747 F.2d 899 (4th Cir. 1984), 83-2006, Pinar v. Dole

Docket Nº:83-2006.
Citation:747 F.2d 899
Party Name:Enis M.I. PINAR, Appellant, v. Elizabeth DOLE, in her official capacity as Sec. of Transportation; William Halligan, individually and in his official capacity as Chief, FAA Public Safety Division; Edward Jones, individually and in his official capacity as Chief, National Airport Police; Lynwood Elkins, individually and in his official capacity as C
Case Date:October 22, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 899

747 F.2d 899 (4th Cir. 1984)

Enis M.I. PINAR, Appellant,

v.

Elizabeth DOLE, in her official capacity as Sec. of

Transportation; William Halligan, individually and in his

official capacity as Chief, FAA Public Safety Division;

Edward Jones, individually and in his official capacity as

Chief, National Airport Police; Lynwood Elkins,

individually and in his official capacity as Col. National

Airport Police; Allen Fahey, individually and in his

official capacity as Lt. National Airport Police and William

Morse, individually and in his official capacity, Sgt.

National Airport Police, Appellees.

No. 83-2006.

United States Court of Appeals, Fourth Circuit

October 22, 1984

Argued March 7, 1984.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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George M. Chuzi, Washington, D.C. (June D.W. Kalijarvi, Joan L. Bozek, Kalijarvi, Delate & Chuzi, Washington, D.C., on brief), for appellant.

John R. Tyler, Civ. Div., Dept. of Justice, Washington, D.C. (Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Elsie L. Munsell, U.S. Atty., Alexandria, Va., William G. Kanter, Civ. Div., Dept. of Justice, Washington, D.C., on brief), for appellees.

Before WINTER, Chief Judge, and RUSSELL and CHAPMAN, Circuit Judges.

CHAPMAN, Circuit Judge:

Enis Pinar, a Federal Aviation Administration (FAA) police officer in the Public Safety Division at the Washington National Airport (WNA), appeals the district court's order granting the defendants' "motion to dismiss, or in the alternative, for summary judgment." 1 Pinar brought this suit against Elizabeth Dole, Secretary of the Department of Transportation (DOT), 2 in her official capacity, and various employees of the FAA who are sued in both their official and individual capacities, contesting three personnel actions taken against him: (1) the issuance of a letter of reprimand for making false and unfounded statements about another employee; (2) a two-day suspension without pay and benefits for mishandling his firearm; and (3) the termination of his temporary promotion to GS-6 for being unresponsive to authority. Pinar brought claims against the defendants in their official capacities under the Administrative Procedures Act, 5 U.S.C. Sec. 701 et seq., seeking declaratory and injunctive relief from the disciplinary actions taken against him. In addition, Pinar sought injunctive relief against the agency and money damages against the individual appellees on the grounds that the disciplinary actions taken against him were in violation of his first amendment rights. Finally, Pinar claimed his temporary promotion was terminated in violation of his fifth amendment right to due process. Finding that Pinar has no claim under the first amendment for monetary or injunctive relief against the appellees, has no right of judicial review under the APA, and has no cognizable property interest in his temporary promotion, we affirm the district court.

I

Pinar has been a police officer with the FAA police force at WNA since December of 1978 and is currently a GS-5. Pinar's performance evaluation from his superiors covering the time period at issue in this case appraised his performance as "outstanding." On February 11, 1981, Pinar issued parking tickets to two illegally parked cars licensed to members of Congress. On February 12, 1981, Pinar ticketed the same cars for being illegally parked in excess of 24 hours. On February 13, 1981, defendant Morse, Pinar's immediate supervisor, ordered Pinar to void the tickets. Pinar declined to comply with this order. According to the allegations of Pinar's complaint, Morse told Pinar he was lobbying with a Congressman for passage

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of legislation favorable to the airport police, and ticketing Congressmen would jeopardize Morse's lobbying efforts. Pinar also alleges his second and third-level supervisors, defendants Fahey and Elkins, advised him not to ticket Congressmen.

More than three months later, on May 27, 1981, defendant Morse disciplined Pinar for being late to roll call. 3 The next day Pinar wrote a formal complaint to Elkins charging Morse with harassment and accusing Morse of conduct unbecoming an officer relating to Morse's February 13 order to Pinar to void the parking tickets. Pinar requested Morse be reprimanded for "subordinating the duties of a federal law enforcement officer to the prospects of material gain through political lobbying." Morse denied all of Pinar's allegations, and subsequently filed grievances against Pinar alleging Pinar had made "false and unfounded statements against him."

On June 10, 1981 Elkins informed Pinar that his temporary promotion to Special Functions Officer, GS-6, was being terminated as of June 14, 1981 because Pinar was unresponsive to authority. Pinar had been promoted on February 17, 1981, for a period not to exceed one year. The letter notifying Pinar of the temporary promotion, which was signed by him, provided it could be terminated at any time at the sole discretion of the FAA, and it might become permanent if Pinar met the requirements in the job description before the expiration of one year.

On September 9, 1981, defendant Jones notified Pinar of a proposal to suspend him for seven days for, inter alia, making false and unfounded statements about Morse in the May 28, 1981, letter of complaint. After consideration of Pinar and his attorneys' oral and written response to the proposal, Jones reduced the proposed suspension to a letter of reprimand which was issued on December 15, 1981. On or about December 28, 1981, Pinar submitted a formal grievance with respect to the December 15, 1981, reprimand. On January 20, 1982, defendant Halligan rejected the grievance as untimely since it was received after the ten-day period provided for such grievances by the applicable regulation. Pinar requested an extension of time to file his grievance from Airport Director Wilding, who denied it. Pinar appealed his letter of reprimand to the FAA Labor Relations staff. The Labor Relations staff appointed a grievance examiner, who concluded Pinar's grievance was not timely filed and was thus properly cancelled.

On February 2, 1982, defendant Jones proposed to suspend Pinar for 14 days for failing to properly secure his firearm on July 30, 1981, and for failing to observe precautions for his safety and that of others. 4 With the assistance of counsel Pinar opposed the suspension in writing and orally, arguing the proposed suspension was not timely, would not serve as constructive discipline, and was contrary to the facts. Defendant Jones decided to suspend Pinar for five days. Pinar formally grieved the suspension and a grievance examiner was appointed by Halligan to investigate. The examiner recommended no disciplinary action be taken against Pinar. Jones submitted to Halligan his objections to the examiner's recommendations. Halligan disagreed with the examiner's recommendations and in accordance with FAA guidelines referred the grievance to the next higher level for decision. On January 17, 1983, Hugh Riddle, Jr., Deputy Director of MWA, rejected the examiner's recommendations, but reduced the suspension to two days.

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On July 1, 1983 Pinar brought this suit in district court alleging the personnel actions taken against him were arbitrary and capricious and violative of his first amendment rights. Pinar also claimed his temporary promotion was terminated in violation of his fifth amendment right to due process of law. The district court dismissed Pinar's complaint. With respect to Pinar's APA and first amendment claims the court held that, in light of the comprehensive remedies available under the Civil Service Reform Act of 1978, Pub.L. 95-454, 92 Stat. 1111 et seq. (CSRA), relief in federal district court from the minor personnel actions at issue must be denied. The court also determined that Pinar had no legally cognizable property interest in his temporary promotion requiring due process protection under the fifth amendment.

II

The initial issue to be addressed is whether in light of the CSRA, Pinar has a claim under the first amendment for damages against the individual defendants. For purposes of this decision we must assume that Pinar's first amendment rights were violated by the disciplinary actions taken against him. See Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 2408, 76 L.Ed.2d 648 (1983). Pinar asserts that his superiors are liable for their constitutional torts under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens, the Supreme Court held that the Constitution itself supports a private cause of action for damages against a federal official. However, in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the Supreme Court declined to permit a federal employee to bring a Bivens -type cause of action for money damages against his supervisors for alleged violations of his first amendment rights. In Bush, an aerospace engineer employed at a facility operated by the National Aeronautics and Space Administration made a number of public statements that were highly critical of the agency. Subsequently the agency initiated an adverse personnel action to remove the engineer, Bush, from his position. After considering Bush's reply, respondent Lucas, the Director of the Center, demoted Bush instead of removing him. Bush successfully pursued administrative remedies and was ultimately restored to his former position and awarded back pay.

While his administrative appeals were pending, Bush brought suit against Lucas to recover damages for defamation and violation of his constitutional rights. The Supreme Court declined to authorize a new nonstatutory damages...

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