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March 28, 1980

G. WILLIAM MILLER, et al., Defendants.

The opinion of the court was delivered by: SIRICA

In its earlier Opinion in this case, Harper v. Blumenthal, 478 F. Supp. 176 (1979), this Court denied defendant Bruce's motion for summary judgment in which he argued that the doctrine of official immunity protected him from liability. The Court ruled that Bruce was not entitled to absolute immunity under the standard established in Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978), and that:

(a) decision on Bruce's qualified immunity defense . . . would require an investigation into his motives, belief in the truth of the facts he relied upon in making his decision, and his objectively evaluated conformance with known procedures and rights . . .

 Harper v. Blumenthal, 478 F. Supp. 176, 184 (1979), thus preventing resolution of the matter on a motion for summary judgment.

 In oral argument on another question several months later defendant Bruce requested permission to renew his motion for summary judgment on the question of qualified immunity. Mindful of the Supreme Court's urging that the immunity question be resolved whenever possible in the early stages of a lawsuit, Butz, supra, 438 U.S. at 507-508, 98 S. Ct. at 2911, this Court granted the request.

 Having reviewed defendant Bruce's renewed motion for summary judgment, however, this Court has found nothing presented therein that would necessitate a change in its earlier conclusion that "the good faith issue . . . requires a resolution of questions of fact hotly contested by the parties, a function not appropriate on a motion for summary judgment." Harper v. Blumenthal, supra, 478 F. Supp. at 184.

 Moreover, plaintiff in his opposition to the motion has pointed out several inconsistencies in the affidavits. For instance, concerning the incident on October 20, 1975, in which plaintiff allegedly threatened fellow employee, Otis Moses, Bruce avers in his October 29, 1979, affidavit that he was an eye witness to the threat. Bruce Affidavit, P 5(a) at 2-3. Yet, in his deposition testimony taken January 31, 1978, he stated under oath that he did not witness the incident. Deposition of Melvin A. Bruce at 54.

 Bruce, in his reply brief, does not attempt to explain this discrepancy, but rather argues that it is immaterial whether or not he witnessed the event. Reply of Defendant Melvin A. Bruce (Defendant's Reply) at 5 (filed Dec. 7, 1979). Since good faith is an issue, however, and involves questions of intent and subjective attitude, Halperin v. Kissinger, 196 U.S. App. D.C. 285, 606 F.2d 1192, 1209 (1979), any facts bearing on Bruce's credibility are important to the consideration of his motives in firing plaintiff.

 Additionally, plaintiff has well demonstrated that there are disputed issues of fact concerning the coin dumping incident which, he contends, led to his dismissal. Defendant attempts to establish through affidavits that the dumping of coin was a routine practice and therefore could not have provided meat for an expose by plaintiff of improper procedures. Defendants' Motion for Summary Judgment on All Claims Asserted Against Defendant Melvin Bruce (Defendant's Motion) at 11 (filed Oct. 29, 1979). Plaintiff, on the other hand, points to testimony in depositions and affidavits establishing that dumping of dimes, the coin at issue, was not routine and could only be authorized by express written permission from Bruce's superior. Plaintiff's Opposition to Defendant's Motion for Summary Judgement (Plaintiff's Opposition) at 27-29 (filed Nov. 13, 1979). Since this is the issue that allegedly motivated plaintiff's dismissal, a dispute about it alone is sufficient to prevent the Court from entering a summary judgment.

 Accordingly, this Court will deny defendants' renewed motion for summary judgment as to all claims against defendant Bruce.


 In its earlier Opinion this Court also observed that although defendants had violated plaintiff's fifth amendment rights by failing to grant him a post-termination hearing, it appeared that he might no longer be entitled to any remedy since the stigmatizing charges had already been removed from his personnel file. *fn1" Consequently, the Court raised the possibility that the fifth amendment claim might be moot.

 Plaintiff, in his supplementary brief on this point, opposes a determination of mootness. He argues that while there may be no coercive relief due him as a result of this particular violation of his rights by defendants, there is no guarantee that they will not harm him, or others, in the same way in the future. While he does not assert that defendants have intentionally attempted to moot this case by removing the charges from his file in order to prevent a binding judgment from issuing against them, his argument suggests that their actions could have that effect. The result, he adds, would be that "(defendants) would be free to engage in the same kind of unconstitutional conduct in the future toward this plaintiff or toward others." Plaintiff's Opposition at 30. To foreclose this possibility, plaintiff requests the Court to issue a declaratory judgment striking down the statute and regulations permitting the dismissal of a probationary employee for stated reasons of misconduct without a prior hearing. Id.

 A decision to issue a declaratory judgment would require the Court to decide first that the fifth amendment claim is not moot, and second, since issuance of declaratory relief is discretionary with the Court, *fn2" that the case is appropriate for a declaratory judgment. Since the Court has ...

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