Thomas W. Hill v. Department of The Air Force Paul J. Vallerie, and Paul S. Britt, 884 F.2d 1318, 10th Cir. (1989)
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Scribd Government DocsThomas W. Hill v. Department of The Air Force Paul J. Vallerie, and Paul S. Britt, 884 F.2d 1318, 10th Cir. (1989)
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Scribd Government Docs884 F.
2d 1318
Thomas W. HILL, Plaintiff-Appellee,
v.
DEPARTMENT OF the AIR FORCE; Paul J. Vallerie,
Defendants,
and
Paul S. Britt, Defendant-Appellant.
No. 88-2775.
United States Court of Appeals,
Tenth Circuit.
July 7, 1989.
Rehearing Denied Oct. 6, 1989.
John R. Bolton, Asst. Atty. Gen., Barbara L. Herwig and Howard S.
Scher, Attys., Civ. Div., Dept. of Justice, Washington, D.C., William L.
Lutz, U.S. Atty., Albuquerque, N.M., for defendants and defendantappellant Paul S. Britt.
Thomas W. Hill, pro se.
Before McKAY, ANDERSON, Circuit Judges, and BROWN, District
Judge.*
PER CURIAM.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
Defendant Paul S. Britt appeals from two district court orders setting this case
for trial and apparently rejecting his claim of qualified immunity. Britt argues
that the district court erred in not dismissing this Bivens action, Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971), (1) because Britt is entitled to qualified immunity
and (2) because no Bivens remedy may be implied to supplement Civil Service
Reform Act remedies in federal personnel matters. We agree with Britt's second
argument and reverse.
3
Plaintiff Thomas W. Hill, a civilian military employee at Kirtland Air Force
Base in New Mexico working in star wars research, commenced this action
against his former supervisor, Britt. In the fifth cause of action in his second
amended complaint, Hill alleged Britt violated his constitutional right to due
process by interfering with his security clearance and future Air Force job
possibilities by collecting and disseminating to superiors and other agency
officials false information about Hill. Hill also alleged that Britt violated his
rights to due process and privacy by eavesdropping on his telephone
conversations either personally or by ordering others to do so. Britt filed a
motion to dismiss alleging absolute and qualified immunity. The district court
dismissed part of the fifth cause of action on absolute immunity grounds. It did
not discuss qualified immunity. Britt subsequently moved to supplement his
motion to dismiss again raising the qualified immunity issue. Without
explanation, the district court denied the motion to supplement. Britt appealed.
It is well settled that a court of appeals has jurisdiction to consider an
interlocutory appeal involving an issue of qualified immunity. See Mitchell v.
Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Pueblo
Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 644-45 (10th
Cir.1988). Britt's interlocutory appeal is properly before this court, because his
qualified immunity claim was apparently denied by the district court. On
appeal, "[w]e need not confine our review, however, to the viability of the
qualified immunity defense." Carlson v. Conklin, 813 F.2d 769, 770-71 (6th
Cir.1987) (42 U.S.C. Sec. 1983 action could be dismissed for failure to state a
claim without reaching the qualified immunity issue); see also Bolden v.
Alston, 810 F.2d 353, 356 (2d Cir.), cert. denied, 484 U.S. 896, 108 S.Ct. 229,
98 L.Ed.2d 188 (1987) (court considered qualified immunity issue and
exercised pendent jurisdiction to review other issues). Because we find no
Bivens remedy under the circumstances of this case, we need not address the
qualified immunity issue.
Bivens permits an action for damages against a federal agent who "acting under
color of his authority" engages in unconstitutional conduct. 403 U.S. at 389, 91
S.Ct. at 2001. When there are "special factors counselling hesitation in the
absence of affirmative action by Congress," id. at 396, 91 S.Ct. at 2005, or a
congressional statement that money damages could not be recovered due to the
availability of another equally effective remedy, id. at 397, 91 S.Ct. at 2005,
courts should refuse to create damages remedies against federal agents. Accord
Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). The
Supreme Court has been cautious in extending Bivens into new contexts.
Schweiker v. Chilicky, --- U.S. ----, 108 S.Ct. 2460, 2467, 101 L.Ed.2d 370
(1988).
6
In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, the Court held that because
claims that a superior violated the federal employees' first amendment rights
"arise out of an employment relationship that is governed by comprehensive
procedural and substantive provisions giving meaningful remedies," it was
inappropriate to provide a new judicial remedy beyond the regulatory scheme.
Id. at 368, 103 S.Ct. at 2406. Likewise, in the most recent Supreme Court case
on the subject, Schweiker v. Chilicky, 108 S.Ct. 2460, the Court declined to
provide a damages remedy for Social Security disability claimants who alleged
federal officials unconstitutionally terminated their benefits. The Court in
Chilicky stated that "[w]hen 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 2468. "The absence of
statutory relief for a constitutional violation ... does not by any means
necessarily imply that courts should award money damages against the officers
responsible for the violation." Id. at 2467. The Court indicated that judicial
deference must be given to indications that Congress' inaction was not
inadvertent. Id. at 2468. Read together, Chilicky and Bush provide that "courts
must withhold their power to fashion damages remedies when Congress has put
in place a comprehensive system to administer public rights, has 'not
inadvertently' omitted damages remedies for certain claimants, and has not
plainly expressed an intention that the courts preserve Bivens remedies."
Spagnola v. Mathis, 859 F.2d 223, 228 (D.C.Cir.1988).
Two federal courts of appeals applied the reasoning of Chilicky and Bush to
situations similar to the one in the case at bar and concluded there was no
Bivens remedy. See McIntosh v. Turner, 861 F.2d 524 (8th Cir.1988);
Spagnola, 859 F.2d 223. In both cases, the plaintiffs filed Bivens actions based
on prohibited personnel practices. See 5 U.S.C. Sec. 2302. The Spagnola court
focused on the comprehensiveness of the remedies provided by the Civil
Service Reform Act. 859 F.2d at 229; see also McIntosh, 861 F.2d at 525-27
(relying exclusively on the reasoning in Spagnola; stating Chilicky has
unfavorable implications for Bivens actions in any field in which Congress has
acted pervasively). Even if the Civil Service Reform Act remedy were
incomplete, but had not inadvertently omitted damages remedies, no Bivens
remedy would be implied. Spagnola, 859 F.2d at 229.
Hill's allegations that Britt violated his due process rights by interfering with his
security clearance and his job possibilities are allegations of prohibited
personnel practices. See 5 U.S.C. Sec. 2302. Accordingly, based on the
holdings and reasonings in Bush, Chilicky, Spagnola, and McIntosh, Hill does
not have a Bivens action for damages for these allegations.
Although Hill's allegation of violation of his right to privacy by Britt's
eavesdropping on his personal telephone conversations is not an allegation of a
violation of a listed prohibited personnel practice, there is no Bivens remedy.
The nature of the particular constitutional injury played little role in the
Supreme Court's reasoning in Bush. Gleason v. Malcom, 718 F.2d 1044, 1048
(11th Cir.1983) (allegations that Department of the Army supervisors and other
employees violated her first, fourth, and fifth amendment rights by, among
other things, listening to her telephone conversations in an open office). Rather,
the Court focused on the special factor of federal employment. Id. Chilicky
indicates that Bush even extends to plaintiffs who have no remedy under the
Civil Service Reform Act. 108 S.Ct. at 2467. Furthermore, Hill ultimately was
fired due to, among other reasons, conversion of telephone services. Hill
received full due process, under the comprehensive statutory scheme, after he
contested his loss of employment. Cf. Philippus v. Griffin, 759 F.2d 806, 80809 (10th Cir.1985) (Bush rationale and holding apply even if no adverse
personnel action is taken).
10
Accordingly, the judgment of the United States District Court for the District of
New Mexico in favor of Hill on his Bivens claim is REVERSED, and the cause
is REMANDED to the district court with instruction to dismiss count five of
the second amended complaint with prejudice. Hill's motion to supplement the
record on appeal and for sanctions are DENIED. We have received and
considered Hill's supplemental authority.
11
The mandate shall issue forthwith.
The Honorable Wesley E. Brown, District Judge, United States District Court
for the District of Kansas, sitting by designation
