KENNETH A. GREENE, PETITIONER V. LOUIS W. SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. No. 90-6083 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The Respondents In Opposition OPINIONS BELOW The decision of the court of appeals (Pet. App. 122-123) is unreported. The district court's orders of July 13, 1988 (Pet. App. 29-45), September 6, 1988 (Pet. App. 84), September 22, 1989 (Pet. App. 87-93), and December 11, 1989 (Pet. App. 116-121) are unreported. JURISDICTION The judgment of the court of appeals was entered on July 13, 1990. The petition for a writ of certiorari was filed on October 11, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Civil Service Reform Act provides the exclusive remedies for certain employment-related claims asserted by petitioner. 2. Whether the district court properly struck petitioner's untimely amended complaint. 3. Whether the district court properly rejected petitioner's remaining claims on jurisdictional grounds. STATEMENT Petitioner was employed by the Social Security Administration (SSA) of the Department of Health and Human Services (HHS). He brought an action in district court for damages and injunctive relief against the Office of Personnel Management, the Secretary of HHS, the Commissioner and Regional Commissioner of SSA, and various supervisory personnel of HHS on constitutional and statutory claims arising from denials of requested leaves, placement on involuntary leave, alleged reprisals for union activity, denial of his request to withdraw from voluntary disability retirement, and the alleged breach of two settlement agreements involving other personnel actions. Pet. App. 32, 41. /1/ On July 13, 1988, the district court dismissed petitioner's claims against the defendants in their official capacities on the ground that the United States has not waived its sovereign immunity from suit on those claims. Pet. App. 35, 37. The court additionally concluded that the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 et seq., which is "a comprehensive statutory scheme designed to provide the exclusive means for reviewing personnel actions taken against federal employees" (Pet. App. 38), precluded recognition of a constitutional cause of action against the individual respondents for the adverse personnel determinations. Id. at 38. The court also ruled that petitioner was not entitled to a remedy under 42 U.S.C. 1983 and related civil rights statutes. Id. at 39-40. The district court granted petitioner thirty days to specify, through a second amended complaint, the factual basis of his Fifth Amendment claim for injunctive relief. Id. at 36. Petitioner filed his second amended complaint on August 19, 1988 (Pet. 31), outside the thirty-day period the district court had provided. The court granted defendants' motion to strike the complaint, but gave petitioner twenty days to file another amended complaint. Pet. App. 84. Because no further amended complaint was filed within the allotted time, the court granted summary judgment for the defendants on that claim. Id. at 88-89. On December 11, 1989, the district court concluded that it lacked jurisdiction over petitioner's remaining claims, which were based on HHS's alleged breach of two settlement agreements involving accommodation of petitioner's visual handicap. The court ruled that jurisdiction over one of those claims, which had been litigated before the Merit Systems Protection Board (MSPB), rested exclusively in the United States Court of Appeals for the Federal Circuit. Pet. App. 118-119. The court concluded that it lacked jurisdiction over the other claim because petitioner had failed to exhaust his administrative remedies. Id. at 119-120. The court of appeals affirmed the judgment of the district court without opinion. Id. at 122-123. ARGUMENT The court of appeals' decision is correct. It does not conflict with any decision of this Court or of another court of appeals, and it presents no issue warranting this Court's review. 1. Petitioner incorrectly contends that he is entitled to pursue a Bivens action for damages against the defendants in their individual capacities for adverse employment actions that allegedly violated the First, Fourth, and Fifth Amendments. Pet. 29, 54. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 396 (1971). A Bivens action is not available here because Congress, through enactment of the CSRA, has created a comprehensive, exclusive scheme for resolution of the employment-related claims of federal employees. Bush v. Lucas, 462 U.S. 367, 368 (1983). See also, e.g., Stephens v. Department of HHS, 901 F.2d 1571 (11th Cir.), cert. denied, 111 S. Ct. 555(1990); Brothers v. Custis, 886 F.2d 1282, 1284-1285 (10th Cir. 1989); Spagnola v. Mathis, 859 F.2d 223, 228-229 (D.C. Cir. 1988) (per curiam) (en banc); Pinar v. Dole, 747 F.2d 899, 909 (4th Cir. 1984), cert. denied, 471 U.S. 1016 (1985). /2/ Contrary to petitioner's suggestion (Pet. at 30), a complainant is not entitled to a Bivens remedy even if he has exhausted his administrative remedies, if the rights allegedly violated were "clearly established," or if the statutory remedy does not provide complete relief. See, e.g., Schweiker v. Chilicky, 487 U.S. 412, 422-423 (1988). Rather, the question is whether Congress has provided what it concludes are appropriate remedies. "When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies." Id. at 423. The district court was also correct in holding that petitioner's claim under 42 U.S.C. 1985 is preempted by the more precisely drawn statutory remedies provided by the CSRA, which Congress intended to be the exclusive means for challenging federal employment actions. Cf. United States v. Fausto, 484 U.S. 439 (1988); Brown v. GSA, 425 U.S. 820, 834 (1976). Similarly, petitioner cannot rely (Pet. 51-54) on the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., to circumvent the procedures and remedies set forth in the CSRA. Premachandra v. United States, 739 F.2d 392 (8th Cir. 1984); see Brown, 425 U.S. at 834-835. The cases cited by petitioner (Pet. 52-53) are irrelevant because they do not involve the preclusive effect of the CSRA. Petitioner's claim under 42 U.S.C. 1981 also fails. Section 1981 prohibits racial discrimination in the making and enforcement of contracts. See Patterson v. McLean Credit Union, 109 S. Ct. 2363, 2372 (1989); Runyon v. McCrary, 427 U.S. 160, 168-170 (1976). Petitioner has not alleged discrimination on the basis of his race. 2. Petitioner contends (Pet. 30-34) that the district court erred in striking petitioner's second amended complaint. The district court determined that petitioner's first amended complaint was inadequate and gave petitioner thirty days in which to file a second amended complaint specifying the factual basis of his Fifth Amendment claim for injunctive relief. In striking petitioner's second amended complaint after petitioner attempted to file it outside the time limit the court had set, Pet. App. 84, 88-89, the district court acted well within its authority. See, e.g., Lujan v. National Wildlife Federation, 110 S. Ct. 3177, 3191-3193 (1990). Indeed, the court gave petitioner twenty additional days in which to amend his complaint, Pet. App. 84, and petitioner failed to comply with that requirement as well. Id. at 88-89. 3. Petitioner asserts that a number of his claims were improperly dismissed on jurisdictional grounds. Pet. 35-45. Those arguments are without merit. Contrary to petitioner's suggestion (Pet. 43), the district court properly concluded that petitioner had failed to raise a discrimination claim in his administrative challenge to a prior settlement agreement. The court expressly observed that the Equal Employment Opportunity Commission had refused to review the administrative determination by the MSPB because "plaintiff had presented no issues of discrimination to the MSPB." Pet. App. 117. Petitioner also argues (Pet. 39-41, 44) that the district court incorrectly determined that he failed to exhaust his administrative remedies prior to bringing suit. That factual issue does not warrant this Court's review. Petitioner additionally suggests (Id. at 48) that he was not required to exhaust his administrative remedies because exhaustion would have been futile, but he offers no support whatsoever for that contention. /3/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General MARLEIGH DOVER JENNIFER ZACKS Attorneys JANUARY 1991 /1/ Greene does not seek further review of any other claims raised below. /2/ There is no dispute here that the CSRA provides an avenue for petitioner to assert his claims. Non-probationary employees in the competitive service, such as petitioner, who are subjected to major adverse personnel actions (defined by 5 U.S.C. 7512 to include removals and suspensions for more than 14 days) are entitled to judicial review following administrative proceedings and an administrative appeal to the MSPB. 5 U.S.C. 7501-7701, 7703(b)(1). Before subjecting a competitive service employee to a minor personnel action, such as a suspension of 14 days or less, an agency must afford the employee procedural protections. 5 U.S.C. 7503. Furthermore, the CSRA created an Office of Special Counsel (OSC), 5 U.S.C. 1204, to investigate prohibited personnel practices, which include unlawful discrimination on the basis of handicap. 5 U.S.C. 2302(b)(1). Any employee subjected to a prohibited personnel practice may request an investigation by the OSC. After investigating, the OSC may request the MSPB to consider and order corrective action on the matter. 5 U.S.C. 1206. /3/ Because petitioner raises no cognizable claims, there is no need to address the issue whether petitioner would be entitled to a jury trial. Pet. 48-50.