Act -- that expressly provide money damages against the United States in limited circumstances would be rendered superfluous. Id. at 404. This Court agrees. Plaintiff's claim for backpay as part of the Court's order of equitable relief is denied.
B. The Pickering Balance and the Constitutional Violation
There is no merit to defendant's suggestion that the Court has made an error of law in its application of the balancing test set forth by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). Defendant suggests that the Court failed to consider the "content, form, and context of a given statement, as revealed by the whole record." See Connick v. Myers, 461 U.S. 138, 147, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). The defendant argues that the time, place, manner and surrounding context of Hubbard's communication warrant a finding that his speech was not about a matter of public concern and, thus, was not protected by the first amendment.
To the contrary, the Court had considered the context of Hubbard's speech in arriving at its decision. The context of Hubbard's speech supports the Court's earlier findings. The intelligence which sparked the entire investigation of drug use on Capitol Hill came from Jack Mitchell and Indy Badwahr, reporters working with columnist Jack Anderson. And it was United States Representative Robert K. Dornan who authorized the use of his office and telephone number as a front for Hubbard's undercover work on Capitol Hill. Conducting an investigation with the aid of persons outside the police organization carries a certain amount of risk of unauthorized or premature disclosure. It appears to the Court that in authorizing this investigation, the Metropolitan Police Department made a judgment that the benefits of cooperation in this case outweighed this risk. In light of these circumstances, it is clear to the Court that Hubbard's initial contacts with the press and Representative Dornan were authorized, and deserving of first amendment protection.
Defendant focuses on the four-page handwritten memorandum to Representative Dornan as an example of the sort of speech not protected by the first amendment. Hubbard may have been indiscrete in providing the memorandum to Dornan. However, Hubbard's decision to meet with Dornan must be viewed in the context of Dornan's cooperation and participation in the investigation by allowing his office to be used in the undercover operation. Dornan was also a member of the House Select Committee on Narcotics Abuse and Control. In light of these circumstances, it was not completely inappropriate for Detective Hubbard to brief Representative Dornan, a member of a coordinate branch of government, on the results of his investigation.
The Metropolitan Police Department ("MPD") initiated disciplinary proceedings after information about the investigation was leaked to the press. However, when Police Chief Turner heard the full story, including the context in which Dornan and Anderson's staff had provided assistance to Detective Hubbard, he ordered the disciplinary action against Hubbard rescinded. The Court found that the MPD's rescission of disciplinary proceedings was evidence that Hubbard's actions did not merit discipline, nor, as happened in this case, passover for the position at EPA.
Against this background, the Court concluded that the selecting official at EPA made the decision not to hire Hubbard on an impermissible basis -- Hubbard's exercise of his first amendment right of free speech. The Court went on to make a factual finding that, under the Pickering balancing test, the government's proffered interests did not outweigh Hubbard's significant interest in freedom of speech. The parties have pointed to no new facts or law which warrant disturbing this finding.
For the reasons discussed above, the Court reaffirms its April 30, 1990 Judgment which found that defendant violated Hubbard's constitutional rights by basing the decision not to hire him on his exercise of the right to free speech. Hubbard is entitled to be instated as a criminal investigator at EPA, at a grade and pay scale equal to that of persons hired in 1982. Hubbard's records are to be corrected, to reflect that he possessed the requisite qualifications for the position. Absent a waiver, claims for money damages against the United States are barred by the doctrine of sovereign immunity. As explained in earlier opinions, Hubbard's case does not qualify for any of the statutory exceptions to this rule of immunity. Hubbard's claim for backpay, therefore, is denied. The remaining requests made in the cross-motions to alter or amend are denied.
ORDER - June 27, 1990, Filed
Upon consideration of the cross motions to alter or amend the Court's April 30, 1990 judgment; the pleadings submitted in support of the parties' positions; and the entire record in this case, the Court finds the government's objection to the award of backpay to be well-taken. As explained in the accompanying memorandum, the doctrine of sovereign immunity precludes the award of damages in these circumstances. Therefore, it is by the Court this 27th day of June 1990,
ORDERED that defendant's motion is granted insofar as it requests that the award of backpay be stricken. The Court's April 30, 1990 order shall be amended by deletion of the paragraph awarding back and front pay. It is further
ORDERED that the remainder of defendant's motion, regarding liability for the constitutional violation, is denied; and it is further
ORDERED that plaintiff's motion to alter or amend is denied.
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