Feit v. Ward

• Decision Date: 26 September 1989
• Docket Number: No. 88-2553,88-2553
• Citation: 886 F.2d 848
• Parties: Joseph FEIT, Plaintiff-Appellant, v. John WARD and Eugene Grapa, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 848

886 F.2d 848

Joseph FEIT, Plaintiff-Appellant, v. John WARD and Eugene Grapa, Defendants-Appellees.

No. 88-2553.

United States Court of Appeals Seventh Circuit.

Argued Jan. 5, 1989.

Decided Sept. 26, 1989.

Steven J. Schooler, Lawton & Cates and Steven A. Brezinski, Axley & Brynelson, and Menzi L. Behrnd-Klodt, Madison, Wis., for Joseph Feit, plaintiff-appellant.

David C. Sarnacki, Asst. U.S. Atty., Office of the U.S. Atty., Madison, Wis., Richard A. Olderman, Dept. of Justice, Civ. Div., Appellate Staff, and Barbara L. Herwig, Dept. of Justice, Civ. Div., Appellate Section, Washington, D.C., for John Ward and Eugene Grapa, defendants-appellees.

Before POSNER, COFFEY and KANNE, Circuit Judges. ^*

COFFEY, Circuit Judge.

Plaintiff Joseph Feit appeals the district court's dismissal of his suit against the defendants, John Ward and Eugene Grapa, his supervisors while he was employed with the United States Department of Agriculture Forest Service ("Forest Service"). Feit alleges they were responsible for the termination of his employment in violation of his first amendment rights. We affirm.

I.

Feit was a seasonal forestry technician employed by the United States Forest Service in Park Falls, Wisconsin. Feit was originally hired in the summer of 1982, and was hired every summer thereafter up to and including the summer of 1987. On April 26, 1987, the day before Feit was scheduled to commence his 1987 employment, he attended and participated in a rally organized to protest native American spearfishing in northern Wisconsin. Feit was arrested at the rally and charged with disorderly conduct. ¹

On May 13, 1987, defendants Ward and Grapa informed the plaintiff that his employment with the Forest Service was being terminated due to his involvement in the native American spearfishing protest. After Ward and Grapa terminated Feit's employment, they directed other Forest Service employees not to attend protests, public benefits or other meetings concerning the issue of native American spearfishing rights.

On March 16, 1988, Feit commenced this action against Ward and Grapa in their individual capacities ² in the Circuit Court for Price County, Wisconsin. In his complaint Feit alleged that his termination of employment for participating in the anti-spearfishing rally violated his first amendment rights and that he was without an administrative remedy to redress his allegedly unconstitutional termination. Feit requested compensatory damages in the amount of $50,000 premised on his "loss of employment, loss of wages, loss of employment benefits, embarrassment, emotional distress, mental anguish and humiliation." Feit also sought punitive damages of $15,000 against each defendant, as well as an award of costs and attorneys' fees. In addition to seeking monetary relief, Feit requested that the district court issue a declaratory judgment holding the defendants' policy prohibiting Forest Service employees from participating in spearfishing protests as violative of the first amendment, as well as a permanent injunction barring the defendants "from disciplining and/or discharging employees for exercising their First Amendment rights."

On April 15, 1988, the defendants removed this action to the United States District Court for the Western District of Wisconsin pursuant to 28 U.S.C. Secs. 1442(a)(1) and 1446(d). On May 16, 1988, the defendants filed a motion to dismiss for failure to state a claim upon which relief could be granted. The district court found that under Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), a damages remedy is unavailable to the plaintiff because the Civil Service Reform Act of 1978 ("CSRA"), ³ the "statutory scheme for federal employee relations," does not create remedies for seasonal employees such as Feit. The court also concluded that Feit's claims for declaratory and injunctive relief "have been mooted by the termination of his employment.... Plaintiff is no longer a Forest Service employee who would be affected by the defendants' actions and does not have standing to sue." Accordingly, the district court, on July 12, 1988, dismissed Feit's action against the defendants.

Feit filed this appeal on August 3, 1988, arguing that the district court erred in dismissing his claim for damages because, as a seasonal employee, he has no remedy under the CSRA to redress the defendants' violation of his first amendment rights. Feit further argues that his claims for declaratory and injunctive relief fall within the "capable of repetition, yet evading review" exception to the mootness and standing doctrines, and thus were improperly dismissed by the district court.

II.

Feit's first allegation of error is that the district court improperly dismissed his claim for damages against Ward and Grapa for their allegedly unconstitutional termination of his employment with the Forest Service. As an initial matter we note that Feit's damages action is premised on the constitutional tort theory first enunciated in 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). In Bivens, the petitioner alleged that federal agents subjected him to arrest and the unlawful search of his home in violation of the fourth amendment and sought damages based on the agents' unconstitutional conduct. Despite the absence of a federal statutory basis for the plaintiff's damages claim, the Supreme Court held that the Constitution itself supports a private cause of action and that the petitioner was entitled to recover damages from the agents for their violation of his fourth amendment rights. The Supreme Court has subsequently recognized "Bivens actions" for money damages based on violations of the fifth amendment's due process clause, see Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and the eighth amendment, see Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). A plurality of this court, sitting en banc, has held that a Bivens action is available to redress violations of the first amendment, the constitutional provision Feit claims Ward and Grapa violated in discharging him due to his protest of native American spearfishing activities. See Egger v. Phillips, 710 F.2d 292 (7th Cir.), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).

In recognizing that "the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right," Carlson, 446 U.S. at 18-19, 100 S.Ct. at 1471, the Supreme Court has also stated that plaintiffs alleging constitutional violations are precluded from maintaining Bivens actions in two situations:

"The first is when the defendants demonstrate 'special factors counseling hesitation in the absence of affirmative action by Congress.' The second is when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective."

Id. at 18-19, 100 S.Ct. at 1471 (emphasis in original and citations omitted). Accord Bivens, 403 U.S. at 396-97, 91 S.Ct. at 2004-05; Davis, 442 U.S. at 245-47, 99 S.Ct. at 2277-78. It is uncontested that Congress has not explicitly declared the remedies provided in the CSRA to be substitutes for Bivens actions. Thus, the relevant inquiry in this case is whether there are "special factors counseling hesitation" in recognizing Feit's Bivens action against the defendants.

In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the Supreme Court employed the "special factors" analysis in considering the propriety of a federal employee's Bivens action seeking damages against his supervisors for demoting him in violation of his first amendment rights. Although Bush invoked his administrative and statutory remedies to obtain reinstatement to his former position with full back pay, the Supreme Court assumed that Bush's "civil service remedies were not as effective as an individual damages remedy and did not fully compensate him for the harm he suffered." Id. at 372, 103 S.Ct. at 2408 (footnotes omitted). The Court went on to state, however, that

"[t]he question is not what remedy the Court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue."

Id. at 388, 103 S.Ct. at 2416-17. After concluding that Bush's Bivens claim "ar[ose] out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States," id. at 368, 103 S.Ct. at 2406, the Court held that the creation of a Bivens remedy in favor of the petitioner would be inappropriate, because Congress, as opposed to the Court, "is in a better position to decide whether or not the public interest would be served by creating it." Id. at 390, 103 S.Ct. at 2417.

In this case, the district court found that under Bush, "the federal employment relationship is a special factor counseling hesitation in creating a judicial remedy," and thus, that Feit "is precluded from bringing an action under the Constitution for damages [against his federal employers]." Feit contends that the Supreme Court's rationale in Bush is not controlling on the question of whether this court should authorize his Bivens action against the defendants because, unlike the petitioner in Bush, he is without an administrative or judicial remedy under the CSRA to redress the alleged constitutional violation committed by the defendants.

At the outset, we disagree with Feit's assertion that he is without a remedy under the CSRA, when, in fact, the CSRA...