The opinion of the court was delivered by: GREEN
The plaintiff, Michael E. Hubbard, seeks injunctive relief against the Environmental Protection Agency ("EPA") in connection with the EPA's decision not to hire Hubbard as a criminal investigator. Plaintiff alleges that the decision not to hire was based impermissibly on his exercise of his first amendment right of free speech. The Court of Appeals affirmed in part and reversed in part this Court's initial decision on summary judgment. Hubbard v. U.S. E.P.A. Admin., 257 U.S. App. D.C. 305, 809 F.2d 1 (1986), aff'd on reh'g en banc, Spagnola v. Mathis, 859 F.2d 223 (D.C.Cir. 1988) (sole issue on rehearing the denial of a separate Bivens remedy). Following the remand, the remaining claims were tried to the Court on May 3 and 4, 1989. Having considered the testimony, the pleadings submitted in support of the parties' positions, and the entire record in this case, the Court finds for the plaintiff.
An extensive discussion of the background of this case can be found in this Court's earlier opinion granting summary judgment. See Hubbard v. U.S. E.P.A. Admin., No. C.A. 83-564 (D.D.C. Dec. 20, 1984) (Summary Judgment Opinion). Briefly, the Court notes that Hubbard's application was assigned a numerical rank considered among the "best qualified." By letter dated August 26, 1982, Hubbard was notified that he was considered by EPA personnel specialists to be highly qualified for the criminal investigator job opening. Hubbard's name was placed on a certificate of eligibles to be interviewed by a three-person panel.
Hubbard was interviewed by the selecting official for the positions, Mr. Peter Beeson, and two of Beeson's subordinates, William Graff and Gary Steakley. Prior to the interview, Beeson had been alerted to Hubbard's possible role in the public disclosure of information relating to the Metropolitan Police Department's Capitol Hill drug investigation. Hubbard offered the name of David Hopkins, an attorney with the Department of Justice, as a reference regarding his qualifications and his role in the Capitol Hill investigation. Hopkins subsequently confirmed that Hubbard had been removed from the Capitol Hill investigation as a result of his disclosure of information to Congressman Robert Dornan and representatives of reporter Jack Anderson's office.
Because Hubbard had veteran's preference status, Beeson was required to prepare a "passover" document to justify selection of any applicant with a lower ranking than Hubbard on the certificate of eligibles. The passover document finally submitted to the EPA Personnel Office indicated that Hubbard was not selected because he lacked the requisite white collar or corporate investigative experience. However, Hubbard had some white collar experience through training and school and, furthermore, had extensive experience in class I felony investigations. This experience satisfied the criteria listed in the Vacancy Announcement. See Joint Exhibit 1 (position requires skill in conducting investigations involving major corporations, white collar crime, and fraud). Moreover, several of the successful applicants had less white collar or corporate experience than Hubbard.
The Court finds that the real reason Beeson decided not to hire Hubbard was his belief that Hubbard was responsible for press leaks which compromised the Capitol Hill investigation. The Court is troubled by the fact that officials at EPA were not straightforward with their true reasons for passing over Hubbard. Their attempts to conceal the truth, and the assertion of a patently inadequate basis for rejecting Hubbard, buttress the Court's conclusion that EPA's actions regarding Hubbard's application were constitutionally suspect.
A. Liability for a Constitutional Violation
Although plaintiff is merely an applicant for government employment, the Supreme Court's decision in Perry v. Sindermann requires that this Court examine his allegations with care:
Perry v. Sindermann, 408 U.S. 593, 597, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972).
Plaintiff alleges that the adverse employment decision in this case was based impermissibly on his exercise of his first amendment rights. In the context of government employment,
the Supreme Court has recognized that the exercise of a public employee's first amendment rights must be weighed against the government's interest, as an employer, in the efficiency of the public services it performs through its employees. See Pickering v. Board of Education, 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). The Court is aided in performing this difficult balance by significant precedent, both from the Supreme Court and this circuit. See, e.g., Hall v. Ford, 272 U.S. App. D.C. 301, 856 F.2d 255 (D.C.Cir. 1988); A.P.W.U. v. U.S. Postal Service, 265 U.S. App. D.C. 146, 830 F.2d 294 (D.C.Cir. 1987).
The first inquiry is whether the public employee was speaking on a matter of public concern. This is a threshold question, to be considered before the court attempts the delicate balance required by Pickering. Rankin v. McPherson, 483 U.S. 378, 384, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987) (speech expressing dislike for the President and his policies); Connick v. Myers, 461 U.S. 138, 146, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983) (question whether assistant district attorneys felt pressured to work in political campaigns). Certainly, the allegation that members of Congress use illegal narcotics is a matter of public concern. Other courts have found matters of much less import to meet this threshold. See e.g., Hall v. Ford, 272 U.S. App. D.C. 301, 856 F.2d 255 (D.C. Cir. 1988) (speech regarding a public ...