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McCabe’s FOIA Complaint Is Unique to Public Sector

June 14, 2018

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Former FBI Deputy Director Andrew McCabe, who lost his full pension when he was red two days before his retirement, is asking federal officials to disclose the “policies and procedures” he allegedly violated that resulted in his termination.

McCabe filed a Freedom of Information Act complaint in the U.S. District Court for the District of Columbia June 12 requesting that the Justice Department and FBI produce internal documents—a manual from the Office of the Inspector General and three FBI policy guides—related to his firing. Those documents were never given to McCabe or his lawyers proactively or upon request, which violates FOIA, his complaint says.

As a former government employee, McCabe can use FOIA to procure the policies and procedures the FBI relied on when it red him, which is unique to the public sector. The federal information transparency law doesn’t apply to the private sector, where similar documents would often only come during the discovery process of a lawsuit.

“The FOIA process can move a lot faster than a lawsuit,” Katherine Atkinson, an employment lawyer at Wilkenfeld, Herendeen & Atkinson, told Bloomberg Law. Atkinson is using the same method of requesting documents in two other client cases as well. She said the rights under FOIA are straightforward: An improper motive doesn’t need to be established as it would in a lawsuit.

 

Documents at Issue

McCabe stepped down from his post as deputy director in January amid accusations that he misled Justice Department officials, but he remained an FBI employee. He was the target of criticism from President Donald Trump and other Republicans for his involvement in the FBI investigation into Democratic presidential nominee Hillary Clinton ’s emails.

McCabe was fired two days before his scheduled retirement date in March, which was also the day his federal pension would fully vest.

He was entitled to at least 1.7 percent of his three highest earning years, in addition to health care for the rest of his life, a spokeswoman for The Bromwich Group, which represents McCabe, told Bloomberg Law. The full amount of McCabe’s lost pension bene t hasn’t been made public.

“It’s an inherent due process constitutional right to see the evidence and be able to counter that evidence against you,” Cheri Cannon, a federal employment lawyer with Tully Rinckey PLLC in Washington, told Bloomberg Law. “Assuming everything” in McCabe’s lawsuit “is true, he was entitled to the information he is requesting if it was relied upon to terminate him.”

Cannon said the DOJ shared some of the nonpublic documents McCabe requested with her in past cases as evidence the agency relied on to make a decision. The documents were given to her under a protective order, meaning they can’t be shared publicly.

A judge will order the documents released if they are public, regardless of whether they were relied on to terminate him, Cannon said.

As for the nonpublic documents, which can’t be released under FOIA, a judge might order them released under a protective order if they were, in fact, used to terminate him, she said. The agencies could still say those documents weren’t the ones they relied on in making their decision to re McCabe, potentially preventing their release.

Obtaining the documents to look for wrongdoing, however, might not be the primary motivation, Cannon said. The document request may be helping him negotiate a return to duty for a few days so he can get his full pension.

“If I were his lawyer, the goal here would be to get to that retirement,” Cannon said.

 

Private-Sector Termination

McCabe isn’t a private-sector employee, but if he were, the process he’d need to use to get his former company’s internal policy documents would be a little different.

To get information about your termination in the private sector, Atkinson said, “you would have to allege an improper motive, and then you’d have to survive a motion to dismiss.”

At-will employees lack the due process element that public-sector employees such as McCabe have when it comes to termination, she said.

Those internal documents can be of “critical importance in bringing a private-sector employment-related lawsuit,” James Bailey, an employment lawyer at Bailey & Ehrenberg PLLC in Washington, told Bloomberg Law.

If they don’t already have them saved elsewhere, terminated employees in the private sector often lose access to the policy documents when they lose access to something like an internal server, Bailey said.

They typically can get them through a former co-worker, but if that’s not an option, their only other option is obtaining them through the discovery process of a lawsuit, he said.

The case is Snyder v. U.S. DOJ OIG, D.D.C., No. 1:18-cv-01389, complaint filed 6/12/18.

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