Volk v. Hobson

Decision Date07 February 1989
Docket NumberNo. 88-1497,88-1497
Parties51 Ed. Law Rep. 787 Judith VOLK, Plaintiff-Appellant, v. Dottie HOBSON, Eugene Charley, Timothy Clani, Bureau of Indian Affairs and Department of the Interior, Defendants-Appellees.
CourtU.S. Court of Appeals — Federal Circuit

Judith Volk, Rushville, Neb., pro se.

John S. Koppel, Dept. of Justice, Washington, D.C., for defendants-appellees. With him on the brief were John R. Bolton, Asst. Atty. Gen., Stephen M. McNamee, U.S. Atty. and Barbara L. Herwig.

Before FRIEDMAN and MAYER, Circuit Judges, and BALDWIN, Senior Circuit Judge.

OPINION

MAYER, Circuit Judge.

Judith Volk appeals the judgment of the United States District Court for the District of Arizona, No. 84-2418, holding that a private cause of action cannot be implied under 25 U.S.C. Sec. 2011(e)(1)(B), and that Volk is precluded from maintaining a Bivens action because she failed timely to exhaust administrative remedies. We affirm the judgment, but for different reasons.

Background

On October 31, 1983, Volk entered into an employment contract with the Office of Indian Education Programs (OIEP), Bureau of Indian Affairs (BIA), Department of Interior, by which she was appointed to an excepted service position as an elementary school teacher at the Lukachukai Boarding School, Lukachukai, Arizona, for the period October 31, 1983, to June 1, 1984. In a January 4, 1984 letter, the principal of the school informed Volk that he proposed to remove her because she failed to disclose on the employment application that she had been fired from a previous teaching position.

Following the grievance procedure outlined in the negotiated agreement between the BIA and the National Council of the Bureau of Indian Affairs Educators (NCBIAE), Volk's bargaining representative, Volk and two representatives prepared a taped response to the principal's allegations. The OIEP Agency Superintendent for Education reviewed the response but decided that the reason stated in the notice of proposed removal was fully supported by the evidence and that removal was warranted. The superintendent notified Volk that her termination was to be effective March 16, 1984, and informed her of the procedures she could follow if she wished to request arbitration.

Volk retained legal counsel through the Arizona Education Association and requested a hearing under 25 U.S.C. Sec. 2011(e)(1)(B). The request was denied by the OIEP on the ground that her right to appeal was limited to arbitration through the NCBIAE in accordance with the negotiated agreement between BIA and NCBIAE.

On March 19, 1984, Volk contacted the president of the NCBIAE and authorized him to request arbitration. By letter dated March 26, 1984, the president informed Volk that he needed more information about her termination before he could proceed to arbitration. Volk did not comply with the request until July 5, 1984. On August 3, 1984, the NCBIAE notified her that it refused to proceed with arbitration of her claim because of the untimeliness and substance of her case.

Volk thereupon filed a complaint with the Federal Labor Relations Authority (FLRA), No. 8-CO-40027, claiming that the NCBIAE had breached its duty of fair representation by refusing to invoke arbitration on her behalf. The FLRA found that the NCBIAE had not acted arbitrarily or capriciously and that its decision had not been motivated by bad faith. Concluding the NCBIAE was not otherwise obligated to process Volk's termination through arbitration, the FLRA dismissed the complaint.

Volk again requested arbitration on August 22, 1984. In a telephone conversation and subsequently in a letter dated October 5, 1984, the new president of the NCBIAE and an employee of the BIA office in Gallup, New Mexico, agreed that the Gallup office would begin proceedings to bring Volk's case to arbitration. But because Volk's request was untimely and there had been no request for an extension, the national personnel office of the BIA refused the case.

On November 28, 1984, Volk filed an appeal with the Merit Systems Protection Board, No. SF07528510169, which dismissed for lack of jurisdiction because she was a nonpreference "excepted service" employee, and accordingly was not entitled to Board review of her removal. This case in the district court ensued.

Alleging violations of her constitutional and statutory right to a hearing on her termination from the Lukachukai Boarding School, Volk sought injunctive relief against, and damages from, several BIA officials, the BIA, and the Department of Interior, and requested "loss of pay" and correction of her personnel record to clear her name. The federal defendants moved to dismiss for failure to state a claim and for lack of subject matter jurisdiction.

The district court dismissed the complaint, concluding that 25 U.S.C. Sec. 2011(e)(1)(B) does not afford a private right of action, that the government entities are immune from suit, and that, although Volk was entitled to bring suit for damages against the BIA officials in their individual capacities by Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), she was foreclosed by her failure timely to exhaust the administrative remedies available to her.

She appealed to the Court of Appeals for the Ninth Circuit which transferred the case to us, No. 87-2084 (June 23, 1988), citing Brant v. Cleveland National Forest Service, 843 F.2d 1222 (9th Cir.1988). We surmise the court viewed Volk's complaint as based in part on her employment contract with BIA and her prayer for "loss of pay" as seeking payment for the remainder of the contract term, and therefore founded on 28 U.S.C. Sec. 1346(a)(2). While not free from doubt, we will also so construe her complaint, cf. Christianson v. Colt Industries Operating Corp., --- U.S. ----, 108 S.Ct. 2166, 2177, 100 L.Ed.2d 811 (1988), and accept jurisdiction under 28 U.S.C. Sec. 1295(a)(2). See United States v. Hohri, 482 U.S. 64, 72-73, 107 S.Ct. 2246, 2252, 96 L.Ed.2d 51 (1987).

Discussion

We agree with the district court that 25 U.S.C. Sec. 2011(e)(1)(B) affords no private right of action, and that the government is immune, which Volk does not here question. But we cannot agree that Bivens gives Volk a cause of action against the employees allegedly at fault.

I

Section 2011(e)(1)(B) provides: "In prescribing regulations to govern the discharge and conditions of employment of educators, the Secretary shall require ... that no educator may be discharged without notice of the reasons therefor and opportunity for a hearing under procedures that comport with the requirements of due process." As can be seen, no private right of action to redress violations of the statute is expressly provided. The next question, therefore, is whether Congress intended that there be a private right of action, that it is there by implication. As did the district court, we look to the "legislative history and purpose of the statute, the identity of the class for whose particular benefit the statute was passed, [and] the existence of express statutory remedies adequate to serve the legislative purpose ...," Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536, 104 S.Ct. 831, 838, 78 L.Ed.2d 645 (1984), and conclude that Congress did not. The legislative record is silent on the matter and implying a private remedy for damages against federal officials in section 2011(e)(1)(B) would conflict with the statutory and administrative scheme.

By 25 U.S.C. Sec. 2011(a)(1), Congress excluded BIA educators from the coverage of those provisions of the Civil Service Reform Act of 1978 (CSRA) that relate to the appointment, promotion and removal of civil service employees. Section 2011(b) instead directs the Secretary of Interior to prescribe regulations governing the appointment and discharge of educators. Section 2011(e) tells the Secretary what regulations covering discharges of employees must contain; to that extent, we can assume, the teachers were intended to benefit. But no part of it enables one who perceives herself aggrieved to base a suit on the statute.

In accordance with sections 2011(b) and (e), in 1979 the Secretary adopted procedures to govern discharges for cause in 25 C.F.R. 38.7(d). These were superseded by those set out in the collective bargaining agreement negotiated between the BIA and the NCBIAE as permitted by 5 U.S.C. Sec. 7121, and which apply to Volk. * Nothing suggests Congress intended BIA educators to have statutory remedies in addition to the negotiated procedures. To the contrary, section 7121(a)(1) says that "the procedures [provided in the collective bargaining agreement] shall be the exclusive procedures for resolving grievances which fall within its coverage."

In United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), Fausto, like Volk, was a nonpreference eligible excepted service federal employee, excluded from the administrative and judicial review procedures afforded certain other categories of federal employees by the CSRA. Through an action founded on the Back Pay Act, 5 U.S.C. Sec. 5596, Fausto nonetheless sought judicial review of the decision of the Department of Interior to suspend him from his job. In view of the integrated system created by the CSRA, the Supreme Court concluded that to allow a remedy not otherwise provided for in the statutory scheme would upset the balance carefully wrought by Congress between "the legitimate interests of the various categories of federal employees [and] the needs of sound and efficient administration." 108 S.Ct. at 672. We think this reasoning applies with equal force here where Congress carefully excused the Secretary from complying with the cumbersome civil service rules that might otherwise govern educators, but required that a specified regime be implemented to govern discharge cases like this one. Congress can be deemed to have...

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