concurring in part and dissenting in part.
I concur with Judge Stephenson’s opinion holding that Bishop has constitutionally protected property and liberty interests in his employment rights and his good reputation as a civil servant. I further agree that Bishop has a property interest in his right to seek administrative redress for his ouster, but this right is conditioned on seeking administrative redress, if available. I think that it is premature to determine now whether a damage remedy is available for the Fifth Amendment due process violations without first requiring exhaustion of administrative procedures to determine whether administrative remedies are available or not. Therefore, I dissent from that portion of the majority opinion which goes to the merits of the availability of damages directly under the Fifth Amendment. I also dissent from the majority’s finding that Bishop has a state claim for fraud and deceit, since I believe that under the complaint’s factual allegations the proper cause of action is one for defamation or intentional infliction of emotional distress rather than fraud and deceit. Finally, I concur with the majority’s determination that the defendants are not entitled to absolute immunity on the state contractual interference claim.
I.
This case presents three issues with regard to Bishop’s due process claims. First, whether Bishop alleges any set of facts that, if proven, would establish that the federal government violated the Due Process Clause of the Fifth Amendment in the matter of his resignation. Second, whether a cause of action can be implied directly under the Constitution when the Due Process Clause of the Fifth Amendment is violated. Third, whether damages are an available remedy for this cause of action. Property and liberty interests
The resolution of the first issue depends upon whether a deprivation of Bishop’s “(1) employment rights and his good reputation as a civil servant, and (2) his right to seek administrative redress for his ouster”, ante at 353, are “liberty” or “property” interests within the meaning of the Due Process Clause of the Fifth Amendment.
The plurality opinion of the Supreme Court in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), held that a nonprobationary federal employee has a statutorily created “property” interest in not being removed from his employment. Id. at 151-52, 94 S.Ct. at 1643 (opinion of Rehnquist, J.; Burger, C. J., and Stewart, J., concurring). Justice Rehnquist’s opinion also held that a federal employee has a limited “liberty” interest in having his reputation protected against allegations of dishonesty. Id. at 157, 94 S.Ct. at 1645. The former “property” interest, however, does “not create an expectancy of job retention in those employees requiring procedural protection under the Due Process Clause beyond that afforded by the statute [5 U.S.C. § 7501 (1976) (repealed 1978, current version at 5 U.S.C.A. §§ 7512, 7513 (1980))] and related agency regulations.” Nor does the latter “liberty” interest require procedures beyond “the post-termination hear*361ings provided by the Civil Service Commission.” Id. at 163, 94 S.Ct. at 1649. Justice Powell, however, in his concurrence in part and in result, in which he was joined by Justice Blackmun, found that the Civil Service termination statute, 5 U.S.C. § 7501 (1976), conferred a “property” interest under the Fifth Amendment that was protected by the constitutional, rather than statutory, right to procedural due process. Id. at 166-67, 94 S.Ct. at 1650. Justice Powell concluded that the statutory procedures for a post-termination hearing were adequate to protect a federal employee’s “property” interest in continued employment. Id. at 171, 94 S.Ct. at 1652.1 The remaining members of the Court (totalling six members) agreed with Justice Powell that once the government has defined (in this case in 5 U.S.C. § 7501) a “property” or “liberty” interest, the Constitution defines the required minimal procedural due process to be afforded. See id. at 185, 94 S.Ct. at 1659 (White, J., concurring in part and dissenting in part); id. at 211, 94 S.Ct. at 1672 (Marshall, J., dissenting).
From the Arnett decision, I conclude that Bishop, in the first part of his complaint, has alleged facts concerning his employment rights and good reputation that, if proven, would establish that the federal government violated the Due Process Clause of the Fifth Amendment. Five members of the Court held that a federal employee who is subject to removal from his employment is entitled to the statutory procedural protection of 5 U.S.C. § 7501 (1976) (repealed 1978, current version at 5 U.S.C.A. §§ 7512, 7513 (1980)). Six members held that the protection is of constitutional dimension. The fact that Bishop resigned, rather than being terminated by O. 5.H.A., does not preclude his assertion of a due process violation. Bishop’s complaint alleges that his resignation was involuntary, a fact which if proven requires that he be afforded the requisite statutory procedural protections. See Gratehouse v. United States, 512 F.2d 1104, 1108 (Ct.Cl.1975).
The second part of Bishop’s complaint, that the federal government through its employees deprived him of “his right to seek administrative redress for his ouster,” is more troublesome. The majority’s analysis of Bishop’s allegation of a deprivation of his right to seek administrative redress for his ouster construes it to “imply an on-going state of duress causing Bishop to forgo his right to seek administrative redress.” Ante at 353, n.4. Clearly, Bishop’s action of filing suit in the district court precludes any construction of the complaint which would find that Bishop was, at the time of filing, still in fear of instituting administrative action. If Bishop overcame duress to file this suit, he could as readily have filed for administrative relief. Bishop does allege that fear of criminal prosecution did deter him from instituting such action in the past. At this time, however, there is no reason to believe that the defendants are in any sense preventing Bishop from pursuing his administrative remedies. Bishop may still have the right to seek administrative redress for his alleged forced resignation. As Bishop admits in his brief, the government has “given its permission to be sued or set up certain administrative procedures to redress wrongs committed by its employees for which the government has elected to hold itself responsible. The administrative remedies provided career status civil service employees are just such an election. See 5 U.S.C., §§ 7501-7512, 7701.” Bishop’s right to seek administrative redress may still remain unimpaired as a result of his alleged forced resignation.2
*362If in fact Bishop, upon seeking administrative procedural review of his termination, finds such review available, no due process violation could be ascertained out of this set of facts. Under these circumstances, Bishop’s resort to procedural due process protections may have been delayed by his own fear of possible criminal prosecution, but at no time was Bishop ever denied his procedural due process rights. The administrative procedures were always available. If Bishop voluntarily waived his appeal rights, he could be bound by his decision. Here Bishop would simply have chosen not to utilize them due to the alleged threat of criminal prosecution. No due process “property” or “liberty” interest would be involved.
Bishop’s fear of criminal prosecution is strikingly similar to the respondent’s fear in Paul v. Davis, 424 U.S. 693, 697, 96 S.Ct. 1155, 1159, 47 L.Ed.2d 405 (1976), that
the “active shoplifter” designation would inhibit him from entering business establishments for fear of being suspected of shoplifting and possibly apprehended, and would seriously impair his future employment opportunities. Accepting that such consequences may flow from the flyer in question, respondent’s complaint would appear to state a classical claim for defamation actionable in the courts of virtually every State. Imputing criminal behavior to an individual is generally considered defamatory per se, and actionable without proof of special damages.
The Court found no due process violation involved, since the respondent “has pointed to no specific constitutional guarantee safeguarding the interest he asserts has been invaded” and there is “no constitutional doctrine converting every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Id. at 700-02, 96 S.Ct. at 1160-1161 (footnote omitted). As long as administrative procedures remain open to Bishop, he has not been denied a right guaranteed by the Fifth Amendment.
If, on the contrary, administrative procedures are no longer available to Bishop, his procedural due process right under Arnett to a termination hearing may have been violated. Bishop would probably state a cause of action under the Fifth Amendment if this situation were present and he did not voluntarily waive his administrative procedural rights.
The only method to determine whether Bishop has been deprived of a “liberty” or “property” right to “seek administrative redress for his ouster” is to make a prior determination that the administrative procedures are no longer available. To resolve this issue, I would require that Bishop exhaust administrative remedies prior to bringing a direct cause of action under the Fifth Amendment. See post at 363.
Cause of action
The second issue to be addressed is whether a cause of action can be implied directly under the Constitution when the Due Process Clause of the Fifth Amendment is violated. The Supreme Court, one day prior to the district court’s dismissal of this case, held in Davis v. Passman, 442 U.S. 228, 243, 99 S.Ct. 2264, 2276, 60 L.Ed.2d 846 (1979), that a direct cause of action is proper when Fifth Amendment rights have been violated and when the claimant “has no effective means other than the judiciary to vindicate these rights.” (Footnote omitted.) 3 Whether this latter phrase must be read as a requirement that administrative procedures must be exhausted prior to judicial adjudication is open to question. Compare McKart v. United States, 395 U.S. 185, *363193-95, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969), with Damico v. California, 389 U.S. 416, 417, 88 S.Ct. 526, 526, 19 L.Ed.2d 647 (1967) (citing McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963)). Exhaustion of administrative remedies in Bishop’s case appears appropriate in light of the Court’s holding in Arnett that the statutory procedural safeguards are sufficient to protect a federal employee’s constitutional due process rights. To allow the claimant to immediately invoke the jurisdiction of the federal courts would divest the agency of the “exercise of discretionary powers granted the agency by Congress * * McKart, supra, 395 U.S. at 194, 89 S.Ct. at 1663.
The Supreme Court, in reversing a district court’s temporary injunction against a federal probationary employee’s dismissal pending an administrative appeal to the Civil Service Commission, noted that while federal courts do have authority to review the claim of a discharged governmental employee where the agency effectuating the discharge did not follow administrative regulations, see Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957), the review occasioned by “judicial proceedings [was] not commenced until the administrative remedy had been unsuccessfully pursued.” Sampson v. Murray, 415 U.S. 61, 71-72 & n.22, 94 S.Ct. 937, 944 & n.22, 39 L.Ed.2d 166 (1974). One commentator has construed the Sampson opinion to be within the realm of the exhaustion doctrine. K. Davis, Administrative Law of the Seventies § 20.01 at 449 (1976). Exhaustion of administrative remedies comports with Sampson ’s caution against judicial interference in disputes concerning government employment except when absolutely necessary.
Until administrative action has become final, no court is in a position to say that such action did or did not conform to applicable regulations. Here respondent had obtained no administrative determination of her appeal at the time she brought the action in the District Court. She was in effect asking that court to grant her, on an interim basis, relief which the administrative agency charged with review of her employer’s action could grant her only after it had made a determination on the merits.
Sampson v. Murray, 415 U.S. at 74, 94 S.Ct. at 945.
The Supreme Court opinions in Passman, Arnett, Sampson, and McKart suggest that exhaustion should be a prerequisite to Bishop’s maintaining his due process claims in federal court. Accordingly, Bishop should be required to exhaust his administrative remedies prior to presenting his cause of action in the federal courts. Cf. Brice v. Day, 604 F.2d 664, 666-67 (10th Cir. 1979) (requiring exhaustion of prison administrative procedures prior to bringing direct action under the Eighth Amendment).
Damage remedy
The third issue, whether damages are an appropriate remedy,4 also leads me to conclude that administrative review is proper prior to the determination of whether the case should be dismissed under Rule 12(b)(6). If administrative review is available, the procedure allows for the award of back pay in the event that an unjustified termination has taken place. When Congress “create[s] equally effective alternative remedies, the need for damages relief might be obviated.” Davis v. Passman, 442 U.S. at 248, 99 S.Ct. at 2278. The need for the federal courts to award damages, if the administrative review procedure found an award of back pay to be appropriate, would be greatly diminished if not eliminated. Under these circumstances, judicial relief in the form of damages would probably be unavailable. Even if the administrative procedure found the resignation proper, the federal courts could review the decision of the agency under 5 U.S.C.A. § 7703 (1980). Under these circumstances, the complaint of Bishop would probably have to be dismissed for failure to state a claim upon which relief can be granted. See Bush v. Lucas, 598 F.2d 958, 961 (5th Cir. 1979), *364vacated, 445 U.S.-, 100 S.Ct. 1846, 64 L.Ed.2d 268 (1980) (remanded in light of Carlson); cf. Carlson v. Green, - U.S. -,-, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980) (limiting judicial discretion to deny Eighth Amendment civil damage remedy).
If, however, Bishop’s administrative review is precluded by his failure to appeal his alleged involuntary resignation within the appropriate period,5 a cause of action for which relief could be granted would probably be present. Under these circumstances, Bishop would have been denied his due process right to administrative review, including any possibility of an award of back pay by the administrative board. An award of damages under the Fifth Amendment would then appear to be appropriate.
II.
I also dissent from that portion of the majority opinion which finds that Bishop stated a cause of action for fraud and deceit with regard to his state claim alleging that the defendants misrepresented their intent to lodge criminal charges. A threat to file criminal charges cannot constitute fraud and deceit. A threat of any type of action, be it benign or malicious, carries with it implicitly the possibility of its being carried out or not, depending upon its credibility. If a threat is sufficiently credible to induce compliance, the threat cannot be a misrepresentation.
The common law of tort has provided two causes of action for threatening conduct. First, an action for assault, the most obvious example being, “If you don’t give me your money I will kill you.” See W. Prosser, Law of Torts § 10 at 40 (4th ed. 1971). Second, an action for intentional infliction of mental distress; Dean Prosser gives as an example “the hotel detective who bursts into a room crying that the occupants are unmarried and threatening jail * * Id. at § 12, at 53. Dean Prosser also cites as examples the following: (1) a detective’s threat to charge a woman with espionage unless she surrendered certain private letters; (2) threatening a school girl with disgrace or imprisonment unless she signed a confession of immoral conduct; and (3) creditor threats concerning arrest, ruination of credit, or unfounded suit unless payment is made. Id. at 56-57.
In these two intentional causes of action, the common law of. tort has provided a legal remedy against threats that have sufficient credibility to cause probable harm to others. The common law tort cause of action for fraud and deceit does not relate to threats of future conduct. As pointed out by the majority opinion, deceit involves “false representations of fact” with the expectation of a person’s reliance upon it. A threat of possible future conduct, whether it be the filing of criminal charges or the taking of a person’s life, simply does not involve any factual misrepresentation until after the demand is refused and then the threat is not carried out. Even in the latter situation, however, a cause of action for fraud and deceit would be inappropriate since no damages result from a failure to carry out the threat.
It is important to remember that Bishop was not left without a legal remedy for the wrong done by the alleged threats. In addition to a possible cause of action for intentional infliction of emotional distress, he may also have had a cause of action for defamation. Bishop, however, waited too long to file suit, resulting in these actions being barred by the statute of limitations. Ark.Stat.Ann. § 37-201 (Supp.1979). Bishop also has a claim for damages from interference with his employment contract, although the special damages claimed to result from emotional distress should be precluded in this claim. See id.
III.
In Bishop’s complaint, jurisdiction was alleged under 28 U.S.C. § 1331 and 28 U.S.C. § 1346. The district court, however, independently invoked jurisdiction on the basis of diversity of citizenship. 28 U.S.C. § 1332. While section 1346 is clearly inap*365plicable to Bishop’s claims, federal question jurisdiction under section 1331 was sufficient for the district court to decide the controversy of whether Bishop stated a federal cause of action on the due process claims. See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Once it was found that Bishop stated no federal cause of action, the pendent state claims should then have been dismissed unless an independent jurisdictional basis could be found. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1960).6
The district court was able to rule on the merits of the state claims since it found an independent jurisdictional basis under diversity of citizenship. The majority opinion has found, in addition to Bishop’s federal claims, a cause of action under state law for both deceit and contractual interference. I find a cause of action only for the latter, thus limiting the amount of damages recoverable by Bishop. I would therefore remand to the district court with directions to dismiss the Fifth Amendment claim, without prejudice to refile after exhaustion of Bishop’s administrative remedies, and to reinstate Bishop’s state claim of contractual interference, provided Bishop’s claim for contractual interference damages, excluding any special damages, involves an amount in controversy of over $10,000.
. Justice Powell also found the federal employee’s “liberty” interest in his reputation to be adequately protected by statute.
. 5 C.F.R. § 1201.22(b) (1979) provides that appeals to the Merit Systems Protection Board for review of agency terminations must be made within twenty days of the effective date of the action. This provision, however, may be waived “in an individual case for good cause shown * * 5 C.F.R. § 1201.12 (1979). The allegations set forth in Bishop’s complaint concerning continual coercion up until at least the time of filing suit in the district court appear to satisfy the good cause requirement. Furthermore, good cause may also be found for *362the delay occasioned by filing suit, since Bishop, at that time, was not aware that exhaustion of administrative remedies would be a prerequisite to maintaining a direct cause of action under the Fifth Amendment.
. In addition the government official’s conduct must not be merely private action. Davis v. Passman, 442 U.S. 228, 236 n.12, 99 S.Ct. 2264, 2272 n.12, 60 L.Ed.2d 846 (1979). While Bishop’s reply brief states his complaint “is not an action against the government but instead is a private suit against individuals,” the official actions alleged are sufficient to come within the restraints of the Fifth Amendment.
. This issue, as well as the exhaustion issue, would not exist if a state official were involved and the remedy of damages were being sought under 42 U.S.C. § 1983.
. See note 2 supra.
. The Court therein stated that “pendent jurisdiction is a doctrine of discretion, not of plaintiffs right * * *. Certainly if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.” 383 U.S. at 726, 86 S.Ct. at 1139 (footnotes omitted); see P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler’s the Federal Courts and the Federal System 925 (2d ed. 1973); cf. Kansas City Southern Ry. v. Akin, 138 Ark. 10, 23-27, 210 S.W. 350, 352-53 (1919) (federal action tolls state statute of limitations).