Spagnola v. Mathis, s. 84-5530

• Decision Date: 30 September 1988
• Docket Number: Nos. 84-5530,84-5822 and 85-5145,84-5659,s. 84-5530
• Citation: 859 F.2d 223
• Parties: , 57 USLW 2220 Joseph C. SPAGNOLA, Jr. v. William MATHIS, Office of Management and Budget, et al., Appellants. Joseph C. SPAGNOLA v. William MATHIS, et al., Appellants. Joseph C. SPAGNOLA, Jr., Appellant, v. William MATHIS, Office of Management & Budget, et al. Michael E. HUBBARD, Appellant, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Administrator, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 223

859 F.2d 223

273 U.S.App.D.C. 247, 57 USLW 2220

Joseph C. SPAGNOLA, Jr. v. William MATHIS, Office of Management and Budget, et al., Appellants.

Joseph C. SPAGNOLA v. William MATHIS, et al., Appellants.

Joseph C. SPAGNOLA, Jr., Appellant, v. William MATHIS, Office of Management & Budget, et al.

Michael E. HUBBARD, Appellant, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Administrator, et al.

Nos. 84-5530, 84-5659, 84-5822 and 85-5145.

United States Court of Appeals District of Columbia Circuit.

Argued April 29, 1987.

Decided Sept. 30, 1988.

George M. Chuzi, Washington, D.C., for appellant in No. 84-5822.

Peter B. Broida, Washington, D.C., for appellant in No. 85-5145.

Joseph B. Kennedy with whom Thomas M. Devine, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., were on the brief, for amici curiae, The Government Accountability Project and the American Civil Liberties Union of the National Capital Area urging affirmance of the panel decision in No. 84-5822.

Stuart H. Newberger, Asst. U.S. Atty., for appellees in both cases, with whom Joseph E. diGenova, U.S. Atty., ^* Royce C. Lamberth, Asst. U.S. Atty.,* R. Craig Lawrence, Michael L. Martinez and Scott T. Kragie, Asst. U.S. Attys., were on the brief for appellees in No. 85-5145, and with whom Joseph E. diGenova, U.S. Atty.,* Royce C. Lamberth * and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief for appellees in No. 84-5822.

Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellees in No. 84-5822.

Edith S. Marshall, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellees in No. 85-5145.

Before WALD, Chief Judge, ROBINSON, MIKVA, EDWARDS, RUTH B. GINSBURG, BORK, ^** STARR, SILBERMAN, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM:

On December 5, 1986, two panels of this circuit issued separate, conflicting opinions regarding the availability of Bivens ¹ remedies to litigants challenging federal personnel actions for whom Congress has declined to provide full administrative remedies subject to judicial review under the Civil Service Reform Act (CSRA). ² See Hubbard v. EPA, 809 F.2d 1, 6-11 (D.C.Cir.1986); Spagnola v. Mathis, 809 F.2d 16, 19-28 (D.C.Cir.1986). On January 6, 1987, the full court vacated the conflicting portions of the two panel opinions and scheduled the matter for rehearing en banc. After argument, we ordered proceedings in these cases to be held in abeyance pending the Supreme Court's disposition of a petition for certiorari in Kotarski v. Cooper, 799 F.2d 1342 (9th Cir.1986), a case presenting issues similar to those before us. We now decide, with fresh guidance from the Supreme Court, that "special factors counsel[ ]" against the creation of Bivens remedies in these circumstances. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 396, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619 (1971). Accordingly, we affirm the dismissal of appellants' Bivens claims.

I.

The facts underlying the constitutional claims of Michael Hubbard and Joseph Spagnola are fully set forth in the respective panel opinions and need only briefly be recounted here. Appellant Hubbard, presently a detective with the District of Columbia Metropolitan Police Department, alleges that he was denied employment as a criminal investigator with the Environmental Protection Agency (EPA) because of his exercise of first amendment rights. In particular, Hubbard contends that the EPA and defendant Peter Beeson, an agency hiring official, rejected his job application due to reports that Hubbard had communicated with the press during an investigation of narcotics use by employees and members of Congress in 1981. Hubbard maintains that his communications with the press were "protected speech," and that Beeson's rejection of his application on the basis of such speech was in violation of the first amendment. In addition to seeking equitable relief against the EPA, Hubbard sought damages from Beeson personally under the Bivens doctrine. The district court held that Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), precludes a Bivens remedy in this situation, and accordingly dismissed Hubbard's damages claim.

Joseph C. Spagnola, Jr., an employee of the federal government at all times relevant to this action, sought damages and injunctive relief under the first amendment and 42 U.S.C. Sec. 1985(1) (1982) against two officials for whom he worked in the Office of Federal Procurement Policy of the Office of Management and Budget (OMB). According to Spagnola, the defendants thwarted his efforts to gain promotion beyond the GS-14 level and conspired to prevent him from pursuing professional development in the area of government contracts in retaliation for his "whistleblowing" activities. Spagnola appealed from the district court's dismissal of his Bivens claims for damages against the OMB officials.

While the circumstances surrounding the first amendment claims of Hubbard and Spagnola differ markedly, the CSRA accords claimants in their respective positions substantially the same relief. Under 5 U.S.C. Sec. 1206, each could petition the Office of Special Counsel (OSC) of the Merit Systems Protection Board (MSPB) alleging a "prohibited personnel practice." ³ See 5 U.S.C. Sec. 1206(a)(1) (1982); see also 5 C.F.R. Secs. 1250-61 (1988) (OSC regulations). ⁴ If OSC, in its discretion, believed the allegations meritorious, it was required to report that along with any findings or recommendation of corrective action to the agency involved. If the agency failed to take action, the OSC could have requested the MSPB to order appropriate corrective action. See 5 U.S.C. Sec. 1206(c)(1)(A) & (B) (1982). Irrespective of the course of action chosen by OSC, judicial review for Hubbard and Spagnola, if available at all, was limited to ensuring that OSC conducted the requisite "adequate inquiry" into the allegations. See Cutts v. Fowler, 692 F.2d 138, 140 (D.C.Cir.1982); 5 U.S.C. Sec. 1207(c) (1982); see also Carducci v. Regan, 714 F.2d 171, 175 (D.C.Cir.1983). Neither Hubbard nor Spagnola could claim the more elaborate administrative protections--including judicial review--that Congress reserved for incumbent employees aggrieved by major personnel actions (e.g., removals, reductions in grade or pay, suspensions of more than 14 days). See 5 U.S.C. Secs. 7511-14, 7701-03 (1982).

Prior to initiating their federal actions, both Hubbard and Spagnola petitioned OSC for an investigation into alleged "prohibited personnel practices." In each case, the claimants filed suit in district court before completion of the OSC investigation. OSC's ultimate disposition of their petitions was, in any event, the same: it found insufficient evidence to suggest a "prohibited personnel practice" in either case.

II.

In the Bivens case itself, the Supreme Court acknowledged that the power to make policy concerning constitutional remedies was not the exclusive province of the judiciary. The court observed that where there is an "explicit congressional declaration" that injured parties should be "remitted to another remedy, equally effective in the view of Congress," Bivens, 403 U.S. at 397, 91 S.Ct. at 2005, or where there are "special factors counselling hesitation in the absence of affirmative action by Congress," id. at 396, 91 S.Ct. at 2005, the judiciary should decline to exercise its discretion in favor of creating damages remedies against federal officials. Accord Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). In deference to these concerns, the Court's "more recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts." Schweiker v. Chilicky, --- U.S. ----, 108 S.Ct. 2460, 2467, 101 L.Ed.2d 370 (1988). ⁵

Indicative of this caution is Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), in which the Court, for the first time, found a statutory system of "comprehensive procedural and substantive provisions giving meaningful remedies against the United States," id. at 368, 103 S.Ct. at 2406, to constitute a "special factor" counselling hesitation against creating a Bivens remedy. Id. at 389-90, 103 S.Ct. at 2417-18. In Bush, as here, the remedial provisions of the CSRA were at issue. Acknowledging that the CSRA's "remedies [did] not provide complete relief for the plaintiff[ ]" in that case, id. at 388, 103 S.Ct. at 2417, the Court nevertheless declined to supplement the employee's statutory remedies with a Bivens action. To the Court, the question before it was not one "concern[ing] the merits of the particular remedy that was sought." Id. at 380, 103 S.Ct. at 2413. Rather, the question was "who should decide whether such a [damages] remedy should be provided[,]" Congress or the judiciary. Id. Ultimately, the Court reasoned that "Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service." Id. at 389, 103 S.Ct. at 2417.

Because he was challenging a "major personnel action," the plaintiff-employee in Bush, unlike Hubbard and Spagnola, was able to invoke certain of the CSRA's elaborate remedial processes which, by statute, culminate in judicial review. See 5 U.S.C. Sec. 7703 (1982); Bush, 462 U.S. at 386-88, 103 S.Ct. at 2415-17. Whether the Court intended Bush to bar damages actions for those employees or applicants for whom the CSRA remedies are not so complete has been the source of great debate. Focusing on language in the Bush opinion that suggests a detached inquiry into the meaningfulness of the particular remedies provided to individual claimants under the CSRA, ⁶ some courts of appeals have conducted that inquiry and have found certain CSRA remedies wanting. Accordingly, they have...