Evelyn Falkowski, Appellant, v. Equal Employment Opportunity Commission, et al, 719 F.2d 470 (D.C. Cir. 1983)

This appeal is from the District Court's grant of summary judgment against plaintiff Evelyn Falkowski, a high-level career employee of the Equal Employment Opportunity Commission (EEOC or Commission). In her complaint, Ms. Falkowski sought a judgment against the Commission and the Department of Justice (DOJ or Department) compelling them to reimburse her for past legal expenses and to provide future legal representation in two lawsuits brought against her by a subordinate during her tenure as director of EEOC's district office in Birmingham, Alabama. Plaintiff alleges that the defendant government agencies have denied her reimbursement and representation in these suits either for discriminatory and retaliatory motives in contravention of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1976 & Supp. V 1981), or through arbitrary and capricious agency action in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2) (A) (1976).

After Ms. Falkowski filed her complaint in District Court, the defendant government agencies moved in the alternative for dismissal or summary judgment. Although it found that the complaint stated valid causes of action under Title VII and the APA, the District Court nonetheless granted defendants' motion for summary judgment. See Falkowski v. EEOC, No. 81-1776 (D.D.C. Mar. 4, 1982). Plaintiff thereafter filed this appeal challenging the District Court's grant of summary judgment on three of her causes of action. We affirm the District Court's judgment as to plaintiff's first cause of action, but reverse as to the second and third because genuine issues of material fact relevant to those claims remain in the case.

* The history of Ms. Falkowski's struggles with the EEOC stretches back to 1973 and encompasses an intervening volume of courtroom litigation and agency proceedings that for sheer sinuosity falls nothing short of Kafkaesque. Fortunately for purposes of the present opinion, we need recount only a portion of the various judicial and administrative antecedents to the case now before us.

A. The Background Litigation for Which Plaintiff Seeks Government Representation and Reimbursement

Ms. Falkowski began her career with the EEOC in 1967 and by 1971 had become head of the Commission's newly formed office in Jackson, Mississippi. At the time, she was one of the few women professionals employed by EEOC in its southeastern region. After two years in the Jackson office, Ms. Falkowski sought a transfer to the Birmingham district office for both personal and professional reasons. When repeated attempts to procure her transfer failed, she brought suit against the EEOC alleging sexual discrimination as the motive for the agency's inaction. The matter was settled in apparently amicable fashion in the fall of 1974 when the Commission agreed to appoint Ms. Falkowski director of the Birmingham office. See Falkowski v. Powell, No. 73-P-1009-S (N.D. Ala. Sept. 9, 1974) (consent decree).

Following Ms. Falkowski's arrival in the Birmingham office, a series of disputes broke out between her and a number of her subordinates, but principally with the office's deputy director, Bertram Perry. On his side, Mr. Perry alleged that the friction stemmed from his justified protests against mismanagement by Ms. Falkowski; in particular, he pointed to a series of procedural irregularities purportedly reflecting overzealousness and bias on her part in favor of plaintiffs in certain Title VII actions. See Perry v. Golub, 400 F. Supp. 409, 411-12 (N.D. Ala. 1975), vacated as moot, 594 F.2d 862 (5th Cir. 1979). On her side, Ms. Falkowski contended that the conflict arose from her attempts to discipline rank insubordination and oppressive behavior against office personnel by Mr. Perry. See Brief for Appellant at 8.¹ 

As the conflict deepened, both parties began to seek support for their respective positions from superiors in the Atlanta regional office. A series of investigations ensued that resulted in EEOC's decision, first to suspend Ms. Falkowski's authority as district director, and then to transfer both parties out of the Birmingham office. Ms. Falkowski immediately presented a pleading in federal district court challenging her transfer as a violation of the 1974 consent decree.² 

Mr. Perry likewise brought suit in federal district court to enjoin his own transfer out of Birmingham. His complaint named Ms. Falkowski and two other superiors, Messrs. Golub and Hollowell, as defendants. See Perry v. Golub, 400 F. Supp. 409 (N.D. Ala. 1975), vacated as moot, 594 F.2d 862 (5th Cir. 1979). Alleging that the transfer violated his first amendment and other civil rights, Mr. Perry accused his EEOC superiors of attempting to silence his protests as a "whistle-blower" and of discriminating against him on account of his race, which is black. These steps marked the beginning of the Perry v. Golub litigation, the first of the two suits for which plaintiff-appellant today seeks reimbursement and representation from the government in this court.

On August 29, 1975, the United States District Court for the Northern District of Alabama acted on Mr. Perry's complaint. A hearing was held in which EEOC attorneys appeared on behalf of all three defendants, including Ms. Falkowski, and in which private counsel for Ms. Falkowski was also present. At the hearing's conclusion, the district judge granted Mr. Perry's motion for a preliminary injunction barring his transfer from the Birmingham office. Under an informal agreement with the EEOC, Ms. Falkowski was allowed to "tag along" on this injunction, thus suspending her transfer as well. As a result of this agreement, the district court agreed to take no action on Ms. Falkowski's separate pleading for relief under the earlier 1974 consent decree.³ 

The next relevant action in Perry v. Golub came in November 1976 when the district court granted Mr. Perry's motion to drop Ms. Falkowski as a defendant in the action. At roughly the same time, the court also acted to dissolve its preliminary injunction on grounds that efforts to remove Mr. Perry from his post were no longer afoot. Ms. Falkowski thereafter appealed her dismissal from the case, contending that EEOC attorneys had inadequately defended her in the 1975 preliminary-injunction hearing, and that she wished to remain in the action to clear her name. The United States Court of Appeals for the Fifth Circuit affirmed the district court's dissolution of the injunction on grounds of mootness,⁴  and in an apparent nod to Ms. Falkowski vacated the underlying proceedings "so as to spawn no consequences." Perry v. Golub, 594 F.2d 862 (5th Cir. 1979) (No. 77-1719) (unpublished opinion).⁵ 

Numerous other controversies have emerged in the Perry v. Golub litigation since that time, including a dispute over the district court's retention of jurisdiction in the case after 1976⁶  and a petition by Mr. Perry for costs and attorneys' fees.⁷  Ms. Falkowski meanwhile had instituted parallel litigation of her own against EEOC superiors which has followed an equally labyrinthine procedural course.⁸  The details of these other proceedings, however, are not immediately relevant to the case before us.

During the pendency of the Perry v. Golub litigation, Ms. Falkowski and Mr. Perry remained together in the Birmingham office on terms that few would describe as cordial. In an attempt to gather evidence corroborating her charges of continuing insubordination by Mr. Perry, Ms. Falkowski secretly recorded a confrontation with him that occurred in her office on July 18, 1977. Besides insubordination, the recording revealed a regrettable stream of obscenities and racial epithets on Mr. Perry's part. See Appendix at 11-19 (transcript of tape recording). What Ms. Falkowski's conduct might have been in the absence of a recording device known only to herself, one can only conjecture. The incident served to underscore, however, the depths to which professional relationships and behavior had sunk in the Birmingham office by mid-1977.

On the basis of the tape-recording incident, the EEOC moved to terminate both Mr. Perry and Ms. Falkowski from its employ. The Commission justified its action in Mr. Perry's case on the basis of the tape's content. In Ms. Falkowski's case, the Commission found that she had violated an internal agency order prohibiting nonconsensual recording of official conversations by agency personnel. See Perry v. Golub, 464 F. Supp. at 1019 & n. 2 (citing EEOC Order No. 165).⁹ 

Provoked by Ms. Falkowski's ruse and disturbed by the resulting personnel action, Mr. Perry filed suit in 1978 in federal district court against Ms. Falkowski and EEOC chairwoman Eleanor Norton. The complaint sought a declaratory judgment that Mr. Perry's constitutional and statutory rights had been violated, and prayed for compensatory and punitive damages totalling over five million dollars. This step commenced the Perry v. Falkowski litigation, the second suit for which plaintiff-appellant today seeks reimbursement and representation from the government in this court.

Action on Mr. Perry's complaint was delayed until 1981, when the district court granted his request for voluntary dismissal. See Perry v. Falkowski, No. CV78-PT-0935-S (N.D. Ala. Apr. 17, 1981) (unpublished opinion). At the same time, Ms. Falkowski moved for leave to file counterclaims for defamation and other charges against Mr. Perry, but the district court denied her motion. Id. Ms. Falkowski then filed a petition for costs and attorneys' fees as a prevailing defendant against Mr. Perry. The district court denied this petition as well, and the Eleventh Circuit affirmed the decision on appeal. Ms. Falkowski's petition for certiorari on this last issue has recently been denied by the United States Supreme Court. See Perry v. Falkowski, No. CV78-PT-0935-S (N.D. Ala. July 22, 1981) (unpublished opinion denying defendant's petition for costs and attorneys' fees), aff'd, 691 F.2d 510 (11th Cir. 1982),cert. denied, --- U.S. ----, 104 S. Ct. 82, 78 L. Ed. 2d 92 (1983).

B. Plaintiff's Efforts to Secure Government Representation and Reimbursement

Of greater relevance to the present appeal have been Ms. Falkowski's earlier, unsuccessful attempts to secure representation by government counsel, or, in the alternative, reimbursement for her expenses in hiring private counsel, in the Perry v. Golub and Perry v. Falkowski litigations. Since late 1976, EEOC attorneys have apparently never undertaken to represent Ms. Falkowski in any of the proceedings in either case, even though government counsel has been provided to each of her co-defendants. To date, Ms. Falkowski has amassed substantial legal bills conducting her own defense with private attorneys in these cases.

1. Plaintiff's Efforts to Secure Representation and Reimbursement in Perry v. Golub

Prior to the filing of Mr. Perry's complaint in Perry v. Golub in late August 1975, Ms. Falkowski had already filed two charges of employment discrimination against EEOC and her immediate supervisors in Atlanta. See Appendix at 162-63 (reproducing charges of July 9, 1975, and August 15, 1975). These charges alleged that the agency and her superiors were undermining her authority by granting preferential treatment to a black male subordinate (presumably Mr. Perry) and by failing to support her in efforts to control insubordination on his part. The charges recited sex and race discrimination, as well as retaliation for her earlier 1973 suit, as the motives for the agency's conduct.

On December 12, 1976, over eighteen months later, Ms. Falkowski filed an amendment to these earlier charges with the then acting chairwoman of EEOC, Ethel Walsh. See Appendix at 168-69 (Memorandum from Evelyn Falkowski to Ethel Walsh (December 12, 1976)). Although nowhere in her statement did Ms. Falkowski request representation or reimbursement from the agency, she did in somewhat oblique terms challenge the quality of her representation by EEOC attorneys in the Perry v. Golub litigation. The amendment alleged, for example, that she had been "prejudiced before a Federal District judge," apparently by agency counsel's failure to rebut unsubstantiated charges and perjured testimony introduced against her (again, presumably by Mr. Perry) in the case. Id.

Without entering into excruciating detail on this point, suffice it to say that at every turn in the ensuing administrative complaint and appeals process, arising out of not only these incidents but others as well, Ms. Falkowski continued to assert that EEOC for discriminatory and retaliatory reasons had failed to provide her with an adequate defense in the Perry v. Golub litigation. See, e.g., Appendix at 178-79, 184-85, 189-90, 197, 202, 205, 281. Although in the context of these administrative proceedings she never raised a specific claim for representation or reimbursement linked to her charges of inadequate defense, we are willing to assume for purposes of the present appeal that the goal of her complaints was to secure agency legal assistance in clearing her name, promotions and retroactive raises denied her because of damage to her reputation, and finally some form of restitution for the legal expenses she incurred in carrying on her own defense with private counsel.

2. Plaintiff's Efforts to Secure Representation and Reimbursement in Perry v. Falkowski

Ms. Falkowski's efforts to secure government legal representation and reimbursement have been more explicit in the case of the Perry v. Falkowski litigation. Mr. Perry filed his initial complaint in that case on August 24, 1978. His suit was against Ms. Falkowski for secretly taping his outburst one year before and against EEOC chairwoman Norton for attempting to discharge him based on the tape's content. See Appendix at 108-10 (reproducing Mr. Perry's complaint). Although EEOC attorneys defended Ms. Norton in that action, they provided no defense for Ms. Falkowski at all.

After learning that EEOC attorneys would not defend her, Ms. Falkowski immediately requested that the Commission secure Department of Justice representation for her. What ensued was an episode of bureaucratic red tape and temporizing that did not end until May of the following year when DOJ finally denied Ms. Falkowski's request. See Appendix at 101-03 (declaration of John Seibert, Assistant Director of Federal Programs Branch, DOJ Civil Division).

Frustrated by the delay with which her request was being processed, Ms. Falkowski consulted with an EEO counselor at the Commission on November 20, 1978, and filed a corresponding administrative complaint one month later on December 19th. See Appendix at 189-90, 224, 281. In her interview and complaint, she charged that EEOC was continuing to discriminate and retaliate against her by, in effect, denying her legal defense in the Perry v. Falkowski suit. She demanded that appropriate representation be provided immediately. The counselor's report quoted EEOC legal counsel as saying that the Commission could not provide legal defense for Ms. Falkowski and that the matter had been forwarded to the Department of Justice for handling. Id. at 190 (Counselor's Survey of December 6, 1978).¹⁰ 

The reasons for the delay in processing Ms. Falkowski's request for counsel appear to have been multiple. First, no one informed her that she had to submit her petition directly to the Department of Justice rather than to her immediate employing agency, EEOC. Second, despite repeated requests from DOJ, EEOC failed to certify in writing that Ms. Falkowski had been acting within the scope of her official duties when she recorded her conversation with Mr. Perry the year before. That certification did not come until December 20, 1978. Finally, between that date and May of the following year, the Department of Justice simply failed to act on Ms. Falkowski's request. By that point, of course, the request had been transformed from one for representation only into one for representation and reimbursement, since the deadline for filing an answer to the Perry v. Falkowski complaint had already long since passed and Ms. Falkowski had had no choice but to utilize private counsel of her own.

Finally, on May 17, 1979, Assistant Attorney General Barbara Babcock wrote to EEOC and Ms. Falkowski to deny the request for representation and reimbursement in connection with the Perry v. Falkowski suit. Her letter gave the reasons for the Department's action as follows:

In light of the clearly personal nature of the dispute between Ms. Falkowski and Mr. Perry giving rise to the litigation, the tape recording by Ms. Falkowski of Mr. Perry's remarks in contravention of an internal EEOC directive, and the existence of separate actions by Ms. Falkowski and Mr. Perry challenging proposed personnel actions against them, I do not believe it is in the interest of the United States to reimburse Ms. Falkowski for her legal costs. Accordingly, pursuant to 28 C.F.R. Sec. 50.15(a) (2), I am denying Ms. Falkowski's request.

Appendix at 116. Following this denial, Ms. Falkowski asked the Department several times to reconsider its action, but each time DOJ acted to reaffirm its earlier decision.

II

Following these twists and turns in the federal courts of Alabama and Georgia and before the various administrative agencies here in Washington, Ms. Falkowski finally filed suit against EEOC and DOJ in United States District Court for the District of Columbia. In her complaint, she alleged three statutory causes of action: (1) one against EEOC under Title VII for discriminatory and retaliatory denial of adequate government legal representation in Perry v. Golub, (2) another against EEOC under Title VII for its actions in the Perry v. Falkowski litigation, and (3) a final cause of action under the APA against the Department of Justice for arbitrary and capricious denial of government legal representation in Perry v. Falkowski.¹¹  See Brief for Appellant at 15-16; infra note 12.

Before filing an answer, the defendant government agencies moved in the alternative for dismissal or summary judgment. The District Court, in an unpublished opinion, granted the defendants' motion for summary judgment on all three statutory claims.¹² 

As to the first cause of action, the District Court ruled that EEOC attorneys had actually represented Ms. Falkowski in the Perry v. Golub litigation, and that she therefore had no claim against the Commission for denial of legal counsel in that case. See Falkowski v. EEOC, No. 81-1776, slip op. at 1 n. 1 (D.D.C. Mar. 4, 1982). In the alternative, the District Court held that, even if Ms. Falkowski did have such a claim, it was time-barred by her failure to file a formal administrative complaint with the EEOC within thirty days after the claim arose. Id. (citing 29 C.F.R. Sec. 1613.214(a) (1) (i) (1980)).

On Ms. Falkowski's second cause of action, the District Court noted that EEOC lacks authority to appoint or reimburse private legal counsel to defend agency personnel, and that the Commission's power is therefore limited to recommending such action to the Department of Justice. Id. at 2 (citing 28 U.S.C. § 517 (1976) and 28 C.F.R. Secs. 50.15-50.16 (1980)). Because EEOC did recommend that DOJ reimburse Ms. Falkowski for her private legal expenses in Perry v. Falkowski, the District Court held that she had no claim against the Commission under Title VII for denial of legal counsel in that case either. Although Ms. Falkowski contended that the EEOC recommendations had been pretextual, the District Court noted that she had presented "no admissible evidence" to support this point, and had therefore failed to establish a prima facie case. Id.

Finally, as to the third cause of action, the District Court concluded that the Department of Justice had not acted arbitrarily or capriciously in denying Ms. Falkowski's request for government representation and reimbursement in Perry v. Falkowski. The court noted that the DOJ had considered Ms. Falkowski's request under the applicable statutes and regulations,¹³  and had properly denied it as not "in the interest of the United States" in accordance with 28 C.F.R. Sec. 50.15(a) (2) (1979). As evidence that the Department's conclusion on this issue had not been arbitrary or capricious, the District Court cited the three reasons spelled out in Assistant Attorney General Babcock's letter of May 17, 1979, quoted earlier in this opinion. Falkowski v. EEOC, slip op. at 2-3.

III

The issue before us on this appeal is whether the District Court moved too quickly in granting summary judgment because genuine issues of material fact remain in the case. Rule 56(c) of the Federal Rules of Civil Procedure governs this issue and provides that summary judgment shall issue only when the pleadings and other materials before the court establish "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Accordingly, summary judgment is inappropriate unless the moving party can establish that the evidence presented by the parties unequivocally resolves all relevant factual and legal issues in its own favor, and that this is so even though the evidence is viewed in the light most favorable to the party opposing the motion.

Because the defendant government agencies failed to meet this burden with respect to plaintiff's second and third causes of action, we hold that the District Court erred in granting summary judgment on those claims. In all other respects, we uphold the District Court's judgment, but modify certain of the grounds on which it based its ruling.

The District Court ruled that Ms. Falkowski had no cause of action under Title VII against EEOC for denial of legal expenses in Perry v. Golub because EEOC attorneys had actually represented her in that case. Falkowski v. EEOC, slip op. at 1 n. 1. In the alternative, the District Court held that, even if she did have such a claim, she had lost it by failing to file a formal administrative complaint with the Commission within thirty days after the claim arose. Id. Pretermitting the issue of whether Ms. Falkowski preserved her claim through timely administrative filing, we uphold the District Court on the first of the two grounds proposed.

In response to the District Court's ruling that EEOC attorneys actually represented her in the Perry v. Golub litigation, plaintiff argues that her claim goes, not to the fact of representation vel non, but to the adequacy of the representation that EEOC did provide. See Brief for Appellant at 23-27. Although we might otherwise be inclined to find merit in this position,¹⁴  we hold that plaintiff is collaterally estopped from challenging the adequacy of her representation by EEOC attorneys in the Perry v. Golub suit.

In August 1980, Ms. Falkowski filed a petition for costs and attorneys' fees as a prevailing plaintiff in Falkowski v. Perry, her own action against EEOC superiors briefly discussed earlier in this opinion. See supra note 8 and accompanying text. In her petition, she requested costs and attorneys' fees against the Commission arising, not only out of that action, but also out of her defense of the Perry v. Golub suit. This somewhat unusual request was based on the theory that Ms. Falkowski and EEOC had been adverse co-defendants in the Perry v. Golub litigation, and that to the extent that EEOC had abandoned its attempts to transfer her involuntarily, she had prevailed over the agency.

To support the conclusion that EEOC had been an adverse co-defendant in Perry v. Golub, Ms. Falkowski pointed to the defense that EEOC attorneys had provided her in that action, and contended that that defense had been not only inadequate but a sham. See Falkowski v. Perry, No. 76-G-0545-S, slip op. at 15 (N.D. Ala. Feb. 13, 1981) (unpublished opinion granting in part plaintiff's petition for costs and attorneys' fees), aff'd, 691 F.2d 510 (11th Cir. 1982), cert. denied, --- U.S. ----, 104 S. Ct. 82, 78 L. Ed. 2d 92 (1983). In denying this portion of Ms. Falkowski's petiton, the United States District Court for the Northern District of Alabama flatly rejected this line of argument, finding it "not substantiated by the facts." Id. at 16. See also id. at 18-19.

Under established principles of collateral estoppel, Ms. Falkowski is not now free to relitigate these same issues before this court. Even were we to disagree with the specific findings made by the district court in Alabama, plaintiff's remedy is not to be found in this forum but through direct appeal of the judgment of which those findings form an integral part.

Given that Ms. Falkowski is collaterally estopped from asserting a key element of her first cause of action, the District Court's grant of summary judgment against her on that claim is accordingly affirmed.

Ms. Falkowski's second cause of action charged EEOC with discrimination and retaliation under Title VII arising out of the agency's handling of her request for government-provided legal counsel in Perry v. Falkowski. The District Court granted summary judgment on this claim because, to paraphrase the court's opinion, EEOC did all it could for Ms. Falkowski when it recommended that DOJ retain private legal counsel to represent her in the case. Falkowski v. EEOC, slip op. at 2. Although we agree with the District Court that EEOC lacks statutory authority to retain private counsel itself to defend agency officers in court,¹⁵  the bare fact of formal Commission recommendation was not sufficient to support defendants' motion for summary judgment on this claim.

The relevant factual inquiry instead should have been whether EEOC acting out of discriminatory animus intentionally mishandled Ms. Falkowski's request so as to undercut the force of its formal recommendation on paper. This test admittedly places a heavy burden on plaintiff to show not only that the Commission acted out of legally proscribed motives, but also that its mishandling actually resulted in DOJ's final decision to deny her representation.

Viewing the evidence in the light most favorable to plaintiff, however, we are satisfied that the record reveals triable issues of fact on both of these points. The government does not contest, for example, that EEOC delayed for over three months in certifying that Ms. Falkowski had acted within the scope of her employment despite numerous requests for such certification from the Department of Justice. Although we express no opinion on the final resolution of this issue, it is certainly a reasonable inference that EEOC was wilfully dragging its feet because it did not wish government representation to be approved at all, or at least not in time to meet the Perry complaint. Moreover, a reasonable person might conclude that, once this lack of enthusiasm on the part of Ms. Falkowski's employing agency had been communicated to the Department of Justice, DOJ was unlikely to act favorably on her request for government-provided legal counsel.

Because the government failed to dispel these obvious inferences of illegal motivation and resulting harm that arise from the Commission's dilatory handling of Ms. Falkowski's request, we conclude that genuine issues of material fact remain with respect to her second cause of action. The District Court's grant of summary judgment on this claim is therefore reversed.

In her third cause of action, Ms. Falkowski cited the Department of Justice for arbitrary and capricious agency action in denying her request for government-provided legal counsel in Perry v. Falkowski. The District Court granted summary judgment on this claim because it found that the Department had not acted in contravention of the APA in turning down her request. Falkowski v. EEOC, slip op. at 2-3. We find, however, that the reasons for denial articulated by the Department are facially insufficient to establish the reasonableness of its decision. Moreover, the evidence suggests that DOJ may have accorded Ms. Falkowski disparate treatment under its existing regulations and practice. The rationality of the Department's decision therefore cannot be determined without further factual inquiry, and we accordingly hold that summary judgment as to this final cause of action was inappropriate.¹⁶ 1. The Babcock Letter

In concluding that the Department of Justice did not act arbitrarily or capriciously in denying Ms. Falkowski's request for government counsel, the District Court relied heavily on the three reasons set forth in Assistant Attorney General Babcock's letter of May 17, 1977. Each of those reasons purported to show why reimbursing Ms. Falkowski for her legal expenses would not be "in the interest of the United States" as mandated by 28 C.F.R. Sec. 50.15(a) (2) (1979). We conclude that the various rationales proposed by the Assistant Attorney General are insufficient on their face to support the government's motion for summary judgment on the issue of reasonableness under section 706(2) (A) of the APA.

The first reason cited in the Babcock letter for denying Ms. Falkowski's request was "the clearly personal nature of the dispute between Ms. Falkowski and Mr. Perry." This does not seem a rational reason for the conclusion based upon it. Indeed, most Title VII suits concerning individual incidents of discrimination or retaliation involve disputes intensely personal in nature. Why this happenstance justifies denying government legal representation to a federal officer sued by her immediate subordinate is not immediately apparent to this court. In fact, it would appear that government counsel represent federal officials as defendants in quite acrimonious Title VII actions on a regular basis. See, e.g., Carson v. Bolger, 510 F. Supp. 106 (E.D. Mo. 1981).

The second reason given by the Assistant Attorney General was "the tape recording by Ms. Falkowski of Mr. Perry's remarks in contravention of an internal EEOC directive." This rationale, as well, does not withstand scrutiny standing on its own. The departmental regulations cited in the Assistant Attorney General's letter provide for hiring private legal counsel at government expense to defend federal officials sued in their individual capacities, even though those officials are simultaneously under federal criminal investigation for the same acts for which representation is provided. See 28 C.F.R. Sec. 50.15(a) (5) (1979). Indeed, in a 1977 letter to United States District Judge Gerhard Gesell, the Assistant Attorney General noted that DOJ had retained private counsel to defend numerous federal officials then under criminal investigation by the Department of Justice. See Letter from Assistant Attorney General Babcock to District Judge Gesell (May 1977), reprinted in STAFF OF SUBCOMM. ON ADMINISTRATIVE PRACTICE AND PROCEDURE OF THE SENATE COMM. ON THE JUDICIARY, 95 TH CONG., 2d SESS., REPORT ON JUSTICE DEPARTMENT RETENTION OF PRIVATE LEGAL COUNSEL TO REPRESENT FEDERAL EMPLOYEES IN CIVIL LAWSUITS 150-55 (Comm. Print 1978). It is not clear why the alleged violation of an internal agency directive disqualifies a federal officer for government-provided legal representation and suspected criminal activity does not.

The third reason given for turning down Ms. Falkowski's request was "the existence of separate actions by Ms. Falkowski and Mr. Perry challenging proposed personnel actions against them." This rationale is, if anything, the least satisfactory of all. On its face, it appears retaliatory and, as such, an impermissible basis for agency action.¹⁷  Federal officers cannot become ineligible for government-provided legal defense in individual-capacity suits merely because they have challenged earlier personnel actions against them. To conclude otherwise would impose an impermissible burden on the rights granted federal workers by Congress and the Constitution, in this case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1976 & Supp. V 1981).

At the time DOJ rendered its decision against Ms. Falkowski, cases in which federal defendants had been denied government-provided legal counsel were apparently few and far between. During 1977 and 1978, both houses of Congress conducted hearings into Department of Justice practice and policy regarding retention of private legal counsel to defend government officials in civil lawsuits. These investigations were prompted by the Department's escalating expenditures for private legal counsel in individual-capacity suits that had burgeoned following the Senate Watergate and Intelligence Committee hearings. See STAFF OF SUBCOMM. ON ADMINISTRATIVE PRACTICE AND PROCEDURE OF THE SENATE COMM. ON THE JUDICIARY, supra, at ix-xiv, 1.

A Senate committee staff report prepared following the 1977-78 hearings reviewed DOJ practice and policy in this area and concluded,

Apparently, the Department's position is that it is in the public interest to defend any conduct which has not been held to be criminal.... The practical result is that, "however gross that conduct may seem to the layman," the Department has not once found the public interest to be independent grounds for refusing to represent an employee sued in his or her individual capacity when the Department has determined such employee was acting within the scope of his or her employment.

Id. at 6 (emphasis added).¹⁸ 

This finding hardly comports with the position taken by the Department in denying Ms. Falkowski's request for counsel, and raises a strong inference that her request was accorded disparate treatment in comparison to other applications recently processed by the Department. Because DOJ failed to explain this apparent incongruity in its treatment of similarly situated applicants, the District Court should have withheld final judgment on Ms. Falkowski's claim pending fuller development of the facts. Cf. Contractors Transport Corp. v. United States, 537 F.2d 1160, 1162 (4th Cir. 1976) (ICC order remanded for failure to explain agency's disparate treatment of similarly situated applicants).

After reviewing the reasons articulated in Assistant Attorney General Babcock's letter and considering the apparent contemporaneous practice of the Department of Justice, we conclude that the rationality of the Department's decision in Ms. Falkowski's case cannot be established absent further factual exploration. The District Court's grant of summary judgment on plaintiff's final claim was therefore inappropriate, and we accordingly reverse.¹⁹ 

IV

On the basis of the filings and other documents before the District Court, summary judgment was properly granted with respect to plaintiff's first cause of action claiming reimbursement for her legal expenses in the Perry v. Golub case. As to her remaining two causes of action seeking representation and reimbursement in the Perry v. Falkowski litigation, we find that genuine issues of material fact remain in the case precluding summary judgment at this juncture. We therefore remand these two claims to the District Court for further proceedings in conformity with this opinion.

It is so ordered.