PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
No. 97-6575
_______________
D. C. Docket No. CV 96-H-496-NE
GEORGE MILLER,
Plaintiff-Appellant,
versus
U.S. DEPARTMENT OF AGRICULTURE FARM SERVICES AGENCY, USDA, OFFICE
OF INSPECTOR GENERAL, et al.,
Defendants-Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Alabama
______________________________
(June 17, 1998)
Before ANDERSON and BIRCH, Circuit Judges, and COHILL*, Senior
District Judge.
BIRCH, Circuit Judge:
In this appeal, we determine, as a matter of first impression,
whether a former employee of a county office of the United States
*
Honorable Maurice B. Cohill, Senior District Judge for the
Western District of Pennsylvania, sitting by designation.
Department of Agriculture Stabilization and Conservation Service
(“ASCS”) can bring a Bivens action against the federal government
officers responsible for his termination.1 On summary judgment, the
district court ruled that alternate administrative remedies precluded
plaintiff-appellant from maintaining a Bivens suit. We affirm.
I. BACKGROUND
The Secretary of Agriculture (“the Secretary”) oversees three
levels of “representative” committees charged with assisting the
United States Department of Agriculture (“USDA”) in carrying out its
farm programs. See 16 U.S.C. § 590h(b). At the apex of this
structure, the Deputy Administrator supervises state committees
composed of farmers appointed by the Secretary. See 16 U.S.C. §
590h(b); 7 C.F.R. § 7.4. These state committees are “responsible
for carrying out the agriculture conservation program, the production
adjustment and price support programs, the acreage allotment and
1
Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)
2
marketing quota programs, the wool and mohair incentive payment
program, and any other program or function assigned by the
Secretary.” 7 C.F.R. § 7.20. Under these state committees, elected
county committees actually implement the ASCS’s programs. See
16 U.S.C. § 590h(b); 7 C.F.R. §§ 7.4, 7.21. Finally, below these
county committees are elected local committees that serve as
liaisons between farmers and the state and county committees. See
16 U.S.C. § 590h(b); 7 C.F.R. §§ 7.4, 7.9, 7.22. By regulation,
employees of the county and local ASCS committees are hired by
and serve at the pleasure of these committees. See 7 C.F.R. §§
7.28, 7.29. As a result, such workers are not “federal employees” for
purposes of the Civil Service Reform Act (“CSRA”) (codified in
various sections of 5 U.S.C.) and so may not avail themselves of its
protections. See, e.g., Hedman v. Department of Agriculture, 915
F.2d 1552 (Fed. Cir. 1990) (citing 5 U.S.C. 2105(a)).
In June 1983, plaintiff-appellant, George W. Miller, received an
appointment from the Madison County, Alabama ASCS Committee
3
(“the Mobile Committee”) to serve as its County Executive Director
(“CED”). See 16. U.S.C. § 590h(b)(5)(E); 7 C.F.R. § 7.21(b)(2).
Eleven years later, in March 1994, the Alabama State ASCS
Committee (“the Alabama Committee”) held a hearing to consider
removing Miller from his position because of charges that he had
violated ASCS policies upon his receipt of information of possible
criminal activity. Immediately following the hearing, the Alabama
Committee voted to terminate Miller’s employment pursuant to 7
C.F.R. § 7.28. According to Miller, however, the Alabama
Committee’s decision was motivated not by concern about his
alleged improper behavior but rather by a desire to punish him for
his Republican party affiliation.
After his removal, Miller requested a hearing before the Deputy
Administrator, pursuant to 7 C.F.R. §§ 7.30 and 7.31. As authorized
by 7 C.F.R. § 7.32, a designee of the Deputy Administrator held a
two-day hearing and issued a report to the Deputy Administrator
recommending Miller’s termination. Miller maintains that the Deputy
4
Administrator’s subsequent adoption of the recommendation
constituted a deprivation of due process. Miller further alleges that
improper motives inspired the Deputy Administrator’s confirmation
of Miller’s dismissal.
On February 26, 1996, Miller filed suit pro se in the district court
against a variety of federal officials and agencies, alleging violations
of his First Amendment right of free speech and his Fifth
Amendment right of due process. Although Miller initially sought
relief under 42 U.S.C. §§ 1983 and 1985(3), the district court
subsequently construed the complaint as asserting claims under
Bivens, since all of the defendants were federal agencies or officials.
On April 1997, the defendants-appellees (“Appellees”) moved to
dismiss, inter alia, on the ground that the Administrative Procedure
Act (“APA”), 5 U.S.C. §§ 701-706, provides an exclusive remedy for
improper terminations of ASCS county workers. On May 28, 1997,
the district court agreed that Miller’s right to judicial review under the
5
APA precluded him from bringing a Bivens action, and the court
therefore dismissed his suit.
II. DISCUSSION
On appeal, Miller renews his contention that he is entitled to
bring an action against Appellees for money damages. In assessing
a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
a court must accept all of the facts in the complaint as true, granting
the motion only if it appears beyond doubt that the plaintiff can prove
no set of facts that would entitle him to relief. See St. Joseph’s
Hosp. v. Hospital Corp. of Am., 795 F.2d 948, 953 (11th Cir. 1986).
We review the district court’s decision to dismiss Miller’s claims de
novo. See McKusick v. City of Melbourne, 96 F.3d 478, 482 (11th
Cir. 1996).
6
In Bivens, the Supreme Court held that victims of Fourth
Amendment violations by federal officers could bring suit for money
damages in federal court even though no federal statute expressly
authorized such relief. See Bivens, 403 U.S. at 397, 91 S. Ct. at
2005. Although the Court subsequently allowed Bivens actions for
violations of other constitutional rights, it has more recently
“responded cautiously to suggestions that Bivens remedies be
extended into new contexts.” Schweicker v. Chilicky, 487 U.S. 412,
421, 108 S. Ct. 2460, 2467, 101 L. Ed. 2d 370 (1988). In particular,
the Court has emphasized that Congress is in a better position than
the courts to weigh the competing policy imperatives involved in the
creation of remedies for aggrieved employees. See Bush v. Lucas,
462 U.S. 367, 389, 103 S. Ct. 2404, 2417, 76 L. Ed. 2d 648 (1983).
Because of its better vantage point, Congress may preclude a
Bivens-type constitutional action by express declaration or by
creating an exclusive statutory remedy. See Chilicky, 487 U.S. at
421, 108 S. Ct. at 2467; Lucas, 462 U.S. at 377-78, 103 S. Ct. at
7
2411. Additionally, “special factors” may foreclose the bringing of a
Bivens action even “in the absence of affirmative action by
Congress.” Chilicky, 487 U.S. at 421, 108 S. Ct. at 2466 (internal
quotation marks omitted); Lucas, 462 U.S. at 377, 103 S. Ct. at
2411; Bivens, 403 U.S. 396-97, 91 S. Ct. at 2005. As the Court
explained in Chilicky:
[T]he 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. 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.
487 U.S. at 423, 108 S. Ct. at 2468. Thus, before allowing Miller to
bring a Bivens action, we must determine whether Congress has
expressly precluded such a suit (through specific language to that
effect or through establishment of an exclusive remedy), and
whether any “special factors” counsel hesitation in extending Bivens
8
to allow aggrieved ASCS county workers to bring suits against their
superiors for money damages.
Although Miller has presented us with an issue of first
impression for this court, we do not write on an entirely blank slate.
Two Circuits, the Eight and the Ninth, have already explored
whether ASCS county staffers can bring Bivens actions against
federal officers who allegedly violated their constitutional rights. See
Krueger v. Lyng, 927 F.2d 1050 (8th Cir. 1991); Moore v. Glickman,
113 F.3d 988 (9th Cir. 1997). In Krueger, a panel of the Eighth
Circuit found an absence of either explicit congressional preclusion
or “special factors.” See Krueger, 927 F.2d at 1054-57. In the view
of the Krueger court, the administrative remedy made available by
the Secretary to terminated ASCS county workers is “hollow.” See
id. at 1056. Moreover, the Krueger court believed that “it is clear
that the general enabling language used in 16 U.S.C. § 590h(b)
cannot be read to evince an intent by Congress to provide a
separate (and less desirable) remedial scheme for ASCS county
9
office employees.” Id. at 1055. Therefore, the Krueger court saw no
indication that Congress intended “this meager remedy to be
Krueger’s exclusive remedy.” Id. at 1056. Moreover, because
ASCS county staffers’ “exclusion [from the CSRA] is solely the result
of the Secretary’s sua sponte decision to use a ‘non-traditional’
hiring method,” the Krueger court concluded that such workers’ lack
of a CSRA remedy reflects an “inadvertent omission” by Congress.
Id. Thus, the Krueger court held that ASCS county employees could
bring suit for Bivens damages against federal officials involved in
their terminations. See id. at 1057.
In Moore, however, a panel of the Ninth Circuit found Krueger
unpersuasive. Unlike the Krueger court, the Moore court believed
it had ample evidence not only that Congress is aware of ASCS
county staffers’ unique status but also that Congress has chosen to
give such workers only selective employment rights. See Moore,
113 F.3d at 992. Specifically, the Moore court noted that Congress
has granted ASCS workers:
10
entitlement to severance pay, 5 U.S.C. § 5595(a)(2)(B);
participation in the Civil Service Retirement System, 5
U.S.C. § 8331(1)(F); eligibility for group life insurance, 5
U.S.C. § 8701(a)(8); and eligibility for health insurance
benefits, 5 U.S.C. § 8901(1)(G). Former ASCS county
employees who have later taken civil service positions
governed by the CSRA receive credit for their ASCS
service, 5 U.S.C. § 3502(a)(4)(C)(i), and for their rights to
annual leave and transfer, 5 U.S.C. § 6312(a)(1).
Id. Further, the Moore court observed that, when Congress has
wished to confer CSRA “employee status” on ASCS county staffers,
it has done so by express terms, as in its inclusion of such workers
in the Civil Service Retirement System. See id. (citing 5 U.S.C. §
8331(1)(F)). Finally, the Moore court explained that, when Congress
restructured the Department of Agriculture in 1994, it explicitly
recognized the “non-employee” status of ASCS county workers.
See id. at 992-93; 7 U.S.C. § 6932(e)(1) (“In the implementation of
programs and activities assigned to the Consolidated Farm Service
Agency, the Secretary may use interchangeably in local offices of
the Agency both Federal employees of the Department and non-
Federal employees of county and area committees established
11
under section 8(b)(5) of the Soil Conservation and Domestic
Allotment Act . . . .”). In conjunction with this evidence of
congressional “advertence” regarding the status of ASCS county
staff, the Moore court also recognized that Congress has already
created a statutory remedy for non-CSRA workers through its
provision in the APA for judicial review of final agency orders. See
Moore, 113 F.3d at 994; 5 U.S.C. § 702.1 Therefore, the Moore
court concluded that ASCS county workers’ statutory right under the
APA precluded them from bringing Bivens actions. See Moore, 113
F.3d at 995.
Having carefully studied this split between our sister circuits, we
find Moore’s reasoning to be more persuasive and more consistent
with our precedents. As a federal worker outside the protections of
the CSRA, Miller already has a statutory right to judicial review
under the APA. See, Young v. United States, 498 F.2d 1211, 1218
1
Curiously, the Krueger court did not discuss the possibility
that an aggrieved ASCS county staffer might have a right to
judicial review under the APA. See Krueger, 113 927 F.2d at 1053
(stating that “[t]here is no provision for any sort of judicial
review” for ASCS county workers).
12
(5th Cir. 1974);2 see also Franks v. Nimmo, 796 F.2d 1230, 1239-40
(10th Cir. 1986); Heaney v. United States Veterans Admin., 756
F.2d 1215, 1219-22 (5th Cir. 1985). Because the Deputy
Administrator’s rejection of Miller’s appeal constitutes a final order,
he may bring suit in federal court for relief. See Franks, 796 F.2d at
1239-40; 5 U.S.C. § 702. Although the reinstatement and back pay
potentially available to Miller under the APA would not constitute a
complete remedy, the Constitution does not require Congress to
provide comprehensive relief for violations of federal employees’
constitutional rights. See Chilicky, 487 U.S. at 422-23; 108 S. Ct. at
2467.
Under our circuit’s precedents, the existence of a right to
judicial review under the APA is, alone, sufficient to preclude a
federal employee from bringing a Bivens action. See Gleason v.
Malcom, 718 F.2d 1044, 1048 (11th Cir. 1983) (per curiam); Grier v.
2
See Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc) (adopting as binding precedent all decisions
of the former Fifth Circuit handed down prior to October 1, 1981).
13
Secretary of the Army, 799 F.2d 721, 725 n.3 (11th Cir. 1986).3 The
ample evidence, discussed above, that Congress has not only
recognized ASCS county staffers’ unique status (i.e., that they are
outside the protections of the CSRA) but also has acted to grant
such workers only selective employment rights, only strengthens the
necessary conclusion under our circuit’s precedents that Miller may
not seek a judicially-created damages remedy for violations of his
rights during the course of his termination. In sum, we hold that
Congress has not been “inadvertent” in providing Miller with only an
incomplete remedy under the APA and that this alternative remedy
precludes Miller from bringing a Bivens action for money damages
against Appellees in federal court.
III. CONCLUSION
3
We regret that neither Miller nor Appellees have chosen to
cite these instructive cases from our circuit in their submissions
to this court.
14
Miller seeks to pursue a Bivens action against federal officers
who allegedly have violated his constitutional rights in terminating
him from his position as CED for the Mobile Committee. The only
remedy that Congress has provided Miller for the wrongs that he
claims to have suffered is that specified in § 702 of the APA.
Congress, however, has not failed to confer CSRA-protected status
on ASCS county workers through oversight or inadvertence;
Congress has recognized such staffers’ unique position and has
specifically granted them employment rights as it has thought
appropriate. Therefore, we hold that Miller’s right to judicial review
under the APA precludes him from bringing a Bivens action
concerning his termination from his position as CED for the Mobile
Committee, and we AFFIRM the decision of the district court.
15
ANDERSON, Concurring Specially:
I concur. I agree that our precedents indicate the result
reached in this case. See Grier v. Secretary of the Army, 799 F.2d
721 (11th Cir. 1986); Dynes v. Army Air Force Exchange Service,
720 F.2d 1495 (11th Cir. 1983); Gleason v. Malcom, 718 F.2d 1044
(11th Cir. 1983).