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Zummer v. Sallet

United States District Court, E.D. Louisiana

September 5, 2019


         SECTION: “J” (2)

          ORDER & REASONS


         Before the Court are two Motions to Dismiss Rec. Doc. 63 and 64. The motions were filed by Defendant, Jeffery Sallet, along with other current and former FBI employees, in their official and individual capacities as FBI employees “Defendants”, and oppositions thereto Rec. Doc. 68, filed by Plaintiff, Michael Zummer “Plaintiff. Defendants also filed replies in support of their motion to dismiss. Rec. Doc. 73 and 74. Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the motion should be GRANTED as to the Individual Capacity Defendants Motion to Dismiss Rec. Doc. 64 and GRANTED as to Count One for the Official Capacity Defendants Motion to Dismiss Rec. Doc. 63 and DENIED as to Count Two for the Official Capacity Defendants Motion to Dismiss.


         This litigation arises from Plaintiff's allegations that Defendants suspended his security clearance and then suspended him from the FBI without pay in response to Plaintiff distributing a letter to Honorable Judge Kurt Englehardt, then a federal district judge in the Eastern District of Louisiana. Plaintiff was the lead agent in an FBI investigation into Harry Morel Jr., the then district attorney of Louisiana's 29thJudicial District. As a result of this investigation, FBI and state law enforcement officials concluded that Morel had been using his position as District Attorney to obtain sexual favors from defendants and members of defendants' families. After initially declining to prosecute Morel, the U.S. Attorney's Office for the Eastern District of Louisiana later decided to prosecute Morel. Morel eventually plead guilty to one count of Obstruction of Justice with a maximum three-year sentence.

         The Plaintiff was upset by the lenient plea deal and what he viewed as corruption and conflicts of interest in the U.S. Attorney's Office. Therefore, Plaintiff decided to draft a letter to Judge Englehardt, presiding over the case, detailing Plaintiff's concerns over the happenings in the U.S. Attorney's Office.

         On May 13, 2016, Plaintiff gave a copy of the letter to Daniel Evans, one of the Defendants in this case, for review and approval. On May 31, Plaintiff asked Evans about the status of the letter, at which time Evans told Plaintiff that the FBI's Office of General Counsel advised not sending the letter to the Judge, but rather to send the letter to various Federal entities that protect whistleblowers and ask them for permission to send the letter. On June 2, 2016, Plaintiff sent the letter to the Office of the Inspector General (“OIG”), one of the offices responsible for whistleblower complaints. The OIG then forwarded Plaintiff's letter and resolution of the matter to the Department of Justice's Office of Professional Responsibility (“DOJ OPR”).

         On August 3, 2016, Plaintiff reached out to the DOJ OPR for a response in time for Morel's upcoming August 17 sentencing. Upon getting no response, Plaintiff initiated the FBI's pre-publication review process. The pre-publication review process is the process FBI employees must go through when attempting to publish any information related to their employment with the FBI outside of their official duties, such as publishing a memoir. On August 11, the DOJ OPR told Plaintiff it would not comment on whether sending the letter to the Judge was advisable. On August 16, the FBI told Plaintiff it would review his letter for the public but not to the Judge, as it viewed disclosure to the Judge as disclosure within his official duties.

         On August 16, Plaintiff sent the letter to Judge Englehardt and informed the FBI of his actions. The Chief Counsel of the FBI's New Orleans Division responded urging Plaintiff to retract the letter. Plaintiff refused to do so. On August 30, 2016, Plaintiff was removed from investigative activity. On September 6, Plaintiff sent Judge Englehardt a second letter, further explaining his first letter. On September 16, 2016, Plaintiff asked to be returned to investigative work, and said he intended to continue with the pre-publication process for his letter to be released to the public. On September 23, 2016, Plaintiff received an e-mail from an FBI official stating that he could not be returned to investigative work because he had chosen to disclose information gathered in the performance of his FBI duties despite express instructions to refrain from doing so. On September 30, Plaintiff was told that his security clearance had been suspended, and that accordingly he was suspended from work without pay.

         On April 3, 2017, Plaintiff learned that the FBI failed to provide him with the veteran-preference status for which he was eligible. Due to this status he was entitled to administrative leave with pay until a hearing was held about the decision to suspend him without pay. On May 12, a telephone conference was held between Plaintiff and various FBI officials. After the conference, the Plaintiff's suspension without pay was reinstated. The FBI also refused to allow the Plaintiff to publish his letter to the public in full, leaving the majority of the letter heavily redacted.

         On January 3, 2018, Plaintiff received a letter from the FBI's Assistant Director of the Security Division, stating the rationale for revocation of Plaintiff's security clearance was Plaintiff's disclosure to Judge Englehardt of the letter. The disclosure raised serious concerns about Plaintiff's ability and willingness to safeguard classified information. As of the filing of this motion, Plaintiff was still suspended without pay pending the result of the FBI's final decision on his security clearance.

         Plaintiff is suing for two related, but distinct, violations of his First Amendment rights. Count One seeks relief for the revocation of Plaintiff's security in clearance in retaliation for sending the letter to Judge Englehardt. Count Two seeks relief for the FBI's refusal to allow Plaintiff to publish his full, unredacted letter to the public.

         Plaintiff filed this complaint along with a jury demand in the Eastern District of Louisiana (Rec. Doc. 1.) Defendants' then filed a Motion to Dismiss in their Official Capacities and Individual Capacities (Rec. Doc. 50-51).[1] Subsequent to the motion to dismiss, the plaintiff filed a First Amended and Supplemental Complaint (Rec. Doc. 53). The Defendants' then filed two new Motions to Dismiss (Rec. Doc. 63-64), again in their Official and Individual Capacities, regarding the Amended and Supplemental Complaint. Plaintiff responded with an opposition memorandum (Rec. Doc. 68), to which the defendants replied (Rec. Doc. 73).


         I. Individual Capacity Defendant's Motion to Dismiss

         Defendants make several arguments in favor their Individual Capacity Motion to Dismiss, but only two need be considered in detail here.

         Defendants assert two theories in support of their 12(b)(6) motion to dismiss. First, Plaintiff's claim against Defendants constitutes a new Bivens claim, and an analysis of the “special factors” elucidated by the Supreme court in Ziglar v. Abbasi, 137 S.Ct. 1843, (2017), should result in this Court refusing to extend Bivens to the present case. (Rec. Doc. 64 at 2). Specifically, Defendants' urge the Court to focus on two factors: 1) the preclusive effect of the Civil Service Reform Act as proof that Congress thought about statutory remedies for federal employees, and specifically chose not to include a remedy for Plaintiff's claim, and 2) the discretion provided to the executive branch on all matters of national security in general, and Bivens claims in particular. (Rec. Doc. 64 at 13-14).

         Plaintiff counters Defendants' first argument by urging this Court to create a new Bivens remedy for Plaintiff's claim. Specifically, Plaintiff argues that the lack of Congressionally created judicial review for the instant claim means it is the Court's role to create one (Rec. Doc. 67 at 6 and 12). Plaintiff further argues that providing Plaintiff with a Bivens remedy does not infringe upon the executive branch's policy making power, because he is not challenging a broad policy decision, but rather the implementation of policy by a select few (Rec. Doc. 11).

         II. Official Capacity Defendant's Motion to Dismiss

         Defendants' Official Capacity Defendant's Motion to Dismiss seeks dismissal of Plaintiff's Count One on both 12(b)(1) grounds and 12(b)(6) grounds, whereas Count Two is only opposed on 12(b)(6) grounds.

         Part I-Subject Matter Jurisdiction for Count One

         Defendants assert that Count One must be dismissed because the Court does not have subject matter jurisdiction (“SMJ”) over Plaintiff's claims for two reasons (Rec. Doc. 63 at 10). First, this Court lacks SMJ over an employment claim by a federal employee because the Civil Services Reform Act sets up a comprehensive scheme for dealing with such claims. Id. Within the Civil Services Reform Act, an employee's right to judicial review is limited to the MSPB, followed by an appeal to the Federal Circuit. There is no place in the CSRA judicial review system for a United States District Court to hear a federal employment dispute. (Rec. Doc. 63 at 11).

         As to Defendants' first argument for lack of SMJ, Plaintiff counters with the overarching principle that every colorable constitutional claim requires some form of judicial review (Rec. Doc 68 at 6). Congress does have the power to take away the power of District Courts to hear constitutional claims, but only if they have channeled that review power to another court (Rec. Doc. 68 at 7). Plaintiff argues that because the MSPB does not have the power to review the merits of a security clearance decision, there is no other available forum for Plaintiff to pursue his constitutional claim (Rec. Doc. 68 at 8).

         Second, Defendants asserts that SMJ does not exist because the granting or revocation of security clearances is a matter exclusively devoted to executive branch discretion. (Rec. Doc. 63 at 14). The President has lawfully delegated this discretion to the FBI, an executive agency, and thus the FBI's decisions regarding security clearances are not subject to any judicial review. Id.

         As to this second argument for lack of SMJ, Plaintiff counters that no court has ever held a pure constitutional claim unreviewable based on a national security decision (Rec. Doc. 68 at 10). Although the Supreme Court has explicitly held the MSPB[2] cannot hear a security clearance case (Rec. Doc. 68 at 9), and the United States Fifth Circuit has explicitly held that a federal district court has no jurisdiction to hear Title VII claims involving security clearance issues (Rec. Doc. 68 at 10), that rationale has never been extended to a pure, non-Title VII, constitutional claim such as the instant claim. Id.

         Part II - Failure to State a Claim Upon Which Relief Can Be Granted, Both Counts

         Defendants assert that Plaintiff has failed to state a claim upon which relief can be granted because Plaintiff's first amendment rights were not violated (Rec. Doc. 16). The government is not guilty of violating a federal employee's free speech rights if the federal employer has an interest in limiting that employee's speech to a greater degree than the general public (Rec. Doc. 63 at 17). This governmental interest is satisfied in a myriad of ways when the employee is privy to confidential information, and the potential speech touches on that confidential information (Rec. Doc 18).

         Defendants also assert that Plaintiff violated his FBI employment contract and various FBI employment regulations by disclosing his letter (Rec. Doc. 63 at 19-20). Defendants seem to be implying that Plaintiff's violation of these employment regulations gives them legitimate interest in ...

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