Charles E. Egger v. Harlan C. Phillips

ESCHBACH, Cirсuit Judge.* Egger’s complaint, filed on August in the United District States Court for the Special this case a former Agent of the Indiana, Southern District of alleges that Federal Bureau of Investigation claims that Phillips recommended the transfer and took certain personnel decisions made his for- other adversely administrative actions af- mer supervisor rights violated his under the fecting Egger’s employment with the FBI First, Fifth, Sixth, and Ninth Amendments Egger’s allegations because of wrongful of of the United States Constitution. The dis- against conduct directed personnel other in granted trict court defendant’s motion for the Indianapolis Styling Phillips’ office. ac- summary judgment on plaintiff’s all of tions as retaliation him for his ef- panel claims. A of this court unanimously expose forts to alleged corruption in the affirmed the district court’s grant of sum- office, Indianapolis Egger contends that mary judgment plaintiff’s Fifth, Sixth, on speech violated his freedom of se- claims, and Ninth major- Amendment but a cured the First Amendment. ity panel of the reversed the grant of sum- mary judgment on the First Amendment Defendant filed a motion to the dismiss claim, observing question the on that complaint pursuant 12(b)(6) to Fed.R.Civ.P. claim was a close one. See F.2d 27, 1978, alia, contending, October inter (7th Cir.1982). 9, 1982, August On de- that the complaint failed to state a cause of fendant-appellee’s petition for rehearing action under Bivens v. Unknown Six suggestion for rehearing en banc was Agents Named of Federal Bureau of granted.' For follow, the reasons which we Narcotics, 403 U.S. now affirm the judgment of the district (1971), L.Ed.2d 619 and its progeny, court granting defendant’s motion for sum- only possible source remedy of federal in mary judgment on plaintiff’s all of claims.1 8, 1979, this case. February On defendant answer, filed his generally denying the ma-

I terial allegations of the complaint and rais- Shortly after he was dismissed from his the defense of immunity. The district employment Special as a Agent of the Fed- court denied defendant’s motion to dismiss eral Bureau of Investigation failing to without on July 1979. On discussion No- report to a duty new station Chicago, 1, 1979, in vember defendant filed a motion Illinois, plaintiff-appellant Egger brought for summary judgment, together with sup- this action for money damages against his porting material, affidavits and pur- other supervisor former at the Indianapolis FBI’s suant to Fed.R.Civ.P. arguing that de- (Indiana) Office, Field defendant-appellee fendant’s actions plaintiff toward were tak- Phillips, who had recommended preserve en to the effective functioning of transfer away from the Indianapolis office. Indianapolis FBI’s Field Office and also * opinion joined Parts III and V of this are (1983). Myers 75 L.Ed.2d 708 judges: Judge four Cummings, Chief provides support and additional for our decision in Pell, Judges Cudahy, and regarding Eschbach. The re- speech this case the free issue. maining judges Bauer, (Judges four of the court Wood, affirmed, Posner, panel discussion, 1. The Coffey) without consider it unneces- sary grant summary judgment district parts court’s resоlve the issues decided in III V, concerning Fifth, plaintiffs favor join of defendant parts and hence do not in those Sixth, opinion, explained and Ninth concurring Amendment claims. 669 F.2d opinion agree Judge at 505. We judges, these claims not Posner. All do with the exception accordingly summarily Judge merit discussion Cudahy, join af- in the other parts opinion. judgment regarding firm Judge the district court’s Cudahy concurs in Hence, opinion, these issues. the result this we sepa- for the shall reasons set forth in his only plaintiff’s opinion. discuss rate First Amendment claim. Moreover, Moreover, hereby panel opin- opinion we vacate the after this was written and Ordinarily, panel opinion upon by court, ion. voted is vacated the United States Supreme rehearing ordered, ap- when en concerning Court’s banc is but it most recent case pears speech rights public free that such an order employees entered at decided. See Connick Myers, ___ U.S. ___, that time in this case. asserting through spring that his actions were taken in of 1978. The court re- good responded faith. Plaintiff to the sum- jected plaintiff’s First Amendment claim of 7,1979 mary judgment motion on December transfer, retaliatory stating plaintiff with a of Genuine Facts” “Statement liberty prop- had failed demonstrate a signed by counsel and memorandum in remaining erty assigned interest opposition, that the crucial issue in arguing Moreover, Indianapolis Field Office. Phillips’ case—defendant state of district court concluded: mind —was not amenable to resolution via Egger’s activities substantially contribut- addition, summary judgment. on Janu- creating ed to havoc in the Indianapolis affidavits, ary plaintiff filed two Field his employer. Office of The Court discussing the first certain personnel regu- judicial takes notice of the fact that FBI, lations of the and the relating second Investigation par- Federal Bureau of is a portion telephone conversation be- amilitary organization wherein security tween Egger information, discipline and teamwork Phillips’ knowledge. recorded without De- are of primary importance. Egger was reply 31, fendant filed a brief on January by disliked and not trusted the majority 1980, together with additional affidavits personnel of the Indianapolis the of- and materials.2 fice. hearing argument After oral on defend- motion, ant’s summary judgment and re- assuming Phillips’ Even efforts ceiving supplemental material, briefs and have transferred were in part mo- a including personally prepared submission tivated by Egger’s attempts to uncover by plaintiff,3 the district court granted the wrongdoing what he considered to be by summary judgment Septem- motion for on agents, other the legitimate substantial 22,1980. ber Based on a close examination for Egger’s supplants any basis transfer large of documentary the amount of evi- element of causation between the as- it,4 dence before the opinion court’s consists wrong sumed motive and the transfer. largely a detailed chronology Dist.Ct.Op. at 48. employment history with the FBI relationship personnel with the of the the appeal, majority panel Indi- On stat- anapolis Field Office from the fall of 1977 incorrectly ed that the district court charac- During ined,” pro- representation 2. the course of the district court R. at that his ceedings, disputes concerning discovery plaintiff “ambiguous” were was linked to an incident magistrate. attorney referred to a The details of these in March 1979 that viewed aas disputes important pur- personal safety. are not here. For our threat to his R. at 323-25 poses, plain- (sealed April plaintiff’s it is sufficient to note that while 1979 affidavit of counsel, deposition subsequently objec- tiffs notice of defendant’s was ini- unsealed without vacated, tially ultimately 1979). the district court tion order entered October The objection taking 6, 1980, argument overruled the to the oral was held on June deposition February scheduled; stayed argued plain- on 1980 and its counsel on behalf of ruling summary tiff, judgment on the motion for from the withdrew case. Plain- then tiff, express purpose per- listening arguments, prepared until March 31 for the after to the a mitting plaintiff deposition page argument raising points thought to reschedule a five he dep- important during defendant. Plaintiff argu- never rescheduled the and not raised the oral document, together osition. ment. This with docu- thereto, ments attached were filed without ob- jection. 5, 1980, day argu- 3. On June before oral ment was scheduled on the motion for summa- ry judgment, Egger interrogatories moved for a continuance of In addition to answers to affidavits, argument parties proffered great in order for him to secure new a deal of longer evidence, documentary including Egger’s per- counsel. was no satisfied with represented files, copies his retained counsel who had him sonnel of letters and telex mes- throughout proceedings below, sages headquarters, the course of between and FBI citing alleging wrongdoing, Eg- a breakdown in communications with memoranda vigorously pur- tape ger’s surreptitious recordings counsel and counsel’s failure to of conversa- case, implying Phillips, sue his that this failure was due tions with miscellaneous other attorney’s fears, imag- “whether real or documents. argues that Appellee at 2004. also S.Ct. controlling First Amendment

terized entertained, actions claim is sum- regarding public employers’ even if a Bivens doctrine in retaliation for employees appropriate, their contend- judgment was mary majority The speech. the exercise of free facts demonstrate undisputed ing that appellant need not show observed to transfer that his recommendation legitimate claim of entitlement to continued arguing and also retaliatory, was not Indianapolis at office employment Fitzger- Harlow v. under the recent сase of that the trans- prevail order to on his claim ald, U.S. in retaliation for his fer was carried out panel’s (1982),decided after the L.Ed.2d 396 rights. 669 exercise of First Amendment case, prevail he should decision in this majority, noting F.2d at 501-02. immunity. ground qualified summary judgment inappropriate is often presented, when are con- questions of intent II

cluded that the evidence before the district issue of material genuine court created judgment un seeking summary A party concerning appellee’s fact the reason for 56 must demonstrate der Fed.R.Civ.P. Egger. recommendation to transfer Id. fact. issue of material genuine absence of Moreover, the could not majority 502-03. Co., Kress g.,E. Adickes v. & S.H. conclude on the record before the district 1609-1610, 159-61, “Egger’s court that criticisms were so abra- (1970). judging whether or L.Ed.2d 142 to be disruptive sive or of office routine as burden, has met this not the movant protection denied First Amendment as a court must view the evidence submitted law,” 503, majority matter of id. at and the light most favorable to the movant in the im- rejected appellee’s qualified defense of Id.; non-moving party. the United States munity analysis based on an of the then 654, 655, Diebold, Inc., 369 82 v. U.S. S.Ct. Economou, controlling authority of Butz v. 993, 994, (1962) curiam). (per 8 L.Ed.2d 176 478, 2894, 438 98 U.S. S.Ct. 57 L.Ed.2d 895 if, If, the movant meets his initial only Economou, (1978), noting that under the burden, opposing the upon it is incumbent good defense of faith immunity raised showing facts party specific “to set forth subjective appel- same issues of intent as genuine there issue for trial. If he that is First lant’s Amendment claim. 669 F.2d at summary judgment, if respond, does not so 504. governing a matter of the appropriate [as Dumbauld, Panelist District Judge Senior law], against him.” Fed.R. shall be entered dissenting the majority’s from reversal of Evans, 692 56(e). Thornton v. Civ.P. See summary judgment on the First Amend- Cir.1982). 1064, (7th & n. 29 F.2d 1074-1076 issue, ment concluded that transfer v. Tire and generally, See Markwell General necessary functioning for the effective Co., (7th Cir.1966); 750 Rubber 367 F.2d Indianapolis of the Field Office and that Inc., Associates, 425 Applegate Top v. F.2d peculiar to “clothe his be- attempt However, (2d Cir.1970). always it is 96 garb havior in the of the First Amendment” prudent respond to a motion for summa rejected. should be at 505. Id. opposing party even if the ry judgment, rehearing banc, appellee On en first res- failed to sus believes that the movant has argument suggested urrects an below but tain his initial burden. passed not on the district court and Moreover, dispute pre- a factual does not presented panel appeal: never unless, course, summary judgment clude employment relationship that between fact is outcome determinative disputed Special the FBI and its Agents counsels law. It is thus axio- governing under the against judicial recognition damage of a in the face of some factual matic that even remedy arising directly under the Constitu- undisputed facts dem- disputes, “where the generally, tion. See Bivens v. Un- Six judg- entitled to party one is Agents known Named onstrate that of the Federal Bu- law, Narcotics, summary judg- supra, reau of 403 a matter U.S. at 91 ment as

297 party entirely ap- equally ment in favor is Constitution viewed propriate,” v. American effective. Optometric Collins Association, (7th 693 F.2d 636 at 639 Cir. 18-19, (citations Id. 100 at 1471 at S.Ct. 1982), just plain genuine as it is if omitted). disputes

factual are resolved in favor particular employed Under analysis non-movant, summary judgment may be Carlson, by the Court neither situation entered in the movant if appropri- favor of can to exist in the case: it be said instant law, Wood, Bishop ate as a v. matter of agents can be maintained FBI hardly n. 2079 & & S.Ct. “enjoy independent such status our con- (1976). generally n. 48 L.Ed.2d 684 See scheme suggest judi- stitutional as to 2) (pt. Practice, Moore’s Federal 156.15[4] cially remedies them against might created (2d 1982) (“the sum- party moving ed. for any “explicit be nor is there inappropriate,” mary judgment clearly has burden of congressional persons declaration in- establishing the of a genuine non-existence jured federal officers’ violations issue of fact that is material to a judgment provision] may constitutional [asserted favor.”) (footnote omitted). money damages recover the agents but must be remitted to remedy, another

Ill equally Congress.” effective in the view outset, At we Id. at reject appellee’s suggestion agents pre that FBI should be comprehensive If Carlson viewed as a private cluded from ac bringing damage which a statement situations in court superiors tions their vio alleged action, should refuse entertain a Bivens arising lation of their rights constitutional analysis then there. our would end Com scope employment. Appellee their pare Sonntag Dooley, F.2d 904 (7th

points special out that there factors However, Cir.1981). general in view of counseling cause recognizing hesitation Carlson, fact language of and the that the directly of action arising under the Consti Supreme has indicated that recently Court tution, Bivens v. Six Unknown Named arguments contentions similar to raised by Agents Narcotics, of the Federal Bureau of “insubstantial,” are not appellee here Har supra, 396, 2004, 403 at 91 at U.S. S.Ct. 800, Fitzgerald, low v. 457 820 n. U.S. argues that Congress’s unwillingness pro 36, 102 2727, 2740 36, n. 73 L.Ed.2d 396 S.Ct. vide agents FBI with civil protec service (1982), explore argu shall appellee’s we factor, tions is such a as is the particular depth. ments in some employment relationship itself. points agents’ first to FBI ex- Appellee Green, 14, 100 Carlson v. 446 U.S. S.Ct. emption e.g., civil service protections, from 1468, (1980), 64 L.Ed.2d 15 stated: Court 536, as a special 28 factor counsel- U.S.C. §

Bivens that the a Bivens ing entertaining established victims a hesitation ac- by agent constitutional a arising employment. violation federal tion On con- right have a recover damages against trary, remedy of an alternative absence the official in despite recogniz- federal court is a factor in considered favor Passman, absence of statute a cоnferring ing such claims. Davis v. 442 Bivens right. may 228, 243-44, 2264, 2276, Such a cause of action be 99 60 U.S. S.Ct. case, however, defeated in particular (1979). Indeed, in L.Ed.2d 846 Justices who two situations. The first is unwilling sweeping when were to embrace the defendants “special language demonstrate factors Carlson view the narrow hold- counseling being hesitation in the and its as progeny absence of Bivens rights affirmative a civil by Congress.” action The limited to situations which remedy. second is no other plaintiff when defendants has effective show Green, 14, 25, 26, Congress 446 100 provided has v. alternative Carlson U.S. 1475, remedy 1468, 64 explicitly (concurring which it to be L.Ed.2d 15 declared S.Ct. JJ.), 30, 31, Stewart, a substitute for under of Powell & recovery directly opinion 298 action. a Bivens C.J., recluding recognition of 1477, (Burger, dis- at 1478 100 S.Ct. by claims that Bivens point argues made this thus

senting). Appellee Justice Harlan shoes, it is of on disposed in Bivens’ be people follows: “For should employees federal v. Un- nothing.” Bivens Six damages or mode of win, lose” you I tails a “heads Bu- of the Federal Agents known Named pro- certain Congress provides if analysis: 410, Narcotics, at 91 supra, 403 U.S. reau of we should employees, federal tections for J., concurring) (quot- (Harlan, at 2011 S.Ct. exclusive, if it does view them as Economou, su- in Butz v. approval ed with infer we should protections, provide those 504-05, 2909- 98 at pra, 438 at S.Ct. U.S. it permitted. Suffice protection that no be said of one 2910). may The same in our place no has say that Catch-22 reject appellees’ position, and we jurisprudence. constitutional primary to transmute attempt factor^ f~Moreover, posits that Bush to the extent Bivens action counseling recognition of a qua employees rights of federal counseling hesitation. into a factor adminis- with the employees are coterminus might regard in this Appellee’s argument by Congress, afforded protections trative ex suggesting that also be viewed as ¡ve Borrell v. United States reject it. See FBI from civil service emption agents Agency, 682 International Communications by a decision protections represents it (D.C.Cir.1982).5 While F.2d 981 a Bivens action Congress preclude declared Congress has to the extent however, exemption, such individuals. The “ unlawful practices employment certain ‘explicit congression cry is a far from the ” provide which are also unconstitutional necessary that would be al declaration’ adequate remedies employees with federal group only from their avenue preclude violations, action should a Bivens for such their vindicating deprivations of particular Tackman, entertained, v. see Gissen not be Passman, rights. constitutional Davis v. curiam) (en (3d Cir.1976) (per 537 F.2d 784 228, 246-47, 2264, 2277 442 99 S.Ct. U.S. GSA, 425 96 banc); cf. U.S. Brown Bivens, (1979) (quoting 60 L.Ed.2d 846 gen- (1976); 402 see 48 L.Ed.2d S.Ct. 2005) supra, U.S. at S.Ct. (3d Harris, F.2d 134 Purtill v. erally, Davis). (emphasis feder- Cir.1981), rights the constitutional Lucas, 598 Appellee’s reliance on Bush v. are not workplace employees al (5th Cir.1979), re F.2d 958 vacated and form the basis рroperly statute protected manded, contrary conclusion of a Bivens action. remand, (1980), L.Ed.2d 268 647 F.2d to a relegate federal civil servants granted, ___ U.S. ___, cert. to their state class status in relation second (1982), 73 L.Ed.2d 1365 demonstrates standard and create a double counterparts, speciousness argument of appellee’s state actors which between federal and from civil service exemption See Butz Court has condemned. Supreme Bivens action. In protections precludes this 500-02, Economou, supra, 438 U.S. at case, v. of that court viewed the existence factor at 2907-2908. protections special civil service as a hand, Borrell, again. is questionable viability, the other on 5. Bush is of at best. The rari once Supreme probation- particularly A Court vacated the Fifth Circuit’s first in this case. salient opinion discharged for ary employee alleged in Bush and remanded case she light v. further consideration of Carlson exposing of law within for violations retaliation Green, supra, analyzed discretely which true, U.S.C. that would violate 5 the office. If questions special counseling hesita- factors specifically prohibits 2302(b)(8)(A), which § remedies, required an tion and alternative employee, probationary reprisals. As a such explicit by Congress preempt declaration however, remedy pro- only plaintiff’s was that remand, remedy Bivens on the basis. latter On limited adminis- under 5 U.S.C. § vided position that the the Fifth Circuit adhered to its right implied found no trative one. The court itself a existence of civil service remedies was special 2302(b)(8)(A), but neverthe- under § of action hesitation, counseling and thus factor the cause of action under less entertained explicit maintained was un- that an declaration theory. Amendment First necessary. Supreme granted certio- Court case, however, appellee penalize tail or to the exercise of an em- In this does that all federal civil servants contend ployee’s constitutionally protected rights, precluded bringing should be from Bivens presume we must that official action was superiors their for on-the- actions and, erroneous, regular if can be best cor- job rights. violations of their civil How- added). ways.”) (emphasis rected in other ever, told, agents, FBI are not be we should decisions, personnel as in other official claims, permitted bring such least matters, official discretion should be limited respect inter-office transfer deci- constraints, and such con- constitutional Webster, Pointing sions. to Bullard v. cannot be un- straints considered to be an (5th Cir.1980), F.2d 1042 which holds that a due burden on our administrators. To the agent transfer of an FBI is not judicially defending against extent Bivens suits purpose assuring reviewable for the officials, is a burden such all that can be factually the transfer decision was substan- said is that the burden can be minimized tiated, importance pro- notes the appellee through appropriate application of the fed- viding flexibility the Bureau with as- eral rules week out unmeritorious claims. certaining manpower its needs. It is own prices The burden that remains is one thing one to hold that the courts do not must when he pay individual becomes a roving second-guess have a authority public constitutionally imposed servant with subjective personnel wisdom of often deci- restraints on his actions.6 It is a price sions; quite it is another to hold that such now must pay. judicial decisions should be free from scruti- context, In this it is paradoxical ap- in the face a claim ny decision- pellee charged contends that FBI officials — maker acted in retaliation for the employ- with the official responsibility vigorously ee’s exercise rights. of his constitutional enforcing the constitutional rights all Wood, 341, 349-50, Bishop 426 U.S. citizens —should themselves be free from 2074, 2079-2080, (1976) 5.Ct. 48 L.Ed.2d 684 defending brought the burden of such suits (“The federal court is not the appropriate by their own subordinates because of the forum in which to review the multitude of special responsibilities. nature of their personnel daily by decisions that are made supervisory employees Other in the federal agencies. public accept We must the harsh burden, service live with this as do the state fact that numerous individual mistakes are counterparts agents, to FBI state and local inevitable in the day-to-day administration police can FBI officials. Other federal of our affairs. The United States Constitu- —so agencies manage personnel carry their tion cannot feasibly require be construed to subject possibility out their mandates judicial federal every review for such error. suits, police In the absence of of such as do state and local public claim that the employer departments.7 motivated a desire to cur- public private determining

6. The distinction between the factors considered whether employers respect becoming in this blurred. such a cause of action be entertained are See, e.g., independent particular Palmateer v. substantive con International Harvester Co., stitutional basis of the claim. While a footnote 85 Ill.2d 52 Ill.Dec. N.E.2d ‍‌‌​‌​‌‌​​‌​‌‌​‌​​​​​‌‌‌‌‌​‌‌​​​‌‌​‌‌​‌‌‌​‌‌‌‌‌‌‌‍(1981) (recognizing particular retaliatory to indicate that Harlow tends a tort of dis provision may charge: public policy grounds, private constitutional be a factor in the based on analysis, Fitzgerald, employer supra, discharging employ Harlow v. liable 457 U.S. at-will reporting at 820 ees for n. 102 S.Ct. at 2740 n. we unlawful conduct of co-work question authorities). believe the Bivens is a discrete one ers to law enforcement question of the merits of the constitu 7. We note that the fact this is a First Thus, Davis, plaintiff if tional claim. in Amendment case is not a factor in the Bivens example, employed by Congress who was a Supreme calculus. While the has Court thus man, brought a First Amendment freedom of expressly approved far Bivens actions based on claim, speech the same factors would deter violations of the Fourth Amendment’s search remedy mine whether a Bivens would lie. It clause, Bivens, supra, and seizure the Fifth very may employee, given well be that such an clause, process Amendment’s due generally Davis v. employment, the nature of the see Passman, supra, Amendment, Eighth 1287, Finkel, 507, and the Branti 445 U.S. 100 S.Ct. Green, supra, Burns, (1980); Carlson v. that Carlson indicates 574 Elrod v. 427 U.S. 63 L.Ed.2d 300

Finally, appellee argues particu- exigencies may that the of the Bureau’s work re- relationship my headquarters may lar contractual between the that be quire; FBI agents special and its is a factor coun- than in jurisdiction fixed in some other resided; seling hesitation in a Bivens recognizing my I that which have heretofore agents expressly agreed action. FBI to be as the headquarters may changed the ser- anywhere transferred needs of may require work of the Bureau and that vice that demand. The short answer to no transfer will be made from one station argument agents express- is that the do not personal another for reasons. ly agree anywhere to be transferred in vio- R. at 388. rights. any lation of their constitutional In After short stints at FBI offices in Ar- event, essence, guise under the of an Wisconsin, Egger requested kansas and a analysis special counseling factors hesita- hardship transfer Field Indianapolis tion, appellee would have this court reach Office, citing age the advanced and illness the merits of this case and hold that of his mother and his wife’s all of parents may employment upon FBI condition Indianapo- whom lived about 55 miles from relinquishment rights. of constitutional We denied, request only lis. The was initially shall address that argument in our discus- to be granted reconsidered and a week later sion of the merits of this case. was early hardship 1973.8 His status proceed We now to the facts of this case. annually thereafter reviewed. We recite the rec facts of the voluminous Egger performed Special duties as great ord detail both because of the Agent in Indianapolis years for several posture us, in which this case reaches see rat- controversy. performance without His Superior Lac Courte Oreilles Band of Lake ings routinely satisfactory were either 341, Chippewa Voight, Indians v. 700 F.2d four-part ranged excellent on a scale which (7th Cir.1983); and because the nature outstanding. In unsatisfactory of Egger’s requires claim in particularly object anonymous 1974 he was the of an searching dividualized and review threat, apparently in death connection record, see, e.g., Quinn, Monsanto v. pending investigations. one of his In 1976 (3d Cir.1982), F.2d 996 n. 10 Tygrett v. reprimanded by he was the Director of the Barry, (D.C.Cir. 627 F.2d 1282-83 reporting alleged FBI for a civil delay 1980); also, see Grausam v. Murphey, violation, earlier in his career rights thоugh (3d Cir.1971), dismissed, F.2d cert. he was commended the Di- individually 405 U.S. L.Ed.2d 257 investiga- rector for his work on another (1972). short, In Egger’s employment history tion. might ordinary. be considered rather IY January 1971 the FBI offered 1977, however, the In the fall of seed position a Special Agent. Egger accept- Eg- controversy planted. the instant ed the offer of employment, executing an ger assigned organized then agreement which specifically provided: squad investigating gam- crime and was

I be sent to any part bling Apparently of the continen- in the area. as a activity tal or territorial United a file part investigation Egger States of this read (1976); bring pressure 49 L.Ed.2d 547 tained he did not outside to bear discharged speech transfer, could be regarding implying on the basis of the court protected employment would be in other situa- representation than We was less accurate. (e.g., tions if she advocated the election of her suspi- can understand the basis of the court’s opponent), boss’s but the case would not be regard, see R. at cions in this but deem the metaphysical pass dismissed for want of a think, question irrelevant event. We do through the courthouse doors. however, surrounding the circumstances hardship Indianapolis initial transfer explanation explain- 8. There is no in the record essentially subjective illustrates nature of ostensibly this sudden and turn- unsolicited such transfer decisions. regard, about. In this court the district thought noteworthy it main- later 23, January specifically dated 1976 writ- stated he did not want his wife memorandum concerning the incident. Indianap- one of his in the interviewed colleagues ten Office, Special Naum. The Agent olis Field call from an Egger phone received a in- on an interview memorandum was based vestigator County in the Marion Indiana one of and con- with Naum’s informants office on December prosecutor’s allegations Indianapolis po- tained that an belief that expressed who his office’s Naum officer, Moistner, one accepted lice Lt. by testifying had violated law federal in Egger May a bribe. knew that Moistner, Egger told behalf of that his Naum had been called as a character wit- Department the office intended to write ness on behalf of Moistner’s defense in a request in Washington Justice creation trial, criminal testifying Moistner’s special investigate of a strike force to local among FBI in reputation agents the Indian- officials, police officers, particularly for Field apolis Office was that an outstand- prosecutor RICO violations.9 The wanted ing police officer. Armed with this infor- according an outside iilvestigation, Eg- to and the January mation memoran- ger, because his office did not trust Special dum, Egger began the forming belief that Agent Egger reported forego- Naum. acted improperly testifying Lowie, Naum in on be- ing conversation who Eg- to asked Moistner, half of and in November 1977 ger prosecutor Egger tell the suspicions his another Special assigned investigate shared with matters and Office, Agent Indianapolis Spe- Washington Field that intervention from was un- Agent Mullen, necessary. relayed cial who indicated to When Egger Egger mes- sage, Spe- prosecutor agreed that he would discuss the matter with withhold if Agent Charge Washington cial in letter to Lowie would per- Lowie. sonally Egger assure him that would con- mid-December, Eg- Naum confronted investigation. prosecu- duct RICO The ger leaking and accused him of information tor also advised Egger United local press prosecutor’s and local of- Attorney Indianapolis States wanted to Egger leaking fice. denied information. speak with him. met on They December also Naum criticized for Egger interviewing and, according Egger, the United particular a regarding individual a pending Attorney favorably disposed States to- investigation, Egger and accused of inter- conducting investigation. ward a RICO viewing person sole purpose for the day, next Naum confronted incriminating Naum “[A]ny- and Moistner. circulating and accused him of rumors that,” one Egger quoted who would do fired, attempt him get about him an as saying, Naum met in the alley “would be charged Egger disseminating cop- with a baseball bat and hit the knee- ies of confidential informant files outside R. at caps.” 130. not take did Naum, the FBI. whom described as it, as a serious threat he ignored and said “very agitated,” R. at then told time that a is. Also sometime in De- meet that Lowie wanted to with him. cember, Egger’s wife an anony- received call, phone threatening mous her and her Lowie, In the meeting with Lowie in- children unless ceased his current just Egger that he had formed conferred investigations. Egger reported this inci- Attorney with the United States who re- squad dent to his but supervisor, Egger did portedly said that she did not want to con- it was significant enough not think to war- investigation duct RICO at that time be- preparing rant she thought County memorandum and later cause Marion discrepancy Responsibility Egger There some state- Office of Professional in- regarding county investiga- ments with whom idea for such dicates that he informed the investigation originated. In his December possible Compare tor of R. RICO violation. regarding 1977 memorandum to Lowie acronym at 307 is an for the & 130. RICO conversation, Egger states that the idea was Corrupt Organiza- Racketeer Influenced and office, prosecutor’s forwarded while Act, tions 18 U.S.C. 1961-68. §§ February prepared 1978 affidavit for the provide to conducting primarily visit was intended OPR

prosecutor’s perhaps office was substantiating his Further, a forum for Lowie him with a vendetta Naum. now ma- sharing and “possible charges against his concern about bad Naum expressed office, Naum, advising suspicions and about others Egger turing blood” between in himself it would be best if he aback to find Egger Egger that he “felt was taken in 170. “Intimi- [Egger] squad transferred accused. R. at the role of the [another] еvents, harmony.” R. R. at preserve order to office turn of by dated” this being Egger answering 308. stated that if he was circumspect Egger was like to wrongdoing accused of he would posed by the OPR prepared questions list of that he could take charges know the so execute a sixteen investigators, but did responded examination. Lowie polygraph concerning his sus- page affidavit for them Egger unnecessary that was and the need for a about Naum and picions squad. remain on his current investigation. RICO January During the first week was Charge Lowie Special Agent County Egger learned from the Marion Indianapolis Field transferred out of prosecutor’s that a letter had been office investigators after the OPR shortly Office Department sent to the FBI and the defendant-appellee Phillips departed and regarding Justice in the of- Washington the office and assumed was transferred to fice’s concerns since Lowie aforementioned Charge on Special Agent post had never contacted that office. personally February Lowie, any other Egger did not advise nor day on the of his Phillips greeted was official, supervisory FBI of this fact. accusing complaint arrival with a written In mid-January news media use of an FBI auto- Egger unauthorized testimony on concerning accounts Naum’s attending previous mobile the week began appearing. behalf of Moistner duty. while on The com- game basketball appeared stories to be on the same based Eg- plaint apparently made one of information which Egger had discovered days, the next few ger’s co-workers. Over January Naum’s 1976 file memorandum Egger of the accusation Phillips informed reported that Naum had failed to ob- Egger identify but would not the accuser. permission prior testifying. tain FBI charges. consulting After orally denied Egger leaking Lowie asked if he was a sworn attorney, Egger give declined to press, information to the an accusation incident, alleged regarding statement denied, Egger again volunteering rather, in an un- but discussed the matter polygraph take a examination. opportunity statement and took this signed In that within the last week early February officials of the to inform Department of Justice and the FBI’s it had come to his attention that Naum Office (OPR) agents fellow and the Indiana Responsibility telling Professional visited been infor- Egger leaking Field Police that Indianapolis Office and inter- State employees press accepting viewed there mation to the bribes regarding now public organized crime. also informed controversy surrounding Naum.10 addition, threatening was also that Naum had been making inquiries OPR ignored suspected (apparently previously into leaks of confidential FBI him files, matters, hit with a baseball among questioned being other comment about bat) that he and that he had learned from a clerical about this. believed OPR, Speсial Agent person employee was the first interviewed in the office that friendly McElhaney and was com- cautioned her not to be surprised that interview something legal rights. menced with a and indicated that recitation of if agents and other Initially “impression” happen under the could office, County prosecutor’s prompted 10. The from the Marion record does not reveal what Naum, publicity concerning investigation, though plausi- the adverse OPR it seems response ble that it the letter both. was initiated in lips inquiries regarding Egger’s made they Indianapolis.11 Egger remained some knowledge common allegations, days stated that “It is and several later forward- agents have been instructed to have noth- Egger’s ed memorandum and the results of concluded, me,” ing to do and “I view with to FBI investigation headquarters. his harrass, whole as an to attempt the incident 1978, Egger Phillips On March sent a R. at intimidate and embarrass me.” 191. suggesting Indianapolis memorandum Phillips Egger apparently concluded suspected of police accepting officers Naum had used the FBI vehicle and improperly gam- in bribes from local criminals involved this inci- game attended the basketball but bling. Phillips Special Agent and Assistant dent was not made recommended basis Charge investigated in latest ac- Wells this Phillips any disciplinary action at that cusation but obtained no information to Rather, Phillips the infor- time. forwarded later, verify the charge. days Phillips Two mation, including Egger’s handwritten again once forwarded Egger’s memoran- statement, to OPR. headquarters. time, to FBI dum This how- ever, he a attached course of recommended Egger A few days Phillips after and had charges action to deal with the series of and the car involving discussed the incident and countercharges Egger between and Naum game, Egger Phillips basketball a handed with which he had been in confronted 21, 1978, in February memorandum dated three weeks he had since assumed command amplified charges which he about Naum Indianapolis Field Office. his which MeElhaney and he had earlier made March 1978 memorandum to FBI head- In it he handwritten statement.12 quarters, stated: Phillips “outright spreading accused Naum of lies” him, by saying: about and concluded “I my my on observations since ar- [BJased ..., is respectfully request Indianapolis this situation rival in is it obvious such these gravity [acronym ‘rumors’ should be that both Special Agent] SA Egger dealt with employees and the of this office Naum and SA have lost their ef- (Febru- should be so Agents informed.” R. at in field fectiveness as this divi- ary Egger 1978 Memorandum sion. personally from to I am that many aware Egger’s Phillips unpaged Agents contained additional refuse squad to by plaintiff submission filed March work with feel they him because he is 1980). Egger gave When unpredictable the memorandum and untrustworthy, Phillips, Phillips to the Bu- possibly disclosing commented that sensitive informa- took reau a dim view of complaints and tion from our files outside sources.... Egger’s sometimes transferred all Phil- credibility reliability involved.13 and are seri- Egger apparently agent (Hay) 11. investiga- recalls told another that he while the OPR February conclusory becoming terms that Naum pending tion was to avoid involved telephone made threats. In March “gossip.” with atR. Egger Phillips, conversation between and Special Agent It is unclear what connection Egger recorded, secretly tape Egger told Hay charges countercharges had with the and Phillips about the baseball bat Naum remark February 21, Egger between and Naum. In his had made. From the context of that conversa- memorandum, Egger claimed that tion, appears it first was the time employee clerical was told not to talk with particular informed re- Later, Hay. either added or an- mark made Naum. agent (Rissen) other to the list of individuals to MeElhaney give whom directed the clerk employee conclusory 12. The clerical executed treatment,” again “silent R. at but MeElhaney affidavit in which she stated that underlying controversy connection “threat[enedj” anyone never nor else unclear. presence. MeElhaney, her R. at 502. in a penalty perjury, declaration under see infra reports 13. One of attributes this state- telling employee at n. denied the clerical Phillips, ment to R. at assume for we Egger, saying disassociate herself denied purposes opinion of this that such statement something happen Egger, would and stated made, court, R. as did district at 594- merely that he said that he be “sur- 12-13). (Dist.Ct.Op. prised” Naum, anyone spoke Egger, if his distrust of of the matter because of

ously questioned among personnel Indianapolis office. agents in the this office. certain called the morning, Egger the next Early office and night Indianapolis clerk at the There mind that the question my is no leave. Word to be on annual placed asked Eg- presence continued of SAS Naum was all over the shooting incident ger only in this serve as a office will office, it to yet reported but had not dissention, catalyst, cause further bicker- house, Phillips. Rissen had visited ing, allegations general confusion. Phillips with some informa- provided incident, Phillips and told tion about police to have local Egger’s about desire I recommend that both Naum SAS than the FBI. Egger handle the matter rather Indianapolis. be transferred from Egger that Egger’s squad supervisor called I in the best believe this action to be obtained additional morning as well and interests of each of them as well as the details. Indianapolis the Bureau as a Office and whole. I recommend that this action be for fail- Phillips Egger was irritated with handled expeditiously. inci- personally to inform him about the 14-15) (quoting R. at at (Dist.Ct.Op. 596-97 dent, exacerbated an irritation which was A, I, 3,1978 In Camera Pt. memo Exh. Mar. call from a Phillips phone when received a 3.)

at concerning the when Phil- reporter episode only had second-hаnd information lips following days early March in Wash- Phillips about it. called OPR 1978, Egger gambling continued his investi- ington reported what he gation considered and obtained additional information Later, Egger’s dereliction of he damaging duty. which he viewed as to Naum. be writing report began While these latest find- at home. Egger Phillips on called ings Indianapolis early at the office in the just that he had saying conversation evening Egger phone of March received a reporter received a call from a about the daughter call from his at home. was She alleged shooting and remarked that it was hysterical, Egger and told that a gunshot an incident embarrassing to learn of such had been fired through a window press. Egger defensively from the reacted Egger agent house. turned to another salutation, interpret- Phillips’ critical present in the office and said that someone it as an that he had contacted ed accusation just had shot at his home. As Naum’s Moreover, the media about the incident. threatening Egger’s words echoed in memo- Egger squad supervi- since had talked to his the other ry,14 agent suggested that he in- felt shooting, Egger Phillips’ sor about the form Special Agent Charge unjustified in event. The criticism was apparent shooting. Egger responded: Egger two indicated a desire to argued; Bureau, “Fuck the they’re at the bottom of resign; finally the conversation ended anyway,” and stated that he going hung abruptly up Phillips. when to make someone very sorry for the inci- home Phillips immediately phoned Egger’s dent. again, but had instructed his son to he unavailable. say answer and

After Egger evening, arrived home that Washington, called Phillips again he OPR spoke Special Agent (one Rissen advising going Egger’s them that he was colleagues organized on the crime squad) Egger might resign, home and that but phone on the and told him that he reported changed his mind about police. apparently the incident to local Moreover, stay going day. he insisted that the FBI out to see Naum, sumably Egger’s many introspective though perhaps McElhaney, 14. In one of re- call, ports, receiving upon he disclosed that came to R. at 113. mind. office, pre- employee a threat from an morning, days next two after the broken window. There was a hole with incident, shooting Egger again called the radiating fracture lines in an outer storm night Indianapolis clerk office and window, but the inner window was not bro- asked placed to be on annual leave for the Phillips expressed ken. his belief that second time. learned of this and damage had been caused a rock or BB Egger’s improper considered action since gun. Egger had not obtained authorization for The next March day, Phillips contact- annual leave squad supervisor. from his ed several former colleagues Egger, in- Phillips obtained authorization from head- cluding one of supervisors former quarters place Egger on administrative during less turbulent times for Egger, and suspension leave or response based on his inquired about stability. emotional shooting incident. Phillips called supervisor, The former given Eg- who had and instructed him to come into the office ger performance ratings, favorable was less matter; to discuss the Egger agreed to enthusiastic about hindsight, call- come, noting that he would be accompanied ing him strange, dependable and imma- by his attorney. ture. Phillips suggested psychiatric ex- Egger arrived for the meeting with Phil- Egger might warranted, amination of lips (the and Special Wells Assistant Agent and another supervisor agreed, former indi- Charge, as previously noted) without a cating his belief that Egger had become lawyer. meeting The was acrimonious: paranoid regarding other agents. Phillips Phillips asked if Egger still intended to then sent a priority teletype message to resign; Egger by reacted stating he would FBI headquarters describing the situation not submit to interrogation and that he had and requesting authorization for an imme- decided, yet having yet to consult his evaluation, diate duty fitness for including attorney; Phillips criticized Egger for his a psychiatric examination. Headquarters incident; handling of the shooting Egger granted request. his co-workers, made accusations saying about Egger permitted was to submit a list of half the office thought it was humorous three psychiatrists from which one would be that a shot had been fired at his home. selected to conduct the examination. On Phillips Egger advised- that administrative March 15 Egger, who was still on might action him be instituted if he leave,” “administrative telephoned Phillips cooperate; refused to Egger expressed dis- pleasure give to him the ap- that OPR list and schedule an had done nothing, that pointment. he was tired of The (tape the abuse conversations record- he had been receiving, that ings part record, he did not want of which are the Indian- courte- apolis office to contact family sy his about who Egger, recorded them without shooting, and perhaps that subdued, entire situa- Phillips’ knowledge) were but not tion might be better resolved in a federal Egger hostile. was conciliatory, at times court. Egger refused to discuss his re- apologetic, lamenting that “unfortunately, sponse to the shooting incident. off, to, know, I’ve gotten you a horrendous ...,” you start with assuring Phillips Phillips suspended Egger spot, on the but you “I know were posi- thrust into a changed later designation to adminis- ah, tion that your making....” is not of trative leave. accompanied Egger He home conversation, In the first Egger said that he to confiscate Egger’s property. FBI Egger going Director, was to send a letter to the was unable to locate property certain which directly Phillips if prefer not to be- charged him, out to but did turn over come Egger recapitulated involved. his government his issued revolver and a walk- testifying ie-talkie concerns about Naum for Moist- that had been unaccounted for ner, previous name, since the without year, mentioning Naum his spite repeated office requesting investigation, announcements concerns about the OPR his its return says being he was unaware. concerns about unjustly accused of While Egger’s home, information, Phillips leaking examined vague made refer- shooting incident and against him of the to numerous threats discussion

enees received, re- insisting Phillips that he was emphatically while threats he had imply, by any “not stretch trying sponded: shot imagination, agent an FBI you ... if feel some- suggest I would pa- listened through my window.” ... better not hold thing’s pertinent, you rambling somewhat sto- tiently make sure back, it all out ... lay better ry,15 repeatedly but asked whether half-truth, something gossip its not or any had new information had not been documented, or at least that could be provided did level one new OPR. anything, ... don’t withhold pursued Naum, charge against mentioning without be in a I don’t wanna later on cause addition, him name. confided: of, know, saying that Mr. position you is that I’m “My greatest gonna get fear Wells, anybody, Mr. or Phillips or into a corner where I don’t backed have some- you suspect had a indication go choice but outside the Bureau get ... I’d it body threatening you ” ,... summarized position by there and we’ll shoo it in .... right out telling Egger: announced to the On March Naum got responsibility I’ve to the office .... Buf- being office that he was transferred to you’ve got complaint you If and ... York, falo, a transfer which New problem think there’s a in the office and addressed, it in the office knew satisfactorily everyone hasn’t been maintains that know, I you anything couldn’t do but long day Naum had wanted. same encourage you bring ... let’s it to the Department the Justice Egger telephoned attention of the Bureau. If it needs to be Washington. Inquiring about the OPR addressed, we I need do it .... investigation, he was told status of the OPR try wouldn’t for a minute to discourage FBI matter and that there it was an you submitting it. report headquarters. was a at FBI conversation, During Egger the second leave, FBI Egger When on listened to was more specific charges, specifically in his on a scanner and radio transmissions radio referring back to February his 21 memoran- by heard a communication Naum which in- dum Phillips to in which he discussed the that Naum had been ex- Egger dicated to alleged threat by McElhaney, and re- amining Egger’s ap- informant files. Also sponse to request by Phillips provide to leave, parently Egger again when on talked threats, him particulars with the of other he Robertson, County to the Marion Prosecu- Phillips told about Naum’s December state- investigator, Egger tor’s office who told ment about being alley, met a dark not- newspaper reporter that a had told Robert- ing that previously statement was re- leaking son that Naum was information to Nevertheless, ported to OPR. Egger stated press. Egger Robertson also told that he could not McElhaney believe that Police detective had told Indiana State anyone nor in the office could have had that Naum had vouched for the Robertson anything shooting to do with the incident. of one of the detective’s infor- reliability Moreover, Egger “passions stated that were Moistner case. Robertson told mants in the boiling point inflamed ... ...” provided all Egger previously that he had the office in recent months. Phillips re- investigators, of this information to OPR peatedly encouraged Egger express to his and noted that the detective had never been report concerns in the to the Director which by interviewed the OPR team. Egger going said he was to prepare, but 18, Egger On March was examined emphasized the importance dealing of not suggested. he psychiatrists one of the gossip. Egger expressed rumor and un- time, certainty including report By Egger longer about in the was no on ad- Egger regard, In this it should be noted this conversation. was ill with some sort of a virus at the time afternoon leave, Egger, leave. action who but was on sick SA ministrative [that] from the him with various memoran- receiving report Before a final ... furnished submission). to re- Phil- Phillips Egger (unpaged allowed R. at 545 psychiatrist, da.” 22, upon being ad- duty headquarters turn to on March the contents of those lips told from his Egger memoranda, Egger vised that had recovered had im- and said illness. he had might report he release a plied that but refused to fur- prepared press, to he day Egger duty, returned to On OPR, headquarters, Depart- or the nish it to investigative report Naum learned of an Lastly, Phillips said that ment of Justice. Egger had filed on March 10. believed respond to an “ad- he had asked filing report Naum was derelict for not this citing Egger for fail- write-up” ministrative Eg- information with sharing sooner or shooting, failing charge report before, thinking that the infor- ger months walkie-talkie, and other matters. out the his in- gambling mation would have aided headquarters of Phillips was told to advise believing that de- vestigation Naum’s report and psychiatric the outcome of the endangered Egger’s life. lay actually alleged administra- Egger’s response to the work, returned to he was When improprieties. tive investigation had gambling told that his psychiatrist with the Phillips met agent. to another reassigned been Over advised that day, next and was Egger submitted several days, next several duty. Phillips reported fit for mentally Phillips: accusing Naum memoranda priority teletype, in a headquarters leaks based on Robertson’s state- press (1) Egger contin- reported: which he also ments; might be stating gambler a certain similar to incident; allegations previous to make ued shooting and reit- involved ones; (2) Egger against said he had decided allegations certain other about erating containing to the Director sending a letter this time during period, Naum. Also (3) allegations; pre- additional squad supervisor, expressing met with his response to the administrative gambling paring taken off the displeasure being report (4) Egger insisted that investigation stating write-up; he had a regarding sending directly to the Di- numerous individuals which he was interview Naum; (5) if the re- it would not reach him (fearing charges rector channels). Egger (conducted by also made test through sent sults of the ballistics squad fragment and his found in police) statements to both on a lead state being apparent fear of after the supervisor implying that his window frame might be- go Phillips forced to outside the Bureau concluded: shooting. reality.

come a same continue or threats of Allegations and contro- at a level in this office peak 23, Phillips On March met with Robert- re strong feelings exist SA versy and son, sharing with Robertson his belief situation. Matter Egger and Naum SA running dispute be- merely there was organized on the disruptive particularly solu- Egger tween and Naum and that his gen- to the entire office squad crime and might agents. be to transfer both tion erally. Phillips telephoned FBI head- day, same over controversy spilled has This whole inquired and about the status quarters is well known to the Bureau and against Eg- action outside pending administrative in the area. and federal officials being abey- local ger and was told it was held and Egger of both re- The effectiveness receipt psychiatric of the pending ance substantially diminished has been day. the next Naum expected which was port, I alternative as only the was at in this area and that he Phillips headquarters told of them as soon is to transfer both by the latest see it and disturbed very “wits end noting reprimand, that it of the expressed a su- made a record concerns to 16. Rissen similar report per- Phillips in Naum’s into account pervisor day be taken was filed. rating. delay orally and formance for the admonished Naum Egger that his con- Phillips related. told possible. This is essential in order orderly again return to an efficient and permit guide, us to had to be his science recommend this ac- operation. Strongly circulating ru- inadvisability of stressed the and his expedited. Egger tion be Since mors, Eg- of the Bureau. especially outside family continue to be concerned about Phillips keep told him ger recalls them, a trans- imagined real or threats to Bureau. In a within the Bureau secrets probably fer for them would also elimi- file, stated that he Phillips memorandum particular problem. nate this Egger and others about had cautioned submission). (unpaged R. at 545 spreading rumors. week, inter- During following Phillips Egger transferred off April Phillips On Egger viewed the individuals whom squad. days crime Two organized incriminating information indicated had later, Phillips discussed this de- Egger and Naum, Phillips and either or Wells about telephone in a conversation velopment McElhaney interviewed and the clerk about again secretly tape-recorded. Egger which addition, McElhaney’s alleged threat. In that he had heard of Egger Phillips told Egger Phillips exchanged and memoranda transfer, responded yes, Phillips laundry list of administra- concerning fugitive being was transferred (including charge tive infractions of at- harkening Egger, while.” squad “for a tending game) the basketball with between the back to an earlier conversation 30, Phillips charged. On March two, him that Phillips had told noted write-up sent to head- the administrative organized squad crime did people on quarters, along Egger’s responses with Egger, and won- not want to work accompanying other material. In an memo- problem whether the same existed dered randum, his in- Phillips said that based on fugitive squad. Phillips answered: quiries, Egger tendency had “a to misinter- it, “Well, I, just we resolve we’ll I think can to reach pret data available to him and know, ah, get fugitive on a you you have to inaccurate conclusions sometimes based on got to have something you case or (unpaged insufficient evidence.” R. at 545 assistance, ah, something. we’ll work out submission). also criticized Ah, ah, that out ... We’ll work we’ll work working exclusively for a propensity something.” out authorities, with local and concluded: There is no what his effi- question but headquar- advised April On are at ciency credibility office 90-day ters that would receive level, extremely way low and I see no unsatisfactory performance. warning Agent that he could as an in this continue however, leave, was on Because very presence disrup- office. His here is rating was not sent to special performance tive to have an adverse and continues Egger’s squad l.17 headquarters May until orderly opera- effect on the efficient and Harman, responsible for supervisor, tion of this office. performance rating. late preparing

March, rating initially he recommended I recommend this individual be trans- excellent, suppos- that he was not believing on immediately, placed probation ferred Egger’s account activities ed to take into suspended. and subject personnel of pending that were the Harman Egger. Phillips told against action 31, Egger Phillips’ On March solicited ad- be taken into account such activities should police vice about what to tell the local about not deserve a rat- shooting Egger that the was work- and said that did possibility Moreover, report. Egger were or sick leave for then failed to there 17. was on either annual early classify April; disagreements concerning much of his brother had died to whether Phillips pleased not with the fact days month. was annual certain of leave as sick leave or period Egger indicated that several times leave. given day report on a he could to work changed being Harman the rat- media attention ing of excellent. focused on situa- unsatisfactory. Egger again to tion. volunteered to take a polygraph prove leaking to he was not in- 25, met with a April Egger’s attorney On press. to the formation Department Washington, official in Justice lengthy report 17, and dеlivered to him a D.C. sent a May Phillips On memorandum containing various alle- prepared by Egger stated, which headquarters to reference personnel. FBI In addition gations articles, that if one newspaper com- accusations, reiterating previously to made pared the articles with April information Egger reported additional report, easily Egger one could conclude that sinister, e.g., he considered directly indirectly responsible is either agent (later Naum another identified information to the providing for media. Mullen) inspecting Egger’s had been in- sent a letter to day, Egger same head- files; delay preparing formant Naum’s requesting reconsideration of his quarters the March 10 report; and other matters. hardship transfer due to his status in Indi- anapolis. Meanwhile, at FBI headquarters, Phillips’ concerning Egger

recommendations were leave, day, though Eg- The next on sick being processed through bureaucracy. ger Phillips’ went to voluntarily office to April headquarters On official recom- newspaper signed discuss the articles and his be cen- superior Egger mended to rights learning waiver of form. After sured, placed probation, suspended on Egger medication, Phillips was on decided days unprofessional for five because his interrogate Egger to regarding shooting reaction to the incident. That rec- matter at that time. ultimately implemented ommendation was May apparent response Eg- On later, days 1. May headquar- on Several ger’s request to reconsider the transfer de- Phillips’ ters official recommended that re- cision, Phillips again informed headquarters quest Egger granted. to transfer Ini- Egger of his belief that could not function tially, headquarters planned Eg- to transfer Office, effectively Indianapolis in the Field ger to the FBI office most in need of noting personnel that most in the office agents, by April but it was instead rec- Egger responsible giving believed Egger ommended that be transferred to Egger and thus press information to Chicago, May approval Illinois. On final controversy” would be a “constant source of obtained, having for the transfer been Eg- office, Egger in the even if were not in fact ger being was told he was transferred to leaks. responsible for Chicago, following day, Egger Illinois. The attorney sent a letter May On given 90-day warning, rating explaining Andrew Jacobs Congressman which had performance unsatisfactory, period, in this Egger’s plight. Sometime approved by headquarters. since been On contacted. Bayh Birch was also Senator May page story Indianap- a front to work and May Egger On returned that, reported according olis Star to in- to meet with Phillips’ was called into office sources, Egger target formed become a Phillips Special and the new Assistant seeking expose of abuse and threats for attempts to in- Agent Charge.18 Their corruption. appeаred stories Similar leaks were terrogate Egger press about following days. May the United On respond spe- fruitless: refused to Attorney gave Phillips a copy States attorney present. without his questions cific Washington April report delivered if he refused to told day, Phillips The same conversed insubordinate cooperate, he could be found telephone, Egger again secretly on the still refused to re- and dismissed. told taped the conversation. Egger Phillips asked whether spond, calls from co-workers so that he had received of immu- cooperate with him about the would under assurances displeasure expressing April. Wells had retired nity prosecution. Egger him, and, remained “for the completeness,” sake of R. steadfast in his refusal to discuss the mat- 112, reported a comment made to him by ter Phillips with without his attorney being Special Agent Egger Guio which thought present. might be subtle threat. The next day, Phillips reported to head- June apparently On while the Assistant quarters Egger that vigorously denied leak- Director was Indianapolis, Phillips still in ing press information to the and that he prepared recommending a memorandum polygraph volunteered to take a to exoner- Egger’s immediate Indicating dismissal. ate himself. Phillips indicated that it was only that a transfer would be a temporary possible that responsible was not solution, Phillips Eg- stated that he found the leaks and listed other possible sources of ger “insubordinate, arrogant, to be uncoop- the news stories. later, Several days in a erative, devious, untruthful, unpredictable, OPR, memorandum to Phillips said there eccentric, unreliable,” and disliked and dis- strong was a possibility that the Marion trusted by most of his fellow workers. R. County prosecutor’s office could be furnish- submission). at 545 (unpaged respect With press with information about the to Egger’s accusations his co-work- controversy. ers, Phillips noted that had OPR examined Meanwhile, Egger’s request for reconsid- the charges and said his own inquiries ei- eration of his transfer was being processed ther failed to confirm the accusations or in Washington. responsible official proved groundless. them Phillips conclud- recommended denied, that the request be “However, ed: certainly I welcome OPR’s stating family situation did again examining matters, in detail these (nor then 1973) did it in warrant a notwithstanding the fact that the investiga- hardship assignment to Indianapolis. On reporters tive at the ‘Indianapolis Star’ June Egger was informed that his re- very publish well inquir- fact that such quest had been denied. imply ies Egger’s complaints SA have On June the Assistant Director of the validity. Nevertheless, accept possible I FBI Phillips advised that he Id. inquiries.” need for additional would arriving the next day to investi- While the Assistant Director inwas Indi- gate Egger’s complaints. investiga- This anapolis, Egger requested provide to tion apparently consequence occurred as a additional on his hardship informatiоn situ- of letters from Congressman Jacobs and ation, including the distances between Chi- Senator Bayh to FBI Director Webster. Cincinnati, cago, cities, and other and Indi- The Assistant Director came to Indianap- anapolis. Egger information, provided olis with a team of investigators, inter- and in response to June 21 letter viewed and his attorney, and other stating family situation precluded personnel in Office, the Indianapolis Field him from to reporting Chicago, the Director including those whom Egger requested that of the FBI instructed to Phillips tell the team interview. During period, this ordered, if he reported Chicago as report, submitted a new attaching an the Director give serious considera- additional ninety-five pages of exhibits. tion to transferring him to Cincinnati in- report, latest in addition to reiterating stead, closer Indianapolis. Egger reject- charges against Naum and McElhaney pre- alternative, ed that report refused to viously brought to the attention of Chicago on June and was dismissed from through him to FBI headquarters, Eg- Egger appealed the FBI. his dismissal ger accused Mullen complicity the Director. In his July 1978 letter Naum in examining Egger’s informant denying appeal, files, Director stated that charged that Wells intimidated solely dismissal was based on Egger’s into silence the clerk whom McElhaney had report Chicago failure to allegedly give Egger told to as ordered and silent treat- ment, implied prejudiced stated that the transfer decision was based against Egger and had been dishonest with on his solely loss of effectiveness in the

311 Indianapolis office and the needs of the Egger does not dispute agents that many in Bureau. the office did not trust him and did not. want to work with him. Nor Egger does retrospect, Phillips states in his decla- submit any affidavits which challenge the penalty ration under of perjury19 conclusion that he had lost his effectiveness sole taking motivation in actions regarding in the Indianapolis office.20 operation was to ensure the effective of the Indianapolis Field Office and that Y the transfer of Egger necessary be- The Waiver Theory and other cause Egger had lost his effectiveness Herrings Red that office. agents Other in the office at- test to the disruptive Egger’s effect of pres- Appellee’s attempt to revitalize the ence in the office as well. waiver theory employees’ of constitutional 19. point. declaration was not sworn to before an circumstances, raised the Under similar officer authorized to administer oaths and merely problem the Ninth Circuit noted the but hence, by definition, affidavit, was not an it, pass Arney States, did not on v. United 479 the fact the declarant recited 653, (9th Cir.1973). Second, F.2d 4 658-59 n. penalty perjury statements were made under of penalty we observe that declarations under of does not transform an unsworn statement into perjury apparently permitted are under Indiana affidavit, Stаtes, an 930, Robbins v. United 345 F.2d practice, 11(B) (C), see Ind.Tr.R. & and that (9th also, Cir.1965); 932 490, see Local Union plaintiff represented below Indiana Rubber, Cork, No. United Linoleum & counsel, presumably who is accustomed to that Plastic Workers of America v. Kirkhill Rubber Third, practice. pass while we do not on the Co., 956, Cir.1966) (9th (dictum) 367 F.2d 958 question of whether failure to move to strike (declaration penalty perjury under “inade prevent raising such a declaration would quate” 56(e)). under Rule While unsworn appeal, issue on at least in the circumstances of may ruling statements not be considered on case, principle the waiver counsels summary judgment, Adickes v. S.H. Kress & ignoring Lastly, the declaration. we note that Co., 144, 17, 1598, 398 U.S. 158n. 1608 plaintiff’s defendant’s sworn answers to inter-! (1970); n. 26 L.Ed.2d 142 Gordon v. Wat rogatories duplicative many are of the state son, (5th Cir.1980), plaintiff 622 F.2d ments made in the declaration. objected neither moved to strike nor otherwise to the district court’s reliance on the declara does make a feeble effort to cast tion, plaintiff pro nor did raise issue in his point. Egger points April doubt on this appeal, plaintiff se briefs on nor did counsel for telephone concerning conversation his transfer question during rehearing. raise the the en banc squad. supra to another That See at 308-309. affidavit, e.g., Formal defects in an statements conversation, however, merely reinforced the personal knowledge, not based on are waived if having problems fact indeed was objected Klingman to in the district court. utility with his co-workers and that his in the Co., Indemnity v. National 317 F.2d Indianapolis office was diminished. (7th 1963); Cir. Scharf v. United States Attor say agents squad did not that the on the other ney General, (9th 597 F.2d Cir. prospect working found the satis- Dibbie, 1979); United States v. 429 F.2d factory, they but rather said would work out (9th 1970) (concurring opinion) (citing Cir. something. Moreover, light Phillips’ authority additional for “well settled rule that pending requests to transfer out of the compliance 56(e) not in affidavits with Rule office, Phillips’ merely we think that statement be considered the trial court attempt reflected an to arrive aat short-term objection by counsel.”); absence of an Associ problem, trying keep solution to Cook, matters (10th ated Press v. 513 F.2d 1975). Indianap- under control Evangelical until the transfer out of Cir. But see Williams v. Homes, Lastly, Egger’s olis was (8th finalized. own Retirement con- 594 F.2d 703-04 1979) temporaneous (per curiam) (dictum) provide eloquent (implying pos statements Cir. commentary office, sponte duty manifest). sible sua However, if defect his status in the and the certainly disruption generally. a district court has discre the office Passions in disregard compliance boiling point; Egger tion to affidavits not the office were at the 56(e) objec thought shooting with Rule even in the absence of half the office found the inci- City Savings humorous; people giving Egger tion. Federal & Loan Association dent were Bank, treatment”; Lastly, v. Federal Home Loan 600 F.2d “silent squаd supervisor etc. we do not view (7th 1979). questiona 687-88 Cir. It is at least Harmon’s initial evaluation of principle quality casting ble whether the waiver enunciated in work as doubt on situation, foregoing applies cases in this loss of effectiveness in the office. We said, quality Egger’s since as we have the declaration was not think the individual work is a reasons, question utility an affidavit. For several we believe in discrete from his to the office. inap agrees conception the circumstances of this case it would be Harmon now that his initial disregard proper rating Egger’s dec propriate for this court to factors relevant to First, course, plaintiff performance has never narrow. was too laration.

312 1208, (7th Cir.1980). Under this 1214-15

rights provides particularly in this case observed, the fact panel as the analysis principle, for our apt starting point to have had no entitlement Egger may Holmes’ articulation of this that merits. Justice is ir- analogous assignment Indianapolis in a case theory was made continued one, First Amend- and endured for over half a his substantive instant relevant to of Educa- century: E.g. McGill v. Board ment claim. Thus, (7th Cir.1979).22 tion, F.2d 774 602 petitioner may The have a constitutional sig- unwarranted the district court accorded right politics, to talk but he has no consti- agreed had to the fact that There nificance right policeman. tutional to be a the needs of the anywhere in which to be transferred employments are few for hire might demand. agree suspend the servant does not his service as well right speech, constitutional of free in character court also erred The district idleness, of his implied as of terms organiza izing para-military the FBI as a complain, contract. The servant cannot suggesting Egger’s thereby tion if it was terms employment as he takes the on the subject could be rights constitutional which are offered him. envi appropriate military in a constraints Bedford, 155 Mayor McAuliffe v. New Glines, Brown v. generally ronment. See 216, 220, 517, (1892). Mass. 29 N.E. 517-18 348, 594, 540 62 L.Ed.2d 444 100 S.Ct. U.S. theory public employment may be (1980) special military status of (analyzing consti- relinquishment conditioned on the have rights). We personnel’s constitutional rights tutional has been abandoned and it analogize rejected invitations to repeatedly the First many years has been clear for agencies law enforcement state and local speech Amendment’s freedom of clause con- analyzing military purposes forces for public employers personnel strains in their liberties, Hanneman v. police officers’ See, e.g., Keyishian decisions. v. Board 750, Cir.1976); Breier, (7th 754 528 F.2d 589, 675, Regents, 385 87 17 U.S. S.Ct. 1185, (7th Breier, F.2d 1192 Bence v. 501 (1967); Garrity Jersey, L.Ed.2d 629 v. New 1121, denied, 95 Cir.1974), cert. 419 U.S. 493, 616, 385 87 17 L.Ed.2d 562 U.S. S.Ct. 804, Muller v. (1975); 42 L.Ed.2d 821 S.Ct. Thus, (1967).21 on the appellee’s reliance (7th Cir.1970); Conlisk, 429 904 F.2d theory waiver must fail. accord, Thomas, e.g., Barrett v. 649 F.2d Moreover, (5th Cir.1981); a civil and we believe it is clear that 1193 inappropriate is in the case of legitimate analogy servant need not establish a short, agents, FBI like FBI ‍‌‌​‌​‌‌​​‌​‌‌​‌​​​​​‌‌‌‌‌​‌‌​​​‌‌​‌‌​‌‌‌​‌‌‌‌‌‌‌‍as well. employ claim of entitlement to continued ..., to a abridge “policemen relegated are not ment in order to state claim of watered-down version of constitutional speech by public ment of his freedom of his Sindermann, 385 rights.” Garrity Jersey, v. New U.S. employer. Perry v. 408 U.S. 493, 500, 616, 620, 593, 597, 570 87 17 L.Ed.2d 562 92 33 L.Ed.2d S.Ct. S.Ct. Huddleston, (1967).23 (1972); Endicott v. 644 F.2d maintained, course, Roth, e.g., Regents U.S. 92 21. It has never been Board of v. 408 (1972); public employees may subjected 33 L.Ed.2d 548 Wolff v. be to sanc- S.Ct. McDonnell, tions, employment, unrelated to their for their 418 U.S. view, (1974); interpret speech. but we do not Even under the Holmes the most L.Ed.2d being point government employee on the district court’s discussion of this could do to an Egger’s procedural process speech his em- directed toward due basis of his ployment; was to terminate impose criminal or civil claims. it could not an individual because of his fines on such simply public speech because he was a servant. emphasis placing on the 23. We undue Thus, say public employees once were para-military. district court’s use of the term speech required relinquish their freedom of only suggesting If the district court was prior broad a characterization of is much too performed the FBI is the nature of the work assessing Egger’s doctrine. a relevant consideration claims, Conlisk, supra, 429 F.2d at cf. Muller v. being policeman necessary (“To the extent that would be Such an entitlement characteristics, claim, unique process public employment procedural to assert a due Egger kept suspicions enun transfer we believe that the defense Lastly, Naum to himself. about Healthy in Mt. Board Education ciated 274, 97 50 L.Ed.2d Doyle, VI (1977) prevails upon proving do not (employer public employees While forfeit their official protection abridge that the same action would have been taken speech by ment of their freedom of virtue protected in the absence of the conduct relationship, of the and while employment in case. employee) is not viable this may adverse decisions constitute personnel Appellee claims that was transferred such an a kernel of the view abridgement, in the Indi due to his loss of effectiveness remains, expressed by Justice Holmes albeit disruptive and the effect of anapolis office analytical under a different rubric. quite The office unrest and presence there. Quite simply, gainsaid “it cannot be co-workers’ mistrust of him were Egger’s has interests as an in employer State speech. results of his this largely the On regulating speech employees of its record, appellee simply could not maintain differ from those it significantly possesses the same action —a transfer —would in regulation speech connection with of the Egger’s of have been taken absence citizenry general. problem of the others; charges against Naum and the rа any case arrive at a is to balance between timing action and the of tionale for that citizen, [employee], the interests of the as a inextricably Eg that action were tied to in commenting upon public matters of con ger’s speech. While the reaction of State, cern and the interest of the as an Indianapolis co-workers in the Field Office employer, promoting efficiency of the controversy surrounding Egger and public performs through services it its em disen suggest preexisting Education, Naum does some Pickering v. Board of ployees.” 563, 568, 1731, 1734, part, on their we do 391 88 20 chantment with U.S. S.Ct. (1968).24 L.Ed.2d 811 appellee not see how could maintain on this in which courts of cases Egger’s problems per plethora25 record that with the If being required increasing frequency26 the office would have sonnel in are with right employee speak be ... denied, 937, 2649, 53 L.Ed.2d 431 U.S. 97 S.Ct. not, however, limited. It is de- more or less University, (1977); Roseman v. Indiana 255 319-320; stroyed.”); see infra our differ- denied, Cir.1975), (3d cert. 424 520 F.2d 1364 basically of ence with the district court is one 921, 1128, (1976); 96 47 L.Ed.2d 329 U.S. S.Ct. word choice. Firefighters Association v. Henrico Professional Supervisors, 649 F.2d 237 (4th Board of Cir. balancing 24. ad hoc tests are often While such States, 1981); Delong United v. 621 F.2d 618 e.g., commentators, Emerson, To- criticized Johnson, (4th Cir.1980); Cooper v. F.2d 590 Theory of the First Amend- ward General Trustees, (4th Cir.1979); Shaw v. Board of 559 ment, 877, (1963), 72 Yale L.J. 912 it seems Cole, (4th 1976); Jannetta v. 549 F.2d 929 Cir. tautological reconciling competing these Cir.1974); v. (4th Chitwood 493 F.2d 1334 approach. of no societal interests admits other Feaster, (4th 1972); Bowen v. 468 F.2d 359 Cir. Watkins, Cir.1982); (5th Van Oot 979 669 F.2d E.g., v. United States International Borrell 25. Cir.1981) (en eghem Gray, 654 F.2d 304 (5th Agency, v. (D.C. Communications 981 682 F.2d denied, 909, banc) curiam), cert. (per Ripley, 645 Cir.1982); (D.C. 455 U.S. Foster v. 1142 F.2d 1255, (1982); Department Barrett Cir.1981); 447 Lesar v. United States 102 71 L.Ed.2d S.Ct. Justice, Thomas, Cir.1981), (D.C.Cir.1980); Tygrett (5th cert. v. 1193 636 F.2d 472 649 F.2d denied, 936, 1969, 1992, 925, Washington, 543 F.2d 840 (D.C.Cir.1974), v. 456 U.S. 102 S.Ct. Burkhart, remand, appeal (1980); (1982); Bickel v. after 627 F.2d 1279 455 72 L.Ed.2d Macy, (D.C.Cir.1968), (5th Cir.1980); Williams v. Meehan v. 425 F.2d 469 632 F.2d 1251 banc, Regents, (1969); (5th Cir.1980), Santos v. aff’d en 425 F.2d 472 Board 629 F.2d 993 Service, nom., Williams, Saye United States Customs 642 F.2d 21 cert. denied sub v. 452 Ryan, (1st Cir.1980); (1981); Abebisher v. 651 622 F.2d 69 L.Ed.2d 428 101 S.Ct. Middlebury Atlanta, (2d Cir.1980); City Janusaitis v. Volun (5th F.2d 915 Schneider v. 628 Department, (2d McCall, teer Fire (5th 17 Cir.1980); 607 F.2d Cir. Tanner 625 F.2d 1183 (3d Quinn, denied, 1979); Monsanto v. 990 Cir.1980), F.2d cert. 451 U.S. Kerr, Cir.1982); Gasparinetti v. (1981); Kingsville Inde 568 F.2d 311 68 L.Ed.2d denied, (3d Cir.1977), cert. Cooper, 436 U.S. pendent School District v. 611 F.2d (1978); Sprague v. 56 L.Ed.2d 401 Fitzpatrick, (3d 1976), cert. page 546 F.2d 560 314. Cir. See note speech, free thus sus- right problem this upon to confront called defense. immunity taining qualified come indication, interests often these Furthermore, conflict with one another. Qualified Immunity judgmental might predicted in such a first consider the qualified We im area, the cases often come in conflict with munity question, which need detain us only one another as well. this wealth Applying Fitzgerald, of Harlow v. briefly. light case, we supra, of this authority to the facts panel opinion decided after case, we think it of estab- is clear that his burden appellee met hold that prevails qualified on a immunity defense in judgment as a lishing he is entitled to this case. met his plead burden of alternative27 law on two matter see id. defense, this affirmative actions toward grounds: (1) Phillips’ prevails S.Ct. at and he on that de speech, freedom of abridge Egger’s did nоt fense because his conduct did “not violate (2) assuming arguendo Egger’s clearly established rights which a reason violated, Phillips could not have rights were id. Under known,” able person would have reasonably been expected to know at the Harlow, Phillips’ subjective motivation is time that his actions constituted a violation qualified relevant to the immunity (5th Cir.1980); Califano, 1109 (9th Cir.1974); Key Rutherford, Porter v. 592 491 F.2d 951 v. (5th Cir.1979); Kaprelian F.2d 770 (10th 1981); v. Texas 645 F.2d 880 Cir. Schmidt v. Fre University, (5th Woman’s 509 F.2d 133 County 25, Cir. mont School District No. 558 F.2d 1975); States, Smith v. United 502 F.2d 512 (10th Cir.1977); King, 982 Mitchell v. 537 F.2d (5th Cir.1974); City Moore v. Winfield Board of (10th Cir.1976); Chaffin, 385 Waters v. 684 Education, (5th Cir.1971); 452 F.2d 726 Hetrick (11th Cir.1982). F.2d 833 Martin, (6th Cir.), denied, v. 480 F.2d 705 cert. 1075, 592, 414 U.S. 94 S.Ct. 38 L.Ed.2d 482 increasing 26. The number of such cases (1973); Huddleston, Endicott v. 644 F.2d 1208 a result of Givhan v. Western Line Consolidat- (7th Cir.1980); Yoggerst Stewart, v. 623 F.2d District, 410, 693, ed School 439 U.S. 99 S.Ct. (7th Cir.1980); 35 McGill v. Board of Educa (1979), 58 L.Ed.2d 619 in which the Court held tion, (7th Cir.1979); 602 F.2d 774 Eichman v. speech public that the freedom of follows em- University Trustees, Indiana State Board of 597 office, ployees protects into the their ex- (7th Cir.1979); Breier, F.2d 1104 Hanneman v. pressions opinion workplace in the as well (7th Cir.1976); 528 F.2d 750 Brubaker v. Board off-duty speech. supervi- as their While most Education, (7th Cir.1974), of cated, 502 F.2d 973 va presumably sors would be unaware of most of (1975) (en banc), 527 F.2d 611 de cert. employees’ expressions job, partic- their off the nied, 965, 1953, 421 U.S. 95 S.Ct. 44 ‍‌‌​‌​‌‌​​‌​‌‌​‌​​​​​‌‌‌‌‌​‌‌​​​‌‌​‌‌​‌‌‌​‌‌‌‌‌‌‌‍L.Ed.2d ularly impersonal metropolitan in environ- (1975); Breier, 451 Cir.1974), (7th Bence v. 501 F.2d 1185 ments, particular employee gained unless a denied, 1121, cert. 419 U.S. 95 S.Ct. celebrity, supervisors employees reg- some 804, (1975); Holmes, 42 L.Ed.2d 821 Clark v. ularly job, course, converse on the and the Cir.1972), (7th denied, 474 F.2d 928 rt. 411 ce provides intraoffice mill rumor an additional 972, 2148, (1973); 93 S.Ct. 36 L.Ed.2d 695 information, unreliable, source of albeit con- Staunton, (7th Donahue v. 471 F.2d 475 Cir. cerning who said what about whom in the 1972), denied, 955, 1419, cert. 410 U.S. 93 S.Ct. Many, employees office. if not most confront- (1973); Hostrop 35 L.Ed.2d 687 v. Board of personnel ed with an adverse action would College 515, Junior (7th District No. 471 F.2d 488 probably hard-pressed remembering not be 1972), denied, 967, Cir. cert. 411 U.S. 93 something they super- once said either to their 2150, (1973), 963, 36 L.Ed.2d 688 425 U.S. visors or to co-workers which rubbed the boss 1748, (1976); 96 S.Ct. 48 L.Ed.2d 208 Muller v. wrong way. Conlisk, (7th Cir.1970); 429 F.2d 901 Nathan States, (8th son v. United 630 F.2d 1260 Cir. Although qualified immunity ground 1980); Siebenmann, Atcherson v. 605 F.2d adequate upon (8th Cir.1979); Weeks, Simpson would constitute an basis 1058 v. 570 judgment below, (8th denied, Cir.1978), to affirm the we nevertheless F.2d 240 cert. 443 U.S. appropriate (1980); Byrd consider it 99 S.Ct. 61 L.Ed.2d address the merits of 876 Gain, (9th Cir.1977), Egger certainly v. F.2d 553 First Amendment claim. cert. de

nied, claim, standing dispose 434 U.S. has 98 S.Ct. 55 L.Ed.2d to raise that and to (1978); City solely County ground Kannisto v. of the & of San case on the that at the time Francisco, (9th Cir.1976), alleged right 541 F.2d 841 cert. constitutional violation the denied, question clearly 430 U.S. 97 S.Ct. L.Ed.2d was not established would (1977); Phillips Dept., right v. Adult Probation leave the status of such a in limbo. disharmony to cause serious likely contention Egger’s and thus question, malicious, ger- office, subject were not to constitution- while .. . Phillips’ intention was Siebenmann, controlling at the authority protection,” under the al Atcherson v. mane decision, Butz v. Econo- panel time of the F.2d at or at least believed supra, 605 mou, on that supra, longer is no issue would not constitute an that a transfer Rather, is whether question question. speech. freedom of abridgment reasonably expect- been Phillips could have respect qualified In conclusion made recom- know at the time he ed to we do not decide wheth- immunity question, forbade mendations that Constitution points, doctrinal preceding er one of way, ques- another his actions. Stated alone, enable standing would clearly estab- tion is whether the law Rather, we base our prevail on this issue. the time. lished at cumulative effect of the decision on the contemporaneous examining After informed our assess- points, enumerated the situation con authority applicable to the law at the general state of ment of reason Phillips, we conclude that a fronting necessitated general assessment time —a position could not person Phillips’ able objective legal “focuses on the a test which expected early to know have been of an official’s acts.” Har- reasonableness vi recommendation would that his transfer Fitzgerald, supra, low 457 U.S. at be rights First Amendment olate at 2739. We believe that one of at least three interplay cause of the Phillips’ position reasonably view First, uncertainties. until the Su doctrinal Egger and others in the relations between v. West Court’s decision Givhan preme and, the notwithstanding office as strained District, 439 ern Line Consolidated School relations, the strained it would root cause of 410, 99 693, 58 (1979), L.Ed.2d 619 U.S. S.Ct. person a reasonable that a trans- appear to open question public was an whether it would be lawful. fer recommendation expressions were en employees’ on-the-job States, v. United 419 F.2d Compare Pauley Second, protection. to constitutional titled 1061, (7th Cir.1969) (“[I]t seems indis- 1067 very was in a real sense given that relations’ personal that ‘strained putable[] function as an FBI performing his official and his co-workers employee an between reporting agent investigating provide permissible basis appear ‘would (who respect about Naum this suspicions ....’”) (citation omitted). for a transfer superior, question the suspect) was a to his speaking as a con of whether Pickering Speech: of The Freedom speech and whether his cerned citizen Calculus public a matter of concern in touched on certain Pickering identifies While protection First Amendment voking guide determining us in relevant factors person have been in doubt to a reaspnable Egger con Phillips’ actions toward whether light contemporaneous authority. of See Egger’s freedom abridgment of stituted Education, 391 Pickering supra, v. Board of must be remembered speech, of it 1737; also, at 88 at see U.S. S.Ct. of circum variety the enormous view of County Fremont District v. School Schmidt public em in which statements stances Third, supra, 558 F.2d at 984-85. No. superiors thought by their ployees may be the upon number of cases relied substantial action, grounds personnel the to furnish impact employee disruptive potentially it inappro has deemed Supreme Court discharges based on upholding criticism in attempt lay “to priate and infeasible Siebenmann, supra, Atcherson v. speech, all against which general standard down a also, cases); (citing 1065 see 605 F.2d at judged.” Picker may be such statements College v. Board of Junior e.g., Hostrop Education, supra, 391 U.S. ing v. Board 471 F.2d at 492-93. supra, No. District Instead, “in the at at 88 S.Ct. Phillips’ position person in A reasonable claims conflicting evaluating course of “accusations of could conclude and the protection First Amendment if against co-employees, misconduct [his] 316 orderly [public] gardless speech,

need for administration in of the social worth of the it, Pickering the context” of the case before we believe the calculus deter- Court abridg- mines whether there has been an “general along indicated the lines which an speech ment of the freedom of in the em- analysis of the controlling interests should Indeed, ployment the courts run.” Id. context. suggest otherwise in our view are striking Pickering merely sub silentio Substance of Communication probably balance in cases which are too begin Pickering We our with an analysis require analysis. clear to extended See way assessment of the in which Ooteghem supra, Van generally Gray, speech touched matters upon public con F.2d at 306. cern and the speech extent to which his dealt with internal matters within the [employee’s] nature “[T]he workplace of a more personal parochial balancing communication is relevant to the See, e.g., Pickering nature. of of the as citizen employee v. Board interests of Education, supra, governmental U.S. at the interest of the 1734; Holmes, unit,” supra, Regents, supra, Clark v. 474 F.2d at Williams v. Board of 931; Education, McGill v. supra, Board of 629 F.2d at because a multitude of 602 F.2d supra, personnel properly a decisions are of course t F.2d at 1148. The fact ex employee says based on what an and how pressed certain views within the workplace says he it. From the interview with an opposed to expressing public applicant position those views for a to discussions with ly does not mean that this employee proper discharge factor about the Pickering irrelevant, duties, balance is see Givhan his employee’s content of an v. Western Line speech naturally superior’s Consolidated School Dis affects his as trict, 58 L.Ed.2d sessment of him and forms the basis of (1979),rather, partic personnel factor decisions. In some sense even ularly salient settings. in such internal these kinds of communications —based performed the substantive work to be —are Naturally protection First interest, public matters making but em depend judicial Amendment does not on a ployment speech decisions based on such is conception ideas, of the “social worth” of plainly permissible. simply The state is act Department see Police Chicago v. Mos- capacity employer. Speech in its as an ley, 2286, 2290, 408 U.S. 33 triggers Pickering which the more difficult (1972), L.Ed.2d 212 but it is nevertheless problems implicates questions is that which necessary in this context to examine the essentially which are not of institutional speech content of the question, v. Givhan personal concern or of concern to the indi District, Western Line Consolidated School involved, speech impli viduals but which supra, 439 atU.S. 415 n. at 696 n. cates broader interests with societal ramifi 4. While some cases indicate that certain identified, cations. Once such an interest is speech which relates to peculiarly internal speech-based personnel adverse actions are governmental matters of employment does closely. speech scrutinized more is not Such invoke protection, First Amendment only likely less to have a close nexus with making a Pickering unnecessary, balance legitimate basis for primary personnel Rutherford, e.g., Key supra, v. 645 F.2d at employ decisions—the effectiveness of the 884; v. County Schmidt Fremont School further, performing ee in his duties —but is 984-85; supra, District No. 558 F.2d at employee that in which the has an interest in our view position such a is unsound. as a citizen. Chaffin, Waters v. supra, 684 F.2d at 838 n. (observing exceptions assessing speech that content based In whether the touches concern, to freedom speech obscenity, upon public impor- limited a matter of it is equate public’s curiosity non-obscene child li- tant not to pornography, malicious bel, fighting words, a matter with a matter cases). having Re- about socie- citing of societal People may professional integ- tal ramifications. be interested interest: rity of the lives of of one of the nation’s law enforcement aspects number of See, e.g., Ripley, supra, officials. Foster v. employees, but that does public officials 1148; Califano, supra, 645 F.2d at Porter v. such matters have societal not mean that 592 F.2d 773. Cf. 5 U.S.C. Conversely, public may ramifications. 2302(b)(8)(A) (expression public policy extremely apathetic § about certain mat- exposing in favor of official employee’s concern, public unpopularity ters of but the misfeasance). Eg- malfeasance and While surely of the issue does not mean that a ger’s against an accusations were directed crying voice out in the wilderness is entitled individual, they per- were not the kind of a protection large, to less than voice with a co-worker, e.g., carping sonal a criticism of receptive audience. personal comments about characteristics indicate, however, Some cases traits, private are of con- essentially public’s in the communication is an interest involved, see, among cern the individuals importаnt consideration. The Third Circuit Burkhart, e.g., supra, Bickel v. 632 F.2d at the fact that public maintains 1257; see, Cole, supra, but Jannetta v. speech, “as evi- employee’s interested in the Rather, Egger’s charges F.2d at n. 5. denced the local news media’s assess- and was ac- perjury that Naum committed ment the communication is news- Egger’s interests cepting implicated bribes judicial means that increased scru- worthy,” generally as a concerned citizen. See Kan- tiny speech-based personnel actions is Francisco, City County nisto v. of San Quinn, supra, warranted. Monsanto v. Nevertheless, supra, 541 F.2d at 844. view, F.2d at 997. In the Third Circuit’s personal nature of the accusation is of then, Pickering balance turn in against course relevant. Criticism directed large ability employ- measure on the employee, a fellow even if it raises issues of ee to local news media that her “convince[ ] concern, general necessarily implicates dif- grievance newsworthy.” ... Roseman [is] employ- ferent interests of the state in its University, supra, v. Indiana 520 F.2d at capacity impersonal ment than would an case, 1368 n. 11. In the instant generally. criticism of the institution See very regard: successful in this he made Burkhart, supra, 632 F.2d at 1256- Bickel quite splash papers, painted which bucking him in heroic colors—the little guy Moreover, factor in this case significant believe, however, system. We do not special agent as an FBI Egger’s job is that scope employee’s of an freedom of activities. investigate was to criminal speech ability can turn on his to convince a Naum, respect, his accusations newspaper print story plight. about his others, in a differ- must be considered factors determine whether a sto- ent confronted light. any employer While ry newsworthy hardly are coterminus against with work-related accusations one with the factors which determine whether his either conduct of subordinates should the communication has societal ramifica- inquiries notify appropriate officials— tions, event, and in newspaper editors dispute Phillips and there is no did question cannot decide the for us.28 both in this ease—in the work environment Egger’s Our assessment of communica- case, of this factors come into additional respects tions is in some they involved justified in eval- play. Phillips entirely was concern, public matters of and in other re- uating Egger’s investiga- of soundness spects implicated they institutional matters. he technique, tive the inferences drew statements, To the extent that reported opin- his and the over- certain informant alleged ions that certain wrongdoing by all soundness of his conclusion about Naum, speech per- his From this certainly pursuing. raised an issue leads were worth might highly prestigious publication, and if 28. One also or even wonder whether the Third judgment not, justify just Circuit would value the editorial of a would a distinction. how it par reputable, scandаl sheet with that of a part on the of OPR and spective, Egger simply doing job his as the lack of action allegations to his Phillips response in investigator, quality criminal and others, keep and did not against Naum and something Phillips routinely that work was Instead, inun- a secret. he impatience his Phillips necessarily had assess. evaluat- re- largely a series of dated with Egger’s ed the soundness of detective work communications, and in orally both dundant allegations against regarding Egger’s could not be deemed writing. While in this environment. To professional Naum unwilling his ideas on an forcing to be disagreements the extent that the between 696, the see at recipient, id. Phillips represent professional of the communications sheer number opinion regarding difference relevant consid- their nature are repetitive Naum, Egger’s strength the case a con- obviously up It swallowed erations. could be viewed evi- communications time to prepare amount of siderable of professional competence, dence of a lack memos, Phillips to read them and dis- and a such an recommendation based on Egger and to discuss the cuss them with impli- assessment of communications in continuing controversy superiors with his agency cates gener- internal concerns. See Washington. Dogged pur- determination ally Pickering Education, v. Board of supra, suing thing, new leads is one but at 573 n. 88 S.Ct. at 1737 n. 5. Egger whether he continually asked allegations against Just as core or whether he was any new information implicate public Naum matters of both rehashing provided information merely concern, internal institutional other commu making allega- Egger persisted OPR. by Egger nications admit of the same dual tions that were at most variations on the character. Many communications suggest do not that these same theme. We expressing can be viewed as a criticism of aspects Egger’s speech standing alone response regarding the institutional various In- independently justify a transfer. matters, e.g., the charge that he attended stead, respects, we believe that in some game, the basketball the status OPR against Egger in the weighs consideration investigation, response shooting his Pickering balance. incident, the failure to in conduct a RICO time, Lastly, aspect one other However, vestigation, and similar matters. place, and manner of communica- there is a difference between criticism di tions is in this case. first important general rected at the institution in and dis Mul- suspicions shared his about Naum with putes with which the complainant has an len, in turn was to discuss the matter who times, intimate personal involvement. At Agent Charge Lowie. Special particularly regarding shooting inci Naum soon learned of the accusation and dent, Egger simply uncooperative, and identity sharp of his accuser. con- the fact that his verbalized reason for that the indi- procedure employed by trast to the attitude was a criticism of the institution Egger wrongdoing vidual who accused significantly essentially does not alter the game, Egger connection with the basketball private dispute. nature of the Cf. Chit approach Special discreetly did not Feaster, supra, wood v. 468 F.2d at 361. Charge request anonymity. Agent Now it well be that shared Time, Place, and Manner of the suspicions about Naum with Mullen with Communication implicit understanding explicit either the time, place, The and manner of But that Naum would not be informed. informed, communications are also relevant to the and wherever the re- Naum was Pickering private develop- calculus in the case of that sponsibility may placed for expressions ment, in workplace. surely made the Givhan it cannot be traced to v. Western Line Dis- transferred to the Indi- Consolidated School who was not even trict, at until In hind- supra, anapolis February. 439 at 415 n. 99 office U.S. plain Egger it was im- Egger sight, 696 n. 4. seems obviously disturbed 839; Thomas, supra, 649 F.2d at ac- Barrett v. making personal in at best provident Burkhart, 1198; supra, 632 F.2d at Bickel v. agent. to a fellow cusation Naum Gain, (dictum); Byrd supra, v. v. United States Cus- generally, Santos See 554; City County Kannisto v. and F.2d at Service, 642 F.2d at 25-26. supra, toms 843; at Francisco, 541 F.2d supra, San the manner in which aspect This Breier, supra, 528 F.2d at v. Hanneman Pickering charge made his is relevant 754-56; Conlisk, 429 F.2d supra, v. Muller large analysis because it determined 904r-05; supra, 425 F.2d Macy, at Meehan v. dis- scope measure the nature and office Johnson, 470-71; Kelley see v. at ruption Egger’s speech. which resulted from 1440, 1445, 47 L.Ed.2d 708 interest in (1976) (acknowledging legitimate Employer the Interests of Government esprit corps and de maintaining discipline special next assess the interest of We officers); Tygrett Barry, among police speech of its employer regulating 1283; cf. Janusaitis v. supra, 627 F.2d gen- has a employees. employer While su Middlebury Department, Volunteer Fire maintaining eral interest in work environ- principle to pra, (applying 607 F.2d at 26 effectuating agency conducive to ment Finck, generally Nonpar see firefighters); mission, calculus cer- Pickering under the The Speech Department: tisan in the Police particular employment aspects tain Hastings Con. Pickering, Aftermath of germane. In Clark v. especially milieu are (1980). Analogously, the interests L.Q. 1001 Holmes, 474 F.2d at we summa- supra, in the FBI em particularly are also salient as follows: rized these state interests respect Mutual trust and ployment setting. discipline or (1) the need to maintain agents and su among agents and between co-workers; (2) the harmony among need particularly are pervisory personnel impor (3) need to curtail confidentiality; for The need for tant in law enforcement. impedes [employee’s] which conduct gainsaid. cannot be And confidentiality competent performance and his proper involved—sometimes givеn high stakes duties; (4) to encour- and the need daily decisions are made —the risks life and death relationship be- age personal a close and grave. can be disharmony superiors, his employee tween the example to one points himself relationship loyalty calls for where law enforce- dangers inherent when and confidence. Naum, one another. ment officials mistrust present, interests are ever their While these told, withheld informa- intentionally we are any given em- strength applicability endangered Egger’s tion na- depend situation on both the ployment mat- purposes, it life. For our illustrative performed by particu- ture of the tasks actual motivation ters not what Naum’s agency and the mission of the employee lar believes that (Egger failure was. Harmony particu- he works. is for which stymie illicitly Naum wanted who fre- required among employees larly particularly A gambling investigation.) required joint to work on quently are agent to refuse to reason for an FBI likely importance avoiding projects and colleague is that with a share information particu- among such workers disharmony he will di- fearing that he mistrusts him — of endeavors. types acute in certain larly Indeed, to outsiders. the information vulge case, others, of the state inter- In the instant all mistrust of Naum given Egger’s particularly are infor- ests enunciated above would not share plain it is acute, need for team- he be- agents both because of the whom mation he had high stakes trusted. among agents work could not be lieved thought he when greatly involved in law enforcement. fact disturbed are examining Mullen had been recognizing that Naum and appears caselaw unanimous sinister motives imputing these interests in the context the salience of files— it evidently thought ap- he agencies, them —whereas of state and local law enforcement files in the Naum’s to examine Chaffin, propriate F.2d at e.g., supra, Waters v. States, supra, 630 Nathanson v. United investigation organ- g., E. routine course of his 1263; supra, Sprague Fitzpatrick, illustrations of the v. ized crime. While other F.2d at mutual trust importance of teamwork and at 565.30 546 F.2d setting appar- are in the law enforcement Phillips recom- Egger argues that While record, the we need not belabor ent in this against him his transfer to retaliate mended proposition beyond for we think the is point his First Amendment for the exercise of dispute. constitutional abstrac- rights, that is a mere is that Egger really contends tion. What Pickering Balance on a Arriving at the was malicious —that motivation Phillips’ Summary Judgment Motion for a concern for the did not act out of Phillips employed should be Summary judgment office, but out functioning of the effective such as sparingly in First Amendment cases out. punish speaking to him for of a desire Ripley, E.g., the instant one. Foster however, view, the record in this case In our 1148-49; Porter v. Cali- supra, 645 F.2d issue of material prеsent genuine does not fano, reason supra, 592 F.2d at 778. One regarding question. fact reso- inappropriate these cases are often for was thrust Egger’s phrase, to use Phillips, is that a basic summary judgment lution via In his making. of his position into a not of in- question presents question each is a Indianapolis, he was con- first few weeks governmental tent of the actor: an under- charges and coun- fronted with a series of lying personnel issue is whether the action Egger, Naum and tercharges between legitimate personnel was on concerns based already in camps whose respective or rather was based on a naked desire simply There large measure been formed. expressing an for a cer- punish individual the relation- dispute in this case that is no However, ascertaining point tain of view. num- significant and a ship between basically proc- such intent is an inferential Indianapolis the Field agents ber of the surrounding ess based on the circumstances himself, Office, including ultimately Phillips Pickering question. the act and actor in mounting mutual mis- was characterized identifies the factors which assist a court disrespect. Egger, professional trust and determining employer whether the state is quo the recognized all status people, express- for punishing employee merely an to do urged Phillips intolerable and was opinion employer an which the desires Phillips did. something about the situation. legiti- suppress responding or instead is concluded He the situation and up sized speech the has on the mately effects Naum, the of both transfer functioning agency.29 of the In some such combatants, the answer. the was principal cases, will estab- uncontroverted facts of, rid for he had easy get Naum was irrepara- an expression lish that the led to For long desired a transfer to Buffalo. em- ble breach of confidence between an hand, on the other a transfer was Egger, disrupted and his co-workers and ployee benefit, burden, a fact which not a efficiency governmental unit which have known. either knew or should particular under the circumstances of the judgment thinks the reason recommended summary appropriate. case makes analysis elaborate, Pickering analysis speech. of these can be to inhibit When 29. To purpose part speech for the real viewed in as a search interests demonstrates question. governmental employee’s per- action in significantly compromise behind the analysis employ- of the nature of the duties, When an one infers that the ad- formance of his special speech em- ee’s and the nature of personnel action was based on a desire verse agency ployment particular dem- interests of a functioning promote of the office. the effective compromise speech onstrates did not efficiency employee’s performance or the finding suggest that dis- that a 30. We do office, person- one infers that adverse dispositive; ruption ex- rather the occurred speech resulting such nel action disruption, and its effects tent and nature of the punish based a naked an individual desire involved, workplace particular must be on the view, is, expressing point a different Pickering weighed calculus. solely purpose personnel action charges of making substantive knowledge Egger Phillips’ turns on transfer Egger had al- against Naum. wrongdoing fact. that and OPR had charges, those ready made rumors, However, alleged in view of the Indianapolis to inves- been in only recently office, threats, the mutu- and discord in the attempt an to Rather than tigate them. others, the Egger and al distrust between appears Phillips’ statement Egger, threaten FBI em- mutual trust importance of Egger of attempt an to inform to have been Phillips’ per- setting, the lack of ployment to causing the situation consequences during inception involvement sonal hominem attacks and an degenerate into ad timing of Phil- controversy, office countercharg- and charges series of endless Egger lips’ request initial to transfer both Moreover, recordings of Egger’s tape Naum, responsi- es. Phillips’ the nature of for Phillips speak Special Agent Charge as his conversations bilities short, all the indi- office —in in the face of regard. themselves in this indicating Phillips that recommended cia that do not view the fact Lastly, we concerns, the transfer out of institutional Egger’s Phillips ultimately recommended any- fails to convince us that he has incompetence as grounds dismissal suspicion Phillips than a that thing more Eg- Phillips punish wanted to evidence that personally either about him enough cared charges against his Naum. ger making Naum to want charge he made that recommen- Phillips the time made By speaking him for out.31 Eventu- punish to between dation, series of altercations Egger and relationship between ally, occurred, and both Egger had Phillips and that Phillips point did deteriorate to for the oth- disrespect professional shared a This animosity between them. there was Phillips made the er. Now it is true that out Phillips was convince Di- when the Assistant recommendation start, in view of to him from the but get investiga- another making yet was rector events, apparent it seems sequence one certain- complaints, and Egger’s tion of re- animosity developed us that timing of the rec- ‍‌‌​‌​‌‌​​‌​‌‌​‌​​​​​‌‌‌‌‌​‌‌​​​‌‌​‌‌​‌‌‌​‌‌‌‌‌‌‌‍infer that such ly could that he was be- Egger’s sulted from belief a. mere coincidence. was not ommendation some and is not evidence of ing victimized Rather, episode naturally caused this latest personal animosity Phillips har- pre-existing the situation once Phillips to confront Egger. bored for had avoid- point, Phillips to that again. Up Phillips’ isolated Nor do we think that undеrlying embroiled in the becoming ed view that the Bureau took a dim comment Indeed, ap- his controversy. merits of the all and sometimes transferred complaints parochial his matter reflected proach genuine is sufficient to create a involved of the Indi- charge agent concerns as the regarding Phillips’ issue of fact motivation. wanted the root merely anapolis Office—he were that Egger’s complaints point controversy Egger sources — treatment, the silent being given he was however, Finally, go elsewhere. Naum —to him, the spreading Naum was lies about indicates, he felt it his recommendation whoever stop, had to and that rumors to do responsibility professional was his charge against regarding him brought more, let become merely and not and vehicle use game the basketball problem. someone else’s context to harass him. In the attempting however, conclusion, Phillips Our Phillips’ we do not view complaints, of those punish a desire to stop not motivated attempt as sinister —as statement accusations, by intensifying adversity his could conclude on We fail to see how one Phillips could have to understand how inference we fail record that there is a reasonable with a if was confronted Phillips reasoned that transfer recommended him, transfer, First, routinely accompli silence it would fait order to silence him. especially that his proper told Egger’s complaints after forwarded all of being investiga- greatest into a corner fear was backed his own authorities and conducted go being Bureau with hardship outside the Second, forced given tions as well. charges. status, respond- given Egger’s practice of sors, (suggesting at 243 supra, 649 F.2d inquiry. end our While Egger does not Pickering presumed protected, to is by pre- speech motivated a desire analy- state interest functioning compelling of the Indi- calls for a serve the effective asserting the state is Office, sis). true that cases where anapolis it still remains forbidding in the employer transferred but an Egger would not have been an interest as quoted and oth- statement against question, for his accusations Naum in the speech Egger’s position, in it of current ers. And from one reflection may be an accurate Phillips’ what sub- makes little difference instructive doctrine, may it be more though of little jective motivation was —it must be is re- Pickering the balance say to that he was not solace to to know speech protected the is quired because out, speaking for but merely transferred the is whether any the case question conse- instead because of the foreseeable ques- action in personnel particular adverse quences speech. of his Bowen v. Wat- See free- abridgment of the an tion constitutes course, kins, as 669 F.2d at 987. Of supra, however, case, ap- speech. dom of In this notеd, a reason for the previously principal FBI asserting that naturally is not pellee which oc- scope disruption nature and accusing be forbidden agents should suspicions his curred was that shared wrongdoing, and of official their co-workers and the about Naum with fellow workers is not wheth- in this ease question hence the spread accusation soon reached Naum and in the unprotected speech is er Ripley, Foster v. throughout the office. Cf. is speech disruption the such sense that Nonetheless, supra, 645 F.2d at 1149. interests of outweighs the likely to create case, be may this kind of it ’well almost such matters. commenting speaker will oc- inevitable that some office unrest Moreover, appellee maintains while least, con- very agent cur. At the an FBI unsub- ultimately proved Egger’s charges likely weigh sidering expression such stantiated, they not contend that he does n pos- of such unrest —and the possibility false or malicious. See intentionally were resulting by sible transfer necessitated Education, supra, 391 Pickering v. Board of deciding to forward an accu- unrest —before Lastly, while at at 1737. The against possibility sation co-worker. Egger voiced his com- the manner in which chill the exercise of a transfer no doubt will Pickering in the weighs against him plaints accusations. But right to make such record that balance, say on this we cannot that does not make such transfers unconsti- inap- so situation was approach Rather, tutional. it means in case that his the conclusion justify to propriate result proximate where the transfer is the of First Amendment stripped speech speech, governmental of such action Arriving altogether. protection must be scrutinized. context of this case Pickering balance It is often said that in cases where an speech protect- is not on whether turns subjected per- to adverse employee rather, scope of all, upon the ed at but speech, of his it is sonnel action on the basis which it is afforded. protection “in the balance mandated Pick- because protects First Amendment ering, government the interests of the out- to make employee right government of a weigh speaker the interests of the of malfeasance good faith accusations public, speech unprotected.” and the workers, the First but office fellow Watkins, supra, Bowen v. 669 F.2d at 987. the em guarantee Amendment does Holmes, 474 F.2d at supra, also Clark v. See right. exercise of that ployee a cost-free 931-32; Education, su- McGill v. Board of right— of that cost of the exercise One 777; v. Board of pra, Hostrop 602 F.2d at to chill its likely the cost most perhaps 515, supra, 471 College Junior District No. imposed by employer, exercise —is not 492; Depart- F.2d at Lesar v. United States Common sense dic- 474-76; human nature. Justice, but 636 F.2d at supra, ment of object of the accusation once the Firefightеrs tates that but see Henrico Professional the accuser it, animosity toward Supervi- learns of Board of Association Local 1568 v. Indianapolis, given it is known fives than and was throughout results. Once entire office that two co-workers are ene- to be transferred to Cincinnati opportunity given mies —and the rumor mill in most well. was not satisfied with that offices, probably would be the rule— Chicago, report balance. He refused people will often take sides in the dispute. and was terminated. camps may

While the some cases be price now wants pay divided, equally surprising it would not be him, a he himself was speech price of his most siding find individuals with the unwilling pay. He asks for a cost-free object original of the accusation. The social his He asks for too much. right. exercise of convention of the office environment dis- courages exchanges. such The more insub- charge

stantial the in the collective view of VII fellow workers the more ostracized the ac- Accordingly, judgment the of the district cuser will He given become. will be “the hereby party court is affirmed. Each shall some,32 silent by treatment” both because appeal. bear his own costs on this disrupted the accuser has the harmony workplace, perhaps, because CUDAHY, Judge, concurring Circuit in secret fear on the part some co-workers III and V and the Parts result. they object be the next of an Judge Eschbach is to be commended on questionable accusation some conduct in for aspects his exhaustive all exploration of they engaged, attending which once like this multifaceted I concur in game duty. controversy. basketball while on This price in Harlow accusatory speech Egger light is one knows result reached v. well, it is he price pass along but can Fitzgerald, 457 U.S.

to Phillips. Harlow, (1982). 73 L.Ed.2d 396 which was after the in this case panel opinion decided Nor can Egger pass along the cost of his 1, 1982, changed was issued on February case, transfer In this Phillips. to the Pick- qualified immunity the elements of the de- ering balance is clear —the mutual distrust fense so as to remove from consideration Egger between many colleagues his question government whether the offi- is undisputed, and the need for such trust is it cial acted with malicious intention. Since vitally important specific employ- properly precluded question was this which ment case. Egger context this had lost original panel accepting Phillips’ in the Indianapolis effectiveness office defense, Egger v. qualified immunity see and the challenged action —the transfer— (7th Cir.1982), I Phillips, 669 F.2d was to specific tailored vindicate the state agree present am inclined to that under Kerr, Gasparinetti interest at stake. v. See 315; defense qualified immunity standards the supra, 568 F.2d at cf. Tanner v. Harlow, McCall, Indeed, prevail. should the Court held supra, 625 F.2d at 1189. immunity granted that officials should be given Egger’s hardship solicitude was situa- conduct, at the time it was tion as well. He was transferred to Chica- unless their undertaken, go, great “clearly not a deal farther from his rela- violated established office, Egger position seems to take the that he was the clerk circulated around the his fellow employees thought ostracized his fellow as a result inter- workers it would be in their best of, McElhaney’s part, statement to a at least Egger. Phillips culpable, ests to avoid single employee. Egger sug- clerical does not view, failing take the action to gest he has evidence that directed Egger response wanted him to take in McElhaney employees give Egger to instruct Precisely action would the situation. what this treatment, assuming McElhaney even the silent clear, entirely been is not but we surmise have sug- a statement. Nor does made such liked to an- would have McElhaney gest made such statements they agents in the office that nounce to Rather, Egger’s anyone theo- else in the office. give the silent treatment. were not McElhaney ry something follows. runs it, action, futility of The need for such and the up throughout being office as for a known quite plainly. bespeak for a transfer the need promotion, and when word of his statement statutory constitutional rights of which a vens actions and waiver of his first reasonable person would have known.” rights amendment were entertained Harlow, 102 S.Ct. at 2737. In the case argument court en banc. Neither us, test, before under the Harlow Phillips’ presented to the panel, though argu- transfer of protected, seems since it ment that Bivens actions should be denied was not July until 1979 that this circuit to FBI agents government’s was the fore- specifically job transfer, held that a in con- most contention rehearing. govern- trast to a discharge, could be the subject of ment explained lamely in its Petition for a first challenge. amendment McGill v. Rehearing that issue was “[Bivens] Education, Board of (7th F.2d raised by (10/27/78) Motion to Dismiss Cir.1979). See also Givhan v. Western Line prevailed district court but we there on District, Consolidated School 439 grounds different and thus did not raise the (1979).1 L.Ed.2d 619 issue in appeals.” the court of Defendant’s ' Petition for Rehearing at 8 n. 6. I need respects, however, In all other I adhere to hardly point out the disorder and wasted panel opinion author, of which I am the effort —not to mention denigration' of the Phillips, (7th 669 F.2d 497 Cir. panel work of members —that result from 1982). In particular, I adopt for purposes allowing arguments new to be made and separate of this opinion the observations considered on rehearing. Some of the same made difficulties, there regarding the in a argue considerations which for solicitude summary judgment context, sorting of out for other with problems respect tribunals to the ex- of motivation and other questions haustion of claims and argue of state of remedies mind. The problem in the in- is, least course, equally stant case fоr solicitude for the panels distinguish to be- Phillips’ Litigants tween this court. should not reactions be encour- to as a aged sweeping “whistleblower” and to save their most corruption fighter not and —if his reactions to their Egger as an most meritorious —claims for eccentric trou- blemaker. rehearing petition. Although object I to argu- after-the-fact nature of these Also, be, it may as suggested, is ments, I nevertheless concur here in their Egger could have avoided some hard feel- rejection on the merits. ings disruption and by keeping his com- plaints against Naum anonymous. su- See I therefore respectfully concur in the re- pra at 318-319. This sult approach, Judge and Parts III and V of Esch- how- ever, although practical, seems at the same opinion. bach’s time furtive and cowardly. It is also un- POSNER,

clear to why Judge, me Circuit Egger should whom necessarily BAUER, WOOD, bear the that, Jr., entire cost of HARLINGTON speech if it prove justified COFFEY, should facts, Judges, join, concurring. Circuit manifestly helpful public and to join Judge I in all but Parts III and ofV the Bureau. supra See at 323.2 thorough and opin- Eschbach’s meticulous I Finally, disappointed am argu- agent may that the ion. Part III holds that an FBI ments regarding immunity FBI from Bi- bring .damages alleged a suit for an viola- me, analysis Denno, 293, 301, 1. It is not clear to under law. See Stovall v. 388 U.S. (assuming correct), progress 1967, 1972, it (1967). is how L.Ed.2d 1199 development of the law States, is to be accom- generally Mackey See v. United plished presumably since defendants will be 667, 675-702, 1160, 1164-1165, liability unprecedented able to avoid situa- J., (Harlan, dissenting). L.Ed.2d 404 by invoking tions the Harlow defense. Wheth- recognize right er a court could a defendant’s else be said Whatever about immunity go but then on to hold the conduct concerns, they public assumed sufficient im- complained illegal for future cases would portance reality subject to become a problems seem to raise serious Article III story national television network on ABC removing plaintiffs well as incentive of program, (November 1982). news “20/20” requiring change advance contentions address the com- adequately fails to rights brought opinion tion of his constitutional Bureau of In- needs of the Federal pelling a transfer from one FBI office about enforcement and indeed all law vestigation Part Y holds that one does another. maintaining highest degree up right speech by agencies, of free becom- give confidentiality, efficien- agent. disposi- corps, FBI In view of esprit de case, Part III nor Part V in fact far supervision, neither cy, discipline tion decision, court’s and Part essential to the other unit greater is than those that I particular III in reaches a conclusion the interests respect, In this government. think it accept. find difficult to I would are agencies enforcement and needs of law trying to, of valor to avoid part allied, the better similar exactly but not closely in this case. question resolve either Although agree I military. thоse of the the constitutional pertaining that cases by the a recent decision not cited are not control- military personnel rights of (7th court, Reagan, 696 F.2d 551 Jones case, many of the considerations ling in this Cir.1983), of this court held panel de military’s esprit need underlying the reserve unit could not army members of an confidentiality, efficiency, discipline corps, violation bring damages alleged action for compelling in equally are supervision brought about rights of their constitutional There- police context of civilian forces. unit to an- by a transfer from one reserve fore, plurality’s with the criticism disagree I distinguishable from this other. The case statement: of the district court’s grounds but I am not con- case on several also erred in charac- “The district court this case should be decided dif- vinced that para-military organ- FBI as a terizing the potential disruptive in view of the ferently, Eg- thereby suggesting if it was ization the FBI’s damages liability effect of rights could be sub- ger’s constitutional discipline maintain and cohesion. ability to a mili- appropriate in ject to constraints completely persuaded am not I also generally, Brown environment. See tary right First Amendment agents FBI have a Gliens, v. 444 U.S. S.Ct. superiors. their The adverse to criticize sta- (1980) (analyzing special L.Ed.2d 540 and right discipline of such a effect constitutional military personnel’s tus of of al- outweigh the benefits cohesion rejected the repeatedly We have rights). fully in lowing agents participate FBI analogize state and local invitations to ideas. marketplace the military agencies law enforcement either of these issues was thought If I analyzing po- the purposes for forces I would inescapably presented by this case ” .... lice officers’ liberties grapple and with them up my roll sleeves brief statement district court’s I read the persuaded the end would be maybe and organiza- “para-military FBI is a the since analysis. But by Judge Eschbach’s information, disci- security of tion wherein and inessential I they are at once difficult primary impor- teamwork are of pline and their to see the court defer prefer unique the analogy recognizing tance” as an they where are resolution until a case arises of law en- requirements compelling and only As four inescapably presented. finding not as a and agencies, forcement III joined have Parts eight judges voting the constitutional relating to that cases their V, the court has deferred in effect controlling are military personnel rights of day. another resolution to in this fact situation. COFFEY, concurring in Judge, Circuit

part. I. Johnson, v. Kelley Bauer, Supreme The Court Wood and Judges agree I 47 L.Ed.2d the 425 U.S. need not resolve

Posner that this court considerations unique (1976) recognized and V of in Parts III issues addressed employment play when which come into However, I am com- plurality opinion. policе department of a related decision plurality as the separately to write pelled subjected stated, to constitutional challenge. morning inspection, ant during Kelley, police challenged “unreasonable, officer the con- superior that his was an con- stitutionality of a police department regula- trary Following and vindictive individual.” governing length tion of officers’ hair. statement, plaintiff disciplined this The Appeals Court of for the Second Circuit by police department violating for its regulation had held the unconstitutional: regulation prohibiting “misconduct or any

“The court of appeals held that cases conduct ... which tends to subvert characterizing order, the uniformed civilian good of this efficiency discipline services as ‘para-military’ sustaining department.” plaintiff brought The an ac- hair regulations on that basis were not tion alleging police department that the soundly grounded historically. It said violated the First Amendment in disciplin- that the fact that a police organ- force is rejected him. The Ninth .Circuit ized ‘with a centralized administration argument police depart- and held that a disciplined rank file effi- ment’s discipline outweighed interests cient conduct of its affairs’ did not fore- plaintiff’s rights. First Amendment respondent’s claim, close but instead bore The court stated: only upon ‘the existence legitimate of a “It is [police] depart- true ... that the state interest to be reasonably advanced ment has a substantial interest in devel- ” regulation.’ oping ‘discipline, esprit corps, de and uni- Id. at Johnson, at 1442. Supreme formity,’ S.Ct. The Kelley supra, 425 Court reversed the Circuit and held 1445], Second U.S. at 246 at to ensure S.Ct. [96 the hair length regulation was consti- adequate ‘promotion persons safety ” tutionally holding, valid. In so the Su- and property.’ preme Court stated: Id. 843. The court went on to distin- appeals court of “[T]he [reasoned] guish its holding Supreme from the Court’s the ‘unique judicial deference’ accorded Education, opinion Pickering v. Board of judiciary regulation of members 391 U.S. 20 L.Ed.2d 811 military was inapplicable because (1968), stating: there jus- was no historical or functional “The in Pickering pro- Court’s decision tification for the characterization of the vides guidance. plain- considerable police ‘para-military’. But the conclu- tiff in Pickering discharged was a teacher sion that such cases are inapposite, how- submitting a letter to the local news- correct, ever in no way detracts from the paper criticizing school board budgetary deference due County’s Suffolk choice of policies. public The Court found that the organizational structure for police its statement at issue related to a matter of force. Here the county has chosen a general public concern and that ‘the fact organization mode of which it undoubted- emplоyment only tangentially

ly deems the most enabling efficient in its insubstantially subject involved in the police carry out the assigned duties public matter of the communication.’ ... him under state and local law. Such a The peculiar Court concluded no choice necessarily gives weight arising state interest from the employ- overall need for discipline, esprit corps, de relationship ment was at stake and that and uniformity.” Pickering was therefore entitled to the Id. at at 1445 (emphasis S.Ct. add- same Amendment protection First af- ed). general public. forded the Pickering The noted: Court

The Ninth relied on Kelley Circuit holding in involving a case facts way similar to ‘These statements in no [were] this case. In Kannisto v. City County any person directed towards with Francisco, (9th San 541 F.2d 841 Cir. be in appellant normally whom 1976), denied, cert. daily 430 U.S. contact in the course of his work 1552, (1977), police L.Ed.2d 775 lieuten- a teacher. question Thus no

maintaining either discipline by imme- held that special considerations relevant superiors military diate harmony among co- needs warranted a ‘broader sweep’ in presented military regulations might workers is here. than Appellant’s permissible in a civilian criminal code. employment relationships with the and, extent, Board to somewhat lesser regulations, Police military regula- like superintendent tions, with the not the are generally by necessity cast in [were] kind of close broad terms. working relationships for which it can persuasively be claimed tioning.’ that personal The [were] shown, Court also necessary to nor could it be presumed, that loyalty and confidence emphasized their proper that it func- As illustrated cases such as that now there is a delicate balance to be struck in ly legitimate interests appear on both Breier, Jjt 501 F.2d 1185 S¡S if! Parker before us. ^[*] (7th and Bence [v. JjC Cir.1974)], Equal- Jfc the statements at issue ‘in any way either sides the scale. On the one side there impeded proper teacher’s perform- institutions, are the needs of such as the classroom, daily ance of his duties in military and the police, which must de- high or ... interfered mand a level regular opera- discipline duty with the of their tion of the members in order to function generally.’ school effectively good for the of all members of The facts in this case sharply contrast society.” Here, Pickering. those in Kannis- (emphasis added). to’s comments Id. at 1262-63 against were directed one under whose direction he worked in close law, Based on this case the following daily Questions contact. of discipline and First, analysis is mandated in this case. it harmony clearly presented are here. emphasized cannot be too strongly that the diatribe, Kannisto’s delivered as it was interests at issue in this case are entirely before his men while in Here, formation for Pickering. different than those in inspection, can presume allegations wrongdoing to have had a were di- rеcted one with whom he disruptive substantial worked influence on the close daily possible contact and involved a regular operations of the department ... disclosure of agency sensitive information. department’s conclusion that this was Moreover, Egger’s comments con- directly the case is entitled to considerable defer- cerned a of his co-employee’s performance ence.” directly duties and thus interfered with the Id. at 843-44. confidentiality, esprit corps de and efficient Eighth recently Circuit discussed the office, operation of the FBI whereas in similarities between the military and a civil Pickering “the fact employment [was] police ian Schnicker, force in Vorbeck v. 660 only tangentially and in- insubstantially (8th Cir.1981), denied, F.2d 1260 cert. subject volved in the matter of the public L.Ed.2d 462 communication.” Most importantly, (1982). Vorbeck, the St. Louis Police FBI, case the agency involves whose Officers Association brought an action dangerous sensitive and duties demand the alleging police department that the regula confidentiality, discipline utmost in and es- prohibiting tions “unbecoming conduct to a prit corps, de far different than the school department” member of the “contrary or setting Pickering. Although involved in good the order discipline depart and dealing rights cases with the constitutional ment” were unconstitutionally vague and controlling in military personnel are not chill the “unnecessarily officers’ ex instance, many this of the same considera- ercise of rights.” their constitutional are military tions relevant in a context rejecting argument, Eighth the Circuit equally important government law en- stated: agencies, they whether be the forcement Levy, FBI, Service, Marshal, Court Parker v. 417 po- U.S. local Secret U.S. “[T]he [in 94 (1974)] forces, sheriffs, supervi- S.Ct. 41 L.Ed.2d 439 lice discipline, etc.— 328

sion, confidentiality, efficiency esprit prosecuting attorney’s equally sig and office is de if corps they protect are to continue to nificant in the context of law enforcement only general not public agencies: working but themselves “When close relation as well. ships fulfilling public are essential re sponsibilities, degree of deference to wide Government law agencies, enforcement employer’s judgment appropriate.” is FBI, Service, whether they Secret Myers, ___ U.S. ___, ___, Connick v. Marshal, forces, sheriffs, police U.S. local 1684, 1692, (1983). S.Ct. 75 L.Ed.2d 708 etc., very are indeed similar to the military direction, supervi- terms of the need for II. sion, discipline, confidentiality, efficiency plurality opinion puts empha- The undue esprit Thus, and de corps. courts should sis on the district court’s brief statement defer, possible whenever consistent with the a “para-military organiza- FBI is Constitution, to the superior expertise of information, security tion wherein disci- professionals law enforcement in dealing impor- are of pline primary and teamwork with their respectivе personnel. As the Su- para- tance.” This brief reference to the preme Court stated analogous in an con- military nature of the FBI should not be text, administration, prison courts “should finding by construed as a the district court ‘second-guess expert administrators pertaining cases to the constitutional they matters on which are better in- rights are military of members of the con- formed’ .... Prison administrators there- Rather, trolling in this fact situation. fore should be accorded wide-ranging defer- statement, district court’s when viewed in ence in the adoption and execution of poli- context, its proper merely recognition practices cies and judgment their considerations discussed above. are preserve needed to internal order and ” Thus, I have in the result reached concurred discipline Wolfish, .... Bell v. 441 U.S. court, by the separately but have written 520, 544, 547, 1861, 1876, 1878, emphasize unique compelling re- (1979). Likewise, questions L.Ed.2d re- quirements law I agencies. enforcement garding orderly and efficient operation personnel believe the decisions of the FBI police of a force are analogous to those must agencies of all law enforcement concerning administration of health care fa- agen- be afforded broad deference if these cilities, in that both involve situations ad- perform proper cies are to be able to their ministrative determinations which are best dealing roles. More is at stake when left to the superior expertise of trained personnel decisions of a law enforce- professionals. Supreme The Court agency ment than with those of other Romeo, Youngberg v. governmental of not agency. safety (1982) L.Ed.2d 28 stated: only personnel the law enforcement them- “In determining what is ‘reasonable’ . .. general public, depend selves but also the emphasize we that courts must show def- on the of these ability of administrators erence to the judgment exercised agencies discipline, to maintain con- proper professional. By limiting judi- trained so fidentiality, supervision esprit corps. de cial challenges review of to conditions in institutions, state interference the fed- CUMMINGS, Judge, Before Chief judiciary eral with the internal operations PELL, BAUER, CUDAHY,* WOOD, of these institutions should be minimized. ESCHBACH, POSNER, COFFEY and Moreover, there certainly is no reason FLAUM, Judges. Circuit judges juries think are better qualified appropriate professionals than in making ORDER (emphasis added). such decisions.” This cause is now before the court on Reconsider, The Supreme appellant’s Stay, Court’s recent statement re- for “Motion garding the employment requirements of and for Remand to the District Court for * Judge Cudahy deny the motion without court. prejudice being brought to its the district

329 entered, and years judgment after the Purposes Supplementing the Record 9, too late. the motion Lastly, filed June comes far for Further Considеration” contain facts affidavit do not accompanying 1983. newly the conclusion that the support which Appellant seeks reconsideration not have been discovered evidence could evi newly of this case based discovered diligence. due through obtained earlier is of a request equivalent dence. His appellant’s failure of this is Typical 13 60(b)(2) request under Fed.R.Civ.P. motion affidavit, to infor- appellant points in which judgment newly relief from because by a in an inter- reporter mation obtained have discovered evidence which could not exercise Through the appellee. view with due diligence prior been discovered appellant could have de- diligence, of due judgment. the district court’s The motion he and his posed appellee, contention is properly before this court. “When have earlier secured the results could not motion appeal judgment pending reporter’s appel- interview with particular 60(b) judg Rule for under relief from true, lee, in no way even if establishes newly because of evidence ment discovered he not have obtained the information could should be filed in the district court and that the purported newly constitutes dis- proceed court should hear the motion. If covered evidence. the district court indicates that it will allow motion is appellant’s While the thrust the motion the court of should then appeals cause is re- reconsideration of this to remand Binks requested the cause.” newly on the basis of discovered quired v. Manufacturing Ransburg Co. Electro- Cir.1960),evidence, interpreted to the extent it can be 252, (7th Coating Corp., 281 F.2d 260 for of the court’s en petition rehearing as a dismissed, 211, rt. 366 81 U.S. S.Ct. ce 1091, previ- on the we banc decision same record Accord, (1961); 239 Wash 6 L.Ed.2d considered, petition rehearing ously 11, Education, ington v. Board of 498 F.2d is denied. Miller, (7th Cir.1974) (citing Wright 16 11 & Federal Practice Procedure: Civil 9,1983 mo- Accordingly, appellant’s June (1973), commending 263-65 at ‍‌‌​‌​‌‌​​‌​‌‌​‌​​​​​‌‌‌‌‌​‌‌​​​‌‌​‌‌​‌‌‌​‌‌‌‌‌‌‌‍§ hereby tion is denied. Salem, practice); First National Bank of Hirsch, (6th Ohio v. 345-46 F.2d

Cir.1976) curiam); (per generally, see FCC, Boston Corp.

Greater Television v. (D.C.Cir.1971), n. 22

F.2d 280 & cert. nom., FCC, CORPORATION, WHDH, denied sub v. Inc. DICKEY-JOHN Plaintiff-Appellee, 32 L.Ed.2d Moore, Practice, (1972); Cross-Appellant, J. Moore’s Federal (1982). Appellant to com failed 160.30[2] v. ply procedure, with this and hence ordinari TAPETRONICS COR- INTERNATIONAL ly deny such we would a motion without Inc., Electronics, and Field PORATION appellant prejudice permit to follow Defendants-Appellants, Cross-Appellees. However, in this procedure. established 81-2022, Nos. 81-2085. case, it clear court appears that the district 60(b)(2) required deny would be a Rule Appeals, Court of United States in this case on that it is ground motion Seventh Circuit. filed, motions un untimely. Such must be Feb. 1983. Argued Rule, express der the terms of the within June Decided and this year entry judgment, one limit is not the mainte time extended 14, 1983. As Amended June appeal, e.g. nance of an Greater Boston Banc En Rehearing Rehearing and FCC, Corp. Television 463 F.2d at supra, 24,1983. Aug. Denied 280; Moore, Practice, J. Moore’s Federal at 399-400 & n. H60.28[2] 160.30[2] (1982). The motion in this case comes

Case Details

Case Name: Charles E. Egger v. Harlan C. Phillips

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jun 22, 1983

Citation: 710 F.2d 292

Docket Number: 80-2503

Court Abbreviation: 7th Cir.