Opposition Brief — Blankenship v. McDonald

KATHRYN I. BLANKENSHIP, PETITIONER

Vv.

ALAN A. MCDONALD, JUDGE,

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF WASHINGTON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Acting Assistant Attorney

General

MARLEIGH DOVER

ROBERT M. LOEB

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

; a ‘ : 40600

5) ee Oe | cd

No. 99-672

f

QUESTIONS PRESENTED

1. Whether petitioner stated a claim under 42 U.S.C.

1985(2) of a conspiracy to injure a party or witness on

account of testimony before a “court of the United

States,” when she was not a party to the proceeding at

issue, and the proceeding was an administrative hear-

ing.

2. Whether an employee 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), against a district court clerk and judge regard-

ing the termination of her employment, even though

Congress has established a comprehensive remedial

scheme for job-related disputes involving federal em-

ployees under which judicial branch employees have

only limited remedies.

(1)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction 1

Statement

Argument 4

Conclusion .. 16

TABLE OF AUTHORITIES

Cases:

Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) .ccsrssssssssss.. passim

Brever v. Rockwell Int'l Corp., 40 F.3d 1119 (10th

Cir. 1994) 6

Bush v. Lucas, 462 U.S. 367 (1988) ...cceccscsssoe. 4, 8,9, 10, 138, 14

Carlson v. Green, 446 U.S. 14 (1980) 8

Carter v. Church, 791 F. Supp. 298 (M.D. Ga. 1992) ....... 6

Dawid v. United States, 820 F.2d 1088 (9th Cir. 1987) .... 4, 5-6

Davis v. Passman, 442 U.S. 228 (1979) 8,13

Deubert v. Gulf Fed. Sav. Bank, 820 F.2d 754 (5th

Cir. 1987) 6

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

denied, 523 U.S. 1187 (1998) 14, 15

FDIC v. Meyer, 510 U.S. 471 (1994) 8

Graves v. United States, 961 F. Supp. 314 (D.D.C.

1997) 6

Guercio v. Brody, 814 F.2d 1115 (6th Cir. 1987) .............. 15

Heffernan v. Hunter, 189 F.3d 405 (3d Cir. 1999) ........... 6

Kimble v. D.J. McDuffy, Inc., 648 F.2d 340 (5th

Cir.), cert. denied, 454 U.S. 1110 (1981) 6

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

denied, 119 S. Ct. 1026 (1999) 5, 7, 9, 18, 14

Lindahl v. OPM, 470 U.S. 768 (1985) 9

(IID)

IV

Cases—Continued: Page

Morast v. Lance, 807 F.2d 926 (11th Cir. 1987) ................ 6

Rylewicz v. Beaton Servs., Ltd., 888 F.2d 1175 (7th -

Cir. 1989) 6

Schweiker v. Chilicky, 487 U.S. 412 (1988) ........s0000 3, 8, 9, 10

United States v. Fausto, 484 U.S. 439 (1988) .........0 9, 10, 13

Constitution and statutes:

U.S. Const.:

Art. III 6,7

Amend. I 3, 10, 14, 15

Amend. IV 7,8

Amend. V (Due Process Clause) 3, 8, 10

Amend. VIII (Cruel and Unusual Punishments

Clause) 8

Administrative Office of the United States Courts

Personnel Act of 1990, Pub. L. No. 101-474, § 3(a)(5),

104 Stat. 1097 11

Back Pay Act:

5 U.S.C. 5595 11

5 U.S.C. 5596 (1994 & Supp. IV 1998) 11

5 U.S.C. 5596(b)(1)(A) 13

5 U.S.C. 5596(b)(2)(A) 13

Civil Service Reform Act, Pub. L. No. 95-454,

92 Stat. 1111 4, 9, 10, 18, 14, 15

Family and Medical Leave Act, 5 U.S.C. 6381(1) (1994

& Supp. IV 1998) 11

Federal Exployees Family Friendly Leave Act, 5 U.S.C.

6301(2) 11

5 U.S.C. 8331(1)(A) (1994 & Supp. IV 1998) ... 11

5 U.S.C. 8701(a)(1) 11

5 U.S.C. 8901(1)(A) (1994 & Supp. IIT 1997) 11

28 U.S.C. 451 6

28 U.S.C. 753 2

28 U.S.C. 753 (1994 & Supp. III 1997) 11

28 U.S.C. 756 2,11

Statutes—Continued: Page

42 U.S.C. 1985(2) 3, 4, 5, 6, 7

42 U.S.C. 1985(3) 3,5

Miscellaneous:

H.R. Rep. No. 770, 101st Cong., 2d Sess. (1990) .......--vss0 11, 12

Jn the Supreme Court of the United States

No. 99-672

KATHRYN I. BLANKENSHIP, PETITIONER

Vv.

ALAN A. MCDONALD, JUDGE,

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF WASHINGTON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet..App. 1-7) is

reported at 176 F.3d 1192. The opinion of the district

court (Supp. App. 1-14) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 14, 1999. A petition for rehearing was denied on

July 22, 1999 (Pet. App. 8-9). The petition for writ of

certiorari was filed on October 12, 1999. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. In 1985, pursuant to the authority granted by

Congress, 28 U.S.C. 758, 756, the District Court for the

Eastern District of Washington appointed petitioner to

the position of court reporter. Pet. App. 2. Petitioner

worked primarily in the courtroom of respondent

United States District Court Judge Alan A. McDonald.

Respondent James Larsen, the Clerk for the Eastern

District of Washington, supervised the court reporters.

Ibid.

The Eastern District has adopted an equal em-

ployment opportunity (EEO) plan in conformance with

the directions of the Judicial Conference. See Dis-

crimination Complaint Procedures, Equal Employment

Opportunity Plan, United States District Court for

the Eastern District of Washington (Mar. 1993) (re-

printed in C.A. E.R. 86-100). The EEO plan provides

an administrative complaint and hearing mechanism to

resolve claims of discrimination and retaliation or re-

prisal for alleging discrimination or serving as a witness

in connection with an EEO complaint. Supp. App. 6-8.

In February 1994, deputy clerk Christine Mearns

filed an administrative complaint of sex and handicap

discrimination under the Eastern District’s EEO Plan.

Supp. App. 2. Petitioner was subpoenaed to testify at

the administrative EEO hearing on the complaint. Pet.

App. 3; Supp. App. 2. Petitioner alleges that, during

the course of her testimony at the EEO hearing, she

testified that Judge McDonald had required her to act

improperly on several occasions, such as requiring her

improperly to certify and to notarize documents. Ibid.

Petitioner claims that following her testimony at the

EEO hearing her relationship with Judge McDonald

deteriorated. C.A. E.R. 9-10.

3

In November 1994, petitioner received a negative

performance report, which stated that she had missed

deadlines for filing transcripts. Supp. App. 3. In

February 1995, respondent Larsen recommended that

the District Court terminate petitioner’s employment.

Pet. App. 4. The Court discharged petitioner effective

March 3, 1995. C.A. E.R. 14. Each of the then-active

judges in the Eastern District signed the termination

letter. Pet. App. 4; Supp. App. 3. Petitioner did not file

a complaint under the Eastern District EEO Plan.

Ibid.

2. Petitioner filed suit in federal district court

against Judge McDonald, Clerk Larsen, and their

wives. Supp. App. 1. Alleging that she was fired in

retaliation for her testimony at the EEO hearing, she

asserted claims under Bivens v. Six Unknown Named

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

(1971), for violations of her First and Fifth Amendment

rights, as well as claims under 42 U.S.C. 1985(2) and (8)

and state law. C.A. E.R. 15-28. She sought

compensatory, exemplary and punitive damages. Jd. at

23-24.

The district court granted respondents’ motion to

dismiss. Supp. App. 1-14. The court held that peti-

tioner’s Bivens claims were precluded under the analy-

sis set forth in Schweiker v. Chilicky, 487 U.S. 412

(1988). Supp. App. 4, 8-11. The court reasoned that

Congress’s failure to provide petitioner and other judi-

cial branch employees with a more complete remedy

was not inadvertent. Jbid. The district court also

dismissed petitioner’s remaining claims. Jd. at 11-14.

As to the Section 1985(2) claim, the district court noted

that petitioner conceded that “her section 1985 claim is

not cognizable [under Ninth Circuit precedent] because

4

she was not a party to the proceedings in which she

testified.” Jd. at 13.

3. Petitioner appealed the district court’s ruling, and

the court of appeals affirmed. Pet. App. 1-7. The court

rejected petitioner’s argument “that because she has no

administrative or judicial remedies under the [Civil

Service Reform Act] as a member of the excepted ser-

vice, she is entitled to assert a Bivens claim.” Id. at 4-5.

The court held that the Civil Service Reform Act

(CSRA) contains an “elaborate remedial system that

has been constructed step by step, with careful atten-

tion to conflicting policy considerations.” Id. at 5

(quoting Bush v. Lucas, 462 U.S. 367, 388 (1983)). The

court held that it would be improper to permit a Bivens

action here because “congressional action has not been

inadvertent in providing certain remedies and denying

others to judicial employees.” Pet. App. 6. The court

explained that “Congress has given judicial employees

certain employment benefits and remedies, such as

back pay, severance pay, family and medical leave, and

health and retirement benefits. Congress has withheld

other benefits and remedies, such as review of adverse

personnel decisions.” Jbid. The court concluded that

“[t]his demonstrates that the lack of more complete

remedies was not inadvertent.” Jbid. The court also

rejected petitioner’s claim under 42 U.S.C. 1985(2)

because, in David v. United States, 820 F.2d 1038, 1040

(1987), the Ninth Circuit had previously held that

Section 1985(2) provides a remedy only to a litigant who

is hampered in presenting an effective case, not to a

witness. Pet. App. 7.

ARGUMENT

The court of appeals correctly affirmed the district

court’s dismissal of petitioner’s complaint. Petitioner

5

did not state a valid claim under Section 1985(2) be-

cause her testimony in an adriinistrative EEO hearing

is not testimony before a “wrt of the United States.”

This case therefore is not a suitable vehicle to resolve

the conflict among the courts of appeals on the question

whether Section 1985(2) provides a remedy to wit-

nesses as well as litigants. Further, the court of

appeals correctly dismissed petitioner’s Bivens claims,

and its decision does not present a conflict with any

other court of appeals that warrants this Court’s re-

view. This Court recently denied review of the Bivens

issue raised by petitioner. See Lee v. Hughes, 145 F.3d

1272 (11th Cir. 1998), cert. denied, 119 S. Ct. 1026

(1999). Review of that issue is likewise not warranted

here. Therefore, the petition should be denied.

1. Petitioner first contends (Pet. 8-14) that this

Court’s review is needed to resolve a conflict among the

courts of appeals regarding the construction of 42

U.S.C. 1985(2). Although there is a conflict, this case

does not present a suitable vehicle to resolve it, because

petitioner cannot state a claim under Section 1985(2)

regardless of how the Court might resolve the conflict.

Section 1985(2) prohibits conspiracies “to deter, by

force, intimidation, or threat, any party or witness in

any court of the United States * * * from testifying to

any matter pending therein, freely, fully, and truthfully,

or to injure such party or witness in his person or pro-

perty on account of his having so attended or testified.”

42 U.S.C. 1985(2). The statute permits a “party” so in-

jured to sue for recovery of damages “occasioned by

such injury.” 42 U.S.C. 1985(8).

The Ninth Circuit has construed the statute to pro-

vide a damages remedy only to a “litigant [who] was

hampered in being able to present an effective case,”

and not to a witness who is not a party. David v. United

6

States, 820 F.2d 1038, 1040 (1987). See also Rylewicz v.

Beaton Servs., Ltd., 888 F.2d 1175, 1180 (7th Cir. 1989).

This construction has been rejected by the Third and

Tenth Circuits. See Heffernan v. Hunter, 189 F.3d 405,

409-411 (3d Cir. 1999); Brever v. Rockwell Int'l Corp.,

40 F.3d 1119, 1125 & n.7 (10th Cir. 1994).

This case does not, however, present a suitable vehi-

cle for resolving the conflict on the question whether

the statute provides a remedy to a non-party witness,

because petitioner has not stated a valid claim under

Section 1985(2) however that question might be re-

solved. The statute applies only to testimony before a

“court of the United States.” 42 U.S.C. 1985(2). That

term includes only courts (such as federal district

courts) created by Act of Congress “the judges of which

are entitled to hold office during good behavior.” 28

U.S.C. 451. Petitioner’s complaint here fails to state a

Section 1985(2) claim because the testimony for which

she allegedly was terminated was testimony in an

administrative EEO hearing, not before a court of the

United States sitting in its Article III capacity. Every

court that has addressed the issue has held that Section

1985(2) does not encompass testimony given at an

administrative proceeding. See Deubert v. Gulf Fed.

Sav. Bank, 820 F.2d 754, 758 (5th Cir. 1987); Morast v.

Lance, 807 F.2d 926, 930 (11th Cir. 1987); Kimble v. D./.

McDuffy, Inc., 648 F.2d 340, 347 (5th Cir.) (en banc),

cert. denied, 454 U.S. 1110 (1981); Graves v. United

States, 961 F. Supp. 314, 319 (D.D.C. 1997); Carter v.

Church, 791 F. Supp. 298, 300 (M.D. Ga. 1992) (testi-

mony to EEOC not covered).

In the court of appeals, petitioner did not contest that

Section 1985(2) is limited to proceedings before a “court

of the United States.” Petitioner argued, however, that

the administrative EEO hearing at which she testified

7

should be deemed such a court because the hearing was

conducted by Chief Judge Quackenbush in a courtroom.

Plaintiff’s Opp. to Motion to Dismiss 23-24 (C.A. E.R.

124-125). That argument lacks merit, because Judge

Quackenbush was presiding over an administrative pro-

ceeding, pursuant to the Eastern District’s EEO Plan,

C.A. E.R. 97-98, and was not sitting in his capacity as

an Article III judge over an Article III case or con-

troversy.'

2. Petitioner also asks (Pet. 14-24) this Court to re-

view the dismissal of her Bivens claims. In accord with

the Eleventh Circuit’s ruling in Lee, supra, however,

the court of appeals correctly rejected petitioner’s con-

tention that judicial branch employees may bring

Bivens claims against their supervisors for work-

related disputes. This Court recently denied the

petition for a writ of certiorari in Lee. 119 S. Ct. 1026

(1999). It should likewise deny the petition in this case.

a. In Bivens v. Six Unknown Named Agents of

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

Court permitted the plaintiff to sue for money damages

federal officers who violated his Fourth Amendment

' In her reply brief on appeal, petitioner claimed (for the first

time) that the retaliation she alleged was based in part on

testimony that she gave earlier in a civil case and in a disciplinary

hearing against an attorney. Appellant Reply Br. 22. In her com-

plaint, however, petitioner claimed retaliation based on only her

testimony at the administrative EEO hearing. The complaint did

not mention her testimony in the civil case and referenced her

testimony at the attorney disciplinary hearing only in describing

the events about which she testified at the EEO hearing. Com-

plaint 7-8 (C.A. E.R. 7-8). Moreover, in her response to re-

spondents’ motion to dismiss in district court, petitioner identified

only her testimony at the EEO hearing as the testimony protected

from retaliation under Section 1985(2). Plaintiff’s Opp. to Motion

to Dismiss 23-24 (C.A. E.R. 124-125).

8

rights. In permitting that suit, the Court relied on

several important considerations: (1) Congress had not

provided a remedy; (2) there were “no special factors

counselling hesitation in the absence of affirmative

action by Congress”; and (8) there was “no explicit

congressional declaration” that money damages not be

awarded. Id. at 396-397. Following Bivens, the Court

permitted similar damage actions against federal

officials under the Fifth Amendment’s Due Process

Clause and the Eighth Amendment’s Cruel and Un-

usual Punishments Clause. Again, each time the Court

noted the absence of an alternative remedial scheme

created by Congress and the absence of other “special

factors” counseling against the provision of a court-

created damages remedy. See Davis v. Passman, 442

U.S. 228, 245-247 (1979); Carlson v. Green, 446 U.S. 14,

18-20 (1980).

This Court’s “more recent decisions have responded

cautiously to suggestions that Bivens remedies be

extended into new contexts.” Schweiker v. Chilicky,

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

U.S. 471, 484 (1994). The Court has held that Bivens

actions against individual federal officials are precluded

when Congress has established a statutory remedial

scheme to handle a particular category of disputes with

the federal government, even if the remedial scheme

does not provide redress for the particular alleged

constitutional wrong. See Chilicky, supra; Bush v.

Lucas, 462 U.S. 367 (1983). “When the design of a Gov-

ernment program suggests that Congress has provided

what it considers adequate remedial mechanisms for

constitutional violations that may occur in the course of

its administration,” it is inappropriate for a court to

afford “additional Bivens remedies.” Chilicky, 487 U.S.

at 423. The “concept of ‘special factors counselling

9

hesitation in the absence of affirmative action by Con-

gress’ has proved to include an appropriate judicial

deference to indications that congressional inaction has

not been inadvertent.” Ibid.

Petitioner cannot maintain a Bivens action here be-

; cause Congress has, through the Civil Service Reform

* Act (CSRA), Pub. L. No. 95-454, 92 Stat. 1111, estab-

lished.a comprehensive Statutory remedial scheme to

handle employment disputes with the federal gov-

ernment. In the CSRA, Congress “comprehensively

overhauled the civil service system,” Lindahl v. OPM,

470 U.S. 768, 773 (1985), and created a “new framework

for evaluating adverse personnel actions against

[federal employees],” id. at 774. 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. 489, 443 (1988). That “elaborate

remedial system,” which “has been constructed step by

step, with careful attention to conflicting policy con-

siderations,” may not “be augmented by the creation of

a new judicial remedy for the constitutional violation at

issue.” Bush, 462 U.S. at 388.

b. Petitioner argues (Pet. 19-21) that the CSRA

does not preclude her Bivens action, because, as a

preference-eligible member of the excepted service

(Pet. App. 4), she had no right to file a petition challeng-

ing the adverse personnel action with the Office of

Special Counsel of the Merit Systems Protection Board.

The court of appeals correctly rejected that contention.

See id. at 4-6; Lee, 145 F.3d at 1275-1276. In Bush, this

Court found that the “comprehensive procedural and

substantive provisions” (462 U.S. at 368) of the CSRA

constituted a “special factor counselling” hesitation

against permitting a Bivens action even though civil

10

service remedies offered “a less than complete remedy”

for the alleged First Amendment violation (id. at 372-

373). That conclusion applies with equal force to

petitioner’s First and Fifth Amendment claims here.

The courts may not circumvent Congress’s decision

in the CSRA not to provide a statutory review mecha-

nism for claims like petitioner’s by permitting Bivens

actions. This Court rejected that approach in Fausto,

when it held that the CSRA precluded an exempt, non-

preference eligible, federal employee from suing under

the Back Pay Act even though the CSRA did not pro-

vide the employee a right to judicial review of the

claims that he asserted. Because the CSRA is a com-

prehensive scheme and Congress’s failure to provide

judicial review could not be deemed an inadvertent

omission, the Court held that the limitations in the Act

may not be circumvented through resort to other

remedies. Fausto, 484 U.S. at 447-455.”

Congress has deliberately excluded court personnel

from the substantive provisions of the CSRA relating

to adverse employment actions. Instead, Congress has

extended only limited employment benefits and reme-

dies to court personnel. Most significantly, judicial

employees are entitled to backpay plus interest under

2 The Court applied the same reasoning in Chilicky. In that

case, the plaintiff claimed that federal officials administering the

Social Security disability program violated his due process rights.

487 U.S. at 420. If limited to the Social Security review scheme,

the plaintiff at most could have been granted retroactive disability

benefits, and had no possibility of receiving additional redress for

the harms caused by the alleged constitutional violation. Further,

the Act provided no monetary remedy against the alleged offend-

ing officials. Jd. at 424-425. The Court nonetheless held that the

Social Security Act’s “remedial scheme” precluded the assertion of

a Bivens claims against the individual officials. Jd. at 414.

11

certain circumstances, 5 U.S.C. 5596 (1994 & Supp. IV

1998), as well as severance pay, 5 U.S.C. 5595.2 In the

main, Congress has permitted the judicial branch to

manage its own personnel matters. Thus, district

courts have the authority to appoint and remove court

reporters, 28 U.S.C. 753 (1994 & Supp. III 1997); 28

U.S.C. 756, and the Judicial Conference has the author-

ity to “determin[e] standards” for the qualifications of

court reporters. 28 U.S.C. 753 (1994 & Supp. III 1997).

In 1990, Congress removed the employees of the

Administrative Office of the United States Courts (AQ)

from the CSRA. See AO Personnel Act of 1990, Pub. L.

No. 101-474, § 3(a)(5), 104 Stat. 1097, Congress

explained that the “separation of powers” counseled

that the judicial branch should be “mostly free” of

executive branch supervision of its personnel matters.

See H.R. Rep. No. 770, 101st Cong., 2d Sess. 5 (1990).

3 Court-appointed personnel are also covered by the Family

and Medical Leave Act, 5 U.S.C. 6381(1) (1994 & Supp. IV 1998),

and the Federal Employees Family Friendly Leave Act, 5 U.S.C.

6301(2). They are entitled to employment benefits such as health

insurance, 5 U.S.C. 8901(1)(A) (1994 & Supp. III 1997), life

insurance, 5 U.S.C. 8701(a)(1), and retirement benefits, 5 U.S.C.

8331(1)(A) (1994 & Supp. IV 1998).

4 Although petitioner is not an employee of the AO and thus

does not have remedies under the 1990 Act, those remedies are

similar to petitioner’s remedies under the court-adopted EEO

plans and the Back Pay Act. In the 1990 Act, Congress ordered

the AO to create an administrative scheme similar to the one avail-

able to petitioner here to handle employment disputes, including

those involving claims of discrimination and claims of retaliation or

reprisal for invoking or participating in the EEO process. See

H.R. Rep. No. 770, supra, at 5, 7-8. At the same time, Congress

extended the Back Pay Act to provide a back pay remedy in

addition to the administrative review scheme. Id. at 12. Congress

referred to the 1990 Act as establishing a “comprehensive

12

Those decisions reflect Congress’s determination

regarding the appropriate balance between respect for

the independence of the judicial branch and protection

of the rights of judicial branch personnel. Recognition

of the Bivens action that petitioner seeks to bring

would upset that congressionally mandated balance.

c. Petitioner also errs in suggesting (Pet. 21-24) that

this case raises a constitutional question because, she

asserts, she lacked any remedy to vindicate her consti-

tutional rights. Whether or not the Constitution

requires that there be a remedy to vindicate every

constitutional right, petitioner had an adequate remedy

here. Petitioner could have sought review of her re-

taliation claim through the administrative EEO process

adopted by the district court at the direction of the

Judicial Conference, as contemplated by Congress. See

pp. 2, 11, supra. The court’s EEO plan provides

informal and formal administrative procedures to re-

solve complaints (such as petitioner’s) of discrimination

and reprisal. C.A. E.R. 87-100.° Had she prevailed in

personnel system” (id. at 1) for AO employees and recognized that

this comprehensive system was similar to that available to “the

rest of the judicial branch” (id. at 5). Thus, Congress

demonstrated its approval of the remedies available to petitioner

here by extending the same remedies to AO employees.

5 When a complaint is filed, the court-appointed EEO Coor-

dinator conducts an investigation and prepares a report. If the

EEO Coordinator recommends rejection of the employee’s claim,

the complainant may ask that the matter be further reviewed.

Upon receipt of such a request, the Chief Judge or his designee

conducts any additional investigation deemed necessary, deter-

mines whether to hold a formal hearing, and issues a final decision

regarding the complaint. C.A. E.R. 95-99. There is no merit to

petitioner’s contention (Pet. 22 n.9) that this procedure is in-

adequate because the Clerk of the Court is a party to her com-

plaint and the Chief Judge was one of the judges who signed her

13

that process, petitioner would have been able to seek

reinstatement from the Chief Judge. She would also

have been entitled to restoration of any lost pay, with

interest, under the Back Pay Act.®

d. Petitioner’s reliance (Pet. 16-19) upon Davis v.

Passman, 442 U.S. 228 (1979), is misplaced. In Davis,

the Court permitted a former congressional staff

member to bring a Bivens action for sex discrimination

against a congressman. In Davis, however, the Court

did not address the preclusive effect of the CSRA,

which had been enacted only a few months before Davis

was decided. Lee, 145 F.3d at 1275. Moreover, in Bush,

the Court explained that it had relied upon the absence

of any equitable or, monetary remedy for the termi-

nated staff member in permitting the Bivens action in

Davis. See 462 U.S. at 377 & n.13. Unlike petitioner

here, the plaintiff in Davis had no remedial process and

no opportunity for back pay or reinstatement. See also

discharge order. The procedures provide for an impartial investi-

gator if the EEO Coordinator is directly involved in the complaint,

as well as for a designee to fulfill the duties of the Chief Judge.

C.A. E.R. 97.

® Under the Back Pay Act, a covered federal employee who is

found “by appropriate authority under applicable law, rule, [or]

regulation” to have been “affected by an unjustified or un-

warranted personnel action” resulting in a loss of pay is entitled,

“on correction of the personnel action,” to the lost pay with in-

terest. See 5 U.S.C. 5596(b)(1)(A) and (b)(2)(A). The duly adopted

EEO Plan constitutes an “applicable law, rule, [or] regulation,” and

a decision that an employee was improperly discharged would be a

finding by an “appropriate authority” that the employee was

“affected by an unjustified or unwarranted personnel action,” thus

entitling the employee, “on correction of the personnel action” (5

U.S.C. § 5596(b)(1)(A)) to back pay, with interest. See Fausto, 484

U.S. at 454 (within CSRA scheme, agency is an “appropriate

authority” for purposes of Back Pay Act).

14

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

considered a remedy under the Back Pay Act to pro-

vide full compensatory relief for adverse employment

actions in violation of the First Amendment).

e. Finally, petitioner errs (Pet. 14-15) in contending

that this Court’s review is warranted to resolve a

conflict among the courts of appeals on the Bivens

issue.

Like the petitioner in Lee v. Hughes, supra, peti-

tioner here cites Duffy v. Wolle, 123 F.3d 1026 (8th Cir.

1997), cert. denied, 523 U.S. 1137 (1998), as creating a

conflict. That purported conflict does not warrant this

Court’s review. The Eighth Circuit in Duffy was not

presented with the considerations central to the rea-

soning of the court in this case; and, when presented

with those considerations in a future case, the Eighth

Circuit might well reach the same result as the court

did here.

In Duffy, the Eighth Circuit held that a court-

adopted EEO Plan, standing alone, did not preclude a

probation officer from asserting a Bivens sex discri-

mination claim against the judges who elected not to

promote him to the position of Chief Probation Officer.

Duffy, 123 F.3d at 1034-1035. As the Eleventh Circuit

noted in Lee, however, “the defendants in Duffy never

suggested that the CSRA preempted plaintiffs claim,

but rather argued only that plaintiff's Bivens claim

should have been dismissed because the local EEO Plan

provided plaintiff with a remedy.” Lee, 145 F.3d at 1276

n.4. Thus, the Eighth Circuit did not address the effect

on Bivens claims of the CSRA, the central considera-

tion behind the decision of the court of appeals in this

case.

Moreover, in Duffy the Eighth Circuit relied on the

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

15

conclusion that the remedial scheme available to judi-

cial employees did not result from congressional in-

advertence. Duffy, 123 F.3d at 1085. As we have

explained at pages 10-11, supra, there is in fact sub-

stantial evidence that Congress deliberately chose to

provide judicial personnel with certain, limited reme-

dies, including the Back Pay Act, and otherwise to

permit the judicial branch to manage its personnel

matters. That evidence was not considered by the

Eighth Circuit in Duffy. Indeed, the court in Duffy

erroneously believed that there were no statutory

remedies available to judicial branch employees.

Guercio v. Brody, 814 F.2d 1115 (6th Cir. 1987), also

does not support further review here. In Guwercio, the

Sixth Circuit held that a bankruptcy judge did not

possess absolute immunity from a First Amendment

retaliation claim brought by his former secretary. The

claim at issue in Guercio was not an EEO claim, nor

was it redressable through an EEO administrative

hearing. The question whether a Bivens action by a

judicial branch employee is permitted in light of the

CSRA, a court-created EEO plan, and the Back Pay

Act remedy was never briefed by the parties and was

not addressed by the Sixth Circuit. Hence, the Sixth

Circuit’s decision does not conflict with the reasoning or

decision of the court of appeals here.

16

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General’

DAVID W. OGDEN

Acting Assistant Attorney

General

MARLEIGH DOVER

ROBERT M. LOEB

Attorneys

JANUARY 2000

7 Respondents were represented by private counsel in the

court of appeals but requested that the Department of Justice

represent them in this Court. This brief is filed in our capacity as

counsel for the individual respondents, not on behalf of the United

States, which is not a party to this litigation.