Kotarski v. Cooper

• Decision Date: 16 September 1986
• Docket Number: No. 84-5673,84-5673
• Parties: 41 Empl. Prac. Dec. P 36,479, 55 USLW 2200 Frank K. KOTARSKI, Plaintiff-Appellant, v. V.L. COOPER, A.E. Navarro, W.J. Tinston, J.H. Kirkpatrick, Naval Air Rework Facility, Capt. P.A. Monroe, in his official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1342

799 F.2d 1342

41 Empl. Prac. Dec. P 36,479, 55 USLW 2200

Frank K. KOTARSKI, Plaintiff-Appellant, v. V.L. COOPER, A.E. Navarro, W.J. Tinston, J.H. Kirkpatrick Naval Air Rework Facility, Capt. P.A. Monroe, in his official capacity, Defendants-Appellees.

No. 84-5673.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 11, 1985.

Decided Sept. 16, 1986.

Frank K. Kotarski, in pro. per.

Richard A. Olderman, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Southern District of California.

Before NELSON, CANBY and HALL, Circuit Judges.

CANBY, Circuit Judge:

Plaintiff, a civilian employee of the Navy, was promoted to a supervisory position subject to a probationary period of one year. He was demoted to his former position during that year, and brought this action in district court to contest his demotion and seek Bivens ¹ damages for it. The district court dismissed his complaint with prejudice, and plaintiff appeals. We reverse.

BACKGROUND

In 1981, plaintiff Frank Kotarski was promoted from his position as a GS-12 civilian Navy engineer to the position of GM-13: industrial engineer with supervisory responsibilities. This competitive appointment was subject to a probationary period of one year. 5 U.S.C. Sec. 3321; 5 C.F.R. Sec. 315.802(a) et seq. Toward the close of this period, Kotarski's immediate superiors, defendants here, notified him that his performance as a supervisor had been unsatisfactory. Kotarski was accordingly returned to his prior position.

Shortly thereafter, Kotarski filed this action against defendants, seeking reinstatement, back pay, and Bivens damages for his demotion. He also sought review of the agency action under the Administrative Procedure Act. The complaint alleged that defendants had violated Kotarski's first, fifth and ninth amendment rights by demoting him from his position as supervisor. Five months later, Kotarski filed a second action alleging that his demotion also violated his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-16. That action is still pending in district court. The district court disposed of this first action by dismissing it with prejudice, upon the government's motion. This appeal followed.

DISCUSSION

A. Jurisdiction

In addition to seeking Bivens damages against his immediate superiors and review of the agency action under the Administrative Procedure Act, Kotarski seeks reinstatement and back pay from defendant Naval Air Rework Facility, an instrumentality of the United States. Although Kotarski's prayer for relief does not specify the amount of back pay sought, we conclude that it would exceed $10,000. See Doe v. United States Dept. of Justice, 753 F.2d 1092, 1101 (D.C.Cir.1985). As a result, the district court was without jurisdiction over Kotarski's back pay claim. The Tucker Act, 28 U.S.C. Sec. 1346(a)(2), requires that such actions be brought in the United States Claims Court. ² The claim against the Facility for reinstatement is so integrated with the claim for back pay, that it must likewise be entertained in the Claims Court. See Schulthess v. United States, 694 F.2d 175, 178 (9th Cir.1982); Giordano v. Roudebush, 617 F.2d 511, 514-15 (8th Cir.1980). Accordingly, we remand these claims to the district court for consideration of whether the interests of justice require transfer of Kotarski's back pay and reinstatement claims to the Claims Court. See 28 U.S.C. Sec. 1631. ³

There is no problem, however, with the district court's jurisdiction over Kotarski's constitutional claims against the individual defendants. Bivens actions brought against federal officials in their individual capacities for violations of a plaintiff's constitutional rights are not suits requiring the consent of the United States. The Tucker Act is therefore not implicated. Van Drasek v. Lehman, 762 F.2d 1065, 1070 (D.C.Cir.1985); Doe, 753 F.2d at 1101. The district court therefore properly entertained Kotarski's Bivens claims.

B. Title VII as Exclusive Remedy

The district court dismissed Kotarski's Bivens claims on two alternative grounds. The first was that Kotarski's exclusive remedy lay in Title VII, 42 U.S.C. Sec. 2000e-16. We disagree.

Title VII bars discrimination in employment on the basis of race, color, religion, sex, or national origin. 42 U.S.C. Secs. 2000e-2, 2000e-16. As the district court correctly observed, the Supreme Court has held that Title VII is the exclusive remedy for claims of discrimination in federal employment. Brown v. General Services Administration, 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976). That exclusive effect, however, extends only to claims of federal employees that are cognizable under Title VII. See Davis v. Passman, 442 U.S. 228, 247 n. 26, 99 S.Ct. 2264, 2278 n. 26, 60 L.Ed.2d 846 (1979). As a consequence, "Title VII does not preclude separate remedies for unconstitutional action other than discrimination based on race, sex, religion or national origin." White v. General Services Administration, 652 F.2d 913, 917 (9th Cir.1981).

Kotarski has alleged that he was demoted because his superiors disapproved of his private relationship and living arrangements with his woman friend, in violation of his constitutional right of privacy. He also alleges that he was demoted because of his expression of disagreement with certain policies, practices and expenditures of funds at the Naval Air Rework Facility, in violation of his first amendment rights. ⁴ Neither of these claims is cognizable under Title VII; accordingly, they are not barred by its preclusive effect.

Defendants contend, however, that Kotarski effectively admitted that his Bivens claims were subsumed by his Title VII claim when he filed an affidavit in his Title VII action in which he did "swear and contend" that his involvement in an EEO complaint filed by his woman friend was "the primary reason" for his demotion. We decline to give this affidavit the effect that the defendants urge for it. The affidavit states a contention, and it was sworn on information and belief. It does not state that retaliation for participation in filing an EEO complaint was the only reason for Kotarski's demotion. We fail to see how Kotarski's pursuit of a Title VII remedy based on retaliation, see White v. General Services Administration, 652 F.2d at 917, can preclude his Bivens claims based on alleged constitutional infractions having nothing to do with Title VII. See Ethnic Employees of Library of Congress v. Boorstin, 751 F.2d 1405, 1415 & n. 14 (D.C.Cir.1985).

C. The Effect of Bush v. Lucas

As an alternative ground for dismissing Kotarski's Bivens claims, the district court held that they were precluded by the doctrine of Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). This ruling presents a much closer question than the Title VII issue, but we conclude that it, too, was erroneous.

In Bush, the Supreme Court rejected a Bivens claim of a non-probationary federal employee who sought to challenge his demotion on the ground that it was a reprisal for constitutionally protected activity. The Court held that the presence of a congressionally-established, comprehensive regulatory scheme governing federal employer-employee relationships was a "special factor[ ] counselling hesitation" in implying a Bivens remedy. 462 U.S. at 378, 103 S.Ct. at 2411; see Bivens, 403 U.S. at 396, 91 S.Ct. at 2004. The Court concluded that, in light of the "elaborate remedial system" constructed by Congress, 462 U.S. at 388, 103 S.Ct. at 2416, it should not add a Bivens remedy to those provided by Congress in the exercise of its legislative judgment. Id. at 390, 103 S.Ct. at 2417.

Kotarski contends that Bush is inapplicable to his case because the employee in Bush was fully tenured and entitled to all of the protections of the civil service system. Kotarski's supervisory appointment was probationary; with regard to that position, he was excluded from the Civil Service Reform Act's definition of "employee" and the remedies that go with it. See 5 U.S.C. Sec. 7511(a)(1)(A); Piskadlo v. Veterans' Administration, 668 F.2d 82, 83 (1st Cir.1982).

The defendants counter that the lesson to be derived from Bush is that the judiciary should not interfere in the congressionally-ordered scheme of federal employment by fashioning intrusive remedies. If Congress chose to exclude probationary employees from nearly all of the protections of the Act, that decision was a conscious recognition of the fact that probation "is an extension of the examining process to determine an employee's ability to actually perform the duties of the position. It is inappropriate to restrict an agency's authority to separate an employee who does not perform acceptably during this period." S.Rep. No. 969, 95th Cong., 2d Sess. 45, reprinted in 1978 U.S. Code Cong. & Ad.News 2723, 2767.

Defendants' reading of Bush is not without support. In Pinar v. Dole, 747 F.2d 899 (4th Cir.1984), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985), the Fourth Circuit held that Bush precluded Bivens relief for a federal employee who claimed that his temporary promotion had been terminated because of his "whistle-blowing" activities. Because the promotion was temporary, the employee's administrative remedies were no greater than Kotarski's. See also Carroll v. United States, 721 F.2d 155 (5th Cir.1983) (on rehearing) (Bush precludes Bivens action for former employee seeking reinstatement and back-pay; administrative remedy available for reinstatement but not back-pay), cert. denied, 467 U.S. 1241, 104 S.Ct. 3511, 82 L.Ed.2d 820 (1984); Francisco v. Schmidt, 575 F.Supp. 1200 (E.D.Wis.1983) (Bivens inappropriate in area of federal employee relations); Watson v. United States Department of Housing and Urban Development, 576 F.Supp. 580 (N.D.Ill.1983) (administrative remedies for...