Gray v. Citizens Bank of Washington

SCHWELB, Associate Judge,

concurring:

I join the opinion of the court, but only because I recognize that dictum, even ill-considered dictum, sometimes becomes so pervasive that it becomes embedded in the “warp and woof” of our law. I “go along” with the decision to affirm with some reluctance, because this court has never been called upon to decide, and thus should not be deemed to have conclusively decided, whether a “whistle-blower” situation such as that alleged to exist here would fall within a sound public policy exception to the “at-will” doctrine. On the merits, I believe that we ought to give serious consideration to fashioning an exception which would cover the present case, and that en banc consideration may well be warranted.

*1098I

In United States v. Alston, 580 A.2d 587, 594 n. 12 (D.C.1990), this court reiterated some important principles which are perhaps honored by lawyers, and sometimes by courts, more in the breach than in the observance:

In Kraft v. Kraft, 155 A.2d 910 (D.C. 1959), the court pointed out that:

It is well to remember that significance is given to broad and general statements of the law only by comparing the facts from which they arise with those facts to which they supposedly apply.

155 A.2d at 913. See also Armour & Co. v. Wantock, 323 U.S. 126, 132-33, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944), where the Supreme Court aptly stated:

It is timely again to remind counsel that words of our opinions are to be read in the light of the facts of the order under discussion. To keep opinions within reasonable bounds precludes writing into them every limitation or variation which might be suggested by the circumstances of cases not before the Court. General expression transposed to other facts are often misleading.

With these principles in mind, I briefly examine in chronological order not only the cases cited by the majority, but also the authorities on which those decisions are based. In Pfeffer v. Ernst, 82 A.2d 763 (D.C. 1951), we held primarily that the plaintiff housekeeper had not been offered a contract to reemploy her in her old position, and that the defendant was not liable in tort for refusing to do so. In Taylor v. Greenway Restaurant, Inc., 173 A.2d 211 (D.C.1961), a bartender and night manager was discharged without being provided a week’s notice, and the court held that no such notice was required. This court pointed out in both opinions that employment for an indefinite period is terminable at the will of either party, but neither case addressed the question whether this is true where the employer is motivated by a desire to prevent disclosure of criminal activity. I do not think that these decisions can properly be viewed as binding precedents with respect to an issue which is squarely presented here, but which was not before the court in Pfeffer or Taylor.

Later decisions in this jurisdiction are likewise inconclusive. Ivy v. Army Times Publishing Co., 428 A.2d 831 (D.C.1981) (en banc) was an unpublished memorandum opinion and judgment, and the petition for rehearing en banc was denied when the full court split 4:4. In Sorrells v. Garfinckel’s, et al., 565 A.2d 285, 289 (D.C.1989), the court pointed out that no “statutorily declared public policy” supported the plaintiff’s claim, but no non-statutory public policy was at issue either.

Finally, in Adams v. Cochran, 597 A.2d 28 (D.C.1991), this court adopted a non-statutory public policy exception to the “at-will” doctrine where the plaintiff had been relegated to a choice between violating the law and being discharged.1 We could not and did not hold in Adams that this was the only public policy exception, because that question was simply not presented. The opinion does, however, contain dictum which, if adopted as a holding of the court, would apparently require us to decide this case in the Bank’s favor. Id. at 33-34.

In my opinion, pronouncements which go well beyond the questions presented in the case sub judice are generally inadvisable. When we opine on matters that are not before us, we may miss a golden opportunity to remain silent. An issue is justiciable only when the parties’ rights may be immediately affected by a judicial decision resolving it. Smith v. Smith, 310 A.2d 229, 231 (D.C.1991). Discussion that goes beyond the controversy before the court is often unreliable because, among other reasons, it “was not grounded in the facts of the case and the judges may therefore have lacked an adequate experiential basis for it....” United States v. Crawley, 837 F.2d 291, 293 (7th Cir.1988). Moreover, the *1099issue discussed in dictum has usually not been briefed or argued, and hence has not been “refined by the fires of adversary presentation.” Id. As Justice Marshall warned for the Court in Florida Star v. B.J.F., 491 U.S. 524, 532, 109 S.Ct. 2603, 2608, 105 L.Ed.2d 443 (1989), “the future may bring scenarios which prudence counsels our not resolving anticipatorily.” The question whether there should be a “public policy” exception to the at-will doctrine where an employer dismisses a whistle-blower to prevent disclosure of unlawful activity was not presented in Adams. In my opinion, it would have been better to leave it alone.2

Although we are not bound to following the Adams dictum, however, the fact is that the members of the division who decided that case subscribed to the disputed language only a few months ago. Under these circumstances, I agree that if this court is to reach a different conclusion, it would be more seemly to do so en banc.

II

According to paragraph 12 of the complaint,

the Bank knew that the only way to stop Plaintiff from continuing to make reports was to terminate him upon the first available pretext. That pretext was found with the missing coin incident. In this regard the Bank was motivated to keep from disclosure evidence of illegal activities occurring within the Bank in order to keep the same information away from Federal regulatory officials, shareholders who were not the employees of the Bank, depositors, and other concerned third parties. Plaintiff was sacrificed in order to maintain this veil of silence.

For the purposes of a motion to dismiss, as the opinion of the court points out, these allegations must be taken as true and construed in the light most favorable to the plaintiff.3 If there was a conspiracy to protect embezzlers, and if Gray was fired to prevent criminal activity from being discovered, then I question whether the Bank’s conduct should be protected by the “at-will” doctrine.

Although I might quibble with the phrasing of the last sentence, I find potential merit in the following statement in Gray’s brief:

Throughout all previous proceedings in this case the Appellee has taken the view of SO WHAT — WE STILL HAD THE RIGHT TO FIRE HIM. If this Court agrees with the Appellee’s posture it will be sending a message to not only the Appellant but also to every other diligent and responsible employee in the District of Columbia to keep their [sic] mouths closed any time they perceive possible criminal activity occurring in the workplace; otherwise, they are liable to be summarily fired and they will be unable to look to the Courts of the District of Columbia for aid. It is respectfully suggested that such a result is fundamentally immoral and, therefore, fundamentally bad law.

As the court stated in Lachman v. Sperry-Sun Well Surveying Co., 457 F.2d 850, 853 (10th Cir.1972), it is public policy “in Oklahoma and everywhere ”4 to encourage the disclosure of criminal activity. See also Adler v. American Standard Corp., 538 F.Supp. 572, 578-79 (D.Md.1982). Our progressive capital ought not to be left behind. Although changes in firmly rooted *1100judicial doctrine are sometimes more appropriately effected by legislatures than by courts, the present case may, in the context of the history discussed in this opinion, provide a suitable vehicle for a judicious new application of the common law.

. In Hall v. Ford, 272 U.S.App.D.C. 301, 856 F.2d 255 (1988), the court held, relying on Pfeffer, Taylor, and Ivy, that the District of Columbia "does not currently recognize a public policy exception to the at-will termination doctrine.” Id. at 313, 856 F.2d at 267 (emphasis added). In light of Adams, Judge Buckley’s statement for the court is no longer “current.”

. I appreciate the fact that since Adams was the first decision in which this court fashioned any exception to the at-will doctrine, the division may have wished to make that exception no broader than necessary. This might have been done, however, without anticipatorily resolving a question not presented.

. To adapt Judge Murnaghan’s dissenting opinion in United States v. Charters, 863 F.2d 302, 314 (4th Cir.1988) (en banc), cert. denied, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990):

Judge [Reilly] excels both as a wordsmith and as a thinker. It, therefore, is difficult to enter the lists as his opponent. Yet, here is a case where his words simply fail to convince me.

In my opinion, it is premature to predict what Gray will or will not be able to show before his proof has been received. He is not required to plead his evidence.

.(Emphasis added.) In quoting the underscored words, however, I risk converting my assault on dictum into a two-edged sword.