United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1946

___________

Michael Haley, *

*

Appellee, *

* Appeal from the United States 

v. * District Court for the 

* Eastern District of Missouri.

Nicolas P. Retsinas, Director of the *

Office of Thrift Supervision, *

*

Appellant. *

______________ *

*

Federal Deposit Insurance Corporation; *

Board of Governors of the Federal *

Reserve System; Office of the *

Comptroller of the Currency, *

*

Amicus Curiae. *

___________

Submitted: September 8, 1997

Filed: March 16, 1998

___________

Before RICHARD S. ARNOLD, Chief Judge, HEANEY, and BEAM, Circuit Judges.

___________

BEAM, Circuit Judge.
The Honorable Stephen N. Limbaugh, United States District Judge for the

1

Eastern District of Missouri.

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Nicolas P. Retsinas appeals from a judgment entered against him in the district

court for violating 12 U.S.C. § 1831j(a)(2), which prohibits termination of a banking 1

employee who provides information to authorities regarding possible illegal activity.

We affirm.

I. BACKGROUND

Michael Haley began working as a bank examiner for the Office of Thrift

Supervision (OTS) in 1977. As an examiner, he inspected various OTS-regulated

banks in order to evaluate the safety and soundness of their operations. In 1981, he

was assigned to examine Marion County Mutual Loan and Building Association

(MCM). MCM, like many other thrift institutions, suffered large capital losses in the

early 1980's, as a result of high interest rates on deposits and low interest rates on

mortgages. In 1986, MCM began to show signs of financial recovery. Haley believed

that MCM's management played a key role in its improved condition. However, Robert

Maffitt, the OTS supervisor responsible for the overall regulation of MCM, was not

satisfied with the progress made toward restoring MCM's financial health by current

management. 

In 1989, Congress passed the Financial Institutions Reform, Recovery, and

Enforcement Act (FIRREA), which changed the capital requirements for banks like

MCM. Among the changes were (1) increased capital maintenance requirements; (2)

different capital requirement standards; and (3) new deadlines in which to meet the new

requirements. MCM was still below the standard in terms of its capital holdings, and

the OTS was concerned about its ability to meet these new requirements. Maffitt

requested that MCM provide the OTS with detailed plans for addressing its capital

deficiencies. Furthermore, he asked MCM's board of directors to sign a consent
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agreement allowing the OTS to seek out an appropriate acquiror or merger partner for

MCM. The board refused, proposing instead to raise the necessary capital through a

stock conversion. Additionally, the board suggested the use of MCM's $1,050,000 in

net worth certificates as capital.

During an examination he conducted in July of 1989, Haley discussed the status

of MCM with Bayard Plowman, MCM's managing officer. Haley remained favorably

impressed with both the financial progress of MCM and the management skills of

Plowman and the board of directors. Another OTS examiner who visited MCM in 1989,

Carmen Gassert, shared Haley's positive views regarding the future of MCM. Gassert

informed Maffitt that, in her opinion, the proposed stock conversion would involve a

minimal insurance risk and was a feasible strategy for MCM to raise capital. Maffitt,

however, continued to disagree with the assessments of both Haley and Gassert.

In January of 1990, pursuant to the new FIRREA legislation, MCM submitted a

capital plan to the OTS. The plan called for capital enhancement by means of a stock

conversion and a conversion of net worth certificates into core capital. The OTS

disapproved of the plan, partly because it determined that a stock conversion posed too

great a risk to the insurance fund. In addition, the OTS did not believe the net worth

certificates were convertible into any instrument that would qualify as core capital.

Upon researching the issue, however, Haley discovered that the certificates were indeed

convertible into capital. He informed his OTS superiors of this, but they did not heed

his comments. The OTS subsequently rejected MCM's capital plan.

Concerned by the OTS's apparently unfair and arbitrary treatment of MCM, Haley

searched OTS files and found that the agency was determined to replace the current

management at MCM. Maffitt, Haley discovered, intended to put MCM into

receivership if he could not compel the board of directors to sign the consent agreement

giving the OTS the power to authorize a sale or merger. He also learned that Roosevelt
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Federal Savings and Loan (Roosevelt) was the most likely acquiror of MCM.

Roosevelt, however, had a poor lending record in the community, and Haley regarded

Roosevelt's acquisition of or merger with MCM as a breach of duty on the part of the

OTS. Furthermore, Haley believed that both the forced merger and the refusal to

recognize the capital value of the net worth certificates potentially violated federal

banking laws and regulations.

Haley contacted Plowman at MCM with this information. Plowman told Haley

that he intended to bring MCM's situation to the attention of Congress or the FDIC.

Haley offered to write a letter to Congress on behalf of MCM, but Plowman advised that

doing so might cost Haley his job. Haley then drafted a memorandum (the Haley Memo)

dated July 3, 1990, outlining his understanding of the OTS's involvement with MCM.

The Haley Memo was addressed to Maffitt, with copies to other superiors at the OTS

and to Skip Sage, a state regulator of Marion County. In addition, although the OTS was

unaware of it at the time, Haley forwarded a copy to Plowman at MCM. He attached

a note instructing Plowman to use the memorandum in any way that would help save

MCM from the OTS. 

Shortly thereafter, Harold Chapman, the FDIC examiner in charge of an ongoing

investigation of MCM, received two copies of the Haley Memo, one from Plowman and

one from Carmen Gassert at the OTS. On July 17, 1990, Chapman showed his copy of

the Haley Memo to Tim O'Leary, one of Haley's supervisors at the OTS, and told

O'Leary that he had received it from Plowman. Upon learning that Haley had provided

the memo to Plowman, the OTS terminated him for disclosing confidential OTS

information to an outside third party. Haley appealed his discharge to the Merit Systems

Protection Board (MSPB), claiming that he was a whistleblower entitled to protection

under 5 U.S.C. § 2302(b)(8). The MSPB found that Haley did not meet the

requirements for protection under the statute and upheld the discharge. The Federal

Circuit Court of Appeals affirmed on the same grounds in 1992.
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In the meantime, Congress amended 12 U.S.C. § 1831j to extend whistleblower

protection to employees of federal banking agencies such as the OTS. The amendment

was made retroactive to January 1, 1987. Invoking the new provision, Haley filed this

action against Nicolas P. Retsinas, Director of the Office of Thrift Supervision, alleging

that he was unlawfully retaliated against for indirectly providing information to the FDIC

about possible violations of law. The district court, sitting without a jury, found in favor

of Haley and awarded damages totaling $723,533 for back pay, future loss of income,

and compensatory damages. Retsinas appeals, arguing, primarily (1) that Haley should

be collaterally estopped from relitigating the issue of why he was terminated; (2) that

Haley did not make a protected disclosure under section 1831j(a)(2); and (3) that Haley

did not provide information regarding a possible violation of law. 

 

II. DISCUSSION

A. Collateral Estoppel

Initially, Retsinas claims that Haley should not be permitted to relitigate the issue

of the reason for his discharge, which was previously decided in the MSPB and the

Federal Circuit Court of Appeals decisions. In the previous proceedings, the ALJ found

that Haley was discharged because of his unauthorized disclosure to Plowman.

Therefore, Retsinas argues, Haley is collaterally estopped from trying to prove that he

was fired because of the disclosure to the FDIC.

"Under the doctrine of collateral estoppel, . . . the second action is upon a different

cause of action and the judgment in the prior suit precludes relitigation of issues actually

litigated and necessary to the outcome of the first action." Parklane Hosiery Co. v.

Shore, 439 U.S. 322, 326 n.5 (1979). Four requirements must be met before a finding

in a previous action is conclusive in the instant action: (1) the issue must be identical to

that involved in the prior proceeding; (2) the issue must have been
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actually litigated; (3) the issue must have been determined by a valid and final judgment;

and (4) the determination must have been essential to the judgment. See Farmland

Indus. Inc. v. Morrison-Quirk Grain Corp., 987 F.2d 1335, 1339 (8th Cir. 1993). 

The issue in this case is not identical to the issue litigated before the MSPB and

the Federal Circuit. In the previous proceedings, the reason for Haley's discharge was

determined specifically in the context of the section 2302(b)(8) action. The ALJ found

that Haley did not reasonably believe that the OTS had violated the law or abused its

authority, and that he was fired because of the disclosure to Plowman. The issue in this

case differs for a number of reasons. First, although section 2302(b)(8) requires that the

whistleblower reasonably believe the employer has violated the law, section 1831j(a)(2)

requires only that the disclosure contain information evidencing "any possible violation

of any law." The two determinations are not the same. Second, the finding that Haley

was fired for the disclosure to Plowman does not necessarily mean that he is not entitled

to the protection of section 1831j(a)(2). In the prior suit, Haley had no opportunity to

litigate whether he was terminated because his disclosure to Plowman resulted in a

disclosure to the FDIC. Furthermore, in the present case, Haley was only required to

show that the disclosure to the FDIC was a contributing factor in the OTS's decision to

discharge him. See Rouse v. Farmers State Bank, 866 F. Supp. 1191, 1207 (N.D. Iowa

1994). Even if the OTS fired him because he gave the memo to Plowman, they may

have also fired him because he gave the memo, albeit indirectly, to the FDIC. Collateral

estoppel is therefore inappropriate in this case. 

B. The "Request" Requirement 

Section 1831j(a)(2) provides:

No Federal banking agency . . . may discharge . . . any employee . . .

because the employee (or any person acting pursuant to the request of
These determinations were reached by the district court in its capacity as the

2

fact-finder in this case. We accept the district court's findings of fact, because we do

not find them to be clearly erroneous. See Black Hills Corp. v. Commissioner of

Internal Revenue, 73 F.3d 799, 804 (8th Cir. 1996). 

We do recognize two cases, Walleri v. Fed. Home Loan Bank, 83 F.3d 1575

3

(9th Cir. 1996), and Nowlin v. Resolution Trust Corp., 33 F.3d 498 (5th Cir. 1994),

both of which refused to extend whistleblower protection to employees who

complained to authorities other than those specifically enumerated in the statute. These

holdings, however, are not applicable to the situation presented in this case. 

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the employee) provided information to any such agency. . . or to the

Attorney General regarding any possible violation of any law or regulation,

gross mismanagement, a gross waste of funds, an abuse of authority, or a

substantial and specific danger to public health or safety.

12 U.S.C. § 1831j(a)(2) (emphasis added). The statute includes the FDIC and the

Director of the Office of Thrift Supervision in its definition of "Federal banking agency."

12 U.S.C. § 1831j(e). The parties agree (1) that Haley did not directly provide the

memo to the FDIC, and (2) that Haley did not expressly request that Plowman give the

memo to the FDIC. The district court found, however, that Haley told Plowman to use

the memo to save MCM from perceived abuse by the OTS, that the FDIC was one of

several possible destinations for the memo that Haley had considered, and furthermore,

that Plowman and Haley had discussed Plowman's intention to contact Congress or the

FDIC about the problem. The court concluded that Haley's actions were within the

2

scope of protected behavior under the statute. This is a mixed finding of law and fact,

which we review de novo. See Loehrer v. McDonnell Douglas Corp., 98 F.3d 1056,

1061 (8th Cir. 1996). The issue before us is whether Haley's conduct was sufficient to

constitute a "request" and thus to trigger the protection of section 1831j(a)(2). This court

is unaware of any case law addressing this question, and we therefore view it as one of

first impression.3
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The first step in statutory interpretation is to look at the text of the statute itself.

See United States v. Talley, 16 F.3d 972, 975 (8th Cir. 1994). If the plain meaning of

the language clearly expresses the meaning Congress intended, the judicial inquiry ends

there. See United States v. S.A., 129 F.3d 995, 998 (8th Cir. 1997), cert. denied, 1998

WL 54258 (U.S. March 9, 1998) (No. 97-7733). If, however, the language of the statute

is ambiguous, we are obliged to consider "'the purpose, the subject matter and the

condition of affairs which led to its enactment.'" Id. (quoting Lambur v. Yates, 148 F.2d

137, 139 (8th Cir. 1945)). "When the meaning of a statute is questionable, it should be

given a sensible construction and construed to effectuate the underlying purposes of the

law." S.A., 129 F.3d at 998. 

In this case, the statute purports to cover situations in which the "employee (or any

person acting pursuant to the request of the employee) provided information." Haley

prepared the memo in question; he provided it to Plowman; he directed Plowman to

provide it to someone with the authority to stop the OTS. Plowman then turned the

memo over to the FDIC. In this scenario, was Plowman "acting pursuant to the request

of" Haley when he provided information to the FDIC? On the one hand, Haley did not

ask that Plowman give the memo to the FDIC. If the statute requires a request that

specifically mentions the intended recipient of the information, then Plowman was not

"acting pursuant to the request of" Haley and the statute does not cover the behavior.

On the other hand, the word "request" does not necessarily dictate any level of detail.

A "request" is "the act of asking for something to be given or done." The Random

House Dictionary of the English Language 1636 (2d ed. 1987). Haley initially

considered direct action, such as writing a letter to Congress or sending the memo

directly to the Chairman of the FDIC, but he rejected the idea because he feared

retaliation by the OTS. Instead, he prepared the memo and gave it to Plowman. He

knew Plowman was already considering notifying Congress or the FDIC about the

situation, and that Plowman was in contact with others outside the OTS who might be

able to intervene. When he gave the memo to Plowman and asked Plowman to provide

it to authorities who could help save MCM, that knowledge was implicit. We therefore
In our case, the district court cited Neal v. Honeywell, Inc., 826 F. Supp. 266, 4

270 (N.D. Ill. 1993), and Lao Chua v. St. Paul Fed. Bank for Sav., 1995 WL 472773

(N.D. Ill. 1995) (relying on the district court's language in Neal), for the proposition

that federal whistleblower statutes should be broadly construed. The lower court

opinion in Neal, however, was not the final disposition of that case. See Neal v.

Honeywell, Inc., 33 F.3d 860 (7th Cir. 1994). On appeal, the Seventh Circuit criticized

the district court's broad construction language and balked at the idea that "all statutes

should receive the reading most favorable to whistleblowers." Id. at 863. The court

nevertheless affirmed the district court's decision that the whistleblower statute applied

to the plaintiff's situation. Id. at 863-64.

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find that Haley's behavior was sufficient to constitute a "request." When Plowman

provided the information to the FDIC, he was doing as Haley had suggested, and thus,

was "acting pursuant to the request of" Haley. 

Even if the text is ambiguous with respect to the meaning of "request," the policy

and purposes behind the statute lead us to the same conclusion. Laws protecting

whistleblowers are meant to encourage employees to report illegal practices without fear

of reprisal by their employers. These statutes generally use broad language and cover

a variety of whistleblowing activities. Accordingly, when the meaning of the statute is

unclear from its text, courts tend to construe it broadly, in favor of protecting the

whistleblower. This is often the best way to avoid a nonsensical result and "to effectuate

the underlying purposes of the law." S.A., 129 F.3d at 998. 

For example, the plaintiff in Neal v. Honeywell, Inc. claimed that she was entitled 4

to whistleblower protection under 31 U.S.C. § 3730(h), which applies to "any employee

who" suffers retaliation "because of lawful acts done by the employee . . . in furtherance

of . . . an action filed or to be filed" under the False Claims Act. Neal v. Honeywell,

Inc., 33 F.3d 860, 861 (7th Cir. 1994). She reported her co-workers' fraud, but the

United States eventually settled with the employer and no "action" under the False

Claims Act was ever filed. The plaintiff was subsequently discharged and sought
The statute now expressly includes internal complaints. 42 U.S.C.

5

§ 5851(a)(1)(A).

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the protection of the whistleblower statute. In its defense, the employer claimed that the

statute applied only to situations in which an "action" under the False Claims Act was

or would be filed. The Seventh Circuit construed the statute to cover the plaintiff's

actions. Id. at 864. To read it otherwise, the court determined, would yield the absurd

result that employees would be protected "in doubtful cases (the kind that breed

litigation)," but not "when the fraud is so clear that the employer capitulates, averting

litigation." Id. 

The Eleventh Circuit took a similarly broad view of another federal whistleblower

statute in Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926 (11th Cir. 1995). The

statute in question provided protection for any employee who "commenced, caused to

be commenced," "testif[ied] in," or "assist[ed] or participat[ed] in any manner in" "a

proceeding for the administration or enforcement of any requirement imposed under . .

. the Atomic Energy Act." Id. at 931 (citing 42 U.S.C. § 5851(a)). The court held that

informal complaints made by an employee were covered by the statute. Bechtel, 50

5

F.3d at 932-33. In its analysis, the court stated that this interpretation "promotes the

remedial purposes of the statute and avoids the unwitting consequence of preemptive

retaliation, which would allow the whistleblowers to be fired or otherwise discriminated

against with impunity for internal complaints before they have a chance to bring them

before an appropriate agency." Id. 

 

We agree with the district court that section 1831j(a)(2) covers Haley's actions in

this case. This interpretation protects those who provide information about violations

of the law to the appropriate authorities, but who try to safeguard themselves by blowing

the whistle discreetly—i.e., by "requesting" with a mere suggestion or an implicit

understanding. Particularly when the employee's failure to make a direct request is

driven by fear of the very conduct the statute proscribes (namely, retaliation),
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it would be unreasonable to deny the statute's protection once the employee has

completed the task the statute seeks to encourage (namely, alerting authorities to

possible illegal activity). Our reading of the statute best effectuates the policy Congress

sought to achieve in passing it. 

C. The "Possible Violations of Any Law" Requirement

The third point raised by Retsinas on appeal is that the Haley Memo referred only

to Haley's personal disagreement with the OTS's policy regarding MCM, and not to any

illegal activity of which the OTS may have been guilty. In his brief, Haley argues at

length that the OTS's policy regarding MCM was a possible violation of many laws and

regulations. The issue, of course, is not what arguments can be made in retrospect, but

what information was conveyed in the memo itself. 

In the memo, Haley stated, among other things,

I cannot believe that Congress intended for the FIRREA legislation to be

used as a pretext for removing a board of directors and management who

have managed soundly and fulfilled all of their fiduciary responsibilities

from an institution which is viable and poses no risk to the insurance fund.

After all, this is America. The Federal government should not be permitted

to take a profitable business away from anyone without a lengthy period of

due process and until all reasonable alternatives are exhausted.

The language of section 1831j(a)(2) is broad. It refers to "information . . . regarding any

possible violation of any law or regulation, gross mismanagement, a gross waste of

funds, an abuse of authority, or a substantial and specific danger to public health or

safety." After reviewing the memo, we cannot conclude that it does not contain

"information regarding any possible violation of any law," or, at least, information
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regarding "an abuse of authority" by the OTS. Accordingly, we find that Haley's

disclosure is protected by section 1831j(a)(2).

We have reviewed Retsinas's other arguments on appeal, and we also find them

to be without merit.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is affirmed. 

RICHARD S. ARNOLD, Chief Judge, dissenting.

When Mr. Plowman gave Mr. Haley’s memorandum to the FDIC, he was not, in

my view, “acting pursuant to the request of” Mr. Haley, as that phrase is used in 12

U.S.C. § 1831j(a)(2). I therefore respectfully dissent.

The Court holds that this “request” element of the statute has been met. It recites

the District Court’s finding “that Plowman and Haley had discussed Plowman’s intention

to contact Congress or the FDIC about the problem.” Ante, at 7 (footnote omitted).

Thereafter Haley furnished the memorandum to Plowman with the request that the latter

use it in any way that might be appropriate to preserve the independent existence of

Marion County Mutual Loan and Building Association. From these facts, the Court

infers that Haley at least implicitly requested Plowman to give the memorandum to the

FDIC.

It is certainly true that Haley prepared the memorandum and gave it to Plowman.

It is likewise true that Plowman turned the memorandum over to the FDIC. The further

statement that Plowman and Haley had discussed Plowman’s intention to contact

Congress or the FDIC about the problem, however, is simply not supported in the record.

With deference, I believe that the finding of the District Court to this effect was
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clearly erroneous. A careful reading of the testimony of Plowman and Haley points

unmistakably to this conclusion. 

Bayard Plowman’s Testimony

At trial, Mr. Plowman stated that Mr. Haley told him he was going to write a

memorandum to his superiors. Mr. Plowman was asked if Mr. Haley mentioned any

other individuals to whom he planned to send the memo, and at first Mr. Plowman

replied, “I’m not sure.” Mr. Plowman then mentioned that he was interested in

discussing the situation with Congressman Henry Gonzalez, although Mr. Plowman never

stated that Mr. Haley told him he planned to send the memorandum to Congressman

Gonzalez. Mr. Plowman was asked again to whom Mr. Haley planned to send the

memorandum. Mr. Plowman repeated that Mr. Haley was going to send it to his

superiors. Then Mr. Plowman testified that he had received a handwritten letter (which

he had not saved) with the memorandum from Mr. Haley. Mr. Plowman said, “Well, I

can’t remember [what the letter from Haley said], but it said, take this letter and do what

you can to save yourself.” Mr. Plowman stated that he was going to take the

memorandum and see Congressman Gonzalez, but “I made a mistake and gave the letter

to the FDIC examiner [Chapman].” Mr. Plowman explained that he had given the

memorandum to Mr. Chapman because he viewed him as a kind of “good cop.” Mr.

Plowman said that he then made an appointment with Congressman Harold Volkmer,

who told Mr. Plowman he would give the memorandum to Congressman Gonzalez. 

On cross-examination, Mr. Plowman testified that “[Haley] said to take that note

or memo and do whatever is necessary to help yourself out.” He was asked, “so [Haley]

did not specify for you to give that directly to the FDIC; isn’t that correct?” Mr.

Plowman responded, “I’m not sure of that.” The follow-up question to him was, “In fact,

you made the decision to give the memo to the FDIC?” Mr. Plowman answered, “I did

make that decision.”
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This testimony is from the Joint Appendix - Volume 1 (Appendix) pages 37-47.

Michael Haley’s Testimony

On direct, Mr. Haley was asked about his conversation with Mr. Plowman

regarding Mr. Plowman’s concerns about his ability to hold on to Marion County Mutual.

Mr. Haley explained that he told Mr. Plowman he wanted to write a letter to

Congressman Gonzalez on Mr. Plowman’s behalf, but that Mr. Plowman discouraged

Mr. Haley because it would get Mr. Haley into trouble. Mr. Gonzalez is the only name

Mr. Haley stated he discussed as a potential memorandum recipient in that conversation

with Mr. Plowman. Appendix 191-96.

Mr. Haley testified he wrote the memorandum anyhow. He was asked to whom

he planned to send the memo. He explained that after several drafts he still was not sure

to whom he would send it, but stated that “one of my drafts, I had addressed it to Senator

Bond with a copy -- copies to Volkmer, Danforth, Gonzalez. . . . And also at that time

I was thinking about giving copies to T. Timothy Ryan, the chairman of the OTS, and L.

William Siemann [sic], chairman of the FDIC.” Mr. Haley explained that he was thinking

of sending it to Mr. Seidman at the FDIC because of an article he had read in the New

York Times which left him with the impression that Mr. Seidman could be helpful, but

eventually Mr. Haley rejected the idea. Appendix 198-200. 

Mr. Haley testified that, when he called Mr. Plowman to get some numbers, he

again mentioned that he was preparing the memorandum. Mr. Plowman advised Mr.

Haley not to write it, and Mr. Haley just said “O.K.” to Mr. Plowman, and got the

information from Mr. Plowman anyhow. Mr. Haley stated that he changed direction on

the substance of the memorandum at that point, and then sent it out, including the copy

to Mr. Plowman. Mr. Haley was asked: “And why did you [send it to Plowman]?”
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A: Because time is of the essence. I sent copies to the OTS. I was

going to give them a chance to do something, but it looked like time was

running out and I had to get it into Plowman’s hands as soon as possible. 

Q: Did you send it to him in lieu of sending it to these congressmen and

other people that you thought about sending it to? 

A: Yes, I did. . . . 

Q: And what did you tell [Plowman] in the cover letter? 

A: I said, ‘Dear Bayard: This is your copy of a memorandum I am

sending to Maffit with copies to [others]. I know you told me not to do this,

but I have decided to do it anyway. I strongly urge you to use this

memorandum to save the institution or to give this memorandum to anyone

who you think can help you save the institution. I think it will help separate

you from all the other imperiled S & L executives seeking relief.” 

Appendix 204-07.

Under cross-examination, Mr. Haley admitted that he had testified differently

about his instructions to Mr. Plowman before the Merit System Protection Board. At that

earlier proceeding, he had stated that he urged Mr. Plowman to give the memorandum

to Congressman Gonzalez, and that that was his only purpose for providing Mr. Plowman

with a copy. Counsel asked: “And isn’t it the first time that you felt you were being

terminated for giving a copy of the memo to the FDIC was after section 1831 was

amended to include the FDIC in 1991?” Mr. Haley answered, “yes.” Appendix 260-63.

On redirect, Mr. Haley’s lawyer tried to undo the damage from his admission that

his Merit System Protection Board testimony was different from what he told the District

Court. His lawyer asked, “and then did you think further about how you came to decide

who you were going to send it to?” Mr. Haley replied,
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A. I just remember, I think what happened was the distribution list kept

growing and I just thought, this thing is getting out of control, and I know

if I do this, I’m gonna get fired, so at some point, I decided this doesn’t

make sense to just, you know, to spray this thing around like that. I’m

going. I don’t know who Plowman is trying to see. Why should I be down

here in St. Louis trying to guess who he wants to see. I’m just going to turn

it over to Plowman and let him identify the people he wants to see. 

Q: And he did that, is that right? 

A: That’s correct. 

Q: And you’ve never claimed in this proceeding that you told him to

give it to the FDIC or anybody else in particular? 

A: No, I just gave it to him. 

Appendix 270-71.

Thus, Haley never told Plowman to send the memorandum to the FDIC. He never

even discussed with Plowman the possibility of sending it to the FDIC. Haley thought

about the Chairman of the FDIC as a potential recipient, but never mentioned this thought

to Mr. Plowman, and later changed his mind about it. I am at a loss to understand what

basis there is for any finding that Plowman and Haley had discussed any contact with the

FDIC. 

At the oral argument in this case, Mr. Haley’s lawyer was asked to identify the

strongest evidence in his favor on this issue. He cited page 207 of the Appendix, where

Mr. Haley recounts what he said to Mr. Plowman:
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I strongly urge you to use this memorandum to save the

institution or to give this memorandum to anyone who you

think can help you save the institution.

This is a “request,” to be sure, but it is quite general. It does not mention the FDIC or

any other specific recipient. So far as this language is concerned, Mr. Plowman could

have given the memorandum to the press and still have been within the directions that

Mr. Haley gave him.

The statute, to repeat, protects Mr. Haley only if Mr. Plowman was “acting

pursuant to the request of” Mr. Haley when he gave the information to the FDIC. I

concede that the words could be stretched to cover this case. Mr. Haley told

Mr. Plowman to give the memorandum, essentially, to anyone he thought could help; Mr.

Plowman thought the FDIC could help; and he gave the memorandum to the FDIC. I

believe a natural reading of the statute requires a more specific connection between the

action of the recipient of the memorandum and the language used by the person who

wrote it. Otherwise, almost any handing over of information by an intermediary could

arguably be brought within the ambit of the statute, so long as the ultimate recipient of

the information was one of the named federal banking agencies. 

Accordingly, I would reverse the judgment of the District Court. I fear that the

action our Court takes today will unduly interfere with the authority of agencies of the

federal government to run their own business.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.