[00:00:01] Speaker 00: Case number 22-5264. [00:00:04] Speaker 00: Michael W. Langman at Belant versus Mary B. Garland in his official capacity as Attorney General of the United States at AL. [00:00:12] Speaker 00: Mr. Berger for the at Belant. [00:00:14] Speaker 00: Mr. Sturgill for the Apple East. [00:00:17] Speaker 03: Mr. Berger, good morning. [00:00:19] Speaker 03: Thank you. [00:00:19] Speaker 03: Thank you very much. [00:00:23] Speaker 03: Whenever you're ready. [00:00:24] Speaker 03: Okay. [00:00:25] Speaker 03: This is a case that is exclusively focused on process, not on the merits. [00:00:31] Speaker 03: Not going to be any discussion of merits of this case. [00:00:35] Speaker 03: The employer of this civil servant, civil servant, he's been employed for 19 odd years. [00:00:41] Speaker 03: The employer claims that it can summarily [00:00:47] Speaker 03: discharge him, remove him from service without notice, without an opportunity to be heard on any charges, simply because it claims that there were exigent circumstances, compelling circumstances, such as safety to the public, fellow employees, but yet nowhere [00:01:08] Speaker 03: in its discharge papers that it identify in any way what those exigent circumstances were. [00:01:14] Speaker 01: Go ahead. [00:01:16] Speaker 01: I just want to start out because you said it's focused on process. [00:01:20] Speaker 01: Yes. [00:01:20] Speaker 01: So if we're talking about a property interest, are you talking about the property interest in the expectation of continued employment or property interest with respect to an expectation of process? [00:01:32] Speaker 03: It's a property interest in the expectation of continued [00:01:38] Speaker 03: employment, that there is an objective basis provided by his employer that tells this gentleman that he cannot be summarily removed unless there are exigent circumstances. [00:01:53] Speaker 03: And the lawyer is obligated to at least identify what that consideration is. [00:02:01] Speaker 04: Where does, I actually have the same question, but let me ask it this way, which is where does the free memo limit the substantive grounds on which an employee can be terminated? [00:02:17] Speaker 04: I don't think it does. [00:02:18] Speaker 03: Yeah, well, at the free memo itself, quote it, [00:02:26] Speaker 03: These protections, that is a due process, will not apply to extraordinary cases which require immediate summary dismissal. [00:02:34] Speaker 03: I must preserve discretion. [00:02:36] Speaker 03: And then it defines what conditions the discretion. [00:02:41] Speaker 03: I preserve discretion where there's an exigent circumstance. [00:02:45] Speaker 04: In order to distinguish between one category of circumstances where the normal processes apply, [00:02:56] Speaker 04: and a different category of circumstances where summary processes are allowed, allowed under the memo. [00:03:06] Speaker 03: They gave examples, safety of the public, safety of fellow employees, national security interests, or other compelling circumstances. [00:03:17] Speaker 03: Now, we have experience in understanding what a compelling circumstance is, [00:03:22] Speaker 03: without identifying what that danger is. [00:03:25] Speaker 03: After all, we're dealing with an employee who was employed for six years after the events in question that are being relied upon. [00:03:32] Speaker 03: The summary is missing. [00:03:34] Speaker 03: He continued to function in an exemplary way. [00:03:39] Speaker 03: So if you're going to remove him without any opportunity to be heard at all, [00:03:44] Speaker 03: site and exigency. [00:03:46] Speaker 03: Tell us why it continues to be a danger to the public. [00:03:51] Speaker 03: It doesn't happen. [00:03:52] Speaker 03: They don't say a word about it. [00:03:54] Speaker 04: If you're right about that, then they didn't give him the process that the memo says they were supposed to give him. [00:04:05] Speaker 04: Well, you're not you're not arguing violation of the memo. [00:04:10] Speaker 03: No, no memos procedural protections. [00:04:12] Speaker 04: No, we have you have to argue that the memo limits the grounds on which they can fire substantive grounds. [00:04:21] Speaker 03: That's correct. [00:04:22] Speaker 04: And that's what I'm not seeing. [00:04:24] Speaker 04: Well, you're saying there's a line between [00:04:28] Speaker 04: types of process. [00:04:30] Speaker 03: Sure. [00:04:30] Speaker 03: Well, we have something called constitutional mania. [00:04:34] Speaker 03: What is a constitutional mania? [00:04:35] Speaker 03: Just simply notice an opportunity to be heard, which differs from the process that's defined in the free memo? [00:04:43] Speaker 04: Only if there's a protected property. [00:04:45] Speaker 03: Right. [00:04:45] Speaker 03: So I'm arguing that it seems to be almost like an oxymoron with the free memo here, which says, look, we could summarily remove you. [00:04:55] Speaker 03: You're an employee at will only if you're a danger to the public. [00:04:59] Speaker 03: I mean, that's what they seem to be saying. [00:05:01] Speaker 03: And how do we reconcile those two concepts? [00:05:04] Speaker 03: We can't. [00:05:05] Speaker 03: So show me that you're a danger to the public. [00:05:09] Speaker 03: Give me, under the Fifth Amendment, give me a due process, an opportunity to make a pitch to claim I'm not a danger to the public. [00:05:18] Speaker 03: Give me an hour. [00:05:19] Speaker 03: Bring me in a conference room. [00:05:20] Speaker 03: Do something to give me an opportunity to make that argument. [00:05:24] Speaker 01: Would this case be different if they explicitly stated one of those reasons as to the firing? [00:05:31] Speaker 03: Well, they, substantively, they do. [00:05:35] Speaker 03: What they say is, they do say. [00:05:37] Speaker 01: But I mean, I'm trying to get a sense of, you seem to be asking for more detail. [00:05:43] Speaker 01: Like, in other words, those are categories, but you seem to be asking for more detail. [00:05:47] Speaker 01: And then maybe, is this different in that regard? [00:05:49] Speaker 03: No, they could tell me. [00:05:50] Speaker 03: They could tell me, hey, you're a danger. [00:05:53] Speaker 03: They could say something, you're an imminent threat, which is what this provision provides. [00:05:59] Speaker 03: They could say that you're a national security risk. [00:06:02] Speaker 03: They could say anything they want. [00:06:05] Speaker 03: I don't really care too much about that. [00:06:07] Speaker 03: What I care about is I just have an opportunity. [00:06:11] Speaker 03: Because what's the objective expectation of someone like this? [00:06:16] Speaker 03: I cannot be summarily fired unless I pose a threat [00:06:22] Speaker 03: That's really what he's thinking. [00:06:24] Speaker 04: But I can be fired for any reason. [00:06:27] Speaker 04: That doesn't say that. [00:06:29] Speaker 03: If it did, I wouldn't be here. [00:06:30] Speaker 04: He's an at-will employee. [00:06:32] Speaker 03: If it said that, if it simply said, which is what it really should have said, [00:06:38] Speaker 03: I could remove any of them. [00:06:39] Speaker 04: Suppose they want to fire him for a reason that's not compelling and exigent. [00:06:44] Speaker 04: He's just a B plus employee instead of an A plus employee. [00:06:48] Speaker 04: They can do that. [00:06:49] Speaker 04: They have to follow the rules. [00:06:50] Speaker 04: Memo does not restrict their ability to do that. [00:06:56] Speaker 03: Your Honor, I beg to differ. [00:06:57] Speaker 03: If they want to fire him for a non-exigent reason, they have to follow the rules, give him 30 days notice, give him the opportunity to be heard, give him charges. [00:07:06] Speaker 03: That's what they have to do. [00:07:07] Speaker 03: Because that's what they've promulgated. [00:07:09] Speaker 03: That's the expectation here. [00:07:11] Speaker 03: So now they want to summarily remove them. [00:07:14] Speaker 03: Bye bye. [00:07:15] Speaker 03: As you say, an employee at will. [00:07:17] Speaker 03: But it's fettered. [00:07:19] Speaker 03: It's not unfettered. [00:07:21] Speaker 02: So counsel, I understand your argument to be that the free memos reference to exigent and compelling circumstances creates a substantive limit on how somebody can be summarily dismissed. [00:07:36] Speaker 02: But that language, how would you distinguish this case from Kentucky Department of Corrections versus Thompson, where there was similar language? [00:07:45] Speaker 02: It was a procedure that said visitors could be excluded when officials find reasonable grounds to believe that the visitor's presence in the institution would constitute a clear and probable danger. [00:07:56] Speaker 02: It sounds like that's a limit, but we held that it was not. [00:07:59] Speaker 02: It's not sufficiently mandatory. [00:08:01] Speaker 02: It doesn't sufficiently cabin discretion. [00:08:04] Speaker 02: And I don't see how this case, [00:08:06] Speaker 02: is distinguishable from that case in terms of the specificity of the mandate. [00:08:14] Speaker 03: Well, I would argue that you're dealing with a level of reasonability. [00:08:18] Speaker 03: That is, difference between what is reasonable, what are the circumstances, versus what is exigent, or what is a safety to the public threat. [00:08:29] Speaker 02: Well, this one says a clear and probable danger to security. [00:08:34] Speaker 02: Seems similar. [00:08:35] Speaker 02: We said that's not enough to create a property interest. [00:08:39] Speaker 03: Well, I would argue in a case like that that this court, though, has issued other decisions which seemingly are inconsistent with that. [00:08:52] Speaker 03: I was looking at the, very quickly, but I looked at, [00:09:06] Speaker 03: But Block v. Powell, you know, and the tarp pay court, which ruled that if the statute leaves a benefit to the discretion of the government official, no protected property interest. [00:09:24] Speaker 03: I don't, I'm not familiar with the Texas case, I'm sorry. [00:09:27] Speaker 03: However. [00:09:29] Speaker 02: It's a Supreme Court case. [00:09:31] Speaker 03: Okay, I understand. [00:09:33] Speaker 03: Thank you. [00:09:35] Speaker 03: The Supreme Court has also ruled in Webster-Rideau that if there is a what I call meaningful substantive standard, a meaningful substantive standard, that conditions summary dismissal, or that conditions discretion. [00:09:52] Speaker 03: I'd have to look at the Supreme Court case to see whether they consider that to be a meaningful standard. [00:09:57] Speaker 03: But that's what the Supreme Court said in Webster v. Doe at 486 US 592. [00:10:01] Speaker 03: I don't see how we can distance ourselves from a meaningful standard in these cases here. [00:10:06] Speaker 02: How is it a meaningful standard? [00:10:08] Speaker 02: Like, how would we review a decision that something's exaggerated? [00:10:12] Speaker 03: Is he a danger to the public? [00:10:14] Speaker 03: Is he a danger to the public? [00:10:16] Speaker 03: Is he a danger to his fellow employees? [00:10:19] Speaker 03: Is there a national security interest at stake here? [00:10:22] Speaker 03: And I'm not even asking this court to make that decision. [00:10:24] Speaker 03: I'm just asking for a remand back to the employer to give him an opportunity to make his pitch. [00:10:30] Speaker 03: That's all I'm asking for. [00:10:31] Speaker 03: I'm not even asking for a judicial review. [00:10:34] Speaker 03: Now, it's possible that Supreme Court case you cite forecloses judicial review. [00:10:39] Speaker 03: I understand that. [00:10:40] Speaker 03: But I'm asking that only his employer be given the opportunity. [00:10:43] Speaker 03: He'd be given the opportunity before his employer. [00:10:45] Speaker 03: I'm not asking for this court to make that decision. [00:10:47] Speaker 03: I'm asking for his employer to make that decision. [00:10:51] Speaker 03: I'm just asking for a remand. [00:10:53] Speaker 03: That's it. [00:10:54] Speaker 03: Give me my hour. [00:10:55] Speaker 03: Give me my half hour, whatever it is. [00:10:59] Speaker 03: And I think that Texas Court actually was talking about whether a judicial review was foreclosed or not. [00:11:04] Speaker 03: I'm not asking that. [00:11:08] Speaker 01: We also have another DC Circuit course, Ashton versus Silberletti, albeit 1979, but is dealing with an FBI employee handbook. [00:11:18] Speaker 01: And in that handbook, it was ambiguous. [00:11:21] Speaker 01: And so then they offered the property interest in that regard in terms of the language over broad in that regard. [00:11:28] Speaker 01: So I kind of look at this case as any employment at will case allows for a person to be fired for any reason, good reason, bad reason, no reason, unless there is some mandatory language or broad language that requires there to be discretion in either a progressive discipline policy or things of that nature. [00:11:53] Speaker 01: And so, you know, back to Judge Pan's question [00:11:56] Speaker 01: And even Judge Katz says about these limitations, if you don't have some absolute mandatory limitations on that process, then how are we to believe that there is such a cause of action available to you? [00:12:12] Speaker 03: I think the standard, as I understand it, is is it objective enough for an employee to believe that he or she would have an expectation that they would not be summarily fired [00:12:25] Speaker 03: in the absence of a threat. [00:12:29] Speaker 02: Where are you getting that standard? [00:12:31] Speaker 02: I have not heard that standard or seen that standard cited anywhere. [00:12:36] Speaker 02: My understanding is the standard is that the source has to have explicitly mandatory terms or unmistakably mandatory terms that cab in the discretion of the agency. [00:12:52] Speaker 03: I could locate it. [00:12:53] Speaker 03: I could locate it. [00:12:55] Speaker 03: I've seen it. [00:12:59] Speaker 03: But I believe that is standard. [00:13:01] Speaker 03: I'll find it when I get to my rebuttal, Your Honor. [00:13:03] Speaker 01: All right. [00:13:04] Speaker 01: That's fine. [00:13:04] Speaker 03: OK. [00:13:05] Speaker 01: But then I'd like to move on to your liberty interest. [00:13:12] Speaker ?: Yes. [00:13:12] Speaker 02: OK. [00:13:12] Speaker 02: It seems to me that your liberty interest arguments hinge on an allegation. [00:13:19] Speaker 02: There has to be an allegation that [00:13:23] Speaker 02: the government, the agency, the employer has disseminated the information about the employee. [00:13:30] Speaker 02: And I just don't think that's adequately pled in your complaint. [00:13:34] Speaker 02: Or can you point to where it is adequately pled? [00:13:36] Speaker 03: Yeah, I would say that the most concrete example of that is the CNN report that was actually cited by the [00:13:47] Speaker 02: But we don't know who gave that information to CNN. [00:13:50] Speaker 03: We don't. [00:13:51] Speaker 03: But is it fair to the appellant, at this early stage, dismiss a complaint without perhaps the benefit of some discovery? [00:14:02] Speaker 03: That would be my only claim in that. [00:14:05] Speaker 03: I mean, you're right. [00:14:06] Speaker 03: We don't know the source of that CNN report that actually names him as the individual that was responsible. [00:14:12] Speaker 03: He was fired. [00:14:13] Speaker 03: And no comment. [00:14:15] Speaker 03: But I think that he should be given the opportunity to obtain some discovery. [00:14:19] Speaker 03: After all, it is an allegation. [00:14:22] Speaker 03: If it's true, and all we have to claim is that the government was the source of that information, he would have a cause of action. [00:14:30] Speaker 02: It seems, though, that there could be many different sources for that information. [00:14:34] Speaker 02: And it doesn't seem fair to conclude that it was more likely than not the government, right? [00:14:40] Speaker 03: I'm with you on that, but all I would say is that I think it's just premature to dismiss a complaint without giving him some opportunity to engage in discovery and then a motion can be renewed at some later point. [00:14:52] Speaker 03: That's my claim on that situation. [00:14:54] Speaker 04: The closest you have in the complaint is your allegation that the defendants published through official channels these allegations for review by the [00:15:11] Speaker 04: Can you elaborate on that? [00:15:13] Speaker 04: Are we talking about the public release of the OIG report? [00:15:19] Speaker 04: Are we talking about naming the agent in the media, both? [00:15:25] Speaker 03: Yes. [00:15:26] Speaker 03: Naming the agent in the media. [00:15:29] Speaker 03: And that's CNN report. [00:15:31] Speaker 03: That is the only report that names it. [00:15:36] Speaker 03: The OIG report is that. [00:15:36] Speaker 03: Well, there's actually more than that. [00:15:40] Speaker 03: Yeah. [00:15:41] Speaker 03: The OIG report was redacted. [00:15:44] Speaker 03: People would be able to figure out who these people are very easily. [00:15:47] Speaker 03: They referred to him as a supervisor in some reports. [00:15:50] Speaker 03: They name him in other reports. [00:15:52] Speaker 03: It's quite clear who he is. [00:15:55] Speaker 03: So the stigma is there. [00:15:59] Speaker 04: You didn't plead. [00:16:02] Speaker 04: The OIG report names him as a supervisory special agent in the Indianapolis office. [00:16:11] Speaker 04: It gives some other details, supervised the violent crimes against children's squab, talks about when he joins the Bureau, talks about his prior, one of his prior jobs. [00:16:24] Speaker 04: I assume you all would know this, but the complaint doesn't have any elaboration on whether that set of descriptors would clearly identify him. [00:16:37] Speaker 03: Understood. [00:16:38] Speaker 03: Actually, it was the respondent who's [00:16:41] Speaker 03: supplied those descriptors. [00:16:44] Speaker 03: And that just goes back to my point that they're in the best position to know. [00:16:49] Speaker 04: I assume your client knows how many special supervisory agents there were. [00:16:56] Speaker 03: If that's the point, I understand. [00:16:57] Speaker 04: Am I right if there's a report that says the 40th president of the United States did something, we sort of know who that is. [00:17:05] Speaker 03: No, I understand. [00:17:06] Speaker 03: I understand. [00:17:07] Speaker 03: But those descriptors came from the respondents. [00:17:12] Speaker 03: It didn't come from my client. [00:17:14] Speaker 03: So it came from the respondents. [00:17:16] Speaker 03: They actually articulated all the various news articles. [00:17:19] Speaker 03: They put it in there because they wanted to show how horrible he was. [00:17:23] Speaker 03: OK, I get it. [00:17:24] Speaker 03: But by doing that, they've made my point that he's been stigmatized. [00:17:29] Speaker 03: That's all. [00:17:30] Speaker 03: And I just want the opportunity to do some discovery on that so we can flesh out the record. [00:17:35] Speaker 03: I just think it's premature right now at the complaint stage. [00:17:39] Speaker 04: On your stigma theory? [00:17:42] Speaker 04: Not reputation plus, but stigma. [00:17:45] Speaker 04: Our cases seem to say that you have to plead that the plaintiff sought alternative employment and couldn't obtain it. [00:17:59] Speaker 04: And there's just nothing like that in the complaint. [00:18:04] Speaker 03: I think it's clearly implied that when you're under these circumstances, he... It seems like an obvious inference, but it's... I mean, you have to plead the elements. [00:18:21] Speaker 03: I understand that, but I do believe that there's enough in there to suggest that he was hampered, not completely foreclosed. [00:18:29] Speaker 03: And I think it's clearly obvious that hampering [00:18:34] Speaker 03: is associated with this stigma, because he had reached public contempt in the news. [00:18:48] Speaker 03: He was stigmatized. [00:18:52] Speaker 01: OK. [00:18:53] Speaker 01: One little issue, only because I would ask the defense to respond to this. [00:18:57] Speaker 01: We're here on a motion to dismiss. [00:18:59] Speaker 01: I'm trying to cabin everything to the complaint, which is sufficiency of applications. [00:19:03] Speaker 01: and or whether or not any such cause of action exists. [00:19:07] Speaker 01: And at least with respect to the liberty interest, it appears that the district court assumed without deciding that there was a liberty interest, but then decided that there was adequacy of the process. [00:19:20] Speaker 01: Yes. [00:19:20] Speaker 01: And so do you want to speak to whether or not that kind of went to the mayor? [00:19:24] Speaker 03: Yeah, very quickly. [00:19:26] Speaker 03: The process that the district court was referring to was the fact that he was the subject of an Office of Inspector General Investigation. [00:19:34] Speaker 03: He sat for two interviews and he was questioned about his role in this matter. [00:19:42] Speaker 03: The fact that you are responding to fairly tailored questions in an investigation does not rise to due process. [00:19:52] Speaker 03: simply responding, he doesn't have the opportunity to see what the charges ultimately are, he doesn't have an opportunity to see all the statements that back up these various charges. [00:20:02] Speaker 01: I guess my question goes to whether or not at this stage all of that should be considered because we're on a motion to dismiss. [00:20:09] Speaker 03: Absolutely, absolutely because simply responding to questions and an interrogation in which you're compelled to be there, [00:20:19] Speaker 03: certainly no way can inform him ultimately of the basis for their claims and the merits or the veracity of the statements that are being made against him. [00:20:33] Speaker 03: He doesn't know. [00:20:34] Speaker 03: He's just answering very specific, narrow sets of questions that the OIG has an agenda, not a bad agenda, an agenda to ask. [00:20:44] Speaker 03: What does he know? [00:20:46] Speaker 04: Assuming we reach this question, why isn't it sufficient process that he was shown the draft OIG report and had an opportunity to comment and respond? [00:21:04] Speaker 03: Well, what he was shown is simply summaries. [00:21:08] Speaker 03: He doesn't see the entire set of statements. [00:21:12] Speaker 03: He was only shown [00:21:13] Speaker 04: was he shown a draft of the report? [00:21:16] Speaker 04: I could be wrong. [00:21:16] Speaker 03: I thought he was. [00:21:17] Speaker 03: No, no, no. [00:21:17] Speaker 03: He was shown only the summaries. [00:21:20] Speaker 03: The OIG agents summarized various statements that he made. [00:21:25] Speaker 03: But he was shown that. [00:21:27] Speaker 03: But again, that's the time. [00:21:28] Speaker 04: But if you're talking about the level of process required to justify termination, assuming a liberty interest, I mean, it's not [00:21:43] Speaker 04: criminal process. [00:21:45] Speaker 04: I don't know of any cases that say he has discovery rights. [00:21:49] Speaker 04: It's just notice and an opportunity to be heard. [00:21:52] Speaker 03: Right, but he's making his pitch only to the Office of Inspector General. [00:21:57] Speaker 03: He's telling them, first of all, he's already, the OIG agent has already synthesized and summarized this information. [00:22:05] Speaker 03: We don't have access to the actual science board statements. [00:22:09] Speaker 03: We don't have access to any of that. [00:22:11] Speaker 03: And we're not making a pitch to a deciding official. [00:22:15] Speaker 02: Hasn't the government waived any argument in this regard by not defending the process on appeal? [00:22:22] Speaker 03: Has the government waived it? [00:22:24] Speaker 03: They have not defended it. [00:22:25] Speaker 03: I would agree. [00:22:28] Speaker 03: It doesn't seem to be an issue. [00:22:30] Speaker 01: And just to be clear quickly, the CNN report's not in the complaint. [00:22:34] Speaker 03: No, it's not. [00:22:36] Speaker 03: Nope, it was an emotion to dismiss. [00:22:38] Speaker 03: I can only reiterate the one point. [00:22:41] Speaker 03: I just think it's premature to dismiss the liberty claim for that. [00:22:46] Speaker 04: Okay, thank you. [00:22:48] Speaker 04: We'll give you some rebuttal. [00:22:49] Speaker 03: Yeah, I appreciate that. [00:22:50] Speaker 03: Thank you. [00:23:06] Speaker 05: You're up. [00:23:08] Speaker 05: To please the court, Lowell Sturgell from the Department of Justice, representing the government. [00:23:12] Speaker 05: While the FBI has chosen to provide its employees with due process protections. [00:23:17] Speaker 04: Maybe lower the mic, not coming through clearly. [00:23:25] Speaker 05: I hope that's better. [00:23:27] Speaker 05: Time will tell, I guess. [00:23:29] Speaker 05: While the FBI has provided its employees with due process protections, it has also reserved the discretion to act summarily and dismiss employees summarily. [00:23:43] Speaker 05: And the reason it needs to do that is in order to maintain public confidence in the work of the FBI and to protect the public. [00:23:50] Speaker 05: So in this case, the free memo itself [00:23:56] Speaker 05: uses discretionary language and it fully reserves that discretion without creating any substantive limits. [00:24:03] Speaker 05: A couple of points on that that are helpful. [00:24:06] Speaker 05: First, a term like compelling is not itself explicit enough. [00:24:11] Speaker 05: And the test here from the court's cases is whether the language in question is explicit. [00:24:17] Speaker 05: So a term like compelling is inherently not explicit enough to create a protected property interest. [00:24:24] Speaker 05: But beyond that, if you look at the language, there's discretionary language even in describing compelling. [00:24:31] Speaker 05: Free memo says, compelling considerations if it may be compelling. [00:24:36] Speaker 05: So maybe is clearly discretionary language. [00:24:40] Speaker 02: So it seems like your position is that the words [00:24:43] Speaker 02: extenuating or compelling, all those qualifying words do no work at all. [00:24:49] Speaker 02: Is that correct? [00:24:51] Speaker 05: So first of all, they're not specific enough to limit the discretion of the FBI for purposes of determining property interests. [00:24:59] Speaker 02: If I'm the FBI director and you work for me and I just don't like your tie, it just really bothers me. [00:25:06] Speaker 02: It offends me. [00:25:07] Speaker 02: And I say, this is extraordinary and compelling and you're fired. [00:25:12] Speaker 02: Is there any recourse to you? [00:25:15] Speaker 05: So there's no there's no protected property and the employee couldn't say I deserve some kind of opportunity to make a case for you for why this is. [00:25:25] Speaker 02: So there's no recourse. [00:25:28] Speaker 05: There's no recourse at all. [00:25:30] Speaker 02: If you're saying there's unfettered discretion in the FBI director or assistant directors and above. [00:25:38] Speaker 02: to determine what's an extraordinary or compelling circumstance. [00:25:44] Speaker 05: Well, the employee can bring a Title VII suit or some other kind of cause of action. [00:25:48] Speaker 05: But what we have in this case. [00:25:48] Speaker 02: Well, what's the protected class of people who have ties that the FBI director doesn't like? [00:25:54] Speaker 05: Well, it may be that that would not create it, that would not support a Title VII action. [00:25:59] Speaker 05: But again, these are at-will employees. [00:26:01] Speaker 02: So your answer is there's no recourse to somebody like that. [00:26:03] Speaker 02: The FBI director or assistant directors and above [00:26:06] Speaker 02: can fire somebody for any reason or no reason at all if they characterize the reason as compelling. [00:26:13] Speaker 05: Well, that's the way it is with all at-will employees. [00:26:16] Speaker 05: They can bring Title VII actions, but if they don't have a Title VII action, you can't bring a complaint unless they either have a statutory cause of action or a constitutional one. [00:26:25] Speaker 05: So I think in your hypothetical, there wouldn't be. [00:26:29] Speaker 05: But again, I think- But those words do no work. [00:26:31] Speaker 05: Well, they certainly, first of all, they guide the public in understanding what the FBI is doing and what the purpose of all of this is. [00:26:40] Speaker 05: So they serve that purpose. [00:26:42] Speaker 05: And then I think they would help the FBI understand what this is all about and how it should use its authority. [00:26:51] Speaker 05: But does it actually limit that authority? [00:26:53] Speaker 05: No. [00:26:54] Speaker 05: In Torpey Doe, for example, this court said that where an agency reserves discretion and doesn't require itself to explain the reasons for what it's done, then there's no protected property interest. [00:27:07] Speaker 05: And that's what you have here. [00:27:08] Speaker 05: You have language that goes out of its way to reserve discretion for summary dismissals, and nothing in this language requires the FBI to give any reason whatsoever. [00:27:20] Speaker 05: for summarily terminating an employee. [00:27:23] Speaker 05: So under Tar Bay Doe, that is the end of that claim by itself. [00:27:28] Speaker 05: And also I mentioned in the Crooks case, this court held that a standard that was an agency could terminate somebody for the best interest of the program. [00:27:39] Speaker 05: Well, that was deemed not explicit enough to create a protected property interest and that's [00:27:45] Speaker 05: really have something very similar here, but you have something language like may be compelling is extremely broad. [00:27:54] Speaker 05: So for all those reasons, we think it's clear that the free memo expressly reserves discretion for summary determinations and definitely doesn't create any kind of explicit. [00:28:09] Speaker 01: So you indicate [00:28:11] Speaker 01: allows this unfettered discretion, but yet it also has the limitation of the categories. [00:28:16] Speaker 01: How do those two match up? [00:28:18] Speaker 05: So those are not, the key is, as the court I believe talked about before, are these substantive limitations that cabin discretion. [00:28:28] Speaker 05: And here, they don't. [00:28:30] Speaker 05: Because first of all, again, as in Tarpeh Doe, if you had something like that, then that would only cabin discretion if the language said, okay, well, FBI, you have to actually explain to the employee why you hired them. [00:28:44] Speaker 05: So there's nothing like that here, leaving it completely open for the FBI to engage in this kind of summary dismissal. [00:28:54] Speaker 04: What is the discretion that has to be constrained? [00:29:00] Speaker 04: Tarpehdo says a significant limit on substantive discretion. [00:29:07] Speaker 04: Is it the discretion to fire him? [00:29:12] Speaker 04: or the discretion to fire him summarily. [00:29:17] Speaker 04: I think there probably isn't a judicially enforceable limit on the discretion to fire summarily. [00:29:27] Speaker 04: Safety to the public, fellow employees, national security, other compelling considerations. [00:29:37] Speaker 04: It's not the brightest of lines, but it's a high bar. [00:29:40] Speaker 04: It's language. [00:29:42] Speaker 04: Compelling is a term that's judicially enforced throughout all of constitutional law, right? [00:29:49] Speaker 04: It doesn't seem unmanageable. [00:29:52] Speaker 04: But the problem I'm having is even if he gets over that hurdle, that just means he gets more in process. [00:30:00] Speaker 04: But at the end of that, [00:30:02] Speaker 04: he could still be fired for any reason, at least within this memo. [00:30:08] Speaker 05: So that's correct. [00:30:10] Speaker 05: The memo sets out process, but doesn't require a particular result. [00:30:15] Speaker 05: And that was the case in the Kentucky case, I believe, where the court in the prison context addressed terms like public safety and prison safety. [00:30:26] Speaker 05: but said that that didn't create a protected liberty interest because it didn't go to the next step and say, okay, well, if you fall within those categories, then the government has to. [00:30:38] Speaker 04: That one said if you fall within the category, you may be excluded from the prison, right? [00:30:45] Speaker 05: But it also... Something like that. [00:30:46] Speaker 05: Right. [00:30:47] Speaker 05: But it also contained... The Supreme Court held that elsewhere in the relevant provision, the provision included terms that were discretionary and made it clear that there was not something that had to be done at the end, even if it fell within... This one is of the form, you may not be summarily terminated [00:31:12] Speaker 04: unless some predicate is met. [00:31:17] Speaker 04: And the predicate is public safety, national security, or other compelling considerations. [00:31:23] Speaker 05: So looking at the language, at page 13 of the appendix, which you're at, first thing is, again, it says, I think this is really important, it says, when it's identifying these specific considerations, the plaintiff says, [00:31:39] Speaker 05: It says, other compelling interests that may be at stake. [00:31:43] Speaker 05: So it's not even saying, oh, if you can show a compelling interest, then that's a subset of limitation. [00:31:50] Speaker 05: It's as wide open as it could be. [00:31:51] Speaker 05: Basically, OK, anything that even could be a compelling. [00:31:54] Speaker 05: Well, that's not something that you find in constitutional law or anywhere else that you would address. [00:32:00] Speaker 05: So it's not like you can just map a free exercise claim onto this language, because it's not the same. [00:32:09] Speaker 05: And that wouldn't make sense anyway, because again, the whole point of doing this is so that the FBI can act [00:32:16] Speaker 05: when it's necessary in his judgment to maintain public confidence in the agency. [00:32:21] Speaker 04: And here what we have when I'm sure that's a fair summary of the whole memo. [00:32:27] Speaker 04: And the principle thrust of the memo is to codify a set of protection procedural protections that are the default rules for terminating FBI agents. [00:32:41] Speaker 04: And this is the exception for extraordinary cases. [00:32:45] Speaker 05: Again, I'm repeating myself, but I think if this discretionary language had went on to say, okay, well, here is some public order, compelling interests, some other identified concepts, and you must then explain to the employee what the grounds for the summary dismissal were, okay, that would be very different. [00:33:08] Speaker 05: that would be like in tarpy dough, but you don't have that. [00:33:11] Speaker 05: I think the mere absence of that is enough to take this case out of the protected property interest category. [00:33:18] Speaker 05: But even if it doesn't, again, Crooks said that language saying best interest to the government is not sufficient to create a protected property interest. [00:33:26] Speaker 05: And I don't see how something that may be compelling is really any substance different from best interests of the government. [00:33:38] Speaker 01: The district court assumed that there was the existence of a liberty interest, but doesn't really actually analyze, you know, those allegations in that regard. [00:33:50] Speaker 01: So then we kind of skipped to that there was adequate process, but we're on a motion to dismiss. [00:33:56] Speaker 01: So talk to me a little bit about whether that went a little further than it should have. [00:34:01] Speaker 01: Also, because I believe that you all stated you don't want us to decide that. [00:34:05] Speaker 01: So give me an opportunity to kind of explain the two. [00:34:08] Speaker 05: Sure. [00:34:09] Speaker 05: So as our brief explains, we think it's better practice for the court not to address the issue of whether Langman's two compelled OIG interviews provide him all the process that he was entitled to. [00:34:25] Speaker 05: And that's for a couple of reasons. [00:34:26] Speaker 05: First of all, we say it's [00:34:27] Speaker 05: It has to do with the independence of the Office of the Inspector General. [00:34:33] Speaker 05: So by statute, that office is separate from the FBI. [00:34:38] Speaker 05: What it does is what it did here. [00:34:40] Speaker 05: It conducts investigations, and then it issues reports. [00:34:44] Speaker 05: And it notifies the employing agency of what those results were. [00:34:49] Speaker 05: So then it's the employing agency's job to decide independently whether any employment action is [00:34:57] Speaker 05: So we think that separation is a reason for the court to think, but not address this and to just address the case on the grounds that we've given you. [00:35:11] Speaker 04: You're being a little coy with us. [00:35:14] Speaker 04: So let me just ask you directly. [00:35:17] Speaker 04: Suppose we think there is a liberty or a property interest [00:35:23] Speaker 04: We then must reach the question whether the district court was right on sufficiency of process. [00:35:31] Speaker 04: Are you confessing error on that or do you want us, are you defending it as a next best alternative ground for you to win on appeal? [00:35:42] Speaker 05: So we are not confessing error and we again are just asking the court not to reach the question. [00:35:47] Speaker 04: Well, then you're putting us in a pretty tough position, right? [00:35:50] Speaker 04: If we disagree with you on the threshold issue, [00:35:54] Speaker 04: we must decide that question, and you've given us no help. [00:35:59] Speaker 05: Well, Your Honor, we have, the department and the government has carefully considered this question, and it's come up with the position that we are not prepared to defend the district court's, the grounds for this court's judgment, so. [00:36:15] Speaker 02: And you've offered no alternative ground to uphold a finding that the process was sufficient, so. [00:36:21] Speaker 05: That's correct. [00:36:22] Speaker 02: In other words, if we think there's a property interest, do you lose this case on that ground? [00:36:27] Speaker 05: Well, we wouldn't lose the case. [00:36:28] Speaker 05: You would remand to the district court. [00:36:30] Speaker 02: Well, you lose the appeal. [00:36:32] Speaker 02: Sorry. [00:36:32] Speaker 05: It's a remand. [00:36:33] Speaker 05: You would remand, at least, to the liberty interest claim. [00:36:38] Speaker 05: And we're prepared to deal with the consequences of that. [00:36:40] Speaker 04: So sorry. [00:36:41] Speaker 04: Then you're not asking us to affirm on the ground. [00:36:45] Speaker 04: I understand you'd rather us affirm on the ground of no liberty or property interest. [00:36:52] Speaker 04: Correct. [00:36:52] Speaker 04: If you lose on that point, would you rather have the remand that Judge Pan posited or the possibility of an affirmance on the ground stated by the district court? [00:37:06] Speaker 05: So the remand? [00:37:08] Speaker 05: Remand. [00:37:08] Speaker 05: And that follows from the proposition that we have asked the court not to? [00:37:13] Speaker 04: Well, you asked us to decide the other ground as a preferable ground. [00:37:19] Speaker 04: You don't want us to decide that. [00:37:21] Speaker 04: I appreciate that. [00:37:23] Speaker 04: And I know it's not your call. [00:37:24] Speaker 04: So thank you. [00:37:25] Speaker 04: Thank you. [00:37:27] Speaker 05: So I'm sorry. [00:37:29] Speaker 04: No, I was just going to go to the merits of the Liberty. [00:37:32] Speaker 01: Thank you. [00:37:32] Speaker 04: Interest unless you unless you had a let's talk about suck about reputation loss. [00:37:43] Speaker 04: The allegations in the complaint are pretty thin. [00:37:48] Speaker 04: Right, but there is a general allegation that the defendants published, there's no question they terminated him. [00:37:58] Speaker 04: And then the plus is the defamatory statements, the allegedly false statements that harm him. [00:38:05] Speaker 04: And there's no question they released the OIG report. [00:38:11] Speaker 04: And they say they published through official channels for public review [00:38:18] Speaker 04: that he was, he's the agent. [00:38:22] Speaker 04: So we have, I'm sorry, go ahead. [00:38:24] Speaker 04: No, go ahead. [00:38:25] Speaker 04: I mean, we have lots of contemporaneous reports of which maybe we can take judicial notice. [00:38:38] Speaker 04: Your friend on the other side says just the CNN report. [00:38:42] Speaker 04: There's actually a lot more than that. [00:38:45] Speaker 04: There was a Senate Judiciary Committee hearing [00:38:48] Speaker 04: at which the director of the FBI named this agent as the special agent in charge, subject to the, who was discussed in the OIG report. [00:39:02] Speaker 05: So the plaintiffs have not relied on that report. [00:39:07] Speaker 05: So they've waived any argument that would be based on that report. [00:39:12] Speaker 05: And the complaint itself does nothing more than give you the threadbare recitance of the elements of the claim. [00:39:20] Speaker 05: And Iqbal clearly says that a plaintiff does not get the discovery merely by reciting the elements. [00:39:28] Speaker 04: The allegation in the complaint is that the defendants published through official channels [00:39:35] Speaker 04: all of these allegations against him. [00:39:38] Speaker 04: If the FBI director named him before the Senate Judiciary Committee, would that count as publishing through official channels? [00:39:46] Speaker 04: the allegations against him. [00:39:48] Speaker 05: Right, it wouldn't for, because under the O'Donnell case, this court held that in order to state a reputation plus claim, the alleged defamation has to occur at the same time as the adverse personnel action. [00:40:04] Speaker 05: And the court made that clear that that's a requirement. [00:40:06] Speaker 04: So here- He was fired August 31, 2021, five years after the underlying events. [00:40:14] Speaker 04: two weeks before the Senate Judiciary Committee here at which the agent was named. [00:40:21] Speaker 04: So under O'Donnell that timing is contemporaneous enough? [00:40:24] Speaker 05: No it is not your honor with respect because what O'Donnell says is that of course uh [00:40:32] Speaker 05: The mere allegation that the government has harmed somebody's reputation is not enough to state a constitutionally protected liberty interest. [00:40:40] Speaker 05: So what's required is some adverse employment action with that. [00:40:45] Speaker 05: And what O'Donnell says is that in order to get the plaintiff over that high hurdle [00:40:50] Speaker 05: to show an adverse employment action and harm to reputation, it has to happen at the same time. [00:40:58] Speaker 05: And the district courts in this circuit have taken this seriously. [00:41:01] Speaker 05: The Guinness case cited in our brief said the same thing. [00:41:04] Speaker 05: It took the court at its word and said it has to happen at the same time. [00:41:08] Speaker 05: And O'Donnell says, again, it's the combination of the two at the same time that creates the kind of stigma that is actionable. [00:41:16] Speaker 05: So you don't have that here even under the facts you've alleged. [00:41:20] Speaker 05: And I think that is enough to defeat their liberty interests without more. [00:41:25] Speaker 01: But is that the only opportune time? [00:41:28] Speaker 01: In other words, if Mr. Langerman is applying for employment with another federal agency, would this information be available to the federal agency and therefore create some later in time potentially actionable claim? [00:41:43] Speaker 05: So my understanding is that would not change the facts, is that what you look at under the case of O'Donnell is what is the alleged harm to reputation? [00:41:56] Speaker 05: What's the alleged public dissemination? [00:41:58] Speaker 05: When did that happen? [00:42:00] Speaker 05: When did the adverse personnel action happen? [00:42:03] Speaker 05: And what's alleged here is that he was, and you can see he was dismissed. [00:42:07] Speaker 05: And did those happen at the same time? [00:42:10] Speaker 01: And that's all, that's as far as- But you also stated in your brief that he has not alleged that he actually applied and was turned down an opportunity. [00:42:19] Speaker 01: So how does that square with what you just said, if you're trying to suggest that they only have one opportune time, which is the time of the firing that there was some type of defamation? [00:42:29] Speaker 05: So he had an interesting question. [00:42:30] Speaker 05: He hasn't alleged that, let's say somebody came in and alleged, or he alleged that, yes, I applied for a job down the line. [00:42:38] Speaker 05: And guess what? [00:42:39] Speaker 05: The FBI publicly defamed me at that time. [00:42:45] Speaker 05: So then the question would be, is the denial of a job based on that enough to create projected liberty interests? [00:42:53] Speaker 05: He hasn't put that issue in the case, so we haven't briefed it. [00:42:56] Speaker 05: I'm not prepared to tell you what the answer would be this morning because of that. [00:43:00] Speaker 05: But again, he hasn't argued it. [00:43:02] Speaker 05: And you don't have to address it, because he hasn't said that he's applied for a job. [00:43:06] Speaker 05: That's the best I think I can make of that. [00:43:10] Speaker 04: Can we infer the stigma? [00:43:14] Speaker 04: We've talked about reputation plus. [00:43:17] Speaker 04: Stigma is about what happens later when he applies for other jobs. [00:43:24] Speaker 04: Now, on the one hand, that is an element of this strand of a liberty claim, and it's not in the complaint. [00:43:34] Speaker 04: I mean, on the other hand, [00:43:36] Speaker 04: They fired the guy for these extremely serious allegations leading to 70 young athletes being molested. [00:43:48] Speaker 04: I mean, he's never gonna work in law enforcement again. [00:43:50] Speaker 04: That seems blindingly obvious. [00:43:52] Speaker 04: Can we draw that inference? [00:43:56] Speaker 05: So I don't believe the Orange case, which is the key case, creates any kind of what might be a futility exception to the requirement that somebody has to show that they've applied for a job and been denied it. [00:44:10] Speaker 05: So I think that's sort of the end of that. [00:44:13] Speaker 05: That's a bedrock requirement that he's got to plead and show, and he hasn't. [00:44:18] Speaker 05: And again, Orange is the key case. [00:44:20] Speaker 05: And the plaintiff uses the word hampered. [00:44:23] Speaker 05: And the complaint that this court's cases also say clearly that some stigma is not enough to create a protected liberty interest. [00:44:33] Speaker 05: So hampered sounds a lot like some stigma and far less than what a plaintiff has to plead in order to get over the high bar to show this kind of liberty interest. [00:44:49] Speaker 05: I believe that's. [00:44:51] Speaker 04: I'll let you wind down if you want, just briefly. [00:44:57] Speaker 05: We would just ask the court to confirm. [00:44:59] Speaker 04: Thank you. [00:45:10] Speaker 03: We'll give you two minutes. [00:45:11] Speaker 03: Thank you. [00:45:12] Speaker 03: Very briefly, I do have the quote, Your Honor. [00:45:15] Speaker 03: It's the Crooks, C-R-O-O-K-S, M-A-B-U-S at 845, Fed 3rd, 412, this court's decision in 2016. [00:45:27] Speaker 03: And it cites some previous cases. [00:45:31] Speaker 03: And what it says is, quote, generally, claim of entitlement is not viable when a government agency wields [00:45:37] Speaker 03: significant or unfettered discretion in determining whether to award or rescind a benefit or when an individual lacks an objective basis for believing that he or she is entitled to retain the benefit. [00:45:54] Speaker 03: And my only point in that in the property interest claim is that, and my intuition says that in that Texas case, [00:46:04] Speaker 03: Someone who wants to visit a prison, I don't believe has a robust enough property interest because it's so transient for an objective observer to believe that that is a protected interest. [00:46:18] Speaker 03: A civil servant who's earning his income and has potential eligibility for pension would have. [00:46:25] Speaker 03: A reasonable person would say that he or she has an objective basis and an expectation that he or she will continue employment [00:46:33] Speaker 03: absent, or at least have access to due process, absent exigent circumstances. [00:46:38] Speaker 03: And that's how I would distinguish those two situations. [00:46:40] Speaker 03: And I believe my client has that for purposes of property interest. [00:46:44] Speaker 03: And my last point concerning liberty is that when you're stigmatized and your reputation is affected by claims of dishonesty in the law enforcement community, you're put [00:46:56] Speaker 03: There's no further potential for employment as a law enforcement officer. [00:47:00] Speaker 04: That sounds right, but you didn't plead it. [00:47:02] Speaker 03: Thank you. [00:47:03] Speaker 03: Thank you. [00:47:04] Speaker 03: I appreciate your time. [00:47:05] Speaker 03: Thank you very much. [00:47:06] Speaker 03: The case is submitted.