Frank K. Kotarski v. V.L. Cooper, A.E. Navarro, W.J. Tinston, J.H. Kirkpatrick, Naval Air Rework Facility, Capt. P.A. Monroe, in His Official Capacity

weapon in fact had been used. The state give court’s failure to separate deadly appeals court of stated: weapon instruction. The give failure to Here, instruction did not infect Pilon’s robbery both victims testified that trial nor render it fundamentally gun. Pilón had been armed unfair. with Cam- itsch, 355; pharmacist Henderson, 705 F.2d at testified he familiar see was military training U.S. at firearms from S.Ct. at 1736. recognized gun pistol. as a .38 calibre The judgment is AFFIRMED. only Pilon’s co-defendant testified gun vantage she did not see a from her

point gun going know that to be

used. Ño controverts evidence the vic- testimony

tims’ the male robber was

armed, disputed nor was the fact at trial. the absence of evidence that

would create a reasonable doubt about presence gun, failure to in- KOTARSKI, Frank K. jury struct the state’s burden of Plaintiff-Appellant, proof was harmless error. C. No Due Process Denial COOPER, Navarro, V.L. A.E. W.J. Tin ston, Kirkpatrick, J.H. A Naval Air Re prisoner state may obtain Facility, Capt. Monroe, work P.A. corpus only habeas relief if he is capacity, Defendants-Appellees. official custody held in in violation of the Constitu tion, laws, or treaties of the United States. No. 84-5673. Isaac, Engle United Appeals, States Court of 1558, 1567, (1982); 71 L.Ed.2d 783 Gutier Ninth Circuit. Griggs, (9th rez v. Cir.1983); 2254(a). Claims that Argued and Submitted Jan. merely challenge the jury correctness of Sept. Decided instructions under state law cannot reason ably be allege deprivation construed to Givens v. Housewright, (9th Cir.1986); F.2d Gutier

rez, 695 F.2d prove at 1197. To a due

process jury violation based on instruc

tions, petitioner a habeas must show that “instruction itself ... infected the

entire Kibbe, trial....” Henderson v. 145, 154, 1730, 1736, (1977) (quoting Cupp v.

Naughten, 141, 147, (1973)); see Camitsch Risley, Cir.1983)

(instruction that renders trial fundamental

ly justifies unfair relief). habeas Undesir

able, erroneous, or even universally con

demned instructions pro survive due scrutiny. Henderson,

cess 431 U.S. at

97 S.Ct. at 1736.

Pilón has failed to show a federal process

due violation the state trial Kotarski, pro. per.

Frank K. Olderman, Dept. Richard A. of Jus D.C., tice, Washington, defendants-ap pellees. NELSON, HALL, alleging CANBY and action that his demotion vio-

Before lated his under Title VII of the Civil Judges. Circuit Rights Act of 42 U.S.C. 2000e-16. pending That action is still in district court. CANBY, Judge: Circuit disposed of this first district Plaintiff, employee of the a civilian by dismissing prejudice, upon it with posi- promoted supervisory to a Navy, was government’s appeal motion. This fol- period subject probationary one tion of lowed. posi- year. He to his former was demoted during year, brought and this tion that district court to contest his demo- damages for DISCUSSION

tion and seek Bivens1 it. complaint district court dismissed his with A. Jurisdiction plaintiff appeals. re- prejudice, and verse. In to seeking addition Bivens

damages against superiors his immediate agency and review of the action under the BACKGROUND Act, Administrative Procedure Kotarski 1981, plaintiff Frank Kotarski was seeks reinstatement pay and back from de promoted position from his as a GS-12 fendant Air Facility, Naval Rework in engineer position of Navy civilian of strumentality the United States. Al engineer supervi- GM-13: industrial though prayer Kotarski’s for relief does responsibilities. competitive ap- sory This specify not of pay sought, amount back pointment subject $10,000. we conclude that it would exceed 3321; period year. of one 5 U.S.C. 5 § Justice, Dept. Doe United States 315.802(a) seq. C.F.R. et Toward the § (D.C.Cir.1985). 753 F.2d 1101 As a period, close of this Kotarski’s immediate result, the district juris court was without superiors, here, defendants notified him diction over Kotarski’s pay back claim. performance supervisor that his as a had Act, 1346(a)(2), The Tucker 28 U.S.C. re § unsatisfactory. been Kotarski was accord- quires brought that such be actions in the ingly prior position. returned his United States Claims Court.2 The claim against Shortly thereafter, Facility Kotarski filed ac- for reinstatement so defendants, integrated against seeking with the for pay, reinstate- claim back ment, it must pay, damages back and likewise be entertained in the Claims sought He Court. See demotion. also review Schulthess v. United States, 694 agency Cir.1982); F.2d 178 action under the Administrative Roudebush, complaint alleged Procedure Act. The that Giordano 617 F.2d (8th Cir.1980). first, 514-15 Accordingly, re defendants had violated Kotarski’s rights mand these claims to fifth and ninth amendment de- the district court consideration moting position supervisor. him of whether the interests of from as later, justice require transfer of Five months Kotarski filed a second Kotarski’s back Davis, Agents generally 1. In Bivens v. Six Unknown Named see K. Administrative Law Trea- Narcotics, tise, Federal Bureau 27:26 against brought implied damage remedy For a Tucker Act claim be in the court, (1) (2) money plaintiffs officers for the violation of fourth district exceeding it must seek $10,000 (3) amendment Id. at 91 S.Ct. at from the United States (4) progres- upon a 2001-5. The Bivens has been and be founded either contract or doctrine sively expanded provision regulation of federal can embrace other constitutional law Passman, mandating fairly interpreted compensa- be violations. See Davis v. (1979) pro- (equal dam- tion ages the Federal Government Lehman, tection); Green, sustained. See Van Drasek v. Carlson amendment); (D.C.Cir.1985). (1980) (eighth L.Ed.2d stitutional action other than discrimination pay and reinstatement claims to the Claims race, 1631.3 sex, religion Court. based on or national ori- gin.” White v. General Services Adminis- however, with problem, no There is tration, (9th Cir.1981). 652 F.2d over Kotar jurisdiction district court’s against the indi claims ski’s brought alleged actions Kotarski has that he was defendants.

vidual . individual superiors in their against disapproved federal officials demoted because his plaintiff’s con capacities private relationship living for violations of his ar requiring suits rangements friend, are not stitutional with his woman in vio United States. consent of the right privacy. lation of his constitutional implicated. Act is therefore alleges Tucker He he was demoted be Lehman, Drasek v. Van expression disagreement cause of his Doe, F.2d at 1101. (D.C.Cir.1985); policies, practices expendi with certain properly enter The district court therefore tures of funds at the Naval Air Rework Kotarski’s claims. tained Facility, in violation of his first amendment rights.4 Neither of cogniza these claims is Remedy Exclusive B. Title VII as VII; accordingly, under Title they ble are preclusive its Kotarski’s barred effect. court dismissed The district grounds. claims on two alternative Kotarski’s exclusive first was that contend, however, Defendants that VII, 2000e- 42 U.S.C. remedy lay Title § effectively admitted that his Bi Kotarski disagree. 16. We by his Title vens claims were subsumed VII his Title he filed an affidavit in in em claim when Title discrimination VII bars race, color, he did “swear and of reli VII on the basis ployment his involvement an EEO sex, origin. 42 contend” that U.S.C. gion, or national complaint filed his woman friend 2000e-2, the district 2000e-16. As §§ for his demotion. observed, Supreme primary “the reason” correctly effect give this affidavit the exclu We decline to Title VII is the has held that Court urge for it. The affi defendants in that the claims of discrimination sive contention, and it was sworn states a employment. Brown v. General davit Administration, 820, It does not information and belief. 425 U.S. on Services participation 1961, 1969, that retaliation 835, 48 L.Ed.2d 402 state only rea effect, however, filing complaint was ex an EEO (1976). That exclusive We fail to Kotarski’s demotion. employees son for claims of federal only tends pursuit of a Title VII Kotarski’s VII. Title see how cognizable under that are retaliation, see White v. 26, Passman, 228, remedy based on 247 n. Davis v. 442 U.S. Administration, 652 60 L.Ed.2d 846 General Services 26, 2264, 2278 n. his Bivens claims 917, preclude can does F.2d at (1979). consequence, “Title VII As a infractions alleged constitutional uncon- remedies for based preclude separate ourselves, of did not reach the merits The district court claims transfer the We decline to 3. cf. claims, Doe Marsh, nor do we. (E.D.Va.1985) Drasek, these v. 767 F.2d supra; v. Wronke Cf. Van (state Dating, F.Supp. 960 603 Cir.1985) (7th (transferring to Federal Cir- prohibiting and cohab fornication statutes 1631), because Kotarski 28 U.S.C. cuit under unconstitutional), adults unmarried itation the district court may the leave of wish to seek (4th grounds, 782 F.2d vacated on other Cir.1986); damages in complaint to waive his to amend Segundo, City El also Thome v. see of $10,000 proceed district court. excess of denied, (9th Cir.1983), 726 F.2d 459 cert. States, 587-88 757 F.2d v. United See Hahn (1984); S.Ct. Drasek, (3d Cir.1985); n. 762 F.2d at 1069 Van Cir.1984); (11th Taylor, 733 F.2d 1539 Wilson v. $10,000 or claim to reduces his 6. If Kotarski Phoenix, City 692 F.2d v. but Andrade cf. pursues court under it in the district less and J., concurring) Cir.1982) (Wallace, 565 ("neither Act, appellate of that claim review Tucker court has Supreme nor this Court Appeals only Court of be had in the are relations sexual that extramarital held ... constitutionally protected"). 1295(a)(2). Circuit. See Federal nearly nothing protec- with Title VII. See from all having to do Act, Library Employees tions of the that decision was a Ethnic con- Boorstin, & n. 14 recognition proba- scious of the fact that (D.C.Cir.1985). examining “is an extension of pro- an employee’s ability cess determine C. The Bush Lucas actually perform position. Effect of the duties inappropriate agency’s It is to restrict an ground for As an alternative dis separate authority who claims, missing Kotarski’s Bivens the dis perform acceptably during does not precluded by held were trict court S.Rep. Cong., No. period.” 95th 2d Lucas, the doctrine of 462 U.S. reprinted Sess. in 1978 U.S. Code 76 L.Ed.2d Cong. & Ad.News ruling presents question much This closer issue, Title than the VII but we conclude reading Defendants’ is not with too, it, was erroneous. support. Dole, out In Pinar v. rejected (4th Cir.1984), of non-probationary Bivens claim a sought challenge employee who de- preclud Fourth Circuit held that Bush ground reprisal that it motion on was a ed Bivens relief for a federal activity. constitutionally protected temporary promotion who claimed congres- presence Court held that the had been terminated because of his “whis comprehensive regula- sionally-established, tle-blowing” pro activities. Because the governing tory employer- scheme federal temporary, employee’s motion was the ad “special employee relationships was a greater ministrative remedies were no than counselling implying hesitation” in factor[ ] Kotarski’s. v. Carroll United remedy. a U.S. Bivens 462 at 103 States, (5th Cir.1983) (on 721 F.2d 155 re 2411; Bivens, 403 at at see U.S. hearing) (Bush precludes Bivens action for 91 at 2004. Court concluded seeking employee former reinstatement that, light in of the “elaborate remedial back-pay; remedy and administrative avail system” by Congress, constructed 462 U.S. for reinstatement not back-pay), able but at 103 S.Ct. at it not add should 104 S.Ct. remedy provided a to those Bivens Con- (1984); Francisco v. gress legislative judg- in the its exercise of Schmidt, F.Supp. (E.D.Wis.1983) ment. at at Id. 103 S.Ct. (Bivens inappropriate area relations); employee v. Watson United inapplica

Kotarski contends is that Bush Department Housing States and Ur ble to his case the employee because (N.D. Development, F.Supp. ban fully to Bush was tenured and entitled all Ill.1983) (administrative pro remedies for the protections sys the civil service bationary employees adequate); Crumpler supervisory appointment tem. Kotarski’s Etter, F.Supp. (E.D.N.C.1983) v. probationary; regard posi was with to that tion, (congressional provision remedy of some he was excluded from the Service Civil action). precludes “employee” Reform Act’s definition of go the remedies that it. with agree all respect, With we cannot with 7511(a)(1)(A); Piskadlo Veterans’ Ad Pinar, the decision in or those in with ministration, (1st Cir. First, with the accord it. we resist tenden- 1982). cy unduly minimize to the interests of the ground only employee proba- The defendants counter that the lesson on the judi- tionary primary from is that the status is be derived Bush involved. ciary congres- employee the a should not interfere the interest asserted first employ- speech. sionally-ordered scheme of federal amendment interest in free Sec- ond, by fashioning regard ment intrusive If to the remedies. we essential Congress holding availability meaningful probationary chose to exclude the authority in dealing questions alleged viola- est and remedy for Third, remedies regard employment. do not U.S. at tion. Reform Act by the CivilService afforded at 2417. But cannot be 103 S.Ct. to be ade- probationary status pervasive emphasis apart from its read meaning Each of Bush. quate within provided by Congress for the the remedies requires points elaboration. these complaining in that case reme new; were unavailable dies that the noted nothing it is Probationary status is great at 385 n. management probationary employees. must retain Id. agreed that determining probation- 28, that a flexibility at 2414 n. 28. The Court per- ought granted not to be ary employee being demoted stressed that grant proposition, To manent status. charges, a entitled to statement of was however, deprive em- is not to rebuttal, opportunity to offer protection.5 ployees of all constitutional official, higher appeal then an by a probationary employee Accordingly, “[a] Employee Appeals Authority which Federal reason, discharged any may be required trial-type hearing. to hold all, but not for an unconstitu- no reason at subject to An adverse decision was then Bergland, reason.” tional Huffstutler judicial review. 462 at Indeed, (5th Cir.1979). 1090, 1092 employee pre 2415-16. If S.Ct. at point Supreme Court itself made stage, entitled any he was vailed Sindermann, 408 Perry clear in quite seniority with retroactive reinstatement backpay. and full Id. at col- involving a non-tenured a case Thus, out, pointed as the Court lege professor: question not what [was] “[t]he “right” to though person has no [E]ven wrong provide for a court should governmental benefit a valuable go unredressed.” Id. would otherwise deny though government may even provided by the remedies While of rea- him the number benefit respects complete as in some not as were sons, upon which there are some reasons in a that would be those available rely. It government may not action, neverthe congressional scheme person on a basis deny a benefit for em provided "meaningful remedies less infringe constitutionally protect- unfairly disci may ployees who have been in his interest especially, ed interests — making comments about plined for critical speech. freedom of 386, 103 S.Ct. at agencies.” Id. at their 597, 2697; see Mt. at 92 S.Ct. at Id. conclusion, omitted). (footnote That City Board Healthy School District holding in the suggest, is central to we 274, 283-84, Doyle, Education v. IRS, 745 F.2d Bush. See Williams (1977). 50 L.Ed.2d 471 curiam). (D.C.Cir.1984)(per status, therefore, be Probationary cannot negation Bush, then, ques- of the by for a total view the the foundation we Guided rights employee. of the congres- first amendment the us to be tion before whether provid- remedies and administrative sional Bush as therefore are to read unable employee probationary a Kotarski as ed for employment simply placing probationary protection give meaningful sufficient to are judiciary. It is true that off limits are, they rights. If special constitutional emphasized Congress’ inter- to his Connolly, amendment also had first find United States v. ees. 5. We do not denied, claim, however, subject (Fed.Cir.1983), not cert. and court did F.2d 882 the Instead, analysis. the to the same that claim defendants, contrary by upon be to our relied claim held that the first amendment Connolly, probationary view. jurisdiction of the within the Tucker Act regula statutory his removal and contested tory grounds. on amendment Court because the first Claims he was not The court held that obligation United of the not create itself did judicial in entitled to review because money. pay Id. at 886-87. States to employ- probationary no such review tended implying whistleblowing activities, refrain from to his requires us to in- and Clemente v. a Bivens United remedy. by formed him that the letter evidence was States, (9th Cir.1985), “insufficient to establish that those mat- — U.S.-, significant ters were factors” in his demo- not, If are complains tion. Kotarski that the investi- appropriate to then it seems overcome the gation consisted of interviews that Kotar- hesitation the fact of counseled given of, ski was no access to or record employment imply a remedy, and to opportunity thus had no to rebut. J., id. (Marshall, at 2418 investigation by Special If this the Coun- concurring), at least the absence of an part system sel were a aof of enforceable express congressional negative. See id. violations, relief for constitutional we 378 n. 14 S.Ct. at 2411 & n. 14 & compelled would be to conclude that no Bivens action Indeed, implied. be could argues Kotarski that he is without reme- the relief quite could doubtless fall short dy for violation of still constitutionally relief and be Bivens, that, “it is damages adequate, light designed precari- nothing.” Bivens, 403 U.S. at probationary position ousness of the from J., (Harlan, concurring). at 2011 The an- which Kotarski was demoted. The role quite simple, is not swer however. Special in receiving Counsel and investi- provided congressional remedies however, gating complaints, part provide “complete scheme need not relief” system embodying any remedy enforceable to forestall a Bi- by complainant adequate order to be who demonstrates a viola- action, Bush, vens 462 U.S. at tion of constitutional While the S.Ct. at and Kotarski was not wholly Special Counsel is directed statute congressionally-designed excluded from the investigate any allegation receive and system. prohibited personnel practice, 5 U.S.C. As a employee, Kotarski 1206(a)(1), report and to to the Board and § appeal agency was entitled action to the agency Special if the involved Counsel Systems Merit Protection Board if the determines there are reasonable upon “partisan political was based grounds prohibited that a prac- believe affiliation or marital status.” 5 C.F.R. occurred, 1206(c)(1)(A), tice has no more § 315.908(b). attempt did Kotarski such an time, If, need be done. after a reasonable appeal, apparently theory that his agency action; has not taken corrective privacy might claim be one of “marital Special “may” request Counsel status,” but the Board held that it was matter, Board to consider and the jurisdiction without over his appeal. Ac- “may” Board order such corrective action cordingly, view that remedy as appropriate. 1206(c)(1)(B). as it deems unavailable to Kotarski. Kotarski also complainant Unlike the proba- submitted complaint Special to the tionary employee has no right, enforceable Board, Counsel of independently who is review, judicial and no if even he or she complaints authorized to “pro- receive demonstrates a constitutional violation. practice.” personnel hibited right participation Nor is there in 1206(a)(1). “prohibited The definition of § process investigation and decision personnel practice” reprisal includes whether to take action. against a “whistleblower” well as dis- regard do not structure as one against appli- crimination provides “meaningful to remedies” cant employment on the basis of con- one whose constitutional have been adversely duct which per- does not affect wrong may righted violated. be While job. formance of the 5 C.F.R. 1250.- discretion, 3(b)(8), (10). every as a matter of constitu- Special Counsel investi- gated charges any agency to regard subject tional violation is Kotarski’s both to his relationship his woman that kind of The central fea- friend and correction. (5th Cir.1982) (Bivens action system 985-86 remedial congressional tures reassignment). rem- the alternative Bivens available to contest and of in Bush a forum which right to are the edy contend that it is anoma The defendants and the violation a constitutional establish give probationary employees a lous to if viola- relief significant right to enforce greater protection of their constitutional exists for feature Neither tion is shown. action, by way of a Bivens than is rights, only employee whose probationary fully employees, tenured who available complain seeking redress is means of remedies. are confined to their civil service Special Counsel. Schmidt, may be. Francisco v. It by Williams supported is Our conclusion alternative, F.Supp. at 1203. The (D.C.Cir.1984) (per IRS, anomalous, equally at least is strikes us as apply curiam), court refused to in which the action that would to hold that by an Internal Rev- defeat a claim Bush to appropriate probation for a otherwise be attorney who contested his enue Service inappropriate by ary employee is rendered suspension. As one five-day disciplinary the enactment of a scheme of enforceable decision, the court stated: of its ground probationary employ remedies from which large measure on rested Egger excluded definition. ees are optimally even if less than meaningful, (plurality opin Phillips, 710 F.2d at 298 effective, statutory remedy Congress result, ion). To reach such we would complainant, one to the available made Congress had have to conclude that both him retroactive reinstate- afforded authority deprive and the the intention differ- pay. Williams is ment and back meaningful probationary employees of all situated; he has no CSRA-con- ently protection for their constitutional ad- of an administrative guarantee ferred Bush, Supreme Like the the Service or of direct judication outside 2411 n. n. 103 S.Ct. at at 378 review. question Congress’ not decide the need Doe v. United States at 705. See also Id. it could not authority, for we conclude that Justice, 753 F.2d Department intended such an untoward result. have J., dissenting); (Wald, Harris v. 1118 n. 2 Moreover, occurs as any distortion that (N.D.Ill.1985) F.Supp. 1262 Moyer, availability of a Bivens result of the ac (Bush to defeat Bivens applicable quite employees is probationary action to em employee, because by probationary proba- greater protection for limited. The appeal to statutory right of ployee had no only to constitu- employees extends tionary Board). Similarly, System Merit Protection claims; right no tionally have based International States Borrell v. United proba- when their appeal or other redress Agency, Communications normal tionary is terminated for status decided be (D.C.Cir.1982), a case 988-91 See, e.g., 5 C.F.R. management reasons. fore the Court’s 315.908(a); Morrissey, Lehman v. employee could probationary held that a Cir.1985). it clear that Nor is F.2d 526 on her based bring suit in federal court em- the Bivens discharged for whistle- claim that she was invariably preferable to the civil ployees Service Re blowing activities. The Civil regular em- available to service remedies preclude her not to form Act was held under the civil service ployees. Review from all she excluded action because less certainly speedier and system is almost complain right to except the of its remedies Bush, 462 than a action. See costly Special Egger Counsel. See (Marshall, J., 391, at 2418 103 S.Ct. (en (7th Cir.) 292, 297-98 Phillips, 710 F.2d complainant concurring). The civil service FBI banc) (exemption of (plurality opinion) proof, of a favorable burden enjoys more regulations per agents from civil service immunity defenses that possible and avoids action), 464 U.S. mits Bivens action. in a Bivens likely to asserted (1983); are be 284, 918, L.Ed.2d 104 S.Ct. regard avail- do not 979, therefore Block, Id. We Broadway v. but see Wood, action to ability of a Bivens v. 426 U.S. 345 n. 96 S.Ct. startling development. as a Of (1976). 2077 n. 48 L.Ed.2d 684 course, cure sym- can lack of Kotarski counters that there was a clear -type metry by bringing Bivens claims expectancy that he would remain in his probationary employees regular within the supervisor’s position long per- so he as system. remedial satisfactorily, expect- formed and that this above, therefore, ancy

For the reasons stated to an amounted fifth entitlement for Kotarski, probation- we conclude that as a purposes. amendment See Perry v. Sin- ary dermann, supervisor, 599-603, is not barred Bush v. 408 U.S. pursuing Lucas from his (1972). Bivens action L.Ed.2d 570 against allegedly argument He supports those who violated his his with a reference personnel to a manual. He also contends publication

that sufficient of his demotion D. Review Under Administrative occurred or will occur that he has been

Procedure Act stigmatized in manner affecting liber- ty Roth, Regents interest. Board v. sought Kotarski also reyiew of his 564, 573, 2701, 2707, 408 U.S. provisions demotion under the of the Ad (1972); Bishop L.Ed.2d 548 but see Act, ministrative Procedure U.S.C. 701 Wood, 341, 348-49, 426 U.S. seq. et This claim foreclosed our 48 L.Ed.2d 684 Heckler, decision in Veit v. F.2d 508 (9th Cir.1984),in we held that court, The district having disposed of jurisdiction courts had no to review federal against Kotarski’s claims the individual de- personnel actions under Administrative grounds, fendants on other did not address Procedure Act.6 process due claim. Because due process stigma issues of entitlement and E. Due Process have factual components, substantial it inappropriate would be for us to address In addition to his claims based on this claim before district done court has of privacy expression, and free Kotarski so. express opinions therefore no claimed that right his fifth amendment conflicting contentions, merits of the process due was violated.7 The defendants and leave the matter for the district court contend that Kotarski cannot have suffered on remand. deprivation property pro- without due cess, because he had no entitlement or F. Immunity property interest in his probationary super- position. visor’s Arnett Kennedy, The individual defendants contend immunity are entitled to absolute (1974); Sampson Murray, from liability commission com- (1974); Bishop mon acting law torts scope when within the merits, regard holding We do language holding on the that Veit had failed to Veit contrary to be our conclusion Kotar- property show a interest in a claimed merit ski damages seek for his demotion in a increase. Id. Bivens action. with the Veit dealt claim of regular that he should have pro- 7. To the extent that Kotarski asserts a due given higher job performance been rating. against Facility cess claim Naval Air Rework that, We held of the extensive view remedies part as of his claim for back reinstatement and available to a tenured under the Civil pay, subject the claim is to our discussion in Act, judicial Service pre- Reform review was A, part supra. appeared The district court authorization, congressional cluded for lack of process part treat Kotarski’s due claim though even pro- no administrative against claims individual defendants. Veit, wrong vided complained Veit of. process At least one of Kotarski’s due claims 746 F.2d at 511. Our conclusion that no review alleged complaint in his seems to be directed at was available was confined review of Veit’s two of the individual defendants. non-constitutional claim. Veit also had a fifth separately amendment claim dealt with

1351 authority. that the remedies available to Kotarski af- employment of their Matteo, losing temporary promotion 79 ter are 360 U.S. S.Ct. Barr (1959). regard to Ko- “meaningful” majority With and because the 1434 3 L.Ed.2d however, claims, also believes that requires such reme- constitutional tarski’s most, entitled, dies, at would be it concludes that Kotarski is entitled defendants Economou, Butz immunity. damage remedy to a full federal court qualified 57 L.Ed.2d temporary promotion 98 S.Ct. if 438 U.S. for loss of his he only so immune (1978). They would be prove his reduced status was ef- can that does not violate conduct long as “their fected in violation of constitutional statutory or constitu- clearly established remedy This is available to Kotarski even person a reasonable rights tional though receiving demoted after Fitzger- known.” Harlow v. would have permanent promotions in violation of their 2727, 2738, ald, 800, 818, 102 S.Ct. 457 U.S. rights private have no dam- 73 L.Ed.2d Bivens Six Unknown age under Federal Bureau Agents Named too, reached Immunity, was not Narcotics, U.S. the actions of de- court. Whether district (1971) and are limited to the clearly established statu- violated fendants avenues of the civil service administrative rights, and whether tory or constitutional system. at U.S. known of person would have reasonable at 2416-17. prema- them, it would be are matters which The district court to determine now. ture The court in Bush held that a federal issues, necessary, if those can address allegedly in employee who was demoted upon remand. rights violation of his first amendment damage private not entitled to a G. Conclusion under Bivens. majority’s The belief is of the district court judgment focus of Bush upon the nature of the reversed, remanded for and the case is sup- provided by remedies is not consistent with this proceedings further reading case. Time and ported by a opinion. in Bush the Court underscored again time its centered on the basis of decision AND REMANDED.

REVERSED problems judicial review significant HALL, coupled with personnel Circuit of federal decisions HOLCOMB CYNTHIA posi- Congress is in a better Judge, dissenting: the fact that the need tion to strike a balance between wishes, that he also For each man what government employees and the for efficient true. believes to be employ- protect the of those need to (J. Demosthenes, Olynthiac Third “special constituted ees. These concerns 1930). trans. Vince counselling the cre- factors hesitation [in that central to the majority believes damage remedy] in the absence ation holding of the Court’s Bi- Congress.” of affirmative action Lucas, Bush v. vens, at 2004. (1983) proposi- is the 76 L.Ed.2d punctuated its decision The Court provided by Con- the remedies that the na- by repeated disclaimers give employees must gress for federal rem- congressionally prescribed ture of the “meaningful protection to ... constitution- At the did not underlie its rationale. edies majority’s rights.” Op. at 1347. In the al outset, the mean- explained that the Court include “meaningful remedies” opinion, factors counsel- ing phrase “special has only remedies where appearing ling first judicial re- hesitation” right,” right “enforceable decisions in prior illustrated its view, participation in the was “right of or the Co., Oil v. Standard United States Op. decision.” process investigation L.Ed. 2067 majority believes 1348. Because Gilman, question The remedy not what (1947) and United States the provide wrong 98 L.Ed. 898 should for a that U.S. Oil, go would Court otherwise unredressed. It is the refused the In Standard system whether elaborate request for a remedial damage new government’s that step by step, has been constructed responsible remedy against a tortfeasor for conflicting poli- with careful attention to injuries The Court to a soldier. reasoned considerations, cy augmented should be Congress, custodian of the that “the na- by judicial remedy the creation of a new the purse,” and not courts should tional for the constitutional violation issue. at for responsibility fashioning the na- bear question obviously That cannot be an- Oil, policy. tional fiscal Standard simply by noting existing swered Gilman, 1611. at at S.Ct. provide not complete remedies do relief government Court refused to allow plaintiff. policy judgment The seek from one indemnification of its by should thorough be informed under- employees responsible creating standing existing regulatory of the struc- liability under the FTCA. The Court in respective ture and the costs bene- creation noted that the of an in- Gilman fits that would result from the addition remedy significantly would demnification remedy of another of em- violations govern- between relationship affect the ployees’ First Amendment employees, impacting employ- ment and its efficiency and morale as well ee as federal Gilman, policy. Thus,

fiscal 347 U.S. at we do decide whether at 697. held it Congress good policy permit Gilman would be feder- damages in a al to recover position was better than the from a courts supervisor improperly who has disci- remedy. fashion such a Id. at plined him for exercising First rights. As Amendment we did in Stan- Bush held that the Standard Oil and Oil, dard decline we “to create a new Gilman decisions demonstrated that legal liability legisla- substantive without “special factors” inquiry focuses on which law,” tive aid and as the common government should branch decide wheth- U.S., at 302 S.Ct. at because [67 1605] remedy provided. er a should be are convinced that is in better special The counselling factors hesi- position to decide whether or not the tation in the remedy creation new public interest would be creat- served Standard Oil and Gilman did not con- ing it. particular cern the merits remedy Id. at 103 S.Ct. at 2416-17.1 Rather, sought. was related to notes, As the majority Bush involved question should who decide wheth- nonprobationary demotion of a em er such a remedy provided. should be Dole, ployee. In Pinar 747 F.2d 899 begin should therefore consider- Cir.1984), ing whether there are reasons for allow- ing Congress prescribe scope Fourth held that Congressional Circuit relief that is made available to federal remedial scheme for federal employees los employees whose First Amendment ing promotion temporary was constitution super- have been violated their ally adequate, remedy and no Bivens visors. required. majority’s position today Bush, U.S. at S.Ct. at 2412. creates I a direct conflict with Pinar. agree stated fur- with the Fourth Circuit and with pre- ther: district court in this case that Bush Only (Marshall, J., justices position two took that the 103 S.Ct. at 2417-18 concur- congressionally-adopted remedy approxi- ring). should mate Bivens relief. See 462 U.S. at 390- non-probationary employees, nation of a eludes complement full of administrative remedies well. employees as discussed in Bush is available. For less law, Congress has defined current Under personnel actions such as a termi severe any ac personnel action” “prohibited a probationary promotion, nation of a Con reprisal for “a disclosure of that is a gress has determined that review the employee applicant or by an information Special Counsel and in certain cases the applicant reasonably employee or which the sufficiently constitutionally deters Board law, any a violation of evidences believes impermissible personnel decisions while rule, regulation....” 5 U.S.C. or maintaining efficiency. morale and 2302(b)(8). Congress provisions enacted Congress in has stated that is the better that an action taken like section 2302 so position damage decide to whether a reme “against ... supervisor a dy appropriate. Congress is has decided regard the indi having proper without not, agree I that it is with the Fourth rights privacy or constitutional vidual’s Congress’ precludes Circuit that decision a dismissal, fine, repri in could result ... Pinar, Bivens here. remedy mand, supervi discipline or other Crumpler n. at 911 and Cong., S.Rep. No. 95th 2d sor.” Etter, (E.D.N.C.1983); F.Supp. Code, Sess., Cong. in 1978U.S. & reprinted States, v. United Watson F.Supp. added). (emphasis at 2745 Admin.News Francisco (N.D.Ill.1983); 585-86 Charges prohibited practices are investi Schmidt, (E.D. F.Supp. 1202-03 Special gated by the Office of the Counsel Wis.1983). corrective action to may recommend 1206(a)-(c). Congress If This is not a case in which has agency. the the 5 U.S.C. § provide expressly the recom decided to no agency implement fails to action, Congress Special all or where has failed to consid- mended corrective Coun remedy constitutionally pro- need to request Systems the Merit Protec er the may sel matter, and the conflict the context of federal Board to consider the scribed tions majority to employment. corrective action. The seems view may Board in turn order 1206(c)(1)(B). Further, remedy” “no or at least this case as a case Con case, basing “meaningless remedy” its Special Coun gressional scheme allows grant, the fact that Kotarski cannot request, and the Board to conclusion on sel to Special Special Counsel to take action or stays personnel actions the force the bring reasonably were taken as the matter to attention Counsel believes Board, judicial prohibited practices. that he cannot seek review the result of participate directly in the or that he cannot place, system remedial Ko- With this in investigation.2 support I find no damages “it is tarski cannot claim that requirements. or Bivens of these nothing.” Congres- majority concedes that (Harlan, J., Congress concurring). at 2011 remedy need not be coter- sionally-supplied carefully has enacted a scheme tailored remedy, minous with and with many competing concerns im- balance the Pinar, agree. agree I I that much regulating employment plicated however, procedures provided for that the remedial mechanism and has chosen this temporary promotion are con- the loss of litigation system allowing between over adequate. stitutionally employment-related over judg- a considered crafting system, Congress has made discipline. Con- provided for the ment that the remedies gress decided that different levels of has temporary promotion are suffi- protection required are of differ- loss rights of federal em- protect ing magnitude. For demotion or termi- cient Special course, required respond participate extent he is does Of Special inquiries, provides he Counsel the extent that Counsel’s underlying and to the with the facts his claim maintaining appropriate ployees while efficiency and morale both the

levels of supervised. and the

supervisors The Su-

preme Congress has decided position to make the best that, so, it has done courts when interfere with the Con-

should not balance

gress majority wish has struck. had done more—but that is enough.

I dissent. Leroy

Patricia LANGAGER and Gary Engle, Schleier, S. F. Tod Stern wife, Langager, husband and Sternberg, Schleier, berg, & Rubin Phoe Plaintiffs-Appellants, nix, Ariz., plaintiffs-appellants. Everroad, Fennemore, D. John Craig, LAKE HAVASU COMMUNITY HOSPI- Udall, Phoenix, Ariz., von Ammon & al., TAL, Defendants-Appellees. et defendants-appellees.

No. 85-1748.

United States Court of Appeals,

Ninth Circuit. NELSON, Before GOODWINand Circuit Argued and Submitted Feb. Judges, PRICE,* Judge. District Sept. 16, Decided PRICE, Judge: District This matter comes us before for a second See, Langager time. v. Lake Havasu Community Hospital, Cir.1982). I) (Langager facts, the underlying For reference is prior made to the this case. In I, Langager we not tell could whether the trial court had taken into account the alle- gations plaintiff’s complaint presented a as to factual issue whether the agents defendants or their committed acts 12-564(C)1 proscribed by ARS thus toll- Price, *Honorable agent Edward Dean United States an action where a or an defendant Judge District intentionally Eastern District Califor prevented a defendant has nia, sitting designation. discovery injury of an caused that defend- by concealing misrepresenting ant facts noted, statutory 1. Unless otherwise all referenc- injury, period about of limitations (ARS). es are to the Arizona Revised Statutes injury be tolled date of shall from the 12-564(C) provides: ARS §

Case Details

Case Name: Frank K. Kotarski v. V.L. Cooper, A.E. Navarro, W.J. Tinston, J.H. Kirkpatrick, Naval Air Rework Facility, Capt. P.A. Monroe, in His Official Capacity

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 16, 1986

Citation: 799 F.2d 1342

Docket Number: 84-5673

Court Abbreviation: 9th Cir.