Zimbelman v. Savage, 99-1607

• Decision Date: 05 June 2000
• Docket Number: No. 99-1607,99-1607
• Parties: (4th Cir. 2000) RITA J. ZIMBELMAN; KAREN MICHALIK, Plaintiffs-Appellees, v. STEVEN S. SAVAGE, Colonel, in his official capacity and as an individual; MICHAEL P. FILAN, Lieutenant Colonel, in his official capacity and as an individual; DONALD J. WHALEN, in his official capacity as Services Squadron Flight Chief and as an individual; DON COOK, in his official capacity as Deputy of Services Squadron and as an individual; LESTER M. RIDALL, in his official capacity as Chief, Human Resources Office, and as an individual; GEORGE J. ZALASKY, in his official capacity as an OSI Agent and as an individual; MICHAEL D. GOODRICH, in his individual capacity; BRUCE J. GUYOTE, in his individual capacity; JAMES R. CAPPS, in his individual capacity; THOMAS E. WELCH, in his individual capacity, Defendants-Appellants, and UNITED STATES AIR FORCE; S. E. WIDNALL, Doctor, Secretary; OSI AGENT 1, sued as "Four Other Unnamed OSI Agents, in their official capacities and as individuals"; OSI AGENT 2, sued as "Four Other Unnamed OSI Agents, in their official capacities and as individuals"; OSI AGENT 3, sued as "Four Other Unnamed OSI Agents, in their official capacities and as individuals"; OSI AGENT 4, sued as "Four Other Unnamed OSI Agents, in their official capacities and as individuals", Defendants. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 367

228 F.3d 367 (4th Cir. 2000)

RITA J. ZIMBELMAN; KAREN MICHALIK, Plaintiffs-Appellees, v. STEVEN S. SAVAGE, Colonel, in his official capacity and as an individual; MICHAEL P. FILAN, Lieutenant Colonel, in his official capacity and as an individual; DONALD J. WHALEN, in his official capacity as Services Squadron Flight Chief and as an individual; DON COOK, in his official capacity as Deputy of Services Squadron and as an individual; LESTER M. RIDALL, in his official capacity as Chief, Human Resources Office, and as an individual; GEORGE J. ZALASKY, in his official capacity as an OSI Agent and as an

individual; MICHAEL D. GOODRICH, in his individual capacity; BRUCE J. GUYOTE, in his individual capacity; JAMES R. CAPPS, in his individual capacity; THOMAS E. WELCH, in his individual capacity, Defendants-Appellants and UNITED STATES AIR FORCE; S. E. WIDNALL, Doctor, Secretary; OSI AGENT 1, sued as "Four Other Unnamed OSI Agents, in their official capacities and as individuals"; OSI AGENT 2, sued as "Four Other Unnamed OSI Agents, in their official capacities and as individuals"; OSI AGENT 3, sued as "Four Other Unnamed OSI Agents, in their official capacities and as individuals"; OSI AGENT 4, sued as "Four Other Unnamed OSI Agents, in their official capacities and as individuals", Defendants.

No. 99-1607.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: June 5, 2000.

Decided: September 21, 2000.

Appeal from the United States District Court for the District of South Carolina, at Columbia.

Mathew J. Perry, Jr., Senior District Judge. (CA-97-592-3-10) COUNSEL ARGUED: Richard Alan Olderman, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. John Michael Brown, Augusta, Georgia, for Appellees. ON BRIEF: David W. Ogden, Acting Assistant Attorney General, J. Rene Josey, United States Attorney, Barbara L. Herwig, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Kristina M. Anderson, Aiken, South Carolina, for Appellees.

Before WILKINSON, Chief Judge, and MICHAEL and MOTZ, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Michael and Judge Motz joined.

OPINION

WILKINSON, Chief Judge:

Plaintiffs Rita Zimbelman and Karen Michalik were fired from their Air Force jobs based on suspicions of theft, fraud, and other misconduct. Their internal appeals seeking reinstatement failed. Plaintiffs then filed this Bivens action alleging several constitutional violations, among them that the Air Force violated their Fifth Amendment rights by failing to grant them a name-clearing hearing. The district court denied the defendants' motion for partial summary judgment on the Fifth Amendment claim. Because the special factor of plaintiffs' federal employment precludes the remedy they seek, we reverse the judgment of the district court and remand with instructions to dismiss Zimbelman and Michalik's Fifth Amendment claim against the defendants.

I.

Rita Zimbelman and Karen Michalik worked for the Officers' Club at Shaw Air Force Base in Sumter, South Carolina. The club is a non-appropriated fund instrumentality (NAFI), meaning that it is a federal agency whose funds come primarily from its own activities rather than annual appropriations. Based on reports of misconduct at the club, the Air Force's Office of Special Investigations (OSI) conducted an investigation of the club's employees, including Zimbelman and Michalik.

OSI's investigation concluded on March 13, 1995. On March 15, 1995, Lieutenant Colonel Michael Filan sent Zimbelman written notification that he was recommending termination of her employment because of suspicions of theft and fraud. Zimbelman filed a three-page response on March 17, 1995, and a ten-page response on April 10, 1995. On April 13, 1995, Filan issued a decision terminating her as manager of the Officer's Club.

As a NAFI employee, Zimbelman was not covered by the remedial scheme of the Civil Service Reform Act (CSRA). See 5 U.S.C. S 2105(c) (1994). Thus, the only way she could challenge her termination was pursuant to the internal procedures set forth in the Air Force Manual. Accordingly, Zimbelman filed a Step 1 grievance with Colonel Steven Savage, who rejected the appeal in a four-page decision. Zimbelman's Step 2 and Step 3 grievances were rejected by Colonel Thomas Poole and Colonel Richard Hamer, respectively. This exhausted her administrative remedies. Zimbelman was subsequently indicted on criminal charges but was acquitted by a directed verdict at the close of the government's case.

Michalik, also a NAFI employee, received written notification of her proposed termination on March 20, 1995. The Air Force also accused her of engaging in misconduct. She filed a response to the charges that day and later initiated a Step 1 grievance. Lt. Col. Filan rejected her Step 1 appeal. Michalik's Step 2 grievance was summarily dismissed because she filed it in an untimely fashion. This brought the internal appeals process to an end. The Air Force never filed any criminal charges against Michalik.

Zimbelman and Michalik then filed this Bivens action against members of the OSI team and their supervisors. The complaint alleged several constitutional violations, among them that OSI officers violated plaintiffs' Fifth Amendment right to preserve their reputations. Zimbelman and Michalik claim that the false accusations caused each of them to lose gainful employment and the opportunity for future employment. Moreover, they claim that they did not have the constitutionally required opportunity to clear their names.

The district court dismissed some claims but allowed, among others, the Fifth Amendment claim to stand. The defendants then moved for partial summary judgment on the Fifth Amendment claim. The district court denied this motion and defendants filed this interlocutory appeal. See Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). II.

A Bivens action is a judicially created damages remedy designed to vindicate violations of constitutional rights. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Bivens actions, however, are inappropriate if there are"special factors counseling hesitation." Id. at 396. For example, Bivens actions are not allowed "[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations . . . ." Schweiker v. Chilicky, 487 U.S. 412, 423 (1988).

In Bush v. Lucas, 462 U.S. 367 (1983), the Supreme Court refused to recognize a First Amendment Bivens action brought by an engineer against the director of a federal space flight center. The Court held that federal employment constitutes the sort of"special factor" that makes a Bivens remedy inappropriate. See id. at 389. Federal employment is a "special factor" because federal personnel matters are governed by the CSRA. See id. Because the CSRA constitutes a comprehensive set of procedural and substantive provisions governing the rights of federal employees, it would be inappropriate "to supplement that regulatory scheme with a new judicial remedy." Id. at 368; see also United States v. Fausto, 484 U.S. 439 (1988) (exclusiveness of the CSRA precludes claims raised under other statutes). Congress is more competent to decide "whether or not it would be good policy" to create "a new species of litigation between federal employees" and to evaluate how this might effect"the efficiency of the...