Garcia v. Williams, Civ. No. 87-6163-MFM.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Citation704 F. Supp. 984
Decision Date01 September 1988
Docket NumberCiv. No. 87-6163-MFM.
PartiesHerminia M. GARCIA, Plaintiff, v. Honorable Spencer Mortimer WILLIAMS, Judge, United States District Court for the Northern District of California, individually and in his official capacity as Judge and as founder and past President of the Federal Judges Association, and The Federal Judges Association, Defendants.

704 F. Supp. 984

Herminia M. GARCIA, Plaintiff,
Honorable Spencer Mortimer WILLIAMS, Judge, United States District Court for the Northern District of California, individually and in his official capacity as Judge and as founder and past President of the Federal Judges Association, and The Federal Judges Association, Defendants.

Civ. No. 87-6163-MFM.

United States District Court, N.D. California.

September 1, 1988.

704 F. Supp. 985
704 F. Supp. 986
704 F. Supp. 987
Daniel Robert Bartley, San Francisco, Cal., for plaintiff

H. Sinclair Kerr, Jr., Stephen Kaus, James. W. Wagstaffe and Amy B. Slater, Kaus, Kerr & Wagstaffe, San Francisco, Cal., for defendant Williams.

Keven M. Forde, Richard J. Prendergast, Chicago, Ill., Douglas R. Young, Farella, Braun & Martel, San Francisco, Cal., for defendant Federal Judges Ass'n.


MARSH, Judge, Sitting by Designation.

Plaintiff, the former secretary to United States District Judge Spencer Williams, brings this action alleging that she was sexually harassed and wrongfully discharged in violation of her constitutional rights under the First and Fifth Amendments to the United States Constitution. Plaintiff also alleges that defendants' conduct violates the United States District Court's Equal Employment Opportunity (EEO) Plan and constitutes several state common law torts.

Defendants Williams and the Federal Judges Association (FJA) move to dismiss. For the reasons set forth below, defendant Williams' motion is granted in part and denied in part. Defendant FJA's motion is granted.


Dismissal for failure to state a claim is proper only when it appears to a certainty that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir.1984) cert. denied 470 U.S. 1052, 105 S.Ct. 1753, 84 L.Ed.2d 817 (1985). For the purpose of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff, and its allegations are taken as true. Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1332 (9th Cir.1987).


Plaintiff divides her claims for relief into three categories: (1) Bivens Constitutional Claims; (2) Wrongful Termination Grounded in EEO Violations; and (3) State Common Law Tort Claims. I address plaintiff's claims under these categories.


Plaintiff alleges a multitude of constitutional violations. Before proceeding to the merits of those claims, however, it must be determined whether plaintiff's claims are cognizable under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

In Bivens, the Court held that a victim of a constitutional violation by a federal official may bring a claim for money damages despite the absence of a statute creating a private right of action. 403 U.S. at 397, 91 S.Ct. at 2005.1 A Bivens action may be defeated upon a showing of (1) "special factors counselling hesitation in the absence of affirmative action by Congress;" or (2) an explicit congressional declaration that another remedy is exclusive and viewed by Congress as equally effective. See e.g., United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 3060-61, 97 L.Ed.2d 550 (1987).

A. "Special Factors" Analysis — Generally

There are several Supreme Court cases addressing the "special factors" analysis referred to in Bivens. Although discussed at length below, the cases can be summarized as holding that a court may consider the following when determining whether "special factors" militate against the creation

704 F. Supp. 988
of a Bivens cause of action:2
(1) Whether Congress, rather than the judiciary, is the appropriate branch of government to regulate the particular field involved (See Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) and Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983));
(2) Whether Congress has been legislatively active in regulating the particular field involved and whether there are any indications that its failure to create a remedy comparable to Bivens is not inadvertent (See Schweiker v. Chilicky, ___ U.S. ___, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) and Bush, 462 U.S. 367, 103 S.Ct. 2404);
(3) Whether the creation of a judicial remedy would inhibit or disrupt the potential defendants from carrying out their particular duties (Compare Stanley, 107 S.Ct. 3054; Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) and Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979));
(4) Whether money damages is an appropriate remedy for the constitutional violation (See Davis, 442 U.S. 228, 99 S.Ct. 2264).

In Davis v. Passman, the former deputy administrative assistant to a United States Congressman alleged that her due process rights under the Fifth Amendment had been violated when she was discharged from her position due to her sex. 442 U.S. at 231, 99 S.Ct. at 2269. The defendant Congressman moved to dismiss on the basis, inter alia, that plaintiff failed to state a claim upon which relief could be granted.

The Court concluded that plaintiff had a Bivens action for money damages and that no "special factors" existed to defeat the action. In response to the defendant's argument that no right of action should be permitted because judicial review of congressional employment decisions would involve a lack of respect due coordinate branches of government, the Court concluded that the Speech or Debate Clause of the Constitution adequately protects members of Congress within the sphere of legitimate legislative activity.3 Id. at 236 n. 11, 246, 99 S.Ct. at 2272 n. 11, 2277; See also Carlson v. Green, 446 U.S. at 19, 100 S.Ct. at 1472 (special factors do not exist to protect prison officials from Bivens actions, even if such actions inhibit their official duties, because qualified immunity provides adequate protection).

In Chappell v. Wallace, the Court held that enlisted military personnel may not bring a Bivens claim against a superior officer due to the existence of "special factors." In so holding, the Court stated:

The special nature of military life — the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel — would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command. Here, as in Feres, we must be "concerned with the disruption of `the peculiar and special relationship of the soldier to his superiors' that might result if the soldier were allowed to hale his superior into court.

462 U.S. at 303-04, 103 S.Ct. at 2367.

Similarly, in Bush v. Lucas, the Court declined to allow a Bivens action by a federal employee who was demoted for exercising his First Amendment right to free speech. 462 U.S. at 390, 103 S.Ct. at 2418. When addressing the existence of "special factors," the Court noted that the cases used in Bivens to "illustrate" the meaning of the term related to the policy question of who should decide whether a particular

704 F. Supp. 989
remedy is appropriate. Id. at 380, 103 S.Ct. 2412-13.4

In reaching its determination that "special factors" existed which counselled hesitation, the Court reviewed the extensive legislation protecting federal civil servants.5 The Court noted that the costs associated with the review of disciplinary decisions is significant in monetary terms as well as "the time and energy of managerial personnel who must defend their decisions." Id. at 388, 103 S.Ct. at 2417. The Court concluded that "it is quite probable that if management personnel faced the added risk of personal liability for decisions that they believed to be a correct response to improper criticism of the agency, they would be deterred from imposing discipline in future cases." Id. at 389, 103 S.Ct. at 2417. In addition, the Court noted:

In all events, Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service. Not only has Congress developed considerable familiarity with balancing governmental efficiency and the rights of employees, but it also may inform itself through factfinding procedures such as hearings that are not available to courts.


Following its decision in Bush, the Court clarified the "special factors" analysis in United States v. Stanley. Like Chappell, Stanley involved the propriety of permitting a Bivens claim for injuries arising out of military service. 107 S.Ct. at 3057. In concluding that a Bivens claim would not be allowed, the Court addressed the relevance of other remedies available to the plaintiff:

It is irrelevant to a "special factors" analysis whether the laws currently on the books afford Stanley, or any other particular serviceman, an "adequate" federal remedy for his injuries. The "special factor" that "counsels hesitation" is not the fact that Congress has chosen to afford some manner of relief in the particular case, but the fact that congressionally uninvited intrusion into military affairs by the judiciary is inappropriate.

Id. at 3063 (citations omitted).

The most recent Supreme Court case in this area is Schweiker v. Chilicky. In Schweiker, the issue before the Court was "whether the improper denial of Social Security disability benefits, allegedly resulting from violations of due process by government officials who administered the Federal Social Security program, may give rise to a cause of action for money damages against those officials." 108 S.Ct. at 2463. The Court, relying heavily upon Bush, held that it did not.

Like Bush, the Court's "special factors" analysis focused on Congress' activity in establishing the structure and procedure of the...

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