Collins v. Bender et al, 98-15040

• Decision Date: 28 October 1999
• Docket Number: No. 98-15040,98-15040
• Citation: 195 F.3d 1076
• Parties: (9th Cir. 1999) EDWARD L. COLLINS, II, Plaintiff-Appellant, v. ROBERT BENDER; STEPHEN D'ERCHIA; RICHARD PLUNKETT, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1076

195 F.3d 1076 (9th Cir. 1999)

EDWARD L. COLLINS, II, Plaintiff-Appellant, v. ROBERT BENDER; STEPHEN D'ERCHIA; RICHARD PLUNKETT, Defendants-Appellees.

No. 98-15040

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted Friday, July 16, 1999 San Francisco, California

Filed October 28, 1999

Carlton L. Briggs, Santa Rosa, California, for the plaintiff-appellant.

Patricia J. Kenney, Assistant United States Attorney, San Francisco, California, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California; William H. Orrick, District Judge, Presiding. D.C. No. CV-96-00541-WHO

Before: Charles Wiggins, Ferdinand F. Fernandez, and Sidney R. Thomas, Circuit Judges.

WIGGINS, Circuit Judge:

Edward Collins, a former DEA agent, filed a Bivens¹ action against fellow DEA agents after the agents, without a warrant, searched Collins' home and seized his personal firearms. The district court held that the Civil Service Reform Act ("CSRA") (codified in various sections of 5 U.S.C.) precluded Collins' Bivens action, and the court dismissed it. We reverse.

FACTS

In February 1994, DEA agent Edward Collins was placed on administrative leave because of numerous allegations of serious, sometimes dangerous, misconduct.² While Collins' supervisor was notifying Collins of the administrative leave decision, other DEA agents removed Collins' DEA credentials and official firearm from his desk. After Collins was placed on administrative leave, his supervisor, Robert Bender, ordered two other DEA agents, Stephen D'Erchia and Richard Plunkett, to go to Collins' house and retrieve all government property and Collins' personal firearms. To retrieve Collins' firearms, D'Erchia and Plunkett searched Collins' home.³ Collins claims that he never gave his consent to the search, but that he allowed the agents to conduct the search after they handled their firearms in a threatening manner and told him that Bender demanded that they retrieve the weapons. According to Collins' complaint, the agents then engaged in various unconstitutional actions to prevent Collins from reporting their illegal activities.⁴ Collins was eventually terminated.

DISCUSSION

Courts can hear constitutional tort claims against federal officials in their individual capacities if Congress has not foreclosed a remedy for the constitutional violation and if there are no special factors counseling hesitation in the absence of affirmative action by Congress. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics , 403 U.S. 388, 396-97 (1971). But the Supreme Court "respond[s] cautiously to suggestions that Bivens remedies be extended into new contexts." Schweiker v. Chilicky, 487 U.S. 412, 421 (1988). " `When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration,' the Supreme Court has not created additional Bivens remedies. " Blankenship v. McDonald, 176 F.3d 1192, 1195 (9th Cir. 1999) (quoting Chilicky, 487 U.S. at 423). Judicial deference is particularly appropriate in the realm of federal personnel policy. Because Congress "is far more competent than the Judiciary to carry out the necessary `balancing [of] governmental efficiency and the rights of employees,' " the Court defers to Congress' judgment regarding the proper remedy for unconstitutional federal personnel actions. Chilicky, 487 U.S. at 423 (quoting Bush v. Lucas, 462 U.S. 367, 389 (1983)).

Congress created the framework for federal personnel policy in the CSRA. "The CSRA contains an `elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations.' " Blankenship, 176 F.3d at 1195 (quoting Bush , 462 U.S. at 388). When allegedly unconstitutional conduct falls within the broad confines of the CSRA, courts lack jurisdiction to hear a Bivens action based on the conduct. See Saul v. United States, 928 F.2d 829, 840 (9th Cir. 1991).

Collins claims that appellees violated his rights under the United States Constitution by searching his home without consent, by depriving him of his firearms, and by attempting to prevent him from reporting these illegal activities. The district court dismissed Collins' Bivens claims, holding that it lacked subject matter jurisdiction. According to the district court, Collins' allegations, if true, would establish that appellees committed a "prohibited personnel practice " under the CSRA, precluding any Bivens action. We review the district court's dismissal for lack of subject matter jurisdiction de novo. See Crist v. Leippe, 138 F.3d 801, 803 (9th Cir. 1998).

Under the CSRA, "prohibited personnel practices" include the taking of a "personnel action" that violates merit system principles. 5 U.S.C. S 2302(b)(11); see also Saul, 928 F.2d at 833. "The merit system principles include treating employees fairly and equitably, `with proper regard for their privacy and constitutional rights.' " Saul , 928 F.2d at 833 (quoting 5 U.S.C. S 2301(b)(2)). The question before the panel, then, is whether appellees' actions constituted "personnel actions" as defined in the CSRA. If so, the CSRA applies to appellees' conduct, and the CSRA procedures, not the federal courts, will determine what remedy, if any, is available to vindicate Collins' constitutional rights.

The CSRA defines " `personnel action' as including `disciplinary or corrective action.' " Saul, 928 F.2d at 833 (quoting 5 U.S.C. 2302(a)(2)(A)(iii)). In Bush v. Lucas, the Supreme Court noted that there are limits to the types of actions that can be considered "personnel actions " under the CSRA: "[C]ertain actions by supervisors against federal employees, such as wiretapping, warrantless searches, or uncompensated takings, would not be defined as `personnel actions' " under the CSRA. Bush v. Lucas , 462 U.S. 367, 386 n.28 (1983). But despite the Bush footnote, the Saul court took an expansive reading of the phrase "personnel action." In Saul, a federal employee sued his supervisors for, inter alia, "seizing and opening personal mail addressed to him at the office, thereby violating his constitutional rights and invading his privacy." Saul, 928 F.2d at 829. The court held that "[t]he term `corrective action' [which is a subset of "personnel action] can be read broadly enough to encompass the mail opening before us." Id. at 834. The court decided that the Bush footnote did not preclude its holding because "the footnote was [not] meant to decide whether every allegation that a supervisor has subjected a federal employee to a warrantless search is barred from appeal under the CSRA. Read in context, the footnote indicates only that CSRA remedies, while comprehensive, are not infinitely so." Id. at 839.

Of course, Saul's statement that not all warrantless searches fall outside of the CSRA certainly does not mean that all warrantless searches by supervisors fall within the CSRA. The issue, as the Saul court framed it, is whether the particular search is a "personnel action" as defined by the CSRA. In Saul, this court held that the term "corrective action" could be read broadly enough to encompass the search of the employee's private mail at the office. Id. at 834. The Saul court did not clearly articulate the reasoning that led to this conclusion. As a result, Saul makes clear that some warrantless searches can qualify as "personnel actions" under the CSRA, but Saul is of little help in determining whether the search of Collins' home falls within the CSRA.

Collins concedes that the issue before the court is whether the search of his home was, like the search in Saul, a "personnel action," which would place it under the purview of the CSRA. But Collins argues that the search of his home was not a "personnel action" because no actions outside the workplace, let alone a warrantless search and seizure and uncompensated taking in the employee's home, so qualifies. Collins, therefore, seems to argue that the location of this action alone determines whether the action is a "personnel action." We disagree. The fact that agents searched Collins' home is an important factor in our decision, but location alone is insufficient to determine whether an action is a "personnel action." It is true that "personnel actions " rarely take place "outside the workplace." We would expect this as most business is conducted inside the workplace. But the scarcity of examples of "personnel actions" outside of the office does not...