Lombardi v. Small Business Admin., 88-1718

• Citation: 889 F.2d 959
• Decision Date: 20 November 1989
• Docket Number: No. 88-1718,88-1718
• Parties: Curtis LOMBARDI, Plaintiff-Appellant, v. SMALL BUSINESS ADMINISTRATION, (SBA); James Sanders, individually and in his official capacity as Administrator of the SBA; Michael Cardenas, individually and in his official capacity as Administrator of the SBA; Robert Turnbull, individually and in his official capacity as Acting Administrator of the SBA; Joe Mass, individually and in his official capacity as Director of Personnel for the Central Office of SBA; Richard Osborne, individually and in his official capacity as Director of Personnel of SBA Central Office; Barbara Spirydon, individually and in her official capacity as head of the Presidential Management Internship Program, SBA Central Office; James Reed, individually and in his official capacity as Acting Regional Administrator for SBA; Donald Beaver, individually and in his official capacity as SBA Assistant Regional Administrator for Procurement; E. Maine Shafer, individually and in his official capacity as District Director of the Albuquerque SBA Office; Gregory D. Devejan, individually and in his official capacity as Assistant Director for Management Assistance and Assistant Director of the Albuquerque Minority Small Business Program; and Jack Dalton, individually and as District Counsel for the SBA Albuquerque District Office, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 959

889 F.2d 959

Curtis LOMBARDI, Plaintiff-Appellant, v. SMALL BUSINESS ADMINISTRATION, (SBA); James Sanders, individually and in his official capacity as Administrator

of the SBA; Michael Cardenas, individually and in his

official capacity as Administrator of the SBA; Robert

Turnbull, individually and in his official capacity as

Acting Administrator of the SBA; Joe Mass, individually and

in his official capacity as Director of Personnel for the

Central Office of SBA; Richard Osborne, individually and in

his official capacity as Director of Personnel of SBA

Central Office; Barbara Spirydon, individually and in her

official capacity as head of the Presidential Management

Internship Program, SBA Central Office; James Reed,

individually and in his official capacity as Acting Regional

Administrator for SBA; Donald Beaver, individually and in

his official capacity as SBA Assistant Regional

Administrator for Procurement; E. Maine Shafer,

individually and in his official capacity as District

Director of the Albuquerque SBA Office; Gregory D. Devejan,

individually and in his official capacity as Assistant

Director for Management Assistance and Assistant Director of

the Albuquerque Minority Small Business Program; and Jack

Dalton, individually and as District Counsel for the SBA

Albuquerque District Office, Defendants-Appellees.

No. 88-1718.

United States Court of Appeals, Tenth Circuit.

Nov. 20, 1989.

E. Justin Pennington, Albuquerque, N.M., for plaintiff-appellant.

Joan E. Hartman, Appellate Staff Civ. Div., U.S. Dept. of Justice, Washington, D.C. (John R. Bolton, Asst. Atty. Gen., William L. Lutz, U.S. Atty., John F. Cordes, Atty., Appellate Staff Civ. Div., U.S. Dept. of Justice, Washington, D.C., with her, on the brief), for defendants-appellanees.

Before MOORE, BALDOCK, Circuit Judges, and DAUGHERTY, District Judge. ^*

DAUGHERTY, District Judge.

Plaintiff-Appellant Curtis Lombardi appeals from a District Court order dismissing his Bivens action for lack of subject matter jurisdiction. We agree with the dismissal and affirm.

Plaintiff Lombardi was hired by the Small Business Administration (SBA) in August, 1980, as a Presidential Management Intern. Presidential Management Intern positions are short-term positions and participation in the intern program confers no expectation of continued Federal employment upon the participants. The Office of Personnel Management has listed interns in the program as "excepted service" employees, who are by definition not within the competitive service. As a result, the Civil Service Rules and Regulations do not apply to the Intern's removal from the position.

The Plaintiff-Appellant's employment was terminated on February 26, 1982, in order to "promote the efficiency of the service". Plaintiff appealed his termination to the Acting Administrator of the SBA, stating that his discharge was in retaliation for his party affiliation and for certain activities such as discussing racism in the SBA District Office with Equal Opportunity investigators and calling attention to improper Department of Housing and Urban Development contract oversight activities. In May, 1984, Plaintiff Lombardi filed two requests under the Freedom of Information Act with the SBA seeking all documents relating to his dismissal. The request was denied and Lombardi subsequently filed a complaint in the District Court for the District of New Mexico under the Privacy Act seeking disclosure of the withheld documents. This litigation was settled by the parties on May 5, 1986.

Thereafter, on February 20, 1987, Lombardi filed a "Complaint for Violation of Constitutional Rights" in the District Court for the District of New Mexico based upon his termination. The allegations contained in the 1987 Complaint are nearly identical to the factual allegations set forth in Lombardi's 1982 administrative appeals. Defendants moved to dismiss the case against the SBA and the individual Defendants in their official capacity on the ground of sovereign immunity and also moved to dismiss the remaining claims for damages against the Defendants in their individual capacity based upon the Supreme Court's decisions in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) and United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). The Defendants also moved to dismiss the Complaint in its entirety based upon the expiration of the statute of limitations.

On January 22, 1988, the District Court granted the Motion to Dismiss based upon sovereign immunity, dismissing the action against the SBA and the individual Defendants in their official capacity. On March 29, 1988, the District Court dismissed the remaining claims against the individual Defendants, finding that there was no subject matter jurisdiction over the Plaintiff's claims under Bush and Fausto because the Plaintiff was a Federal employee whose claims were governed by the Civil Service Reform Act of 1978 (CSRA).

The District Court declined to dismiss based upon the expiration of the statute of limitations. The SBA requested that the District Court reconsider this decision but the Court declined to do so.

The District Court determined that Plaintiff's Bivens claim was precluded by the Supreme Court's holdings in Bush and Fausto. We agree that the District Court correctly interpreted those cases to preclude the Plaintiff from judicial review of his termination, especially in light of the recent Supreme Court case of Schweiker v. Chilicky, --- U.S. ----, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988).

The Supreme Court in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), held that there should be a cause of action for damages against a Federal official who engages in unconstitutional conduct. The Court, however, cautioned that if there are any "special factors counseling hesitation in the absence of affirmative action by Congress", id., at 396 91 S.Ct. at 2004, Courts should decline to create an additional remedy.

The existence of a comprehensive statutory scheme such as the CSRA was found to be such a special factor in the Bush case. In Bush, the Supreme Court held that because a Federal employee's claim that his First Amendment rights were violated by his superiors arose "out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United...