Moon v. Phillips

• Decision Date: 04 May 1988
• Docket Number: No. 87-1514,87-1514
• Citation: 854 F.2d 147
• Parties: Lawrence MOON, Plaintiff-Appellant, v. Larry PHILLIPS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 147

854 F.2d 147

Lawrence MOON, Plaintiff-Appellant, v. Larry PHILLIPS, et al., Defendants-Appellees.

No. 87-1514.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 30, 1987.

Decided March 17, 1988.

Rehearing and Rehearing In Banc Denied

May 4, 1988.

Robert C. Angermeier, Angermeier & Rogers, Milwaukee, Wis., for plaintiff-appellant.

Mel S. Johnson, Asst. U.S. Atty., Patricia A. Gorence, U.S. Atty., Milwaukee, Wis., for defendants-appellees.

Before CUMMINGS, WOOD, Jr., and MANION, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

This appeal involves a complaint that a former federal employee filed against his supervisors. The district court dismissed the complaint because it failed to state a claim upon which relief could be granted. We affirm.

I. FACTUAL BACKGROUND

In November, 1985, plaintiff Lawrence Moon, a former employee of the Internal Revenue Service (IRS) in Milwaukee, Wisconsin, filed a complaint against five of his former IRS supervisors, claiming that they had harassed him and caused him to resign. Moon charged that the defendants violated his first amendment right to freedom of speech, and his fifth amendment right to equal protection of his property interest in his federal employment. Additional counts alleged the intentional infliction of emotional distress, defamation of plaintiff's professional reputation, malfeasance in office by the supervisors in not curtailing the improper actions against him, and a final charge that his supervisors failed to fairly evaluate plaintiff's work performance. Plaintiff alleges that his supervisors' actions caused him to resign his IRS position. Plaintiff seeks actual damages in the amount of $850,000, punitive damages in the amount of $900,000, and attorney's fees and costs.

The difficulty between plaintiff and his supervisors allegedly resulted from Moon's refusal to prepare a false report concerning an incident in which an unnamed citizen who had lawfully entered the Federal Building in Milwaukee, Wisconsin was harassed and threatened. Moon claims that the alleged harassment occurred when IRS agents attempted to photograph the citizen. Plaintiff alleges that if he had prepared the report of that incident as requested by his supervisors, it would have subjected him to criminal prosecution for submitting a false statement, in violation of 18 U.S.C. Sec. 1001 (1982). As a result of his refusal to report the incident in the manner his supervisors requested, Moon alleges that he was denied a promotion, his work was more closely monitored, and every minor deficiency noted. Plaintiff alleges that he was isolated from working with his colleagues, and that the supervisor prepared a false or misleading annual performance evaluation showing that Moon was deficient in certain areas of his work. Consequently, plaintiff resigned.

On September 10, 1986, the district judge, selecting one of the government's theories for dismissal, allowed the defendants' motion to dismiss for failure to state a cause of action, finding that the constitutional allegations had no legal basis. That finding then left Moon's other allegations without federal jurisdictional foundations. Moon's remedy, the district court suggested, was to pursue his grievances in the administrative forum that Congress provided for federal employees to contest adverse personnel actions. Relying on Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) and Gremillion v. Chivatero, 749 F.2d 276 (5th Cir.1985), the district court held that a judicial remedy was foreclosed.

Thereafter, on September 10, 1986, plaintiff filed a short pro forma motion for reconsideration, to which was attached an amended complaint. While that motion was under consideration, Moon filed a notice of appeal. This court remanded the appeal to allow the district court the opportunity to consider Moon's motion for reconsideration. Moon had filed the motion for reconsideration more than ten days after the judgment of dismissal had been entered and the motion was therefore untimely. The district court nevertheless treated it as a timely motion under Fed.R.Civ.P. 60. Plaintiff's motion was devoid of explanation, and lacked any citation of authority. The district court considered the motion no more than an unsupported request for reconsideration to which an amended complaint was attached. The amended complaint was merely a restatement and elaboration of Moon's original allegations. The district court therefore denied the motion for reconsideration. This second appeal followed.

II. ANALYSIS

The jurisdiction of the federal court is not clearly set forth in the original complaint, except that the first two counts charge constitutional violations, and one of the appended counts is allegedly based on a particular statute of the state of Wisconsin. The amended complaint adds 42 U.S.C. Sec. 1985 as support for some of the claims, but the amended complaint was only an attachment to Moon's untimely motion and is not the one directly involved in this appeal.

The district court considered its jurisdiction in light of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), first cited by Moon in his opposition to the defendants' motion to dismiss. The district court took note that under Bivens the Constitution may support a private cause of action for damages against federal officials, but also noted one of the limitations subsequently set forth in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). That limitation, which may defeat a Bivens action, occurs when the "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 1471-72 (emphasis in original).

The district court then followed the development of those legal principles in later cases and applied them to the facts of this case. In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), Bush was an engineer employed by the National Aeronautics and Space Administration who publicly criticized the space flight center. Bush claimed that he was demoted as a result of that criticism. In addition to pursuing an administrative remedy, Bush filed a state court action under the first amendment against the director of the center seeking damages for his retaliatory demotion. That suit was removed to the federal district court. The district court granted summary judgment for the defendant director. The court of appeals affirmed on the basis that Bush had no constitutional cause of action for damages in view of available administrative remedies. The Supreme Court then granted certiorari. Writing for a unanimous Court, Justice Stevens began the analysis with certain assumptions. First, the Court assumed that Bush's first amendment rights had been violated, and that the administrative remedy would not be as effective as a civil suit in fully compensating Bush for the harm he had allegedly suffered. The Court also noted that Congress had neither provided for nor prohibited the judicial remedy Bush sought to pursue. The Court, however, declined to provide a judicial remedy to supplement the elaborate administrative remedial system, leaving the development of any new remedy to Congress.

In Gremillion v. Chivatero, 749 F.2d 276 (5th Cir.1985), a case very similar to this one, the court held that a former employee of the IRS had no cause of action against his supervisor for alleged violations of the first and fifth amendment rights caused by his wrongful discharge. Apparently, Gremillion had criticized his supervisors within the office by questioning their authority and the correctness of their actions. He also claimed that his allegedly unlawful discharge from his job amounted to a taking of his property without just compensation in violation of the fifth amendment. Following Bush and its deference to the existing regulatory scheme, the court found that Gremillion's only recourse was his statutory administrative remedies.

Other cases have understandably followed the Bush lead in holding that, subject to narrow exceptions, a federal employee cannot file a suit for damages against his supervisor for an unconstitutional adverse personnel action when Congress has provided an adequate administrative remedy. See, e.g., Palermo v. Rorex, 806 F.2d 1266 (5th Cir.), cert. denied --- U.S. ----, 108 S.Ct. 77, 98 L.Ed.2d 40 (1987); Franks v. Nimmo, 796 F.2d 1230 (10th Cir.1986); Ellis v. United States Postal Service, 784 F.2d 835 (7th Cir.1986); Mason v. Pierce, 774 F.2d 825 (7th Cir.1985); Gleason v. Malcom, 718 F.2d 1044 (11th Cir.1983).

Moon argues that Bush and Gremillion are distinguishable because those cases only involved criticism of a supervisor's work performance. According to Moon, however, the underlying cause here is his refusal to commit a crime on behalf of his supervisor by preparing what he perceived to be a false report. To support Moon's characterization that he had been asked to perform a criminal act, he relies primarily on the following statement of one of the supervisors, which he set forth in his amended complaint:

I don't care to count the times within the past six months or so, I thought you were being contrary or uncooperative. The arrest-escort [incident] in May was a prime example. I asked you to write the memo describing the event and you, in effect, refused, citing some nebulous reference to an arrest. Even after reciting the law of arrest to you, you demurred.

Moon correctly asks this court to presume the truth of the allegations in his complaint, along with reasonable inferences flowing from those allegations, viewing them in the light most favorable to Moon. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986); Doe ex rel....