After almost two years of litigation, former FBI Deputy Director Andrew McCabe’s lawsuit against the FBI and Attorney General Merrick Garland over McCabe’s very public 2018 firing is headed to mediation, according to a Tuesday court filing.
Garland, of course, wasn’t named as a defendant in McCabe’s lawsuit when he filed it in August 2019; that spot went to then-Attorney General Bill Barr, who by then had taken over for former Attorney General Jeff Sessions, who was actually the one to fire McCabe in March 2018. (Sessions himself was essentially forced out in November 2018 after months of public criticism from then-President Donald Trump).
McCabe and Barr appear to have been locked in procedural back-and-forth for more than a year, but Barr’s motion to dismiss was denied in September 2020, and it looked like McCabe’s case would proceed.
Now, however, it looks like both McCabe and Garland are trying to make the mediation happen, and soon.
According to the parties’ joint request to stay proceedings, both sides are “currently working to identify a mutually agreeable private mediator who is available to hold and complete mediation proceedings by August 30, 2021.”
If they can’t find a mediator by then, the filing says, the parties will request a referral to the federal court’s mediation program—an indication that both sides really want this mediation to happen.
The timing of McCabe’s firing was particularly brutal, as it happened just hours before McCabe was set to retire, depriving McCabe of the pension he would have earned after spending some 20 years with the FBI. McCabe alleges that he was fired because he wouldn’t pledge his loyalty to Trump.
At the time, Sessions said that McCabe’s firing was due to a finding by both the Justice Department inspector general and the FBI that McCabe had made an “unauthorized disclosure to the news media and lacked candor—including under oath—on multiple occasions.”
McCabe’s lawsuit alleges due process violations over his firing and demands that his termination be deemed a “legal nullity because he had already retired,” or, alternatively, that the DOJ violated McCabe’s constitutional rights with a retaliatory demotion and firing. McCabe also asks that his personnel record be expunged of all records related to his firing and that his employment be retroactively reinstated through his planned retirement date. The latter would result in McCabe being deemed to have left the FBI voluntarily and in good standing — and therefore to be allowed to receive his full retirement benefits.
Read the parties’ joint motion below.
[Image via Pete Marovich/Getty]