Miller v. U.S. Department of Agriculture Farm Services Agency
143 F.3d 1413
11th Cir.
1998
Check Treatment

*1 MILLER, Plaintiff-Appellant, George OF AGRICULTURE DEPARTMENT

U.S. AGENCY, USDA, FARM SERVICES General, al., Inspector et De Office of

fendants-Appellees.

No. 97-6575. Appeals, Court of

Eleventh Circuit.

June 1998. Falkville, AL, Miller,

George pro se. Privett, Caryl Acting Atty., P. U.S. John Bell, AL, Atty., Birmingham, C. Asst. U.S. Defendants-Appellees. BIRCH, Before Circuit ANDERSON COHILL*, Judges, and District Senior Judge.

BIRCH, Judge: appeal, determine, In this we as matter impression, employ- former of first whether a ee of a office the United States Agriculture Department of Stabilization and (“ASCS”) Conservation Service government Bivens the federal responsible for his officers termination.1 On summary judgment, the court ruled district pre- remedies that alternate administrative plaintiff-appellant maintaining a cluded Bivens suit. We affirm.

* Cohill, Agents B. Bivens v. Unknown Named Honorable Maurice Senior District Six Narcotics, Pennsylvania, Judge for the Western Federal Bureau District (1971) sitting designation. 29 L.Ed.2d 619

1414 Miller, however, the Alabama Committee’s BACKGROUND

I. by concern about was motivated decision (“the Agriculture Secre of The by rather alleged improper behavior but his “representa of three levels tary”) oversees Republican punish him for his to a desire assisting the charged with tive” committees party affiliation. Agriculture Department of (“USDA”) carrying programs. its farm in out removal, requested a hear- Miller After his 590h(b). apex At of this § the See 16 U.S.C. Administrator, pursu- Deputy ing before the structure, super Deputy the Administrator §§ 7.31. As autho- to 7 7.30 and ant C.F.R. composed of farmers state committees vises 7.32, designee § by 7 a rized C.F.R. by Secretary. 16 appointed U.S.C. two-day a hear- Deputy Administrator held 590h(b); § com § 7 7.4. These state C.F.R. Deputy Ad- ing report to the and issued carrying out the “responsible for mittees are recommending Miller’s termi- ministrator program, pro agriculture conservation Deputy Miller maintains that nation. pro adjustment price support and duction subsequent adoption of the Administrator’s marketing acreage and grams, the allotment deprivation of constituted recommendation quota programs, the wool and mohair incen im- alleges further process. Miller due any pro other program, and payment tive inspired Deputy Adminis- motives proper Secretary.” assigned by gram function or of Miller’s dismissal. trator’s confirmation § commit 7.20. these state 7 C.F.R. Under 26,1996, pro February Miller filed suit On tees, actually im committees elected variety against a of se in the district court programs. 16 plement ASCS’s 590h(b); 7.4, agencies, alleging §§ Fi viola- § 7 7.21. federal officials and C.F.R. U.S.C. nally, right committees are below these of his First Amendment of free tions liai local committees that serve as elected right speech and his Fifth Amendment of farmers and the state and sons between initially process. Although Miller due 590h(b); committees. See 16 U.S.C. §§ 42 sought relief under U.S.C. 1983 and 7.4, 7.9, By regulation, §§ 7 C.F.R. 7.22. 1985(3), subsequently con- district employees of the and local ASCS asserting un- complaint strued the as claims committees are hired and serve Bivens, since all of the defendants were der pleasure of these committees. See C.F.R. agencies April or officials. On 7.28, result, §§ 7.29. As a such workers are defendants-appellees (“Appellees”) employees” purposes not “federal dismiss, alia, ground moved to inter on the (“CSRA”) (codified Act Civil Service Reform Procedure Act the Administrative U.S.C.) of and so various sections (“APA”), §§ provides an See, protections. not avail themselves of its remedy improper terminations exclusive e.g., Department Agriculture, Hedman v. of 28, 1997, May of workers. On ASCS (Fed.Cir.1990) (citing 5 915 F.2d 1552 agreed that Miller’s the district court 2105(a)). precluded review under the APA 1983, plaintiff-appellant, George In June action, him from a Bivens and the Miller, appointment received an from the W. his court therefore dismissed suit. County, Madison Alabama ASCS Committee Committee”) (“the as its Mobile to serve II. DISCUSSION (“CED”). County Executive Director See 16 appeal, On Miller renews his conten 590h(b)(5)(E); C.F.R. bring that he tion is entitled 7.21(b)(2). later, years Eléven March against Appellees damages. 1994, the Alabama State ASCS Committee assessing a motion to dismiss under Federal Committee”) (“the hearing to Alabama held a 12(b)(6), Rule of Procedure a court must Civil removing position consider from his accept complaint all of the facts as charges because that he had violated true, granting appears the motion if it upon receipt policies of information beyond plaintiff prove doubt that the no activity. Immediately possible criminal him set of facts that would entitle to relief. following hearing, the Alabama Commit- Joseph’s Hosp. Hospital Corp. See St. tee voted to terminate Miller’s (11th Am., Cir.1986). According pursuant to 7 C.F.R. 7.28. We language through or specific to that effect court’s decision to dismiss district review the remedy), de novo. See McKusick Miller’s claims of an exclusive establishment Melbourne, City “special any factors” counsel hesi- whether Cir.1996). aggrieved extending tation in Bivens to allow suits workers *3 Bivens, Supreme the Court held In money damages. for superiors their victims of Fourth Amendment violations that bring suit for by federal officers could Although presented Miller has us with an damages though even no in federal court court, impression for this we do issue of first expressly authorized such re federal statute entirely on an blank slate. Two not write Bivens, 397, 403 at 91 S.Ct. at lief. See U.S. Circuits, Ninth, Eight the and the have al subsequently the Although 2005. Court al ready explored staf whether ASCS actions for violations of other lowed Bivens bring against actions fers Bivens rights, recently it has constitutional more allegedly who violated their constitu officers cautiously suggestions that “responded to Bi Krueger Lyng, 927 rights. tional See v. F.2d be extended into new con vens remedies (8th Glickman, 1991); v. 1050 Moore 113 Cir. 412, Chilicky, v. 487 U.S. texts.” Schweiker (9th Cir.1997). panel In a Krueger, F.3d 988 2460, 2467, 421, 101 108 L.Ed.2d 370 S.Ct. Eighth the found an absence of (1988). empha particular, the Court has In explicit congressional preclusion either or Congress position in a sized that is better Krueger, “special factors.” at See 927 F.2d weigh competing poli to the than the combs court, Krueger In the 1054-57. view in cy imperatives involved the creation of remedy by administrative made available the aggrieved employees. See remedies to the terminated .ASCS Lucas, 367, 389, 462 103 S.Ct. Bush id. 1056. workers is “hollow.” See at More 2404, (1983). 2417, 76 L.Ed.2d 648 Because over, Krueger the court believed “it is vantage Congress may point, of its better general enabling language clear that Bivens-type constitutional action preclude a 590h(b) be used 16 U.S.C. cannot read by creating by express or an declaration Congress provide by an to a to evince intent statutory remedy. Chilicky, exclusive (and desirable) 421, 2467; Lucas, separate remedial at less 487 U.S. at 108 S.Ct. 377-78, at Addi employees.” 103 2411. 462 U.S. at office scheme for ASCS S.Ct. tionally, may “special Therefore, factors” foreclose the Krueger at court Id. 1055. “in bringing of a Bivens action even Congress saw no indication that intended by Congress.” affirmative action absence of meager remedy Krueger's be exclu “this to 421, Chilicky, 108 at U.S. at 2466 487 S.Ct. Moreover, remedy.” sive Id. at 1056. be Lucas, (internal omitted); marks quotation [from “exclusion cause ASCS staffers’ 377, 2411; Bivens, at 462 U.S. at solely is the result of Secre CSRA] at 2005. As the 403 U.S. at 91 S.Ct. tary’s sponte a ‘nontradi decision use sua Chilicky: explained in Court method,” Krueger hiring tional’ concept “special factors counsel- TTJhe lack of a concluded that such workers’ CSRA ling absence of affirmative hesitation by remedy an “inadvertent omission” reflects proved Congress” has include Thus, Congress. Krueger court held Id. to indica- appropriate deference employees could suit that ASCS congressional has inaction tions that damages federal officials Bivens design of a When the been inadvertent. at in their See id. involved terminations. suggests program that Con- Government 1057. it ade- gress provided what considers has Moore, however, panel a of the Ninth quate for constitu- remedial mechanisms unpersuasive. Unlike Krueger Circuit found occur tional violations that administration, court, Krueger believed the Moore court we have not course of its ample Congress created additional Bivens remedies. it had evidence not unique staffers’ is aware of ASCS Thus, at 108 S.Ct. 2468. 487 U.S. at Congress has also that chosen status but bring Bivens ac- allowing Miller to a before give only selective such workers tion, Congress we must determine whether Moore, Specifi- rights. F.3d (through expressly precluded such suit has split Congress Having carefully studied this be court noted that cally, the Moore circuits, Moore’s ASCS workers: tween our sister we find granted has reasoning persuasive and more to be more pay, 5 to severance entitlement precedents. As a federal 5595(a)(2)(B); consistent with our participation in the Civil CSRA, protections System, 5 worker outside Retirement Service 8331(1)(F); judi group already statutory right in- eligibility life has 8701(a)(8); See, surance, eligi- Young 5 U.S.C. cial review under the APA. benefits, States, bility insurance for health United 8901(1)(G). Nimmo, Former coun- 1974);3 see also Franks v. have civil ty employees (10th Cir.1986); who later taken Heaney v. 1239-40 governed by positions the CSRA Admin., service F.2d United Veterans States service, for their receive credit (5th Cir.1985). *4 1215, Because the 1219-22 3502(a)(4)(C)(i), § and for their Deputy rejection Miller’s Administrator’s of transfer, rights leave and to annual order, may bring appeal constitutes a final he 6312(a)(1). Franks, for suit federal court relief. See that, 1239-40; Further, the Moore court observed F.2d at 702. Al Id. 5 U.S.C. Congress po wished to confer though pay when has CSRA the reinstatement and back staffers, county “employee on status” ASCS tentially available to under the APA Miller terms, by express it has done so as its remedy, complete not constitute a would inclusion of such workers in the Civil Service require Congress does not Constitution System. (citing Retirement See id. 5 U.S.C. provide comprehensive relief for violations of 8331(1)(F)). Finally, the Moore court ex- employees’ rights. federal constitutional that, plained Congress when restructured the Chilicky, 487 at at 1994, Department Agriculture explic- of it itly recognized “non-employee” status of precedents, our circuit’s Under 992-93; county ASCS workers. See id. judicial right existence of a review under 6932(e)(1) (“In implementation is, alone, preclude the APA sufficient to programs assigned of and activities to the employee bringing from a Bivens ac Agency, Farm Consolidated Service the Sec- Malcom, tion. See Gleason 718 F.2d retary may interchangeably use in local of- (11th Cir.1983) curiam); (per Grier v. Agency employees fices of the both Federal Army, 725 n. 3 Department employ- of the and non-Federal (11th Cir.1986).4 evidence, The.ample dis county ees of and area committees estab- above, Congress only cussed that has not 8(b)(5) lished under section Soil Con- recognized unique staffers’ sta ASCS Act....”). servation Domestic Allotment (i.e., they protections tus that are outside the conjunction congres- In with this evidence of CSRA) grant but has also acted to regarding sional “advertence” status only such workers selective staff, ASCS Moore also only rights, strengthens necessary con recognized Congress already that has creat- precedents clusion under our circuit’s that statutory remedy ed a for work- non-CSRA judicially-created Miller not seek dam through provision ers its in the APA for ages remedy rights for violations of his dur judicial agency review of final orders. See ing sum, Moore, the course of his 994; termination. 113 F.3d at 5 U.S.C. 702.2 Therefore, Congress we hold that has not “inad the Moore court concluded that been providing vertent” in statutory right Miller with workers’ under incomplete remedy precluded the APA them under the APA from Bi- and that Moore, vens actions. remedy precludes 113 F.3d at 995. this alternative Prichard, 2.Curiously, Krueger City court did not discuss the 3. See Bonner v. 1981) (erabanc) (adopting possibility aggrieved bind that an staffer as ing precedent all decisions of the former Fifth might judicial have a review under 1, 1981). prior Circuit handed down to October Krueger, (stating APA.See 927 F.2d at 1053 "[tjhere provision any is no sort of regret Appellees 4. We that .neither Miller nor workers). review” for ASCS have chosen to cite these instructive cases from our circuit in their submissions to this court. bringing a Bivens action against Appellees in federal court. damages

III. CONCLUSION pursue a Bivens action

Miller seeks allegedly have who

against federal officers rights in terminat

violated constitutional position as CED for the

ing him from his only remedy that

Mobile Committee. The wrongs

Congress provided Miller has sped1 have is that he claims to suffered however, Congress, § 702 the APA. fied in CSRA-protectéd sta to confer

has failed through workers over

tus on ASCS inadvertence; Congress recog

sight or has position and has unique

nized such staffers’ employment rights them

specifically granted Therefore,, appropriate. we thought it has

as *5 review

hold that Miller’s precludes him from

under APA concerning his termination

a Bivens position as CED for Mobile Committee, AFFIRM the decision and we district court.

ANDERSON, Judge, concurring

specially: agree precedents- I that our

I concur. in this the result reached case. See

indicate Army, 799 F.2d 721 v. Grier (11th Cir.1986); Army Dynes Air Force Service,

Exchange F.2d Malcom,

1983); Gleason v. F.2d

(11th Cir.1983). America,

UNITED STATES of

Plaintiff-Appellee, JONES, Defendant-Appellant.

Randy

No. 95-8680

Non-Argument Calendar. Appeals, Court of

Eleventh Circuit. 17, 1998.

June