United States District Court, E.D. Louisiana
ORDER & REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE.
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
AND PROCEDURAL BACKGROUND
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
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.
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”).
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.
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.
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.
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
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.
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). 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).
Individual Capacity Defendant's Motion to Dismiss
make several arguments in favor their Individual Capacity
Motion to Dismiss, but only two need be considered
in detail here.
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).
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).
Official Capacity Defendant's Motion to Dismiss
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.
I-Subject Matter Jurisdiction for Count One
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).
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).
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.
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
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
II - Failure to State a Claim Upon Which Relief Can Be
Granted, Both Counts
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
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 ...