WPC 2B ZJ#xWorkbook PrinterWORKBOOK.PRSx  @0 dS@Courier 10cpiHelvetica 6pt2Xu"^##U5h[++5m% 5555555555mmm5mSKMXMCU[(0PEhSXCXP;H[UkSPK# #m]5;0;5#5;8[;;;;++#;0K000858msUxxx,e7wx6X@@de =,,k=2PP IN THE UNITED STATES DISTRICT COURT  FOR THE SIXTH CIRCUIT X% ă X%No. 713640 X% ă P DERRICK BROWN, ASSISTANT ATTORNEY GENERAL ` `  hh#(-PlaintiffAppellant t) v . ALAN SHADEL, UNITED STATES ATTORNEY ` `  hh#(-DefendantAppellee X% ă BRIEF FOR THE APPELLEE X% ă  PRELIMINARY STATEMENT 1.` ` The United States Department of Health and Human Services decided to remove the plaintiff, Derrick Brown, from his position as Assistant Attorney General for the Orem, Utah, Regional Office effective May 5, 1984. On May 4, 1984, plaintiff filed this action  sUX against then Secretary John LewisXX:] sU ԍ On January 13, 1982, Leslie M. Wing, the current Secretary of HHS, was substituted in her official capacity, pursuant to Rule 24(c), F.S.Civ.M., as the party defendant in this case. charging that HHS's decision to terminate his employment violated the FirstFirst AmendmentFirst and FifthFifth AmendmentFifth Amendments to the United States Constitution, the MAdministrativeAdministrative Procedure Act (4 U.S.C.  600605)MAdministrative Procedure Act (4 U.S.C.  600605), Title VII of the >CivilCivil Rights Act of 1964 (31 U.S.C.  1000e15)>Civil Rights Act of 1964 (31 U.S.C.  1000e15), and the consent decree approved by this Court in Nelson v. Acerson, M662CA (E.D. Utah).(#0*0*ԌPlaintiff also applied on May 4, 1984, for a temporary restraining order to prevent the defendant from carrying out the proposed termination. The Court granted the requested restraining order on May 5, 1984. However, on June 5, 1984, after an evidentiary hearing, the Court issued an Order denying plaintiff's motion for a preliminary injunction for failure to demonstrate irreparable injury. The Court also indicated in its Order that plaintiff had failed to show a likelihood of succeeding on any of his claims other than the one alleging a deprivation of liberty without due process of law. (See Court's Order Denying Preliminary Injunction at 4). Given the evidence adduced during the preliminary injunction hearing and the information obtained during discovery, it is clear, however, that all of plaintiff's claims are devoid of merit and that the defendant is entitled to judgment as a matter of law. First, there can be no question that plaintiff, as a nonveteran Assistant Attorney General in the federal government, lacked a constitutionally protected property interest in his employment. Second, plaintiff's removal did not violate a liberty interest since the agency never made nor is it likely to make the allegedly stigmatizing charges public in any official or intentional manner, other than in connection with the defense of this action. Finally, the undisputed facts in this case undercut plaintiff's claims that his removal violated the First Amendment first , Title VII civil  and/or the consent decree entered in the Nelson case; indeed, the record evidence establishes that plaintiff's removal had nothing to do with his advocacy of affirmative action for women and minorities,(0*0* but rather was based upon a determination by HHS's General Counsel that plaintiff could not be trusted to carry out effectively the  sU  duties of an Assistant Attorney General. :] sUx ԍ Since HHS has presented arguments in support of that contention, the defendant will not repeat those arguments but instead respectfully refers the Court to them for its consideration. (See also CGreenGreen v. Eastern United Corp., 332 U.S. 162, 174 (1979)CGreen v. Eastern United Corp., 332 U.S. 162, 174 (1979). Plaintiff served as the Assistant Attorney General for the Orem Region, having been appointed to that position in March 1971. (Id. at 23). However, shortly after Alex C. Grayson became the Acting General Counsel for HHS, he concluded that plaintiff's conduct and performance fell short of the above detailed standards. (Grayson, TR. 126). As reflected in the record, the events giving rise to that conclusion began on December 21, 1980. The opposing party was informed of an employment discrimination suit against the Department. (Grayson, TR. 12628; Dyson, TR. 18082; Def. Ex. 7). Specifically, Mr. Dyson related the following information to Mr. Grayson: On Wednesday, March 18, 1980, he (Dyson) telephoned the plaintiff to tell him that the Department was contemplating filing a motion to have the Court reconsider its approval of the consent decree in the Nelson case and to seek plaintiff's assistance in having it filed with the Court before the deadline. (Dyson, TR. 19093; Def. Ex. 7; see also Brown, TR. 46). The next day, Friday, March 19, the plaintiff called him back to ask whether the motion was being telecopied to Orem. (Dyson, TR. 19394; Def. Ex. 7). Thereafter, on March 13, 1980, Dyson received a call from Wendell Adams, the Justice Department Attorney who was handling the Nelson nelson  case. (Id. at 180). Adams related a telephone conversation#x0*0* that he had the day before (March 12) with Kent Matthews, plaintiff's attorney in the Nelson nelson  case. During that telephone conversation, Matthews stated that he had that day filed a motion to hold HHS's Secretary in contempt for failure to comply with the attorney fees provision of the Nelson nelson  consent decree. (Id. at 180 sU 81; Def. Ex. 7).X:] sU( ԍ Matthews gave Adams until Friday, March 12, to get back in touch with him and agreed to take no action pending that call from Matthews. (Adams, TR. 22021; Pl. Ex. 2 at 2A).