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Eric W. Payne v. District of Columbia

May 14, 2012


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiff Eric Payne's pending amended complaint against defendants District of Columbia ("D.C.") and Dr. Natwar Gandhi, D.C.'s Chief Financial Officer ("CFO"), alleges violations of the Fifth Amendment and the D.C. Whistleblower Protection Act ("WPA"), D.C. Code § 1-615.51, et seq., constitutional defamation, and wrongful termination. D.C. and Councilmembers Jack Evans and Jim Graham have filed objections to Magistrate Judge Deborah Robinson's order denying their motions to preclude Payne from deposing former Chair of the D.C. Council and current Mayor Vincent Gray and the Councilmembers. The movants all argue that the D.C. Speech or Debate Clause, D.C. Code § 1-301.42, entitles them to absolute legislative immunity from providing deposition testimony and producing documents, since their communications with the CFO were integrally related to their statutorily-required review of a proposed lottery contract. Payne opposes, arguing that the Clause does not protect the officials' attempts to influence the CFO or to facilitate Payne's termination. Because Payne has presented evidence that Gray and Graham engaged in political efforts to exhort the executive that were not protected under the Speech or Debate Clause, and because the Mayor has not shown that complying with the deposition subpoena would unduly burden him, the objections will be overruled in part. Because the officials' meetings with the CFO otherwise involved protected speech and Payne has not shown conduct by Evans that was not protected, the objections will be sustained in part.


In July or August of 2004, Payne was hired to serve as Assistant General Counsel for procurement in D.C.'s Office of the CFO. (Pl.'s Opp'n to Collective Mots. for Protective Orders ("Pl.'s Opp'n as to Prot. Orders"), Ex. 1, Aff. of Eric W. Payne ("Payne Aff.")*fn1 ¶ 1; Am. Compl. ¶ 5.) He later was promoted to Director of Contracts and, in that capacity, initiated the process of awarding to one of two bidders a contract to be the service provider for the D.C. lottery. (Payne Aff. ¶¶ 1-2; Am. Compl. ¶¶ 10, 26.) Following a fair, reasonable, and objective competition, Payne ultimately selected a company called W2I, a joint venture comprised of W2Tech, LLC and Intralot, which apparently offered a technologically superior product at lower prices than its competition did. (Payne Aff. ¶¶ 2, 13; Am. Compl. ¶¶ 26-29, 58.) However, the proposed lottery contract was contingent upon the D.C. Council's review and approval. (Councilmembers' Reply to Pl.'s Opp'n as to Prot. Orders ("Reply as to Prot. Orders") at 1 (citing D.C. Code § 1-204.51(c)); see also D.C.'s Obj'ns to Magistrate Judge's Mem. Op. and Order of October 31, 2011 Denying the District's Mot. for a Protective Order on Behalf of Mayor Gray ("D.C.'s Obj'ns") at 3 (stating that the Home Rule Act "requires D.C. Council approval for all multiyear contracts and for all contracts in excess of one million dollars").)*fn2
According to Payne, Graham and Evans cajoled the CFO into withdrawing W2I's contract and caused Payne's wrongful termination.*fn3 (See generally Payne Aff.) Payne alleges that he was "compelled to . . . participate in several highly unusual meetings" in April and May of 2008, "in which the CFO, certain city council members, [his] supervisors, and [he] met to specifically discuss the proposed lottery contract" and the involvement of Intralot minority partner Warren Williams, Jr. (Payne Aff. ¶ 7; see also Am. Compl. ¶ 43.) The Councilmembers never asked "about the technical proficiency[] . . . or price of the proposed lottery contract." (Payne Aff. ¶ 7.) Instead, Evans, who considered Williams to be "a slumlord," allegedly stated during one meeting*fn4 that "people have a problem with" Williams and asked whether they could "just get rid of [him]." (Id.; Pl.'s Opp'n as to Prot. Orders at 8.) Graham referred Payne to a woman named Dottie Love Wade, who questioned Williams's "ability to handle the online gaming contract[] since Williams Sr. only previously [had] handled the Instant Tickets contract." (Payne Aff. ¶ 9; Pl.'s Opp'n as to Prot. Orders at 9.)

Payne told the Councilmembers that "forcibly removing [and replacing] a joint venturer . . . after [completing] the source selection process" would be illegal. (Payne Aff. ¶ 7.) Given this "mounting pressure to modify the awarded lottery contract award[,]" Payne filed his first complaint with the Office of Integrity and Oversight ("OIO") in the Office of the CFO ("OCFO") in April of 2008. (Id. ¶ 3; see also Am. Compl. ¶ 34.) He filed several additional complaints with OIO, addressing the same concerns, between May and July of that year. (Payne Aff. ¶ 3.) Payne also reported "the pressure that the CFO and others were applying to [him]" to the D.C. Office of Inspector General's ("OIG") audit and criminal investigative representatives. (Id. ¶ 6; see also Am. Compl. ¶¶ 39, 41.)

Payne allegedly met with Gray, Gandhi, and at least one unnamed elected official for the last time on May 5, 2008. (Payne Aff. ¶ 10; Am. Compl. ¶ 45.) Afterwards, "Gray asked Gandhi to remain behind" and meet privately. (Payne Aff. ¶ 10.) According to Payne, Gray then pressured Gandhi "to end the contract solicitation and to demote and/or terminate [Payne] in order to pave the way to re-bid the lottery contract." (Id.) After Gandhi emerged from this private meeting, he allegedly "repeatedly cajoled [Payne] to cancel the lottery contract and reopen the [procurement] process." (Id. (internal quotation marks omitted).) Graham also told Payne that "he had a bone to pick with [him]," that Graham "had discussed [the issue] with Gandhi" and that Gandhi would discuss it with Payne.*fn5 (Id. ¶ 9.) On May 15, 2008, Gandhi met with Payne's supervisor, Paul Lundquist, and the OCFO's Director of Operations, Angell Jacobs in May of 2008. (Id. ¶¶ 3, 4, 6.) The CFO stated that Payne's "tenure within the OCFO needed 'to end as soon as practicable.'" (Id. ¶ 4.)

On July 1, 2008, Lundquist notified Payne that Gandhi planned to demote him. (Payne Aff. ¶ 12; Am. Compl. ¶ 53.) Lundquist and Jacobs met with Payne to demote him on July 7, 2008, and Payne recorded the conversation. (Payne Aff. ¶ 12; Am. Compl. ¶ 52.) By then, Payne had learned from W2I representatives who met with Gray and Graham that Gandhi assured Gray and Graham that Payne "would not be in [his] position much longer and that the contract . . . would be re-bid." (Payne Aff. ¶ 12.) Jacobs, however, told Payne that the OCFO had "absolutely no[]" concerns about the procurement process or Payne's role within it. (Id.) She added that "Graham is on a personal vendetta here and, you know, he thinks the way to get what he wants is to find a way to discredit the people [who] were involved in the process. . . . [F]or Gray and Graham, this is all personal. This is about their friends, or who is not their friends for Graham[.]" (Id.)

The D.C. Council voted to disapprove the W2I contract in December of 2008. (Id. ¶ 13; Am. Compl. ¶ 59.) On January 9, 2009, Payne was fired and escorted out of the building in the presence of "[t]he Human Resources ("HR") Director, . . . two armed security guards, the Deputy HR Director, [the] Deputy Logistics Director, Lundquist[,] and his assistant[.]" (Payne Aff. ¶ 14.)

After Payne served Mayor Gray and the Councilmembers with subpoenas, D.C. moved for a protective order barring Payne from taking the Mayor's deposition. It argued that the deposition would unduly burden the Mayor and that the information sought, which was protected by the Speech or Debate Clause, D.C. Code § 1-304.42, was in any event available from other sources. (D.C.'s Mot. for a Protective Order on Behalf of Mayor Vincent C. Gray ("D.C.'s Mot. for Prot. Order") at 1; D.C.'s Mem. of P. & A. in Supp. of its Mot. for a Prot. Order ("D.C.'s Mem. of P. & A.") at 3-4.) Citing the same Speech or Debate privilege, Evans and Graham also moved under Federal Rule of Civil Procedure 45(c)(3)(A)(iii) to quash the subpoenas served upon them. (See generally Councilmembers' Mot. to Quash Subpoenas.) Payne's opposition proffered that he would seek deposition testimony as to political and personnel-related conversations between the Councilmembers and the CFO during the lottery contract review process. (Pl.'s Opp'n as to Prot. Orders at 16.) He argued that the information sought falls outside the legislative sphere and supports his claims for retaliation and wrongful termination. (Id.)

The motions were referred for decision to Magistrate Judge Robinson. At a hearing before her, the Councilmembers' counsel stated that Evans, Graham "and Defendant Gandhi had [had] conversations regarding the D.C. Lottery contract of the type described by Plaintiff in his affidavit." Payne v. D.C., 279 F.R.D. 1, 3 (D.D.C. 2011). However, the Councilmembers disputed that the meetings attended by Payne, his supervisors, the CFO, and Councilmembers were improper. (Councilmembers' Reply as to Prot. Orders at 3 n.1.) Magistrate Judge Robinson concluded that "the communications which are the subject of [Payne]'s discovery request are the current and former councilmembers' 'contact[s] [with] an executive agency in order to influence its conduct[.]'" Payne, 279 F.R.D. at 7 (quoting Jewish War Veterans v. Gates, 506 F. Supp. 2d 30, 54 (D.D.C. 2007)) (alteration in original). Accordingly, since "the communications at issue were no more than attempts to 'cajole' or 'exhort' Defendant Gandhi, a member of the District's executive branch," the magistrate held that "they are not 'legislative acts' for which the Speech or Debate Clause affords a shield from discovery." Id. The magistrate judge also rejected the argument that complying with Payne's subpoena would unduly burden Mayor Gray. Id. She stated that Gray had personal knowledge of the conversations Payne described and that the substance of Gray's testimony could not be obtained from any other source. Id. Her order required that the three depositions each be limited to three and one-half hours, and that they be limited to "discussions with Defendant Gandhi regarding the D.C. Lottery Contract[.]" Id. at 8.

D.C. timely filed objections on behalf of Mayor Gray, challenging two of the magistrate judge's conclusions as contrary to law. (D.C.'s Obj'ns at 1-2.) D.C. argued that the magistrate "incorrectly found that the Mayor had information that could not be obtained from any other source" and "improperly determined that conversations between then-Chairman Gray and members of the executive branch regarding a contract pending before the [D.C.] Council for approval were not part of his legislative duties." (Id. at 1-2.) To support these arguments, D.C. newly proffered Mayor Gray's declaration that he could recall having attended only one "fairly large" meeting with the CFO and others, the purpose of which was "to inform [himself] and [his] staff about pending legislation so that [he] could determine how [he] would vote." (Gray Decl. ¶¶ 5-7.) Gray also stated that he did "not recall having a private meeting with the [CFO] on the lottery contract[,]" and denied any personal knowledge of or participation in the decisions to demote and terminate Payne. (Id. ¶¶ 6, 8-10.) Finally, D.C. reiterated that the Mayor's rank renders any deposition of him unduly burdensome. (Id. at 5.) The Councilmembers also objected to the magistrate judge's ruling, challenging its omission of "the Council's affirmative statutory duty . . . to review multiyear contracts," its conclusion that "the Councilmembers' inter-branch communications . . were unrelated to the Councilmembers' legislative activities," and its "improper[] consider[ation of] the purported motives of the Councilmembers in determining whether their conversations with the executive branch were protected." (Councilmembers' Obj'ns at 1-3.)

Payne opposed the objections, arguing that the Councilmembers sought to influence the OCFO's modification or cancellation of the lottery contract, that such political communications do not warrant Speech or Debate protection, and that Gray, alone, can testify about his own state of mind during his meetings with Gandhi. (See generally Pl.'s Consolidated Opp'n to D.C.'s and the Councilmembers' Objections ("Pl.'s Consol. Opp'n").) In addition, Payne notes that Gandhi admitted during a deposition post-dating the magistrate ...

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