Sloan v. Department of Housing & Urban Development

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2000 Decided November 14, 2000

No. 99-5146

Leon Sloan, Sr. and

Jimmie Lee Furby,

Appellants

v.

Department of Housing & Urban Development, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 97cv00764)

James K. Kearney and Joseph L. Luciana, III argued the

cause for appellants. With them on the briefs were James P.

Gallatin, Jr., David T. Case, and A. Thomas Morris.

Scott S. Harris, Assistant United States Attorney, argued

the cause for appellees. With him on the brief were Wilma

A. Lewis, United States Attorney, and R. Craig Lawrence,

Assistant United States Attorney.

Before: Edwards, Chief Judge, Henderson and Garland,

Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge: Appellants Leon Sloan, Sr. and

Jimmie Lee Furby were partners and owners of J&L Reno-

vation Company ("J&L"), a small demolition contracting com-

pany specializing in interior demolition. On August 18, 1995,

they received a notice from the United States Department of

Housing and Urban Development ("HUD") that the agency

was seeking debarment of Sloan, Furby, and J&L from

government contracting for a period of five years based upon

allegations of improper clean-up and disposal of waste at a

public housing construction site. HUD issued suspensions

pending a final determination on the debarment action. In

August 1996, a HUD Administrative Law Judge ("ALJ")

denied the five-year debarment and terminated the suspen-

sions. The ALJ, however, declined to void the suspensions ab

initio, and the Secretary of HUD affirmed this decision.

Sloan and Furby sought relief in the District Court, claim-

ing that the agency's failure to void the suspensions ab initio

violated the Administrative Procedure Act ("APA"), and that

the actions of various HUD officials deprived them of due

process. In a second complaint against individual HUD

officials, Sloan and Furby sought damages under Bivens v.

Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971). The District Court, after

consolidating the cases, entered an order dismissing the

consolidated complaint. In a related, unconsolidated case,

Sloan and Furby brought claims pursuant to the Federal Tort

Claims Act ("FTCA"). Appellants' FTCA claims are the

subject of a separate appeal, Sloan v. United States Depart-

ment of Housing and Urban Development, No. 99-5145,

heard on the same day as this case.

Appellants raise two principal issues in the instant appeal.

Appellants' first claim is that HUD's refusal to void their

suspensions ab initio was arbitrary and capricious. Appellee

HUD contends that there was ample evidence to support the

suspensions at the time they were imposed, as well as when

the case was heard by the ALJ. We disagree. HUD origi-

nally had based the issuance of the suspensions on three

distinct charges. The debarment proceeding conclusively

revealed that the first and third charges--relating to hazard-

ous waste containment--were completely unsupported. Fur-

thermore, the ALJ did not find, and HUD does not argue,

that the second charge alone--relating to improper disposal

of construction debris--would have supported issuance of the

suspensions. Finally, the Secretary's decision is devoid of

any good reason to justify the denial of the relief sought by

appellants. On this record, we hold that the agency's failure

to void the suspensions ab initio was arbitrary and capricious.

Appellants' second claim challenges the District Court's

finding that the APA's comprehensive remedial structure

precludes recognition of appellants' Bivens claims. We need

not reach this issue, however, because we reject appellants'

claim that individual HUD defendants violated their constitu-

tional rights to due process in conducting and supervising the

investigations and prosecution associated with the suspen-

sions and debarment proceedings. We therefore affirm the

judgment of the District Court dismissing the Bivens claims.

I. Background

A. Factual Background

In 1989, the Allegheny County Housing Authority

("ACHA") received funds from HUD to perform moderniza-

tion work at the Burns Heights public housing project in

Duquesne, Pennsylvania. Part of the funding was intended

for lead-based paint testing at the site. Because a previous

x-ray fluorescence ("XRF") test for lead-based paint had

proven inconclusive, ACHA prepared specifications calling for

the demolition contractor to assume all existing painted sur-

faces contained lead-based paint.

In November 1992, Mistick Construction, PBT ("Mistick"),

in conjunction with its bid for demolition work at Burns

Heights, reviewed ACHA's XRF test and hired an industrial

hygienist to perform a toxic characteristic leaching procedure

("TCLP") test of Burns Heights wall debris. The TCLP test

established that the lead content of the wall debris was

substantially less than the United States Environmental Pro-

tection Agency ("EPA") threshold for hazardous waste.

ACHA subsequently hired Mistick to perform the demolition

work.

In January 1993, before beginning the demolition work,

Mistick conducted a test of the air inside the Burns Heights

buildings to determine whether hazardous levels of lead were

present. The air test results indicated that lead levels were

significantly less than the Occupational Safety & Health

Administration ("OSHA") limit; Mistick therefore concluded

that OSHA worker protection requirements need not be

followed when work was done on the site. Mistick provided

the TCLP and air test results to ACHA, and ACHA con-

firmed that hazardous lead-based paint protocols were not

required for demolition work at Burns Heights. The parties

agreed, in writing, that the test results were "well within

EPA guidelines" and that demolition waste from Burns

Heights need not be disposed of as contaminated waste.

Mistick Inc. Proposed Hazardous Materials Work Plan for

the Burns Heights Project (Jan. 7, 1993), reprinted in Appen-

dix ("App.") 416, 419.

In February 1993, Mistick subcontracted the interior demo-

lition work at Burns Heights to J&L, the company owned by

appellants Sloan and Furby. From February 1993 until May

1995, when J&L completed its demolition work, J&L disposed

of most of its demolition debris in dumpsters provided by

Mistick. For a period beginning in 1994, however, J&L

began separating plaster from other demolition debris and

delivering it to an unapproved landfill (the "Perrone site").

Under the then applicable Pennsylvania regulations, plaster

was defined as construction/demolition waste which had to be

dumped in an approved landfill. See 25 Pa. Code s 271.1

(1999) (adopted April 8, 1988, effective April 9, 1988). Appel-

lants were unaware of the change in state regulations. See

Matter of Sloan, HUDBCA Nos. 96-C-106-D3, 96-C-107-

D4, 96-C-108-D5, 1996 WL 506267 (H.U.D.B.C.A. Aug. 30,

1996) (ALJ determination) (finding that appellants "would not

have dumped the plaster debris in an unapproved landfill if

they had been aware of the change in state regulations").

Upon discovering that a rival construction group was fol-

lowing and taping J&L's dumping activities, Mistick request-

ed J&L to discontinue disposing of plaster at the unapproved

site, which J&L did. Mistick subsequently informed the

Pennsylvania Department of Environmental Protection

("Pennsylvania DEP") of the placement of plaster at the

Perrone site. The Pennsylvania DEP determined that no

action was required.

In November 1994, during an unrelated HUD debarment

proceeding, HUD received information that Mistick was not

properly performing lead-based paint abatement at Burns

Heights. Thereafter, two HUD officials, Mark Chandler, an

auditor in HUD's Office of Inspector General, and Dane

Narode, an attorney from HUD's Office of Public and Indian

Housing, began investigating the demolition work at Burns

Heights. Chandler conducted the performance audit.

Chandler and Narode visited the Perrone site, where they

observed paint chips resembling those from the Burns

Heights project before allegedly being chased from the site

by its owner. Chandler and Narode also visited Burns

Heights where they photographed J&L's failure to contain

dirt, dust, and paint chips. Chandler then spoke with Furby

on the telephone and also met with David McLean, Director

of Maintenance and Development for ACHA. During the

latter conversation, McLean mistakenly indicated that Burns

Heights was an ACHA lead-based paint project. Chandler

did not inquire as to whether there were hazardous levels of

lead at Burns Heights nor whether lead-based paint abate-

ment was being performed there.

Subsequent to his meeting with McLean, Chandler received

from ACHA copies of the XRF test, the November 1992

TCLP test, and the January 1993 air test. These tests

clearly indicated that there were no hazardous levels of lead

present at Burns Heights, but Chandler was not qualified to

interpret or evaluate the test results. Amazingly, Chandler

did not ask either ACHA or Mistick what the test results

meant and he never spoke to Mistick or J&L about whether

the subcontract covered lead-based paint abatement. Chan-

dler's final audit report, which was sent to HUD's Pittsburgh

Area Office on October 18, 1995, stated, without good basis,

that Mistick and J&L had failed to properly perform lead-

based paint abatement; on this erroneous finding, Chandler's

report concluded that Mistick and J&L had not performed

demolition work at Burns Heights in accordance with contrac-

tual requirements.

B. Administrative Proceedings

On August 18, 1995, three months after the demolition

work at Burns Heights had been completed, Assistant Secre-

tary for Public and Indian Housing Joseph Shuldiner noti-

fied Sloan and Furby that they were suspended from all

HUD-related government contracting work and that HUD

was seeking a five-year debarment from participation in

HUD-funded construction work. The notice asserted that

the Department had information "indicating serious irregu-

larities in [J&L's] business dealings with the Government,"

namely: (1) improper cleanup of waste from the lead-based

paint abatement process; (2) improper disposal of construc-

tion debris from the demolition; and (3) failure to adhere to

contract requirements or HUD Guidelines by allowing haz-

ardous waste to be tracked outside of containment and al-

lowing workers to perform abatement work without proper

notification. See Letters from Joseph Shuldner, Assistant

Secretary, HUD, to Jimmie L. Furby, Leon Sloan, Sr., and

J&L Renovation Company (Aug. 18, 1995), reprinted in App.

151, 153, 155. George Dickey, a HUD Program Official in

the Office for Public and Indian Housing, processed the

sanctions against Mistick and J&L.

Appellants contend that, during discovery for the debar-

ment proceeding, they requested depositions of Assistant

Secretary Shuldiner and Dickey. HUD opposed the deposi-

tions and the ALJ denied the requests. Appellants also aver

that, during discovery, HUD failed to produce an exchange of

letters confirming that ACHA did not find "sufficient grounds

to pursue a claim for non-performance, and that contamina-

tion and associated costs are non-existent." See Letter from

George Arendas, Executive Director, ACHA, to Paul LaMar-

ca, HUD Pittsburgh Area Office (Jan. 17, 1995), reprinted in

App. 174. Appellants argue that the failure to produce these

"exculpatory documents" hindered their efforts at the debar-

ment proceeding. See Appellants' Br. at 14.

On August 30, 1996, after a five-day administrative hearing,

the ALJ rejected the Government's case seeking debarment

and terminated the suspensions against J&L, Sloan, and

Furby. Matter of Sloan, 1996 WL 506267 (ALJ determina-

tion). The ALJ specifically found that "there was not a lead

hazard present at Burns Heights that would have made lead-

based paint abatement protocols necessary." Id. The ALJ,

however, denied Sloan and Furby's request to have their

suspensions voided ab initio. The ALJ's decision not to void

the suspensions ab initio was based on an erroneous finding

that the written contract documents required Mistick to treat

the job as though there were hazardous levels of lead present

at Burns Heights. See id. After unsuccessfully appealing

the ALJ's ruling to the HUD Secretary, Sloan and Furby

filed suit in the District Court.

II. Analysis

A. The APA challenge

The disputed suspension and debarment actions in this case

arose pursuant to the federal regulations implementing sec-

tion 3 of Executive Order 12549, 51 Fed. Reg. 6370 (1986),

which provides that, to the extent permitted by law, Execu-

tive departments and agencies shall participate in a govern-

ment-wide system for nonprocurement debarment and sus-

pension. 24 C.F.R. s 24.100(a) & (b) (1995). Under the

applicable regulations, debarment and suspension are discre-

tionary measures taken to protect the public interest and to

promote an agency's policy of "conduct[ing] business only

with responsible persons." 24 C.F.R. s 24.115(a) (1995).

The issuance of a suspension is a "serious action," hence it

"may be imposed only when: (1) [t]here exists adequate

evidence of one or more of the causes set out in s 24.405, and

(2) [i]mmediate action is necessary to protect the public

interest." 24 C.F.R. s 24.400(b) (1995); see also 24 C.F.R.

s 24.405 (1995). A party who contests a suspension or possi-

ble debarment may request a hearing before an ALJ pursu-

ant to 24 C.F.R. s 24.313 (1995), followed by an appeal to and

discretionary review by the Secretary pursuant to 24 C.F.R.

s 24.314(c) (1995). Any review taken by the Secretary "shall

be based on the record of the initial hearing [before the ALJ]

and shall fully recite the evidentiary grounds upon which the

Secretary's determination is made." 24 C.F.R. s 24.314(e)

(1995).

The parties agree that judicial review of the Secretary's

final decision in this case is available pursuant to the Adminis-

trative Procedure Act ("APA"), 5 U.S.C. ss 702, 704, 706

(1994). Appellants contend that the agency's refusal to void

their suspensions ab initio was arbitrary and capricious and

thus violated s 706(2)(A) of the APA, and that the agency's

administrative procedures infringed their due process rights

in violation of s 706(2)(B) of the APA. We find merit in

appellants' first claim.

Neither party contests the applicability of the APA's "arbi-

trary and capricious" standard. Appellee urges, nonetheless,

that our review of HUD's decision in the instant case should

be "highly deferential," and "presume the validity of agency

action." See Appellees' Br. at 15 (quoting Kisser v. Cisneros,

14 F.3d 615, 618 (D.C. Cir. 1994)). It is well-established that,

when conducting review under the "arbitrary and capricious"

standard, a court may not substitute its judgment for that of

agency officials; rather, our inquiry is focused on whether

"the agency [ ] examine[d] the relevant data and articulate[d]

a satisfactory explanation for its action including a 'rational

connection between the facts found and the choice made.' "

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc.

v. United States, 371 U.S. 156, 168 (1962)). Our deference to

agency decisionmaking does not require us, however, to coun-

tenance an agency's failure to "consider[ ] ... relevant fac-

tors" or "clear error[s] of judgment." Id. (quoting Bowman

Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S.

281, 285 (1974)).

On the basis of the record before us, we find that HUD's

decision not to void the suspensions ab initio cannot with-

stand review, because the decision cannot be squared with the

applicable regulations and, also, because the decisions of the

ALJ and the Secretary fail to "articulate a satisfactory expla-

nation for [the agency's] action including a 'rational connec-

tion between the facts found and the choice made.' " State

Farm, 463 U.S. at 43 (quoting Burlington Truck Lines, Inc.,

371 U.S. at 168).

Under the applicable regulations, a suspension is justified

only when there is "adequate evidence" of wrongdoing and

"immediate action is necessary to protect the public interest."

24 C.F.R. s 24.400(b). "In assessing the adequacy of the

evidence, the agency should consider how much information is

available, how credible it is given the circumstances, whether

or not important allegations are corroborated, and what infer-

ences can reasonably be drawn as a result." 24 C.F.R.

s 24.400(c) (1995). Moreover, the agency's "assessment

should include an examination of basic documents such as

grants, cooperative agreements, loan authorizations, and con-

tracts." Id. In applying these regulations, the ALJ and the

Secretary are required to consider both whether there is

adequate justification for the suspensions at the time they are

issued, and whether, in light of the evidence adduced at the

debarment hearing, there is good reason to terminate the

suspensions. See 24 C.F.R. ss 24.313, 24.314 (1995).

Many years ago, in Horne Brothers, Inc. v. Laird, 463 F.2d

1268 (D.C. Cir. 1972), Judge Leventhal had occasion to con-

strue what it means for an agency to have "adequate evi-

dence" to justify the "suspension" of a government contrac-

tor:

The "adequate evidence" showing need not be the kind

necessary for a successful criminal prosecution or a

formal debarment. The matter may be likened to the

probable cause necessary for an arrest, a search warrant,

or a preliminary hearing. This is less than must be

shown at the trial, but it must be more than uncorrob-

orated suspicion or accusation.

Id. at 1271. Obviously, as Horne Brothers suggests, "[a]

question of judgment is involved" in any agency decision

to issue a suspension. Id. What is noteworthy here, how-

ever, is that, under the controlling regulations, there can

be no suspension without "adequate evidence," the necessi-

ty of "immediate action...to protect the public interest," a

consideration of "whether or not important allegations are

corroborated," "an examination of basic documents," and a

determination, based on "all available evidence," that rea-

sonable inferences of wrongdoing can be drawn. 24

C.F.R. ss 24.400, 24.410 (1995).

At the hearing before the ALJ, the Government withdrew

the third ground for debarment and suspension--failure to

adhere to contract requirements or HUD Guidelines--recog-

nizing that the agency had nothing concrete upon which to

justify this charge. The ALJ subsequently dismissed the

first charge--improper cleanup of waste from the lead-based

paint abatement process--finding no basis in the record.

Matter of Sloan, 1996 WL 506267 (ALJ determination). This

left only the charge that J&L had improperly disposed of

construction debris from the demolition. The ALJ did not

find, and appellee does not argue, that this single remaining

charge provided cause for the suspensions. Rather, appellee

asserts that the decision not to void the suspensions ab initio

should be upheld because the administrative judge found

appellants and Mistick largely to blame for the misunder-

standings leading to the faulty audit and resulting sanctions.

The suggestion that appellants should bear the onus of

HUD's poor investigatory work is ridiculous. Had HUD

officials been more precise in their investigation, they would

have discovered that the November 1992 TCLP test and the

January 1993 air test clearly established that there were no

hazardous levels of lead present at Burns Heights. The

auditor had only to examine the test results or request

assistance with their interpretation.

We also reject appellee's related argument, that the deci-

sion not to void the suspensions ab initio rests on the ALJ's

conclusion that government investigators had been misled

into thinking that lead abatement was part of the disputed

contract because the change in contract specification regard-

ing lead abatement had not been captured in a written

amendment. See Appellees' Br. at 20-21. The ALJ's finding

on this point is simply wrong; the record is clear that the

parties had agreed in writing that demolition waste from

Burns Heights need not need be disposed of as contaminated

waste. See Mistick Inc. Proposed Hazardous Materials Work

Plan for the Burns Heights Project, reprinted in App. 416,

419 (Jan. 7, 1993).

Whatever agency officials may have thought about the case

against the appellants when the suspensions were issued,

their view of the case should have changed rather dramatical-

ly following the hearing before the ALJ. The hearing made

it clear that the initial finding of probable cause was flimsy at

best, riding on the heels of a hastily-conducted and technical-

ly-flawed audit. In other words, even if HUD officials

thought they had more than "uncorroborated suspicion or

accusation" at the time when the suspensions were issued, it

was abundantly clear at the conclusion of the hearing that

there had been no basis at the outset to suspend appellants.

It was therefore arbitrary and capricious for the agency to

deny full relief to appellants.

Government contracting has become an economic mainstay

for a number of commercial enterprises. It goes without

saying, therefore, that disqualification from government con-

tracting is a very serious matter for these businesses. See

Gonzalez v. Freeman, 334 F.2d 570, 574 & n.5 (D.C. Cir.

1964). In this case, appellants have endured economic losses,

professional indignities, and injuries to their reputations, and

these sufferings no doubt will continue to linger so long as

appellants are tarnished by an official record suggesting that

they engaged in "serious irregularities" in their business

dealings with the Government. Even the applicable regula-

tions recognize the potentially harsh consequences that flow

from suspension, for they make it clear that "[s]uspension is a

serious action" that should be imposed only "when it has been

determined that immediate action is necessary to protect the

Government's interest." 24 C.F.R. s 24.410(c).

In this case, appellants' claim for relief was sufficiently

compelling that the Secretary granted review specifically to

consider the following question: "Under what circumstances

is it appropriate for the Secretarial designee to void a suspen-

sion ab initio when, in hindsight, it is clear that the Respon-

dents are not guilty of the charges that led to the suspen-

sion?" Matter of Sloan, HUDBCA Nos. 96-C-106-D3, 96-C-

107-D4, 96-C-108-D5 (Nov. 18, 1996) (order granting respon-

dent's petition for secretarial review); see also Matter of

Sloan, HUDBCA Nos. 96-C-106-D3, 96-C-107-D4, 96-C-

108-D5 (Dec. 18, 1996) (order on Secretarial review), reprint-

ed in App. 452 n.1. It is not surprising that the Secretary

accepted discretionary review of the appellants' administra-

tive appeal, for the Secretary's decision does not doubt the

availability of the relief sought by appellants. See Matter of

Guillen, HUDBCA No. 91-1739-DB, 1992 WL 45853

(H.U.D.B.C.A. Feb. 28, 1992) (ALJ determination). What is

surprising, however, is the Secretary's treatment of appel-

lants' claim.

It is clear that there was no need for "immediate action" to

be taken against appellants. See 24 C.F.R. s 24.400(b)(2).

The Secretary's decision does not suggest that appellants

should have been suspended for the allegations that prompted

the first and third charges. And the Secretary acknowledges

that appellants' alleged improper activity in connection with

the second charge--placing debris in an unapproved landfill--

had ceased before the issuance of the suspensions. In other

words, the Secretary could not find that there was adequate

evidence that appellants lacked "present responsibility" when

the suspensions were issued. Nonetheless, the Secretary's

decision suggests that appellants' "past irresponsible acts" in

connection with the second charge justified the suspensions.

See Matter of Sloan (order on Secretarial review), reprinted

in App. 454. This is a specious conclusion. First, the

Secretary's decision simply ignores the requirement that

there must be a real need for immediate action to protect the

public interest in order to justify a suspension. Further-

more, as noted above, the Government does not contend that

the second charge against appellants, without more, could

have warranted suspensions, so the Secretary's reason for

refusing to void the suspensions ab initio makes no sense.

The Secretary's decision is at best a half-hearted attempt

to address appellants' claim for relief. And, as is true with

portions of the ALJ's decision, the Secretary's decision seems

to blame the appellants for the blunders committed by agency

investigators. In short, the decision fails to "articulate a

satisfactory explanation for [the agency's] action including a

'rational connection between the facts found and the choice

made.' " State Farm, 463 U.S. at 43 (quoting Burlington

Truck Lines, Inc., 371 U.S. at 168). Accordingly, we find the

agency's action to be arbitrary and capricious.

Because we find that the decision not to void the suspen-

sions ab initio was arbitrary and capricious, we need not

linger on appellants' alternative argument that HUD violated

the due process rights of Sloan and Furby by failing to

produce critical witnesses and HUD documents. "An agency

may not impose even a temporary suspension without provid-

ing the 'core requirements' of due process: adequate notice

and a meaningful hearing." Commercial Drapery Contrac-

tors, Inc. v. United States, 133 F.3d 1, 6 (D.C. Cir. 1998); see

also Reeve Aleutian Airways, Inc. v. United States, 982 F.2d

594, 595, 599-602 (D.C. Cir. 1993). In the instant case, the

procedures followed by HUD adequately safeguarded appel-

lants' due process rights.

B. The Bivens claims

In asserting their Bivens claims for money damages

against individual HUD defendants, appellants charge that

HUD officials violated their due process rights in conducting

and supervising the audit, processing and issuing the sanc-

tions, and prosecuting the suspensions. The District Court

held that any Bivens remedy was precluded by the availabili-

ty of relief under the APA. Examining the APA, the District

Court found it to be a comprehensive remedial scheme for

administering public rights which did not inadvertently omit

damage remedies for certain claimants.

We need not decide whether the APA precludes appellants'

Bivens claims, because we find that appellants have failed to

allege the violation of a constitutional right. The focus here,

in contrast to the APA claim, is on the investigation into

appellants' alleged misdeeds as well as the decisions to pro-

cess and enforce the administrative sanctions--not the result-

ing records of suspension. Indeed, with the exception of the

claim against Attorney Narode for prosecution of the adminis-

trative action, all of appellants' Bivens claims center mainly

on the investigations conducted before the administrative

hearing.

Appellants maintain that the disputed investigations and

prosecution by government officials violated their due process

rights. The law is clear, however, that "there is no constitu-

tional right to be free of investigation," United States v.

Trayer, 898 F.2d 805, 808 (D.C. Cir.), cert. denied, 498 U.S.

839 (1990), and appellants have not shown that the investiga-

tion was part of a scheme or conspiracy to deprive them of

their constitutional rights. See, e.g., Anthony v. Baker, 767

F.2d 657, 662 (10th Cir. 1985).

Appellants contend that individual HUD employees contra-

vened the broad standards incorporated in HUD's Consolidat-

ed Audit Guide for Audits of HUD Programs, but these

alleged violations do not support a claim for denial of due

process. See, e.g., Schweiker v. Hansen, 450 U.S. 785, 789,

reh'g denied, 451 U.S. 1032 (1981) (stating that Social Securi-

ty Administration claims manual, as opposed to official regu-

lations, had no legal force); Kugel v. United States, 947 F.2d

1504, 1507 (D.C. Cir. 1991) (department guidelines "do not

create a duty in favor of the general public"); Lynch v.

United States Parole Comm'n, 768 F.2d 491, 497 (2d Cir.

1985) (finding that Police Commission internal procedures

manual did not create due process rights enforceable in

court). We therefore conclude that the errors committed by

HUD officials during their investigation of appellants did not

rise to the level of constitutional infringement.

Furthermore, as noted above, appellants were given clear

notice of the charges against them and a fair opportunity to

prepare a defense; they were then afforded extensive rights

to a full hearing before an ALJ, during which the Govern-

ment carried the burden of proof, followed by an appeal to

the Secretary and then judicial review. In other words, they

were given a full panoply of due process protections to

redress any preceding mistakes that may have occurred

during the agency investigations. Assuming, arguendo, that

appellants had cognizable property or liberty interests justify-

ing due process protections, see, e.g., Old Dominion Dairy

Prods. v. Secretary of Defense, 631 F.2d 953 (D.C. Cir. 1980),

the postdeprivation procedures provided under HUD regula-

tions were more than enough to satisfy the requirements of

procedural due process. See Hudson v. Palmer, 468 U.S.

517, 533 (1984); see also Stuto v. Fleishman, 164 F.3d 820,

825 (2d Cir. 1999) (quoting Hudson, 468 U.S. at 533) ("[T]he

negligent or intentional deprivation of property through the

random and unauthorized acts of a state or federal employee

does not constitute a deprivation of due process if 'a meaning-

ful postdeprivation remedy for the loss is available.' ").

Finally, appellants' claims against Attorney Narode for

prosecution of the administrative sanctions fail because of

absolute immunity. See Butz v. Economou, 438 U.S. 478,

516-17 (1978); Imbler v. Pachtman, 424 U.S. 409, 424-29

(1976). In Butz, the Court held that, in general, federal

executive officials charged with constitutional violations were

entitled only to qualified immunity. See Butz, 438 U.S. at

507. The Court noted, however, that there were "some

officials whose special functions require[d] a full exemption

from liability," id. at 508, and observed that the adjudicatory

process within federal administrative agencies "share[d]

enough of the characteristics of the judicial process that those

who participate in such adjudication should also be immune

from suits for damages." Id. at 512-13. Finding "no sub-

stantial difference between the function of the agency attor-

ney in presenting evidence in an agency hearing and the

function of the prosecutor who brings evidence before a

court," id. at 516, the Court granted absolute immunity to

federal attorneys whose duties in administrative proceedings

were functionally similar to those of a prosecutor. See id. at

517. We recognize a fortiori that the actions taken to enforce

the sanctions against Sloan and Furby, such as presenting

evidence at the administrative hearing, deserve no less pro-

tection from suit.

In view of our conclusion that appellants have not alleged

the violation of a constitutional right, we need not determine

whether appellants' Bivens claims are precluded by the APA.

This court has suggested that a Bivens action may be fore-

closed where the possibility of judicial review under the APA,

along with other "statutes, executive orders and regulations,"

provides a meaningful remedy. Krodel v. Young, 748 F.2d

701, 712-13 & 712 n.6 (D.C. Cir. 1984), cert. denied, 474 U.S.

817 (1985). The Government, however, did not suggest that

Krodel was applicable here.

III. Conclusion

For the foregoing reasons, the judgment of the District

Court is affirmed in part and reversed in part. The agency's

refusal to void appellants' suspensions ab initio was arbitrary

and capricious and is accordingly reversed. The case is

hereby remanded to the agency with instructions to make

void appellants' suspensions ab initio.

So ordered.