Kauffman v. Anglo-American School of Sofia

• Decision Date: 12 July 1994
• Docket Number: ANGLO-AMERICAN,No. 92-5302,92-5302
• Citation: 28 F.3d 1223
• Parties: , 63 USLW 2077, 92 Ed. Law Rep. 1139 Park Dean KAUFFMAN; Gaila M. Kauffman, Appellants, v.SCHOOL OF SOFIA, an Unincorporated Association, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1223

28 F.3d 1223

307 U.S.App.D.C. 356, 63 USLW 2077,

92 Ed. Law Rep. 1139

Park Dean KAUFFMAN; Gaila M. Kauffman, Appellants, v. ANGLO-AMERICAN SCHOOL OF SOFIA, an Unincorporated Association, Appellee.

No. 92-5302.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 22, 1994.

Decided July 12, 1994.

Appeal from the United States District Court for the District of Columbia Circuit (89cv03419).

Stephen H. Galebach, Gaithersburg, MD, argued the cause and filed the briefs, for appellants.

Andrew C. Topping, Baltimore, MD, argued the cause for appellee. With him on the brief were Paul C. Skelly and David G. Leitch, Washington, DC., William D. Nussbaum, Washington, DC, entered an appearance.

Before MIKVA, Chief Judge, WILLIAMS and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Concurring Opinion filed by Circuit Judge SENTELLE.

Dissenting Opinion filed by Chief Judge MIKVA.

STEPHEN F. WILLIAMS, Circuit Judge:

Park Dean Kauffman and Gaila M. Kauffman appeal the district court's dismissal of their suit against the Anglo-American School of Sofia. Our disposition is controlled by FDIC v. Meyer, --- U.S. ----, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), which holds that a federal agency--even one as to which Congress has waived sovereign immunity--is not subject to liability in damages under 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). We conclude that an entity that is not a federal agency, but that is constrained by the Constitution in some or all of its acts solely because of lesser links to the federal government, is equally exempt from Bivens liability. Because the Kauffmans' only federal claims against the School rest on Bivens, we affirm the dismissal of the action.

* * * * * *

The Anglo-American School of Sofia was established in 1967 to provide elementary-level instruction to the children of American and British diplomats stationed in Sofia, Bulgaria. Though it was allegedly set up at the initiative of the U.S. Department of State, its amended charter proclaims that it is "a private and independent organisation" and "is not a subsidiary" of either the British or the American government. Still, the American and the British ambassadors to Bulgaria each appoint three members of the School's 7-person governing board, ¹ and all three of the American ambassador's appointees are State Department employees. The School also receives part of its funding from the State Department.

Beginning in August 1984, Park Dean Kauffman served as Director of the School. Gaila M. Kauffman, his wife, was a teacher at the School. According to their complaint, both Kauffmans were under contract with the School through June 15, 1991. But in June 1989, the School's governing board fired Mr. Kauffman. Mrs. Kauffman resigned her employment in order to remain with her husband.

Both Kauffmans filed suit in the United States District Court for the District of Columbia against the School and the three individual board members who had been appointed by the American ambassador. Their initial complaint raised no federal questions; jurisdiction was based instead on diversity of citizenship. Claiming breach of contract, tortious interference with contractual relations, wrongful discharge, and defamation, the Kauffmans sought compensatory damages of $300,000 and punitive and exemplary damages of $100,000.

In suing the School, however, the Kauffmans had failed to take account of its status as an unincorporated association. Under Federal Rule of Civil Procedure 17(b), an unincorporated association's capacity to be sued "shall be determined by the law of the state in which the district court is held". The one exception to this principle--that any unincorporated association "may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States"--was not triggered because the Kauffmans had raised no federal claims. And the District of Columbia does not allow unincorporated associations to be sued in their own names, at least over matters of local law. Pritchett v. Stillwell, 604 A.2d 886, 889 (D.C.1992); Lenkin v. Beckman, 575 A.2d 273, 277-78 (D.C.1990); Day v. Avery, 548 F.2d 1018, 1022-23 (D.C.Cir.1976); cf. Rules of Civil Procedure of the Superior Court of the District of Columbia, Rule 17(b). Accordingly, the School moved to dismiss the action against it.

The Kauffmans then amended their complaint. By this time, the U.S. Attorney's Office for the District of Columbia had certified that the individual defendants "were acting within the scope of their employment as employees of the United States" at the time of Mr. Kauffman's firing, with the result that the United States had been substituted as the party defendant with respect to the Kauffmans' tort claims against the individual board members. See 28 U.S.C. Sec. 2679(d)(1). The Kauffmans' amended complaint added no new claims against the United States or the individual board members. But the complaint now alleged that the School "is controlled by the U.S. Government" and that its firing of Mr. Kauffman had violated the First and Fifth Amendments. Since the Kauffmans continued to seek only damages and not any equitable relief, their federal claims thus rested on Bivens. ²

The district court dismissed the Kauffmans' suit against all defendants. As to the School, the court held that it could not be considered a "government actor" under Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). Mem.Op. at 5, 10. The Kauffmans appealed, but they expressly did not oppose the motion of "the federal appellees"--that is, the United States and the three individual board members--for summary affirmance. A panel of this court granted the unopposed motion on April 6, 1993. All that remains of this case, then, is the Kauffmans' suit against the School itself.

The Bivens claims are the linchpin of the Kauffmans' entire suit. Because the School is an unincorporated association, Rule 17 bars any suit in the absence of a federal claim. (Indeed, even with a viable federal claim, we might have no jurisdiction over the non-federal claims; federal courts lack pendent jurisdiction over claims that could not be brought in state court, see Promisel v. First Amer. Artificial Flowers, Inc., 943 F.2d 251, 257 (2d Cir.1991); cf. Local 20, Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252, 257, 84 S.Ct. 1253, 1257, 12 L.Ed.2d 280 (1964), and it is not clear whether an unincorporated association may be sued in its own name in District of Columbia courts on non-federal claims even when those claims are appended to a federal claim.)

In the initial round of briefing the parties argued about whether the district court had erred in cutting short this litigation by finding that the School was not sufficiently linked to the federal government to subject its treatment of the Kauffmans to constitutional limitations. The day after oral argument, however, the Supreme Court unanimously ruled that Bivens liability does not run against a federal agency, but only against individual federal agents. FDIC v. Meyer, --- U.S. ----, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). We requested supplemental briefing on whether a Bivens action may be brought against an entity like the School or only against the individual board members. Cf. United States Nat'l Bank of Oregon v. Independent Ins. Agents of America, --- U.S. ----, ---- - ----, 113 S.Ct. 2173, 2178-79, 124 L.Ed.2d 402 (1993).

Of course, no Bivens action could conceivably lie unless the School is a federal actor, in the sense that its termination of Mr. Kauffman's employment can be attributed to the federal government for purposes of the First and Fifth Amendments. Even if the School is a federal actor, however, it is not a federal agency: it is plainly a different sort of entity than the FSLIC, the agency at issue in Meyer. Still, the differences between a federal agency and an artificial person that is a federal actor seem to weaken, rather than strengthen, the case for a Bivens remedy. The remedy exists solely as a response to the problem of unconstitutional federal action. The presence of federal action here would be crystal clear if the School were part of a federal agency, but Meyer makes plain that even then a Bivens action would lie only against the offending individuals and not the School (even if the School had the capacity to sue and be sued, like the FSLIC). That the School's link to federal authority is more tenuous does not make a Bivens remedy against it any more appropriate.

We do not think it matters whether the School is portrayed as an "all-purpose" federal actor or only as a federal actor with respect to the termination decision at issue here. Under either theory, the Kauffmans enjoy a constitutional claim only to the extent that the School's decision to terminate Mr. Kauffman's employment can be analogized to the decision of a federal agency. We think it untenable to draw this analogy for purposes of Bivens but not for purposes of Meyer.

To be sure, a panel of this court--albeit without an opinion that commanded a majority--once permitted a Bivens action to be brought against a private corporation whose agents had allegedly taken actions at the behest of, and in conjunction with, the federal government. See Reuber v. United States, 750 F.2d 1039, 1053-60 (D.C.Cir.1984) (opinion of Wald, J.); id. at 1063-65 (opinion of Bork, J.). Other circuits have allowed similar suits. See Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1337-38 (9th Cir.1987); Dobyns v. E-Systems, Inc., 667 F.2d 1219 (5th Cir.1982); Yiamouyiannis v. Chemical Abstracts Serv., 521 F.2d 1392 (6th Cir.1975) (per curiam). Even the most thorough of these opinions, however, focused entirely on the question of whether Bivens...