Opposition Brief — Richmond v. Potter (No. 05-990)

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Nos. 05-977 and 05-990

In the Supreme Court of the Ginited States

DENA BRISCOE, ET AL., PETITIONERS

Vv.

JOHN E. POTTER, POSTMASTER GENERAL, ET AL.

LEROY RICHMOND, PETITIONER

v.

JOHN E. POTTER, POSTMASTER GENERAL, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT

olicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

MARK B. STERN

ALISA B. KLEIN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the comprehensive statutory scheme

governing Postal Service employment, which includes

remedies under the Federal Employees Compensation

Act, 5 U.S.C. 8101 et seg., and Section 717 of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. 2000e-16, pre-

cludes courts from—creating a remedy for alleged

constitutional violations under Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388 (1971).

(1)

ec ~ —- ™

TABLE OF CONTENTS

Page

NIN bi ha cnhcc vce vaweundceWetobanoneustuawess 1

PU win kh coke tack eles stv be pares dap kas 2

Statement:

A. The statutory remedial scheme .................... 2

ie PE MII 00s. duaceacees dekcenees 3

Ci UII Gnas eu tesans boene dad hue Gr bees 7

RIE 5.5.55 hxc 648 oka HER RA dR adedeeee aes 8

RAE 6 cbs cheeedeig Aabbsar gene eae gd aeees 15

TABLE OF AUTHORITIES

Cases:

American Postal Workers Union v. United States

Postal Serv., 940 F.2d 704 (D.C. Cir. 1991) ......... 3

Bennett v. Barnett, 210 F.3d 272 (5th Cir.), cert.

denied, 531 U.S. 875 (2000) .................-- 3, 11

Bishop v. Tice, 622 F.2d 349 (8th Cir. 1980) .......... 13

Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) .......... 2

Bush v. Lucas, 462 U.S. 367 (1983) ......... 7, 8,9, 14, 15

Brown v. General Servs. Admin., 425 U.S. 820

SONNE. nan treba scanedies aecausues ms are F 3, 8, 12

Correctional Servs. Corp. v. Malesko, 534 U.S. 61

CNG . hkb iad bacdy tered ank bree ade ees 9, 10, 15

Cuyahoga Valley Ry. v. United Transp. Union,

GO Si BE. 6d. C awe exeacdowessoheckesess 12

Grichenko v. United States Postal Serv., 524 F.

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

(2d Cir. 1984) .............--0 00 ee. , danieniaee 13

(IIT)

Cases—Continued: — Page

Harding v. United States Postal Serv., 802 F.2d

REG UES Vcius'eu ceded pee kee bes o> een bees ll

Lockheed Aircraft Corp. v. United States, 460 U.S.

SEU br co dhe cae cuansous densedinge vues 10, 11

McCullom v. Bolger, 794 F.2d 602 (11th T+. 1986),

cert. denied, 479 U.S. 1034 (1987) ................ ll

McIntosh v. Turner, 861 F.2d 524 (1988) ............. 13

National Collegiate Athletic Ass’n v. Smith,

Ste MP CAIUS aac eR ded vc ch wien ed bo veaes 8

Pereira v. United States Postal Serv., 964 F.2d 873

GN EE wa Veg ba RAG Reid Cp Re anh e Kanon 11

Pipkin v. United States Postal Serv., 951 F.2d 272

NS EE Rice ccd vise yseat dic ce voavces 11

Rauccio v. Frank, 750 F. Supp. 566

a CSUR cS Gu ave ck Gabieade a biw vue bees 13

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

United States v. Stanley, 483 U.S. 669 (1987) ......... 15

Constitution and statutes:

U.S. Const.:

I, 56.5 hk res ee he oka sa bes ede Vea Ree 9

MIC sis koko hos bs co eee be Oe A eas 6

Civil Rights Act of 1964, Tit. VII, 42 U.S.C.

ON a titan dk bao beedd erika baebes passim

42 USB.C. 20G00-16 (§ TIT)... i cece ec ceee 3, 12

Civil Service Reform Act of 1978, 5 U.S.C. 1101

ng, ELD LP EP ROR Ee EET RCE TO EEE Pe OPE wns 3

~ Statutes—Continued:

Federal Employees Compensation Act, 5 U.S.C.

8101 et seq.:

AERA ahve Reh anc covet enecvawhe is

CAPRI bo aeesaceperpisns bes necees

PALE re ho nranandakew daaedeee ers

We AEACRIEED ia edeid dep ceand dua diode ves

gtk fae “Gee ary Pea op Rey mr me nee

Occupational Safety and Health Act, 29 U.S.C. 651

Sahin Pa io sas porary eye coord mane Tapers

RST bs 65 bk Kou Ce oes esa ee dauicee

eS OO ins chk a Fee vSOKKe reek andes

Pe AAR. ap Vik vena data aseecnehentcek

Miscellaneous:

Robert L. Stern et al., Supreme Court Practice

SESS Sk d ccd ras nenresvudewaetoseese

United States General Accounting Office:

Report No. 04-205T, Testimony Before the

Committee on Government Reform of the

House of Representatives, U.S. Postal

Service, Clear Communication with

Employees Needed before Reopening the

Brentwood Facility (Oct. 23, 2003)

<http://www.gao.gov/new.itoms/ d05205T.

Ot GE DE OST a Oe UE SR Ey Uae Yee ke ee Gare

Page

VI

Miscellaneous—Continued: Page

Report No. 04-239, U.S. Postal Service, Better

Guidance Is Needed to Ensure an

Appropriate Response to Anthrax

Contamination, (Sept. 2004)

<http://www.gao.gov/new.items/

d04239.pdf>

In the Supreme Court of the United States

No. 05-977

DENA BRISCOE, ET AL., PETITIONERS

Vv.

JOHN E. POTTER, POSTMASTER GENERAL, ET AL.

No. 05-990

LEROY RICHMOND, PETITIONER

Vv.

JOHN E. POTTER, POSTMASTER GENERAL, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMB{A CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinions of the court of appeals (05-977 Pet. App.

la-4a; 05-990 Pet. App. la-3a) are unreported. The opin-

ion of the district court in No. 05-977 (Pet. App. 5a-45a)

is reported at 355 F. Supp. 2d 30. The memorandum

opinion of the district court in No. 05-990 (Pet. App. 4a-

42a) is unreported.

(1)

JURISDICTION :

The judgment of the court of appeals in each of the

cases was entered on November 7, 2005. The petition

for a writ of certiorari in No. 05-977 was filed on Febru-

ary 3, 2006. The petition in No. 05-990 was filed on Feb-

ruary 6, 2006 (a Monday). The jurisdiction of this Court

is invoked under 28 U.S.C. 12541.

STATEMENT

Petitioners are employees of the United States

Postal Service who worked at the Breatwood Postal Fa-

cility in October 2001 when the facility was contami-

nated with anthrax as the result of a terrorist attack.

They filed suits against Postmaster General Potter and

other Postal Service officials in their individual capaci-

ties, alleging that the government officials violated peti-

tioners’ constitutional rights by knowingly misrepre-

senting hazards at the facility. Petitioners sought

money damages for the alleged violations. The district

court dismissed the suits. The court of appeals affirmed

the dismissals, in unpublished per curiam opinions, con-

cluding that the comprehensive statutory scheme gov-

erning Postal Service employment precludes the courts

from creating additional remedies under Bivens v. Six

Unknown Named Agents of the Federal Bureau of Nar-

cotics, 403 U.S. 388 (1971).

A. The Statutory Remedial Scheme

The Postal Reorganization Act (PRA), Pub. L. No.

91-375, 84 Stat. 719, establishes a comprehensive

scheme governing employment relations within the

Postal Service. “The PRA operates largely by incorpo-

rating other statutes, including the [Federal Employees

Compensation Act], see 39 U.S.C. § 1005(c), and parts of

3

the Civil Service Reform Act [of 1978].” American

Postal Workers Union v. United States Postal Serv., 940

F.2d 704, 708 (D.C. Cir. 1991).

The Federal Employees Compensation Act (FECA),

5 U.S.C. 8101 et seq., provides that “[t]he United States

shall pay compensation * * * for the disability or death

of an employee resulting from personal injury sustained

while in the performance of his duty.” 5 U.S.C. 8102(a).

Determinations regarding FECA coverage are made by

the Department of Labor and are not subject to judicial

‘review. See 5 U.S.C. 8124(a), 8128(b), 8145. Where the

FECA is applicable, other remedies are expressly fore-

closed: “The liability of the United States or an instru-

mentality thereof * * * with respect to the injury or

death of an employee is exclusive and instead of all other

liability of the United States or the instrumentality.”

5 U.S.C. 8116(c).

In addition to the FECA remedy, the PRA affords

collective bargaining rights to postal workers not cov-

ered by the Civil Service Reform Act of 1978 (CSRA), 5

U.S.C. 1101 et seg. See Bennett v. Barnett, 210 F.3d

272, 274-275 (5th Cir.), cert. denied, 531 U.S. 875 (2000).

Postal Service employees are also protected by Section

717 of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

2000e-16, which provides the exclusive remedial scheme

for discrimination in federal employment on the basis of

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

v. General Servs: Admin., 425 U.S. 820, 835 (1976).

B. Petitioners’ Allegations

Because petitioners’ suits were dismissed on the

pleadings, this Court must assume the truth of the alle-

4

gations in their complaints. Those allegations are sum-

marized below.’

On Thursday, October 11, 2001, a letter addressed to

United States Senator Tom Daschle arrived in a mail

bag at Brentwood. The mail bag was opened and its

contents were separated into the Delivery Bar Code

Sorter (DBCS) #17. The letter was delivered to the

Hart Senate Office Building on Friday, October 12, and

was opened in the Senator’s office on Monday, Octo-

ber 15. The envelope held a white powder that con-

tained anthrax spores. See 05-977 Pet. App. 8a-9a.

On Tuesday, October 16, all Senate employees were

tested for anthrax exposure and given antibiotics as a

countermeasure. On Wednesday, October 17, the

United States House of Representatives was shut down

after several staff members tested positive for exposure

to anthrax. Anthrax spores were found in a mail room

in the Dirksen Senate Office Building, through which

the letter to Senator Daschle had passed before being

sent on to the Hart Senate Office Building. On Thurs-

day, October 18, all buildings on Capitol Hill were closed

and quarantined. See 05-977 Pet. App. 10a-1la.

The Postal Service sought guidance from the Centers

for Disease Control (CDC) and the District of Columbia

(D.C.) Department of Health. On Thursday, October 18,

' Two publications from the General Accounting Office (GAO) discuss

the events of October 2001 and the larger context in which they oc-

curred. See GAO, Report No. 04-239, U.S. Postal Service, Better

Guidance Is Needed to Ensure an Appropriate Response to Anthrax

Contamination (Sept. 2004) <http:/Avww.gao.gov/new.items/d04239.

pdf>; GAO, Report No. 04-205T, Testimony Before the Committee on

Government Reform of the House of Representatives, U.S. Postal Ser-

vice, Clear Communication with Employees Needed before Reopening

the Brentwood Facility (Oct. 23,2003) <http://www.gao.gov/new.items/

d04205T.pdf>.

5

a hazardous materials response team from Fairfax

County conducted testing at Brentwood. On the same

day, a private contractor conducted more extensive envi-

ronmental testing. See 05-977 Pet. App. 12a-13a.

On Friday, October 19, Postal Service officials asked

the D.C. Department of Health to place all Brentwood

employees on antibiotics for exposure to anthrax. See

ibid. The same day, Postal Service employee Leroy

Richmond, petitioner in No. 05-990, was admitted to the

hospital and was examined for inhalation anthrax. On

Sunday, October 21, after it was confirmed that Mr.

Richmond had contracted inhalation anthrax, the CDC

concluded that the Brentwood facility should be closed,

and the Postal Service shut down the facility. Mr. Rich-

mond survived, but two other Brentwood employees

died of inhalation anthrax. See 05-977 Pet. App. 14a-

15a.

Petitioners allege that Postal Service officials knew

or should have known by Wednesday, October 17, or

2arlier, that the anthrax spores contained in the Daschle

letter had created a dangerous health risk, but the

Postal Service did not close the Brentwood facility until

Sunday, October 21. See 05-977 C.A. App. 24-25; 05-990

Pet. App. 48a. Petitioners also allege that Postal Ser-

vice officials withheld information from employees and

provided them with false or misleading information. For

example, the Briscoe petitioners allege that, on Friday,

* The Briscoe petitioners do not claim to have tested positive for

anthrax. They allege that they experienced and continue to experience

“anthrax-like symptoms, in addition to substantial emotional distress,

pain, suffering, and anxiety.” 05-977 C.A. App. 40; see id. at 41. “O5-

977 C.A. App.” refers to the joint appendix filed in the court of appeals

in Appeal No. 04-5447. “05-990 C.A. App.” refers to the appendix filed

in the court of appeals in Appeal No. 04-5403.

6

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 officials 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.

Counts I, II, and III of the Briscoe complaint allege

violations of the procedural due process component cf

the Fifth Amendment. Petitioners allege that they were

deprived of the remedies under their co!lective 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. Id.

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.” Id. 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 Postal 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. 13a, 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, 31a-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 contro] over Con-

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

27a-31a.

The court of appeals affirmed the district court’s

judgments in two unpublished, per curiam opiniuns. 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

8

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.” Jd. 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).

9

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. Jd. 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. Jd. 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-

10

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. Jd. at 424-425. But the

Court explained that, “[wJhen 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 i..appropriate 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(c). Courts would disrupt the

careful balance struck by Congress if they supplemented

11

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).

12

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

13

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

Mclntosh 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.

14

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, because 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

US. 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 ebtain in a Bivens action.

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

a special factors analysis whether the laws currently on

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

15

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 (observing 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 ( ussuming 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