Appeal from the United States District Court for the District of New Jersey. D.C. Civil No. 75-2218.
Rosenn and Higginbotham, Circuit Judges, and VanArtsdalen, District Judge.*fn*
Generally, no one would question the right of any employer, particularly a public agency supported by taxpayer funds, to discharge an incompetent or inefficient employee. From time to time, however, employees of governmental agencies have elevated their voices in expressions of disapproval of inefficiencies, inadequacies and wastefulness in their employer's operations. In today's journalistic parlance, such employees have been objectively described from time to time as "whistle blowers." Administrative agencies, on the other hand, often regard them with impatience and exasperation and the tensions produced sometimes generate important questions in personnel relationships and procedural due process. This appeal presents the accountability of a bureaucratic governmental agency in dismissing an employee who professes to challenge the agency's dictates out of a sense of dedication to his service.
Plaintiff-appellant William F. Higgins, Jr., ("Higgins") was hired by the Federal Bureau of Investigation ("FBI") as a special agent in November 1970. On October 1, 1973, the FBI dismissed him. Higgins appealed his dismissal to the New York Region of the Civil Service Commission and the Board of Appeals and Review, both of which upheld the dismissal. Higgins twice requested the FBI to reconsider his dismissal on the basis of newly discovered evidence and requested the Civil Service Commission Board of Review to reopen the case, but each of the requests was denied.
On December 23, 1975, plaintiff filed a complaint in the United States District Court for the District of New Jersey seeking reinstatement and back pay alleging that the decision of the Civil Service Commission was not supported by substantial evidence and that the FBI and the Civil Service Commission acted capriciously and arbitrarily by refusing to reconsider his dismissal on the basis of newly discovered evidence. The defendant FBI moved for summary judgment. The motion was denied and the district court directed defendant to respond to plaintiff's request for production of documents. The defendant then moved for reconsideration of the order. The district court stayed discovery and directed the parties to brief the significance and effect of Twiggs v. United States Small Business Administration, 541 F.2d 150 (3d Cir. 1976), decided shortly after the initial order. On the basis of those briefs, the district court granted defendant's motion for summary judgment. After plaintiff's subsequent motion for reconsideration was denied, this appeal followed.*fn1 We reverse and remand for proceedings consistent with this opinion.
A little more than a year before his dismissal, Higgins was assigned to investigate certain activities of one Lloyd Sahley. Twelve days later, Higgins' superior instructed him to discontinue the investigation and to destroy his accumulated materials. One month later, July 1972, Higgins sustained a serious concussion at the home of a fellow FBI agent. Asserting no recollection of the circumstances of his injury, Higgins requested an FBI investigation of both his injury and the reasons behind the shelving of the Sahley investigation. Higgins was informed that, as to the injury, he had become unruly at the agent's home and had to be physically restrained, and, as to the investigation, it was terminated because there was no evidence of illegal activities within FBI jurisdiction.
Unsatisfied with those responses, Higgins persisted in his demand for a full FBI investigation. Finally, in January 1973, he received a letter from then Acting Director of the FBI, L. Patrick Gray, advising him that he had been placed on probation as a result of the July 1972 altercation. At the same time, his superiors warned him that any further investigation into the Sahley matter would be considered insubordination. He was then transferred from the Cleveland, Ohio, office to the Newark, New Jersey, office, where he was ordered not to carry a firearm. Plaintiff alleges that for the next six months he was subjected to continual harassment by his supervisor because he had gained a reputation as a troublemaker.
On August 3, 1973, Higgins stopped at his house (to ask his wife to tape Patrick Gray's televised Watergate testimony in hopes of learning something about his aborted investigation) without permission during working hours in contravention of FBI rules. When Higgins' supervisor discovered the infraction, an exchange of memoranda between Higgins and his supervisor ensued, resulting in Higgins being placed on administrative leave. On August 9, he was instructed to report the next day for a complete physical examination. Higgins' attorney called the FBI supervisor to advise him that he would not allow his client to take an examination without knowing its scope and purpose. A week later, Higgins' attorney met with the supervisor, who explained that the examination was for the purpose of determining Higgins' fitness for duty. Plaintiff contends that the examination was never rescheduled.
By letter dated August 24, 1973, the FBI advised Higgins that he was suspended without pay and that his dismissal was under consideration. Higgins through his attorney requested access to applicable rules and regulations and items from his personnel folder and file. His attorney found that the file he examined was incomplete: documents were removed and some that remained had been excised. Requests to see the complete file were denied. On September 25, 1973, Higgins received a letter stating that he was dismissed effective October 1, 1973.
The scope of review for an agency action is statutorily mandated by the Administrative Procedure Act, 5 U.S.C. § 706 (1970), which ...