Lee v. Hughes

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-8423

D.C. Docket No. 5:96-CV-316-3

KENNETH W. LEE,
Plaintiff-Appellant,

versus

ROBERT C. HUGHES, JR.;
DANIEL C. LANFORD, JR.,
Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of Georgia

(July 9, 1998)

Before CARNES, Circuit Judge, KRAVITCH, Senior Circuit Judge, and
MILLS*, Senior District Judge.

_________________
*Honorable Richard Mills, Senior U.S. District Judge for the
Central District of Illinois, sitting by designation.
KRAVITCH, Senior Circuit Judge:

In this case, we must decide whether a federal employee who

is not afforded an administrative or judicial remedy under the

Civil Service Reform Act of 1978 (codified and amended in various

sections of 5 U.S.C.) (“CSRA” or “the Act”) can bring a federal

claim under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), in order to recover

monetary damages for alleged constitutional violations, and whether

§ 1981 provides a cause of action against individuals acting under

color of federal law. We answer both questions in the negative.

I.

Kenneth W. Lee (“Lee” or “plaintiff”) was hired as a U.S.

Probation Officer for the Middle District of Georgia in 1983 and

served in that capacity until his employment was terminated in

1996. At the time of Lee’s termination, Daniel Lanford (“Lanford”)

was the Chief U.S. Probation Officer for the district, and Robert

Hughes (“Hughes”) was the Deputy Chief U.S. Probation Officer. Lee

protested his termination on the ground that it was improperly

motivated by race and sought redress through the Equal Employment

Opportunity (“EEO”) Plan for the Middle District of Georgia.1

A complainant seeking to initiate an action under the EEO Plan

1
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.

2
must file a timely discrimination complaint with the EEO

Coordinator, who then makes the necessary 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.”2 If the complainant objects

to the rejection or cancellation of the complaint, he may request

that the Chief Judge of the district review the matter. The Chief

Judge then must:

a. Conduct any additional investigation which he or she
deems necessary;
b. Determine whether to interview the parties or other
persons;
c. Determine whether to hold a formal hearing on the
matter; and
d. Issue a final decision on the rejection,
cancellation, or merits of the complaint if it is
found that no interviews or hearings are necessary.3

A magistrate judge was appointed to investigate Lee’s

2
EEO Plan at 2.
3
EEO Plan at 3. The EEO Plan does not provide for a hearing
upon request of the complainant, and the record does not suggest
that plaintiff here requested a formal hearing subsequent to the
Chief Judge’s final decision in this case. In fact, it appears
that plaintiff’s attorney, in a letter sent to the Chief Judge
that stated objections to Lee’s potential termination, only
suggested that a formal hearing would be appropriate at some
future date. See Letter of March 14, 1996 (“I will be present at
your court this afternoon and if some resolution cannot be had
prior to the informal hearing scheduled for 1:30 p.m., then I
would move the court to continue said matter to a date after the
responses have been filed by the parties with the Probation
Department, against whom the complaints will have been made. At
that time, a formal hearing would be appropriate.”).

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allegations and subsequently recommended approval of Lee’s

termination. The Chief Judge of the district accepted the report

and approved the termination. Lee then filed suit in district

court against his supervisors in their individual capacities

asserting a Bivens claim for alleged racial discrimination and

alleging a violation of § 1981.

The district court dismissed the Bivens claim for lack of

subject matter jurisdiction. Specifically, the court held that the

CSRA is the exclusive vehicle through which federal employees can

challenge or remedy adverse personnel decisions, even under

circumstances in which the CSRA does not provide for administrative

or judicial review of the personnel decision at issue. In the

alternative, the district court dismissed both claims for failure

to state a claim upon which relief could be granted. Lee appeals

the dismissal of both claims.

II.

Lee contends that the district court erred in dismissing his

Bivens claim, because he otherwise will not be afforded a judicial

remedy for the alleged discrimination. Defendants, on the other

hand, argue that Congress intended for the CSRA to be the exclusive

vehicle through which federal employees can challenge adverse

personnel decisions and that, as such, the CSRA precludes

plaintiff’s Bivens claim for damages. We review de novo the

4
district court’s decision to dismiss plaintiff’s Bivens claim. See

McKusick v. City of Melbourne, 96 F.3d 478, 482 (11th Cir. 1996).

The CSRA “comprehensively overhauled the civil service

system,” Lindahl v. Office of Personal Management, 470 U.S. 768,

773, 105 S. Ct. 1620, 1624 (1985), and created an elaborate “new

framework for evaluating adverse personnel actions against [federal

employees],” id. at 774, 103 S. Ct. at 1624. The CSRA details the

protections and remedies available to federal employees in such

actions, including the availability of administrative and judicial

review. See United States v. Fausto, 484 U.S. 439, 108 S. Ct.

668 (1988). The CSRA divides civil service employees into three

main classifications, see 5 U.S.C. §§ 3132, 2102, 2103; Fausto, 484

U.S. at 441 n.1, 108 S. Ct. at 670 n.1, within which employees are

further classified as preference-eligible or nonpreference-

eligible, see 5 U.S.C. § 2108. Specific protections and remedies

available under the CSRA are dependent upon the civil service

employee’s classification within the Act. See, e.g., 5 U.S.C. §

7511; see generally Fausto, 484 U.S. at 445-49, 108 S. Ct. 672-75

(discussing various chapters within the CSRA and the protections

provided therein). The parties do not dispute that Lee is a

preference-eligible member of the excepted service and, as such,

did not have the right to file a petition with the Office of

Special Counsel (“OSC”) of the Merit Systems Protection Board

(“MSPB”). Although the remedies provided in the EEO Plan were

5
available to Lee, the CSRA did not provide him with judicial or

administrative review of the adverse personnel action alleged.

In Fausto, the Supreme Court considered whether the CSRA

precluded judicial review under the Tucker Act, 28 U.S.C. § 1491,

for nonpreference-eligible members of the excepted service who,

under the CSRA, were not afforded administrative or judicial review

of suspension for misconduct. After examining the purpose of the

CSRA, the entirety of the text, and the structure of review

established by the Act, the Court held that the “CSRA established

a comprehensive system for reviewing personnel action taken against

federal employees,” id. at 454, 108 S. Ct. at 677, and that

Congress deliberately excluded certain employees from the provision

establishing administrative and judicial review for adverse

personnel actions. Although the Fausto Court specifically was

considering the remedies afforded under the CSRA in the context of

nonpreference-eligible members of the excepted service, this court

has held that “Fausto applies to preference-eligible as well as

non-preference employees.” Stephens v. Dept. of Health and Human

Servs., 901 F.2d 1571, 1575 (11th Cir.) (holding that CSRA precluded

Bivens claim for damages for allegedly prohibited personnel

practice where, under the CSRA, the OSC refused to petition MSPB

with plaintiff’s complaint), cert. denied, 498 U.S. 998 (1990).

Most notably, this court has recognized Fausto as “emphatically and

conclusively establish[ing] the preemptive nature of the CSRA.”

6
Id.

In Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 396, 91 S. Ct. 1999, 2005 (1971), the

Supreme Court held that a plaintiff could state a cause of action

and recover money damages against a federal official for

constitutional violations occurring under the color of federal law.

“A Bivens action is only permitted where 1) the petitioner has no

alternative means of obtaining redress, and 2) there are no

‘special factors counseling hesitation.’” Stephens, 901 F.2d at

1577 (citing Bivens, 403 U.S. at 396-97, 91 S. Ct. at 2005). The

Supreme Court has limited the circumstances under which a Bivens

claim may be asserted and has held:

When the design of a Government program suggests that
Congress has provided what it considers to be adequate
remedies for constitutional violations that may occur in
the course of the program’s administration[, we have not
created additional Bivens remedies].

Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S. Ct. 2460, 2468

(1988).

Although this circuit has “recognized that the comprehensive

statutory scheme established by Congress relating to federal

employment (CSRA) precludes the maintenance of job-related Bivens

actions by federal employees,” Stephens, 901 F.2d at 1577, this

case presents the court with a novel issue: whether a federal

employee for whom the CSRA provides no administrative or judicial

review for adverse personnel actions can assert a Bivens claim for

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monetary damages against individual defendants who allegedly have

violated the complainant’s constitutional rights. We hold that the

CSRA precludes a Bivens remedy in this case notwithstanding the

fact that the CSRA does not provide administrative or judicial

review of the adverse personnel action.

Lee relies almost exclusively on Davis v. Passman, 442 U.S.

228, 99 S. Ct. 2264 (1979), in support of his argument that he

should be afforded a Bivens remedy here. His reliance is

misplaced. In Davis, the federal-employee plaintiff, who was not

protected by Title VII, brought a Bivens action for workplace

discrimination. The Supreme Court held that a Bivens action was

permissible because there was “no evidence . . . that Congress

meant § 717 [of Title VII] to foreclose alternative remedies

available to those not covered by the statute.” Davis, 442 U.S. at

247, 99 S. Ct. at 2278. The Court noted that “[f]or Davis, as for

Bivens, ‘it is damages or nothing.’” Id. at 245, 99 S. Ct. at 2277.

As an initial matter, the Davis Court did not consider the effect

of the CSRA on Davis’s Bivens claim because the CSRA had been

enacted immediately prior to the ruling and the preemptive effect

of the Act was not an issue before the Court. Furthermore, more

recent Supreme Court cases do not reflect the Davis Court’s

willingness to recognize a Bivens claim in instances where there is

a clear congressional intent to exclude certain classes of

employees from a statute’s comprehensive remedial scheme, as is the

8
case with the CSRA. For example, in Bush v. Lucas, 462 U.S. 367,

388, 103 S. Ct. 2404, 2416 (1983), the court stated:

Given the history of the development of civil service
remedies and the comprehensive nature of the remedies
currently available, it is clear that the question we
confront today is quite different from the typical
remedial issue confronted by a common-law court. The
question is not what remedy the court should provide for
a wrong that would otherwise go unredressed. It is
whether an elaborate remedial system that has been
constructed step by step, with careful attention to
conflicting policy considerations, should be augmented by
the creation of a new judicial remedy for the
constitutional violation at issue.

Accord United States v. Fausto, 484 U.S. 439, 108 S. Ct. 668

(1998).

We recognize that this case is troubling because plaintiff was

not afforded a congressionally enacted judicial or administrative

procedure through which to vindicate the alleged constitutional

wrong. Since the creation of the Bivens cause of action, however,

the Court has “responded cautiously to suggestions that Bivens

remedies be extended into new contexts,” Schweiker v. Chilicky, 487

U.S. 412, 421, 108 S. Ct. 2460, 2467 (1988), and specifically has

held that the exclusion of certain classes of employees from the

remedies provided by the CSRA reflects not congressional silence

from which courts may imply that an excluded employee is “free to

pursue whatever judicial remedies he would have had before

enactment of the CSRA,” Fausto, 484 U.S. at 447, 108 S. Ct. at 673

(considering CSRA’s effect on the Tucker Act), but rather

congressional intent to deny the excluded employee specific

9
protections otherwise afforded by the Act, see id. 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.

Although “[n]o Supreme Court opinion holds squarely that the

CSRA always prevents federal employees from bringing Bivens actions

to right job-related wrongs,” Saul v. United States, 928 F.2d 829,

836 (9th Cir. 1991), at least three courts of appeals have held that

“the CSRA precludes even those Bivens claims for which the act

prescribes no alternative remedy,” Saul, 928 F.2d at 840. See id.

(holding that “the CSRA is a special factor counseling against

recognition of a Bivens remedy”); Lombardi v. Small Business

Admin., 889 F.2d 959, 961 (10th Cir. 1989) (“The recent Supreme

Court cases of Fausto . . . and in particular the most recent

Chilicky case . . . indicate that the Court will not create a

Bivens remedy in a Federal employment action even if no remedy at

all has been provided by the CSRA.”); Volk v. Hobson, 866 F.2d

1398, 1403-04 (Fed. Cir.) (“Whether or not an employee has access

to all of the procedures and remedies of the CSRA . . . , it

illustrates the logic inherent in the Supreme Court’s admonitions

to leave the federal personnel system to Congress[, which is in a]

far better position to set the policy and adjust the system than

10
judges confronting ad hoc situations and trying to fill perceived

gaps in the program by allowing employees to prosecute Bivens suits

against each other.”), cert. denied, 490 U.S. 1092 (1989); see also

Mitchum v. Hurt, 73 F.3d 30, 35 (3d Cir. 1995) (holding that the

CSRA does not prevent award of injunctive relief, but implying that

the Act is a special factor militating “against the creation of a

new nonstatutory damages remedy”). No circuit has held to the

contrary.4

We agree with the Ninth Circuit’s conclusion that “[t]he

CSRA’s comprehensive remedial provisions convince us that there was

no inadvertence by Congress in omitting a damages remedy against

supervisors whose work-related actions allegedly violate a

subordinate’s constitutional rights,” Saul, 928 F.2d at 840, and

accordingly hold that the CSRA is a special factor counseling

against recognition of a Bivens suit here. In light of the

comprehensive nature of the CSRA and the Supreme Court’s conclusion

that the exclusion of certain employees from judicial review of

adverse personnel decisions reflects “manifestation of a considered

4
We recognize that the Eighth Circuit recently held that a
local EEO Plan is not a special factor counseling hesitation and
therefore allowed plaintiff’s Bivens claim to proceed. See Duffy
v. Wolle, 123 F.3d 1026, 1033 (8th Cir. 1997), cert. denied, 118
S. Ct. 1839 (1998). 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. Because the Eighth Circuit did not address the CSRA’s
effect on Duffy’s Bivens claim, Duffy is not instructive here.

11
congressional judgment,” Saul, 928 F.2d at 840, plaintiff is

precluded from asserting a Bivens claim in an attempt to recover

damages for the constitutional violations alleged here.

III.

Lee contends, without citing supporting authority, that the

district court also erred in holding that Ҥ 1981 does not support

a cause of action for claims of employment discrimination arising

under color of federal law.” We review de novo the district court

decision to dismiss the claim. See McKusick v. City of Melbourne,

96 F.3d 478, 482 (11th Cir. 1996). Because we agree with the

district court’s conclusion that Lee’s allegations of

discrimination cannot support a claim under § 1981, we affirm the

dismissal of that claim.

Both circuit precedent and the text of § 1981 compel us to

hold that a plaintiff cannot maintain a § 1981 claim against a

federal defendant acting under color of federal law. Prior to the

Civil Rights Act of 1991, this court had held that a “suit against

the federal defendant acting solely under color of federal law

could not have been brought pursuant to any of the statutes

enumerated in [42 U.S.C.] § 1988.” Martin v. Heckler, 773 F.2d

1145, 1152 (11th Cir. 1985) (emphasis in original). Section 1981

is one of the statutes enumerated in § 1988. See 42 U.S.C. §

1988(b). Through the Civil Rights Act of 1991, Congress amended §

12
1981 and added subsection (c), which provides that “[t]he rights

protected by this section are protected against impairment by

nongovernmental discrimination and impairment under color of state

law.” 42 U.S.C. § 1981(c). Accordingly, the language of § 1981 is

clear: Section 1981 provides a cause of action for individuals

subjected to discrimination by private actors and discrimination

under color of state law, but does not provide a cause of action

for discrimination under color of federal law.5 Because we find no

basis for Lee’s argument that § 1981 should afford him relief, we

affirm the district court’s dismissal of that claim.

IV.

Accordingly, we AFFIRM the district court’s order dismissing

5
We are unaware of any court that has held otherwise. Cf.
Espinueva v. Garrett, 895 F.2d 1164, 1165 (7th Cir.) (“Section
1981 does not apply to employment discrimination cases involving
the federal government . . . .”), cert. denied, 497 U.S. 1005
(1990); Williams v. Glickman, 936 F. Supp. 1, 4 (D.D.C. 1996)
(“Weighing the inconclusive legislative history and the statute’s
general statement of purpose against plain, unambiguous statutory
language, the Court must apply the plain language of the statute
and dismiss plaintiffs’ § 1981 claim because the plaintiffs do
not allege impairment of rights by nongovernmental discrimination
or impairment under color of state law.”); Carlton v. Ryan, 916
F. Supp. 832, 838 (N.D.Ill. 1996) (stating that Ҥ 1981 does not
apply to the federal government”); La Compania Ocho, Inc. v. U.S.
Forest Serv., 874 F. Supp. 1242, 1250-51 (D.N.M. 1995) (noting
that “section 717 of Title VII constitutes the exclusive remedy
for federal government discrimination in the employment context,”
but holding that § 1981 applies against the federal government
for non-employment racial discrimination).

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Lee’s claims for damages under Bivens and 42 U.S.C. § 1981.6

6
We note that the district court was incorrect to conclude
that it lacked subject matter jurisdiction, but was correct to
dismiss for failure to state a claim. See Bell v. Hood, 327 U.S.
678, 682-83, 66 S. Ct. 773, 776 (1946). We therefore affirm the
district court’s judgment. See Bonanni Ship Supply, Inc. v.
United States, 959 F.2d 1558, 1561 (11th Cir. 1992) (“[T]his
court may affirm the district court where the judgment entered is
correct on any legal ground regardless of the grounds addressed,
adopted or rejected by the district court.”).

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