Petition for Writ of Certiorari — Lee v. Hughes

Supreme Court, U.S.

FILED

98 554 0cl1-1998

r THE CLERK

In The

Supreme Court of the United States

October Term, 1997

¢

KENNETH W. LEE,

Petitioner,

ROBERT C. HUGHES, JR., and

DANIEL C. LANFORD, JR.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

e

PETITION FOR WRIT OF CERTIORARI

S

My es E. Eastwoop

6445 Powers Ferry Road, N.W.

Suite 215

Atlanta, Georgia 30339-2909

(770) 541-9000

Counsel of Record for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

1. Whether United States Probation Officers, as excepted

service employees of the Judicial Branch, may bring

Bivens actions for unconstitutional discrimination in

their employment?

(The United States Court of Appeals for the Eleventh

Circuit, in the case at bar, answered this Question in the

negative, while the United States Court of Appeals for the

Eighth Circuit has answered this Question in the affirma-

tive.)

LIST OF ALL PARTIES IN COURT BELOW

Kenneth W. Lee

Robert C. Hughes, Jr.

Daniel C. Lanford, Jr.

es

reer soca

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................0..000:.

LIST OF ALL PARTIES IN COURT BELOW........ i

PARES GOP ALITOIORITING ........ «<2 <c.ccsdasaces iv

NI oo ee ty 1

SBR PSR Sap a ORS orn ry Sa tye 1

CONSTITUTIONAL AND STATUTORY PROVI-

og 7 aR eee seas 2

STATEMENT OF THE CASE.................-..-:. 2

REASONS FOR GRANTING THE WRIT ........... 4

I. IT IS NECESSARY TO RESOLVE THE SPLIT

IN THE CIRCUITS ON WHETHER UNITED

STATES PROBATION OFFICERS, AS EXCEP-

TED SERVICE EMPLOYEES OF THE JUDI-

CIAL BRANCH, MAY BRING BIVENS

ACTIONS FOR UNCONSTITUTIONAL DIS-

CRIMINATION IN THEIR EMPLOYMENT .. 4

Il. THE ELEVENTH CIRCUIT HAS RULED

CONTRARY TO THIS COURT’S BINDING

PRECEDENT IN DAVIS V. PASSMAN....... 6

Ill. THE TWO STATUTORY SCHEMES IMPACT A

LARGE SEGMENT OF JUDICIAL EMPLOYEES:

DID CONGRESS LEGISLATIVELY OVERRULE

oo RB 0 ee rrr 8

EN eee 2h kad a Wag GUik aa na es 10

APPENDIX A - Opinion and Judgment of the

United States Court of

Appeals for The Eleventh Cir-

| Pere Perey vel y fre CP eT Tee Tee la

iv

TABLE OF CONTENTS - Continued

Page

APPENDIX B - Opinion of District Court

Vacating and Substituting

New Opinion Dismissing

Pee EET LETT OTe 14a

APPENDIX C - Opinion of District Court

Denying Motion to Vacate....... 26a

APPENDIX D - Constitutional and Statutory

Sai EET EE iva ches needs 3la

Loe TAT RIN, ee

TABLE OF AUTHORITIES

Page

CAsEs:

Bivens v. Six Unknown Federal Narcotics Agents, 403

ta i og) Peepers eure ory parr eer fie fA a

Bush v. Lucas, 462 U.S. 367 (1983)............. ay he tee

Davis v. Passman, 442 U.S. 228 (1979)............ passim

Duffy v. Wolle, 123 F.3d 1026 (8th Cir. 1997), cert.

denied, __ U.S. __, 118 S.Ct. 1839 (1998) .... 4, 5, 10

Lee v. Hughes, 145 F.3d 1272 (11th Cir. 1998).......... 1

FEDERAL CONSTITUTION:

CS: Sonn ans Fi oe A eR as pees 4

STATUTES:

> RSA Oe BING) iiss es i ee es 2, 8, 10

Oe TEBE Sires CR beck in ciecearennaseeus eee 3

42 USL. G2000e-16 (5968) uc. ec eck 40%: 3

Congressional Accountability Act of 1995

PU 5 BO 8, BO Ie Os nase rissa ese 2, 9, 10

BUR iki ho had ko es kee aw es Ee 2,9

8, aOR Se pete Fenn oe me sh ene Rpm een a ye 2,9

ie Rar ee NAM atre Eee pr ear ee yr 2, 9, 10

vi

TABLE OF AUTHORITIES — Continued

Page

TREATISES:

2 B. Lindemann & D. Grossman, Emptoyment Dis-

CRIMINATION Law (3rd ed. 1996)..................5, 10

Reports:

1995 Year End Report by Chief Justice William H.

Rehnquist On the Federal Judiciary,

www.uscourts.gov/ttb/jan96ttb/lyearend.html...... 7

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Petitioner, Kenneth W. Lee (“Mr. Lee”), respectfully

prays that a Writ of Certiorari be issued to review the

judgment of the United States Court of Appeals for the

Eleventh Circuit rendered in this case on July 9, 1998.

¢

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eleventh Circuit dated July 9, 1998, is reported at 145

F.3d 1272, 1998 W.L. 380522 (11th Cir. 1998), and is repro-

duced in Appendix A to this Petition beginning on page

la. The opinion of the United States District Court for the

Middle District of Georgia vacating its prior order of

dismissal and correcting typographical errors and substi-

tuting a new order of dismissal, filed January 29, 1997, is

unreported and is reproduced in Appendix B to this

petition, beginning at page 14a. The opinion of the dis-

trict court filed April 2, 1997 denying the motion to alter,

amend, vacate and set aside amended judgment is unre-

ported and is reproduced in Appendix C to this petition,

beginning at page 26a.

JURISDICTION

The judgment in the United States Court of Appeals

for the Eleventh Circuit was entered on July 9, 1998. Pet.

App. la. The jurisdiction of this Court is timely invoked

in 90 days thereof, pursuant to 28 U.S.C. §1254(1) (1988)

and Sup. Cr. R. 13.4.

+

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional and statutory provisions involved

in this case — the Fifth Amendment to the United States

Constitution, §717(a) of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §2000e-16(a)(1988), the Civil Service

Reform Act of 1978, 5 U.S.C. §2302 (1988), and §§102, 201

and 505 of the Congressional Accountability Act of 1995,

Pub.L. 104-1, 109 Stat. 3 et seq. — are set forth in Appendix

D beginning at page 3la.

STATEMENT OF THE CASE

This is a Bivens action brought by a discharged

United States Probation Officer against his chief and dep-

uty chief probation officers, alleging race discrimination

in the conditions and termination of his employment in

the Middle District of Georgia, under authority of Bivens

v. Six Unknown Federal Narcotics Agents, 403 U.S. 388

(1971), and Davis v. Passman, 442 U.S. 228 (1979).

Mr. Lee was hired in 1983 as a United States Proba-

tion Officer for the Middle District of Georgia. Pet. App.

2a, 16a. His veteran’s status made him a preference eligi-

ble employee. Pet. App. 27a. As an employee of the U.S.

Probation Service, he was an excepted service employee

of the Judicial Branch. Pet. App. 18a, 27a.

Mr. Lee served as U.S. Probation Officer until his

employment was terminated in 1996. At the time of Peti-

tioner’s termination, Respondent Daniel C. Lanford, Jr.,

was Chief U.S. Probation Officer for the Middle District

of Georgia and Respondent Robert C. Hughes, Jr., was

Deputy Chief U.S. Probation Officer. Pet. App. 2a, 16a.

Petitioner Lee protested his termination and other condi-

tions of his employment, on the grounds that they were

improperly motivated by race. Pet. App. 2a, 16a.

Mr. Lee was provided an administrative remedy

under the Model EEO Plan which was adopted by the

Middle District of Georgia. Pet. App. 2a. A magistrate

judge was appointed as investigator under the Plan, and

he subsequently recommended approval of Petitioner’s

termination. Pet. App. 3a. The Chief Judge of the District

accepted the report and approved the termination. The

EEO Plan does not provide for a hearing upon request of

the Plaintiff and none was held. Pet. App. 3a-4a.

Petitioner Lee then filed suit in district court against

his supervisors, alleging unconstitutional race discrimi-

nation.’ Pet. App. 4a. The district court dismissed the

Bivens claim, holding that the Civil Service Reform Act of

1978 (“CSRA”) preempted the field and was a special

factor counseling hesitation in inferring a Bivens claim.

Pet. App. 20a, 22a, 28a. The Eleventh Circuit Court of

Appeals affirmed: “We hold that the CSRA precludes a

! Petitioner’s unsuccessful §1981 claim is foreclosed by the

1991 Civil Rights Amendments that, in subsection (c), expressly

limited the §1981 remedy to unlawful state and private race

discrimination. 42 U.S.C. §1981(c); Pet. App. 11a, 35a. Therefore,

Petitioner does not seek review on this point.

Bivens remedy in this case notwithstanding the fact that

the CSRA does not provide administrative or judicial

review of the adverse action.” Pet. App. 7a. The Court of

Appeals noted: “We recognize that this case is troubling

because Plaintiff was not afforded a Congressionally

enacted judicial or administrative procedure through

which to vindicate the alleged constitutional wrong.” Pet.

App. 9a.

REASONS FOR GRANTING THE WRIT

I. IT IS NECESSARY TO RESOLVE THE SPLIT IN

THE CIRCUITS ON WHETHER UNITED STATES

PROBATION OFFICERS, AS EXCEPTED SERVICE

EMPLOYEES OF THE JUDICIAL BRANCH, MAY

PURSUE BIVENS REMEDIES FOR UNCONSTITU-

TIONAL DISCRIMINATION IN THEIR EMPLOY-

MENT.

The Eighth Circuit Court of Appeals has held that a

United States Probation Officer, because of this Court’s

holding in Davis v. Passman, 442 U.S. 228 (1979), may

pursue a Bivens claim as an excepted service employee of

the Judicial Branch, for unconstitutional discrimination in

his employment. Duffy v. Wolle, 123 F.3d 1026, 1033-1035

(8th Cir. 1997), cert. denied, ___ U.S. __, 118 S.Ct. 1839

(1998). The Eighth Circuit found that implying a Bivens

right of action in Probation Officer Duffy’s case was quite

straight-forward, given this Court’s holding in Davis v.

Passman, supra, allowing a Fifth Amendment claim for

unconstitutional gender discrimination. 123 F.3d at

1033-34. The Eighth Circuit further held that the district

eh

RR TPO Te

court EEO plan was not a special factor counselling hesi-

tation. 123 F.3d, at 1034-35.

Likewise, the leading commentators also have opined

that excepted service employees of the Federal Judiciary

may bring Bivens claims for unconstitutional race or gen-

der discrimination in their employment. 2 B. Lindemann

& D. Grossman, EmptoyMent Discrimination Law, p. 1565,

“Employees of the Judicial Branch” (3rd ed. 1996).

In contrast, the Eleventh Circuit held in the case at

bar that the Civil Service Reform Act of 1978 (“CSRA”)

was a special factor counselling hesitation. Pet. App. 7a,

lla. The Eleventh Circuit gave short shrift to Davis v.

Passman, supra, Pet. App. 7a-8a, focusing on the enact-

ment of CSRA, even though the Court of Appeals: “recog-

nize[d] that this case is troubling because Plaintiff was

not afforded a Congressionally enacted judicial or admin-

istrative procedure through which to vindicate the

alleged constitutional wrong.” Pet. App. 9a.2 The Elev-

enth Circuit thereby overlooked this Court's detailed dis-

cussion of Davis v. Passman, involving an excepted service

employee in the Legislative Branch, in this Court’s opin-

ion in Bush v. Lucas, 462 U.S. 367, 376-378 (1983), involv-

ing a competitive service employee of the Executive

Branch. In holding that the statutory remedial scheme for

* None of the cases deemed similar by the Eleventh Circuit

(listed at Pet. App. 9a-10a) involved race or gender

discrimination claims, but all did involve Executive Branch

employees plainly encompassed by CSRA. Only Duffy v. Wolle,

supra, involved (i) a discrimination claim, and/or (ii) an

excepted service employee of a Judicial Branch agency.

Mr. Bush and similarly situated employees was the spe-

cial factor counselling hesitation, the Bush Court nonethe-

less expressly distinguished the situation under CSRA of

those for whom no statutory remedy at all was provided.

Compare Bush v. Lucas, 462 U.S., at 378 & n. 14, with id.,

462 U.S., at 390-391 (Marshall, J., concurring).

II.

THE ELEVENTH CIRCUIT HAS RULED CON-

TRARY TO THIS COURT’S BINDING PRECE-

DENT IN DAVIS V. PASSMAN.

This Court in Davis v. Passman, supra, prior to Bush v.

Lucas, supra, had stated:

Davis v. Passman, 422 U.S., at 246-247 (emphasis by court).

Third, there is in this case “no explicit congres-

sional declaration that persons” in petitioner’s

position injured by unconstitutional federal

employment discrimination “may not recover

money damages from” those responsible for the

injury. Bivens, supra, 403 U.S. at 397. (Emphasis

supplied).

The Davis Court then noted that there was:

an explicit congressional prohibition against

judicial remedies for those in petitioner’s posi-

tion. When §717 was added to Title VII to pro-

tect federal employees from discrimination, it

failed to extend this protection to congressional

employees such as petitioner who are not in the

competitive service.(fn 26) See 42 USC

§2000(e)-16(a). There is no evidence, however,

that Congress meant §717 to foreclose alterna-

tive remedies available to those not covered by

the statute. Such silence is far from the “clearly

ae

elem ae

discernable will of Congress” perceived by the

Court of Appeals. . . . In a similar manner, we do

not now interpret §717 to foreclose the judicial

remedies of those expressly unprotected by the

statute. On the contrary, §717 leaves undis-

turbed whatever remedies petitioner might oth-

erwise possess.

Fn 26 [in opinion]: Since petitioner was not in

the competitive service, see n. 2, supra, the reme-

dial provisions of §717 of Title VII are not avail-

able to her. In Brown v. GSA, 425 U.S. 820 (1976),

we held that the remedies provided by §717 are

exclusive when those federal employees covered

by the statute seek to redress the violation of

rights guaranteed by the statute.

Davis v. Passman, 442 U.S., at 247 & n. 26.

The Davis Court then stated that if Congress:

were .. . to create equally effective alternative

remedies, the need for damages relief might be

obviated.

Davis, 442 U.S., at 248.

However, there is no other statutory remedy for race

discrimination available to Mr. Lee or any of the almost

twenty thousand probation officers, pretrial services offi-

cers, deputy clerks and other support staff in the Federal

Judiciary.* Compare Bush v. Lucas, 462 U.S., at 378 & n. 14,

with id., 462 U.S., at 390-391 (Marshall, J., concurring).

3 For data, see 1995 Year End Report by Chief Justice

William H. Rehnquist On the Federal Judiciary, Part IV,

www.uscourts.gov/ttb/jan96ttb/ lyearend.html.

aa

This complete absence of a statutory remedy for discrimi-

nation is why the Bush Court acknowledged the continu-

ing vitality of Davis v. Passman. Bush, 462 U.S., at 376-378.

lll. THE TWO STATUTORY SCHEMES IMPACT A

LARGE SEGMENT OF JUDICIAL EMPLOYEES:

DID CONGRESS LEGISLATIVELY OVERRULE

DAVIS V. PASSMAN? |

Title VII expressly provided an anti-discrimination

remedy to most federal employees other than excepted

service employees of the Legislative and Judicial |

Branches of the Federal Government. This provision in

Section 717(a) of the Civil Rights Act of 1964, as

amended, was enacted in 1972, when federal employees

in the competitive service of all three branches of the

government and the excepted service of the Executive

Branch of government* were expressly granted coverage

and protection against discrimination on the basis of race,

sex, national origin, and religion. 42 U.S.C. §2000e-16(a).

That the Court found this determinative in Davis v. Pass-

man, supra, was reiterated in Bush v. Lucas, 462 U.S., at

376-378. CSRA changed none of this, as it continued the

express lack of coverage over discrimination claims for

persons like Petitioner in 5 U.S.C. §2302(a)(1), (b)(1)(A)

by incorporating Section 717(a) in toto in the definition of

4 The Eleventh Circuit perhaps went astray by viewing

CSRA as creating the competitive service and excepted service

as new categories, Pet. App. 4a-5a; instead, CSRA merely

codified extant categories. See, e.g., 42 U.S.C. §2000e-16(a)

[enacted in 1972], Pet. App. 31a-32a; Davis v. Passman, supra

(involving excepted service employee).

nee |

“prohibited personnel practice.” Pet. App. 3la-32a, 34a.

See also Congressional Accountability Act, Pub.L. 104-1,

109 Stat. 3 et seq., §§102(a)(2), 201(c)(2), 505; Pet. App.

33a-34a.° Accordingly, CSRA did not preempt Title VII's

remedial scheme; it adopted it.

Congress knows how to legislatively overrule this

Court’s decisions. Congress left the “hole” in Section

717(a) that the Davis Court found dispositive in Ms.

Davis’ Bivens action. This precise statutory subsection left

excepted service employees in the Legislative Branch and

Judicial Branch agencies without a statutory remedy for

race, or gender, discrimination. 42 U.S.C. §2000e-16(a)

(1988). In the Congressional Accountability Act of 1995,

supra, at §§102 & 201, Pet. App. 32a-33a, Congress did

finally extend Title VII statutory remedies to Legislative

Branch employees. Yet, the Congress clearly left Judicial

Branch excepted service employees without any statutory

remedy for race discrimination, and expressly inquired of

the Judicial Conference of the United States what to do

about the situation. See Congressional Accountability Act,

supra, at §505, Pet. App. 33a-34a. Hence, Davis v. Passman

has not been legislatively overruled, as Congress has not

amended either §717(a) of Title VII or 5 U.S.C. §2302 of

> Sections 102(a)(2) and 201(c)(1) of the Congressional

Accountability Act of 1995 finally extended Title VII of the Civil

Rights Act of 1964 and certain other labor and employment law

statutes to all Congressional employees, amending §717(a) of

the Civil Rights Act of 1964 so that only Judicial Branch

excepted service employees, such as Petitioner, are stxl

excluded from coverage. Pub. L. 104-1, 109 Star. 3 et seq. Pet.

App. 32a-33a.

10

CSRA to provide any statutory remedy for race, or gen- |

der, discrimination to Petitioner and other Judicial Branch '

excepted service employees.

The Eighth Circuit and the commentators are correct

that Davis v. Passman, 442 U.S. 228 (1979), is still good law

and is binding precedent in the case of excepted service

employees of the Judicial Branch. Compare Duffy v. Wolle,

supra, with 2 B. Lindemann & D. Grossman, EmMpLoyMeNT

DiscRIMINATION Law, p. 1565, “Employees of the Judicial

Branch” (3rd ed. 1996).

Finally, the issue before this Court impacts the sev-

eral thousand excepted service employees of the agencies

within the Judicial Branch of the Federal Government.

Undersigned counsel of record has inquired of one of the

sponsors of the Congressional Accountability Act of 1995

and has been advised by his office that the Judicial Con-

ference of the United States having responded to Con-

gress under §505 of the Congressional Accountability Act

of 1995, Pub. L. 104-1, 109 Star. 3 et seq., Pet. App.

33a-34a, by stating that Title VII need not be extended to

Judicial Branch employees. Hence, the issue in this case

remains statutorily unresolved and likely will not be

legislatively resolved any time soon.

¢

CONCLUSION

The Eleventh Circuit’s decision erroneously leads to

an inconsistency in the judicial relief afforded to race

discrimination claims. The inconsistency flowing from

the Court of Appeals’ result is that Federal Government

|

11

employers in the Executive Branch agencies and (since

1995) in Legislative Branch agencies are judged in open

court on race discrimination claims; state and local gov-

ernment employers are judged in open court on race

discrimination claims; and private sector employers are

judged in open court on race discrimination claims. Yet,

Federal employers in Judicial Branch agencies would be

relieved from answering in open court on claims of

unconstitutional race discrimination in public employ-

ment. This is indeed inconsistent with Davis v. Passman

and is inconsistent with the constitutional magnitude of

race relations in our Nation’s history.

The Petition should be granted.

Respectfully submitted,

Myies E. Eastwoop

Georgia Bar No. 237700

6445 Powers Ferry Road, N.W.

Suite 215

Atlanta, Georgia 30339-2909

(770) 541-9000

Counsel of Record for Petitioner

Kenneth W. Lee

- mena

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-8423

D.C. Docket No. 5:96-CV-316-3

KENNETH W. LEE,

Plaintiff-Appellant,

versus

ROBERT C. HUGHES, JR.;

DANIEL C. LANFORD, jrR.,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Georgia

(July 9, 1998)

Before CARNES, Circuit Judge, KRAVITCH, Senior Cir-

cuit Judge, and MILLS*, Senior District Judge.

KRAVITCH, Senior Circuit Judge:

In this case, we must decide whether a federal

employee who is not afforded an administrative or judi-

cial remedy under the Civil Service Reform Act of 1978

(codified and amended in various sections of 5 U.S.C.)

* Honorable Richard Mills, Senior U.S. District Judge for

the Central District of Illinois, sitting by designation.

2a

(“CSRA” or “the Act”) can bring a federal claim under

Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), in order to

recover monetary damages for alleged constitutional vio-

lations, and whether § 1981 provides a cause of action

against individuals acting under color of federal law. We

answer both questions in the negative.

Kenneth W. Lee (“Lee” or “plaintiff”) was hired as a

U.S. Probation Officer for the Middle District of Georgia

in 1983 and served in that capacity until his employment

was terminated in 1996. At the time of Lee’s termination,

Daniel Lanford (“Lanford”) was the Chief U.S. Probation

Officer for the district, and Robert Hughes (“Hughes”)

was the Deputy Chief U.S. Probation Officer. Lee pro-

tested his termination on the ground that it was improp-

erly motivated by race and sought redress through the

Equal Employment Opportunity (“EEO”) Plan for the

Middle District of Georgia.'

A complainant seeking to initiate an action under the

EEO Plan must file a timely discrimination complaint

with the EEO Coordinator, who then makes the necessary

investigation, consults with the parties, and prepares a

report “identifying the issues, describing his or her find-

ings and recommendations, explaining what resolution, if

any, was achieved, and defining what corrective actions,

' The EEO Plan adopted by the Middle District of Georgia

is identical to the EEO plan that had been considered and

approved by the Judicial Conference of the United States.

ae

3a

if any, will be undertaken.”? If the complainant objects to

the rejection or cancellation of the complaint, he may

request that the Chief Judge of the district review the

matter. The Chief Judge then must:

a. Conduct any additional investigation which

he or she deems necessary;

b. Determine whether to interview the parties

or other persons;

¢. Determine whether to hold a formal hearing

on the matter; and

d. Issue a final decision on the rejection, can-

cellation, or merits of the complaint if it is

found that no interviews or hearings are

necessary.*

A magistrate judge was appointed to investigate

Lee’s allegations and subsequently recommended

approval of Lee’s termination. The Chief Judge of the

2 EEO Plan at 2.

* EEO Plan at 3. The EEO Plan does not provide for a

hearing upon request of the complainant, and the record does

not suggest that plaintiff here requested a formal hearing

subsequent to the Chief Judge’s fina! decision in this case. In

fact, it appears that plaintiff’s attorney, in a letter sent to the

Chief Judge that stated objections to Lee’s potential termination,

only suggested that a formal hearing would be appropriate at

some future date. See Letter of March 14, 1996 (“I will be present

at your court this afternoon and if some resolution cannot be

had prior to the informal hearing scheduled for 1:30 p.m., then I

would move the court to continue said matter to a date after the

responses have been filed by the parties with the Probation

Department, against whom the complaints will have been made.

At that time, a formal hearing would be appropriate.”).

4a

district accepted the report and approved the termina-

tion. Lee then filed suit in district court against his super-

visors in their individual capacities asserting a Bivens

claim for alleged racial discrimination and alleging a

violation of § 1981.

The district court dismissed the Bivens claim for lack

of subject matter jurisdiction. Specifically, the court held

that the CSRA is the exclusive vehicle through which

federal employees can challenge or remedy adverse per-

sonnel decisions, even under circumstances in which the

CSRA does not provide for administrative or judicial

review of the personnel decision at issue. In the alterna-

tive, the district court dismissed both claims for failure to

state a claim upon which relief could be granted. Lee

appeals the dismissal of both claims.

II.

Lee contends that the district court erred in dismiss-

ing his Bivens claim, because he otherwise will not be

afforded a judicial remedy for the alleged discrimination.

Defendants, on the other hand, argue that Congress

intended for the CSRA to be the exclusive vehicle

through which federal employees can challenge adverse

personnel decisions and that, as such, the CSRA pre-

cludes plaintiff's Bivens claim for damages. We review de

novo the district court’s decision to dismiss plaintiff's

Bivens claim. See McKusick v. City of Melbourne, 96 F.3d

478, 482 (11th Cir. 1996).

The CSRA “comprehensively overhauled the civil

service system,” Lindahl v. Office of Personnel Management,

470 U.S. 768, 773, 105 S. Ct. 1620, 1624 (1985), and created

5a

an elaborate “new framework for evaluating adverse per-

sonnel actions against [federal employees],” id. at 774,

103 S. Ct. at 1624. The CSRA details the protections and

remedies available to federal employees in such actions,

including the availability of administrative and judicial

review. See United States v. Fausto, 484 U.S. 439, 108 S. Ct.

668 (1988). The CSRA divides civil service employees into

three main classifications, see 5 U.S.C. §§ 3132, 2102, 2103;

Fausto, 484 U.S. at 441 n. 1, 108 S. Ct. at 670 n. 1, within

which employees are further classified as preference-eli-

gible or nonpreference-eligible, see 5 U.S.C. § 2108. Speci-

fic protections and remedies available under the CSRA

are dependent upon the civil service employee's classi-

fication within the Act. See, e.g., 5 U.S.C. § 7511; see

generally Fausto, 484 U.S. at 445-49, 108 S. Ct. at 672-75

(discussing various chapters within the CSRA and the

protections provided therein). The parties do not dispute

that Lee is a preference-eligible member of the excepted

service and, as such, did not have the right to file a

petition with the Office of Special Counsel (“OSC”) of the

Merit Systems Protection Board (“MSPB”). Although the

remedies provided in the EEO Plan were available to Lee,

the CSRA did not provide him with judicial or-“adminis-

trative review of the adverse personnel action alleged.

In Fausto, the Supreme Court considered whether the

CSRA precluded judicial review under the Tucker Act, 28

U.S.C. § 1491, for nonpreference-eligible members of the

excepted service who, under the CSRA, were not afforded

administrative or judicial review of suspension for mis-

conduct. After examining the purpose of the CSRA, the

6a

entirety of the text, and the structure of review estab-

lished by the Act, the Court held that the “CSRA estab-

lished a comprehensive system for reviewing personnel

action taken against federal employees,” id. at 454, 108 S.

Ct. at 677, and that Congress deliberately excluded cer-

tain employees from the provision establishing adminis-

trative and judicial review for adverse personnel actions.

Although the Fausto Court specifically was considering

the remedies afforded under the CSRA in the context of

nonpreference-eligible members of the excepted service,

this court has hetd that “Fausto applies to preference-

eligible as well as non-preterence employees.” Stepliens v.

Dept. of Health and Human Servs., 901 F.2d 1571, 1575 (11th

Cir.) (holding that CSRA precluded Bivens claim for dam-

ages for allegedly prohibited personnel practice where,

under the CSRA, the OSC refused to petition MSPB with

plaintiff's complaint), cert. denied, 498 U.S. 998 (1990).

Most notably, this court has recognized Fausto as

“emphatically and conclusively establishing] the pre-

emptive nature of the CSRA.” Id.

In Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388, 396, 91 S. Ct. 1999, 2005

(1971), the Supreme Court held that a plaintiff could state

a cause of action and recover money damages against a

federal official for constitutional violations occurring

under the color of federal law. “A Bivens action is only

permitted where 1) the petitioner has no alternative

means of obtaining redress, and 2) there are no ‘special

factors counseling hesitation.’ ” Stephens, 901 F.2d at 1577

(citing Bivens, 403 U.S. at 396-97, 91 S. Ct. at 2005). The

Supreme Court has limited the circumstances under

which a Bivens claim may be asserted and has held:

7a

When the design of a Government program sug-

gests that Congress has provided what it con-

siders to be adequate remedies for constitutional |

violations that may occur in the course of the

‘program’s administration[, we have not created

additional Bivens remedies].

Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S. Ct. 2460,

2468 (1988).

Although this circuit has “recognized that the com-

prehensive statutory scheme established by Congress

relating to federal employment (CSRA) precludes the

maintenance of job-related Bivens actions by federal

employees,’ Stephens, 901 F.2d at 1577, this case presents

the court with a novel issue: whether a federal employee

for whom the CSRA provides no administrative or judi-

cial review for adverse personnel actions can assert a

Bivens claim for monetary damages against individual

defendants who allegedly have violated the complain-

ant’s constitutional rights. We hold that the CSRA pre-

cludes a Bivens remedy in this case notwithstanding the

fact that the CSRA does not provide administrative or

judicial review of the adverse personnel action.

Lee relies almost exclusively on Davis v. Passman, 442

U.S. 228, 99 S. Ct. 2264 (1979), in support of his argument

that he should be afforded a Bivens remedy here. His

reliance is misplaced. In Davis, the federal-employee

plaintiff, who was not protected by Title VII, brought a

Bivens action for workplace discrimination. The Supreme

Court held that a Bivens action was permissible because

there was “no evidence . . . that Congress meant § 717 [of

Title VII] to foreclose alternative remedies available to

those not covered by the statute.” Davis, 442 U.S. at 247,

8 a

99 S. Ct. at 2278. The Court noted that “[flor Davis, as for

Bivens, ‘it is damages or nothing.’ ” Id. at 245, 99S. Ct. at

2277. As an initial matter, the Davis Court did not con-

sider the effect of the CSRA on Davis’s Bivens claim

because the CSRA had been enacted immediately prior to

the ruling and the preemptive effect of the Act was not an

issue before the Court. Furthermore, more recent

Supreme Court cases do not reflect the Davis Court’s

willingness to recognize a Bivens claim in instances where

there is a clear congressional intent to exclude certain

classes of employees from a statute’s comprehensive

remedial scheme, as is the case with the CSRA. For exam-

ple, in Bush v. Lucas, 462 U.S. 367, 388, 103 S. Ct. 2404,

2416 (1983), the court stated:

Given the history of the development of civil

service remedies and the comprehensive nature

of the remedies currently available, it is clear

that the question we confront today is quite

different from the typical remedial issue con-

fronted by a common-law court. The question is

not what remedy the court should provide for a

wrong that would otherwise go unredressed. It

is whether an elaborate remedial system that

has been construcved 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.

Accord United States v. Fausto, 484 U.S. 439, 108 S. Ct. 668

(1998).

ee oe ee ee er

9a

We recognize that this case is troubling because

plaintiff was not afforded a congressionally enacted judi-

cial or administrative procedure through which to vindi-

cate the alleged constitutional wrong. Since the creation

of the Bivens cause of action, however, the Court has

“responded cautiously to suggestions that Bivens

remedies be extended into new contexts,” Schweiker v.

Chilicky, 487 U.S. 412, 421, 108 S. Ct. 2460, 2467 (1988),

and specifically has held that the exclusion of certain

classes of employees from the remedies provided by the

CSRA reflects not congressional silence from which

courts may imply that an excluded employee is “free to

pursue whatever judicial remedies he would have had

before enactment of the CSRA,” Fausto, 484 U.S. at 447,

108 S. Ct. at 673 (considering CSRA’s effect on the Tucker

Act), but rather congressional intent to deny the excluded

employee specific protections otherwise afforded by the

Act, see id. In light of Congress’s deliberate exclusion of

certain employees from the protections of the CSRA and

this country’s long-respected separation of powers doc-

trine, courts should be hesitant to provide an aggrieved

plaintiff with a remedy where Congress intentionally has

withheld one.

Although “[n]o Supreme Court opinion holds

squarely that the CSRA always prevents federal

employees from bringing Bivens actions to right job-

related wrongs,” Saul v. United States, 928 F.2d 829, 836

(9th Cir. 1991), at least three courts of appeals have held

that “the CSRA precludes even those Bivens claims for

which the act prescribes no alternative remedy,” Saul, 928

F.2d at 840. See id. (holding that “the CSRA is a special

10a

factor counseling against recognition of a Bivens rem-

edy”); Lombardi v. Small Business Admin., 889 F.2d 959, 961

(10th Cir. 1989) (“The recent Supreme Court cases of

Fausto . . . and in particular the most recent Chilicky

case... indicate that the Court will not create a Bivens

remedy in a Federal employment action even if no rem-

edy at all has been provided by the CSRA.”); Volk v.

Hobson, 866 F.2d 1398, 1403-04 (Fed. Cir.) (“Whether or

not an employee has access to all of the procedures and

remedies of the CSRA ..., it illustrates the logic inherent

in the Supreme Court’s admonitions to leave the federal

personnel system to Congress[, which is in a] far better

position to set the policy and adjust the system than

judges confronting ad hoc situations and trying to fill

perceived gaps in the program by allowing employees to

prosecute Bivens suits against each other.”), cert. denied,

490 U.S. 1092 (1989); see also Mitchum v. Hurt, 73 F.3d 30,

35 (3d Cir. 1995) (holding that the CSRA does not prevent

award of injunctive relief, but implying that the Act is a

special factor militating “against the creation of a new

nonstatutory damages remedy”). No circuit has held to

the contrary.*

4+ We recognize that the Eighth Circuit recently held that a

local EEO Plan is not a special factor counseling hesitation and

therefore allowed plaintiff's Bivens claim to proceed. See Duffy v.

Wolle, 123 F.3d 1026, 1033 (8th Cir. 1997), cert. denied, 118 S. Ct.

1839 (1998). It appears that the defendants in Duffy never

suggested that the CSRA preempted plaintiff’s claim, but rather

argued only that plaintiff's Bivens claim should have been

dismissed because the local EEO Plan provided plaintiff with a

remedy. Because the Eighth Circuit did not address the CSRA’s

effect on Duffy’s Bivens claim, Duffy is not instructive here.

lla

We agree with the Ninth Circuit’s conclusion that

“(t]he CSRA’s comprehensive remedial provisions con-

vince us that there was no inadvertence by Congress in

omitting a damages remedy against supervisors whose

work-related actions allegedly violate a subordinate’s

constitutional rights,” Saul, 928 F.2d at 840, and accord-

ingly hold that the CSRA is a special factor counseling

against recognition of a Bivens suit here. In light of the

comprehensive nature of the CSRA and the Supreme

Court’s conclusion that the exclusion of certain

employees from judicial review of adverse personnel

decisions reflects “manifestation of a considered congres-

sional judgment,” Saul, 928 F.2d at 840, plaintiff is pre-

cluded from asserting a Bivens claim in an attempt to

recover damages for the constitutional violations alleged

here.

Il.

Lee contends, without citing supporting authority,

that the district court also erred in holding that Ҥ 1981

does not support a cause of action for claims of employ-

ment discrimination arising under color of federal law.”

We review de novo the district court decision to dismiss

the claim. See McKusick v. City of Melbourne, 96 F.3d 478,

482 (11th Cir. 1996). Because we agree with the district

court’s conclusion that Lee’s allegations of discrimination

cannot support a claim under § 1981, we affirm the dis-

missal of that claim.

Both circuit precedent and the text of § 1981 compel

us to hold that a plaintiff cannot maintain a § 1981 claim

against a federal defendant acting under color of federal

12a

law. Prior to the Civil Rights Act of 1991, this court had

held that a “suit against the federal defendant acting

solely under color of federal law could not have been

brought pursuant to any of the statutes enumerated in [42

U.S.C.] § 1988.” Martin v. Heckler, 773 F.2d 1145, 1152

(11th Cir. 1985) (emphasis in original). Section 1981 is one

of the statutes enumerated in § 1988. See 42 U.S.C.

§ 1988(b). Through the Civil Rights Act of 1991, Congress

amended § 1981 and added subsection (c), which pro-

vides that “[t]he rights protected by this section are pro-

tected against impairment by nongovernmental

discrimination and impairment under color of state law.”

42 U.S.C. § 1981(c). Accordingly, the language of § 1981 is

clear: Section 1981 provides a cause of action for individ-

uals subjected to discrimination by private actors and

discrimination under color of state law, but does not

provide a cause of action for discrimination under color

of federal law.5 Because we find no basis for Lee’s

> We are unaware of any court that has held otherwise. Cf.

Espinueva v. Garrett, 895 F.2d 1164, 1165 (7th Cir.) (“Section 1981

does not apply to employment discrimination cases involving

the federal government. ...”), cert. denied, 497 U.S. 1005 (1990);

Williams v. Glickman, 936 F.Supp. 1, 4 (D.D.C. 1996) (“Weighing

the inconclusive legislative history and the statute’s general

statement of purpose against plain, unambiguous statutory

language, the Court must apply the plain language of the statute

and dismiss plaintiffs’ § 1981 claim because the plaintiffs do not

allege impairment of rights by nongovernmental discrimination

or impairment under color of state law.”); Carlton v. Ryan, 916 F.

Supp. 832, 838 (N.D.IIl. 1996) (stating that Ҥ 1981 does not

apply to the federal government”); La Compania Ocho, Inc. v. U.S.

Forest Serv., 874 F.Supp. 1242, 1250-51 (D.N.M. 1995) (noting that

“section 717 of Title VII constitutes the exclusive remedy for

federal government discrimination in the employment context,”

13a

argument that § 1981 should afford him relief, we affirm

the district court’s dismissal of that claim.

IV.

Accordingly, we AFFIRM the district court’s order

dismissing Lee’s claims for damages under Bivens and 42

U.S.C. § 1981.°

but holding that § 1981 applies against the federal government

for non-employment racial discrimination).

6 We note that the district court was incorrect to conclude

that it lacked subject matter jurisdiction, but was correct to

dismiss for failure to state a claim. See Bell v. Hood, 327 U.S. 678,

682-83, 66 S. Ct. 773, 776 (1946). We therefore affirm the district

court’s judgment. See Bonanni Ship Supply, Inc. v. United States,

959 F.2d 1558, 1561 (11th Cir. 1992) (“[T]his court may affirm the

district court where the judgment entered is correct on any legal

ground regardless of the grounds addressed, adopted or

rejected by the district court.”).

l4a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

KENNETH W. LEE, ) CIVIL ACTION NO.

cs Plaintiff, ) 5:96-CV-316-3

Civil Order File

Vol. 66, P. 6664

A

)

)

ROBERT C. HUGHES, JR. and

DANIEL C. LANFORD, JR, }

)

)

Defendants.

ORDER

(Filed Jan. 29, 1997)

The Court hereby VACATES its Order dated January

16, 1997 and enters the attached Order in its place. The

Court enters this new Order to correct typographical

errors and to make minor stylistic modifications in its

earlier Order. Also, the Court inadvertently omitted the

word “not” on page 8, line 6 of the earlier Order. The

final sentence of the first paragraph of page 8 should read

as follows: “Therefore, the Court’s construing the lan-

guage of § 1981 above as not covering claims against

federal actors would not constitute a repeal by implica-

tion in this Circuit.” The attached Order cures the omis-

sion in the earlier Order.

15a

It is SO ORDERED, this 24th day of January, 1997.

/s/ Frank M. Hull

FRANK M. HULL

UNITED STATES DISTRICT JUDGE*

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

KENNETH W. LEE, ) CIVIL ACTION NO.

Plaintiff, 5:96-CV-316-3

Vv.

ROBERT C. HUGHES, JR. and

DANIEL C. LANFORD, JR.,

Defendants.

i ee

ORDER

Plaintiff Kenneth W. Lee brings this employment dis-

crimination action against Defendants Robert C. Hughes,

Jr. and Daniel C. Lanford, Jr. under § 1981 and the United

States Supreme Court’s opinion in Bivens v. Six Unknown

Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388

(1971). This matter is before the Court on Defendants’

Motion to Dismiss [9-1].

* The Honorable Frank M. Hull, United States District

Court Judge for the Northern District of Georgia, is sitting by

designation.

l6a

I. FACTS

In 1983, Plaintiff was hired as a United States Proba-

tion Officer for the Middle District of Georgia. Plaintiff

served in this capacity until his employment was termi-

nated in 1996. During the entirety of Plaintiff's tenure,

Defendant Lanford was the Chief U.S. Probation Officer

for the Middle District of Georgia and Defendant Hughes

was the Deputy Chief U.S. Probation Officer for the Dis-

trict.

Plaintiff protested his termination, as well as poor

performance evaluations and a demotion which preceded

Plaintiff's termination, on the ground that they were

improperly motivated by Plaintiff’s race. Accordingly, the

Chief Judge appointed United States Magistrate Judge

Richard Hodge to investigate Plaintiff's allegation. Mag-

istrate Judge Hodge recommended approval of the termi-

nation of Plaintiff's employment. Chief Judge Duross

Fitzpatrick, relying on Magistrate Judge Hodge’s report

and recommendation, approved Plaintiff’s termination.

Plaintiff was notified of Chief Judge Fitzpatrick’s decision

by letter dated May 20, 1996.

On August 16, 1996, Plaintiff brought this action

alleging that Defendants violated his rights under the

equal protection component of the Fifth Amendment to

the United States Constitution and under § 1981. On

October 15, 1996, Defendants filed their Motion to Dis-

miss.

Ser ee ee ee + we

17a

Il. DISCUSSION

A. The Court Lacks Subject Matter Jurisdiction

Over Plaintiff's Claims

Defendants contend that the Court lacks subject mat-

ter jurisdiction over Plaintiff's claims because of the Civil

Service Reform Act of 1978 (“CSRA”). Specifically, Defen-

dants contend that Congress intended for the CSRA to be

the exclusive vehicle through which federal employees

could challenge or remedy adverse personnel decisions.

In the circumstances where the CSRA does not permit

administrative or judicial review of the adverse personnel

decision, Defendants contend that federal district courts

(and the Court of Claims) lack the subject matter jurisdic-

tion to inquire into the merits of that adverse personnel

decision. This Court agrees.

The United States Supreme Court noted in United

States v. Fausto, 484 U.S. 439 (1988), that the CSRA “com-

prehensively overhauled the civil service system,” id. at

443 (quoting Lindahl v. OPM, 470 U.S. 768, 773 (1985)),

creating an elaborate “new framework for evaluating

adverse personnel actions against [federal employees].”

Id. (quoting Lindahl, 470 U.S. at 774). The Supreme Court

emphasized that the CSRA “prescribes in great detail the

protections and remedies applicable to such action,

including the availability of administrative or judicial

review.” Id. In Fausto, the Supreme Court acknowledged

that “no provision of the CSRA gives nonpreference

members of the excepted service! the right to administra-

tive or judicial review of suspension for misconduct,” id.,

' The CSRA divides civil service employees into three main

classifications: (1) senior executive service; (2) competitive

18a

which was the adverse personnel decision in issue in that

case. Thus, the Supreme Court framed the issue to be

decided: “whether [Congress’s] withholding of remedy

was meant to preclude judicial review for those

employees, or rather merely to leave them free to pursue

the remedies that had been available before enactment of

the CSRA.” Id. at 443-44. In Fausto, the Supreme Court

decided that the former was true. Id. at 447.

Similar to the plaintiff in Fausto, Plaintiff here is a

nonpreference member of the excepted service. Thus, the

question becomes whether the CSRA gives a non-

preference member of the excepted service the right to

judicial review of an adverse personnel decision when

that employee claims that the adverse personnel decision

is constitutionally infirm or when the adverse personnel

decision purportedly violates a statutory right of the

employee. The Court answers this question in the nega-

tive, especially since Congress addressed the issue of

discrimination against federal employees within the

CSRA.

The CSRA forbids federal agencies from engaging in

certain “prohibited employment practice,” including

unlawful discrimination. 5 U.S.C. § 2302(b)(1)(A). The

remedy the CSRA established for this violation, however,

is that the employee may file a petition with the Office of

service; and (3) excepted service. The excepted service is further

divided into two categories: (a) preference eligibles; and (b)

nonpreference eligibles. Plaintiff here is a nonpreference

member of the excepted service.

19a

the Special Counsel (“OSC”) of the Merit Systems Protec-

tion Board (“MSPB”) challenging the prohibited employ-

ment practice. The OSC then investigates the charges and,

where appropriate, seeks remedial action. See 5 U.S.C.

§ 1206; Fausto, 484 U.S. at 446; Spagnola v. Mathis, 859 F.2d

223, 225-26 (D.C. Cir. 1988). The CSRA does not give non-

preference members of the excepted service the right to seek

judicial review of such adverse personnel decisions. Fausto,

484 U.S. at 443; Spagnola, 859 F.2d at 225.

Plaintiff does not challenge any of the foregoing.

Instead, Plaintiff argues only that the CSRA is irrelevant

here because he is not seeking judicial review of an

agency action, but rather is seeking relief against Defen-

dants in their individual capacities. However, the ques-

tion is not who is sued, and in what capacity. Rather, the

question is whether Plaintiff’s casting the adverse per-

sonnel decisions against him as constitutional in nature,

and as violations of § 1981, is only an attempt to have the

merits of the adverse personnel decisions against him

reviewed by this Court. See Royals v. Tisch, 864 F.2d 1565,

1568-69 (11th Cir. 1989). This clearly is the case here as

the very essence of Plaintiff's claims are that the adverse

personnel decisions that were made regarding his employ-

ment were because of his race. Therefore, the CSRA

applies and Plaintiff cannot avoid its preemptive effects,

irrespective of who Plaintiff has filed claims against and

in what capacity they are sued.

In sum, Congress enacted the CSRA to “replace the

haphazard arrangements for administrative and judicial

review of personnel action.” Faust, 484 U.S. at 444. Con-

sidering this purpose, and the elaborate nature of the

CSRA’s scheme, the Supreme Court, the Eleventh Circuit,

20a

and several other courts have held that the CSRA pre-

empts all other remedies which may have been availabie

to federal employees challenging adverse personnel deci-

sions. See Faust, supra (precluding claim based on Back

Pay Act); Stephens v. Department of Health and Human

Services, 901 F.2d 1571, 1576-77 (11th Cir. 1990) (preclud-

ing APA claims and Bivens claim); Royals, 864 F.2d at

1568-69 (rejecting Plaintiff’s attempt to recast his claims

in constitutional language); see also Ayrault v. Pena, 60

F.3d 346, 348 (7th Cir. 1995); LeBlanc v. United States, 50

F.3d 1025, 1030 (Fed. Cir. 1995); McAuliffe v. Rice, 966 F.2d

979, 981 (Sth Cir. 1992); Jones v. Tennessee Valley Authority,

948 F.2d 258, 264 (6th Cir. 1991) (precluding Bivens

claim); Saul v. United States, 928 F.2d 829, 840 (9th Cir.

1991) (precluding Bivens claim); Lombardi v. Small Business

Admin., 889 F.2d 959, 961 (19th Cir. 1989) (precluding

Bivens claim); Yokum v. United States, 887 F.2d 276, 280-81

(4th Cir. 1989) (precluding Bivens claim); McIntosh v.

Turner, 861 F.2d 524, 526-27 (8th Cir. 1988) (precluding

Bivens claims against federal officers); Diaz v. United

States, 853 F.2d 5, 9 (1st Cir. 1988).

Because the CSRA preempts all other remedies and

does not give Plaintiff, a nonpreference member of the

excepted service, a right to judicial review of any adverse

personnel decision, this Court does not have subject mat-

ter jurisdiction over Plaintiff's claims against Defendants.

Accordingly, the Court GRANTS Defendants’ Motion to

Dismiss Plaintiff’s Bivens claims and Plaintiff’s claims

under § 1981.

2la

B. Plaintiff's Complaint Fails To State A Claim

Upon Which Relief Can Be Granted

Alternatively, Plaintiff’s Complaint also fails to state

claims upon which relief can be granted.

1. Plaintiff's Bivens Claim

Plaintiff alleges that Defendants violated his rights

under the equal protection component of the Fifth

Amendment. Generally, plaintiffs suffering constitutional

injuries at the hands of federal officials may file Bivens

actions to redress their injuries. See Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S.

388 (1971). However, the Supreme Court has held that a

Bivens action will be defeated if Congress has provided

an alternative remedy or if there are special factors coun-

seling hesitation in the absence of clear action by Con-

gress. Id. at 396-97; see also Bush v. Lucas, 462 U.S. 367,

377-78 (1983); Carlson v. Green, 446 U.S. 14, 18-19 (1980);

Davis v. Passman, 442 U.S. 228, 245-47 (1979). The

Supreme Court emphasized in Schweiker v. Chilicky, 487

U.S. 412 (1988), that when Congress has provided what it

considers adequate remedies that the Court has not cre-

ated additional Bivens remedies, as follows:

[W]hen the design of a Government program

suggests that Congress has provided what it

considers to be adequate remedies for constitu-

tional violations that may occur in the course of

[the program’s] administration [we have not

created additional Bivens remedies].

Id. at 423.

22a

Congress has provided what it considers adequate

remedies for the violations Plaintiff alleges — the CSRA.

The Eleventh Circuit repeatedly has held that “the com-

prehensive statutory scheme established by Congress

relating to federal employment (CSRA) precludes the

maintenance of job related Bivens actions by federal

employees.” Stephens, 901 F.2d at 1577; McCollum v.

Bolger, 794 F.2d 602, 607 (1/th Cir. 1986), cert. denied, 479

U.S. 1034 (1987); Wells v. FAA, 755 F.2d 804, 810 (11th Cir.

1985); see also Bush v. Lucas, 462 U.S. 367, 388-90 (1983).

Here, Plaintiff's claims undeniably are job related. Thus,

the CSRA precludes the maintenance of Plaintiff’s Bivens

claims.

Accordingly, the Court GRANTS Defendants’

Motion to Dismiss Plaintiff’s Bivens claims against Defen-

dants.

2. Plaintiff's § 1981 Claim

Likewise, Plairitiff’s claims under § 1981 fail to state a

claim because § 1981 does not support a cause of action

for claims of employment discrimination arising under

color of federal law. Congress amended § 1981 when it

enacted the Civil Rights Act of 1991. Congress amended

§ 1981 to state that the rights protected by § 1981 are

protected against impairment by nongovernmental dis-

crimination and discrimination under color of state law,

as follows:

(c) Protection against impairment

The rights protected by this section are pro-

tected against impairment by nongovernmental

23a

discrimination and impairment under color of

State law.

42 U.S.C. § 1981(c). The statute, by its express terms,

applies only in cases of discrimination by a private actor,

or discrimination by a state actor. It does not apply in

cases of discrimination by a federal actor. See Williams v.

Glickman, 936 F. Supp. 1, 5 (D.D.C. 1996); Gallardo v. Board

of County Comm'rs, 857 F. Supp. 783, 787 (D. Kan. 1994).

Plaintiff argues that construing the language of

§ 1981(c) in this manner is inappropriate because it would

constitute what Plaintiff characterizes as a repeal by

implication. Plaintiff bases his argument on the fact that

prior to the Civil Rights Act of 1991, several authorities

permitted § 1981 claims against federal actors. However,

the Eleventh Circuit was not one of these authorities.

While neither party has cited, and the Court has not

discovered, any case where the Eleventh Circuit squarely

has addressed the issue whether a plaintiff can maintain a

§ 1981 action against a federal actor, there are Fifth Cir-

cuit and Eleventh Circuit cases which strongly suggest

that a plaintiff cannot.

For example, in Martin v. Heckler, 773 F.2d 1145 (11th

Cir. 1985), the Eleventh Circuit stated that “[a] suit

against the federal defendant acting solely under color of

federal law could not have been brought pursuant to any

of the statutes enumerated in section 1988.” Id. at 1152.

Section 1981 is one of the statutes enumerated in § 1988.

Also, in Williams v. Wood, 612 F.2d 982 (5th Cir. 1980), the

old Fifth Circuit stated that the court in that case did not

24a

have jurisdiction under 28 U.S.C. § 1343, the jurisdic-

tional section for § 1981 and § 1983, because any depriva-

tion in the case was under color of federal law. Id. at 984

n.1. Thus, the pre-Civil Rights Act of 1991 case law of this

circuit apparently did not permit plaintiffs to bring § 1981

claims against federal actors. Therefore, the Court’s con-

struing the language of § 1981 above as not covering

claims against federal actors would not constitute a

repeal by implication in this Circuit.

Moreover, to the extent Congress “repealed” any lan-

guage residing in § 1981 prior to its amendment, Con-

gress did not do so by implication. Rather, Congress

clarified the prior language of § 1981 by explicitly adding

new language stating that the rights protected by § 1981

are protected against impairment by nongovernmental

discrimination and discrimination under color of state

law.? In so doing, Congress did not repeal any language

2 In fact, Congress did not repeal any language in § 1981.

Prior to the enactment of the Civil Rights Act of 1991, § 1981

provided, in its entirety, as follows:

All persons within the jurisdiction of the United

States shall have the same right in every State and

Territory to make and enforce contracts, to sue, be

parties, give evidence, and to the the full and equal

benefit of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens,

and shall be subject to like punishment, pains,

penalties, taxes, licenses, and exactions of every kind,

and to no other.

42 U.S.C. § 1981 (1988). When Congress amended § 1981 in 1991,

it retained the above language and placed it in subsection (a) of

the amended statute. Congress then added new language to

§ 1981, including the language noted above in § 1981(c). Thus,

25a

of the prior § 1981 more so than it repealed prior judicial

interpretations of § 1981. “The courts frequently find

Congress to have done this.” Fausto, 484 U.S. at 453.

For all of the foregoing reasons, the Court GRANTS

Defendants’ Motion to Dismiss Plaintiff’s claims under

§ 1981 against both Defendants.

Il. CONCLUSION

For the foregoing reasons, the Court GRANTS

Defendants’ Motion to Dismiss [9-1] and hereby dis-

misses Plaintiff's Complaint.

It is SOQ ORDERED, this 24th day of January, 1997.

/s/ Frank M. Hull

FRANK M. HULL

UNITED STATES DISTRICT JUDGE*

Congress did not repeal any thing in § 1981, by implication or

otherwise. Congress merely added new language to the statute

to clarify against whom claims can be brought.

* The Honorable Frank M. Hull, United States District

Court Judge for the Northern District of Georgia, is sitting by

cesignation.

26a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

KENNETH W. LEE,

Plaintiff, CIVIL ACTION NO.

V. : 5:96-CV-316-3

ROBEKT C. HUGHES, JR. and

DANIEL C. LANFORD, JR.,

Defendants.

ORDER

(Filed Apr. 2, 1997)

This matter is before the Court on Plaintiff's Motion

to Alter, Amend, Vacate, and Set Aside Amended Judg-

ment [22-1]. The Court DENIES Plaintiff's Motion to

Alter, Amend, Vacate, and Set Aside Amended Judgment

for the reasons outlined below.

I. DISCUSSION

A. Civil Service Reform Act

In the Court’s Order filed on January 29, 1997, the

Court, as way of background, labeled Plaintiff as a non-

preference member of the excepted service. The Court

then stated that as a nonpreference member of the excep-

ted service, Plaintiff had a right to challenge his adverse

employment action by filing a petition with the Office of

Special Counsel (“OSC”) of the Merit Systems Protection

27a

Board. This was incorrect. Instead, Plaintiff was a prefer-

ence eligible member of the excepted service in the judi-

cial branch and did not have the right to file a petition

with the OSC.

Because of the Court’s misperception in this regard,

Plaintiff contends that the Court’s ruling that Plaintiff's

Bivens claim was preempted by the Civil Service Reform

Act (“CSRA”) should be set aside. The Court disagrees.

The Court’s mislabelling of Plaintiff’s federal

employee status was immaterial to its ruling. The opera-

tive fact for purposes of the Court's analysis was that the

CSRA does not provide Plaintiff the right to administra-

tive or judicial review of the merits of any adverse per-

sonnel decision. This fact, which Plaintiff does not

contest, is the only fact that matters because it is the

absence of any right to judicial review which deprives the

Court of subject matter jurisdiction over Plaintiff's Bivens

and § 1981 claims.!

1 In United States v. Fausto, 484 U.S. 439 (1988), the United

States Supreme Court noted that the CSRA did not eliminate

any statutory remedy the plaintiff in Fausto may have had under

the Back Pay Act, 5 U.S.C. § 5596. See Fausto, 484 U.S. at 453. The

Supreme Court noted that Congress knows how to repeal a

statute and generally does not do so silently or by implication.

However, the Supreme Court also noted that Congress /tas been

known to have implicitly repealed a legal disposition or judicial

interpretation of a statute. Id. Thus, while the Back Pay Act

remains an operative part of the integrated statutory scheme

Congress set up to protect civil servants, all other then existing

remedies, with the possible exception of any other non-repealed

express statutory remedy, are now preempted by the CSRA.

Thus, Plaintiff's Bivens claim is preempted.

As for Plaintiff’s § 1981 claim, the Court found that

Plaintiff's Complaint did not state a claim under § 1981 because

28a

After determining that Plaintiff has no right to judi-

cial review under the CSRA, the primary focus of the

Court’s analysis centered on whether the CSRA in fact

applies in this case and whether the CSRA’s not granting

a right to judicial review preempts Plaintiff’s Bivens and

§ 1981 claims. The Court’s determination that the CSRA

does apply and that it does [sic] preempts Plaintiff’s

claims remains unaltered, as does the Court's rejection of

Plaintiff's arguments to the contrary. Regardless of

whether any remedy is available under the CSRA for an

adverse personnel decision, that statute has “preempted

the field by ‘superseding preexisting remedies for all

federal employees.’ ” Ayrault v. Pena, 60 F.3d 346, 348 (7th

Cir. 1995); see also Royals v. Tisch, 864 F.2d 1565 (11th Cir.

1989).

Thus, while the Court mischaracterized Plaintiff's

federal employee status, the primary focus of the Court's

analysis remains unaltered and the result is the same.

Accordingly, the Court finds that setting aside the judg-

ment in this action is unwarranted.

B. Bivens

Also unaltered is the Court’s determination that

Plaintiff’s Bivens claim fails because the CSRA constitutes

a special factor counseling against creating a Bivens cause

of action in the federal employment context. Stephens v.

§ 1981 does not provide remedies for discrimination under color

of federal law. However, to the extent that any pre-CSRA courts

interpreted § 1981 to provide such a remedy, it also is now pre-

empted by the CSRA because any such remedy is not expressly

provided for in the statute.

GEE EE Sap EN Rat

29a

Department of Health and Human Servs., 901 F.2d 1571, 1577

(11th Cir. 1990). Moreover, Congress amended the Back

Pay Act, 5 U.S.C. § 5596, in 1990 specifically to provide

employees of the judicial branch with a backpay remedy

for “unjustified or unwarranted” personnel actions in

appropriate circumstances. 5 U.S.C. § 5596(b)(1). Such a

remedy is not precluded by the CSRA. United States v.

Fausto, 484 U.S. 439, 453 (1988). This remedy provided by

Congress also defeats Plaintiff's Bivens claim.?

-For the foregoing reasons, the Court DENIES Plain-

tiff’s Motion to Set Aside the Judgment.

Il. CONCLUSION

The Court VACATES the portion of the Cotrt’s

Order filed on January 29, 1997 mislabeling Plaintiff’s

federal employee status and stating that Plaintiff had a

right to file a petition with the OSC. The Court DENIES

Plaintiff's Motion to Alter, Amend, Vacate, and Set Aside

the Amended Judgment [22-1].

2 Plaintiff does not move to set aside the Court’s judgment

with respect to Plaintiff’s § 1981 claim.

30a

It is SO ORDERED, this Ist day of April, 1997.

/s/ Frank M. Hull

FRANK M. HULL

UNITED STATES DISTRICT JUDGE*

* The Honorable Frank M. Hull, United States District

Court Judge for the Northern District of Georgia, is sitting by

designation.

3la

APPENDIX D

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. amend. V:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any

criminal case to be a witness against himself,

nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation.

Federal Statutes:

Title VII of Civil Rights Act, as amended:

Section 717 (a), as added by Equal Employment

Opportunity Amendments of 1972, Pub.L. 92-261, 42

U.S.C. §2000e(16)(a):

All personnel actions affecting employees or

applicants for employment (except with regard

to aliens employed outside the limits of the

United States) in military departments as

defined in section 102 of title 5, United States

Code, in executive agencies as defined in section

105 of title 5, United States Code (including

employees and applicants for employment who

are paid from nonappropriated funds), in the

United States Postal Service and the Postal Rate

Commission, in those units of the Government

of the District of Columbia having positions in

32a

the competitive service, and in those units of the

legislative and judicial branches of the Federal

Government having positions in the competitive

service, and in the Library of Congress shall be

made free from any discrimination based on

race, color, religion, sex, or national origin.

Congressional Accountability Act of 1995, Pub.L. 104-1,

109 Stat. 3 et. seq.:

Section 102, AppLiCATION or Laws.

(a) Laws Mape Appuicas.e — The following laws

shall apply, as prescribed by this Act, to the

legislative branch of the Federal Govern-

ment:

* * +

(2) Title VII of the Civil Rights Act of 1964

(42 U.S.C. §2000e et. seq.)

* * *

Section 201. RiGHts AND Protections UNpeR TITLe

VII oF tHe Crvm RicHts Act or 1964, THE AcE

DiscRIMINATION IN EMPLOYMENT Act OF 1967, THE

REHABILITATION Act OF 1973, AND TitLe I OF THE

AMERICANS WITH Disasiuities Act or 1990.

* * +

(c)(1) Section 717 of the Civil Rights Act of

1964 — Section 717(a) of the Civil Rights

Act of 1964 (42 U.S.C. §2000e-16) is

amended by -

(A) striking “legislative and”;

(B) striking “branches” and inserting

“branch”; and

33a

(C) inserting “Governmental Printing

Office, the General Accounting

Office, and the” after “and in the”.

. * *

Section 505. Jupicia BRANCH COVERAGE STUDY

The Judicial Conference of the United States

shall prepare a report for submission by the

Chief Justice of the United States for the Con-

gress on the application to the judicial branch of

the Federal Government of -

(1)

(10)

the Fair Labor Standards Act of 1938 (29

9.0. 208 et. $04.7;

Title VII of the Civil Rights Act of 1964 (42

U.S.C. 2000e et. seq.);

the Americans With Disabilities Act of

1990 (42 U.S.C. 12101 et. seq.);

the Age Discrimination in Employment

Act of 1967 (29 U.S.C. 621 et. seq.);

the Family and Medical Leave Act of 1993

(29 U.S.C. 2611 et. seq.);

the Occupational Safety and Health Act of

1970 (29 U.S.C. 651 et. seq.);

Chapter 71 (relating to Federal service

labor-management relations) of Title 5,

United States Code;

the Employee Polygraph Protection Act of

1988 (29 U.S.C. 2001 et. seq.);

the Worker Adjustment & Restraining

Notification Act (29 U.S.C. 2101 et. seq.);

the Rehabilitation Act of 1973 (29 U.S.C.

701 et. seq.); and

34a

(11) Chapter 43 (relating to veterans’ employ-

ment & re-employment) of Title 38, United

States Code.

The report shall be submitted to Congress not

later than December 31, 1996, and shall include

any recommendations the Judicial Conference

may have for legislation to provide the

employees of the judicial branch the rights, pro-

tections, and procedures under the listed laws,

including administrative and judicial relief, that

are comparable to those available to employees

of the legislative branch under titles I thru IV of

this Act.

The Civil Service Reform Act of 1978:

5 U.S.C. §2302

(a)(1) For purposes of this Title, “prohibited

personnel practice” means any action

described in subsection (b) of this sec-

tion.

* * *

(b) Any authority to take, direct others to

take, recommend, or approve any per-

sonnel action, shall not, with respect to

such autherity —

(1) discriminate for or against any

employee or applicant for employ-

ment —

(A) on the basis of race, color, reli-

gion, sex, or national origin, as

prohibited under Section 717

of the Civil Rights Act of 1964

(42 U.S.C. §2000e-16); . . .

35a

Civil Rights Act of 1866; as amended by Pub.L. 102-166,

Title I, §101, 105 Stat. 1071:

42 U.S.C. §1981(c)

The rights protected by this section are pro-

tected against impairment by nongovern-

ment discrimination and impairment under

color of State law.