Gerald I. KRAFSUR, United States Administrative Law Judge, Plaintiff-Appellant, v. Michael DAVENPORT, individually and in his capacity as Hearing Office Chief Administrative Law Judge; and Social Security Administration, Defendants-Appellees.
No. 13-5598.
United States Court of Appeals, Sixth Circuit.
Decided and Filed: Dec. 4, 2013.
736 F.3d 1032
Before: SUTTON and KETHLEDGE, Circuit Judges; DOW, District Judge.
We are equally unpersuaded by Volkman‘s sentencing-disparity argument. Four life sentences, one for each
VI.
We AFFIRM Volkman‘s convictions and sentence.
ARGUED: Charlton R. DeVault, Jr., Kingsport, TN, for Appellant. Cecil VanDevender, United States Attorneys Office, Nashville, TN, for Appellees. ON BRIEF: Charlton R. DeVault, Jr., Kingsport, TN, for Appellant. Cecil VanDevender,
Before: SUTTON and KETHLEDGE, Circuit Judges; DOW, District Judge.*
OPINION
SUTTON, Circuit Judge.
Claiming that his employer violated the United States Constitution in disciplining him, a federal employee filed this lawsuit in federal district court. In doing so, he bypassed a system set up by the Civil Service Reform Act for addressing the personnel complaints of federal employees, prompting this question: Is the Act‘s personnel-grievance process exclusive?
I.
Gerald Krafsur, a federal administrative law judge, hears social security disability claims. Among other responsibilities, he decides how much to award successful сlaimants in attorney‘s fees. Judge Krafsur alleges that Michael Davenport, the chief judge in his office, told him that his fee awards were too low. Krafsur‘s refusal to start making higher awards allegedly prompted Davenport to reprimand him, deny him leave and withhold his paychecks. Krafsur complained about Davenport‘s actions to the Office of Special Counsel, an agency that handles grievances from federal employees. Before the Special Counsel could respond, however, Krafsur went to federal district court.
Krafsur claimed in court that Davenport‘s actions violated the First and Fifth Amendments. He sued Davenport under
II.
A.
Before Congress enacted the Civil Service Reform Act in 1978, a jumble of statutes and executive orders governed the resolution of federal employees’ complaints about the workplace. The Act replaced this patchwork with a coherent system of administrative and judicial review. The new system handles all “personnel actions,” a capacious term defined to include appointments, transfers, any “disciplinary or corrective action,” “any ... significant change in duties, responsibilities, or working conditions,” and much else besides.
Generally speaking, the Act divides covered actions into two categories: adverse actions and prohibited personnel practices. See Carducci v. Regan, 714 F.2d 171, 175 (D.C.Cir.1983) (Scalia, J.). Adverse actions are the most serious the government may take against its employees. For administrative law judges, these include removal, suspensiоn, reduction in grade, reduction in pay and some furloughs.
Prohibited personnel practices are less serious than adverse actions. The Act defines this category broadly. It includes violations of “any law, rule, or regulation implementing, or directly concerning, ... merit system principles,”
This description does not begin to capture the Act‘s many intricacies. Anyone who reads through the Act will encounter more types of covered actions and more channels of administrative or judicial review. Even within the category of prohibited personnel practices, the Act makes some exceptions. If an employee alleges discrimination because of race or sex, for example, the Act allows him to bypass the
But this initial sketch of the Act‘s two main tiers suffices for now. Both parties agree that Krafsur‘s target, “disciplinary or corrective action,” fits into the lower tier—prohibited personnel practices governed by the Act.
Krafsur at first tried to follow the trail marked by the Act for filing such complaints by sending a letter to the Office of Special Counsel. But the Special Counsel did not respond. According to the government, Krafsur‘s letter did not comply with the federal regulаtions that establish a formal procedure for lodging complaints. See
B.
Up first is whether Krafsur may bring a Bivens claim against Davenport in federal district court. In Bivens v. Six Unknown Named Agents, 403 U.S. at 390, 91 S.Ct. 1999, the Supreme Court created a federal cause of action against federal officials for certain types of constitutional violations. A Bivens lawsuit arises against the individual officer who violated his rights, not against the government. Thаt explains why Krafsur directs his Bivens claim against Davenport rather than the Social Security Administration.
Bivens actions do not cover every constitutional right and do not apply in every context. See, e.g., Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (no Bivens action for violations of the Takings Clause); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (no Bivens action against private prison operators). If an “alternative, existing process protect[s]” the right sufficiently, the courts must “refrain from providing a new and freestanding remedy.” Robbins, 551 U.S. at 550, 127 S.Ct. 2588. “[E]ven in the absence of an alternative,” moreover, the availability of a Bivens action remains “a subject of judgment: the federal сourts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed ... to any special factors counseling hesitation before authorizing a new kind of federal litigation.” Id. (internal quotation marks omitted).
Consistent with this framework, Bush v. Lucas concluded that courts should not “supplement” the Civil Service Reform Act‘s “comprehensive procedural and substantive provisions ... with a new judicial remedy” for personnel decisions covered by the Act. 462 U.S. 367, 367, 368, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). The Court perceived several “special factors counseling hesitation.” Id. at 378, 103. S.Ct. 2404. It explained that giving federal employees a Bivens remedy risks interfering with “an elaborate remedial system that [Congress] constructed step by step, with careful attention to conflicting policy considerations.” Id. at 388, 103 S.Ct. 2404. And it explained that a separate review track for
Bush disposes of the Bivens action against Davenport. Because the lawsuit concerns a personnel action covered by the Civil Service Reform Act, it must fail.
Krafsur insists that his grievance is different, because the Act gives him more limited remedies than it gave the employee in Bush. But Bush does not turn on whether Congress has provided complete relief, considerable relief or little relief. See Schweiker v. Chilicky, 487 U.S. 412, 425, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). It turns on the special features of the federаl workplace, features that make judicial interference with Congress‘s fine-tuned judgments inappropriate. “In the field of federal employment,” we have accordingly explained, “even if no remedy at all has been provided by the [Act], courts will [still] not create a Bivens remedy.” Jones v. TVA, 948 F.2d 258, 264 (6th Cir.1991).
C.
The Tucker Act and Administrative Procedure Act lawsuits raise a more complex question of statutory interpretation. The Tucker Act waives sovereign immunity in lawsuits seeking damages from the United States for various legal wrongs, including constitutional violations.
The question here is a similar one: Does the Civil Service Reform Act displace Krafsur‘s remedies under the Tucker and Administrative Procedure Acts? As a general rule, the enactment of a new set of remedies does not by itself take away preexisting statutory remediеs for the same wrong. But a federal statute precludes resort to alternative remedies if this result is “fairly discernible in the statutory scheme.” Elgin v. Dep‘t of Treasury, — U.S. —, 132 S.Ct. 2126, 2132, 183 L.Ed.2d 1 (2012); Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994).
Applying this standard, United States v. Fausto concluded that the Civil Service Reform Act establishes the sole track for challenging personnel decisions on statutory grounds. 484 U.S. 439, 455, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). The Act, to be sure, does not say in so many words that it precludes employees from invoking alternative remedies. But the Act establishes a comprehensive, reticulated and precise system of review that accounts for the rank of the employee and the severity of the personnel action. Id. at 448-52, 108 S.Ct. 668. The Act‘s history shows that the Act was designed to replace haphazard arrangements for review of personnel decisions with a unified framework. Id. at 444-45, 108 S.Ct. 668. These considerations gave the Court “ample” grounds for discerning exclusivity in the statutory scheme. Id. at 452, 108 S.Ct. 668.
Applying the same standard, Elgin v. Department of Treasury extended Fausto‘s holding to constitutional claims. 132 S.Ct. at 2134. Elgin explained that nothing in the Act‘s text, structure or purpose distinguishes constitutional from statutory
Fausto and Elgin control today‘s case. The Civil Service Reform Act spells out in painstaking detail the path an employee must follow if he wants to challenge a prohibited personnel practice. And Krafsur concedes that a lawsuit in district court strays from this path. Because exclusivity is fairly discernible in the Act‘s scheme, whether with respect to constitutional or other statutory challenges to personnel decisions, Krafsur‘s lawsuit may not proceed. Cf. Ryon v. O‘Neill, 894 F.2d 199, 204 (6th Cir.1990) (reaching a parallel conclusion with respеct to a statutory challenge to a prohibited personnel practice). Our earlier analysis of the Bivens claim reinforces this conclusion. It would be strange if the Act sent a strong enough message of exclusivity to displace a constitutionally rooted remedy but not to displace remedies created by Congress. In both contexts, “what you get under the [Civil Service Reform Act] is what you get.” Fornaro v. James, 416 F.3d 63, 67 (D.C.Cir.2005) (Roberts, J.).
Krafsur responds that we have gauged the Civil Service Reform Act‘s exclusivity under the wrong standard. He points to a line of cаses, most prominently Webster v. Doe, holding that a court should not interpret a statute to “deny any judicial forum for a colorable constitutional claim” unless Congress‘s “intent to do so [is] clear.” 486 U.S. 592, 603, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988); see also Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003); Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 n. 12, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986); Johnson v. Robison, 415 U.S. 361, 373-74, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). The “heightened standard” established by these decisions requires more clarity than the fair-discernability test we have just applied. Elgin, 132 S.Ct. at 2132.
If Elgin did not apply a heightened standard of clarity, why should we? Krafsur offers an answer. Elgin involved the most severe type of personnel decision, an adverse action. The Act thus granted the employee review before the Merit Systems Protection Board and the Federal Circuit. This guarantee of eventual judicial review made Doe‘s special rule inapplicable. See Elgin, 132 S.Ct. at 2132. This case by contrast involves a less serious type of personnel decision, a prohibited personnel practice, and the Act does not give Krafsur a guaranteed path to court. The Special Counsel might stop him before he gets to the Board; and if he does not get to the Board, he cannot get to the Federal Circuit. Krafsur argues that this roadblock to judicial review, аbsent in Elgin, activates Doe‘s special standard.
Krafsur‘s effort “to carve out an exception” to the Act‘s “exclusivity” for constitutional challenges to prohibited personnel practices,
Doe‘s heightened standard does not govern today‘s case. Each precedent in the Doe series involved a total denial of judicial review for constitutional claims. This case involves only a narrow limit upon judicial review. Krafsur may still take his case to the Federal Circuit, so long as he gets clearance from the Office of Special Counsel.
For the most part, the claims the Special Counsel keeps out do not belong in court anyway. The Special Counsel weeds out frivolous complaints, see
Beyond that, various safeguards attending the Special Counsel procedure diminish the risk of blocking meritorious constitutional challenges. The Special Counsel has every incentive to help wronged employees. The Act makes it his job to expose agency misbehavior and to “protect employees ... from prohibited personnel practices.”
Further still, the requirement that an employee receive the Special Counsel‘s go-ahead before heading to court covers only relatively minor matters. Recall that employees complaining about severe personnel decisions, like removal or demotion, may march straight to the Board and the Federal Circuit.
We doubt whether such a modest clearance requirement, accompanied by such rigorous safeguards and applicable only to relatively minor decisions, would trigger Doe‘s special rule in аny context. We are confident that it does not trigger the rule in the context of government employment. The government has “greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Engquist v. Or. Dep‘t of Agriculture, 553 U.S. 591, 599, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008). And in general “a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency.” Id. at 600, 128 S.Ct. 2146. These principles do not mean that the government workplace is a Constitution-free zone. But they dо mean that many constitutional imperatives apply with less force when the government acts as employer. See, e.g., NASA v. Nelson, — U.S. —, 131 S.Ct. 746, 178 L.Ed.2d 667 (2011) (substantive due process); Borough of Duryea v. Guarnieri, — U.S. —, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011) (right to petition); Engquist, 553 U.S. 591, 128 S.Ct. 2146 (equal protection); Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (freedom of speech); O‘Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (freedom from unreasonable searches). In the same way, the government‘s needs as employer do not suspend the requirement that Congress speak clearly before foreclosing all judicial review of constitutional challenges. See Doe, 486 U.S. at 603, 108 S.Ct. 2047. But they argue against giving this requirement a
Even under Doe‘s heightened standard of clarity, Krafsur‘s efforts to sidestep the Act‘s remedial regime would still fall short. The Act leaves no doubt that an employee who believes that a prohibited personnel practice has occurred must take his complaint to the Special Counsel, not a district court, even if he contends that the practice violates the Constitution.
The text of
The text of
Allowing employees like Krafsur to jump straight to district court also would overturn a central elеment of the Act‘s architecture: the harsher the action, the greater the employee‘s entitlement to review. See supra at 1034-35; see also Kloeckner v. Solis, — U.S. —, 133 S.Ct. 596, 600, 184 L.Ed.2d 433 (2012) (“The Civil Service Reform Act ... provides graduated procedural protections depending on an action‘s severity.“). Under Elgin, employees facing more severe decisions (adverse actions) must go through the Board before bringing their constitutional challenge in court. Under Krafsur‘s theory, however, employees facing less severe decisions (prоhibited practices) would enjoy “the luxury of immediate judicial review, without any resort to the administrative process,” Carducci, 714 F.2d at 174-75. Put concretely, an administrative law judge would have more extensive remedies for a reprimand than for a dismissal, more for a temporary reassignment than for a permanent demotion, more for a denial of leave than for a suspension.
Treating the Act‘s remedial scheme as non-exclusive also would subvert the Act‘s objectives. One aim of the Act is to prevent “parallel litigation.” Elgin, 132 S.Ct. at 2135. Krafsur‘s theory, however, would
The Act serves another purpose: ensuring that federal workplaces across the country follow a uniform body of law developed by the Federal Circuit.
Far from coming up on rare occasions, these problems likely would arise frequently. Constitutional claims, especially equal protection and due process challenges, “are part of the ordinary fodder of review” in federal employment disputes. See Elgin v. Dep‘t of Treasury, 641 F.3d 6, 12 (1st Cir.2011) (Boudin, J.).
Krafsur‘s interpretation of the Act would in short make a muddle of its text, a shambles of its structure and a lost cause of its purpose. That is a clear enough indication of statutory meaning to overcome any barrier set up by Doe.
Krafsur persists that Doe requires more clarity still. But unlike say Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (involving restriction of a State‘s core sovereign powers), or Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (involving elimination of a State‘s immunity from suit), Doe does not establish an express-statement requirement. An early decision in the Doe sequence, Johnson v. Robison, proves the рoint. The Court observed that “no explicit provision [in the relevant statute] bars judicial consideration of [Robison‘s] constitutional claims.” 415 U.S. at 367, 94 S.Ct. 1160. If Doe‘s heightened standard were an express-statement rule, the Court would have stopped there. Cf. Dellmuth v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989) (“[Under Atascadero], evidence of congressional intent must be both unequivocal and textual.... Legislative history generally will be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment.“). But it did not. The Court went on to consult statutory purpose, legislative history and administrative рractice before pronouncing the law insufficiently clear to prohibit constitutional review. Robison, 415 U.S. at 367-74, 94 S.Ct. 1160.
III.
For these reasons, we affirm.
JEFFREY S. SUTTON
UNITED STATES CIRCUIT JUDGE
UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.
United States Court of Appeals, Sixth Circuit.
Dec. 6, 2013.
Before: KEITH, COLE, and ROGERS, Circuit Judges.
ORDER
Appellant‘s motion to dismiss the appeal is GRANTED. Appellant‘s motion was made and is granted during the pendency of a timely petition by the appellee to rehear en banc this court‘s judgment filed on August 27, 2013.
PATRIOTIC VETERANS, INC., Plaintiff-Appellee, v. State of INDIANA, et al., Defendants-Appellants.
No. 11-3265.
United States Court of Appeals, Seventh Circuit.
Decided Nov. 21, 2013.