Petition for Writ of Certiorari — Cooper v. Kotarski
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Sepreme Sot, aS
FiL&D
MAY 13 1987
In the Supreme Court of the Gn
OCTOBER TERM, 1986
V.L. COOPER, ET AL., PETITIONERS
V.
FRANK K. KOTARSK!
PETITION FOR A WRIT OF CERTIORARI
1rO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES FRIED
Solicitor General
RICHARD K. WILLARD
Assistant Attorney General
DONALD B. AYER
Deputy Solicitor General
MICHAEL K. KELLOGG
Assistant To The Solicitor General
BARBARA L. HERWIG
RICHARD A. OLDERMAN
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 633-2217
ee
Ae, oo
Phe:
QUESTION PRESENTED
Whether a probationary employee, for whom the Civil
Service Reform Act of 1978 provides limited remedies for
adverse personnel actions, including referral to the Special
Counsel for investigation of allegedly “prohibited person-
nel practices” (5 U.S.C. 1206(a)(1)), but excluding a
general right of review by the Merit Systems Protection
Board or any court, may bring a Bivens action against his
superiors seeking money damages for alleged constitu-
tional violations.
(1)
TABLE OF CONTENTS
Page
eas aida dee he oss A ee l
a re ie gk gam wo da. hd Ski wD Be |
ua reenencns SIVOIVER ©... wk eke cee 2
Oe a ree a-a be ka 4.4 6 6 64s 4 ia cas, 2
Reasons for granting the petition ................ gyre 10
elo abs Gey 0 6 whe 0 AS Ss 16
ea ie kkk hy 6 aa ra eee eas ka a ee a la
Appendix B...... Op SDA i 23a
ea eae ey ou dase 609-56 OX a Oke 30a
AppendixD........ tk ake hata eG 3la
Appendix E...... ee ree le ps ak een 2 ew es 32a
FABLE OF AUTHORITIES
Cases:
Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971) ............ 7, 8,
>, 10,44, 12,13, 34,15
Braun v. United States, 707 F.2d 922 (6th Cir.), cert.
rr ee re Ce asc naka see’ 14
Broadway v. Block, 694 F.2d 979 (Sth Cir. 1982) ........ 14
memes W. eee, BO 4). SO? CISSS ... 2... ccc e cde me ®
*, 3, {Z,-13, 4,
Carducci v. Regan, 714 F.2d 171 (D.C. Cir. 1983) ....... 5
Cazalas v. Dep’t of Justice, 569 F. Supp. 213 (E.D. La.
1983), aff'd, 731 F.2d 870 (Sth Cir. 1984), cert. denied,
NT BU a svc ve cee ens caKwcR See's 14
Cutts v. Fowler, 672 F.2d 138 (D.C. Cir. 1982) ......... 5
Egger v. Phillips, 710 F.2d 292 (7th Cir.), cert. denied,
ica aa ase se ss sd kas es 14
Francisco v. Schmidt, 575 F. Supp. 1200 (E.D. Wis. 1983) 14
Freedman v. Turnage, 646 F. Supp. 1460 (W.D. N.-Y.
a es ed ka 4 vo es eo es - 14
Gleason v. Malcom, 718 F.2d 1044 (11th Cir. 1983) ...... 14
Harding v. USPS, 618 F. Supp. 1330 (S.D. W.Va. 1985) . 14
Harris v. Moyer, 620 F. Supp. 1262 (N.D. Ill. 1985) ..... 14
Hubbard v. EPA, No. 85-5145 (D.C. Cir. Dec. 5, 1986) .. 14, 15
(111)
Cases — Continued: Page
Lovshin v. Department of the Navy, 767 F.2d 826 (Fed.
Cir. 1985), cert. denied, No. 85-882 (Apr. 7, 1986) .... 3
MelIntosh v. Weinberger, 810 F.2d 1411 (8th Cir. 1987) . i4
Palermo v. Rorex, 806 F.2d 1266 (Sth Cir. 1987) ........ 13
Pinar v. Dole, 747 F.2d 899 (4th Cir. 1984), cert. denied,
BTR Rl os ee en ee ee ee 13
Spagnola v. Mathis, No. 84-5530 (D.C. Cir. Dec. 5,
| PER OO PALO OE UE DCEO a CS rete EY 14, 15
United States v. Fausto, cert. granted, No. 86-595 (Jan.
eA ae a ees Pee eae he oe eee ee 15
Wells v. FAA, 755 F.2d 804 (11th Cir. 1985) ............ 13
Constitution, statutes and regulations:
U.S. Const.:
Pr are ae eae hi Le aerated 11, 14, 15
PEE Pare LAS aes a ea el ar oe eat ate ite 6
SE Re rt ee Se ee ate een ee 6
Ave Discrimination in Employment Act of 1967, § 15(c)
ae ee ee is ke ee ee ee ae 5
Civil Rights Act of 1964, Tit. VII,42 U.S.C. 2000e ef seq.:
ieee 20 Oe | ee earner re ee
Pe seGe, Oe 0) ee. ee UCD eck a che ases 5
Civil Service Retorm Act of 1978, Pub. L. No. 95-454,
EI tee 28 Gh sn ray is wet ia Oe
TMI Ree Lah ree rine hn a oe ates sal re Oe 4
ee ee OE ei ea cae Ce ee Smo Lay ae 4
Se a a os kee ei ka ek ee kes 13
Dine RE. os ka ss Be ea sk RK ees 4
Pe I ea a heen kp eee eeine 4
Dt CS Be es ak cee een ee 4
PS a asc eo ne Cae eae Oe eae ee 4
ee ee ea rr ne nivale are wus ea 10
ee, ry one a ee ee 2
eae lg ign a ater hore te ta Sled 4, 32a
ek ee. REED sc aie ionc.s bates KE RS Me inca 13
SEP SA We BEN ee oe ee oe oes eee eae 10
ate, BD ED oo oo a ces ea eee 10
oe GRRE > RS ae ery fit ane Om Nar ee REECE DRA S 3
ER Ge ee se) | ream n ar he
Pe Senha wie ark e se ois 3, 34a
Constitution, statutes and regulations — Continued: Page
ENE oe | | ara ge Cet ncaa 2
OS Cage IRAE er nr ea Pp ot oaeg oeten D Bal el 2, 10
Ds RC ee ls Ce waa or a ee 3
EUR. Se, iT ge | rene” ay er
CR AO go ics vocals eee va ek Cee 3, 36a
Sr es ee ee og a kee a Pe eee
ook. e ate to | eee
See Ss vs ae oe te ee ee 2, 39a
SD ry oral Laas meg na Sa eee 3, 39a
Sg SE cc a's dag oe nk ek Oe ee 3, 39a
2th to | PE rr Oe 5
SF cd Fos be ed a 3
Oss SOE so ccs a oe os oe 8 a ae 5
Fair Labor Standards Act of 1938, § 16(b), 29 U.S.C.
SE va ne ee ee ee ea
Rehabilitation Act of 1973, 29 U.S.C. 791 ......000.... 5
Bee Gs Ns ince ee a ee )
Exec. Order No. 10,577, 3 C.F.R. 218 (1954-1958 Comp.) 10
oo ee
Pt. 213:
Section 213.101(a) ...... Pe a ee 10
SOI. ZUR See 3.6 4 oa ho on vee 10
ete ed Oe |” | a ier 10
ee I 2k hoe ee ee ee eae eee 10
Pt. 315:
section 313.004 ........4. kas ee ee 3
Section 315.805 .......... 5 oer eee, eee ee 4
Section 315.806(b) ...... PN rn mt 8 4
Section 315.907(c) ..... A ee ee 4
Section 315.906 ........... 4
Pt. 1250:
Section 1250.3(b) ..... ed Lean ete eae 4
Miscellaneous:
S. Rep. 95-969, 95th Cong., 2d Sess. (1978) ........ oe Bae O2
Jn the Supreme Court of the Gnited States
OcTOBER TERM, 1986
No.
V.L. COOPER, ET AL., PETITIONERS
Vv.
FRANK K. KOTARSKI
PETITION FOR A WRIT OF CERTIORARI
TO THE UNIFED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
The Solicitor General —on behalf of V.L. Cooper and
A.E. Navarro, civilian employees of the Naval Air
Rework Facility (NARF), W.J. Tinston, Executive Officer
of NARF, and J.H. Kirkpatrick, Commanding Officer of
NARF —petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the
Ninth Circuit.
OPINIONS BELOW
The opinion of the court of appeals (App., infra,
la-22a) is reported at 799 F.2d 1342. The opinion and
order of the district court (App., imfru, 23a-29a) are
unreported.
. JURISDICTION
The judgment of the court of appeais (App., infra, 30a)
was entered on September 16, 1986. A petition for rehear-
ing and a suggestion for rehearing en banc were denied on
January 13, 1987 (App., infra, 3la). On April 6, 1987,
Justice O’Connor extended the time for filing a petition
(1)
2
for a writ of certiorari to and including May 13, 1987. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATUTORY PROVISIONS INVOLVED
The pertinent statutory provisions are set forth at App.,
injra, 32a-40a.
STATEMENT
1. In the Civil Service Reform Act of 1978 (CSRA),
Pub. L. No. 95-454, 92 Stat. 1111, Congress comprehen-
sively revised and restated the statutory provisions,
codified in various chapters of Title 5, United States Code,
governing the personnel procedures of federal agencies
and the rights of agency employees. In particular, Chapter
43, 5 U.S.C. 4301 ef seg., requires agencies to evaluate
employees’ performance in light of the “critical elements”
of their jobs; it authorizes removal or reduction in grade
on account of unacceptable performance and sets forth
the rights of employees who are removed or reduced in
grade tor this reason.' Chapter 75, 5 U.S.C. 7501 et seq.,
governs adverse personnel actions (including removals,
suspensions, and reductions in grade or pay) other than
removals or reductions in grade under Chapter 43.’ It
Chapter 43 provides rights to notice, representation by an at-
torney, “a reasonable time to answer orally and in writing,” and a
Written decision meeting certain standards. See 5 U.S.C 4303(b)(1). It
also provides that “any employee who is a preference eligible [/.e., a
veteran (see 5 U.S.C. 2108(3))] or is in the competitive service” may
appeal a removal or reduction in grade under Chapter 43 to the Merit
Systems Protection Board. 5 U.S.C. 4303(e).
> Chapter 75 thus differs from Chapter 43 in that all adverse actions
under Chapter 43 relate to inadequate job performance as measured
by ratings of performance on the critical elements of employees’ jobs,
Whereas actions taken under Chapter 75 may relate to inadequate job
performance or be based on other sorts of inadequacies, including
authorizes these adverse actions “for such cause as will
promote the efficiency of the service” (S U.S.C. 7513(a)),
and also sets forth the procedural rights of affected
employees.?
Both Chapters 43 and 75 provide most employees with a
right to review of most adverse personnel actions by the
Merit Systems Protection Board (MSPB), and for subse-
quent review of the MSPB’s decision in the Federal Cir-
cuit. 5 U.S.C. 7703(b)(1). However, probationary
employees are explicity excluded from these procedural
protections.* Indeed, it is a fundamental element of the
_federal competitive service that inital appointments and
promotions to supervisory Or management positions may
be made on a trial basis and only become final upon com-
pletion of a probationary period. 5 U.S.C. 3321.
it does not follow, however, that probationary
emp!oyees are without any protections under the CSRA.
While excluded from the provisions of Chapters 43 and
75, probationary employees who are either terminated
from an initial appointment or demoted from a super-
visory Or management position are entitled to written
notice in advance of the adverse action. 5 C.F.R. 315.804;
misconduct. See Lovshin v. Department of the Navy, 767 F.2d 826
(Fed. Cir. 1985), cert. denied, No. 85-882 (Apr. 7, 1986).
> Chapter 75 is similar to Chapter 43 in providing rights to notice,
representation by counsel, a reasonable time to answer, and-a written
decision. 5 U.S.C. 7503, 7513(b). It also provides that “an employee
against whom an action [more serious than a 14 day suspension] is
taken * * * is entitled to appeal to the Merit Systems Protection
Board.” 5 U.S.C. 7513(d); see also 5 U.S.C. 7503.
+ Section 4303(f) explicitly excepts from the procedural protections
of Section 4303 individuals promoted to supervisor or manager on a
probationary basis, or serving a probationary period under an initial
appointment.
Chapter 75 explicitly excludes probationary employees from the
definition of “employee” to whom its provisions apply. 5 U.S.C.
7511(a)(1); see 5 U.S.C. 7501.
4
5 C.F.R. 315.907(c).> If the adverse action is allegedly
based “on partisan political affiliation or marital status,”
probationary employees then have a right of appeal to the
MSPB, and consequent judicial review (5 C.F.R. 315.908;
S C.F.R. 315.806(b)).
Probationary employees also have an additional rem-
edy, which they share with all other federal employees.
The CSRA created an Office of Special Counsel (5 U.S.C.
1204) to investigate “prohibited personnel practices” (5
U.S.C. 2302), which are broadly defined to include actions
improperly motivated on grounds of discrimination,
retaliation, nepotism, “whistleblower” conduct, and a
wide range of other inappropriate considerations. 5
U.S.C. 2302; 5 C.F.R. 1250.3(b). The Special Counsel is
authorized (o investigate charges brought by probationary
employees, 5 U.S.C. 1206, and if he finds reasonable
grounds to believe that a prohibited personnel practice has
occurred, may recommend corrective action to the agency.
If the agency fails to implement the recommended correc-
live action, the Special Counsel may initiate a pro-
ceeding before the Board to compel such action. 5 U.S.C.
1206(c)(1 (A) and (B).° Judicial review of actions taken, or
not taken, by the Special Counsel is “limited, at most, to
ensuring compliance with the statutory requirement that
the OSC perform an adequate inquiry.” Cutts v. Fowler,
> If the termination of a probationary employee from an initial ap-
pointment ts based on conditions arising before the commencement of
service, procedures similar to those in Chapters 43 and 75, including
MSPB appeal and judicial review, are provided. 5 C.F.R. 315.805.
Phe Special Counsel also has the authority to initiate disciplinary
proceedings before the Board against a manager guilty of a prohibited
personnel practice. 5 U.S.C. 1206(g). The Board may discipline the
manager by ordering “removal, reduction in grade, or debarment
trom Federal employment tor a period not to exceed 5 years, suspen-
sion, reprimand, or an assessment of a civil penalty not to exceed
$1,000.” 5 U.S.C. 1207(b).
692 F.2d 138, 140 (D.C. Cir. 1982). See also Carducci v.
Regan, 714 F.2d 171, 175 (D.C. Cir. 1983).’
2. On January 25, 1981, respondent Frank K. Kotar-
ski, a civilian employee of the Naval Air Rework Facility
in San Diego, California, was promoted on a probationary
basis from a GM-12 Engineer to a GM-13 Supervisory In-
dustrial Engineer. On December 18, 1981, within the one-
year probationary period, respondent was notified that
because of his unsatisfactory performance he would not be
retained in the supervisory position. Respondent received
a complete explanation in writing of the reasons he was
not being retained as a supervisor, which included a failure
to guide and direct subordinates, delay in completing work
assignments, and an inability to perform duties without
close supervision. On January 24, 1982, respondent was
returned to his former position.
Respondent attempted to obtain review of this decision
by the MSPB. He asserted in a letter to the Board that his
demotion was “malicious in nature and motivated by my
marital status, living arrangements and other factors
unrelated to my performance on the job” (C.A. App. Exh.
7-C). Respondent also wrote to the Office of the Special
Counsel, alleging that “the adverse personnel action taken
against me was motivated in whole or in part by my living
arrangement with [co-worker] Ms. Janice Elaine Magana.
| allege that the relationship of a single man and woman
[here is a separate provision for judicial review of ailegations of
discrimination. 5 U.S.C. 7703(b)(2) provides that cases involving
allegations of discrimination brought by federal employees are to be
tiled as provided in Section 717(c) of the Civil Rights Act of 1964, 42
U.S.C. 2000e-16(c), Section 15(c) of the Age Discrimination in
Employment Act of 1967, 29 U.S.C. 633a(c), and Section 16(b) of the
Fair Labor Standards Act of 1938, 29 U.S.C. 216(b), as applicable. 5
U.S.C. 7702 makes careful provision for all such claims, as well as for
cases arising under the Rehabilitation Act of 1973, 29 U.S.C. 791,
within the scheme of review by the MSPB. Probationary employees
are entitled to bring discrimination charges under these statutes.
6
living together is incompatible with managements [sic]
position in this area.” C.A. App. Exh. 7-D.
The MSPB found no jurisdiction to review respondent’s
complaint. The Office of the Special Counsel, however,
conducted an investigation, “interviewing several
witnesses, reviewing files and gathering documentary
evidence,” and subsequently informed respondent that the
investigation had failed to yield evidence to support his
allegations. “The evidence was insufficient to establish
that those matters [alleged] were significant factors in your
demotion. We found stronger evidence that you were
demoted based on management’s perceptions that your
performance as a supervisor was deficient” (C.A. App.
Exh. 8-B).
3. Following denial of his claims by the Special
Counsel, respondent filed the present lawsuit, alleging that
respondent’s supervisors, V.L. Cooper and A.E. Navarro,
and his commanding officers at the Navy Rework Facility,
W.J. Tinston and J.H. Kirkpatrick, had violated his First,
Fitth and Ninth Amendment rights by demoting him to
the GM-12 position.’ Respondent’s complaint alleged that
his demotion was due to his “private relationship with his
girlfriend,” a relationship which, respondent asserted, his
supervisors viewed as “morally wrong.” He also alleged
that his failure to be promoted was punishment for speak-
ing out and challenging certain policies of his supervisors,
particularly in retaliation for his actions in support of an
EEO complaint brought by his girlfriend (see note 8,
* Respondent also filed a second lawsuit, making essentially the
same factual allegations and asserting a violation of Section 717 of the
Civil Rights Act of 1964, 42 U.S.C. 2000e-16. Respondent swore, in
an attidavit tiled with the court in this second suit, that “my involve-
ment in the EEO complaint of Janice E. Magna was the primary
reason for my demotion trom a GA-13 branch head to a GM-12 In-
dustrial Engineering position.” C.A. App. Exh. 7-B. This lawsuit ts
presently pending in tederal district court.
supra). Damages in the amount of $500,000 were sought
from the defendants sued in their individual capacities,
under the authority of Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971). The lawsuit also sought reinstatement, back pay,
and a judgment that respondent’s demotion had been ar-
bitrary and capricious under the APA and had violated his
right to due process by taking property (/.e., an expecta-
tion that his probationary position would turn into a per-
manent One) without providing due process of law.
The district court granted the government’s motion to
dismiss. The court held that since plaintiff alleged that his
demotion was in retaliation for his support of a fellow
worker’s EEO complaint, the sole remedy available to him
was his action under 42 U.S.C. 2000e-16. The court also
held that, even if respondent’s lawsuit could be brought, a
Bivens remedy was unavailable under this Court’s decision
in Bush v. Lucas, 462 U.S. 367 (1983). “In Bush, the Court
indicated that where a federal personnel decision is at
issue, the presence of the comprehensive civil service
scheme precludes the grant of Bivens relief” (App., infra,
27a). The court rejected respondent’s argument that Bush
was distinguishable because the plaintiff in Bush had a full
panoply of procedural rights which are not available to
probationary employees. Noting that respondent had
received all the review provided by Congress for proba-
tionary employees, the court declined to override Con-
gress’s “reasoned choice that personnel decisions as to pro-
bationary employees should be governed by fewer im-
pediments to managerial discretion.” App., infra, 28a.
4. A divided panel of the court of appeals reversed. It
held, first, that Tithe VII is not an exclusive remedy for the
wrongs alleged in respondent’s Bivens complaint. It also
stated that respondent’s pursuit of a Title VII action could
not prevent him from bringing a Bivens suit “based on
alleged constitutional infractions having nothing to do
with Tithe VIL.” App., infra, Sa.
The court of appeals further held that Bush v. Lucas
does not prevent a Bivens action by respondent against his
supervisors and commanding officers. In the majority’s
view, Bush, “cannot be read apart from its pervasive em-
phasis on the remedies provided by Congress for the com-
plaining employee in that case * * *.” App., infra, 9a.
While admitting that “[t]his ruling presents a much closer
question than the Title VII issue” (App., infra, 6a), the
court of appeals determined that the remedies available to
the respondent as a probationary employee were not
“meaningful” within the meaning of Bush (App., infra,
lla). The court acknowledged that respondent’s charges
had been investigated by the MSPB’s Special Counsel and
found wanting. But because investigation by the Special
counsel is not “part of a system of enforceable relief for
constitutional violations” ‘/hbid.), the court refused to
credit this procedure as protecting a probationary
employee’s rights. “Unlike the complainant in Bush, the
probationary employee has no enforceable right, and no
judicial review, even if he or she demonstrates a constitu-
tional violation” (/bid.).
The court of appeals conceded that “management must
retain great flexibility in determining that a probationary
employee ought not to be granted permanent status”
(App., ifra, 8a), and that it may be “anomolous to give
probationary employees a greater protection of their con-
stitutional rights, by way of a Bivens action, than is
available to fully tenured employees, who are confined to
their civil service remedies” (App., infra, 13a). Also, the
court noted decisions of other courts that were in direct
conflict with its own view (App., infra, 7a). It nonetheless
reasoned that Congress “could not have intended such an
untoward result” as to “deprive probationary employees of
all meaningful protection for their constitutional rights”
(App., infra, 13a), and therefore ruled that respondent
9
could maintain a Bivens action for money damages against
his supervisors and commanding officers.?
Judge Hall, in dissent, argued that the majority had ig-
nored the holding of this Court in Bush v. Lucas, which
stressed the comprehensiveness of the remedies provided
by Congress for federal employees and did not invite
courts to second-guess the adequacy of those remedies.
Judge Hall noted that Congress had made a deliberate
decision to limit the remedies of probationary employees,
but had not left them without any protection. “Congress
has determined that review by the Special Counsel and in
certain cases by the Board sufficiently deters constitu-
tionally impermissible personnel decisions while maintain-
ing morale and efficiency.” App., infra, 2la. Thus,
“Kotarski cannot claim that ‘it is damages or nothing.’
Bivens, 403 U.S. at 410 (Harlan, J., concurring)” (ibid.).
Judge Hall concluded (ibid.):
Congress has enacted a scheme carefully tailored to
balance the many competing concerns implicated in
regulating federal employment * * * In crafting the
system, Congress has decided that different levels of
protection are required for rights of differing
magnitude * * * Bush has stated that Congress is in
the better position to decide whether a damage
remedy is appropriate.
On January 13, 1987, the panel voted unanimously to
deny rehearing, and no judge of the Court voted in favor
of rehearing en banc.
% The panel also (a) found that review of respondent’s demotion was
not available under the APA; (b) remanded to the district court the
questions of official immunity and whether there had been a due proc-
ess violation; and (c) ruled that the district court had no jurisdiction
over respondent’s claim to reinstatement and back pay, which ex-
ceeded $10,000. The panel left to the discretion of the lower court
Whether to transfer that claim to the Claims Court under 28 U.S.C.
1631.
10
REASONS FOR GRANTING THE PETITION
The court of appeals has incorrectly decided a question
of great and recurrent practical importance to the federal
government and its supervisory employees. Its decision is
inconsistent with decisions of several other circuits holding
that federal employees with limited remedies under the
CSRA may not bring a Bivens action seeking money
damages. This Court should grant the petition to resolve
that inconsistency and to answer the important question of
federal jurisdiction raised by this case.'°
1. The court of appeals’ decision that employees with
limited remedies under the CSRA may supplement those
remedies with a Bivens action has major ramifications. We
are advised by OPM that the government employs more
than 64,000 probationary employees. We are also advised
that there are more than 300,000 excepted service
employees with limited remedies similar to those of pro-
bationary employees (see 5 U.S.C. 4303(e); 5 U.S.C.
7511(a)(1)).'' The decision below opens the way for a
Bivens action by all such employees in response to any
dismissal, reduction in grade or pay, Or suspension,
Petitioner does not seek review of the court of appeals’ holding
that respondent's Bivens acuion was not barred by the exclusivity of his
remedy under [ithe VII of the Civil Rights Act.
The “ ‘excepted service’ consists of those civil service positions
Which are not in the competitive service or the Senior Executive Serv-
ice” (S U.S.C. 2103(a)). Excepted service positions include positions
for Which it is not practical to hold competitive examinations, such as
chaplains and attorneys (5 C.F.R. 213.3102(a) and (d)) and “positions
Which are policy-determining or which involve a close and confidential
working relationship with the head of an agency or other key ap-
pointed officials” (§ C.F.R. 213.3301). Positions may be placed tn the
excepted service by statute, by the President, or by the Office of Per-
sonnel Management. 5 U.S.C. (& Supp. IL) 3301, 3302(1); Exec. Order
No. 10,577, 3 C.F.R. 218 (1954-1958 Comp.); see 5 C.F.R.
213.101 (a).
1]
whenever that action is alleged to violate the Constitution.
it also opens the door to Bivens actions in response to
minor adverse personnel decisions, such as suspensions of
less than 15 days, as to which the CSRA denies an MSPB
appeal remedy to all employees in most circumstances. 5
U.S.C. 7503. For all three groups—probationary
employees, excepted service employees, and employees
subjected to minor adverse personnel decisions—the
primary remedy for most alleged wrongs is a complaint by
the employee to the Office of Special Counsel, the very
remedy that the court of appeals here found to be inade-
quate and, thus, supplemented with a Bivens remedy.
This new Bivens remedy will! foster lengthy and expen-
sive litigation in federal district courts and hinder, through
its in terrorem effect on supervisors, the efficient manage-
ment of the civil service (Bush, 462 U.S. at 388-389). Con-
gress made a deliberate decision to restrict the remedies of
probationary employees, noting that “[t}he probationary
or trial period * * * is an extension of the examining proc-
ess * * * [so that it] is inappropriate to restrict an agency’s
authority to separate an employee who does not perform
acceptably during this [probationary] period.” S. Rep.
95-969, 95th Cong., 2d Sess. 45 (1978). Similarly, Con-
gress made deliberate decisions to grant employees in the
excepted service lesser procedural rights under the CSRA
and to provide limited remedies for minor adverse actions.
These congressional determinations have been under-
mined by the ruling of the court of appeals.
2. The court of appeals’ decision is inconsistent with
this Court’s decision in Bush v. Lucas, supra. In Bush, the
plaintiff sought a Bivens remedy against his federal
employer for alleged First Amendment violations. In its
analysis, this Court assumed that the “civil service
remedies were not as effective as an individual damages
remedy and did not fully compensate [plaintiff] for the
harm he suffered” (462 U.S. at 372 (footnote
12
omitted))—that is, that “a federal right has been violated
and Congress has provided a less than complete remedy
for the wrong” (/d. at 373). It concluded, however, that the
proper focus for analysis was not on “what remedy the
court should provide for a wrong that would otherwise go
unredressed,” but rather on “whether an_ elaborate
remedial system that has been constructed step by step,
with careful attention to conflicting policy considerations,
should be augmented by the creation of a new judicial
remedy for the constitutional violation at issue” (/d. at
388). The Court held that, in light of the comprehensive
procedural and substantive provisions of the civil service
laws governing the employment relationship between the
government and its employees—provisions which, the
Court emphasized, had been carefully constructed by
Congress over many years—it would be inappropriate to
create a new Bivens remedy (id. at 388-390; see also id. at
390-392 (Marshall, J., concurring)).
The same reasoning applies to the instant case.
Although the plaintiff in Bush enjoyed the full panoply of
procedural protections available under the CSRA, that
fact was not crucial to the Court’s holding. Rather, the
Court deferred to “Congress’s ability to make an
evenhanded assessment of the desirability of creating a
new remedy for federal employees * * *” (462 U.S. at
389). Congress has deliberately and sensibly decided to
provide different levels of protection for different groups
of employees. Probationary employees, by definition, lack
job tenure, and it would be almost a contradiction in terms
to erect procedures that make it difficult to dismiss or
demote such employees. It would indeed be anomolous
therefore, and wreak havoc upon the remedial scheme
crafted by Congress, to grant probationary employees a
Bivens remedy for adverse personnel actions denied to
their tenured counterparts. As in Bush, “the ultimate ques-
tion on the merits in this case may appropriately be
13
characterized as one of ‘federal personnel policy’ ” (id. at
380-381). And, again as in Bush, the court should “decline
to create a new substantive legal liability without
legislative aid * * * because * * * Congress is in a better
position to decide whether or not the public interest would
be served by creating it” (id. at 390 (citation and quotation
marks omitted)).
The remedies afforded the respondent here were precise-
ly as Congress intended them to be. Respondent, in addi-
tion to receiving notice of his demotion and a statement as
to why he was being demoted, invoked the jurisdiction of
the MSPB’s Special Counsel. As Judge Hall explained in
her dissent (App., infra, 20a-21la), under current law the
MSPB’s Special Counsel is empowered to investigate and
seek correction of prohibited personnel practices (5
U.S.C. 1206(a)(1)), including charges of reprisal for the
“disclosure of information by an employee or applicant
which the employee or applicant reasonably believes
evidences a violation of any law, rule or regulation * * *”
(S U.S.C. 2302(b)(9)(A)). Congress specifically designed
this remedy to protect employees’ constitutional rights (S.
Rep. No. 95-969, 95th Cong., 2d Sess. (1978)), and the
court of appeals erred in finding it inadequate. The court
should instead have deferred to Congress’s judgment,
schooled in constant oversight of the federal personnel
system.
3. There is a sharp split among the circuits on the
question whether federal employees with limited remedies
under the CSRA should be permitted to supplement those
remedies with a Bivens action against their supervisors.
Three circuits have held that a Bivens action is foreclosed
by this Court’s decision in Bush. See Pinar v. Dole, 747
F.2d 899, 905 (4th Cir. 1984), cert. denied, 471 U.S. 1016
(1985) (probationary employee); Palermo v. Rorex, 806
F.2d 1266, 1270-1271 (Sth Cir. 1987) (excepted service);
Wells v. FAA, 755 F.2d 804, 810 (11th Cir. 1985) (minor
14
adverse action). See also Gleason v. Malcom, 718 F.2d
1044, 1047-1048 (11th Cir. 1983); Braun v. United States,
707 F.2d 922, 926 (6th Cir.), cert. denied, 464 U.S. 991
(1983); Broadway v. Block, 694 F.2d 979, 985 (Sth Cir.
1982); Harding v. USPS, 618 F. Supp. 1330, 1331 n.2,
1332 (S.D. W.Va. 1985); Cazalas v. Dep’t of Justice, 569
F. Supp. 213, 228-229 (E.D. La. 1983), aff'd, 731 F.2d 870
(Sth Cir. 1984), cert. denied, 469 U.S. 1207 (1985); Fran-
cisco Vv. Schmidt, 575 F. Supp. 1200, 1202 (E.D. Wis.
1983).
Three circuits, including the Ninth Circuit in this case,
have concluded that when a federal employee’s only
remedy under the CSRA is a complaint to the Special
Counsel, courts are justified in implying an additional
Bivens remedy tor such employees. Mcl/ntosh vy.
Weinberger, 810 F.2d 1411 (8th Cir. 1987); Egger v.
Phillips, 710 F.2d 292, 297-299 (7th Cir.), cert. denied, 464
U.S. 918 (1983). See also Freedman v. Turnage, 646 F.
Supp. 1460 (W.D. N.Y. 1986); Harris v. Moyer, 620 F.
Supp. 1262 (N.D. Ill. 1985).
This conflict over the correct interpretation of Bush is
pointedly illustrated by two irreconcilable decisions
handed down by two panels of the District of Columbia
Circuit on the same day. Hubbard v. EPA, No. 85-5145
(Dec. 5, 1986); Spagnola v. Mathis, No. 84-5530 (Dec. 5,
1986). Both decisions have been ordered reheard en banc.
In Hubbard, an applicant who was refused a job at EPA
petitioned the MSPB’s Special Counsel, asserting that he
was denied employment because of a prohibited personnel
practice. He also brought suit alleging, inter alia, a First
Amendment Bivens claims against an EPA hiring official.
A panel of the D.C. Circuit (Judge Silberman, joined by
Judge (now Justice) Scalia with Chief Judge Wald concur-
ring in the judgment) held that Hubbard had no Bivens
remedy under Bush v. Lucas, supra, and was confined to
the administrative remedy that Congress regarded as ap-
propriate in light of his status. The panel dismissed the
15
Ninth Circuit’s decision in Cooper v. Kotarski as “unper-
Suasive,” stating that “we believe that decision misinter-
prets Bush and fails to consider fully the disruptive in-
fluence of Bivens actions on the civil service.”
In Spagnola, a second panel (Judges Wright and Wald
with Silberman dissenting) held that the very same ad-
ministrative remedy at issue in Hubbard—i.e., a com-
plaint to the MSPB’s Office of the Special Counsel — was
inadequate to preclude a~-Bivens remedy tor Spagnola’s
claim that he was harrassed and not promoted in violation
of his First Amendment rights. The panel, expressly en-
dorsing the Ninth Circuit’s analysis in the instant case,
read this Court’s decision in Bush as applying only to
situations where a court determines that the remedies
available to the employee are adequate and meaningful.
These decisions illustrate how intractably divided
judicial authority is over the application of Bush to federal
employees with limited remedies under the CSRA. This
sharp conflict in the circuits has produced a significant
disparity in the treatment of federal employees, depending
solely upon where they reside. Because the question
presented is of great importance to the integrity of the
federal civil service, the Court should grant certiorari to
resolve the conflict.!?
2 The instant case raises issues similar to those presented in United
States v. Fausto, cert. granted, No. 86-595 (Jan. 12, 1987). Fausto
presents the question whether individuals in the excepted service, who
also have limited remedies under the CSRA, may sue the United States
in the Claims Court under the Tucker Act. We argue in Fausto, as we
do here, that the CSRA prempts other, more general remedies.
16
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
CHARLES FRIED
Solicitor General
RICHARD K. WILLARD
Assistant Attorney General
DONALD B. AYER
Deputy Solicitor General
MICHAEL K. KELLOGG
Assistant To The Solicitor General
| BARBARA L. HERWIG
| RICHARD A, OLDERMAN
Altorneys
MIAY 1987
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CA No. 84-5673
DC No. 82-1636
FRANK K,. KOTARSKI,
PLAINTIFF-APPELLANT,
Vi
V. L. Cooper, A.E. NAVARRO, W.J. TINSTON,
J.H. KIRKPATRICK, NAVAL AIR REWORK FACILITY,
CapT. P.A. MONROE, IN HIS OFFICIAL CAPACITY,
DEFENDANTS-APPELLEES.
Appeal from the United States District Court
for the Southern District of California
Honorable William B. Enright, District Judge, Presiding
Argued and Submitted January 11, 1985
Los Angeles, California
[Filed Sep. 16, 1986]
OPINION
Betore: NELSON, CANBY and HALL, Circuit Judges
CANBY, Circuit Judge:
Plaintiff, a civilian employee of the Navy, was pro-
moted to a supervisory position subject to a probationary
period of one year. He was demoted to his former position
during that year, and brought this action in district court
(la)
to contest his demotion and seek Bivens! damages for it.
The district court dismissed his complaint with prejudice,
and plaintiff appeals. We reverse.
BACKGROUND
In 1981, plaintiff Frank Kotarski was promoted from
his position as a GS-12 civilian Navy engineer to the posi-
tion of GM-13: industrial engineer with supervisory
responsibilities. This competitive appointment was subject
to a probationary period of one year. 5 U.S.C. § 3321; 5
C.F.R. § 315.802(a) ef seg. Toward the close of this
period, Kotarski’s immediate superiors, defendants here,
notified him that his performance as a supervisor had been
unsatisfactory. Kotarski was accordingly returned to his
prior position.
Shortly thereafter, Kotarski filed this action against
defendants, seeking reinstatement, back pay, and Bivens
damages for his demotion. He also sought review of the
agency action under the Administrative Procedure Act.
The complaint alleged that defendants had violated Kotar-
ski’s first, fifth and ninth amendment rights by demoting
him from his position as supervisor. Five months later,
Kotarski tiled a second action alleging that his demotion
also violated his rights under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-16. That action is still pend-
ing in district court. The district court disposed of this first
action by dismissing it with prejudice, upon the govern-
ment’s motion. This appeal followed.
' In Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971), the Supreme Court implied a
damage remedy against federal officers for the violation of plaintiff's
fourth amendment rights. /d. at 390-97. The Bivens doctrine has been
progressively expanded to embrace other constitutional violations. See
Davis v. Passman, 442 U.S. 228 (1979) (equal protection); Carlson v.
Green, 446 U.S. 14 (1980) (eighth amendment); see generally K.
Davis, Administrative Law Treatise, § 27:26 (1984).
3a
DISCUSSION
A. Jurisdiction
In addition to seeking Bivens damages against his im-
mediate superiors and review of the agency action under
the Administrative Procedure Act, Kotarski seeks
reinstatement and back pay from defendant Naval Air
Rework Facility, an instrumentality of the United States.
Although Kotarski’s prayer for relief does not specify the
amount of back pay sought, we conclude that it would ex-
ceed $10,000. See Doe v. United States Dept. of Justice,
753 F.2d 1092, 1101 (D.C. Cir. 1985). As a result, the
district court was without jurisdiction over Kotarski’s back
pay claim. The Tucker Act, 28 U.S.C. § 1346(a)(2), re-
quires that such actions be brought in the United States
Claims Court.? The claim against the Facility for reinstate-
ment is so integrated with the claim for back pay, that it
must likewise be entertained in the Claims Court. See
Schulthess v. United States, 694 F.2d 175, 178 (9th Cir.
1982); Giordano v. Roudebush, 617 F.2d 511, 514-15 (8th
Cir. 1980). Accordingly, we remand these claims to the
district court for consideration of whether the interests of
justice require transfer of Kotarski’s back pay and
reinstatement claims to the Claims Court. See 28 U.S.C.
§ 1631.3
2 For a Tucker Act claim to be brought in the district court, it must
(1) seek money (2) not exceeding $10,000 (3) from the United States
and (4) be founded either upon a contract or provision of federal law
or regulation that can fairly be interpreted as mandating compen-
sation by the Federal Government for the damages sustained. See Van
Drasek v. Lehman, 762 F.2d 1065, 1068 (D.C. Cir. 1985).
> We decline to transfer the claims ourselves, cf. Van Drasek,
supra; Wronke v. M-rsh, 767 F.2d 354 (7th Cir. 1985) (transferring to
Federal Circuit unuer 28 U.S.C. § 1631), because Kotarski may wish
to seek the leave of the district court to amend his complaint to waive
damages in excess of $10,000 and proceed in district court. See Hahn
v. United States, 757 F.2d 581, 587-88 (3d Cir. 1985); Van Drasek, 762
4a
There is no problem, however, with the district court’s
jurisdiction over Kotarski’s constitutional claims against
the individual defendants. Bivens actions brought against
federal officials in their individual capacities for violations
of a plaintiffs constitutional rights are not suits requiring
the consent of the United States. The Tucker Act is
therefore not implicated. Van Drasek v. Lehman, 762
F.2d 1065, 1070 (D.C. Cir. 1985); Doe, 753 F.2d at 1101.
The district court therefore properly entertained
Kotarski’s Bivens claims.
B. Tithe VIl as Exclusive Remedy
“The district court dismissed Kotarski’s Bivens claims on
two alternative grounds. The first was that Kotarski’s ex-
clusive remedy lay in Title VII, 42 U.S.C. § 2000e-16. We
disagree.
Title VII bars discrimination in employment on the
basis of race, color, religion, sex, or national origin. 42
U.S.C §§ 2000e-2, 2000e-16. As the district court correctly
observed, the Supreme Court has held that Title VII is the
exclusive remedy for claims of discrimination in federal
employment. Brown vy. General Services Administration,
425 U.S. 820, 835 (1976). That exclusive effect, however,
extends only to claims of federal employees that are
cognizable under Title VII. See Davis v. Passman, 442
U.S. 228, 247 n.26 (1979). As a consequence, “Title VII
does not preclude separate remedies for unconstitutional
action other than discrimination based on race, sex,
religion or national origin.” White v. General Services Ad-
ministration, 652 F.2d 913, 917 (9th Cir. 1981).
F.2d at 1069 n.6. If Kotarski reduces his claim to $10,000 or less and
pursues it in the district court under the Tucker Act, appellate review
of that claim may be had only in the Court of Appeals for the Federal
Circuit. See 28 U.S.C. § 12958(a)(2)
Sa
Kotarski has alleged that he was demoied because his
superiors disapproved of his private relationship and liv-
ing arrangements with his woman friend, in violation of
his constitutional right of privacy. He also alleges that he
was demoted because of his expression of disagreement
with certain policies, practices and expenditures of funds
at the Naval Air Rework Facility, in violation of his first
amendment rights.* Neither of these claims is cognizable
under Title VII; accordingly, they are not barred by its
preclusive effect.
Defendants contend, however, that Kotarski effectively
admitted that his Bivens claims were subsumed by his Title
VII claim when he filed an affidavit in his Title VII action
in which he did “swear and contend” that his involvement
in an EEO complaint filed by his woman friend was “the
primary reason” for his demotion. We decline to give this
affidavit the effect that the defendants urge for it. The af-
fidavit states a contention, and it was sworn on informa-
tion and belief. It does not state that retaliation for par-
ticipation in filing an EEO complaint was the only reason
for Kotarski’s demotion. We fail to see how Kotarski’s
pursuit of a Title VII remedy based on retaliation, see
White v. General Services Administration, 652 F.2d at
917, can preclude his Bivens claims based on alleged con-
stitutional infractions having nothing to do with Title VII.
See Ethnic Employees of Library of Congress v. Boorstin,
751 F.2d 1405, 1415 & n.14 (D.C. Cir. 1985).
* The district court did not reach the merits of these constitutional
claims, nor do we. Cf. Doe v. Duling, 603 F. Supp. 960 (E.D. Va.
1985) (state statutes prohibiting fornication and cohabitation by un-
married adults unconstitutional), vacated on other grounds, 782 F.2d
1202 (4th Cir. 1986); see also Thorne v. City of El Segundo, 726 F.2d
459 (9th Cir. 1983), cert. denied, 105 S.Ct. 380 (1984); Wilson v.
Taylor, 733 F.2d 1539 (Lith Cir. 1984); but cf. Andrade v. City of
Phoenix, 692 F.2d $57, 565 (9th Cir. 1982) (Wallace, J., concurring)
(“neither the Supreme Court nor this court has held ... that ex-
tramarital sexual relations are constitutionally protected”).
6a
C. The Effect of Bush v. Lucas
As an alternative ground for dismissing Kotarski’s
Bivens claims, the district court held that they were
precluded by the doctrine of Bush v. Lucas, 462 U.S. 367
(1983). This ruling presents a much closer question than
the Title VII issue, but we conclude that it, too, was er-
roneous.
In Bush, the Supreme Court rejected a Bivens claim of a
non-probationary federal employee who sought to
challenge his demotion on the ground that it was a reprisal
for constitutionally protected activity. The Court held that
the presence of a congressionally-established, comprehen-
sive regulatory scheme governing federal employer-
employee relationships was a “special factor[] counselling
hesitation” in implying a Bivens remedy. 462 U.S. at 378;
see Bivens, 403 U.S. at 396. The Court concluded that, in
light of the “elaborate remedial system” constructed by
Congress, 462 U.S. at 388, it should not add a Bivens
remedy to those provided by Congress in the exercise of its
legislative judgement. /d. at 390.
Kotarski contends that Bush is inapplicable to his case
because the employee in Bush was fully tenured and en-
titled to all of the protections of the civil service system.
Kotarski’s supervisory appointment was probationary;
with regard to that position, he was excluded from the
Civil Service Reform Act’s definition of “employee” and
the remedies that go with it. See 5 U.S.C. § 7511 (a)(1)(A);
Piskadlo v. Veterans’ Administration, 668 F.2d 82, 83 (1st
Cir. 1982).
The defendants counter that the lesson to be derived
from Bush is that the judiciary should not interfere in the
congressionally-ordered scheme of federal employment by
fashioning intrusive remedies. If Congress chose to ex-
clude probationary employees from nearly all of the pro-
tections of the Act, that decision was a conscious recogni-
tion of the fact that probation “is an extension of the ex-
Ta
amining process to determine an employee’s ability to ac-
tually perform the duties of the position. It is inap-
propriate to restrict an agency’s authority to separate an
employee who does not perform acceptably during this
period.” S. Rep. No. 969, 95th Cong., 2d Sess. 45,
reprinted in 1978 U.S. Code Cong. & Ad. News 2723,
2767.
Defendants’ reading of Bush is not without support. In
Pinar v. Dole, 747 F.2d 899 (4th Cir. 1984), cert. denied,
105 S.Ct. 2019 (1985), the Fourth Circuit held that Bush
precluded Bivens relief for a federal employee who
claimed that his temporary promotion had been ter-
minated because of his “whistle-blowing” activities.
Because the promotion was temporary, the employee’s ad-
ministrative remedies were no greater than Kotarski’s. See
also Carroll v. United States, 721 F.2d 155 (Sth Cir. 1983)
(on rehearing) (Bush precludes Bivens action for former
employee seeking reinstatement and _ back-pay; ad-
ministrative remedy available for reinstatement but not
back-pay), cert. denied, 467 U.S. 1241 (1984); Francisco v.
Schmidt, 575 F. Supp. 1200 (E.D. Wis. 1983) (Bivens in-
appropriate in area of federal employee relations); Watson
v. United States Department of Housing and Urban
Development, 576 F. Sup. 580 (N.D. Ill. 1983) (ad-
ministrative remedies for probationary employees ade-
quate); Crumpler v. Etter, 579 F. Supp. 391 (E.D.N.C.
1983) (congressional provision of some remedy precludes
Bivens action).
With all respect, we cannot agree with the decision in
Pinar, or with those in accord with it. First, we resist the
tendency unduly to minimize the interests of the employee
on the ground that only probationary status is involved.
The primary interest asserted by the employee is a first
amendment interest in free speech. Second, we regard as
essential to the Bush holding the availability of a mean-
ingful remedy for the alleged constitutional violation.
Third, we do not regard the remedies afforded by the Civil
8a
Service Reform Act to employees in probationary status to
be adequate within the meaning of Bush. Each of these
points requires elaboration.
Probationary status is nothing new; it is agreed that
management must retain great flexibility in determining
that a probationary employee ought not to be granted per-
manent status. To grant that proposition, however, is not
to deprive probationary employees of all constitutional
protection.* Accordingly, “[a] probationary employee
may be discharged for any reason, or for no reason at all,
but not for an unconstitutional reason.” Huffstutler v.
Bergland, 607 F.2d 1090, 1092 (Sth Cir. 1979). Indeed, the
Supreme Court itself made this point quite clear in Perry
v. Sinderman, 408 U.S. 593 (1972), a case involving a
nontenured college professor:
[E]ven though a person has no “right” to a valuable
governmental benefit and even though the govern-
ment may deny him the benefit for any number of
reasons, there are some reasons upon which the
government may not rely. It may not deny a benefit to
a person on a basis that infringe his constitutionally
protected interests — especially, his interest in freedom
of speech.
Id. at 597; see Mt. Healthy City School District Board of
Education v. Doyle, 429 U.S. 274, 283-84 (1977). Proba-
> We do not tind United States v. Connolly, 716 F.2d 882 (Fed. Cir.
1983), cert. denied, 465 U.S. 1065 (1984), relied upon by defendants,
to be contrary to our view. In Connolly, a probationary employee
contested his removal on statutory and regulatory grounds. The court
heid that he was not entitled to judicial review because Congress in-
tended no such review for probationary employees. The employee also
had a first amendment claim, however, and the court did not subject
that claim to the same analysis. Instead, the court held that the first
amendment claim was not within the Tucker Act jurisdiction of the
Claims Court because the first amendment of itself did not create an
obligation of the United States to pay money. /d. at 886-87.
9a
tionary status, therefore, cannot be the foundation for a
total negation of the first amendment rights of the
employee.
We therefore are unable to read Bush as simply placing
probationary employment off limits to the judiciary. It is
true that Bush emphasized Congress’ special interest and
authority in dealing with questions of federal employ-
ment. Bush, 462 U.S. at 398. But Bush cannot be read
apart from its pervasive emphasis on the remedies pro-
vided by Congress for the complaining employee in that
case —remedies that the Court noted were unavailable to
probationary employees. /d. at 385 n.28. The Court
stressed that the employee being demoted was entitled to a
statement of the charges, an opportunity to offer rebuttal,
a decision by a higher official, then an appeal to the
Federal Employee Appeals Authority which was required
to hold a trial-type hearing. An adverse decision was then
Subject to judicial review. 462 U.S. at 386-87. If the
employee prevailed at any stage, he was entitled to
reinstatement with retroactive seniority and full backpay.
Id. at 388. Thus, as the Court pointed out, “[t]he question
[was] not what remedy the court should provide for a
wrong that would otherwise go unredressed.” Jd. While
the remedies provided by Congress were in some respects
not as complete as those that would be available in a
Bivens action, the congressional scheme nevertheless pro-
vided “meaningful remedies for employees who may have
been unfairly disciplined for making critical comments
about their agencies.” /d. at 386 (footnote omitted). That
conclusion, we suggest, is central to the holding in Bush.
See Williams v. IRS, 745 F.2d 702, 705 (D.C. Cir. 1984)
(per curiam).
Guided by Bush, then, we view the question before us to
be whether the congressional and administrative remedies
provided for Kotarski as a probationary employee are suf-
ficient to give meaningful protection to his constitutional
10a
rights. If they are, Bush requires us to refrain from imply-
ing a Bivens remedy. See Clemente v. United States, 766
F.2d 1358, 1364 (9th Cir. 1985), cert. denied, 106 S.Ct.
881 (1986). If they are not, then it seems appropriate to
overcome the hesitation counseled by the fact of federal
employment and to imply a Bivens remedy, id. at 391
(Marshall, J., concurring), at least in the absence of an ex-
press congressional negative. See id. at 378 n. 14 & 389.
Kotarski argues that he is without remedy for violation
of his constitutional rights and that, as in Bivens, “it is
damages or nothing.” Bivens, 403 U.S. at 410 (Harlan, J.,
concurring). The answer is not quite that simple, however.
The remedies provided by the congressional scheme need
not provide “complete relief” in order to be adequate to
forestall a Bivens action, Bush, 462 U.S. at 388, and
Kotarski was not wholly excluded from the congression-
ally-designed system.
As a probationary employee, Kotarski was entitled to
appeal the agency action to the Merit Systems Protection
Board if the action was based upon “partisan political af-
filiation or marital status.” 5 C.F.R. § 315.908(b). Kotar-
ski did attempt such an appeal, apparently on the theory
that his privacy claim might be one of “marital status,” but
the Board held that it was without jurisdiction over his ap-
peal. Accordingly, we may view that remedy as unavail-
able to Kotarski. Kotarski also submitted his complaint to
the Special Counsel of the Board, who is independently
authorized to receive complaints of a “prohibited person-
nel practice.” 5 U.S.C. § 1206(a)(1). The definition of
“prohibited personnel practice” includes reprisal against a
“whistleblower” as well as discrimination’ against an
employee or applicant for employment on the basis of
conduct which does not adversely affect performance of
the job. 5 C.F.R. § 1250.3(b) (8), (10). The Special
Counsel investigated Kotarski’s charges both in regard to
his relationship with his woman friend and to his whistle-
blowing activities, and informed him by letter that the
lla
evidence was “insufficient to establish that those matters
were significant factors” in his demotion. Kotarski com-
plains that the investigation consisted of interviews that
Kotarski was given no access to or record of, and thus had
no opportunity to rebut.
If this investigation by the Special Counsel were a part
of a system of enforceable relief for constitutional viola-
tions, we would be compelled to conclude that no Bivens
action could be implied. Indeed, the relief could doubtless
fall quite short of Bivens relief and still be constitutionally
adequate, in light of the designed precariousness of the
probationary position from which Kotarski was demoted.
The role of the Special Counsel in receiving and investi-
gating complaints, however, is not part of a system em-
bodying any remedy enforceable by a complainant who
demonstrates a violation of constitutional rights. While
the Special Counsel is directed by the statute to receive and
investigate any allegation of a prohibited personnel prac-
tice, 5 U.S.C. § 1206(a)(1), and to report to the Board and
the agency involved if the Specia! Counsel determines that
there are reasonable grounds to believe that a prohibited
practice has occurred, § 1206(c)(1)(A), no more need be
done. If, after a reasonable time, the agency has not taken
corrective action, the Special Counsel “may” request the
Board to consider the matter, and the Board “may” order
such corrective action as it deems appropriate.
§ 1206(c)(1)(B). Unlike the complainant in Bush, the pro-
bationary employee has no enforceable right, and no
judicial review, even if he or she demonstrates a constitu-
tional violation. Nor is there any right of participation in
the process of investigation and decision whether to take
action.
We do not regard this structure as one that provides
“meaningful remedies” to one whose constitutional rights
have been violated. While the wrong may be righted as a
matter of discretion, every constitutional violation by any
agency is subject to that kind of correction. The central
l2a
features of the congressional remedial system in Bush and
of the alternative Bivens remedy are the right to a forum in
which to establish a constitutional violation and the right
to enforce significant relief if a violation is shown. Neither
feature exists for the probationary employee whose only
means of seeking redress is to complain to the Special
Counsel.
Our conclusion is supported by Williams v. IRS, 745
F.2d 702 (D.C. Cir. 1984) (per curiam), in which the court
refused to apply Bush to defeat a claim by an Internal
Revenue Service attorney who contested his five-day
disciplinary suspension. As one ground of its decision, the
court stated:
Bush rested in large measure On the meaningful, even
it less than optimally effective, statutory remedy Con-
gress made available to the complainant, one that af-
forded him retroactive reinstatement and back pay.
Williams is differently situated; he has no CSRA-
conferred guarantee of an administrative adjudica-
tion outside the Service or of direct court review.
Id. at 705. See also Doe v. United States Department of
Justice, 753 F.2d 1092, 1118 n.2 (Wald, J., dissenting);
Harris v. Moyer, 620 F. Supp. #262 (N.D. Ill. 1985) (Bush
not applicable to defeat Bivens action by probationary
employee, because employee had no statutory right of ap-
peal to Merit System Protection Board). Similarly, Borre//
v. United States International Communications Agency,
682 F.2d 981, 988-91 (D.C. Cir. 1982), a case decided
before the Supreme Court’s decision in Bush, held that a
probationary employee could bring suit in federal court
based on her claim that she was discharged for whistle-
blowing activities. The Civil Service Reform Act was held
not to preclude her action because she was excluded from
all of its remedies except the right to complain to the
Special Counsel. See also Egger v. Phillips, 710 F.2d 292,
297-98 (7th Cir.) (en banc) (plurality opinion) (exemption
l3a
of FBI agents from civil service regulations permits Bivens
action), cert. denied, 464 U.S. 918 (1983); but see Broad-
way v. Block, 694 F.2d 979, 985-86 (Sth Cir. 1982) (Bivens
action not available to contest reassignment).
The defendants contend that it is anomalous to give pro-
bationary employees a greater protection of their constitu-
tional rights, by way of a Bivens action, than is available
to fully tenured employees, who are confined to their civil
service remedies. It may be. See Francisco v. Schmidt, 575
F. Supp. at 1203. The alternative, which strikes us at least
equally anomalous, is to hold that a Bivens action that
would otherwise be appropriate for a probationary em-
ployee is rendered inappropriate by the enactment of a
scheme of enforceable remedies from which probationary
employees are excluded by definition. See Egger v.
Phillips, 710 F.2d at 298 (plurality opinion). To reach such
a result, we would have to conclude that Congress had
both the intention and the authority to deprive proba-
tionary employees of all meaningful protection for their
constitutional rights. Like the Supreme Court in Bush, 462
U.S. at 378 n.14, we need not decide the question of Con-
gress’ authority, for we conclude that it could not have in-
tended such an untoward result.
Moreover, any distortion that occurs as the result of the
availability of a Bivens action to probationary employees
is quite limited. The greater protection for probationary
employees extends only to constitutionally based claims;
they have no right of appeal or other redress when their
probationary status is terminated for normal management
reasons. See, e.g., 5 C.F.R. § 315.908(a); Lehman v. Mor-
rissey, 779 F.2d 526 (9th Cir, 1985). Nor is it clear that the
Bivens remedy for probationary employees is invariably
preferable to the civil service remedies availableto regular
employees. Review under the civil service system is almost
certainly speedier and less costly than a Bivens action. See
Bush, 462 U.S. at 391 (Marshall, J., concurring). The civil
l4a
service complainant enjoys a more favorable burden of
proof, and avoids possible immunity defenses that are
likely to be asserted in a Bivens action. Jd. We therefore
do not regard the availability of a Bivens action to proba-
tionary employees as a startling development. Of course,
Congress can cure any lack of symmetry by bringing
Bivens-type claims of probationary employees within the
regular remedial system.
For the reasons stated above, therefore, we conclude
that Kotarski, as a probationary supervisor, is not barred
by Bush v. Lucas from pursuing his Bivens action against
those who allegedly violated his constitutional rights.
DD. Review Under the Administrative Procedure Act
Kotarski also sought review of his demotion under the
provisions of the Administrative Procedure Act, 5 U.S.C.
§ 701 ef seq. This claim is foreclosed by our decision in
Viet v. Heckler, 746 F.2d 508 (9th Cir. 1984), in which we
held that federal courts had no jurisdiction to review
federal personnel actions under the Administrative Pro-
cedures Act.°®
E. Due Process
In addition to his claims based on rights of privacy and
free expression, Kotarski claimed that his fifth amend-
® We do not regard the holding or language of Veit to be contrary to
our conclusion that Kotarski may seek damages for his demotion in a
Bivens aciion. Veit dealt with the claim of a regular federal employee
that he sould have been given a higher job performance rating. We
held that, in view of the extensive remedies available to a tenured
employee under the Civil Service Reform Act, judicial review was
precluded for lack of congressional authorization, even though no ad-
ministrative remedy was provided for the wrong Veit complained of.
Veit, 746 F.2d at $511. Our conclusion that no review was available was
confined to review of Veit’s non-constitutional claim. Veit also had a
fifth amendment claim that we dealt with separately on the merits,
holding that Veit had failed to show a property interest in a claimed
merit increase. /d.
lSa
ment right to due process was violated.’ The defendants
contend that Kotarski cannot have suffered a deprivation
of property without due process, because he had no en-
titlement or property interest in his probationary super-
visor’s position. See Arnett v. Kennedy, 416 U.S. 134
(1974); Sampson v. Murray, 415 U.S. 61 (1974); Bishop v.
Wood, 426 U.S. 341, 345 n.8 (1976).
Kotarski counters that there was a clear expectancy that
he would remain in his supervisor’s position so long as he
performed satisfactorily, and that this expectancy
amounted to an entitlement for fifth amendment pur-
poses. See Perry v. Sindermann, 408 U.S. 593, 599-603
(1972). He supports his argument with a reference to a per-
sonnel manual. He also contends that sufficient publica-
tion of his demotion occurred or will occur that he has
been stigmatized in a manner affecting his liberty interest.
See Board of Regents v. Roth, 408 U.S. 564, 573 (1972);
but see Bishop v. Wood, 426 U.S. 341, 348-49 (1976).
The district court, having disposed of Kotarski’s claims
against the individual defendants on other grounds, did
not address the due process claim. Because the due process
issues of entitlement and stigma have subtantial factual
components, it would be inappropriate for us to address
this claim before the district court has done so. We
therefore express no opinions on the merits of the conflict-
ing contentions, and leave the matter for the district court
on remand.
F. Immunity
The individual defendants contend that they are entitled
to absolute immunity from liability for the commission of
’ To the extent that Kotarski asserts a due process claim against the
Naval Air Rework Facility as part of his claim for reinstatement and
back pay, the claim is subject to our discussion in part A, supra. The
district court appeared to treat Kotarski’s due process claim as part ot
his Bivens claims against the individual defendants. At least one of
Kotarski’s due process claims alleged in his complaint seems to be
directed at two of the individual defendants.
l6a
common law torts when acting within the scope of their
employment and authority. See Barr v. Matteo, 360 U.S.
564 (1959). With regard to Kotarski’s constitutional
claims, however, the defendants would be eniitled, at
most, to qualified immunity. Butz v. Economoun, 438 U.S.
478 (1978). They would be immune only so long as “their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818
(1982).
Immunity, too, was not reached by the district court.
Whether the actions of defendants violated clearly
established statutory or constitutional rights, and whether
a reasonable person would have known of them, are mat-
ters which it would be premature to determine now. The
district court can address those issues, if necessary, upon
remand.
G. Conclusion
The judgment of the district court is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
REVERSED AND REMANDED.
l7a
HALL, Circuit Judge, dissenting:
For what each man wishes, that he also believes to be
true,
Demosthenes, Third Olynthiac § 19 (J. Vince trans. 1930).
The majority believes that central to the holding of the
Supreme Court’s decision in Bush v. Lucas, 462 U.S. 367
(1983) is the proposition that the remedies provided by
Congress for federal employees must give “meaningful
protection to. . . constitutional rights.” Op at 11. In the
majority’s opinion, “meaningful remedies” include only
remedies where the employee has an “enforceable right,” a
right to judicial review, or the “right of participation in the
process of investigation and decision.” Op. at 13. Because
the majority believes that the remedies available to Kotar-
ski after losing his temporary promotion are not “mean-
ingful” and because the majority also believes that Bush
requires such remedies, it concludes that Kotarski is en-
titled to a full damage remedy in federal court for loss of
his temporary promotion if he can prove that his reduced
status was effected in violation of constitutional rights.
This remedy is available to Kotarski even though
employees demoted after receiving permanent promotions
in violation of their constitutional rights have no private
damage action under Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971) and are limited to the administrative avenues of the
civil service system. Bush, 462 U.S. at 388-90.
The court in Bush held that a federal employee who was
demoted allegedly in violation of his first amendment
rights was not entitled to a private damage remedy under
Bivens. The majority’s belief that the focus of Bush is
upon the nature of the remedies provided by Congress is
supported by a reading of the case. Time and time
l8a
again in Bush the Court underscored that the basis of its
decision centered on the significant problems of judicial
review of federal personnel decisions coupled with the fact
that Congress is in a better position to strike a balance be-
tween the need for efficient government employees and the
need to protect the rights of those employees. These con-
cerns constituted “special factors counselling hesitation [in
the creation of a damage remedy] in the absence of affirm-
ative action by Congress.” B’. 27s, 403 U.S. at 396.
The Court punctuated its decision in Bush by repeated
disclaimers that the nature of the congressionally pre-
scribed remedies did not underlie its rationale. At the
outset, the Court explained that the meaning of the phrase
“special factors counselling hestitation” first appearing in
Bivens was illustrated by its prior decisions in United
States v. Standard Oil Co., 332 U.S. 301 (1947) and
United States v. Gilman, 347 U.S. 507 (1954). In Standard
Oil, the Court refused the government’s request for a new
damage remedy against a tortfeasor responsible for in-
juries to a soldier. The Court reasoned that Congress, “the
custodian of the national purse,” and not the courts
should bear the responsibility for fashioning national
fiscal policy. Standard Oil, 332 U.S. at 314. In Gilman,
the Court refused to allow the government to seek indem-
nification from one of its employees responsibile for
creating federal liability under the FICA. The Court in
Gilman noted that the creation of an indemnification
remedy would significantly affect the relationship between
the government and its employees, impacting employee et-
ficiency and morale as well as federal fiscal policy.
Gilman, 347 U.S. at 510. Gilman held that Congress was
in a better position than the courts to fashion such a
remedy. /d. at 511.
Bush held that the Standard Oil and Gilman decisions
demonstrated that the “special factors” inquiry focuses on
which branch of government should decide whether a
remedy should be provided.
19a -
The special factors couselling hesitation in the creation
of a new remedy in Standard Oil and Gilman did not
concern the merits of the particular remedy that was
sought. Rather, they related to the question of who
should decide whether such a remedy should be pro-
vided. We should therefore begin by considering
whether there are reasons for allowing Congress to
prescribe the scope of relief that is made available to
federal employees whose First Amendment rights have
been violated by their supervisors.
Bush, 462 U.S. at 380.
The Supreme Court in Bush stated further:
The question is not what remedy the court should pro-
vide for a wrong that would otherwise go unredressed.
It is whether an elaborate remedial system that has been
constructed step by step, with careful attention to con-
flicting policy considerations, should be augmented by
the creation of a new judicial remedy for the constitu-
tional violation at issue. That question obviously cannot
be answered simply by noting that existing remedies do
not provide complete relief for the plaintiff. The policy
judgment should be informed by a thorough under-
Standing of the existing regulatory structure and the
respective costs and benefits that would result from the
addition of another remedy for violations of employees’
First Amendment rights.
> > *x
Thus, we do not decide whether or not it would be good
policy to permit a federal employee to recover damages
from a supervisor who has improperly disciplined him
for exercising his First Amendment rights. As we did in
Standard Oil, we decline “to create a new substantive
legal liability without legislative aid and as at the com-
mon law,” 332 U.S., at 302, because we are convinced
that Congress is in a better position to decide whether or
not the public interest would be served by creating it.
Id. at 388-90. '
As the majority notes, Bush involved a demotion of a
non-probationary federal employee. In Pinar v. Dole, 747
F.2d 899 (4th Cir. 1984), cert. denied, 105 S. Ct. 2019
(1985), the Fourth Circuit held that the Congressional
remedial scheme for federal employees losing temporary
promotion was constitutionally adequate, and no Bivens
remedy was required. The majority’s position today
creates a direct conflict with Pinar. I agree with the Fourth
Circuit and with the district court in this case that Bush
precludes a Bivens remedy for probationary employees as
well.
Under current law, Congress has defined a “prohibited
personnel action” as any action that is a reprisal for “a
disclosure of information by an employee or applicant
Which the employee or applicant reasonably believes
evidences a violation of any law, rule, or regulation... ”
5 U.S.C. § 2302 (b)(8). Congress enacted provisions like
secuion 2302 so that an action taken by a supervisor
“against an employee... without having proper regard
for the individual’s privacy or constitutional
rights . . . could result in dismissal, fine, reprimand, or
other discipline for the supervisor.” S. Rep. No. 95-969,
95th Cong., 2d Sess., reprinted in U.S. Code, Cong. &
Admin. News at 2745 (emphasis added). Charges of pro-
hibited practices are investigated by the Office of the
Special Counsel which may recommend corrective action
to the agency. 5 U.S.C. § 1206(a)-(c). If the agency fails to
implement the recommended corrective action, the Special
Counsel may request the Merit Systems Protections Board
to consider the matter, and the Board may in turn order
corrective action. 5 U.S.C. § 1206(c)(1)(B). Further, the
Congressional scheme allows the Special Counsel to re-
‘Only two justices took the position that the congressionally-
adopted remedy should approximate Bivens reliet. See Bush, 462 U.S.
at 390-92 (Marshall, J., concurring).
2la
quest, and the Board to grant, stays of personnel actions
the Special Counsel reasonably believes were taken as the
result of prohibited practices.
With this remedial system in place, Kotarski cannot
claim that “it is damages or nothing.” Bivens 403 U.S. at
410 (Harlan, J., concurring). Congress has enacted a
scheme carefully tailored to balance the many competing
concerns implicated in regulating federal employment and
has chosen this remedial mechanism over a system allow-
ing litigation between federal employees over
employment-related discipline. In crafting the system,
Congress has decided that different levels of protection are
required for rights of differing magnitude. For demotion
or termination of non-probationary employees, the full
complement of administrative remedies discussed in Bush
is available. For less severe personnel actions such as a ter-
mination of a probationary promotion, Congress has
determined that review by the Special Counsel and in cer-
tain cases by the Board sufficiently deters constitutionally
impermissible personnel decisions while maintaining
morale and efficiency. Bush has stated that Congress is in
the better position to decide whether a damage remedy is
appropriate. Congress has decided that it is not, and |
agree with the Fourth Circuit that Congress’ decision
precludes a Bivens remedy here. See Pinar, 747 F.2d at 911
and n.9. See also Crumpler v. Etter, 579 F. Supp. 391, 392
(E.D.N.C. 1983); Watson v. United States, 576 F. Supp.
580, 585-86 (N.D. Ill. 1983); Francisco v. Schmidt, 575 F.
Supp. 1200, 1202-03 (E.D. Wis. 1983).
This is not a case in which Congress has expressly de-
cided to provide no remedy at all or where Congress has
failed to consider the need to remedy constitutionally pro-
scribed conflict in the context of federal employment. The
majority seems to view this case as a “no remedy” case or
at least a “meaningless remedy” case, basing its conclusion
on the fact that Kotarski cannot force the Special Counsel
to take action or to bring the matter to the attention of the
22a
Board, that he cannot seek judicial review or that he can-
not participate directly in the investigation.? I find no sup-
port in Bush or Bivens for any of these requirements. The
majority concedes that the Congressionally-supplied
remedy need not be coterminous with a Bivens remedy,
and with that much I agree. I agree with Pinar, however,
that the procedures provided for the loss of a temporary
promotion are constitutionally adequate.
Congress has made a considered judgment that the
remedies provided for the loss of a temporary promotion
are sufficient to protect the rights of federal employees
while maintaining the appropriate levels of efficiency and
morale in both the supervisors and the supervised. The
Supreme Court has decided that Congress is in the best
position to make this decision and that, when it has done
so, the courts should not interfere with the balance Con-
gress has struck. The majority may wish that Congress had
done so, the courts should not interefere with the balance
Congress has struck. The majority may wish that Congress
had done more —but that is not enough.
I dissent.
* Of course, the employee does participate to the extent that he pro-
vides the Special Counsel with the facts underlying his claim and to the
extent he is required to respond to the Special Counsel’s inquiries.
23a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
Civil No. 82-1636-E(M)
FRANK K. KOTARSKI, PLAINTIFF,
v;
V.L. COOPER, ET AL., DEFENDANTS.
[FILED FEB. 8, 1984]
[ENTERED FEB. 9, 1984]
MEMORANDUM DECISION
BACKGROUND
Plaintiff brings this lawsuit to challenge his demotion
from a probationary position as a supervisory employee
for the United States Civil Service to his original civil
service position as a ca’ \lian engineer. Plaintiff was a
GS-12 civilian engineer at the Naval Air Rework Facility
on North Island, located off the coast of San Diego,
California. He was subsequently promoted to a GM-13
position as a supervisory employee. This appointment was
clearly probationary and contingent upon the successful
conduct of plaintiff in that position. During his
probationary period, plaintiff’s supervisors, defendants in
the present case, made a determination that his perform-
ance as a supervisor had been unsatisfactory. Plaintiff was
accordingly returned to his original engineering position.
Plaintiff alleges that this demotion violates his
constitutional rights as guaranteed by the first, fifth and
24a
ninth amendments of the United States Constitution.
Jurisdiction of the court is predicated upon the court’s
general federal question jurisdiction under 28 U.S.C.
§ 1331 (Supp. V 1981). Specifically, plaintiff is alleging a
Bivens-type cause of action arising directly under the Con-
stitution. See Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiff contends that he was demoted from the super-
visory position as a result of his involvement in a fellow
employee’s complaint to the Equal Employment Oppor-
tunity Commission alleging racial discrimination. Plaintiff
also theorizes that he may have been demoted because he
and his girlfriend shared living accommodations but were
unmarried.
On April 19, 1983, plaintiff filed another complaint
which was also assigned to this court. Korarski v. Lehman,
Civil No. 83-0187-E. In that complaint, plaintiff alleges
that the above-described demotion was in violation of his
civil rights as protected by 42 U.S.C. § 2000e-16. Only the
earlier Bivens case is presently before this court on mo-
tions. In that Bivens case, defendants move the court to
dismiss the complaint with prejudice or, in the alternative,
for summary judgment.
HOLDING
Upon due consideration of the parties’ memoranda and
exhibits, the arguments advanced at the hearing, and for
the reasons set forth herein, the court grants defendants’
motion to dismiss with prejudice.
DISCUSSION
Plaintitt’s Bivens claim fails on two counts. First, plain-
tiff has filed suit and may have a remedy under Title VII
of the Civil Rights Act; the availability of this alternative
remedy precludes plaintiff's Bivens claim directly under
the Constitution.
25a
Section 2000e-16, 42 U.S.C. § 2000e-16 (Supp. V 1981),
was added to Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seg. (Supp. V 1981), by the Equal Op-
portunity Act of 1972, which made available to federal
employees remedies for employment discrimination that
were previously limited to employees of private employers.
Section 2000e-16 prohibits the federal government from
discriminating against its employees on the basis of race,
color, religion, sex or national origin.
In Brown v. General Services Administration, 425 U.S.
820 (1976), the Supreme Court determined that Title VII
provides the exclusive avenue of relief for federal
employees to obtain redress for employment discrimina-
tion. See also White v. General Services Administration,
652 F.2d 913 (9th Cir. 1981); Scott v. Perry, 569 F.2d 1064
(9th Cir. 1978). The Supreme Court in Brown, however,
did not precisely delineate the scope of its exclusivity
holding and the circuits have differed in their analysis of
the continued availability to federal employees of causes
of action under Sections 1981, 1983 and 1985 of the Civil
Rights Acts, 42 U.S.C. §§ 1981, 1983, 1985 (1976, Supp.
IV 1980 & Supp. V 1981), and under a Bivens theory.
Compare Newbold v. United States Postal Service, 614
F.2d 46, 74 (Sth Cir. 1979), cert. denied, 449 U.S. 878
(1980) and Scott v. Perry, supra, and Gissen v. Tackman,
537 F.2d 784, 786-87 (3d Cir. 1976) (en banc), with Penn
v. Schlesinger, 490 F.2d 700 (Sth Cir. 1973), rev'd on other
grounds, 497 F.2d 970 (Sth Cir. 1974) (en banc), cert.
denied, 426 U.S. 934 (1976), and Brosnahan vy. Eckerd,
435 F. Supp. 26, 28 (D.D.C. 1977), and Neely v. Biumen-
thal, 458 F. Supp. 945, 955 (D.D.C. 1978). The Ninth Cir-
cuit has joined the circuits which hold that Section
2000e-16, as interpreted by the Supreme Court in Brown,
is the exclusive federal employment discrimination
remedy. White v. General Services Administration, 652
F.2d 913 at 916; Scott v. Perry, supra, 569 F.2d at 1065.
26a
And, while the Ninth Circuit has not specifically addressed
the effect of the exclusivity holding on the availability of a
Bivens remedy, it has implied that the Bivens remedy is not
available to federal employees by rejecting the rationale
underlying the decisions which support the continued
availability of Bivens.
In Neely v. Blumenthal, supra, 458 F. Supp. at 955, the
district court held that, despite Brown, a cause of action
could still be stated for employment discrimination against
a federal employee by a government official acting in his
individual capacity under the Bivens rationale. The court
relied on the fact that in Brown tne Supreme Court did not
address the liability of government officials acting as in-
dividuals, but instead dealt with the liability of the federal
government as an entity. Thus, the court held that an ac-
tion could be brought for an alleged first amendment
violation against federal officials as individuals based on
Bivens.
The Ninth Circuit, in White v. General Services Ad-
ministration, supra, 652 F.2d at 916, rejects the rationale
of Neely. In its opinion, the court states: “White asserts,
however, that the holding in Brown is limited to actions
against the United States and does not extend to actions
against federal officials acting in their individual
capacities. We disagree.” /d. Further, and more import-
antly, the court went on to hold that a Bivens remedy
would not be implied where relief under Title VII was
available. /d. at 917.
In sum, in the Ninth Circuit, a federal employee cannot
State a claim based on Bivens where relief under Title VII
by way of Section 2000e-16 is available. Plaintiff in the in-
Stant case has filed a suit based on Section 2000e-16;
hence, he must succeed or fail based on that cause of
action.
In addition, plaintiff's Bivens remedy fails under the ra-
tionale of Bush v. Lucas, U.S. .., 163 §. Cr. 208
27a
(1983). In that case the Supreme Court addressed the
availability of a Bivens remedy in light of the federal
employee’s administrative remedies within the civil service
system. The Court noted that there are two situations in
which the implication of a Bivens remedy is inappropriate.
The first is when Congress has, expressly or impliedly, in-
dicated that the Court’s power should not be exercised in
favor of creating a new remedy. The second is when there
are present “special factors counselling hesitation” against
implying the new remedy. One such “special factor,” the
Bush Court concluded, is the presence of a comprehensive
federal regulatory scheme set forth by Congress. The
Court concluded that the civil service administrative ap-
peals process, which allowed an employee to obtain review
for an alleged retaliatory demotion, was such a scheme;
hence, the Court declined to imply a Bivens remedy allow-
ing the aggrieved employee to sue directly under the Con-
stitution.
The ruling in Bush precludes the implication of a Bivens
remedy in the present case. In Bush, the Court indicated
that where a federal personnel decision is at issue, the
presence of the comprehensive civil service scheme pre-
cludes the grant of Bivens relief. The Court emphasized
that the important interest it was protecting in the Bush
decision was “federal personnel policy.” 103 S. Ct. at
2412.
Plaintiff contends that because he was a probationary
employee and thus lacked the full panoply of administra-
tive remedies available to an ordinary civil service
employee, the Bush case does not control. This is not per-
suasive. The Bush Court made clear that the administra-
tive remedy need not provide complete relief:
The question is not what remedy the court should
provide for a wrong that would otherwise go unre-
dressed. It is whether an elaborate remedial system
that has been constructed step by step with careful
28a
attention to conflicting policy considerations, should
be augmented by the creation of a new judicial
remedy for the constitutional violation at issue. That
question obviously cannot be answered simply by
noting that existing remedies do not provide complete
relief for the plaintiff. The policy judgment should be
informed by a thorough understanding of the existing
regulatory structure and the respective costs and
benefits that would result from the addition of
another remedy for violations of employees’ First
Amendment rights.
The costs associated with the review of disciplinary
decisions are already significant—not only in mone-
lary terms, but also in the time and energy of
managerial personnel who must defend their decisions.
Id. at 2416-17. Plaintiff has obtained the administrative
review provided to probationary employees’ with
grievances of the type plaintiff raises. The report of the
Merit Systems Protection Board issued after review of
plaintiff's case concluded that there was no wrongdoing by
defendants. In providing probationary employees with
fewer avenues of review for challenging federal personnel
decisions, Congress made a reasoned choice that personnel
decisions as to probationary employees should be gov-
erned by tewer impediments to managerial discretion. This
court declines to interfere with that determination.
In sum, given the availability of alternative relief for
plaintiff by way of his suit under Title VII and the poten-
tial for interference with federal personnel policy, de-
fendants’ motion to dismiss plaintiff's Bivens claim is
granted.
DATED: February 7, 1984.
/S/ WILLIAM B. ENRIGHT
William B. Enright, Judge
United States District Court
Couples to:
Plaintift
Detendants
29a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Civil No. 82-1636-E(M)
FRANK K. KOTARSKI, PLAINTIFF,
V.
V. L. COOPER, ET AL., DEFENDANTS.
(FILED FEB. 8, 1984]
[ENTERED FEB. 9, 1984]
ORDER
Pursuant to this court’s Memorandum Decision dated
February 7, 1984, the court hereby grants defendants’
motion to dismiss with prejudice.
IT IS SO ORDERED.
DATED: February 7, 1984.
/s/ WiLtiAM B. ENRIGHT
William B. Enright, Judge
United States District Court
Copies (0:
Plaintutft
Defendants
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APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 84-5673
DC No. 82-1636
FRANK K. KOTARSKI, PLAINTIFF-APPELLANT.,
V.
V. L. Cooper, A.E. NAVARRO, W.J. TINSTON,
J.H. KIRKPATRICK, NAVAL AIR REWORK FACILITY,
Capt. P.A. MONROE, IN HIS OFFICIAL CAPACITY,
DEFENDANTS-APPELLEES.
[Filed and Entered September 16, 1986]
APPEAL trom the United States District Court for the
Southern District of California.
THIS CAUSE came on to be heard on the Transcript of
the Record from the United States District Court for the
Southern District of California and was duly submitted.
ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court, that the judgment of
the said District Court in this Cause be, and hereby is
reversed & remanded.
A TRUE COPY
ATTEST 27, Jan 1987
Cathy A Catterson
by:/s/_ Ernesto M. Cruz
Ernesto M. Cruz
Deputy Clerk
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APPENDIX D
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CA No. 84-5673
FRANK K. KOTARSKI, PLAINTIFF-APPELLANT,
Vv,
V. L. COOPER, ET AL., DEFENDANTS-APPELLEES
[FILED JAN 13, 1987]
ORDER
BEFORE: NELSON, CANBY AND HALL, Circuit
Judges.
[he panel has voted unanimously to deny the petition
for rehearing and suggestion for rehearing en banc.
lhe full court has been advised of the suggestion for
rehearing en banc and no judge of the court has requested
a vole to rehear the matter en banc.
[he petition for rehearing is hereby denied and the
suggested for rehearing en banc is rejected.
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APPENDIX E
STATUTES INVOLVED
CHAPTER 23— MERIT SYSTEM PRINCIPLES
§ 2302. Prohibited personnel practices
(a)(1) For the purpose of this title, “prohibited person-
nel practice” means any action described in subsection (b)
of this section.
(2) kor the purpose of this section —
(A) “personnel action” means —
(1) an appointment;
(11) a promotion;
(ili) an action under chapter 75 of this title or
other disciplinary or corrective action;
(iv) a detail, transfer, or reassignment;
(Vv) a reinstatement;
(vi) a restoration;
(vil) a reemployment;
(vill) a performance evalution under chapter
43 of this title;
(ix) a decision concerning pay, benefits, or
awards, concerning education or training if the
education or training may reasonably be ex-
pected to lead to an appointment, promotion,
performance evaluation, or other action de-
scribed in this subparagraph; and
(x) any other significant change in duties or
responsibilities which is inconsistent with the
employee's salary or grade level;
with respect to an employee in, or applicant for, a covered
position in an agency;
(B) “covered position” means any position in the
compelilive service, a career appointee position in the
Senior Executive Service, or a position in the excepted
service, but does not include —
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(i) a position which is excepted from the com-
petitive service because of its confidential,
policy-determining, policy-making, or policy-
advocating character; or
(ii) any position excluded from the coverage of
this section by the President based on a deter-
mination by the President that it is necessary and
warranted by conditions of good administration.
* - * a *
CHAPTER 43 —PERFORMANCE APPRAISAL
SUBCHAPTER I—GENERAL PROVISIONS
§ 4301. Definitions
For the purpose of this subchapter —
* * * * *
(2) “employee” means an individual employed in or
under an agency, but does not include —
(A) an employee outside the United States who is
paid in accordance with local native prevailing wage
rates for the area in which employed;
(B) an individual in the Foreign Service of the
United States;
(C) a physician, dentist, nurse, or other employee
in the Department of Medicine and Surgery,
Veterans’ Administration whose pay is fixed under
chapter 73 of ttle 38;
(D) an administrative law judge appointed under
section 3105 of this title;
(E) an individual in the Senior Executive Service;
(F) an individual appointed by the President; or
(G) an individual occupying a position not in the
competitive service excluded from coverage of this
subchapter by regulations of the Office of Personnel
Management; and
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(3) “unacceptable performance” means performance of
an employee which fails to meet established performance
standards in one or more critical elements of such
employee’s position.
§ 4303. Actions based on unacceptable performance
(a) Subject to the provisions of this section, an agency
may reduce in grade or remove an employee for unaccept-
able performance.
(b)(1) An employee whose reduction in grade or removal
is proposed under this section is entitled to—
(A) 30 days’ advance written notice of the proposed
action which identifies —
(i) specific instances of unacceptable perform-
ance by the employee on which the proposed ac-
tion is based; and
(ii) the critical elements of the employee’s posi-
tion involved in each instance of unacceptable
performance;
(B) be represented by an attorney or other represen-
tative;
(C) a reasonable time to answer orally and in
writing; and
(D) a written decision which —
(i) in the case of a reduction in grade or
removal under this section, specifies the instance
of unacceptable performance by the employee on
which the reduction in grade or removal is based,
and
(11) unless proposed by the head of the agency,
has been concurred in by an employee who is ina
higher position than the employee who proposed
the action.
(2) An agency may, under regulations prescribed by the
head of such agency, extend the notice period under
subsection (b)(1)(A) of this section for not more than 30
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days. An agency may extend the notice period for more
than 30 days only in accordance with regulations issued by
the Office of Personnel Management.
(c) The decision to retain, reduce in grade, or remove an
employee —
(1) shall be made within 30 days after the date of
expiration of the notice period, and
(2) in the case of a reduction in grade or removal,
may be based only on those instances of unacceptable
performance by the employee —
(A) which occurred during the l-year period
ending on the date of the notice under subsection
(b)(1)(A) of this section in connection with the
decision; and
(B) for which the notice and other re-
quirements of this section are complied with.
(d) If, because of performance improvement by the
employee during the notice period, the employee is not
reduced in grade or removed, and the employee’s perform-
ance continues to be acceptable for 1 year from the date of
the advance written notice provided under subsection
(b)(1)(A) of this section, any entry or other notation of the
unacceptable performance for which the action was pro-
posed under this section shall be removed from any agency
record relating to the employee.
(e) Any employee who is preference eligible or is in the
competitive service and who has been reduced in grade or
removed under this section is entitled to appeal the action
to the Merit Systems Protection Board under section 7701
of this title.
(f) This section does not apply to—
(1) the reduction to the grade previously held of a
supervisor or manager who has not completed the
probationary period under section 3321(a)(2) of this
litle,
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(2) the reduction in grade or removal of an
employee in the competitive service who is serving a
probationary or trial period under an initial appoint-
ment or who has not completed | year of current con-
tinuous employment under other than a temporary
appointment limited to 1 year or less, or
(3) the reduction in grade or removal of an
employee in the excepted service who has not com-
pleted 1 year of current continuous employment in
the same or similar positions.
* x * x *
CHAPTER 75— ADVERSE ACTIONS
SUBCHAPTER I—SUSPENSION FOR 14
DAYS OR LESS
S$ 7501. Definitions
For the purpose of this subchapter —
(1) “employee” means an individual in the com-
petitive service who is not serving a probationary or
trial period under an initial appointment or who has
completed | year of current continuous employment
in the same or similar positions under other than a
temporary appointment limited to 1 year or lessf{.]
$ 7502. Actions covered
This subchapter applies to a suspension for 14 days or
less, but does not apply to a suspension under section 7521
or 7532 of this title or any action initiated under section
1206 of this ttle.
§ 7503. Cause and procedure
(a) Under regulations prescribed by the Office of Per-
sonnel Management, an employee may be suspended for
14 days OF less for such cause a> WILL prowess
cy of the service (including discourteous conduct tO the
public confirmed by an immediate supervisor's report of
four such instances within any one-year period or any
other pattern of discourteous conduct).
(b) An employee against whom a suspension for 14 days
or less 1S proposed is entitled to —
(1) an advance written notice stating, the specific
reasons for the proposed action,
(2) a reasonable time tO answer orally and in
writing and to furnish affidavits and other documen-
tary evidence in support of the answet;
(3) be represented by an attorney OF other represen:
(4) a written decision and the specific reasons
therefor al the earliest practicable date.
(c) Copies of the notice of proposed action, the answet
of the employee if written, 4 summary thereof if made
orally, the notice of decision and reasons therefor, and
any order effecting [sic] the suspension, together with any
supporting material, shall be maintained by the agency
and shall be furnished to the Merit Systems Protection
Board upon its request and to the employee affected upon
the employee's request.
SUBCHAPTER il _REMOV AL, SUSPENSION FOR MORE
THAN 14 DAYS, REDUCTION IN GRADE OR PAY, OR
PURLOUGH FOR 30 pays OR LESS
§ 7511. Definitions, application
(a) For the purpose of this subchapter —
(1) “employee” means —
(A) an individual in the competitive service
who is not serving 4 probationary or trial period
under an initial appointment or who has com-
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pleted | year of current continuous employment
under other than a temporary appointment
limited to 1 year or less; and
(B) a preference eligible in an Executive agency
in the excepted service, and a preference eligible
in the United States Postal Service or the Postal
Rate Commission, who has completed | year of
current continuous service in the same or similar
positions;
* * *
(b) This subchapter does not apply to an employee —
(1) whose appointment is made by and with the ad-
vice and consent of the Senate;
(2) whose position has been determined to be of a
confidential, policy-determining, policy-making or
policy-advocating character by —
(A) the Office of Personnel Management for a
position that it has excepted from the com-
petitive service; or
(B) the President or the head of an agency for
a position which is excepted from the competitive
service by statute.
(c) The Office may provide for the application of this
subchapter to any position or group of positions excepted
from the competitive service by regulation of the Office.
§ 7512 Actions covered
This subchapter applies to—
(1) a removal;
(2) a suspension for more than 14 days;
(3) a reduction in grade;
(4) a reduction in pay; and
(5) a furlough of 30 days or less;
but does not apply to—
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(A) a suspension or removal under section 7532 of this
title,
(B) a reduction-in-force action under section 3502 of
this title,
(C) the reduction in grade of a supervisor or manager
who has not completed the probationary period under sec-
tion 3321{a)(2) of this title if such reduction is to the grade
held immediately before becoming such a supervisor or
manager,
(D) a reduction in grade or removal under section 4303
of this title, or
(E) an action initiated under section 1206 or 7521 of this
title.
§ 7513. Cause and procedure
(a) Under regulations prescribed by the Office of Per-
sonnel Management, an agency may take an action
covered by this subchapter against an employee only for
such cause as will promote the efficiency of the service.
(b) An employee against whom an action is proposed is
entitled to—
(1) at least 30 days’ advance written notice, unless
there is reasonable cause to believe the employee has
committed a crime for which a sentence of imprison-
ment may be imposed, stating the specific reasons for
the proposed action;
(2) a reasonable time, but not less than 7 days, to
answer orally and in writing and to furnish affidavits
and other documentary evidence in support of the
answer;
(3) be represented by an attorney or other repre-
sentative; and
(4) a written decision and the specific reasons
therefor at the earliest practicable daie.
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(c) An agency may provide, by regulation, for a hearing
which may be in lieu of or in addition to the opportunity
to answer provided under subsection (b)(2) of this section.
(d) An employee against whom an action is taken under
this section is entitled to appeal to the Merit Systems Pro-
tection Board under section 7701 of this title.
(e) Copies of the notice of proposed action, the answer
of the employee when written, a summary thereof when
made orally, the notice of decision and reasons therefor,
and any order effecting an action covered by this sub-
chapter,
CHAPTER 77—APPEALS
§ 7701. Appellate procedures
(a) An employee, or applicant for employment, may
submit an appeal to the Merit Systems Protection Board
from any action which is appealable to the Board under
any law, rule, or regulation. * * *
* * * * *
§ 7703. Judicial review of decisions of the Merit Systems Protection
Board
(a)(1) Any employee or applicant for employment
adversely affected or aggrieved by a final order or decision
of the Merit Systems Protection Board may obtain judicial
review of the order or decision.
(b)(1) Except as provided in paragraph (2) of this
subsection, a petition to review a final order or final deci-
sion of the Board shall be filed in the United States Court
of Appeals for the Federal Circuit. * * *
US GOVERNMENT PRINTING OFFICE: 1987— 181-483/403
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.