# Petition for Writ of Certiorari — Murray v. Gardner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1050

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1709%3A1. Public record. Not legal advice.