WASHINGTON D.C. – Andrew McCabe sued in the United States District Court for the District of Columbia for his termination from the FBI on March 16, 2018. He is suing William P. Barr, Attorney General of the United States, U.S. Department of Justice, Christopher A. Wray, Director of the Federal Bureau of Investigation, and Federal Bureau of Investigation.
McCabe alleges in his complaint that he was wrongfully terminated due the these five counts: Count 1 – “Plaintiff’s termination was a legal nullity or, alternatively, was ultra vires agency action in violation of the Fifth Amendment’s Due Process Clause”; Count 2 – “Plaintiff terminated through sham and accelerated proceedings that ignored statutory procedures and agency policies, in Violation of the Fifth Amendment’s Due Process Clause”; Count 3 – “Plaintiff’s demotion and termination were based on his perceived partisan affiliation, in violation of First Amendment”; Count 4 – “Plaintiff was demoted and terminated in retaliation for his political expression and intimate association , in violation of the First Amendment”; Count 5 – “Mandamus”.
Andrew McCabe, in his complaint, alleges that his firing was as the result of “Trump’s unconstitutional plan and scheme to discredit and remove DOJ and FBI employees who were deemed to be his partisan opponents because they were not politically loyal to him.”
His complaint states that in January 2018, Director Wray demoted McCabe as Deputy Director of the FBI without any valid explanation. Allegedly Wray refused to explain the specific reason only citing that he and Attorney General Session “had agreed not to discuss the specific reason” with McCabe.
In February and March of 2018,Wray and the FBI “initiated and accelerated pretextual disciplinary proceedings in order to satisfy Trump’s unlawful desire to remove Plaintiff before his announced retirement date. If Defendants had followed standard procedures, they could not have fired McCabe before that date.”
The facts, as laid out in the complaint, are that on Friday, March 16, 2018, Sessions announced in a press conference that McCabe had been terminated. This is when McCabe first learned he had been fired. The legal argument that is being made is that McCabe had already retired. He states that he had begun “terminal leave” in January. He also had finished his service to the FBI at 5 pm on March 16, 2018 which is the end of normal business hours.
The complaint also states that even if given that McCabe hadn’t retired earlier in the day, a press conference was not the correct manner to remove an employee from civil service. This same press announcement stated by AG Sessions that he was terminated under DOJ Order 1202. (read article about termination here) McCabe’s complaint states that AG Sessions could not use this order to terminate him.
McCabe lawsuit alleges that if Trump hadn’t pushed for McCabe to be fired, then he wouldn’t have been fired and would have been allowed to retire. “Because Trump perceived Plaintiff to be affiliated with Clinton and the Democratic Party, and because Plaintiff did not vote for Trump and rebuffed Trump’s requests to express partisan support for Trump, Trump decided to have Plaintiff removed from government.”
McCabe argues that “a career civil servant who completes his or her work obligations for both weeks of a federal pay period is deemed to have been employed for the full pay period, and is therefore entitled to payment and service credit for the entire pay period. A termination that becomes effective after the pay period’s close of business does not diminish the employee’s pay or service credit for that pay period.” (Argument for count 1). In order to remove McCabe from career civil service, the FBI was required to let him know, in writing, the reasons he was being terminated, the effective date and deliver this to him. This didn’t happen. Per the complaint, the email that was sent to McCabe was not valid either because it didn’t contain the termination date.
When Sessions announced, under DOJ Order 1202 that McCabe was terminated, this wasn’t proper procedure. According to the order, only the FBI Director can terminate “career FBI senior executives, except that the Attorney General and Deputy Attorney General retain authority to remove those who serve in certain enumerated ‘key positions’. After Defendant Wray removed McCabe from the role of Deputy Director in January 2018 and replaced him with Bowdich, McCabe remained a career FBI senior executive but did not serve in any of the ‘key positions’ listed in DOJ Order 1202. Defendant Wray, as FBI Director, did not authorize McCabe’s termination and in fact previously refused Sessions’ request to terminate McCabe. Accordingly, McCabe was not, in fact, terminated before his retirement.”
Secondly, according to the complaint filed, AG Sessions didn’t have the authority to terminate McCabe because AG Sessions had recused himself in March 2017. “Sessions’ recusal, on its face, extended to the OIG investigation. Sessions’ recusal was therefore a ‘disability’ under 28 U.S.C. § 508(a), meaning that he lacked legal qualification to participate in Plaintiff’s termination. As a result, Sessions had no authority to terminate Plaintiff.”
Count 2 of the complaint states that accelerated proceedings to terminate McCabe were in violation of the Fifth Amendment’s Due Process Clause. McCabe was entitled to an opportunity to evaluate and respond to the allegations before being terminated. Under statute, McCabe was entitled to a minimum of 30 days’ notice before his termination. In addition to this time, regardless of any cause or reason for termination, an FBI SES employee is entitled to “a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer”. McCabe states he received less than the seven days to review “a voluminous record of over 1,000 pages, while simultaneously preparing for his oral hearing and written submission.”
“The sham hearing that McCabe received also violated constitution and statutory requirements of due process. Defendants had already determined Plaintiff’s fate, and the agency decision-maker served merely to rubber-stamp Defendants’ (and Trump’s) desired outcome. Plaintiff therefore never had a neutral, informed, and independent decision-maker address his case. In truth and in fact, the sole decision-maker concerning Plaintiff’s termination was Trump, whose decision was made and finalized before Defendants ever commenced their pretextual termination process.”
Count 3 alleges that his demotion and termination were based on political affiliation which is in violation of the First Amendment. “McCabe’s demotion and accelerated termination were unlawful because they were based on a perception of Plaintiff as Trump’s partisan opponent and not a Trump loyalist.”
“Defendants demoted and terminated McCabe on an improperly accelerated schedule because of Trump’s perception that he was affiliated with Clinton and the Democratic Party, and not affiliated with or sponsored by Trump. This perception was based on, among other things, Plaintiff’s involvement in the Russia investigation, his wife’s political activity, his response to Trump’s question about his voting history (i.e., that McCabe did not vote for Trump in the 2016 U.S. presidential election), and his refusal to pledge or demonstrate personal loyalty to Trump.”
McCabe argues that any affiliation or political support were never legal or appropriate job requirements for his role as an FBI supervisory special agent or as FBI Deputy Director. “Defendants implied that McCabe’s job would be secure if only he would pledge and demonstrate his loyalty to Trump. Defendants thus made his employment subject to an unconstitutional condition.”
McCabe’s complaint also states that in count 4, he was demoted and terminated in retaliation for his political expression. “Defendants additionally or alternatively violated the First Amendment by demoting McCabe, terminating him, and accelerting his termination in order to deprive him of his full vested pension and related befefits, because of (a) refusal to pledge personal loyalty to Trump, (b) his decision not to vote for Trump in the 2016 U.S. presidential election (which he only revealed in response to Trump’s improper inquiry about it), (c) his wearing of a T-shirt in 2015, in a family setting outside the workplace, in support of Dr. McCabe’s Virginia state senate campaign, and (d) his marriage to Dr. McCabe and the improper attribution of her political activity to him. McCabe undertook these expressive acts as a citizen on matters of public concern, and his marriage to Dr. McCabe is constitutionally protected association.”
Count 5 deals with mandamus. (read definition here) “Defendants’ actions, as set forth above, constitute and unlawful refusal to recognize that Plaintiff retired or, in the alternative, Defendants actions constituted unlawful personnel actions. McCabe has a clear right to be recognized as having retired from the FBI as the Deputy Director and as an agent in good standing, or, in the alternative, to be reinstated as Deputy Director of the FBI so that he may retire and receive his vested pension and related benefits.”
The actions, or relief, that is sought by this lawsuit are: Reinstated as the Deputy Director of the FBI and an agent in good standing;, expunge his personnel file or these negative actions; pay his benefits he deserves; and court costs and attorney’s fees.
You can read the full complaint which has many more details about what McCabe feels happened, here.