490 F.Supp.3d 198
D.D.C.2020Background
- Andrew G. McCabe was an FBI career employee and member of the FBI Senior Executive Service who served as Deputy Director (Acting Director after Comey’s firing) and planned to retire in March 2018.
- McCabe’s wife ran for Virginia state senate in 2015 and received a large PAC contribution; the Wall Street Journal reported links between that donation and McCabe, prompting public attacks by then-candidate and later President Trump (tweets and statements questioning McCabe’s loyalty).
- The DOJ OIG and FBI Inspection Division investigated disclosures to the press and concluded McCabe lacked candor on multiple occasions; career official Candice Will recommended dismissal; AG Sessions signed a removal decision late on March 16, 2018 (the night McCabe says he completed service and retired).
- McCabe sued the DOJ and FBI asserting only constitutional claims: (1) First Amendment claims alleging demotion/termination motivated by perceived partisan affiliation and refusal to pledge loyalty; (2) Fifth Amendment due process claims challenging the validity of the removal and the fairness/acceleration of the process and seeking restoration of retirement status/benefits.
- Defendants moved to dismiss in part and for summary judgment in part, arguing CSRA jurisdiction bars suits over personnel claims and that the removal was for legitimate, non-political reasons (lack of candor); defendants also contend McCabe lacked protected property interests.
- The court denied the motion in full at this pre-discovery stage: it found (a) the CSRA did not bar McCabe’s constitutional claims as pled, (b) defendants’ merits-based summary judgment arguments were premature given disputed facts and the need for discovery, and (c) McCabe plausibly alleged property and liberty interests sufficient to proceed on procedural and substantive due process theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CSRA jurisdiction | McCabe asserts only constitutional claims (First and Fifth); CSRA channeling doesn't bar the suit | CSRA precludes judicial review of employment-related statutory/regulatory claims | Court: CSRA does not bar constitutional claims as pled; jurisdiction exists for now |
| First Amendment (political motivation) | McCabe says removal was motivated by perceived partisan affiliation and presidential pressure; OIG findings were pretext | Defendants contend removal was for lack of candor (legitimate, non-political) and move for summary judgment | Court: summary judgment denied as premature; discovery allowed to probe motives and possible presidential influence/cat’s-paw theory |
| Procedural due process (authority, notice, pace) | McCabe alleges removal was ultra vires or a sham/accelerated process denying meaningful opportunity to respond and possibly effected by an recusals/authority problem | Defendants argue McCabe lacked protected property interest or had adequate process/time and AG properly acted | Court: plausible procedural due process claim; factual disputes (timing, access to records, decisionmaker authority/influence) warrant discovery |
| Substantive due process / property interest (retirement vesting) | McCabe contends FBI SES statutes/regulations create for-cause protection and his retirement vested by end of workweek (5pm Mar 16) so denial of benefits was arbitrary | Defendants argue FBI SES/CSRA allow at-will removal of FBI employees and that vesting/time-of-day issues show no protected interest or significance | Court: plaintiff plausibly alleges a protected property interest under §§3151/7543 and disputed facts about when retirement vested; substantive due process claim survives preliminarily |
Key Cases Cited
- Owens v. BNP Paribas, S.A., 897 F.3d 266 (D.C. Cir. 2018) (summary-judgment / pleadings standards applied in agency litigation)
- McCready v. Nicholson, 465 F.3d 1 (D.C. Cir. 2006) (pleading/summary judgment standards)
- Graham v. Ashcroft, 358 F.3d 931 (D.C. Cir. 2004) (CSRA exclusivity principles)
- United States v. Fausto, 484 U.S. 439 (1988) (CSRA provides exclusive review for certain employment claims)
- Filebark v. Dep’t of Transp., 555 F.3d 1009 (D.C. Cir. 2009) (CSRA scope and exceptions)
- Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000) (pretext and need to let plaintiff prove defendant’s reasons were pretextual)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard)
- Convertino v. U.S. Dep’t of Justice, 684 F.3d 93 (D.C. Cir. 2012) (prematurity of summary judgment before discovery)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (plaintiff bears burden to show subject-matter jurisdiction/standing)
- Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020) (interpreting removal-language statutes; ‘‘may’' and exclusivity of listed causes)
- Humphrey’s Executor v. United States, 295 U.S. 602 (1935) (statutory removal-limitation interpretation)
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (due process requires notice and opportunity to respond)
- County of Sacramento v. Lewis, 523 U.S. 833 (1998) (substantive due process protects against egregious official conduct)