Richards v. Kiernan

• Decision Date: 25 August 2006
• Docket Number: No. 05-2395.,05-2395.
• Citation: 461 F.3d 880
• Parties: Eugene R. RICHARDS, Jr., Plaintiff-Appellant, v. Kathleen L. KIERNAN, Malcolm W. Brady, Edgar Domenech, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

461 F.3d 880

Eugene R. RICHARDS, Jr., Plaintiff-Appellant, v. Kathleen L. KIERNAN, Malcolm W. Brady, Edgar Domenech, et al., Defendants-Appellees.

No. 05-2395.

United States Court of Appeals, Seventh Circuit.

Argued January 5, 2006.

Decided August 25, 2006.

David J. Mathews (argued), Chicago, IL, for Plaintiff-Appellant.

Kurt Lindland (argued), Office of the United States Attorney, Chicago, IL, Defendants-Appellees.

Before FLAUM, Chief Judge, and ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge.

Eugene Richards, a former employee of the Bureau of Alcohol Tobacco, Firearms, and Explosives (ATF), brought suit against his supervisors alleging that they violated his First Amendment rights by retaliating against him for his whistleblowing activities. The district court concluded that Richards' sole remedy was through the Merits Systems Protection Board (MSPB) and that his appeal from that decision should have been made to the United States Court of Appeals for the Federal Circuit. We affirm.

I.

In our review of this motion to dismiss, we accept all well-pleaded factual allegations in the complaint and draw all reasonable inferences from those facts in favor of Richards. Boim v. Quranic Literacy Inst. and Holy Land Found. for Relief and Dev., 291 F.3d 1000, 1008 (7th Cir. 2002).¹ Richards was a former supervisor in the Bureau of ATF. In 1998, ATF transferred Richards to the Chicago Field Division, which turned out to be a hotbed of personality conflicts and unpleasant office politics. At the core of the torrent were Richards' first line supervisor, Chicago Group Supervisor, Mark Rusin, and Richards' second-line supervisor, Special Agent in Charge, Kathleen L. Kiernan. As the storm swelled, agency superiors requested a review of the Chicago Field Division. Over the course of the four day investigation in June 1999, Richards backed Rusin's claim that Kiernan had acted in violation of ATF policy. He also alleges that he reported additional instances of improper conduct by Kiernan. ATF transferred Richards to Washington D.C. in August 1999, and then back to Chicago in December of that same year. In September 2000, ATF selected him for transfer to New York City.

Richards did not want to leave Chicago where his wife was employed in a "highly compensated" position with the Department of Housing and Urban Development. (R. at 1, p. 4). ATF, however, denied his request for a hardship reprieve, and his requests to transfer to Washington D.C. were thwarted, he alleges, by Malcolm Brady, the Deputy Assistant Director of the Chicago Field Office, and another supervisor, Larry Ford. Rather than transfer to New York City, Richards tendered his resignation to his New York supervisor, Edgar Domenech, on May 21, 2001, claiming that he was resigning due to a "hostile work environment." And then his legal claims began.

Richards first filed a formal complaint of discrimination with the ATF. The Department of Treasury (the former parent of the ATF) issued a Final Agency Decision finding no discrimination or retaliation. Richards then turned to the Office of Special Counsel alleging that his supervisors had retaliated against him in response to his whistleblowing activities. That claim and the appeal also failed. For his third attempt, Richards filed a complaint in the district court below alleging constructive discharge and retaliation for exercise of his First Amendment rights. (R. at 1). Richards sued five of his former supervisors, Kiernan, Brady, Domenech, Ford, and David Benton in their personal capacities. He also sued John Ashcroft and Carl J. Truscott in their representative capacities as heads of the Department of Justice and ATF, respectively, and the agencies themselves. When the parties disagreed as to his exhaustion requirements, however, Richards moved to voluntarily dismiss his complaint with leave to reinstate so that he could pursue his claims in his fourth venue, the MSPB, the administrative agency charged with adjudicating federal employee personnel appeals. The MSPB held that it lacked jurisdiction over Richards' discharge claim, concluding that he had voluntarily retired, and denied the whistleblower claim finding that Richards had not made any protected disclosures. (R. at 10, Ex. 1, pp. 8, 11, 14). Even if Richards had made a disclosure, the MSPB concluded, the Whistleblower Protection Act (WPA) protected only disclosures of information of which the agency was previously unaware. (R. at 10, Ex. 1, p. 8-9) (citing Meuwissen v. Dep't of Interior, 234 F.3d 9, 12-13 (Fed.Cir.2000)). Rather than appealing the MSPB's decision to the Court of Appeals for the Federal Circuit, the only court with power to review the decision (5 U.S.C. § 7703(b)(1)), Richards reinstated his First Amendment claim in the district court below. The district court granted the defendants' motion to dismiss on the grounds that the court lacked jurisdiction over Richards' claims. The district court noted that Richards' appeal from the MSPB's decision had to be made to the Federal Circuit and not to the Northern District of Illinois. (R. at 18). We review the district court's decision granting a motion to dismiss de novo. Boim, 291 F.3d at 1008.

II.

Richards maintains that the defendants violated his First Amendment rights by retaliating against him for blowing the whistle on allegedly improper conduct by an ATF supervisor. The Supreme Court case of Bivens authorizes the filing of constitutional suits against individual federal officers. Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Not all constitutional claims may be brought before the federal courts, however. In some cases, Congress has established comprehensive administrative bodies with broad remedial powers to resolve all contested matters before them. The Supreme Court has determined that, in light of the comprehensive nature of some of these remedial schemes, it would be inappropriate to allow judicial remedies as well. See Bush v. Lucas, 462 U.S. 367, 368, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). The Civil Service Reform Act (5 U.S.C. § 1101 et seq.) (CSRA) is one such scheme which provides a "comprehensive framework for handling the complaints of civil service employees faced with adverse personnel decisions." Ayrault v. Pena, 60 F.3d 346, 347 (7th Cir.1995). By creating the CSRA, Congress implicitly repealed the jurisdiction of federal district courts over personnel actions arising out of federal employment. Paige v. Cisneros, 91 F.3d 40, 43 (7th Cir.1996).

Richards would like us to carve out an exception to this rule so that he may proceed on his Bivens claim in this court. The Supreme Court urges caution in extending Bivens remedies into new contexts. Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 70, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) ("In 30 years of Bivens jurisprudence we have extended its holding only twice."); F.D.I.C. v. Meyer, 510 U.S. 471, 484, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); Paige, 91 F.3d at 44. Federal courts will do so only when Congress has not provided an adequate remedial mechanism for a constitutional violation, and the omission of that particular remedy was inadvertent. Schweiker, 487 U.S. at 423, 108 S.Ct. 2460; Bagola v. Kindt, 131 F.3d 632, 640 (7th Cir.1997). "When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies." Schweiker, 487 U.S. at 423, 108 S.Ct. 2460. This is true even if the existing remedies do not provide complete relief for the parties. Bush, 462 U.S. at 388, 103 S.Ct. 2404; Robbins v. Bentsen, 41 F.3d 1195, 1201 (7th Cir.1994) ("Courts may not provide constitutional remedies to supplement a congressionally-established administrative system even where that system's remedies are not as complete as the constitutional remedy might be."). For example, if an administrative remedy provides only back pay and reinstatement but a First Amendment claim brought in federal court could provide individual damages, the Supreme Court has held that Congress nevertheless created a system that provides for meaningful remedies for employees who have been disciplined for making critical comments. Bush, 462 U.S. at 372 & n. 8, 390, 103 S.Ct. 2404. Congress, the Bush court determined, was in a better position to determine what remedies should be provided to civil service employees. Id. at 389, 103 S.Ct. 2404. In short, even if the remedies provided by the CSRA are incomplete, the Act provides an adequate remedial scheme and therefore precludes a Bivens claim. See Bagola, 131 F.3d at 642; Paige, 91 F.3d at 44; Robbins, 41 F.3d at 1201. Consequently, a court need not look into the meaningfulness of an individual federal employee's remedy within the CSRA. Feit v. Ward, 886 F.2d 848, 854 (7th Cir.1989). Once it has been determined that the administrative system provides a comprehensive system of protecting a plaintiff's rights, that Congress has the expertise and authority to fashion a system to protect those rights, and that the omission of a particular remedy was not inadvertent, a court may conclude that a Bivens action is precluded. Id. at 855.

Richards argues that he was denied a meaningful remedy because the MSPB and the Federal Circuit which reviews its decisions, continue to protect only the initial whistleblowing disclosure despite legislative history indicating that Congress intended that the Act would not be limited to protecting only an "employee [who] is the first to raise the issue." S.Rep. No. 103-358, at 10, U.S.Code Cong. & Admin.News 1994 pp. 3549, 3559. In essence, Richards argues that both the MSPB and the Federal Circuit have misinterpreted the WPA, and as proof of their error he...