Petition for Writ of Certiorari — Murray v. Gardner

IN THE

Supreme Court of the Wni

OCTOBER TERM, 1984

NDER — STEVAS.

+

Paul C. Murray,

Petitioner,

Vv.

Theodore M. Gardner, Special Agent,

Federal Bureau of Investigation, et al,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Gilbert K. Davis

Counsel of Record

A. Richard Thorsey

GILBERT K. DAVIS & ASSOCIATES

2579 John Milton Drive

Suite 310

Herndon, Virginia 22071

(703) 476-1022

Counsel tor the Petitioner

~~

_—

DiCesare and Associates Printing © Washington, D.C. © (202) 331-8101 vy

QUESTIONS PRESENTED

A. DID THE CIRCUIT COURT ERR IN RULING THAT

SPEECH OF A FEDERAL EMPLOYEE MADE AT A

MEETING AT WHICH ALL EMPLOYEES WERE IN

ATTENDANCE, AND WHICH SPEECH WAS AT THE

REQUEST OF THE MANAGEMENT OF THE OFFICE,

WAS NOT ENTITLED TO FIRST AMENDMENT

PROTECTIONS?

B. DID THE CIRCUIT COURT ERR IN RULING THAT

THE PETITIONER STATED NO DUE PROCESS

VIOLATION IN HIS COMPLAINT WHEN IT ALLEGED

THAT THE APPELLEES DID NOT FOLLOW AGENCY

. REGULATIONS AND POLICY TO WHICH THE

PETITIONER EMPLOYEE WAS ENTITLED?

PARTIES TO THE PROCEEDINGS

1. Paul C. Murray, a Special Agent of the Federal Bureau of

Investigation for more than a decade, is the Plaintiff-Appellant

below and Petitioner herein.

2. Theodore M. Gardner, Oliver B. Revell, Barry Laken,

James W. Vatter, John Schreiber, and Ivan Ford are co-

employees of the Federal Bureau of Investigation, who hold

management positions with the Agency, and are the Co-

Defendant-Appellees below and Co-Respondents herein.

3. Federal Bureau of Investigation is an Agency of the Federal

Government and was the Defendant-Appellees below and is the

Respondent herein.

TABLE OF CONTENTS

Page

QUES SIE FRR Sere ee 6 ads Fee % doe b5b Nawab ee i

PARTIES TO PROCBEIINGS 6. vb cccdecsccsccacs i

OPINIONS AND JUDGMENTS BELOW ......... I

Bt rer Er yo ree oy one eee 2

CONSTITUTIONAL, STATUTORY and

REGULATORY PRAURVIBGINS sis ccieecieeieds. 2

STATENS Cie DUO GAWD osc ce cscs budivevioccny 2

OT TTT OTe eT Te ee eee 4

FEDERAL QUESTION(S) RAISED .........0.005. 5

REASONS FOR GRANTING THE WRIT ......... 6

A. The Circuit Court Erred in Ruling That

Speech Of A Federal Employee Made During

A Meeting At Which All Employees Were In

Attendance, And Which speech Was At The

Request Of The Management Of The Office,

Was Not Entitled To First Amendment

PrOOOCtAGGO 0s ndniecneauwha ¢aaetenennnsen ees 6

B. The Circuit Court Committed Legal Error In

Ruling That The Petitioner Stated No Due

Process Violation In His Complaint When It

Alleged That The Appellees Did Not Follow

Agency Regulations And Policy To Which

The Appellant Employee Was Entitled ...... .

CE SAT bs 60k b0 gnaw ee eben eeeaeae rae kent 16

ili

APPENDICES:

A: Opinion of the United States Court of Appeals

Denying Petitioner’s Appeal .............. .,A-l

B: District Court’s Order Dismissing Petitioner's

First Amendment Claim.............se00.. A-15

C: District Court’s Order Dismissing Petitioner’s

Due Process and Other Claims............. A-16

D: Constitutional Provisions...............66. A-17

age or fot FG ee | ee er A-19

F: Federal Bureau of Investigation Regulations .A-21

G: Complaint for Violation of Due Process and

First Amendment Rights, for Defamation,

Infliction of Emotional Distress, Conspiracy,

and for Injunctive Relief

iv

TABLE OF AUTHORITIES

Cases: Page

Federal:

Bivens v. Six Unknown Federal Narcotics

a, ee a Te bikin vk h is AE ca ews 15

Bush v. Lucas, 76 L.Ed.2d 648 (1983) ........... 6, 15

Comer V. Gapee,. Fan US. SE CIR se) a ceca wcwcnccnss 15

Connick v. Myers, 103 S. Ct. 1684 (1983) .... 5, 6. 8, 10,

11, 12, 16

Givhan vy. Western Line Consolidated School

Ce, Se We Ue TO no 6 hha ck 6th aps tee scas 9

Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982) .......... 8

Hollingsworth v. Harris, 608 F.2d 1026

Fe Gee SEE ooo duc hekeNGke ee Nedb ban seeswes 13

McGee v. South Pemiscot School District.

rte hf foe, | Breer 10, }1

Mathews v. Eldridge, 424 U.S. 319 (1976) ........... 15

Mazaleski v. Treusdell, 562 F.2d 701,

ee A ee kee OS re 13

Morton v. Ruiz, 415 U.S. 199 (1974)................ 13

Perry Education Association v. Perry Local

Educator’s Association, 103 S. Ct. 948 (1983) ...... 12

Pickering v. Board of Education,

RT rere err reer eT eT Tee 7

United States v. Albertini, 710 F.2d 1410

Se es SE Sa Chew cd eds ehee dee eee cesskbanes 12

Vitarelli v. Seaton, 359 U.S. 535 (1959)........... sm #5

Constitutional Provisions:

2 ee >, re ree ee y eS

re y >

Statutes and Regulations:

STATUTES:

go SG A reer rs Se ree rrr re 14

5 U.S.C. § 7503(b) (3): ice r rece ere eee e eee ee eeeees 14

REGULATIONS:

Disciplinary Procedures of the Federal Bureau

OF SE a 6 4 ken toons cans Foner nd chuee eae’ 2

IN THE

Supreme Court of the United States

OCTOBER TERM 1984

Paul C. Murray,

Petitioner,

Vv.

Theodore M. Gardner, Special Agent,

Federal Bureau of Investigation, er a/,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Paul C. Murray petitions for a writ of certiorari to review the

opinion of the United States Court of Appeals for the District of

Columbia Circuit in this case.

OPINIONS AND JUDGMENTS BELOW

The Opinion of the United States Court of Appeals denying

the Petitioner’s appeal from the United States District Court for

the District of Columbia was entered on August 14, 1984.

Murray v. Gardner, et al, No. 83-1750, slip op. (D.C. Cir. August

14, 1984). This Opinion is reprinted at page A-! of the Appendix

to this Petition.

The District Court Order entered June 13, 1983, dismissed

Petitioner's First Amendment claim which was his second cause

of action in his complaint. This Order appears at page A-15 of the

Appendix.

The District Court had previously dismissed the Petitioner's

first, third, fourth and fifth causes of action in the complaint; i.e.,

claims based on due process, defamation, conspiracy, and

intentional infliction of emotional distress by Order entered

March 2i, 1983. The District Court’s Order appears at page A-16

of the Appendix to this Petition.

JURISDICTION

The Order of the United States Court of Appeals for the

District of Columbia Circuit was entered August 14, 1984,

affirming the lower Court's dismissal of Petitioner's complaint. A

timely Petition for Writ of Certiorari to the Court of Appeals for

the District Columbia Circuit is hereby submitted to this Court

and jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL STATUTORY AND

REGULATORY PROVISIONS

The First and Fifth Amendments of the United States

Constitution are set out in the Appendix at A-17.

The pertinent statutes and regulations which govern the

procedure for disciplining employees of the Federal Bureau of

Investigation (hereinafter referred to as FBI) are set out in the

Appendix at A-21.

STATEMENT OF THE CASE

This Petition arises from the dismissal of Paul Murray's

lawsuit against his superiors at the Washington Field Office

(hereinafter referred to as WFO) of the Federal Bureau of

Investigation (hereinafter referred to as FBI) and the agency

itself.

The Petitioner, Paul C. Murray, isa former Navy pilot and has

been an employee of the FBI for more thana decade. Prior to the

incident on which this action is based, he was recognized by the

FBI as an excellent or superior employee. Petitioner’s complaint

alleges violations of his First and Fifth Amendment

Constitutional Rights and his common law rights. Jurisdiction

was founded upon the existence of Federal question and pendent

jurisdiction. The violation of these Amendment rights occurred

when retaliatory disciplinary action was taken against Murray

for certain statements he made at an all-employees meeting of the

WFO of the FBI. The Due Process violations occurred during the

disciplinary process.

The complaint was filed on August 25, 1982. On December,

1982, the Respondents filed a motion to dismiss or in the

alternative for summary judgment.

The Petitioner filed a motion in opposition to Respondents’

motion to dismiss. After oral argument on March 16, 1983, the

Court on March 21st dismissed the first, third, fourth, and fifth

causes of action on the complaint, i.e., claims based on the due

process, defamation, conspiracy, and intentional infliction of

emotional distress.

On April 21, 1983, the Petitioner moved for a default judgment

due to lack of responsive pleading by Respondents; this motion

was denied by the Court on April 28, 1983, and the Court

gave the Respondents until Aprii 26, 1983, to file a responsive

pleading. On April 26, 1983, the Respondents filed a new motion

to dismiss and the Petitioner filed a memorandum in opposition.

On May I Ith, the Petitioner moved to amend the complaint as

a matter of right or alternatively with leave of Court, and also

moved to compe! responsive pleadings. Both motions were

denied by the Court. The Petitioner also moved on May I!, 1983,

to vacate the Order dismissing the first cause of action (due

process). This was denied without argument despite Petitioner's

request for oral argument.

Further, on Mav | ith, 1983, the Petitioner filed Notices to take

depositions of the Respondents, Vatter, Gardner, Schreiber, and

Laken, on June 2nd and 3rd, 1983. On May 27, 1983, the

Respondent moved for a protective Order to quash the Notice of

depositions, which Notice was granted on June |, 1983, without

opportunity for Petitioner's counsel to argue.

On June 13, 1983, the Court heard argument by counsel on the

renewed motion to dismiss the First Amendment claim. The

Court took the matter under advisement and filed an Order

dismissing the remainder of the complaint (the First Amendment

claim) that same afternoc na.

Petitioner appealed from the District Court's ruling on

September 12, 1983. In an Opinion authored by Senior Judge

MacKinnon, the Court of Appeals affirmed the trial Court's

dismissal of Petitioner's claim on August 14, 1984. From that

adverse ruling, Petitioner timely files for review by this Court.

FACTUAL BACKGROUND

Since the lawsuit was dismissed on the grounds of failure to

state a claim, the allegations of the complaint must be taken as

true to determine if a recognized claim for relief was alleged.

Accordingly, the following summarizes these allegations.

In November, 1981, Petitioner Murray learned of a contingent

plan to furlough roughly one-third of the agents in the WFO of

the FBI. The plan called for the selection of agents to be

furloughed by drawing agent’s names from a hat. Petitioner's

name had been drawn from the lottery pool. The names of

management were excluded from the furlough plan. No other

field office used this “lottery” method.

Murray was also informed that there would be a meeting of all

WFO enployees (approximately seven hundred) called for the

specific purpose of discussing the pros and cons of the “lottery”

method. During this meeting, employees were encouraged by

management to express their views regarding the proposed

furlough. Prior to the meeting, Murray was warned by

Repondent, Barry Laken, that expression of his oppsition to the

contingency plan could be detrimental to his job status.

During the all-employees meeting, Murray expressed his

opposition to the plan and also stated he resented the threats that

had been made to keep him quiet. Following the meeting.

Respondent, Gardner, ordered Murray to report to

Respondent's, Schreiber’s, o*fice. Murray's request to be

accompanied by a witness to this meeting was denied.

During the meeting in Schreiber’s office, Murray refused to

change his opinion about the furlough pian and he was ordered to

file a report on the alleged efforts to keep him quite.

Murray filed bis memorandum regarding coercion by Laken

as requested, but was told that his memorandum was

unacceptable, unprofessional, bordered on insubordination, and

that he was the subject of an administrative inquiry.

An “investigation” was conducted and Murray was notified by

letter from Respondent, Oliver Revell, dated January 20, 1983,

that Murray was being considered for suspension without pay for

thirty days and was being placed on probation.

In the same letter, Murray was notified that he had several

rights including a review by an Executive Assistant Director of

the FBI, a written opinion of the Executive Assistant Director of

the FBI, and a right to counsel. Murray was later denied these

rights during the proceedings and, in fact, when he tried to

involve his attorney to the proceedings he was further disciplined.

Eventually, Murray was suspended for fourteen days rather

than the proposed thirty days. He was given twice the normal

probation period. The fourteen day disciplinary suspension

period is the maximum number of days that Murray could have

received without entitling him to an appeal to the Merit System

Protection Board since a suspension of fourteen days or less is

not termed an “adverse action.” Murray's attempts to obtain an

appeal of the decision to the Director of the FBI, pursuant to FBI

regulations, were denied.

All of the actions taken against Petitioner by his superiors were

in retaliation for his opposition to the lottery furlough plan which

he voiced at the all-employees meeting.

FEDERAL QUESTIONS RAISED

Petitioner seeks review of issues involving the First and Fifth

Amendments of the Constitution of the United States which were

timely raised below and decided adversely to the Petitioner. The

First Amendment and this Court's prior decisions protect

employee's speech which addresses matters of public concern.

Furthermore, speech which relates on/y to personal interests is

afforded First Amendment Protection under “most unusual

circumstances.” Connick v. Myers, 103 S. Ct. 1684 (1983). The

District of Columbia Court of Appeals ruled as a matter of law

that Peitioner’s opposition opinions voiced during the employee

conference called to hear such opinions were not protected by the

First Amendment. This Court is presented with a unique

opportunity to consider and clarify the important question of

whether the First Amendment protects the employee from his

employer's retaliation when the employee voices his opposition

on issues made public during an open forum set up by his

employer.

The Court also has an opportunity to rule on whether the Fifth

Amendment affords a Federal employee due process protection

in a case which involves a fourteen day suspension without

salary. This question was specifically reserved by this Court for

decision at a later date in Bush v. Lucas, 76 L.Ed.2d 648, 662 n.28

(1983).

REASONS FOR GRANTING THE WRIT

A.

THE CIRCUIT COURT ERRED IN RULING THAT SPEECH

OF A FEDERAL EMPLOYEE MADE DURING A

MEETING AT WHICH SPEECH ALL EMPLOYEES WERE

IN ATTENDANCE, AND WHICH WAS AT THE REQUEST

OF THE MANAGEMENT OF THE OFFICE, WAS NOT

ENTITLED TO FIRST AMENDMENT PROTECTIONS.

1 Employee's Comments At The All-Employee

Meeting Relate To Matters Of Public Concern;

Therefore, The Lower Court Should Be Reversed.

Last year in Connick v. Myers, 103 S. Ct. 1684 (1983), this

Court defined the parameters of protected speech within the

government work place. In Connick, an assistant district

attorney had been fined after she objected to her transfer and

distributed a questionnaire to fifteen of her fellow staff members

concerning office transfer policy, office morale, the need for a

grievance committee, the level of confidence in supervisors, and

whether employces felt pressured to work in political campaigns.

After she was fired, she filed suit under 42 U.S.C. § 1983

contending that her employment was wrongfully terminated

because she exercised a Constitutionally protected right of free

speech.

The Court rejected her claim and held that:

...when a public employee speaks not as a citizen upon

matters of public concern, but instead as an employee

upon matters only of personal interest, absent the most

unusual circumstances, a Federal Court is not the

appropriate forum in which to review the wisdom of a

personal decision taken by a public agency allegedly in

reaction to the employee’s behavior. 103S. Ct. at 1689-

1690 (footnote omitted).

The Appellate Court in the instant case ruled that the

comments Petitioner made at the all-employees assembly to

contain nothing, “...that would enrich the public’s store of

appropriate knoweldge on the operation of the FBI or which

would in any way relate to matters of general public concern”

and, therefore, did not constitute protected speech. We disagree

on the grounds that: a) the disposition of public funds is a public

issue; b) the quality of the Federal work force is a public issue;

and c) threats made to stifle valid dissent are a matter of public

concern.

a. Disposition of Public Funds is a Public Issue. The furlough

“lottery” on which Petitioner commented is clearly a matter of

public concern. It is beyond dispute that expenditure of public

funds is a legitimate concern and that employees cannot be

disciplined for expression of views on this issue. Pickering v.

Board of Education, 391 U.S. 563 (1968). This Court can take

judicial notice that at Congressional appropriation and

authorization hearings not only do agency personnel testify but

also representatives of public interest groups and private citizens.

Obviously, such decisions affect the disposition of public monies.

Petitioner's speech directly relates to the appropriate use of

limited public funds. In the case at hand the furlough was

mandated as a result of the lapse of Federal funding. Due to the

funding problem, the Bureau was in the position of having to

decide how best to use the remaining available funds.

Headquarters determined that a furlough of employees was

appropriate and regional offices were instructed to implement

such a furlough. The WFO management elected to draw names

from a hat (management was excluded from the lottery pool) to

determine who would be furloughed. Management then called an

all-employees meeting to be held November 25, 1982, at which

approximately 700 or more employees attended. The purpose of

the meeting was to explain the furlough system and obtain

feedback regarding it.

Any furlough system is by its very nature a decision as to how

public funds are spent since it results in certain individuals and

their capabilities being paid and retained on the work force, and

other individuals not being paid and, therefore, not performing

work for the FBI. Furlough decisions are decisions as to the most

appropriate way of spending a budget developed through tax

dollars. Just as the speech in Harlow v. Fitzgerald, 102 S. Ct. 2727

2727 (1982) constitutes public speech so was the speech of Paul

Murray directed toward the most appropriate way to spend

public money.

b. Quality of the Federal Work Force is a Public Issue.

Just as Petitioner’s comments realte to decisions on spending of

public monies, so it relates also to the quality of personnel to be

maintained on the FBI staff. Certainly the public has an interest

in maintaining a quality Federal work force, particularly in an

agency which performs the crucial law enforcement function of

the FBI. Just as decisions regarding what individuals should be

hired into an agency will affect the quality of the performance of

that agency, so do decisions regarding what personnel will be

removed from the work force. As Murray told the all-employees

meeting, a furlough plan should consider seniority as a factor.

This makes imminent sense because, as a general rule, more

senior personnel are more experienced, hence, more valuable to

an agency’s operations. Surely the Appellees cannot contend that

the quality of the Federal work force is not a matter in which the

public has a valid interest or concern, nor is there any rationality

to an argument that favoring seniority over a lottery system is

potentially unbecoming of supervisory authority as in Connick,

supra. To punish this invited speech with a fourteen day

sus™ension without pay is to send a message that: “If you want to

get along, you must go along.” A quality work force cannot be

maintained by the stifling of dissent. The strong inference from

the facts alleged in the complaint is that Petitioner’s superiors

wanted to flush out the biggest dissenter, in front of the whole

work force, trick this dissenter into speaking up under the guise

of “invited speech” at an all-employees conference, and then

make an example of the him by harshly disciplining him.

The employers might contend that since the speech occurred

inside the place of employment, it should not be protected. This

argument cannot stand. Just as it was not necessary for the

comments in Givhan v. Western Line Consolidated School

District, 439 U.S. 410 (1979), to be broadcast outside the work

place in order to be deserving of protection, neither is it necesary

for Murray’s comments to Laken at the all-employees meeting to

be spread beyond the work place. In Givhan, supra, the

comments of the employee were considered protected because

they related to allegedly discriminatory practices. The Court held

that it was not necessary for these comments to be broadcast

publicly and that private communication (in that case, a one-on-

one conversation) was protected as well. Givhan, supra, at 415. In

the present case, the complaint clearly states that Murray's

comments were made at a meeting of all WFO employees, called

at the request of management, so that employees could voice

their views on the lottery furlough.

There is another issue related to the quality of the Federal

work force in this case. The defendants perforce msut argue

that the Director of an agency should be entitled to call an all-

employee conference, ask for opinions on certain matters,

and then be permitted to discipline any employee who states

views which do not meet with the approval of the agency

head by citing a pretense such as poor job performance. If

this sad situation were ever to fully develop in the United

States, the public would be deprived of a competent and efficient

government and would be given instead a government operated

by “yes” men. It cannot reasonably be argued that the public has

no interest in employees frankly responding to a supervisor's

request for comments.

c. Threats Made to Stifle Valid Dissent is a Matter of Public

Concern. Another matter of public concern contained in

Petitioner's speech is intimidation of Federal employees. In this

case, the management of the WFO called a meeting of employees

10

to express views regarding the appropriate selection of agency

personnel and the spending of public monies, clearly areas of

public concern. Prior to the meeting, Petitioner was told that

expressions of his personal views could be detrimental to his

career. In other words, an attempt was made to intimidate him

and, in fact, the threats were made good.

Incident to the Respondents’ attempts to suppress the speech

of Murray is the issue of quality and efficency of government

operations. It is not in the pubiic interest for employees to be told

prior to meetings at which views will be solicited that certain

views can be expressed only at risk of hurting the declarant’s

career. If the Respondents’ argument is accepted, group meetings

of employees held to ascertain workers’ viewpoints will be a sham

and the public will be deprived of the benefit that occurs to all

organizations when there is a spirit of teamwork, cooperation,

and participation, rather than one of threats, tyranny, and

vendetta.

This is not a case like Connick, supra, where an employee, on

her own initiative and without the consent or prior knowledge of

management, circulated a questionnaire among fifteen of her

coworkers. Here, management instigated and invited public

criticism of their proposed furlough plan during a meeting

attended by the entire seven hundred or more WFO employees.

Management’s purpose, while perhaps noble and democratic,

was distorted by a few of its rank who tried to bully Petitioner

into silence before the public hearing. After the hearing, the

Respondents again attempted to silence Murray. Only when they

were unsuccessful in convincing Murray to change his voiced

opinions did they proceed to “investigate” him, place him

publicly on probation, and eventually suspend him without pay.

The Petitioner’s situation is akin to that in McGee v. South

Pemiscot School District, 712 F.2d 39 (8th Cir. 1983). In McGee,

a dispute arose as to whether a local school should have a track

team. This controversy was publicizied in the local newspapers

by the school board. The plaintiff, McGee, wrote a letter to the

editor of a newspaper about the issue and, consequentially, was

eventually discharged. The Eighth Circuit noted:

11

This case stands on an entirely different footing

from Connick v. Myers, ...We have before us a case

where the plaintiff wrote a letter to a newspaper about

an issue that had already been publicly aired by the

defendants. Id. at 342, - 43 n. 4. (Emphasis added.)

While, in this case, Petitioner’s speech was not broadcast publicly

in the newspaper, petitioner’s expression was requested by field

office management after management first aired the issue. The

school board in McGee, supra, only impliedly invited the

teacher’s comments. In our case, management explicitly invited

Petitioner's comments; the foremost distinguishing feature

between this case and Connick, supra.

2. Even If This Speech Is Determined Not To Be “Public

Speech” It Should Be Protected Under The First

Amendment Because It Fits The “Unusual Circumstances”

Test of Connick v. Myers.

It is very rare indeed that the law and the facts of a case mesh

perfectly so that the rule isclear to all. While Murray’s comments

must be protected speech because under the circumstances his

opinions touched on “matters of public concern” as opposed to

being upon “matters on/y of personal interest,” (emphasis added)

this case may best be decided as one of those “most unusual

circumstances” which this Court included as an exception to

trigger First Amendment protection. Connick, supra, states that

a Federal Court may review agency action in “most unusual

circimstance,” even though speech is not directed at a public

issue. Most unusual circumstances are present in this case. WFO

management called the all-employees meeting so that employees

might express their views on the lottery system (or to give the

illusion that empoyees could express their views). When

Petitioner spoke at the meeting, he addressed the topic for which

the meeting was called. The Federal government, asan employer,

should not be heard to say that it is interested in promoting a

system whereby managers can ask employees for their opinions

relating to an agency policy, and thereafter pretextually

discipline the employee for that opinion. Implicit in the invitation

to speak is the assurance that a price or penalty will not be

extracted on account of what is said.

12

The principle stated here is not new, that is, that there are

circumstances under which speech may be accorded First

Amendment protections even though normally no such

protection exists. This Court has stated that a public forum may

be created for limited purposes or discussion of certain subjects.

Perry Education Association v. Perry Local Educators’ Assn.,

103 S. Ct. 948, 955 n.7 (1983). Restrictions on speech are

permissible as long as they are not merely an effort to oppose the

speaker’s view. /d. at 955. Speech of an individual directed

toward the purpose of the limited forum is protected by the First

Amendment. United States v. Albertini, 710 F.2d 1410, 1416(9th

Cir. 1983).

In the case at bar, the management of the WFO created a

forum specifically for the expression of views on a particular

subject, a “lottery” form of furlough plan. They now argue that

use of the forum is not a protected activity and that there should

be no legal remedy when management retaliates against an

employee who accepts management’s invitation to speak. This

retaliation, moreover, was in the form of the maximum discipline

possible without the invocation of any employee administrative

appeal rights, an action that is calculated to send the message

that, “We are fair because you can speak your mind, but if we

don’t like what you say, we'll punish you.”

Finally, this Court should rule that WFO management is

estopped from asserting that these actions can be taken against

Murray with impunity since the views of Murray were made at

the request of WFO management. This is not a case such as

Connick, supra, in which the employee was indeed initiating a

palace revolt. Murray was merely responsing to Respondents’

offer to speak at a meeting.

Accordingly, this Court must find either that Murray’s speech

was directed to a matter of public concern, or that “most unusual

circumstances” existed; and, therefore, reverse that judgment of

the Circuit Court.

13

THE CIRCUIT COURT COMMITTED LEGAL ERROR IN

RULING THAT THE PETITIONER STATED NO DUE

PROCESS VIOLATION IN HIS COMPLAINT WHEN IT

ALLEGED THAT THE RESPONDENTS DID NOT

FOLLOW AGENCY REGULATIONS AND POLICY TO

WHICH THE PETITIONER EMPLOYEE WAS ENTITLED.

The Court of Appeals affirmed the District Court’s dismissal

of the Fifth Amendment Due Process claim of the Petitioner,

holding that Petitioner received sufficient process. He was not

accorded all required process however, so the lower Court’s

ruling should be reversed.

This Court has clearly stated that under the Due Process clause

of the Federal Constitution an individual is entitled to all of the

procedural protections contained in agency regulations and

orders even when such procedure affords an individual greater

protections than would have existed without such regulations.

Vitarelli v. Seaton, 359 U.S. 535, 539-540 (1959). See also

Mazaleski v. Treusdell, 562 F.2d 701, 717-718 n.38, 183 U.S.

App. D.C. 182 (D.C. Cir. 1977). This broad language has been

interpreted by this Court to apply not only to decisions regarding

employees, but also to circumstances which would affect an

individual’s eligibility for the benefits of Federal program.

Morton v. Ruiz, 415 U.S. 199, 235 (1974). The government

conceded below the correctness of the proposition in

Hollingsworth v. Harris, 608 F.2d 1026, 1027 (Sth Cir. 1979). In

Morton it was held that denial of benefits to an individual could

not be sustained because the basis for denial was not published in

the agency’s manual, contrary to agency policy. The Court wrote:

The Bureau of Indian Affairs (BIA), by its Manual, has

declared that ali directives that “inform the public of privileges

and benefits available” and of “eligibility requirements” are

among those to be published . . . [I]t [The Bureau of Indian

Affairs] must comply, at a minimum, with its own internal

procedures.

Morton, supra, at 235.

14

Under 5 U.S.C. § 7503 (b) (3), an employee against whom a

suspension for fourteen days or less is proposed is entitled to be

represented by an attorney. In a letter dated January 20, 1982,

Respondent, Revell, an FBI supervisor, promised that several

procedural protections would be provided Murray, including the

right to the use of an attorney in all future proceedings. As stated

in the complaint, the Respondents denied Petitioner his right to

an attorney on three occasions despite his request that his

attorney be permitted to be present.

A catalog of the statutory and agency protections, along with

those rights promised Petitioner by the Respondents’ letter dated

January 20, 1982, are as follows:

a. Right to a review of the entire matter by an Executive

Assistant Director of the FBI;

b. Right to respond to all charges;

c. Right to the use of an attorney in all future proceedings;

d. Right to a written decision from an Executive Assistant

Director of the FBI shortly after thirty days from the date of the

letter (January 20, 1982);

e. Right to a copy of all supporting documents; and,

f. Right to an appeal to the Merits System Protection Board if

the suspension went into effect.

Of these guarantees, Murray was denied review of the matter

by an Executive Assitant Director of the FBI; denied a written

decision from an Executive Assistant Director of the FBI thirty

days from the date of the January 20th letter; and denied a letter

and appeal to the Merits Systems Protection Board.

Furthermore, the Director of the FBI denied Murray’s request

for appeal.

Murray was denied the opporiunity to present the matter to

the Merit System Protection Board since the employer reduced

his punishment so that he would not be eligible to present his case

to a fair fact-finder.

15

This Court recently observed that, in personnel actions

involving suspensions for fourteen days or less, there is no

provision for redressing improper action by supervisors. Bush v.

Lucas, 76 L.Ed.2d 648, 662 n.28 (1983). In Bush it was held that

an individual who received full adininistrative proceedings could

not then sue for relief in Federal court. The concurring opinion

pointedly noted that injuries not protected by the Federal

statutory scheme available on Bush can still be pursued under

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388,

29L.Ed.2d 619, 91 S. Ct. 1999 (1971). /d. at 665 (Marshall, J.,

Blackmun, J., concurring).

“A complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to

relief.” Conley v. Gibson, 335 U.S. 41, 45-46 (1957). The

allegations in Petitioner’s complaint, as set forth in the Factual

Background, allege that the agency did not follow its own require-

ments, during the disciplinary action against Petitioner and that,

therefore, his due process rights were violated. The lower

Court did not acknowledge the validity of Vitarelli, supra, and

Morton, supra, and instead cited Mathews v. Eldridge, 424 U.S.

319 (1976), for the proposition that “due process requirements

vary according to the severity of the threatened loss.” The

Mathews case, however, deals with the requirements and

balancing test by which the constitutional adequacy of an

agency's procedures is considered. Mathew's, supra, in no way

decides or even suggests that an agency may ignore its own

procedural requirements. The Petitioner's pay has been taken.

His career has been blackened. Certainly a hearing before some

agency is in order. Even under the Mathew's standard, a fourteen

day suspension and loss of pay hardly seem much less severe than

the fifteen day suspension and pay loss necessary to trigger

administrative appeal rights.

Perhaps the clearest error by the Circuit Court is its faulty

reading of the due process protections provided in Title 5 of the

Code. The Court cities several sections of Title 5 and writes that

“Murray’s suspension is not governed by the subchapter he

16

cites.” Murray v. Gardner, et al, No. 83-1750, slip op. at 13(D.C.

Cir. August 14, 1984). Unfortunately, the court overlooked

§ 7503 of Title 5 which permits, inter alia, an attorney to

represent the Petitioner in a fourteen day suspension case.

For these reasons, the Circuit Court erred in affirming the

lower Court’s dismissal of the due process claim and the

judgment must be reversed.

CONCLUSION

This petition should be granted because the issue

fundamentally affects the rights of thousands and of Federal

employees to voice their opinions when invited to do so by their

superiors without fear of reprisal by their superiors when the

opinion voiced is disfavored. It is important that First

Amendment protection be accorded this speech, since otherwise

the public cannot expect “in house” criticism or suggestions on

important matters will receive a hearing. Especially when the

criticism expressed has been invited by management, the

circumstance of retaliation is sufficiently “unusual” to fit that

exception in Connick, supra. Fundamental fair dealing to

Federal employees, and protection against “mind control” is at

stake.

This case also presents squarely the due process issue reserved

by the Court in Bush, supra, at footnote 28, and the concurring

opinior by justices Marshall and Blackburn; that is, the right of

an employee to sue in the absence of a Federal agency remedy for

grievances. On the one hand the government argues that the

Plaintiff has no agency right to any process including agency

hearings and right to counsel. And on the other hand, the

government's position is that the employee likewise has no

remedy in Court. If the government prevails, there is no remedy

whatsoever when supervisors decide to suspend without pay for

fourteen days. Approximately two thousand dollars can be taken

from Paul Murray’s pocket and his career damaged, yet he can

make no protest that anyone will hear. The result is that

whenever supervisors want to arbitrarily discipline an employee

17

whose mind is not in conformance with a party line, so long as the

suspension is fourteen days or less, their actions will be

unchallenged. Here, Petitioner's supervisors must have clearly

had this result in mind when they threatened a thirty day

suspension, but cut it to the fourteen day maximum that is

unreviewabie. This is a government of laws and not men. This

Court should not contenance such arbitrary Kafkaesque action.

The Court should find that the complaint states course of action.

Respectifully submitted,

Gilbert K. David

Counsel of Record

A. Richard Thorsey

GILBERT K. DAVIS & ASSOCIATES

2579 John Milton Drive

Suite 310

Herndon, Virginia 22071

(703) 476-1022

Counsel for Petitioner

CERTIFICATE OF SERVICE

This is to certify that three (3) true anc correct copies of the

foregoing Petition for Certiorari has been served upon the

following by depositing three (3) copies of the same in the United

States Mail, postage prepaid, addressed to:

John D. Bates, Esquire

U.S. District Courthouse

Room 2820

3rd & Constitution Avenue, N.W.

Washington, D.C. 20001

Counsel