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.”).
3
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
7
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).
13
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.”).
14
