Clemente v. U.S.
| Decision Date | 24 July 1985 |
| Docket Number | Nos. 83-6187,83-6188 and 83-6430,s. 83-6187 |
| Citation | 766 F.2d 1358 |
| Parties | 38 Fair Empl.Prac.Cas. 808, 37 Empl. Prac. Dec. P 35,469 Lowene R. CLEMENTE, Plaintiff/Appellee, v. UNITED STATES of America, United States Air Force, a military department of the United States of America, with Verne Orr, Secretary of the United States Air Force, Ronald J. Bishop, Jr., Harold L. Pray; Charles L. Brower Phillip G. Seneschal; Harry W. Johnston; and Jeffrey W. Cook, Defendants/Appellants. Lowene R. CLEMENTE, Plaintiff/Appellee, v. UNITED STATES of America, United States Air Force, a military department of the United States of America, with Verne Orr, Secretary of the United States Air Force, Ronald J. Bishop, Jr., Harold L. Pray; Charles L. Brower Phillip G. Seneschal; Harry W. Johnston; and Jeffrey W. Cook, Defendants/Appellants. Lowene R. CLEMENTE, Plaintiff/Appellee, v. UNITED STATES DEPARTMENT of the AIR FORCE and Verne Orr, Secretary of the United States Department of the Air Force, Defendants/Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
S. Timothy Buynak, Jr., Hatch & Parent, Santa Barbara, Cal., for plaintiff/appellee.
Kevin M. Grile, American Federation of Government Employees, AFL-CIO, Northfield, Ill., Amicus Curae, for American Federation of Government Employees.
Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Robert C. Bonner, U.S. Atty., Los Angeles, Cal., Barbara L Appeal from the United States District Court for the Central District of California.
Herwig, Edward R. Cohen, Attys., Dept. of Justice, Washington, D.C., for defendants/appellants.
Before CHOY, CANBY and NORRIS, Circuit Judges.
Plaintiff, a white civilian Air Force employee, brought an employment discrimination action after an Air Force "reduction in force" (RIF) resulted in her reassignment. She also asserted due process violations arising out of the alleged failure of Air Force officials fully to process her discrimination claims.
Defendants challenge the district court's rulings that plaintiff: (1) had demonstrated retaliatory discrimination entitling her to back pay and "seniority relief;" and (2) had established a violation of her administrative due process rights entitling her to "Bivens-type" compensatory and punitive damages against the United States, the U.S. Air Force, the Secretary of the Air Force, and named Air Force officers and employees. Defendant Secretary of the Air Force also challenges an order of the district court holding the Secretary in contempt. We reverse the judgment for damages and vacate the contempt order.
Plaintiff Lowene Clemente, a civilian Air Force employee, originally filed an action in district court alleging (1) reverse racial discrimination; (2) coercive and retaliatory measures taken against her for filing administrative claims; (3) denial of reemployment priority rights; and (4) improper implementation of a reduction in force. The complaint was an outgrowth of an EEO proceeding which began in 1977, when Clemente appealed her RIF reassignment, on race discrimination and other grounds, to the Federal Employee Appeals Authority (FEAA).
The FEAA notified the Air Force that under applicable Civil Service regulations, two alternative methods were available to process Clemente's appeal: that set forth in 5 C.F.R. Part 351 or that in 5 C.F.R. Part 713. 2 A further regulation then in effect provided that
If the appellant has not been informed of the separate rights of appeal, the Appeals Authority shall refer the matter to the agency so the agency may explain the alternative rights of appeal to the appellant as provided in Sec. 713.236 of Part 713 of this chapter and afford him the opportunity, if appropriate, to elect the avenue of appeal he wishes to pursue.
5 C.F.R. Sec. 772.306(a) (1977). The FEAA requested the Air Force to secure plaintiff's election in writing. Clemente was contacted by a representative of her employing facility, Vandenberg Air Force Base, and informed of the two options. On advice of counsel, she failed to respond.
Meanwhile, the FEAA sent two letters to Vandenberg in an effort to ascertain the appellate option Clemente had elected. Upon notification by Vandenberg that no response had been received to its letter requesting an election, the FEAA notified Clemente's counsel that her "Part 351" appeal had been cancelled.
Shortly thereafter, Clemente secured new counsel. Her new attorney promptly Under Air Force regulations,
wrote the FEAA and Vandenberg, informing each that Clemente assumed that her Part 713 appeal was still being processed. The FEAA's response noted that the Part 351 appeal had been cancelled, and the Part 713 appeal was to be handled by officials at Vandenberg.
If the complainant elects to proceed under FPM Chapter 713, after having been specifically informed of his right to use the other appellate system, then the entire matter, including the merits of the action, will be reviewed under this regulation.
AFR 40-713, p 33 (emphasis added). Pursuant to this regulation, an EEO counselor was assigned to interview Clemente and explore her RIF and discrimination claims. After the interview, Clemente was notified of her right to file a formal discrimination complaint, and she did so. This formal complaint was rejected by the Air Force as untimely. Her initial complaint in district court followed.
In April 1980, the district court issued a decision. Finding a failure by the Air Force properly to process Clemente's complaints, the court remanded the "complaints of plaintiff as presented herein" to Vandenberg AFB "for continuous and diligent administrative processing by the Defendants under applicable Air Force regulations." 568 F.Supp. at 1156. The court admonished that "[s]aid processing should be accomplished in strict compliance with applicable Air Force regulations, should involve all stages of administrative processing entailed therein, and should be conducted so as to insure Plaintiff her full rights in said proceedings and a fair adjudication of her complaints." Id.
Following the district court's remand and this court's unpublished opinion dismissing defendants' appeal for lack of finality, Clemente v. United States, 667 F.2d 1030 (9th Cir.1981), defendant Johnstone was appointed by the Air Force to investigate Clemente's claims. In an initial meeting, Clemente and her counsel presented Johnstone with an outline of Clemente's complaints and administrative processing expectations. Johnstone responded that he could only process the discrimination claim. An exchange of correspondence followed in which Clemente's counsel emphasized his disagreement with the limitations placed on the scope of the investigation and the processing steps undertaken, insisting that such limitations were violative of the court's April remand order. By letter, Johnstone informed Clemente's counsel that the court had only remanded the discrimination claim, that it was not his responsibility to define the issues accepted for investigation, and that he had received nothing from the Air Force indicating that he should broaden the scope of his investigation.
Shortly thereafter, Clemente's counsel arranged a meeting with defendant Brower, Vandenberg's Legal Officer for Labor Relations, and defendant Seneschal, Vandenberg's Civilian Personnel Officer. The parties discussed the appropriate processing of Clemente's RIF appeal, her priority reemployment rights claim, and the reprisal charges. Clemente's counsel made a request that the Air Force produce certain documents. Soon afterward, Seneschal sent Clemente's counsel a letter indicating, inter alia, that Clemente's document requests would be honored.
Several weeks later, defendant Brower informed Clemente's counsel that Air Force headquarters had determined that no further processing could be provided either through the Air Force or the FEAA's successor organization, the Merit Systems Protection Board (MSPB). 3
That same day, Clemente's counsel wrote Johnstone complaining that none of Clemente's witnesses had received interrogatories or been contacted, interrogatories had not been sent to Clemente's counsel for review as previously agreed, and the request One month later, defendant Pray, Chief of Personnel at Vandenberg, issued a "Notice of Proposed Disposition of Discrimination Complaint" recommending cancellation of Clemente's complaint. Upon receipt of this notice, Clemente's counsel wrote Pray alleging deficiencies in the Air Force's processing of her claims, and requesting combined adjudication of all four issues. His letter--copies of which went to Brower and defendants' attorney--cited Air Force regulations, the purported constitutional rights of plaintiff, and the court's remand judgment. A similar letter was sent directly to defendants' attorney, again detailing alleged deficiencies in the Air Force's processing of plaintiff's claims, and stressing that this failure "diligently, promptly, and completely [to] process Mrs. Clemente's claims" thereby "perfect[ed] causes of action for constitutional violations against the Air Force as well as any governmental official responsible for these actions." 568 F.Supp. at 1158.
for documents was still outstanding. Johnstone never answered this letter, and the processing deficiencies referred to remained unremedied. One week later, Johnstone forwarded a report to Vandenberg's base commander finding no discrimination. Thereafter, Brower reconfirmed to Clemente's counsel that there would be no further processing of her claims.
Several weeks later, defendant Bishop, base commander at Vandenberg, issued a "Notice of Final Decision" cancelling Clemente's complaint, but asserting that the Air Force had made a "good faith attempt" to comply with the court's April remand judgment.
Clemente thereupon reopened proceedings in the district court and amended her initial complaint to include...
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