Opposition Brief — Briscoe v. Potter (No. 05-977)

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October 19, a distribution manager told petitioner

Alston that DBCS #17 was contaminated with anthrax

spores, but a manager later told employees that the ma-

chine was not contaminated. See 05-977 C.A. App. 33-

34. The Briscoe petitioners also allege that, on Satur-

day, October 20, Postal Service officia's told employees

that a Postal Service worker had been admitted to the

hospital the previous day “and was being examined for

potential inhalation anthrax” but falsely stated that his

infection with anthrax had not been confirmed. See id.

at 36.

Younts I, li, and III of the Briscoe complaint allege

violations of the procedural due process component of

the Fifth Amendment. Petitioners allege that they were

deprived of the remedies under their collective bargain-

ing agreements, the protections of the Occupational

Safety and Health Act of 1970 (OSH Act), 29 U.S.C. 651

et seq., and the benefit of the Postal Service’s emergency

response procedures because of respondents’ alleged

misrepresentations. See 05-977 C.A. App. 41-43. Count

IV of the complaint alleges a violation of the Fifth —

Amendment’s substantive due process component. /d.

at 43-44. Petitioners allege that they were deprived of

their “substantive due process liberty interest in a safe

work environment free from needless danger.” /d. at 44.

Count I of the First Amended Complaint in Rich-

mond alleges a violation of substantive due process

based on respondents’ alleged false representations

about the dangers at the Brentwood facility. See 05-990

C.A. App. 46-47. Count II alleges an equal protection

violation based on the contention that workers at the

Brentwood facility were treated differently than con-

gressional workers because of the different racial com-

positions of the two work forces. See id. at 47-48.

C. Proceedings Below

Respondents filed motions to dismiss in both cases,

and the district court in each case granted the motion.

Both courts concluded that the comprehensive statutory

scheme governing .xostal Service employment, which

includes remedies under the FECA, precludes the

courts from creating an additional Bivens remedy for

the alleged constitutional violations. 05-977 Pet. App.

2la-3la; 05-990 Pet. App. 18a, 32a-4la. The district

court in Richmond also observed that, even if the FECA

does not cover petitioner Richmond’s claim of racial dis-

crimination, he has recourse to Title VII, which provides

the exclusive remedy for racial discrimination in federal

employment. /d. at 41a n.9.

Both courts also held that dismissal of the due pro-

cess claims is required in any event because petitioners

failed to allege a violation of a clearly established right

and respondents are therefore entitled to qualified im-

munity. 05-977 Pet. App. 30a n.9, 3la-45a; 05-990 Pet.

App. 15a-27a. The district court in Richmond further

concluded that the equal protection claim must be dis-

missed because petitioner did not allege that respon-

dents played any role in or had any control over Con-

gress’s decision about how to treat its employees. /d. at

27a-3la.

The court of appeals affirmed the district court’s

judgments in two unpublished, per curiam opinions. 05-

977 Pet. App. la-4a; 05-990 Pet. App. la-3a. In each

opinion, the court of appeals concluded that the Bivens

“claims are precluded by an ‘elaborate, comprehensive

scheme’ that Congress has provided to govern employ-

ees’ injuries in federal workplaces.” 05-977 Pet. App. 3a

(quoting Bush v. Lucas, 462 U.S. 367, 385 (1983)); 05-990

Pet. App. 2a (same). With respect to petitioner Rich-

mond, the court of appeals also noted that “to the extent

FECA does not cover Richmond’s racial discrimination

claim, Title VII of the Civil Rights Act of 1964 provides

the exclusive judicial remedy for claims of racial dis-

crimination in federal employment.” /d. at 3a (citing

Brown, 425 U.S. at 835).

ARGUMENT

“<—— ~- ~ The unpublished, per curiam decisions of the court of

appeals are correct and do not conflict with any decision

of this Court or any other court of appeals. This Court’s

review is therefore not warranted.

1. Petitioners in both actions contend that review is

necessary to clarify the application of principles set out

in Bush v. Lucas, 462 U.S. 367 (1983), and Schweiker v.

Chilicky, 487 U.S. 412 (1988). Petitioners in Briscoe

urge that review is required to address the application

of those principles to their claims of procedural due pro-

cess violations. 05-977 Pet. 20-22. Petitioner in Rich-

mond asserts that review is necessary to determine the

application of the principles to his substantive due pro-

cess and equal protection claims. 05-990 Pet. 11-15.”

The principles established by this Court in its Bivens

cases are well-settled, and the court of appeals correctly

applied those principles to the facts here.

a. This Court has “responded cautiously to sugges-

tions that Bivens remedies be extended into new con-

texts.” Chilicky, 487 U.S. at 421. Indeed, in the past 25

* Petitioner Richmond also contends (05-990 Pet. i) that this Court

should grant review to decide whether respondents are entitled to

qualified immunity. That question is not properly before this Court

because it was not addressed by the court of appeals. See National

Collegiate Athletic Ass'n v. Smith, 525 U.S. 459, 470 (1999).

years, the Court has “consistently refused to extend

Bivens liability to any new context or new category of

defendants.” Correctional Servs. Corp. v. Malesko, 534

U.S. 61, 68 (2001). And, in cases like Bush and Chilicky,

the Court has made clear that a Bivens remedy should

not be created when Congress has enacted a “compre-

hensive statutory scheme[]” that provides some reme-

dies. Chilicky, 487 U.S. at 428; see Bush, 462 U.S. at

368.

In Bush, the Court held that the “comprehensive

procedural and substantive provisions” of the CSRA

precluded a First Amendment Bivens claim by a plain-

tiff who asserted that he had been fired for criticizing

his employing agency. 462 U.S. at 368. In reaching that

holding, the Court expressly assumed that the civil ser-

vice remedies were not as effective as a Bivens suit and

would not fully compensate the employee for the alleged

First Amendment violation. /d. at 372. But the Court

concluded that the fact that “existing remedies do not

provide complete relief” does not justify augmenting a

carefully-crafted and “elaborate remedial scheme” by

creating a “new judicial remedy” for constitutional viola-

tions. /d. at 388. The Court underscored “Congress’

institutional competence in crafting appropriate relief

for aggrieved federal employees as a ‘special factor

counseling hesitation in the creation of a new remedy,’”

noting that “‘Congress is in a far better position than a

court to evaluate the impact of a new species of litigation

between federal employees.’” Malesko, 534 U.S. at 68

(quoting Bush, 462 U.S. at 380, 389).

In Chilicky, the Court refused to imply a Bivens

remedy for alleged procedural due process violations by

Social Security officials because Congress had not in-

cluded a money damages remedy in the “elaborate re-

medial scheme” created by the Social Security Act. 487

U.S. at 414. Once again, the Court explicitly noted that

the statutory remedies did not provide complete relief.

Id, at 425. The Court observed that the Social Security

review scheme would provide the plaintiff with, at most,

retroactive disability benefits and offered no possibility

of additional redress for the harms caused by the al-

leged due process violations. /d. at 424-425. But the

Court explained that, “[w]Jhen the design of a Govern-

ment 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 af-

ford “additional Bivens remedies.” /d. at 423.

Together, Bush and Chilicky firmly settled the prin-

ciple that, when a statutory scheme provides a plaintiff

with an “avenue for some redress, bedrock principles of

separation of powers foreclose|| judicial imposition of a

new substantive liability.” Malesko, 534 U.S. at 69 (cit-

ing Chilicky, 487 U.S. at 425-427).

b. Applying that principle, the court of appeals cor-

rectly held that the statutory remedies available to

Postal Service employees, including those provided by

the FECA and Title VII, preclude implication of an

extra-statutory Bivens remedy here.

Under the FECA, employees are “guaranteed the

right to receive immediate, fixed benefits, regardless of

fault and without need for litigation.” Lockheed Aircraft

Corp. v. United States, 460 U.S. 190, 194 (1983). An ex-

press condition of that comprehensive coverage is that

liability under the FECA “with respect to the injury or

death of an employee is exclusive and instead of all other

liability.” 5 U.S.C. 8116(¢). Courts would disrupt the

careful balance struck by Congress if they supplemented

the FECA remedial scheme with a judicially created

money damages remedy. Congress has expressly ad-

dressed the question of monetary compensation for

workplace injuries and has determined to foreclose liti-

gation remedies in favor of guaranteed and “immediate,

fixed benefits, regardless of fault.” Lockheed, 460 U.S.

at 194. Recognizing a Bivens remedy would re-open a

door deliberately closed by Congress as a critical prem-

ise for creating a broad and comprehensive scheme to

remedy workplace injuries.

Moreover, Postal Service employees have other stat-

utory remedies besides the FECA that also make it in-

appropriate for courts to create a Bivens remedy. As

described above, the PRA affords collective bargaining

rights to postal workers not covered by the CSRA. See

p. 3, supra. Employees thus have the right to file griev-

ances over workplace safety and to have the grievances

resolved through independent arbitration. See 05-977

C.A. App. 15-17; Bennett v. Barnett, 210 F.3d 272, 274-

275 (5th Cir.), cert. denied, 531 U.S. 875 (2000). Several

courts of appeals have held that the grievance proce-

dures authorized by the PRA preempt Bivens claims.*

Congress has also addressed workplace safety

through the OSH Act. The OSH Act is enforced by the

Department of Labor, which has authority to issue cita-

tions, see 29 U.S.C. 658, and to seek injunctive relief, see

29 U.S.C. 662. Citations issued by the Department are

* See Bennett, 210 F.3d at 275; Pipkin v. United States Postal Serv.,

951 F.2d 272, 275-276 (10th Cir. 1991); McCollum v. Bolger, 794 F.2d

602, 607 (11th Cir. 1986), cert. denied, 479 U.S. 1034, (1987); Pereira v.

United States Postal Serv., 964 F.2d 873, 875-876 (9th Cir. 1992);

Harding v. United States Postal Serv., 802 F.2d 766, 767-768 (4th Cir.

1986).

subject to review in the courts of appeals. See 29 U.S.C.

660; see generally Cuyahoga Valley Ry. v. United

Transp. Union, 474 U.S. 3 (1985).

Finally, to the extent employees have claims about

discrimination in the workplace, Postal Service workers,

like other federal employees, are protected by Section

717 of Title VII, 42 U.S.C. 2000e-16. As this Court has

held, Congress intended Title VII to provide the exclu-

sive mechanism for federal employees to seek redress

for claims of racial discrimination. Brown, 425 U.S. at

835.

2. The Briscoe petitioners urge this Court to aug-

ment the elaborate remedial scheme crafted by Con-

gress with a Bivens remedy because, according to peti-

tioners, respondents interfered with petitioners’ use of

the statutory remedies. See 05-977 Pet. 20-22. Petition-

ers cannot, however, meaningfully distinguish their situ-

ation from Chilicky, which also involved allegations that

government officials violated the Constitution by pre-

venting the plaintiffs from obtaining statutory benefits.

The plaintiffs in Chilicky alleged that the officials de-

prived them of due process by deliberately undermining

the procedures used to determine their eligibility for

disability benefits; for example, by intentionally disre-

garding favorable evidence and by purposefully select-

ing biased physicians. 487 U.S. at 420 n.2. This Court

nonetheless refused to create a Bivens remedy for what

the Court described as “consequential damages for

hardships resulting from an allegedly unconstitutional

denial of a statutory right.” Jd. at 428.°

» Moreover, petitioners’ situation does not actually present the ques-

tion whether a Bivens remedy would be available if government officials

had prevented all meaningful access to statutory remedies. As the

district court found, petitioners “failed sufficiently to allege that their

The Briscoe petitioners also assert that other federal

courts have recognized a Bivens remedy where plaintiffs

have alleged that defendants unconstitutionally inter-

fered with their access to statutory remedies. 05-977

Pet. 23-26. But petitioners rely principally on cases that

pre-date the Court’s decision in Chilicky and therefore

have no continuing vitality after that decision. For ex-

ample, petitioners cite Bishop v. Tice, 622 F.2d 349 (8th

Cir. 1980), which was decided several years before both

Bush and Chilicky. Moreover, the analysis in Bishop is

inconsistent with the Eighth Circuit’s later opinion in

McIntosh v. Turner, 861 F.2d 524 (1988), which adheres

to the principle set out in Bush and Chilicky. Petition-

ers also invoke Grichenko v. United States Postal Serv.,

524 F. Supp. 672 (E.D.N.Y. 1981), aff'd, 751 F.2d 368 (2d

Cir. 1984) (Table), which likewise pre-dates Chilicky.

Moreover, a conflict with a district court opinion is not

a basis for this Court to grant a writ of certiorari. See

Robert L. Stern et al., Supreme Court Practice 178 (7th

ed. 1993).°

access to all of the remedies that they were entitled to [was] blocked by

[respondents]. Nothing in the complaint suggests that [petitioners]

were precluded from filing a grievance under their collective bargaining

agreement, or a charge with OSHA, or utilizing any other post-

exposure remedies that were available to them.” 05-977 Pet. App. 28a

n.8. Indeed, even now, petitioners do not contend that they were

precluded from seeking compensation under the FECA.

° For that reason, petitioners are not assisted by Rauccio v. Frank,

750 F. Supp. 566 (D. Conn. 1990), which, although it was decided after

Chilicky, failed to follow this Court’s guidance. Moreover, as explained

in note 5, supra, petitioners here, unlike the plaintiffs in Rauccio, have

not adequately alleged facts that, if true, would demonstrate that

respondents “have rendered effectively unavailable any procedural

safeguard established by Congress.” 750 F. Supp. at 571.

3. Petitioner Richmond argues that this Court has

not considered whether a comprehensive statutory

scheme bars creation of a Bivens remedy for egregious

misconduct of the kind alleged here. 05-990 Pet. 12, 14-

15. The decisions in which the Court has declined to

imply a Bivens remedy, however, have all assumed that

the plaintiff stated a claim of the deprivation of a clearly

established constitutional right. See, e.g., Bush, 462

U.S. at 372; Chilicky, 487 U.S. at 428. The Court has

never suggested that it would be possible or appropriate

to establish a hierarchy of constitutional rights in apply-

ing the Chilicky analysis. In any event, there is no rea-

son to conclude that the constitutional violations alleged

here are more worthy of a damages remedy via Bivens

than the serious violations alleged in Bush and Chilicky.

Petitioner Richmond tacitly admits that he could

seek relief for his injuries under the FECA but argues

that the statutory remedy is inadequate because it is

paid by the government and will not deter misconduct

by federal officials. 05-990 Pet. 16-18. That argument

proves too much, however, *»cause it applies to any in-

stance in which a statutory scheme does not include a

damages remedy against individual employees. In both

Bush and Chilicky, for example, the monetary relief

provided by the statutory remedies was paid by the

United States rather than the individual government

officials. See Bush, 462 U.S. at 372 & n.8; Chilicky, 487

U.S. at 424. Petitioner’s argument is premised on the

misconception that he is entitled to relief because the

remedies provided by Congress do not provide for the

same recovery that he might obt’'n in a Bivens action.

As this Court stressed in Malesku, “[iJt is irrelevant to

a special factors analysis whether the laws currently on

the books afford [the plaintiff] an adequate federal rem-

edy for his injuries.” 534 U.S. at 69 (quoting United

States v. Stanley, 483 U.S. 669, 683 (1987)).

For similar reasons, petitioner errs in contending

that Title VII does not preclude a Bivens action for his

equal protection claim because he cannot state a claim

under the statute. 05-990 Pet. 19-20. A Bivens remedy

is not available simply because the statutory scheme

does not provide complete or even adequate relief. See

Chilicky, 487 U.S. at 425 (o’erving that “[t]he creation

of a Bivens remedy would obviously offer the prospect

of relief for injuries that must now go unredressed”);

Bush, 462 U.S. at 373 (assuming that “Congress has pro-

vided a less than complete remedy for the wrong”). To

the contrary, a court has no basis to create a damages

remedy against a federal official for conduct that Con-

gress chose not to make actionable. See Chilicky, 487

U.S. at 429; see also Bush, 462 U.S. at 385 n.28 (refusing

to create a Bivens action even though the statutory

scheme provided no remedy for short suspensions or

adverse personnel actions against probationary employ-

ees).

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

MARK B. STERN

ALISA B. KLEIN

Attorneys

APRIL 2006

) | RILED

| APR 20 2006 |

| Si ICE OF THE = OLERK

No. 05-977

' In The

Supreme Court of the Gnited States

October 2005 Term

DENA BRISCOE, et al.,

Petitioners,

JOHN E. POTTER, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Paul J. Orfanedes*

Dale L. Wilcox

JUDICIAL WATCH, INC.

501 School Street, S.W., Suite 500

Washington, DC 20024

(202) 646-5172

Counsel for Petitioners

* Denotes Counsel of Record

TABLE OF CONTENTS

Page

AGL E OF CONTENTS... oe ee i

TABLE OF CITATIONS. . ©. oo i oe eas i

TL NRPS tiers irae ease genta ea, l

TABLE OF CITATIONS

Cases Page

ALA, Inc. v. CCAIR, Inc., 29 F.3d 855 (3 Cir. 1994)... . 6

Bishop v. Tice, 622 F.2d 349 (8" Cir. 1980) ........... 4

EEOC vy. St. Francis Xavier Parochial School,

it 7-F.36:624 (DC. Car USSR oe eee eS 6

Korematsu v. United States, 584 F. Supp. 1406

(ND: Cal: PGA fo oe ee ee eee 6

Kramer v. Time Warner. Inc., 937 F.2d 767

rE A 5 rs ks ws 5

McIntosh v. Turner, 861 F.2d 524 (8" Cir. 1988) ..... 45

McIntosh v. Weinberger, 810 F.2d 1411

Cr Ce TOT ee es ook One oe 4

Milburn v. United States, 734 F.2d 762

Chi Ce 2068) 3 i es ee eee 6

Rauccio v. Frank, 750 F. Supp. 566

(7): CM: Bg is See eee 2

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

Turner v. McIntosh, 487 U.S. 1212 (1988) .....02..... 5

Statues, Rules and Regulations Page

Federal Rule of Civil Procedure 12(b)(6) ............. 5

Federal Rule of Evidence 201(b) .................... 6

ARGUMENT

In their Petition for Writ of Certiorari, Petitioners raised

an important question of federal law, namely, whether a

Bivens-type action is maintainable where a plaintiff alleges

that a defendant violated his procedural due process rights by

interfering with or rendering unavailable contractual or

statutory remedies that the plaintiff otherwise had the right to

pursue. In this case, it was especially important that

Petitioners be able to invoke the remedies at issue in a timely

manner to protect themselves from imminent danger:

_continued exposure to a highly potent, “weaponized” form of

anthrax that had contaminated their workplace in October

2001.

Respondents argue in their Brief For the Respondents In

Opposition (“Resp’ts’ Br.) that the Court answered this

question in Schweiker v. Chilicky, 487 U.S. 412 (1988). See

Resp’ts’ Br. at 12. Respondents’ argument misses the mark,

however, because it misconstrues the question presented in

Schweiker.

In Schweiker, the plaintiffs’ social security disability

benefits were terminated improperly. Although the plaintiffs’

benefits were subsequently restored, the plaintiffs brought a

Bivens-type action seeking consequential damages for the

economic and emotional hardships they suffered as a result of

the termination. Schweiker, 487 U.S. at 428. The question in

Schweiker was whether the plaintiffs could recover money

damages above and beyond the restoration and retroactive

payment of benefits they had achieved by invoking

preexisting statutory remedies. The question was not whether

the plaintiffs were unconstitutionally deprived ofa statutorily

created remedial scheme or any portion thereof.

The case at bar presents a very different question.

Petitioners alleged that Respondents prevented them from

invoking remedies otherwise available under their collective

bargaining agreements, the Occupational Safety and Health

Act, and other provisions by lying to them about anthrax

contamination at the Brentwood facility. Moreover, time was

of the essence. The imminent danger posed by exposure to

weaponized anthrax spores made it all the more necessary for

Petitioners to be able to invoke these remedies as quickly as

possible in order to protect themselves and their co-workers

from continued exposure. Under such circumstances, wherein

Petitioners were prevented from invoking remedies that

would have protected them from continued exposure to

anthrax, it is not enough for Respondents to point to the

Federal Employees Compensation Act (“FECA”) and assert

that workers who became ill or died as a result of exposure to

anthrax could later seek compensation under FECA. Our

constitution requires these workers to have been treated

better.

The “special factor” militating against the creation of a

Bivens remedy that the Court found to exist in Schweiker does

not exist in a case such as this because it makes no difference

whether a comprehensive statutory or contractual scheme

exists if the plaintiffs are prevented from availing themselves

of the remedies contained therein. The court tn Rauccio v.

Frank, 750 F. Supp. 566, 571 (D. Conn. 1990), a case decided

after this Court’s decision in Schweiker, correctly recognized

this critical distinction:

However, as plaintiff points out, Bush v. Lucas and its

progeny are premised on the existence and availability

of an adequate system of procedural safeguards

through which a plaintiff may seek relief. In the

instant case, the plaintiff's due process claim is

premised on the defendants’ interference with the

procedural mechanism which Congress has created for

the protection of employees. It is in this critical

respect that Bush v. Lucas and the related cases cited

by defendants are distinguishable. In each, the

availability of an adequate procedural remedy was

fatal to plaintiff's Bivens claims. In this case,

assuming plaintiff's factual allegations to be true,

defendants have rendered effectively unavailable any

procedural safeguard established by Congress. Thus,

Bush and its progeny are inapplicable to the facts of

this case. :

The Court should, thus, take this opportunity to address

the novel question of law presented in this case and declare

that a procedural due process, Bivens-type remedy is

maintainable if it is alleged that the defendant interfered with

or otherwise rendered unavailable the substantive statutory or

contractual remedies that the plaintiff had a right to pursue.

Respondents argue in a footnote that “petitioners” situation does

not actually present the question whether a Bivens remedy would be

available if government officials had prevented all meaningful access to

statutory remedics” because petitioners “failed sufficiently to allege that

their access to all of the remedies that they were entitled to [was] blocked

by [respondents].” Resp‘ts” Br. at |2.n.5. Respondents are clearly wrong,

as Petitioners alleged in their Complaint that Respondents interfered with

and prevented Petitioners from pursuing their statutory and contractual

administrative remedies during the critical four days that Respondents

Respondents also misconstrue the holding in McIntosh v.

Turner, 861 F.2d 524 (8" Cir. 1988), as inconsistent with

Bishop v. Tice, 622 F.2d 349 (8"" Cir. 1980). See Resp’ts’ Br.

at 13. In McIntosh, the United States Court of Appeals for the

Eighth Circuit (“Eighth Circuit”) was called upon to decide

whether a federal employee could bring a Bivens cause of

action for money damages for the denial of the right to be

considered for a promotion on a fair and unbiased basis. The

Eighth Circuit concluded that the plaintiffs’ cause of action

was maintainable because the available civil service statutory

remedies were inadequate in that they did not provide for

money damages for a violation of a constitutional right when

federal employees are denied promotions on an unfair and

biased basis. Mc/ntosh v. Weinberger, 810 F.2d 1411, 1435-

36 (8" Cir. 1987).

knew the Brentwood facility was contaminated with anthrax but still kept

the facility open. See Complaint at YF 19, 20, 22, 23, 25, 26, 29, 30-34,

43-47, 49-76, 78-84, 86, 87. 89, 92-97, 100, 101, 103, 105, 107, 111, and

112. Respondents prevented Petitioners from pursuing their

administrative remedies during these four days by coercing, intimidating,

and threatening Petitioners not to make inquiries about the Daschle letter,

the safety of the facility, or their own safety, and making false and/or

misleading statements to Petitioners that the Brentwood facility was safe

and that there was no evidence of anthrax contamination at the facility,

among other false and/or misleading statements. /d. But for Respondents’

illegal conduct, Petitioners would have timely invoked the remedies

available to them under their collective bargaining agreements and the

OSHA, as well as USPS emergency response procedures to have the

facility shut down. /d. When the facility eventually was shut down after

the four days in which Petitioners were needlessly exposed to anthrax

contamination, Petitioners lost forever their right to pursue their remedies

to have the facility closed.

This Court, however, vacated and remanded the case in

light of its decision in Schweiker. See Turner v. McIntosh,

487 U.S. 1212 (1988). Upon remand, the Eighth Circuit

abandoned its reasoning in light of Schweiker that a Bivens’

type remedy is available if Congress fails to provide an

adequate remedy for federal civil service employees who

bring constitutional challenges to personnel actions. Contrary

to Respondents’ contention in the case at bar, however, the

Court did not abandon the rule established in Bishop, namely,

that a Bivens-type remedy is available if government officials

prevent a plaintiff from availing himself of pre-existing

remedies he is entitled to pursue. Ultimately, the Eighth

Circuit found in Mclntosh that Congress had provided

remedies to the plaintiffs, even though those remedies might

not be adequate. Mc/ntosh, 861 F.2d 526. As a result, the

plaintiffs could not maintain their Bivens claim. /d.

Lastly, despite the fact that Respondents admit

Petitioners’ allegations must be taken as true for purposes of

review, Respondents nonetheless improperly attempt to

influence this Court’s deliberations, as they did in the district

and appellate courts, by citing extraneous materials not

mentioned in or attached to Petitioners’ Complaint and not

subject to judicial notice. See Resp’ts’ Br. at 4.n.1. This

Court must reject Respondents’ improper litigation tactic as,

in evaluating a Federal Rule of Civil Procedure 12(b)(6)

motion, a court may only consider the facts alleged in the

complaint, documents attached as exhibits or incorporated by

reference in the complaint, and matters about which the Court

may take judicial notice. See Kramer v. Time Warner, Inc.,

937 F.2d 767, 773 (2™ Cir. 1991) (On motion to dismiss,

court must limit itself to facts stated in complaint or in

documents attached to complaint as exhibits or incorporated

in complaint by reference.); ALA, Inc. v. CCAIR, Inc., 29 F.3d

855, 859 (3 Cir. 1994) (On motion to dismiss, court must

consider only those facts alleged in complaint.); Milburn v.

United States, 734 F.2d 762, 765 (11" Cir. 1984)

(Consideration of matters beyond complaint is improper in

context of motion to dismiss); and EEOC v. St. Francis

Xavier Parochial School, 117 F.3d 621, 624-25 and n.3 (D.C.

Cir. 1997) (On motion to dismiss, court may consider only

facts alleged in complaint, any documents either attached to

or incorporated into complaint, and matters of which court

can take judicial notice.).

Federal Rule of Evidence 201(b) states that a court may

only take judicial notice of a fact that is “not subject to

reasonable dispute in that it is either (1) generally known

within the territorial jurisdiction of the trial court or (2)

capable of accurate and ready determination by resort to

sources whose accuracy cannot reasonably be questioned.”

This Court has recognized that “[j]udicial notice cannot be

used to shortcut the evidentiary hearing process,” so a court

must not take judicial notice of facts contained in government

reports if the facts are disputed and/or the facts go to the

ultimate issue in the case, as do the facts in the government

report that the Respondents improperly cite in the instant

case. Korematsu v. United States, 584 F. Supp. 1406, 1415

(N.D. Cal. 1984). As a result, the Court should reject

Respondents’ improper references to extraneous matters

outside the pleadings.

CONCLUSION

Petitioners respectfully request that a writ of certiorari be

issued to resolve this important question of federal law that

has not been, but should be, settled by this Court.

Respectfully submitted,