve
UNITED STATES INFORMATION AGENCY,
Appellee.
Appeal from United States District Court
for the District of Columbia
APPELLANT’S PETITION FOR REHEARING
BY PANEL AND SUGGESTION FOR HEARING
OF REHEARING EN BANC
COURTS OULAHAN
1527 Eighteenth Street, N.W.
Washington, D.C. 20036
(202) 462-1721
December 30, 1983
27a
APPELLANT'S PETITION FOR REHEARING
BY PANEL AND SUGGESTION FOR HEARING
OR REHEARING EN BANC
I. CONCISE STATEMENT OF ISSUE
AND ITS IMPORTANCE
1.1 This case involves an issue of exceptional im-
portance to this Court’s role as the appellate safeguard
against a “clearly erroneous” decision by the District
Court denying the rights of a Federal whistle-blower
under the First and Fifth Amendments and the Privacy
Act, 5 U.S.C. § 552a(g).
1.2 Contrary to well-established precedent,' a panel
majority in this case, with one member dissenting, in a
22-line summary Judgment (Exhibit A attached), in-
voked the “clearly erroneous” rule* to affirm the Memo-
randum Opinion of the District Court filed November 24,
1982 [I 1-24]. That Opinion was pursuant to a reversal
in part and remand of an earlier District Court decision,
Borrell v. ICA, 682 F.2d 981 (D.C. Cir. 1981). The
panel majority also erroneously relied upon Local Rule
13(c) for its summary action.*
' Pullman-Standard vy. Swint, 456 U.S. 278 (1982); United
States Vv. United States Gypsum, 333 U.S. 364 (1948); Bundy v.
Jackson, 641 F.2d 934 (D.C. Cir. 1981); Daniels v. Hadley Me-
morial Hospital, 566 F.2d 749 (D.C. Cir. 1977); Case v. Morrisette,
475 F.2d 1300 (D.C. Cir. 1975).
2“Rule 52. Findings by the Court. (a) Effect. * * * Findings of
fact shall not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge of
the credibility of the witnesses. * * *”
3“/¢) Order Form of Decision. In accordance with recommenda-
tions for improvement of judicial administration, this Court may,
while according full consideration of the issues, disperse with
opinions where the issues occasion no need therefor, and confine
its action to such abbreviated disposition as it may deem appro-
28a
1.3. If the precedent established by the panel majority
is hereafter followed, the traditional role of the “clearly
erroneous” rule as a “buckler and shield” for District
Court findings of fact* would be expanded improperly
to that of a “sword” to make them conclusive.’ Further,
the lack of any substantive or detailed analysis of fact or
law in the summary Judgment does not provide a founda-
tion on which the Supreme Court could “exercise ade-
quately its power of review.” See, Borrell, 682 F.2d at
992.° The panel majority, on the face of the summary
Judgment, failed to “look to all of the evidence of rec-
ord to determine whether the [factual] findings pass
muster.” *
II. STATEMENT OF THE CASE
2.1. Appellant’s amended Complaint contained causes
of action under the Civil Service Reform Act of 1978,
the First and Fifth Amendments involving her rights
as a whistle-blower, FOIA, and the Privacy Act [A 21-
35]. After Appellant initially obtained a TRO on De
priate, e.g., affirmance by order of a decision or judgment of a
court or administrative agency, a judgment of affirmance or re-
versal, containing a notation of precedents, or accompanied by a
brief memorandum. See Rule 8(f). * * *” (Footnote omitted).
* Case, 475 F.2d at 1306.
5 United States Gypsum, 333 U.S. at 395. “[T)he best possible
appellate review [under Rule 52(a) | should be the goal. * * *” 5A
J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice
§2.01[8] at 2610 (2d ed. 1981). There was literally no “appel-
late review” in this case.
6 The Supreme Court will not consider a question on certiorari to
a Circuit Court of Appeals where “it is not clear whether the
Court ... passed on the claim” or the Court opinion is not en-
lightening. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 163-64
(1975) ; see, Ramsey Vv. United Mine Workers of America, 401 U.S.
$02, 312 (1971) (“unsure whether it [issue) was presented below”
and decided).
7 Case, 475 F.2d at 1308.
29a
cember 31, 1979 [A 11-12, Parker, J.], her original com-
plaint was dismissed January 10, 1980 [A 13-16, June L.
Green, J.]. The Court of Appeals initially affirmed but,
on rehearing, reversed the District Court and remanded
the case for trial. [A 19].
2.2. After extensive discovery by Appellant, a bench
trial was held in March 1981, involving 1,700 pages of
transcript, more than 250 exhibits, and 21 witnesses. The
District Court refused Appellant’s request to submit pro-
posed findings of fact and conclusions of law, because the
Court had “several pads full of its own notes.” [B
1496]. Then, three and one half months later, the Dis-
trict Court dismissed all of the causes of action. [A
45-50]. On appeal, this Court affirmed the dismissal of
the causes of action under CSRA and FOIA. It reversed
the dismissal of the other three causes of action and re-
manded them for compliance with its mandate and with
Fed. R. Civ. P. 52(a). Borrell, 682 F.2d at 991-93.
2.3. The District Court again refused to accept pro-
posed findings of fact and conclusions of law from
Appellant. However, the Court requested, without notice
to Appellant. proposed findings on the Privacy Act from
Appellee. [I 24, 25-28]. The District Court’s Mem-
orandum “Opinion and Order,” issued November 24,
1982, dismissed the remaining causes of action. [I 1-24].
III. STATEMENT OF FACTS
3.1. This case invelves the December 31, 1979 termi-
nation of a probationary Federal employee of the Ex-
hibits Service within the Defendant Agency. After serv-
ing satisfactorily for several months as a contract con-
sultant to the Service, Appellant was hired to work full-
time as a Deputy Project Director. She worked for
eight months on six major assignments.* In all but
* Appellant was a trained and well-educated professional, with
experience in working for at least two foreign governments. She
was the first outside professional hired by the Exhibits Service in
30a
one of ‘hese assignments, during 1979, her work was
judged wholly satisfactory by her superiors. Borrell, 682
F.2d at 984. Appellant was a bona fide whistle-blower,
commencing by at least “the summer of 1979,” concern-
ing, among other things, waste and violation of law pro-
hibiting the hiring of relatives of employees. Borrell, 682
F.2d at 983, 991. [I 4-7].
3.2. Between August and mid-October 1979, Appel-
lant worked for Becker, a project officer who was super-
vised by Suib, Chief, Production and Development Di-
vision. Both of these individuals were supervised by
Jacobs, the Director of the Exhibits Service. “* * *
Until she began to complain, there had been no complaints
from her superiors about her work performance—indeed,
in June she was told [by Suib] that she had an ‘ex-
cellent’ probability of continued employment.” Borrell,
682 F.2d at 984.° Becker, Suib, and Jacobs each were
involved, directly or indirectly, in the charges of waste
and violation of law made by Appellant.'® Becker ad-
mitted one violation of law in which Suib acquiesced out
of deference to Jacobs.'' Each could have been charged
eight years. She was shocked by the waste and nepotism she found
in the Agency, but nevertheless carried out her duties conscien-
tiously. [B Borrell 10-19, 244; TR 245-46, C PX 1, 4]. This Court
has held her complaints to have been “clearly . . . reasonable.”
Borrell, 682 F.2d at 991. Further, Appellant never stated to fellow
workers that her supervisers were “a passel of fools.” The Agency
misstated the record in making this claim during oral argument
November 1, 1983. See, Vorhes TR 830.
* Jacobs agreed with the District Court at trial that Appellant
had “sort of rock[ed] the boat.” [B 640A]. As this Court stated
in Bundy, 641 F.2d at 950, “[WJe would readily reject as clearly
erroneous the District Court’s finding that the supervisors in...
{Appellant’s}] agency never took the ritual of harassment [her
charges] seriously and that they therefore had no motive for re-
taliation against ... [Appellant]. * * *”
10 F.g., B Becker 1129, 1226-28, 1234-37; C PX 185, 188, 189,
191, 193, 195, 196, 202, 230, 233.
11 B Becker 1222-24, 1237-38, 1286-87; Suib 1463-64.
8la
with a violation of 18 U.S.C. § 208(a) or 5 C.F.R. Part
310 [C PX 220], 22 C.F.R. § 10.735.201 (a) (1)-(2)
[Cc PX 203], and USIA (formerly ICA) MOA § 132.4
[(C PX 218], with adverse action under 5 C.F.R. Part
752. The violations charged by Appellant were sustained
by the Agency’s own investigation.” Indeed, Jacobs took
the Fifth Amendment at his deposition and at trial on
the charges made by Appellant and investigated by the
Agency—a fact deemed unimportant by the District Court
in its alleged “credibility” evaluation of witnesses, upon
which the panel majority relied.** The retaliatory charges
framed by Becker in her memoranda, on or about Oc-
tober 30, 1979, never were disclosed to Appellant until
production was made in March 1980 under her FOIA
request. [C DX 3A]. These detailed charges, thoroughly
refuted at trial, were the basis for Appellant’s termi-
nation.
IV. THE PANEL MAJORITY ERRED IN
ITS APPLICATION OF THE
“CLEARLY ERRONEOUS” RULE
4.1. The “clearly erroneous” rule does not make “con-
clusive” the findings of a District Court.* The rule
does not apply where, after a required thorough review
of the record," the District Court (1) mistakes the record
12 The 100-page report of the Agency's investigation [C PX
389A) was referred to the Justice Department, which declined to
take any action. [I 7]. That does not diminish the seriousness of
the complaints as an administrative matter, particularly since Jacobs
was found to have violated Agency and Federal! regulations in the
report, and took the Fifth Amendment at deposition and trial.
[B Jacobs 628, 632-35]. The illegal practices complained of by
Appellant in 1979 apparently continued at least as late as October
1982, when the GAO Report to the Agency Director was released
[I 40-49].
13 B Jacobs 628-29, 632-35; also, Jacobs TR 599-601.
14 United States Gypsum, 333 U.S. at 395.
18 Case, 475 F.2d at 1307-08; Daniels, 566 F.2d at 756-57.
82a
on an important issue of fact,"* (2) makes erroneous
conclusions of law, including failure to observe the man-
date of an applicable decision by the Court of Appeals,’
(3) makes conclusions involving mixed questions of fact
and law,'* or (4) makes “findings and inferences” wuwich
do not “readily support the ‘ultimate’ factual finding”
on a violation of a constitutional or statutory right.’
Local Rule 13(c) does not warrant the egregicus depar-
ture from precedent in the summary Judgment.”
A. Misstatement of Record Facts
4.2. Based on a Government representation [I 26],
the District Court found that “[{a]t trial, Dr. Borrell did
not challenge the accuracy of . [memoranda prepared
by Becker at Suib’s direction which resulted in Appel-
lant’s discharge]. Neither did any other witness.” [I
12]. Such a finding could not have been made after a
review of the “entire record.”’ [I 2]. Appellant spent
nearly one day at trial dealing with this question.’ The
16 Daniels, 566 F.2d at 760.
7 Case, 475 F.2d at 1307. “(T]he appellate court is not con-
cluded in any degree by the trial court’s view of the law.” Moore's
Federal Practice, supra, { 52,03[{2] at 2663.
18 Pullman-Standard, 456 U.S. at 286 n.16.
19 Bundy, 641 F.2d at 950.
*? The case should have been decided by a full decision, contain-
ing an amplification and implementation of “new and unsettled
questions of general importance” in this Court's 1982 decision
under § 3.836(a), ABA Comm. on Standards of Judicial Administra-
tion—Standards Relating to Appellate Caurts at 58, 60 (Approved
Draft 1977). The summary Judgment Was hardly supported, at a
minimum, by “the authority or statement of grounds upon which
it is based.” /d.
21 Borrell TR 91-110, 115-46, 150-53, 279-82, 308-18, 1617-22; see
Becker TR 1178-91, 1245-50E, 1263-88, 1291-97. More than 80
exhibits were introduced on this subject. C PX 225, 237, 238; see
33a
testimony of all other Exhibits Service witnesses, except
for Becker, Suib, and Jacobs, contravened Becker’s
charges against Appellant and the Court’s acceptance of
them.”
4.8. A case such as this, including “precious” consti-
tutional rights, enjoys “ ‘preferred’ status,” requiring
“strict scrutiny” of Governmental action. Swope v. Lub-
bers, 560 F. Supp. 1328, 1331 (W.D. Mich. 1983); see,
Borrell, 682 F.2d at 991. This the District Court did
not do, again violating Fed. R. Civ. P. 52(a).”
4.4. The District Court’s “clearly erroneous” find-
ing underpinned its conclusions that the First Amend-
ment cause of action should be dismissed because Appel-
lant was discharged for incompetency rather than for
whistle-blowing [I 15-18], and that the Privacy Act claim
should be dismissed because the Becker memoranda were
also PX 46, 47, 51, 52, 57, 59, 61-72, 75-81, 84, 85, 87-91, 100.
Becker's memoranda also were the subject of extensive croas-
examination of Becker [B Becker 1212-87] and were specifically
referred to at TR 1277-98, including a partial and reluctant admis-
sion of their inaccuracy. [TR 1294-95]. Indeed, Kessler, a co-
worker, called the charges “ridiculous” and “beyond my belief.”
{B Kessler 908). The content of the memoranda was argued on the
Agency's motion to dismiss under Fed. R. Civ. P. 41(b), when the
Court held that Appellant had made out a prima facie case. [B 946-
49}.
22B Meade 406-07, 419-21; Caldwell 462-64; Starzynski 511-13;
Wellde 581; Fry 764-66; Hunter 880; Kessler 907; Gerran 1015-16.
23 Findings “developed by one of the parties and mechanically
adopted by the judge,” particularly “by the prevailing party in a
bitter dispute,” make the “clearly erroneous” rule inapplicable.
Amstar Corp. V. Domino's Pizza, Inc., 615 F.2d 252, 258 (5th Cir.
1980). “* * * These findings should represent the judge's own
determination and not the... statements of successful counsel.
** ©” Comm. Note of 1946 to Subdiv. (a), Moore's Federal Prac-
tice, supra, © 562.01(6) at 2607.
84a
not false [I 20-22]. The seriousness of that error is
compounded by other misstatements of the record.**
B. Legal Error: Failure to Make
Findings Required by This Court
4.5. The District Court failed to make detailed find-
ings concerning Appellant’s work performance in all as-
signments between January and December 1979, as re
quired by this Court. Borrell, 682 F.2d at 992. In par-
ticular, the District Court did not describe or evaluate
Appellant’s (1) work as a contract consultant, praised
by both Suib and Jacobs [Jacobs TR 640; PX 3]; (2)
duties as a Deputy Project Director, denigrated by Suib
and Becker as those of a “gofer,”” [Borrell TR 26-30, 169-
70, 206; PX 53,99] or (3) work assignments on themes
for a proposed Soviet show [Borrell TR 35-60; PX 40,
110}, for an agricultural Third World show [Borrell
TR 61-77; PX 119, 122, 127, 216], and for two other
shows devoted to China and to solar power [B Gerran
1015-16, Meade 406-21; PX 37, 42, 55, 56] for which
she was commended by her supervisors. The Court also
ignored Appellant’s complaints concerning gross waste
of funds involved in the loss of valuable photographic
transparencies, covered up by Suib and Jacobs and criti-
cized in the Agency’s investigative report [Borrell TR
250N-250R; C PX 39, Exh. D; PX 184].
4.6. The District Court significantly overlooked Beck-
er’s denial of a conference with Suib at her own home, at
which Appellant’s termination was decided. [B Becker
1218-19]. The Court made two findings about this cru-
*4 These included an erroneous explanation of (1) why Appel-
lant’s termination date was postponed lo January 8, 1980 [I 18;
see, to the contrary, A 11-12); (2) Appellant's delay in reporting
Jacobs’ five-year employment of his wife [I 5], which was only
discovered in the Agency's own investigation; and (3) Appellant's
meager telephone notes (I 10); see, to the contrary, PX 46, 47, 61,
62, 66, 69.
35a
cia! meeting which Becker could not recall. [I 10-11; see,
also B Suib 1401-04, 1411-12; Schneidman 1539-42].
4.7. Such omissions characterize a decision which was
based, at the very least, upon failure again to comply
with Fed. R. Civ. P. 52(a), Borrell, 682 F.2d at 991-
92, and upon the deliberate selection of only such facts
as would conform with the same result reached in 1980
and 1981-—and reversed by this Court. Barber v. United
States, 711 F.2d 128, 181 (9th Cir. 1983) (“* * °
Since the findings of fact are stated in a way to suggest
that they were predetermined by the outcome, we hold
that they are clearly erroneous.”’).
C. Legal Error: Erroneous
Conclusions of Law
4.8. “* * *[T])he core of the dispute [in this case]
is whether the emplovee was discharged for complaining
about agency irregularities, admitted in part, or for
poor job performance. * * *” Borrell, 682 F.2d at 991.
“* * * The touchstone for decision . . . is the employee’s
job performance considered in its entirety.” Mazaleski v.
Truesdell, 562 F.2d 701, 715 (D.C. Cir. 1977). The Dis-
trict Court failed to carry out both this mandate and the
direction of Mazaleski.
4.9. The District Court also misconstrued Appellant’s
due process argument. It failed to discuss, or even refer
to, the Agency’s violation of its own regulations in Ap-
pellant’s termination, established on the record.** The
District Court merely held that the termination did not
charge any misconduct. Therefore, no liberty interest in
future employment was involved. [I 18].
4.10. The liberty interest claimed by Appellant, how-
ever, was to a statutory or regulatory expectancy that
Agency regulations concerning the method whereby a pro-
bationer’s job was terminated would be followed. Ar-
*° (B Borrell 613-14; Suib 1419-38; Schneidman 1512-17; C PX
229, § 453.52(2) }.
36a
nett v. Kennedy, 416 U.S. 184, 151-52 (1974). Agency
regulations “afforded . . . [Appellant] more procedural
protection than is ordinarily accorded probationary gov-
ernment employees.” Ring Vv. Schlesinger, 502 F.2d 479,
486 (D.C. Cir. 1974). Where first amendment rights are
involved, “scrupulous compliance with... [agency] regu-
lations is required to avoid any injustice.” Mazakeski,
562 F.2d at 719.
4.11. The District Court’s finding that Becker’s memo-
randa were not false, unfair, or inaccurate provided the
basis for its dismissal of the Privacy Act cause of action.
(I 21]. A causal relationship existed between Becker's
“erroneous record [attacking Appellant} and an adverse
determination based on that record” under 5 U.S.C.
§ 552a(g) (1) (c).2* The “willful and intentional” stand-
ard of the statute does not require “premeditated mal-
ice.” 2" A showing of “ ‘only somewhat greater than gross
negligence’ ” is sufficient.**
V. CONCLUSION
5.1. This was not a case where the evidence against
Appellant was overwhelming. Quite the opposite was
true. There may have been “substantial” evidence to
support the Government’s case. But the preponderance
of evidence rule—not the substantial evidence rule—was
applicable here. The District Court did not follow it.
Instead, it picked and chose selective bits of testimony
to build a case which attained the same result as in its
two prior decisions. For example, even if Becker did
not remember the important meeting (concerning Ap-
pellant’s firing) taking place, her evasive and “amnesiac”
testimony on this and other points had to be accepted in
26 Edison Vv. Dep't of the Army, 672 F.2d 840, 845 (11th Cir.
1982).
27 Parka v. IRS, 618 F.2d 677, 683 (10th Cir. 1980).
28 Doe v. GSA, 544 F. Supp. 530, 541 (D. Md. 1982).
37a
order to reach the District Court’s predetermined result.
See, Paragraphs 4.6-4.7, supra.
5.2. The District Court’s conclusion that “[t]here was
insufficient evidence to show or infer that Ms. Becker or
Mr. Suib perceived Dr. Borrell to be complaining about
allegedly improper activities of other employees while
she was assigned to the . . . [Soviet] show” [I 22-23]
is incredible. The evidence was overwhelming, for ex-
ample, that a senior Agency employee’s wife was going
to be, and was, employed by the Agency to perform work
on the Soviet show, with the direct and indirect knowl-
edge and participation of Becker, Suib, and Jacobs, and
in violation of Federal statute and agency regulation. To
find credible any lack of motive for retaliation in the
face of this threat of public disclosure and possible dis-
ciplinary action is, as in Bundy, “disingenuous in the
extreme.” ?°
5.8. The District Court’s conclusions that Appellant’s
“job as deputy project manager ... was simply too big
for... [her]” and that she failed to perform that job
“adequately” are equally “disingenuous.” [I 23]. Becker’s
retaliatory memoranda [C DX 3A], in the context of her
testimony and that of Appellant, are a classic example of
a situation where a supervisor is out to get rid of her
deputy by “trivial” complaints and daily harassment.
Becker and Suib did not want Appellant to succeed. Her
frank and forthright criticisms of improprieties in the
Service operations caused them to arrange her termi-
nation, despite her excellent work record with other
supervisors.
5.4. The interests of appellate judicial administration
and justice require a rehearing. Thereupon, the case
2° There, this Court rejected as “clearly erroneous” the District
Court’s finding that “Bundy’s rejection of their [her superiors’ ]
advances did not evoke in them any motive to take any action
against her.” Bundy, 641 F.2d at 940, 941.
38a
should be adjudicated by this Court and injunctive relief
granted, with remand to another District Court judge on
the issue of damages, back pay, and attorney’s fees.
State of Connecticut v. Schweiker, 684 F.2d 979 (D.C.
Cir. 1982), cert. denied, 103 S.Ct. 1197 (1983).
Respectfully submitted,
/s/ Courts Oulahan
COURTS OULAHAN
Attorney for Appellant
39a
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1983
Civil Action No. 79-03492
No. 83-1137
PHYLLIS F. BORRELL,
Appellant
v.
UNITED STATES INFORMATION AGENCY, ET AL.
Before: Tamm, Wilkey and Mikva, Circuit Judges
ORDER
[Filed Jan. 13, 1984]
On consideration of the Petition for Rehearing of Ap-
pellant, filed December 30, 1983, it is
ORDERED by the Court that the aforesaid Petition is
denied.
Per Curiam
For The Court:
GEORGE A. FISHER
Clerk
By: /s/ Robert A. Bonner
ROBERT A. BONNER
Chief Deputy Clerk
40a
APPENDIX F
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1983
No. 83-1137
PHYLLIS F. BORRELL,
" Appellant
UNITED STATES INFORMATION AGENCY, ET AL,
Before: Robinson, Chief Judge; Wright, Tamm, Wil-
key, Wald, Mikva, Edwards, Ginsburg, Bork,
Sealia and Starr, Circuit Judges
ORDER
[Filed Jan. 13, 1984]
The Suggestion for Rehearing en banc of Appellant,
filed December 30, 1983, has been circulated to the full
Court and no member has requested the taking of a vote
thereon. On consideration of the foregoing, it is
ORDERED by the Court en banc that the aforesaid
suggestion is denied.
Per Curiam
For The Court:
GEORGE A. FISHER
Clerk
By: /s’ Robert A. Bonner
ROBERT A. BONNER
Chief Deputy Clerk
4la
APPENDIX G
STATUTES AND RULES
5 U.S.C. $552a. Records maintained on individuals
(a) Definitions. For purposes of this section—
(1) the term “agency” means agency as defined in
section 552(e) of this title.
(2) the term “individual” means a citizen of the
United States or an alien lawfully admitted for
permanent residence;
(3) the term “maintain” includes maintain, collect,
use, or diseminate;
(4) the term “record” means any item, collection,
or grouping of information about an individual that
is maintained by an agency, including, but not limited
to, his education, financial transactions, medical his-
tory, and criminal or employment history and that
contains his name, or the identifying number, sym-
bol, or other identifying particular assigned to the
individual, such as a finger or voice print or a
photograph;
(5) the term “system of records” means a group of
any records under the control of any agency from
which information is retrieved by the name of the
individual or by some identifying number, symbol,
or other identifying particular assigned to the
individual ;
(6) the term “statistical record’? means a record in
a system of records maintained for statistical re-
search or reporting purposes only and not used in
whole or fr part in making any determination about
an identiNatdhedndividual, except as provided by sec-
tion 8 of title 13; and
42a
(7) the term “routine use” means, with respect to
the disclosure of a record, the use of such record
for a purpose which is compatible with the purpose
for which it was collected.
(g) (1) Civil Remedies. Whenever any agency—
(A) makes a determination under subsection (d) (3)
of this section not to amend an individual’s record
in accordance with his request, or fails to make such
review in conformity with that subsection ;
(B) refuses to comply with an individual request
under subsection (d) (1) of this section ;
(C) fails to maintain any record concerning any in-
dividual with such accuracy, relevance, timeliness,
and completeness as is necessary to assure fairness
in any determination relating to the qualifications,
character, rights, or opportunities of, or benefits to
the individual that may be made on the basis of such
record, and consequently a determination is made
which is adverse to the individual; or
(D) fails to comply with any other provision of
this section, or any rule promulgated thereunder, in
such a way as to have an adverse effect on an in-
dividual,
the individual may bring a civil action against the agency,
and the district courts of the United States shall have
jurisdiction in the matters under the provisions of this
subsection.
(2) (A) In any suit brought under the provisions of sub-
section (g)(1)(A) of this section, the court may
order the agency to amend the individual’s record
in accordance with his request or in such other way
as the court may direct. In such a case the court
shall determine the matter de novo,
| 48a
(B) The court may assess against the United States
reasonable attorney fees and other litigation costs
reasonably incurred in any case under this para-
graph in which the complainant has substantially
prevailed.
(3) (A) In any suit brought under the provisions of sub-
section (g)(1)(B) of this section, the court may en-
join the agency from withholding the records and
order the production to the complainant of any
agency records improperly withheld from him. In
such a case the court shall determine the matter de
novo, and may examine the contents of any agency
records in camera to determine whether the records
or any portion thereof may be withheld under any
of the exemptions set forth in subsection (k) of this
section, and the burden is on the agency to sustain
its action.
(B) The court may assess against the United States
reasonable attorney fees and other litigation costs
reasonably incurred in any case under this para-
graph in which the complainant has substantially
prevailed.
(4) In any suit brought under the provisions of subsec-
tion (g)(1)(C) or (D) of this section in which the court
determines that the agency acted in a manner which
was intentional or willful, the United States shall be
liable to the individual in an amount equal to the sum
of —
(A) actual damages sustained by the individual as
a result of the refusal or failure, but in no case shall
a person entitled to recovery receive less than the
sum of $1,000; and
(B) the costs of the action together with reasonable
attorney fees as determined by the court.
44a
(5) An action to enforce any liability created under this
section may be brought in the district court of the United
States in the district in which the complainant resides,
or has his principal place of business, or in which the
agency records are situated, or in the District of Co-
lumbia, without regard to the amount in controversy,
within two years from the date on which the cause of
action arises, except that where an agency has materially
and willfully misrepresented any information required
under this section to be disclosed to an individual and the
information so misrepresented is material to establish-
ment of the liability of the agency to the individual un-
der this section, the action may be brought at any time
within two years after discovery by the individual of
the misrepresentation. Nothing in this section shall be
construed to authorize any civil action by reason of any
injury sustained as the result of a disclosure of a record
prior to September 27, 1975.
45a
FEDERAL
RULES OF CIVIL PROCEDURE
FOR THE
UNITED STATES DISTRICT COURTS
Rule 52. Findings by the Court
(a) Effect. In all actions tried upon the facts without
a jury or with an advisory jury, the court shall find the
facts specially and state separately its conclusions of law
thereon, and judgment shall be entered pursuant to Rule
58; and in granting or refusing interlocutory injunctions
the court shall similarly set forth the findings of fact and
conclusions of law which constitute the grounds of its
action. Requests for findings are not necessary for pur-
poses of review. Findings of fact shall not be set aside
unless clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge of the
credibility of the witnesses. The findings of a master, to
the extent that the court adopts them, shall be considered
as the findings of the court. It will be sufficient if the
findings of fact and conclusions of law are stated orally
and recorded in open court following the close of the
evidence or appear in an opinion or memorandum of de-
cision filed by the court. Findings of fact and conclusions
of law are unnecessary on decisions of motions under
Rules 12 or 56 or any other motion except as provided in
Rule 41(b).
46a
UNITED STATES COURT OF APPEALS
FOR THE
DISTRICT OF COLUMBIA CIRCUIT
GENERAL RULES
RULE 13.
OPINIONS OF THE COURT
* * . *
(ec) Order Form of Decision. In accordance with rec-
ommendations for improvement of judicial administra-
tion,’ this Court may, while according full consideration
of the issues, dispense with opinions where the issues
occasion no need therefor, and confine its action to such
abbreviated disposition as it may deem appropriate, e.g.,
affirmance by order of a decision or judgment of a court
or administrative agency, a judgment of affirmance or
reversal, containing a notation of precedents, or accom-
panied by a brief memorandum. See Rule 8(f). If the
parties have agreed to such disposition, they may so state
in their briefs or may so stipulate at any time prior to
decision. In any such case the Court will promptly issue
a judgment unless compelling reasons otherwise dictate.
1 Report of the President’s Commission on Crime in the District
of Columbia (1966) p. 308; and see Canon 19—American Bar
Association Canons of Judicial Ethics; position adopted by the
Judicial Conference of the United States, March 16, 1964.
END OF DOCKET
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