Krafsur v. Davenport

• Decision Date: 04 December 2013
• Docket Number: No. 13–5598.,13–5598.
• Citation: 736 F.3d 1032
• Parties: Gerald I. KRAFSUR, United States Administrative Law Judge, Plaintiff–Appellant, v. Michael DAVENPORT, individually and in his capacity as Hearing Office Chief Administrative Law Judge; and Social Security Administration, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

736 F.3d 1032

Gerald I. KRAFSUR, United States Administrative Law Judge, Plaintiff–Appellant,

v.Michael DAVENPORT, individually and in his capacity as Hearing Office Chief Administrative Law Judge; and Social Security Administration, Defendants–Appellees.

No. 13–5598.

United States Court of Appeals,Sixth Circuit.

Argued: Nov. 21, 2013.

Decided and Filed: Dec. 4, 2013.

Limitation Recognized

5 U.S.C.A. § 706(2)(B), 28 U.S.C.A. § 1346(a)(2)

ARGUED:Charlton R. DeVault, Jr., Kingsport, TN, for Appellant. Cecil VanDevender, United States Attorneys Office, Nashville, TN, for Appellees. ON BRIEF:Charlton R. DeVault, Jr., Kingsport, TN, for Appellant. Cecil VanDevender, United States Attorneys Office, Nashville, TN, Mary Ann Sloan, Dennis R. Williams, John C. Stoner, Brian Seinberg, Shirley Lee Sohrn, Social Security Administration, Atlanta, GA, for Appellees.

Before: SUTTON and KETHLEDGE, Circuit Judges; DOW, District Judge. ^*

OPINION

SUTTON, Circuit Judge.

Claiming that his employer violated the United States Constitution in disciplining him, a federal employee filed this lawsuit in federal district court. In doing so, he bypassed a system set up by the Civil Service Reform Act for addressing the personnel complaints of federal employees, prompting this question: Is the Act's personnel-grievance process exclusive?

I.

Gerald Krafsur, a federal administrative law judge, hears social security disability claims. Among other responsibilities, he decides how much to award successful claimants in attorney's fees. Judge Krafsur alleges that Michael Davenport, the chief judge in his office, told him that his fee awards were too low. Krafsur's refusal to start making higher awards allegedly prompted Davenport to reprimand him, deny him leave and withhold his paychecks. Krafsur complained about Davenport's actions to the Office of Special Counsel, an agency that handles grievances from federal employees. Before the Special Counsel could respond, however, Krafsur went to federal district court.

Krafsur claimed in court that Davenport's actions violated the First and Fifth Amendments. He sued Davenport under Bivens v. Six Unknown Named Agents, which creates a cause of action against federal officers for constitutional violations. 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). And he sued the Social Security Administration under the Administrative Procedure Act and the Tucker Act, which authorize lawsuits against the United States for (among other things) constitutional violations. 5 U.S.C. § 702; 28 U.S.C. § 1346. The district court dismissed Krafsur's lawsuit on the ground that the remedial framework established by the Civil Service Reform Act is exclusive.

II.

A.

Before Congress enacted the Civil Service Reform Act in 1978, a jumble of statutes and executive orders governed the resolution of federal employees' complaints about the workplace. The Act replaced this patchwork with a coherent system of administrative and judicial review. The new system handles all “personnel actions,” a capacious term defined to include appointments, transfers, any “disciplinary or corrective action,” “any ... significant change in duties, responsibilities, or working conditions,” and much else besides. 5 U.S.C. § 2302(a)(2). The extent of available review turns on the severity of the personnel action and the rank of the employee.

Generally speaking, the Act divides covered actions into two categories: adverse actions and prohibited personnel practices. See Carducci v. Regan, 714 F.2d 171, 175 (D.C.Cir.1983) (Scalia, J.). Adverse actions are the most serious the government may take against its employees. For administrative law judges, these include removal, suspension, reduction in grade, reduction in pay and some furloughs. 5 U.S.C. § 7521. The Act entitles an employee facing an adverse action to a formal hearing before the Merit Systems Protection Board and if necessary an appeal to the Federal Circuit. Id. §§ 7521, 7703.

Prohibited personnel practices are less serious than adverse actions. The Act defines this category broadly. It includes violations of “any law, rule, or regulation implementing, or directly concerning, ... merit system principles,” id. § 2302(b)(12), which in turn entitle employees to “fair and equitable treatment in all aspects of personnel management,” to insist upon “proper regard for ... constitutional rights,” and to prohibit “arbitrary action,” id. § 2301(b). An employee faced with a prohibited personnel practice must first complain to the Office of Special Counsel. If the Special Counsel concludes that “there are reasonable grounds to believe that a prohibited personnel practice has occurred,” he must report his conclusion to the agency. Id. § 1214(b)(2)(B). If the agency fails to take corrective action, the Special Counsel may refer the case to the Merit Systems Protection Board (from which the employee may appeal to the Federal Circuit). Id. §§ 1214(b)(2)(C), 1214(c). But if the Special Counsel concludes that the complaint lacks merit, or if he declines to refer the case to the Board, the employee is out of luck. A court may not review the Special Counsel's decisions unless the Counsel “has declined to investigate a complaint at all.” Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 493 (6th Cir.2011).

This description does not begin to capture the Act's many intricacies. Anyone who reads through the Act will encounter more types of covered actions and more channels of administrative or judicial review. Even within the category of prohibited personnel practices, the Act makes some exceptions. If an employee alleges discrimination because of race or sex, for example, the Act allows him to bypass the Special Counsel procedure and to sue in district court under the civil rights laws. 5 U.S.C. § 2302(d). Or if an employee alleges retaliation for whistleblowing or “for refusing to obey an order that would require [him] to violate a law,” the Act allows him to bypass the Special Counsel procedure and to go straight to the Board. Id.§§ 1221(a), 2302(b)(9).

But this initial sketch of the Act's two main tiers suffices for now. Both parties agree that Krafsur's target, “disciplinary or corrective action,” fits into the lower tier—prohibited personnel practices governed by the Act. Id. § 2302(a)(2). Such practices include discriminating against an employee “on the basis of conduct which does not adversely affect [his] performance.” Id. § 2302(b)(10). As Krafsur sees it, Davenport disciplined him for making accurate fee awards, which does not “adversely affect” anybody's performance.

Krafsur at first tried to follow the trail marked by the Act for filing such complaints by sending a letter to the Office of Special Counsel. But the Special Counsel did not respond. According to the government, Krafsur's letter did not comply with the federal regulations that establish a formal procedure for lodging complaints. See5 C.F.R. § 1800.1(c). All agree, however, that Krafsur retains the right to submit a formal complaint now. Instead of following that path then or now, Krafsur insists that he has the right to file a lawsuit directly in federal district court. May he do so? We think not.

B.

Up first is whether Krafsur may bring a Bivens claim against Davenport in federal district court. In Bivens v. Six Unknown Named Agents, the Supreme Court created a federal cause of action against federal officials for certain types of constitutional violations. 403 U.S. at 390, 91 S.Ct. 1999. A Bivens lawsuit arises against the individual officer who violated his rights, not against the government. That explains why Krafsur directs his Bivens claim against Davenport rather than the Social Security Administration.

Bivens actions do not cover every constitutional right and do not apply in every context. See, e.g., Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (no Bivens action for violations of the Takings Clause); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (no Bivens action against private prison operators). If an “alternative, existing process ... protect[s]” the right sufficiently, the courts must “refrain from providing a new and freestanding remedy.” Robbins, 551 U.S. at 550, 127 S.Ct. 2588. “[E]ven in the absence of an alternative,” moreover, the availability of a Bivens action remains “a subject of judgment: the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed ... to any special factors counseling hesitation before authorizing a new kind of federal litigation.” Id. (internal quotation marks omitted).

Consistent with this framework, Bush v. Lucas concluded that courts should not “supplement” the Civil Service Reform Act's “comprehensive procedural and substantive provisions ... with a new judicial remedy” for personnel decisions covered by the Act. 462 U.S. 367, 368, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). The Court perceived several “special factors counselling hesitation.” Id. at 378, 103 S.Ct. 2404. It explained that giving federal employees a Bivens remedy risks interfering with “an elaborate remedial system that [Congress] constructed step by step, with careful attention to conflicting policy considerations.” Id. at 388, 103 S.Ct. 2404. And it explained that a separate review track for disciplinary decisions comes with costs, diverting the “time and energy of managerial personnel who must defend their decisions,” potentially “deter[ing] [supervisors] from imposing” deserved discipline, and dampening “the efficiency of the civil service.” Id. at 388–89, 103 S.Ct. 2404. Congress, the Supreme Court believed, “is in a far better position than a court” to balance these costs against the benefits of creating new causes of action. Id. at 389, 103 S.Ct. 2404.

Bush disposes of the Bivens action against Davenport. Because the lawsuit concerns a personnel action covered by the Civil...