No. 98-554
In the Supreme Court of the United States
OCTOBER TERM, 1998
KENNETH W. LEE, PETITIONER
v.
ROBERT C. HUGHES, JR., AND DANIEL C. LANFORD, JR.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
FRANK W. HUNGER
Assistant Attorney General
BARBARA L. HERWIG
ROBERT M. LOEB
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether a preference-eligible employee in the excepted service of the Judicial
Branch may bring an action under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), to recover monetary damages from
his supervisors for termination of his employment.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-554
KENNETH W. LEE, PETITIONER
v.
ROBERT C. HUGHES, JR., AND DANIEL C. LANFORD, JR.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-13a) is reported at 145
F.3d 1272. The opinions of the district court (Pet. App. 14a-30a) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on July 9, 1998. The petition
for writ of certiorari was filed on October 1, 1998. The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Petitioner, a former United States Probation Officer for the Middle District
of Georgia, brought a federal suit against his supervisors for damages on
account of the termination of his employment, relying in part on this Court's
decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). The district court dismissed petitioner's suit, holding
that Congress's decision to provide limited remedies for federal employees
under the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92
Stat. 1111 (codified at various sections of Title 5 of the United States
Code), precludes the judiciary from creating a Bivens remedy. See Pet. App.
14a-30a. The court of appeals affirmed the district court's decision. Id.
at 1a-13a.
1. Congress has authorized the United States District Courts to appoint
and remove probation officers. See 18 U.S.C. 3602(a). In 1983, the United
States District Court for the Middle District of Georgia appointed petitioner
as a probation officer. Pet. App. 2a. Respondent Daniel Lanford, who was
Chief U.S. Probation Officer, and respondent Robert Hughes, who was Deputy
Chief U.S. Probation Officer, supervised petitioner. Id. at 2a, 16a. After
petitioner received poor performance evaluations, the district court demoted
petitioner and ultimately terminated his employment. Id. at 16a.
Petitioner protested his termination on the ground that the decision was
improperly motivated by race, and he sought redress through the Equal Employment
Opportunity (EEO) Plan for the Middle District of Georgia. Pet. App. 2a.
The EEO Plan adopted by the Middle District of Georgia is identical to the
EEO plan that had been considered and approved by the Judicial Conference
of the United States. Id. at 2a n.1. A complainant may initiate an action
under the EEO Plan by filing a timely discrimination complaint with the
EEO Coordinator. The EEO Coordinator or a court appointed investigator makes
an investigation, consults with the parties, and prepares a report "identifying
the issues, describing his or her findings and recommendations, explaining
what resolution, if any, was achieved, and defining what corrective actions,
if any, will be undertaken." Id. at 2a-3a. If the complainant objects
to the report, the complainant may request the chief judge of the district
court to review the matter. Id. at 3a. The chief judge may conduct any additional
investigation deemed necessary, interview the parties or other persons,
and determine whether to hold a formal hearing on the matter. Ibid.
The chief judge appointed a magistrate judge to investigate petitioner's
discrimination claim. Pet. App. 16a. After completing his investigation,
the magistrate judge submitted a report recommending that the chief judge
reject petitioner's discrimination claim. Ibid. Petitioner's counsel, who
was provided with a copy of the report, submitted written objections.1 After
considering the magistrate's report and recommendations and petitioner's
objections, the chief judge approved petitioner's termination. Ibid.
2. Petitioner filed suit in district court for compensatory and punitive
damages against respondents in their individual capacities. Petitioner asserted
a Bivens claim and a claim under 42 U.S.C. 1981, alleging that he was terminated
on the basis of race. The district court granted respondents' motion to
dismiss and entered judgment in their favor. The district court held, among
other things, that the CSRA sets out the appropriate procedures and remedies
for resolving federal employment disputes and that the CSRA precludes the
courts from creating additional Bivens remedies for damages from the employee's
supervisors. Pet. App. 17a-22a.2
Petitioner moved the district court to alter or amend its judgment, but
the court entered an order denying that motion. Pet. App. 26a-30a. The court
acknowledged that its prior opinion had incorrectly stated that petitioner
was a "nonpreference member of the excepted service" and that
petitioner had a right under the CSRA to challenge the adverse employment
action by filing a petition with the Office of Special Counsel of the Merit
Systems Protection Board. Id. at 26a-27a. Instead, petitioner was "a
preference eligible member of the excepted service in the judicial branch
and did not have the right to file a petition with the [Office of Special
Counsel]." Id. at 27a. The court nevertheless rejected petitioner's
contention that its misperception of petitioner's employment classification
justified setting aside the court's ruling. Id. at 27a-29a.
The district court stated that "[t]he operative fact for purposes of
the Court's analysis was that the CSRA does not provide [petitioner] the
right to administrative or judicial review of the merits of any adverse
personnel decision." Pet. App. 27a. The district court concluded that
Congress's decision to provide federal employees with certain CSRA remedies,
but to limit those statutory remedies in other respects, "constitutes
a special factor counseling against creating a Bivens cause of action in
the federal employment context." Id. at 28a. The district court additionally
noted that:
Congress amended the Back Pay Act, 5 U.S.C. § 5596, in 1990 specifically
to provide employees of the judicial branch with a back pay remedy for "unjustified
or unwarranted" personnel actions in appropriate circumstances. 5 U.S.C.
§ 5596(b)(1). Such a remedy is not precluded by the CSRA. United States
v. Fausto, 484 U.S. 439, 453 (1988). This remedy provided by Congress also
defeats [petitioner's] Bivens claim.
Id. at 29a.
3. The court of appeals affirmed the district court's judgment. Pet. App.
1a-13a. That court rejected petitioner's argument that he is entitled to
a Bivens remedy. Id. at 4a-11a. The court reasoned that Congress had enacted
the CSRA to provide a comprehensive remedial scheme for federal employees'
employment-related claims and that the CSRA does not provide an administrative
or judicial remedy to preference eligible employees of the excepted service
who work in the Judicial Branch. Id. at 4a-5a. The court of appeals reasoned
that Congress had made that decision deliberately and that it would be inappropriate
for the courts to create a Bivens remedy in the face of Congress's action.
Id. at 4a-11a. "In light of Congress's deliberate exclusion of certain
employees from the protections of the CSRA and this country's long-respected
separation of powers doctrine, courts should be hesitant to provide an aggrieved
plaintiff with a remedy where Congress intentionally has withheld one."
Id. at 9a.
ARGUMENT
The petition for a writ of certiorari should be denied. The court of appeals'
conclusion that the CSRA precludes the creation of a Bivens remedy here
is correct and consistent with this Court's decisions. There is no conflict
among the courts of appeals on that issue warranting the Court's review.
1. This Court decided in Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971), that a plaintiff who alleged injury from
violation of his Fourth Amendment rights could seek money damages against
the responsible federal officers for the constitutional violation. The Court
later extended that remedy to other types of constitutional injuries. See
Davis v. Passman, 442 U.S. 228 (1979) (denial of due process); Carlson v.
Green, 446 U.S. 14 (1980) (cruel and unusual punishment). The Court recognized
that the judicial creation of a monetary remedy for constitutional violations
was appropriate in those situations because Congress had not created a remedial
mechanism to address the alleged constitutional violations and there were
"no special factors counselling hesitation in the absence of affirmative
action by Congress." Bivens, 403 U.S. at 396-397. See Davis, 442 U.S.
at 245-247; Carlson, 446 U.S. at 18-20.
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 FDIC v. Meyer, 510 U.S. 471, 484 (1994). In
those situations in which Congress has established a comprehensive statutory
scheme to resolve disputes with the federal government, the Court has concluded
that a Bivens remedy is inappropriate, even if the remedial scheme does
not provide complete relief for the alleged constitutional injury. See Schweiker,
487 U.S. at 422-423; Bush v. Lucas, 462 U.S. 367, 388-390 (1983). The Court
has explained that the "the concept of 'special factors counselling
hesitation in the absence of affirmative action by Congress' has proved
to include an appropriate judicial deference to indications that congressional
inaction has not been inadvertent." Schweiker, 487 U.S. at 423. See
Chappell v. Wallace, 462 U.S. 296, 298 (1983). "When the design of
a Government program suggests that Congress has provided what it considers
adequate remedial mechanisms for constitutional violations that may occur
in the course of its administration," this Court has held that it is
inappropriate for a court to afford "additional Bivens remedies."
Schweiker, 487 U.S. at 423.
As this Court has recognized, the CSRA "comprehensively overhauled
the civil service system," Lindahl v. OPM, 470 U.S. 768, 773 (1985),
and created an elaborate "new framework for evaluating adverse personnel
actions against [federal employees]," id. at 774. The CSRA classifies
federal employees according to their responsibilities and qualifications.
See United States v. Fausto, 484 U.S. 439, 441 n.1 (1988); 5 U.S.C. 2101-2105
(1994 & Supp. II 1996), 2108, 3132 (1994 & Supp. II 1996). It then
specifies, for employees in each classification, the employment protections,
remedies, and avenues for administrative and judicial review of adverse
personnel actions. See, e.g., 5 U.S.C. 7501-7703 (1994 & Supp. II 1996).
In this case, petitioner, who is a preference-eligible member of the excepted
service in the Judicial Branch, enjoys a number of employment benefits under
the CSRA and related statutes, but he does not have the statutory rights
provided to most other federal employees to challenge an adverse personnel
action. The fact that Congress has not extended the same CSRA rights to
petitioner and other judicial branch employees does not mean, however, that
petitioner may assert a Bivens claim. Congress deliberately excluded court
personnel from those provisions of the CSRA based on a policy judgment that
took into account both the Judicial Branch's need for independence in personnel
management and the court personnel's employment rights. Congress's judgment
on that matter is a "special factor[ ] counselling hesitation"
that weighs against creating a Bivens remedy. See Schweiker, 487 U.S. at
423, 426-429; Bush, 462 U.S. at 372-373 & n.9.
Congress has struck a carefully considered balance that is sensitive to
the interests of the Judicial Branch. In the case of probation officers,
Congress granted the district courts the authority to appoint and remove
those employees, 18 U.S.C. 3602(a), and it established that a paid probation
officer may be removed by the district court only "for cause."
Ibid. The Judicial Conference has, in turn, directed that each district
court adopt an EEO Plan that, among other things, provides a mechanism by
which probation officers, as well as other court personnel, may seek redress
of discrimination complaints. Pet. App. 2a-3a. Under the Back Pay Act of
1966, a court employee who successfully invokes that administrative remedy
may be entitled to back pay plus interest. See 5 U.S.C. 5595-5596 (1994
& Supp. II 1996).3
Congress's decision to limit the rights of court employees to challenge
adverse personnel actions in this way was not "inadvertent." Schweiker,
487 U.S. at 423. Congress elected to provide probation officers and other
court appointed personnel many benefits that are available to other federal
employees, including severance pay, 5 U.S.C. 5595 (1994 & Supp. II 1996),
retirement benefits, 5 U.S.C. 8331(1)(A), life insurance, 5 U.S.C. 8701(a)(1),
health insurance, 5 U.S.C. 8901(1)(A), and coverage under the Annual and
Sick Leave Act of 1951, 5 U.S.C. 6301(2), and the Family and Medical Leave
Act of 1993, 5 U.S.C. 6381(1). Congress's decision, nevertheless, to provide
more circumscribed rights to challenge adverse personnel actions reflects
conscious sensitivity to the personnel management interests of the Judicial
Branch, which in turn is a "special factor[] counselling hesitation."
Schweiker, 487 U.S. at 423; Bush, 462 U.S. at 380, 388-390.
Congress's sensitivity to the Judicial Branch's employment interests is
especially clear in light of its enactment of the Administrative Office
of the United States Courts Personnel Act of 1990 (AO Act), Pub. L. No.
101-474, 104 Stat. 1097. The AO Act placed employees of the Administrative
Office of the United States Courts outside of the coverage of the CSRA for
purposes of adverse personnel actions and directed the Administrative Office
to design its own administrative remedies. § 3(a), 104 Stat. 1097-1098.
In doing so, Congress recognized that it was necessary for the Judicial
Branch to have its own "independent, self-contained personnel management
system." H.R. Rep. No. 770, 101st Cong., 2d Sess. Pt. 1, at 5 (1990).
Petitioner is not an employee of the Administrative Office and therefore
is not entitled to invoke the specific administrative remedies that the
Administrative Office created through that Act. Nevertheless, Congress recognized
that the federal courts were already "mostly free" of Executive
Branch supervision over employment matters, and the administrative remedies
that petitioner and other Judicial Branch employees are entitled to invoke
through the court-adopted EEO Plans are analogous to the procedures envisioned
under the AO Act. Ibid.
Congress described the AO Act as establishing a "comprehensive personnel
system" for Administrative Office employees, H.R. Rep. No. 770, supra,
at 1, and it stated that this personnel system is similar to that available
to "the rest of the judicial branch," id. at 5. The mandated procedures,
like the EEO Plans, provide a mechanism for resolving employment disputes
involving claims of discrimination. See § 3(a)(5) and (9), 104 Stat.
1097-1098; H.R. Rep. No. 770, supra, at 5, 7-8. In both situations, Congress
has enabled the employee to seek a back pay remedy, under the Back Pay Act
of 1966, in conjunction with the administrative review scheme. H.R. Rep.
No. 770, supra, at 12. Thus, Congress was aware of the type of remedies
being afforded to judicial employees for employment discrimination through
the EEO plan system, expressed its approval of those remedies, and augmented
them through revisions to the Back Pay Act of 1966.4
The CSRA, coupled with other congressional actions, including enactment
of the AO Act and amendment of the Back Pay Act of 1966, accordingly manifests
Congress's policy determination that Judicial Branch personnel, such as
petitioner, who seek to challenge adverse personnel action are to do so
through the Judicial Branch's administrative remedies. Compare Bush, 462
U.S. at 388-390. Although petitioner had no statutory review rights under
the CSRA, he has meaningful remedies. The court of appeals correctly concluded
that, "[i]n light of the comprehensive nature of the CSRA," petitioner
"is precluded from asserting a Bivens claim in an attempt to recover
damages for the constitutional violations alleged here." Pet. App.
11a.5
2. Petitioner is also mistaken in contending that the courts of appeals'
decision in this case gives rise to a conflict among the court of appeals
warranting this Court's review. The court of appeals' decision is consistent
with other circuit court decisions holding that the CSRA is a comprehensive
statute that precludes Bivens claims even in those situations in which it
does not provide review for a particular category of employee or claim.
See Saul v. United States, 928 F.2d 829, 840 (9th Cir. 1991) (CSRA "precludes
even those Bivens claims for which the act prescribes no alternative remedy");
Lombardi v. Small Bus. Admin., 889 F.2d 959, 961 (10th Cir. 1989) (decisions
in Fausto and Schweiker weigh against creating "a Bivens remedy in
a Federal employment action even if no remedy at all has been provided by
the CSRA"); Feit v. Ward, 886 F.2d 848, 855-856 (7th Cir. 1989) (withdrawing
as contrary to Schweiker a plurality opinion allowing a discharged employee
who had no remedy under the CSRA to bring a Bivens action).
Petitioner contends that the court of appeals' decision conflicts with Duffy
v. Wolle, 123 F.3d 1026 (8th Cir. 1997), cert. denied, 118 S. Ct. 1839 (1998).
In that case, the Eighth Circuit held that a court-adopted EEO Plan, standing
alone, did not preclude a probation officer from asserting a Bivens sex
discrimination claim against the judges who elected not to promote him to
the position of Chief Probation Officer, id. at 1033, but ultimately affirmed
the district court's grant of summary judgment in favor of the defendants,
id. at 1040-1041. As the court of appeals in this case observed, it appears
that "the defendants in Duffy never suggested that the CSRA preempted
plaintiff's claim, but rather argued only that plaintiff's Bivens claim
should have been dismissed because the local EEO Plan provided plaintiff
with a remedy." Pet. App. 10a n.4. Because the Eighth Circuit did not
address the CSRA's effect, Duffy does not conflict with the court of appeals'
decision in this case. Ibid.
In addition, the Eighth Circuit appeared to rely on the defendants' failure
to "present[] * * * support" for the conclusion that the remedial
scheme available to judicial employees did not result from congressional
inadvertence. Duffy, 123 F.3d at 1034-1035. As we explain above, there is
ample indication that Congress deliberately limited the remedies available
to judicial personnel for adverse personnel actions. The Eighth Circuit
also appeared to believe that there were no statutory remedies available
to Judicial Branch employees. Ibid. As discussed above, judicial employees
may seek a remedy under the Back Pay Act of 1966 in conjunction with the
Judicial Branch's administrative process for addressing discrimination complaints.
In any event, review of the issue presented here would be premature. At
this juncture, only the Eighth and Eleventh Circuits have specifically addressed
whether probation officers are entitled to a Bivens remedy for adverse personnel
actions, and the Eighth Circuit's consideration of the matter was based
on incomplete arguments and incorrect assumptions. The Court would plainly
benefit from further consideration of the issue in the courts of appeals.
Currently, the issue is pending in at least one other court of appeals.
See DeMello v. Ney, No. 97-15205 (9th Cir. (filed Nov. 5, 1998)); Blankenship
v. McDonald, No. 97-35898 (9th Cir. (argued Dec. 10, 1998)). The question
presented here does not warrant this Court's review at this juncture.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
FRANK W. HUNGER
Assistant Attorney General
BARBARA L. HERWIG
ROBERT M. LOEB
Attorneys
JANUARY 1999
1 Under the EEO Plan, an aggrieved employee may seek review of the report
and the chief judge may hold a formal hearing, including the cross-examination
of witnesses. See C.A. Supp. App. Doc. 2 (EEO Plan, § 7.04(D)(3)(c)).
In this case, the chief judge met with petitioner's counsel and said he
was "open to whatever appeal, whatever tact [sic] you wished to take."
C.A. Supp. App. Docs. 5, 6. Petitioner's counsel did not request a formal
hearing at that meeting and instead submitted a three-page letter to the
chief judge objecting to the magistrate judge's report. C.A. Supp. App.
Doc. 7.
2 The district court also concluded that petitioner's Section 1981 claimed
was without merit because the statute does not apply to actions taken under
color of federal law. Pet. App. 22a-25a. The court of appeals affirmed this
ruling on appeal (id. at 11a-13a), and petitioner does not challenge that
holding in his petition to this Court.
3 The Back Pay Act of 1966 defines an "employee" as "an individual
employed in or under an agency," and it defines an "agency"
to include the federal courts. See 5 U.S.C. 5595(a)(1) and (2)(A), 5596(a);
28 U.S.C. 610; see also 5 U.S.C. 2104(a), 2105 (1994 & Supp. II 1996).
4 Congress demonstrated further deference to the Judicial Branch in the
Congressional Accountability Act of 1995, in which Congress applied 11 federal
employment and workplace laws to the Legislative Branch of the federal government.
2 U.S.C. 1301 et seq. (Supp. II 1996). Congress did not extend those laws
to the Judicial Branch, but rather required the Judicial Conference to prepare
a report for Congress, including "any recommendations the Judicial
Conference may have for legislation to provide to employees of the judicial
branch the rights, protections, and procedures under the listed laws."
2 U.S.C. 1434 (Supp. II 1996).
5 The court of appeals correctly concluded that petitioner's reliance upon
Davis v. Passman, 442 U.S. 228 (1979), is misplaced. In Davis, the Court
permitted a former congressional staff member to bring a Bivens action against
a congressman alleging unconstitutional discrimination on the basis of sex.
The Court did not address the preclusive effect of the CSRA, which Congress
had enacted only a few months before Davis was decided. Pet. App. 8a. Since
that time, the Court has stated that its decision in Davis rested on the
absence of any equitable or monetary remedy for the terminated staff member.
See Bush, 462 U.S. at 376-377 & n.13. In this case, there is an elaborate
administrative review scheme and the opportunity to obtain both equitable
and monetary relief (back pay with interest). That important difference
makes the reasoning of Davis inapplicable here. Indeed, Justice Marshall's
concurring opinion in Bush explicitly endorsed the Back Pay Act of 1966
remedy as an adequate form of relief that forecloses a constitutional Bivens
money damage action. See 462 U.S. at 390-391 (Marshall, J., concurring)
("Although petitioner may be correct that the administrative procedure
created by Congress, unlike a Bivens action, does not permit recovery for
loss due to emotional distress and mental anguish, Congress plainly intended
to provide what it regarded as full compensatory relief when it enacted
the Back Pay Act of 1966.") (footnote omitted).