Opposition Brief — Lee v. Hughes

No. 98-554

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1998

KENNETH W. LER, PETITIONER

ROBERT C. HUGHES, JR., AND DANIEL C. LANFORD, JR.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE l "NITED STA TES {‘H] ‘RT { FE APPE ALS F¢ »R

THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Fee cord

FRANK W. HUNGER

Assistant Attorne y General

BARBARA L. HERWIG

ROBERT M. LOEB

Attorne Ys

Departme nt of Justice

Washington, D.C. 20530-0001

(202) 514-2217

aes a,

QUESTION PRESENTED

Whether a preference-eligible employee in the

excepted service of the Judicial Branch may bring an

action under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), to

recover monetary damages from his supervisors for

termination of his employment.

(I)

LO AMER AR te ee me aie a»

TABLE OF CONTENTS

Page

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| en RY ne on SOP RETOR, OEE aa Oa Oe 6

SPIT celine besicniitigciiicies aad cases ol 14

TABLE OF AUTHORITIES

Cases:

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) cecccccccsccs-cccooeeeee 2.6

Bush v. Lucas, 462 U.S. 367 (1988) ..ccccccccsccosseoese 7,8, 9, 11, 12

Carlson v. Green, 446 U.S. 14 (1980) ...cccccccccecssesssosesecoseseeee .

Chappell v. Wallace, 462 U.S. 296 (1983) ..cccccecsscsssesseseeees 7

Davis v. Passman, 442 U.S. 228 (1979) c.cccccceccecceccessecocssees 6, 11

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

denied, 118 S. Ct. 1889 (1998) ......cccccccccccsccocecesceseceseosesese 12,13

FDIC v. Meyer, 510 U.S. 471 (1994) .ccccccccccccsecesosesesecesesesse, 7

Feit v. Ward, 886 F.2d 848 (7th Cir. 1989) cocccccccococo.-...... 12

Lindahl v. OPM, 470 U.S. 768 (1985) ...ccccccccsccscssosecsocesoeeees 7

Lombardi v. Small Bus. Admin., 889 F.2d 959

Pn SMEs: ONEY eth teigdhieenis hastinndnnisiedlschitberbncbetensiashiacepmasansacan 12

Saul v. United States, 928 F.2d 829 (9th Cir.

| ERR R LIEN IO EES SONOS PON ORE 5 el a OA 12

Schweiker v. Chilicky, 487 U.S. 412 (1988) cocccccccccosssssse 7.8.9

United States v. Fausto, 484 U.S. 489 (1988) oe... 7

Constitution and statutes:

eB at 1, oa RES SEE ee re ea 6

Administrative Office of the United States Courts

Personnel Act of 1990, Pub. L. No. 101-474, 104

as eaeaiciauvbietesbiencnehreavictdieiinssteeretbtinabiteninetichesdsenssinanancoscccene 9

Fils Bee Cet ROUT = IID ecicasccssnsascuninneiessdianassinntianinsssines 10

Sn PI ic a 10

§ 9, 104 Stat. 1098

POORER OEE SEETHER EEEETEESES SES ERESEEE ESE OSES SOR OEEEEEOS

IV

Statutes—Continued: Page

Annual and Sick Leave Act of 1951, 5 U.S.C. 6301(2) ........ 9

Back Pay Act of 1966, 5 U.S.C. 5596 et seq.:

sb Bc Fe a EEL TEAL RRA 9

Bi ce ER SI ID RO TLS EN RTI ee 9

Civil Service Reform Act of 1978, Pub. L. No.

SO-454, 2 Stat. TTTG so ccccscccseercsccanosaveces son 2

Congressional Accountability Act of 1995, 2 U.S.C. 1301

et seg (Supp. IT 1996) .......cccccccssssscesesees ominauhibbinhbesisseseienn 11

2 U.S.C. 1434 (Supp. IT 1996) ......c.cccccscoscosesssesosssssesoeeeese, 11

Family and Medical Leave Act of 1998, 5 U.S.C.

SAUNSRA EF ipsihailessseitatnbilnniibehibbipdajouibianlida tke ce i 9

5 U.S.C, 2101-2105 (1994 & Supp. IT 1996) ..cccccccccccssscseecoose. 7

DU ERi RONG? cnsettadisamabidisniae me ie ot 9

5 U.S.C. 2105 (1994 & Supp. IT 1996) ....cccccccccscsssscssscsecsossenee. 9

SD IBI A, BI pisciiicasesnstasnaibdsaciateeta ae a 7

5 U.S.C, 3132 (1994 & Supp. IT 1996) c.cccccccsccsssscssessesecoeesosses 7

5 U.S.C. 5595 (1994 & Supp. IT 1996) c..cceecccccccsscsssessessosesossee 9

AF TOA DD icsidnnsnaresiac cia se) 9

0) Ts SR EICIRY nesetsciuiciincdiidatanscdiciaieacaiin costes 9

5 U.S.C, 7501-7703 (1994 & Supp. IT 1996) ..cccccccccccsssessccossee 8

OU eG cedemianiniitenah ace eos 9

© idan OPM) shipctaialiiesnonioetib cc 9

S idee MUEL TRIAD sinicnssnieeidaseibaedncsine cae 9

Me Sipe MD teciisnniepicspitenbciaeatbisiddica cis Geek 3 2,8

BO SF bis GAO sintinicmenitundnceniceinlisiaim bein ie ee 9

SD SS ire ROE: Nencttaeniinitinsnenidingica ig digg Bi ac A 4

Miscellaneous:

H.R. Rep. No. 770, 101st Cong., 2d Sess. Pt. 1 (1990) ........ 10

Jn the Supreme Court of the United States

OCTOBER TE RM, 1998

No. 98-554

KENNETH W. LEE, PETITIONER

v.

ROBERT C, HUGHES, JR., AND DANIEL C. LANFORD, JR.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF Al "PEALS FOR

THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-13a)

is reported at 145 F.3d 1272. The opinions of the

district court (Pet. App. 14a-30a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 9, 1998. The petition for writ of certiorari was filed

on October 1, 1998. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1),

(1)

2

STATEMENT

Petitioner, a former United States Probation Officer

for the Middle District of Georgia, brought a federal

suit against his supervisors for damages on account of

the termination of his employment, relying in part on

this Court’s decision in Bivens v. Sic Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971). The district court dismissed petitioner’s suit,

holding that Congress’s decision to provide limited

remedies for federal employees under the Civil Service

Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92

Stat. 1111 (codified at various sections of Title 5 of the

United States Code), precludes the judiciary from

creating a Bivens remedy. See Pet. App. 14a-30a. The

court of appeals affirmed the district court’s decision.

Id. at la-13a.

1. Congress has authorized the United States Dis-

trict Courts to appoint and remove probation officers.

See 18 U.S.C. 3602(a). In 1983, the United States Dis-

trict Court for the Middle District of Georgia appointed

petitioner as a probation officer. Pet. App. 2a. Respon-

dent Daniel Lanford, who was Chief U.S. Probation

Officer, and respondent Robert Hughes, who was Dep-

uty Chief U.S. Probation Officer, supervised petitioner.

Id. at 2a, 16a. After petitioner received poor perform-

ance evaluations, the district court demoted petitioner

and ultimately terminated his employment. /d. at 16a.

Petitioner protested his termination on the ground

that the decision was improperly motivated by race,

and he sought redress through the Equal Employment

Opportunity (EEO) Plan for the Middle District of

Georgia. Pet. App. 2a. 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

3

Conference of the United States. /d. at 2an.l. A

complainant may initiate an action under the EEO Plan

by filing a timely discrimination complaint with the

EEO Coordinator. The EEO Coordinator or a court

appointed investigator makes an investigation, consults

with the parties, and prepares a report “identifying the

issues, describing his or her findings and recommenda-

tions, explaining what resolution, if any, was achieved,

and defining what corrective actions, if any, will be

undertaken.” Jd. at 2a-3a. If the complainant objects to

the report, the complainant may request the chief judge

of the district court to review the matter. /d. at 3a.

The chief judge may conduct any additional investiga-

tion deemed necessary, interview the parties or other

persons, and determine whether to hold a formal hear-

ing on the matter. Jbid.

The chief judge appointed a magistrate judge to

investigate petitioner’s discrimination claim. Pet. App.

16a. After completing his investigation, the magistrate

judge submitted a report recommending that the chief

judge reject petitioner’s discrimination claim. J[hid.

Petitioner’s counsel, who was provided with a copy of

the report, submitted written objections.’ After consid-

ering the magistrate’s report and recommendations and

' Under the EEO Plan, an aggrieved employee may seek

review of the report and the chief judge may hold a formal hearing,

including the cross-examination of witnesses. See C.A. Supp. App.

Doc. 2 (EEO Plan, § 7.04(D\(3)(c)). In this case, the chief judge met

with petitioner’s counsel and said he was “open to whatever

appeal, whatever tact [sic] you wished to take.” C.A. Supp. App.

Does. 5, 6. Petitioner’s counsel did not request a formal hearing at

that meeting and instead submitted a three-page letter to the chief

judge objecting to the magistrate judge’s report. C.A. Supp. App.

Doc. 7.

4

petitioner’s objections, the chief judge approved peti-

tioner’s termination. /hid.

2. Petitioner filed suit in district court for compensa-

tory and punitive damages against respondents in their

individual capacities. Petitioner asserted a Bivens

claim and a claim under 42 U.S.C. 1981, alleging that he

was terminated on the basis of race. The district court

granted respondents’ motion to dismiss and entered

judgment in their favor. The district court held, among

other things, that the CSRA sets out the appropriate

procedures and remedies for resolving federal employ-

ment disputes and that the CSRA precludes the courts

from creating additional Bivens remedies for damages

from the employee’s supervisors. Pet. App. 17a-22a.°

Petitioner moved the district court to alter or amend

its judgment, but the court entered an order denying

that motion. Pet. App. 26a-30a. The court acknowl-

edged that its prior onmicn nad incorrectly stated that

petitioner was a “nonpreference member of the ex-

cepted service” and that petitioner had a right under

the CSRA to challenge the adverse employment action

by filing a petition with the Office of Special Counsel of

the Merit Systems Protection Board. Jd. at 26a-27a.

Instead, petitioner was “a preference eligible member

of the excepted service in the judicial branch and did

not have the right to file a petition with the [Office of

Specia! Counsel].” Jd. at 27a. The court nevertheless

rejected petitioner’s contention that its misperception

* The district court also concluded that petitioner’s Section

1981 claimed was without merit because the statute does not apply

to actions taken under color of federal law. Pet. App. 22a-25a. The

court of appeals affirmed this ruling on appeal (id. at 1la-13a), and

petitioner does not challenge that holding in his petition to this

Court.

———— ee eee"

5

of petitioner’s employment classification justified set-

ting aside the court’s ruling. Jd. at 27a-29a.

The district court stated that “[t]he operative fact for

purposes of the Court’s analysis was that the CSRA

does not provide [petitioner] the right to administrative

or judicial review of the merits of any adverse per-

sonnel decision.” Pet. App. 27a. The district court

concluded that Congress’s decision to provide federal

employees with certain CSRA remedies, but to limit

those statutory remedies in other respects, “constitutes

a special factor counseling against creating a Bivens

cause of action in the federal employment context.” Jd.

at 28a. The district court additionally noted that:

Congress amended the Back Pay Act, 5 U.S.C.

§ 5596, in 1990 specifically to provide employees of

the judicial branch with a back pay remedy for “un-

justified or unwarranted” personnel actions in ap-

propriate 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

[petitioner’s] Brvens claim.

Id. at 29a.

3. The court of appeals affirmed the district court’s

judgment. Pet. App. la-13a. That court rejected peti-

tioner’s argument that he is entitled to a Bivens rem-

edy. Jd. at 4a-lla. The court reasoned that Congress

had enacted the CSRA to provide a comprehensive

remedial scheme for federal employees’ employment-

related claims and that the CSRA does not provide an

administrative or judicial remedy to preference eligible

employees of the excepted service who work in the

Judicial Branch. Id. at 4a-5a. The court of appeals rea-

soned that Congress had made that decision deliber-

6

ately and that it would be inappropriate for the courts

to create a Bivens remedy in the face of Congress’s

action. Jd. at 4a-lla. “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 doctrine, courts should be hesitant to provide

an aggrieved plaintiff with a remedy where Congress

intentionally has withheld one.” Jd. at 9a.

ARGUMENT

The petition for a writ of certiorari should be denied.

The court of appeals’ conclusion that the CSRA pre-

cludes the creation of a Bivens remedy here is correct

and consistent with this Court’s decisions. There is no

conflict among the courts of appeals on that issue

warranting the Court’s review.

1. This Court decided in Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), that a plaintiff who alleged injury from

violation of his Fourth Amendment rights could seek

money damages against the responsible federal officers

for the constitutional violation. The Court later ex-

tended that remedy to other types of constitutional

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

(denial of due process); Carlson v. Green, 446 U.S. 14

(1980) (cruel and unusual punishment). The Court

recognized that the judicial creation of a monetary

remedy for constitutional violations was appropriate in

those situations because Congress had not created a

remedial mechanism to address the alleged constitu-

tional violations and there were “no special factors

counselling hesitation in the absence of affirmative

action by Congress.” Bivens, 403 U.S. at 396-397. See

Davis, 442 U.S. at 245-247; Carlson, 446 U.S. at 18-20.

En RR RE Oe FREES, oer ORE ee eR ee

7

This Court’s “more recent decisions have responded

cautiously to suggestions that Bivens remedies be ex-

tended into new contexts.” Schweiker v. Chilicky, 487

U.S. 412, 421 (1988). See FDIC v. Meyer, 510 U.S. 471,

484 (1994). In those situations in which Congress has

established a comprehensive statutory scheme to re-

solve disputes with the federal government, the Court

has concluded that a Bivens remedy is inappropriate,

even if the remedial scheme does not provide complete

relief for the alleged constitutional injury. See

Schweiker, 487 U.S. at 422-423; Bush v. Lucas, 462 U.S.

367, 388-390 (1983). The Court has explained that the

“the concept of ‘special factors counselling hesitation in

the absence of affirmative action by Congress’ has

proved to include an appropriate judicial deference to

ndications that congressional inaction has not been

inadvertent.” Schweiker, 487 U.S. at 423. See Chappell

v. Wallace, 462 U.S. 296, 298 (1983). “When the design

of a Government program suggests that Congress has

provided what it considers adequate remedial mecha-

nisms for constitutional violations that may occur in the

course of its administration,” this Court has held that it

is inappropriate for a court to afford “additional Bivens

remedies.” Schweiker, 487 U.S. at 423.

As this Court has recognized, the CSRA “compre-

hensively overhauled the civil service system,” Lindahl

v. OPM, 470 U.S. 768, 773 (1985), and created an elabo-

rate “new framework for evaluating adverse personnel

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

CSRA classifies federal employees according to their

responsibilities and qualifications. See United States v.

Fausto, 484 U.S. 489, 441 n.1 (1988); 5 U.S.C. 2101-2105

(1994 & Supp. II 1996), 2108, 3132 (1994 & Supp. II

1996). It then specifies, for employees in each classifica-

tion, the employment protections, remedies, and ave-

8

nues for administrative and judicial review of adverse

personnel actions. See, e.g., 5 U.S.C. 7501-7703 (1994 &

Supp. IT 1996).

In this case, petitioner, who is a preference-eligible

member of the excepted service in the Judicial Branch,

enjoys a number of employment benefits under the

CSRA and related statutes, but he does not have the

statutory rights provided to most other federal em-

ployees to challenge an adverse personnel action. The

fact that Congress has not extended the same CSRA

rights to petitioner and other judicial branch employees

does not mean, however, that petitioner may assert a

Bivens claim. Congress deliberately excluded court

personnel from those provisions of the CSRA based on

a policy judgment that took into account both the

Judicial Branch’s need for independence in personnel

management and the court personnel’s employment

rights. Congress’s judgment on that matter is a “spe-

cial factor[{ ] counselling hesitation” that weighs against

creating a Bivens remedy. See Schweiker, 487 U.S. at

423, 426-429; Bush, 462 U.S. at 372-373 & n.9.

Congress has struck a carefully considered balance

that is sensitive to the interests of the Judicial Branch.

In the case of probation officers, Congress granted the

district courts the authority to appoint and remove

those employees, 18 U.S.C. 3602(a), and it established

that a paid probation officer may be removed by the

district court only “for cause.” Jbid. The Judicial Con-

ference has, in turn, directed that each district court

adopt an EEO Plan that, among other things, provides

a mechanism by which probation officers, as well as

other court personnel, may seek redress of discrimina-

tion complaints. Pet. App. 2a-3a. Under the Back Pay

Act of 1966, a court employee who successfully invokes

that administrative remedy may be entitled to back pay

9

plus interest. See 5 U.S.C. 5595-5596 (1994 & Supp. Il

1996).*

Congress’s decision to limit the rights of court

employees to challenge adverse personnel actions in

this way was not “inadvertent.” Schweiker, 487 U.S. at

423. Congress elected to provide probation officers and

other court appointed personnel many benefits that are

available to other federal employees, including sever-

ance pay, 5 U.S.C. 5595 (1994 & Supp. II 1996), retire-

ment benefits, 5 U.S.C. 8331(1)(A), life insurance, 5

U.S.C. 8701(a)(1), health insurance, 5 U.S.C. 8901(1)(A),

and coverage under the Annual and Sick Leave

Act of 1951, 5 U.S.C. 6301(2), and the Family and Medi-

cal Leave Act of 1993, 5 U.S.C. 6381(1). Congress’s

decision, nevertheless, to provide more circumscribed

rights to challenge adverse personnel actions reflects

conscious sensitivity to the personnel management

interests of the Judicial Branch, which in turn is a

“special factor{] counselling hesitation.” Schweiker, 487

USS. at 423; Bush, 462 U.S. at 380, 388-390.

Congress’s sensitivity to the Judicial Branch’s em-

ployment interests is especially clear in light of its

enactment of the Administrative Office of the United

States Courts Personnel Act of 1990 (AO Act), Pub. L.

No. 101-474, 104 Stat. 1097. The AO Act placed em-

ployees of the Administrative Office of the United

States Courts outside of the coverage of the CSRA for

purposes of adverse personnel actions and directed the

Administrative Office to design its own administrative

’ The Back Pay Act of 1966 defines an “employee” as “an

individual employed in or under an agency,” and it defines an

“agency” to include the federal courts. See 5 U.S.C. 5595(a)(1) and

(2)(A), 5596(a); 28 U.S.C. 610; see also 5 U.S.C. 2104(a), 2105 (1994

& Supp. IT 1996).

10

remedies. § 3(a), 104 Stat. 1097-1098. In doing so, Con-

gress recognized that it was necessary for the Judicial

Branch to have its own “independent, self-contained

personnel management system.” H.R. Rep. No. 770,

101st Cong., 2d Sess. Pt. 1, at 5 (1990). Petitioner is not

an employee of the Administrative Office and therefore

is not entitled to invoke the specific administrative

remedies that the Administrative Office created

through that Act. Nevertheless, Congress recognized

that the federal courts were already “mostly free” of

Executive Branch supervision over employment mat-

ters, and the administrative remedies that petitioner

and other Judicial Branch employees are entitled to

invoke through the court-adopted EEO Plans are

analogous to the procedures envisioned under the AO

Act. Ibid.

Congress described the AO Act as establishing a

“comprehensive personnel system” for Administrative

Office employees, H.R. Rep. No. 770, swpra, at 1, and it

stated that this personnel system is similar to that

available to “the rest of the judicial branch,” id. at 5.

The mandated procedures, like the EEO Plans, provide

a mechanism for resolving employment disputes involv-

ing claims of discrimination. See § 3(a)(5) and (9), 104

Stat. 1097-1098; H.R. Rep. No. 770, supra, at 5, 7-8. In

both situations, Congress has enabled the employee to

seek a back pay remedy, under the Back Pay Act of

1966, in conjunction with the administrative review

scheme. H.R. Rep. No. 770, supra, at 12. Thus, Con-

gress was aware of the type of remedies being afforded

to judicial employees for employment discrimination

through the EEO plan system, expressed its approval

11

of those remedies, and augmented them through revi-

sions to the Back Pay Act of 1966.*

The CSRA, coupled with other congressional actions,

including enactment of the AO Act and amendment of

the Back Pay Act of 1966, accordingly manifests Con-

gress’s policy determination that Judicial Branch per-

sonnel, such as petitioner, who seek to challenge ad-

verse personnel action are to do so through the Judicial

Branch’s administrative remedies. Compare Bush, 462

U.S. at 388-390. Although petitioner had no statutory

review rights under the CSRA, he has meaningful

remedies. The court of appeals correctly concluded

that, “[iJn light of the comprehensive nature of the

CSRA,” petitioner “is precluded from asserting a

Bivens claim in an attempt to recover damages for the

constitutional violations alleged here.” Pet. App. lla.’

4 Congress demonstrated further deference to the Judicial

Branch in the Congressional Accountability Act of 1995, in which

Congress applied 11 federal employment and workplace laws to

the Legislative Branch of the federal government. 2 U.S.C. 1301 et

seq. (Supp. II 1996). Congress did not extend those laws to the

Judicial Branch, but rather required the Judicial Conference to

prepare a report for Congress, including “any recommendations

the Judicial Conference may have for legislation to provide to em-

ployees of the judicial branch the rights, protections, and proce-

dures under the listed laws.” 2 U.S.C. 1434 (Supp. IT 1996).

* The court of appeals correctly concluded that petitioner’s

reliance upon Davis v. Passman, 442 U.S. 228 (1979), is misplaced.

In Davis, the Court permitted a former congressional staff mem-

ber to bring a Bivens action against a congressman alleging uncon-

stitutional discrimination on the basis of sex. The Court did not

address the preclusive effect of the CSRA, which Congress had

enacted only a few months before Davis was decided. Pet. App. 8a.

Since that time, the Court has stated that its decision in Davis

rested on the absence of any equitable or monetary remedy for the

terminated staff member. See Bush, 462 U.S. at 376-377 & n.13.

In this case, there is an elaborate administrative review scheme

12

2. Petitioner is also mistaken in contending that the

courts of appeals’ decision in this case gives rise to a

conflict among the court of appeals warranting this

Court’s review. The court of appeals’ decision is con-

sistent with other circuit court decisions holding that

the CSRA is a comprehensive statute that precludes

Bivens claims even in those situations in which it does

not provide review for a particular category of em-

ployee or claim. See Saul v. United States, 928 F.2d

829, 840 (9th Cir. 1991) (CSRA “precludes even those

Bivens claims for which the act prescribes no alterna-

tive remedy”); Lombardi v. Small Bus. Admin., 889

F.2d 959, 961 (10th Cir. 1989) (decisions in Fausto and

Schweiker weigh against creating “a Bivens remedy in

a Federal employment action even if no remedy at all

has been provided by the CSRA”); Feit v. Ward, 886

F.2d 848, 855-856 (7th Cir. 1989) (withdrawing as con-

trary to Schweiker a plurality opinion allowing a dis-

charged employee who had no remedy under the CSRA

to bring a Bivens action).

Petitioner contends that the court of appeals’ decision

conflicts with Duffy v. Wolle, 123 F.3d 1026 (8th Cir.

1997), cert. denied, 118 S. Ct. 1839 (1998). In that case,

and the opportunity to obtain both equitable and monetary relief

(back pay with interest). That important difference makes the

reasoning of Davis inapplicable here. Indeed, Justice Marshall’s

concurring opinion in Bush explicit:v endorsed the Back Pay Act of

1966 remedy as an adequate forn. of relief that forecloses a

constitutional Bivens money damage action. See 462 U.S. at 390-

391 (Marshall, J., concurring) (“Although petitioner may be correct

that the administrative procedure created by Congress, unlike a

Bivens action, does not permit recovery for loss due to emotional

distress and mental anguish, Congress plainly intended to provide

what it regarded as full compensatory relief when it enacted the

Back Pay Act of 1966.”) (footnote omitted).

13

the Eighth Circuit held that a court-adopted EEO Plan,

standing alone, did not preclude a probation officer

from asserting a Bivens sex discrimination claim

against the judges who elected not to promote him to

the position of Chief Probation Officer, id. at 1033, but

ultimately affirmed the district court’s grant of

summary judgment in favor of the defendants, id. at

1040-1041. As the court of appeals in this case

observed, it appears that “the defendants in Duffy

never suggested that the CSRA preempted plaintiffs

claim, but rather arguca only that plaintiff’s Bivens

claim should have been dismissed because the local

EEO Plan provided plaintiff with a remedy.” Pet. App.

10a n.4. Because the Eighth Circuit did not address the

CSRA’s effect, Duffy does not conflict with the court of

appeals’ decision in this case. bid.

In addition, the Eighth Circuit appeared to rely on

the defendants’ failure to “present{] * * * support” for

the conclusion that the remedial scheme available to

judicial employees did not result from congressional

inadvertence. Duffy, 123 F.3d at 1034-1035. As we

explain above, there is ample indication that Congress

deliberately limited the remedies available to judicial

personnel for adverse personnel actions. The Eighth

Circuit also appeared to believe that there were no

statutory remedies available to Judicial Branch employ-

ees. Ibid. As discussed above, judicial employees may

seek a remedy under the Back Pay Act of 1966 in con-

junction with the Judicial Branch’s administrative

process for addressing discrimination complaints.

In any event, review of the issue presented here

would be premature. At this junctuse, only the Eighth

and Eleventh Circuits have specifically addressed

whether probation officers are entitled to a Bivens

remedy for adverse personnel actions, and the Eighth

14

Circuit’s consideration of the matter was based on

incomplete arguments and incorrect assumptions. The

Court would plainly benefit from further consideration

of the issue in the courts of appeals. Currently, the

issue is pending in at least one other court of appeals.

See DeMello v. Ney, No. 97-15205 (9th Cir. (filed Nov.

5, 1998)); Blankenship v. McDonald, No. 97-35898 (9th

Cir. (argued Dec. 10, 1998)). The question presented

here does not warrant this Court’s review at this

juncture.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

BARBARA L. HERWIG

ROBERT M. LOEB

Attorneys

JANUARY 1999