Spagnola v. Mathis, s. 84-5530

• Citation: 809 F.2d 16
• Decision Date: 06 January 1987
• Docket Number: 84-5659 and 84-5822,Nos. 84-5530,s. 84-5530
• Parties: , 55 USLW 2338 Joseph C. SPAGNOLA, Jr. v. William MATHIS, et al., Appellants. (Two Cases) Joseph C. SPAGNOLA, Jr., Appellant, v. William MATHIS, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 16

809 F.2d 16

257 U.S.App.D.C. 320, 55 USLW 2338

Joseph C. SPAGNOLA, Jr. v. William MATHIS, et al., Appellants. (Two Cases)

Joseph C. SPAGNOLA, Jr., Appellant, v. William MATHIS, et al.

Nos. 84-5530, 84-5659 and 84-5822.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 7, 1986.

Decided Dec. 5, 1986.

Rehearing En Banc Granted in Part

Jan. 6, 1987.

Appeals from the United States District Court for the District of Columbia Circuit (D.C. Civil Action No. 83-2448).

Stuart H. Newberger, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and R. Craig Lawrence, Royce C. Lamberth, and Michael J. Ryan, Asst. U.S. Attys., Washington, D.C., were on brief, for appellants in Nos. 84-5530 and 84-5659 and cross-appellees in No. 84-5822.

George M. Chuzi, Washington, D.C., for appellee in Nos. 84-5530 and 84-5659 and cross-appellant in No. 84-5822.

Before WALD, Chief Judge, SILBERMAN, Circuit Judge, and WRIGHT, Senior Circuit Judge.

Opinion for the court filed by Senior Circuit Judge WRIGHT.

Opinion concurring in part and dissenting in part filed by Circuit Judge SILBERMAN.

J. SKELLY WRIGHT, Senior Circuit Judge:

These three consolidated appeals principally concern the extent to which Congress, by enacting the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 STAT. 111 (codified as amended in scattered sections of 5 U.S.C.), may permissibly have limited federal employees' avenues of relief for violations of their constitutional and statutory rights. Joseph C. Spagnola, Jr., a federal employee and appellee and cross-appellant in this case, sought monetary and injunctive relief for alleged violations of his rights under the First Amendment and 42 U.S.C. Sec. 1985(1) (1982) against two of his superiors, William Mathis and William Hunter (appellants and cross-appellees) in their individual capacities. The District Court granted appellants' motion to dismiss Spagnola's First Amendment Bivens claim, see Bivens v. Six Unknown Named Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), but refused to dismiss the Sec. 1985(1) claim or to grant summary judgment to appellants based on their defense of qualified official immunity. Spagnola has appealed the dismissal of his Bivens action; appellants have appealed the District Court's rejection of their qualified immunity defense; and the District Court has properly certified the Sec. 1985(1) issue to this court pursuant to 28 U.S.C. Sec. 1292(b) (1982). For the reasons hereinafter stated, we reverse the District Court's holding regarding both the Bivens ¹ and the Sec. 1985(1) claims and affirm its disposition of appellants' immunity defense.

I. BACKGROUND

A. Facts

Because we review a claim for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) and a motion for summary judgment by appellants, we accept appellee Spagnola's allegations as true for purposes of review. See Shear v. National Rifle Ass'n, 606 F.2d 1251, 1253 (D.C.Cir.1979) (complaint should be liberally construed for determination of 12(b)(6) motion); Abraham v. Graphic Arts Int'l Union, 660 F.2d 811, 814 (D.C.Cir.1981) (facts asserted by non-moving party in motion for summary judgment should be taken as true if adequately buttressed by evidentiary material).

At all times relevant to this action, Spagnola was employed as a procurement specialist by the Federal Acquisition Institute (FAI), which is part of the Office of Federal Procurement Policy (OFPP) of the Office of Management and Budget (OMB). The events giving rise to this suit began in 1977 when the FAI entered a sole-source, non-competitive contract with American University to develop an undergraduate program in procurement and federal assistance. Spagnola believed that the contract should have been subject to competitive bidding by other local institutions, several of which had already developed procurement programs. He also believed that the FAI was guilty of mismanagement and conflicts of interest in its issuance of the contract.

In 1979 appellant Hunter became Acting Director of the FAI and instructed Spagnola to review all contract actions taken by the agency. Spagnola prepared a report detailing the mismanagement of the contract and the conflicts of interest involved. In June 1979 Hunter called a staff meeting at which Spagnola was present and complained about the report, warning Spagnola:

I have a long memory and if I get to be Director some of you may not get promoted into Assistant Director positions ... [M]aybe you think you are safe as a GS-14, but there are ways to get to people; maybe when a RIF (reduction in force) situation comes up ...

Verified Complaint For Relief From Violations of First Amendment Rights, August 19, 1983, at 5, Joint Appendix (JA) 10. Spagnola subsequently completed the report and gave it to Hunter. Although Spagnola had been serving at a GS-15 level for several years, Hunter refused thereafter to promote him beyond his GS-14 grade.

In the fall of 1980 appellant Mathis became Principal Associate OMB Administrator for the OFPP. Mathis approached Spagnola to discuss the management of the FAI. Spagnola told Mathis about the 1979 report on the American University project and also reported Hunter's use of federal funds, personnel, and equipment to complete his doctoral dissertation. Following this conversation, Mathis and Hunter began to conspire to prevent Spagnola from "perform[ing] his duties relating to government contracts." Id. at 6, JA 11.

In September 1981 they arranged to have Spagnola assigned for ninety days to a Federal Acquisition Research (FAR) project in Virginia. This three-month assignment was repeatedly extended until March 1983. During this assignment, in June 1982, appellants summoned Spagnola's supervisor, Commander Jack Summers, to a meeting, where they asked him to give Spagnola a poor performance appraisal in order "to get something on [him]." Id. at 7, JA 12. When Commander Summers protested that Spagnola's performance did not warrant a poor appraisal, Mathis warned Summers that Mathis might get someone in the office of the Secretary of Defense to order him to write a poor evaluation.

Mathis subsequently telephoned Harvey Gordon, Summers' supervisor, to prevent Spagnola from receiving a GS-15 position in Gordon's office for which he had applied. In September 1982 and March 1983 OFPP advertised a vacancy for a GS-15 position. Spagnola was the only applicant for the position, but he was not selected because OFPP "recruited an individual with [inferior] credentials * * *, wrote his resume, re-wrote the position in an attempt to tailor it to his qualifications, and then selected him even though the Office of Personnel Management had declined to find him eligible." Id. at 8, JA 13. At a meeting of employees the selecting official observed that "the only person being injured [by the method of filling the position] is Spagnola." Id. Finally, in July 1983 appellant Hunter approached an employee whose position required that he work with Spagnola and warned him that he "should know better than to hang around with unsavory characters like Spagnola." Id.

B. Procedure

In the summer of 1982 Spagnola filed a complaint with the Office of Special Counsel (OSC) of the Merit Systems Protection Board (MSPB) alleging that the American University contract involved gross waste and mismanagement. The OSC refused to investigate, suggesting instead that Spagnola file charges with the OSC that appellants' conduct toward him constituted "prohibited personnel practices" in violation of 5 U.S.C. Sec. 2302(b)(8)(A)(ii) (1982). Spagnola filed such charges in October 1982 and updated and augmented his allegations in November 1982 and March 1983. In February 1985 the OSC notified Spagnola that it had completed its investigation and, because it had found insufficient evidence of prohibited personnel practices or other violations, would take no further action.

In August 1983, after engaging the OSC process but before the OSC's decision not to prosecute, Spagnola filed suit in the District Court, alleging violations of his rights under the First Amendment and 42 U.S.C. Sec. 1985(1). The District Court dismissed the First Amendment claim, citing Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). It denied defendants' motion to dismiss the statutory claim, however, holding that the complaint stated a cause of action under Sec. 1985(1). In addition, the court denied defendants' motion for summary judgment, rejecting their claim of qualified official immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Spagnola appealed the dismissal of his First Amendment claim. Defendants appealed the denial of summary judgment, noting that a denial of immunity is immediately appealable in this circuit. See McSurely v. McClellan, 697 F.2d 309, 315-16 (D.C.Cir.1982). The District Court properly certified the Sec. 1985(1) issue to this court, and we consolidated all three appeals.

II. THE FIRST AMENDMENT Bivens CLAIM ^*

It is well settled that the federal courts have power to grant relief not explicitly authorized by Congress. In a series of cases beginning with Bivens v. Six Unknown Named Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (permitting suit for violation of Fourth Amendment rights), the Supreme Court has held that the Constitution itself permits a private cause of action for damages against a federal official. See also Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1970) (violation of rights under Due Process Clause of Fifth Amendment); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (violation of Eighth Amendment rights). This circuit has expressly held that a Bivens action exists to enforce the First Amendment, the constitutional provision under which Spagnola is suing. See Dellums v. Powell, 566 F.2d 167, 195 (D.C.Cir.1977).

The Supreme Court has held that Bivens...