Brian Farkas v. Betty Williams , 823 F.3d 1212 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN J. FARKAS, an No. 14-55756
individual,
Plaintiff-Appellant, D.C. No.
2:13-cv-03208-SJO-AGR
v.
BETTY D. WILLIAMS, an OPINION
individual; FRANCISCO
RIOS, an individual; EMILY
OBERST, an individual,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted April 8, 2016*
Pasadena, California
Filed May 24, 2016
*
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
2 FARKAS V. WILLIAMS
Before: Barry G. Silverman and Susan P. Graber, Circuit
Judges, and Jennifer A. Dorsey,** District Judge.
Opinion by Judge Dorsey
SUMMARY***
Civil Rights
The panel affirmed the district court’s summary judgment
and dismissal of an action brought by a civil-service
employee under Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiff, an employee at a naval base, was placed on
administrative leave and directed to participate in an on-base
interview with a naval investigator concerning a budgetary
investigation. After he was cleared of the charges, he brought
a Bivens action against base administrators for employment-
related due-process and First Amendment violations, and
against the investigator for Fourth Amendment violations.
The panel first held that the Civil Service Reform Act of
1978 precludes employment-related Bivens claims by Non-
Appropriated Fund Instrumentality Program employees like
plaintiff, for whom Congress has provided other safeguards.
**
The Honorable Jennifer A. Dorsey, United States District Judge for
the District of Nevada, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FARKAS V. WILLIAMS 3
The panel further held that plaintiff did not suffer an
unconstitutional Fourth Amendment seizure when he was
asked to place his belongings in a lockbox per protocol during
his on-base interview with the naval investigator. The panel
concluded that plaintiff impliedly consented to the storage of
his belongings by voluntarily passing through an internal
checkpoint in a passage-restricted military installation.
COUNSEL
Richard Hamlish, Law Offices of Richard Hamlish, Westlake
Village, California, for Plaintiff-Appellant.
Leon W. Weidman, Chief, Civil Division, and Jessica O.
Cheh, Assistant Attorneys General, and Stephanie Yonekura,
Acting United States Attorney, Los Angeles, California, for
Defendants-Appellees.
4 FARKAS V. WILLIAMS
OPINION
DORSEY, District Judge:
Appellant Brian Farkas was a civil-service employee at a
naval base when he found himself at the center of a budgetary
investigation. He was placed on administrative leave and
directed to participate in an on-base interview with a naval
investigator. After Farkas was cleared of the charges, he
brought this Bivens1 action against base administrators for
employment-related due-process and First Amendment
violations and against the investigator for Fourth Amendment
violations. The district court dismissed the employment-
related claims for lack of subject-matter jurisdiction and
entered summary judgment against Farkas on his Fourth
Amendment claim.
In this appeal, we consider whether the Civil Service
Reform Act of 1978 (“CSRA”) precludes employment-related
Bivens claims by Non-Appropriated Fund Instrumentality
Program (“NAFI”) employees like Farkas, for whom
Congress has provided other safeguards. We hold that it
does. We also evaluate whether Farkas suffered an
unconstitutional seizure when he was asked to place his
belongings in a lockbox per protocol during his on-base
interview with the naval investigator. We conclude that
Farkas suffered no Fourth Amendment violation because he
impliedly consented to the storage of his belongings by
voluntarily passing through an internal checkpoint in a
passage-restricted military installation.
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).
FARKAS V. WILLIAMS 5
I. Procedural History
Farkas was a golf instructor at the naval base in Ventura
County, California, when he discovered that the pro shop’s
cashier was skimming cash from the register. Farkas blew
the whistle on the alleged theft only to find himself the target
of a criminal investigation into “a budgetary irregularity
concerning golf lesson revenue.” Base administration placed
Farkas on leave, and a Naval Criminal Investigative Services
(“NCIS”) detective investigated the theft and interviewed
Farkas on the base.
Although Farkas was ultimately cleared of wrongdoing,
reinstated, and given back pay, he commenced a Bivens
action to redress the severe emotional distress he claims he
suffered from the ordeal. He alleges that base administrators
retaliated against him for whistleblowing and violated his
due-process rights by placing him on leave without notice or
an opportunity to be heard. He also alleges that the NCIS
detective unconstitutionally seized him by directing him to
place his keys, wallet, and loose change in a lockbox during
the interview.
The district court held that it lacked subject-matter
jurisdiction over Farkas’s claims against the base
administrators because Bivens claims brought by NAFI
employees2 are impliedly precluded by the CSRA.3 And the
2
NAFIs are quasi-governmental entities that are “not funded by
congressional appropriation,” so NAFI employees “are paid out of the
earnings generated by the activities of the NAFI.” Calder v. Crall,
726 F.2d 598, 600 (9th Cir. 1984).
3
5 U.S.C. § 1101 et seq.
6 FARKAS V. WILLIAMS
court granted summary judgment for the detective on
Farkas’s Fourth Amendment claim, reasoning that the storage
of Farkas’s personal effects did not amount to a restraint on
his freedom of movement to the degree associated with a
formal arrest.4 Farkas timely appealed. We have jurisdiction
under 28 U.S.C. § 1291, review de novo,5 and affirm.
II. Discussion
A. The district court properly dismissed Farkas’s
employment-related Bivens claims because they are
precluded by the CSRA.
The Supreme Court’s decision in Bivens authorized
constitutional-violation claims against federal employees for
money damages in limited circumstances.6 But Bivens claims
are impliedly precluded when there are “special factors
counseling” against affording a constitutional remedy.7 We
recognized in Moore v. Glickman that “[t]he presence of a
deliberately crafted statutory remedial system is one ‘special
factor’ that precludes a Bivens remedy.”8
4
Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam).
5
Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015); John Doe 1 v.
Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009).
6
Bivens, 403 U.S. at 397.
7
Moore v. Glickman, 113 F.3d 988, 991 (9th Cir. 1997) (quoting
Schweiker v. Chilicky, 487 U.S. 412, 421 (1988)).
8
Id.
FARKAS V. WILLIAMS 7
The deliberately crafted statutory mechanism that bars
Farkas’s employment-related Bivens claims against the base
administrators is the CSRA. That Act provides a
comprehensive scheme of administrative and judicial-review
remedies for certain federal employees. Congress enacted the
CSRA to replace “an outdated patchwork of statutes and rules
built up over almost a century.”9 The goal was “a single
unified personnel policy [that takes] into account the
requirements of all the various laws and goals governing
Federal personnel management.”10 The CSRA “replaced the
patchwork system with an integrated scheme of
administrative and judicial review, designed to balance the
legitimate interests of the various categories of federal
employees with the needs of sound and efficient
administration.”11
The fact that Congress excluded NAFI employees from
the CSRA’s remedial scheme12 does not prevent the Act from
precluding Farkas’s employment-related Bivens claims. Even
inadequate statutory remedies counsel against recognizing a
Bivens claim “if there are ‘indications that congressional
action has not been inadvertent.’”13 Applying this rule, we
9
Saul v. United States, 928 F.2d 829, 833 (9th Cir. 1991) (internal
quotation marks omitted).
10
Id. (internal quotation marks omitted).
11
Id. (quoting United States v. Fausto, 484 U.S. 439, 445 (1988)).
12
See 5 U.S.C. § 2105(c).
13
Moore, 113 F.3d at 993 (quoting Schweiker, 487 U.S. at 423); see also
Bush v. Lucas, 462 U.S. 367, 377 (1983) (declining to recognize federal
employee’s First Amendment claim because the CSRA’s “elaborate
8 FARKAS V. WILLIAMS
held in Blankenship v. McDonald that the CSRA precluded a
Bivens action by a federal court reporter who had no effective
remedies under the Act, reasoning that “congressional action
has not been inadvertent in providing certain remedies and
denying others to judicial employees.”14
The same is true for NAFI employees. Both circuits that
have considered whether Congress’s exclusion of NAFI
employees from the CSRA’s remedial scheme was intentional
concluded that “Congress deliberately exempted NAFI
employees from federal civil service rules to enable the
armed services to carry out the missions of non-appropriated
fund organizations with the maximum possible personnel
flexibility.”15 And the Fourth Circuit specifically held in
Zimbelman v. Savage that the CSRA’s exclusivity in the
federal-employment context—when combined with the
availability of other safeguards—counseled against creating
a Bivens remedy for NAFI employees who alleged that they
were terminated without a name-clearing opportunity in
violation of the Fifth Amendment.16
We find Zimbelman persuasive. Congress’s exclusion of
NAFI employees from the CSRA’s remedial scheme does not
remedial system” provided whistleblower sufficient remedies, even though
they were “not as completely effective as a Bivens-type action based
directly on the Constitution”).
14
Blankenship v. McDonald, 176 F.3d 1192, 1195 (9th Cir. 1999).
15
McAuliffe v. Rice, 966 F.2d 979, 981 (5th Cir. 1992); Zimbelman v.
Savage, 228 F.3d 367, 371 (4th Cir. 2000) (quoting McAuliffe, 966 F.2d
at 981).
16
Zimbelman, 228 F.3d at 371.
FARKAS V. WILLIAMS 9
appear inadvertent; indeed, the statute expressly exempted
them from the CSRA’s coverage in 5 U.S.C. § 2105(c). And
Farkas was not without remedies against the base
administrators. Title 10 U.S.C. § 1587 grants NAFI
employees whistleblower protection and vests the Secretary
of Defense with the responsibility to prevent and correct
retaliation against NAFI employees who report illegal or
wasteful activities; the Secretary has adopted regulations to
carry out that responsibility.17 The Department of the Navy
has similarly promulgated grievance procedures for NAFI
employees who suffer adverse personnel actions.18 These
special factors counsel against recognizing a Bivens action for
Farkas’s employment-related claims, and we hold that the
district court properly declined to do so.
B. Farkas did not suffer an unconstitutional seizure
because he impliedly consented to the interview
conditions.
We turn to Farkas’s claim that the NCIS detective seized
him during the interview by requiring Farkas to place his
keys, wallet, and loose change in a lockbox before entering
the interview room. We affirm the district court’s entry of
summary judgment because Farkas impliedly consented to
17
DEP’T OF DEF. DIRECTIVE, NONAPPROPRIATED FUND
INSTRUMENTALITY (NAFI) EMPS. WHISTLEBLOWER PROT. PROGRAM, NO.
1401.03 (June 13, 2014), available at http://www.dodig.mil/Resources/
PolicyReferences/whistleblower/DoDD_1401_03.pdf (last visited May 4,
2016).
18
See DEP’T OF DEF. DIRECTIVE, PERSONNEL POLICY MANUAL FOR
NAFI EMPS., CNIC 5300.2 (May 10, 2011), available at
http://www.navymwr.org/resources/download/a549d8566b63426ba53b
00df6edeaf0e.pdf (last visited May 4, 2016).
10 FARKAS V. WILLIAMS
this limited restraint on his freedom by voluntarily entering
the passage-restricted base and agreeing to enter the interview
room.19
Consensual encounters between civilians and the
government are “outside the ambit of the Fourth
Amendment’s guarantee against unreasonable searches and
seizures.”20 We have applied this principle in the context of
military bases, holding that the usual Fourth Amendment
analysis does not apply because visitors give their implied
consent to be searched and seized when entering a military
base.21 As we reasoned in Morgan v. United States, the
typical trappings of a military base (e.g., “[t]he barbed-wire
fence, the security guards at the gate, the sign warning of the
possibility of search”) “combine to puncture any reasonable
expectations of privacy for a civilian” who voluntarily
enters.22
The same trappings identified in Morgan were at play
here. The Ventura County naval base is a restricted-access
19
See Kling v. Hallmark Cards Inc., 225 F.3d 1030, 1039 (9th Cir.
2000) (stating that the court may affirm on any ground supported by the
record).
20
United States v. Redlightning, 624 F.3d 1090, 1103 (9th Cir. 2010)
(quoting United States v. Kim, 25 F.3d 1426, 1430 (9th Cir. 1994)). In his
complaint, Farkas alleged that the detective also violated his Fourth
Amendment rights with a pat-down search, and the district court
summarily adjudicated this claim in the detective’s favor. On appeal,
Farkas concedes that the search was constitutional.
21
Morgan v. United States, 323 F.3d 776, 782 (9th Cir. 2003).
22
Id. at 781–82 (quoting United States v. Jenkins, 986 F.2d 76, 79 (4th
Cir. 1993)).
FARKAS V. WILLIAMS 11
military base. Each point of entry is gate-guarded and dotted
with warning signs alerting visitors that access is restricted,
all persons and vehicles are subject to search, the base is
patrolled by military working dogs, and violators will be
prosecuted. Farkas’s assertion that his consent did not extend
to the storage of his personal items is belied by the objective
circumstances. Farkas passed the warning signs, met the
investigator in the parking lot, and agreed to place his
belongings into a lockbox before voluntarily entering the
interview room. By passing through an internal checkpoint,
which the investigator was required to administer, Farkas
reaffirmed by his conduct what had been established at the
gate: that he impliedly consented to the possibility of a Fourth
Amendment intrusion.23
AFFIRMED.
23
In his brief, Farkas makes a passing reference to a possible Fourth
Amendment claim arising from the taking of his fingerprints and
photograph before he was allowed to leave the interview. Because this
potential issue was not developed in the brief, we deem it waived and
decline to reach it. See Greenwood v. Fed. Aviation Admin., 28 F.3d 971,
977 (9th Cir. 1994) (“[A] bare assertion does not preserve a claim,
particularly when, as here, a host of other issues are presented for
review.”).