Neely v. BlumenthalNeely v. Blumenthal
OPINION
The question presented in this case, a federal employment discrimination suit raising related Title VII and constitutionally-based damage claims, is the scope of the exclusivity rule laid down in
Brown v. General Services Administration,
1. Background Facts.
The particulars of this controversy, as alleged,
1
are straightforward. A sketch of the material allegations contained in plaintiff’s complaint reveals that beginning in 1968 plaintiff took a, position as a security guard with the Bureau of Engraving and Printing (the Bureau), a unit of the Department of the Treasury. Plaintiff continued working for the Bureau as a GS-4 and later as a GS-5 level security officer until the agency removed him for cause effective July 20, 1971.
2
The stated reason for the
Plaintiff in his complaint, however, paints a far different picture of his job performance and the reasons why the agency removed him. Commencing in early 1969, plaintiff alleges, he became aware that the Bureau was failing to provide agency employees with equal employment opportunities irrespective of their race. Plaintiff perceived that blacks held an inordinately small number of the higher grade jobs within the various departments of the Bureau. This was so even though the great majority of Bureau workers were black.
Along the same lines, plaintiff became aware that just as blacks held a disproportionately small number of the upper level posts, black employees enjoyed disproportionately fewer of the employment-related benefits and privileges that accompanied higher grade employment at the agency. In addition, plaintiff perceived that the structure and operation of the Bureau’s Equal Employment Opportunity (EEO) program did not fairly advance the interests of black workers because interested members of the agency’s Employees’ Committees lacked a meaningful voice in EEO affairs.
Moved by these concerns, plaintiff avers, he assumed the role of an advocate in order to instigate changes in the Bureau’s operations aimed at improving the opportunities available to fellow employees in the lower grades who, it is claimed, were predominantly black. Plaintiff’s methods were blunt and to the point. Regarding the preferential assignment of parking privileges, plaintiff confronted the management of the agency with proposals to reform the existing policy for distributing parking spaces. When these efforts proved to be unavailing, plaintiff decided to test the policy directly by breaching parking rules with an apparent view towards finding out if the rules were valid. The agency responded by reprimanding plaintiff for violation of applicable parking regulations. Plaintiff claims that this response constituted a reprisal against him.
Similarly, regarding inadequacies in the operation of the EEO program, plaintiff confronted Bureau authorities with suggestions designed to spur changes in prevailing EEO policy. On one occasion, plaintiff spoke up at an EEO meeting to express his ideas on the issue but was met with opposition by some of the EEO officers in attendance. This opposition led to what was apparently a rancorous exchange among plaintiff and the Bureau officials because the agency later cited him for misconduct as a result of his behavior. Plaintiff claims that this reprimand was unwarranted.
At another EEO meeting, plaintiff attempted to convince an attending officer of perceived deficiencies in the EEO program. The circumstances behind this discussion, too, were apparently of a character that the agency found objectionable because the Bureau subsequently relied on the exchange as one of the grounds for plaintiff’s termination. Plaintiff claims that his conduct was at all times undertaken in good faith.
On numerous other occasions, plaintiff came into conflict with his superiors over unspecified matters. Plaintiff conceived these disputes to be harassment and discrimination. He did not, however, attempt to redress his grievances by petitioning the wrongdoers as agency policy required. Instead, he took his concerns directly to his supervisors’ superior who, over plaintiff’s objections, decided to air the matter by holding a meeting with all concerned parties in attendance. Plaintiff then refused to participate on that basis because he felt he could not express his grievances to Bureau officials in the presence of his immediate supervisors. The agency later advanced this refusal in support of plaintiff’s termination.
Plaintiff contested his termination as racially tainted. After unsuccessfully pursuing available avenues of relief within the agency and Civil Service Commission, plaintiff brought his challenge to court. Count I of plaintiff’s complaint alleges violations of rights of advocacy guaranteed by Title VII of the Amended Civil Rights Act of 1964,
Count II of plaintiff’s complaint similarly alleges infringement of rights of advocacy secured to plaintiff. Like Count I, Count II challenges the disciplinary action taken against plaintiff as unlawfully punishing protected conduct on behalf of fellow minority employees. But unlike plaintiff’s first count, which is based on a statutory anti-discrimination provision that has been construed to protect advocacy in the employment context, plaintiff’s second charge is founded on the more primary protections of free speech afforded by the first amendment to the Constitution. And unlike Count I, Count II names in their individual capacities 3 two agency officers who played a part in plaintiff’s removal and seeks to recover money damages from them based on a Bivens theory.
Defendants have moved for an order dismissing plaintiff’s constitutionally-based damage claim. Defendants’ principal line of attack is the exclusivity rule established in
Brown v. General Services Administration,
Defendants read Brown expansively. Implicit in their motion is the contention that Brown not only preempts non-Title VII avenues of relief against the federal government (official remedies), but also forecloses remedies available against individual officers (individual remedies) of the kind sought by plaintiff here in Count II of his complaint. Defendants’ position seems to be that if an employment practice is susceptible to being challenged as discriminatory under Title VII, it can only be challenged under Title VII and on no other basis regardless of the theory underlying the alternative claim and irrespective of the kinds of remedies being sought. An appraisal of the merits of this argument requires a close reading of the Brown decision with special attention to the rationale developed by the Court to shape its exclusivity rule.
The judicial remedies available to federal employees under Title VII to redress employment discrimination are encompassing. Section 706(g) of the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 259,
In the private sector, the omission of a damage remedy from Title VII is of no great consequence. This is because in the context of private employment Title VII poses no obstacle to suits based on other anti-discrimination provisions. As stated by the Supreme Court in
Johnson v. Railway Express Agency,
But the same rule does not hold true for federal employees. In contrast to their counterparts in other sectors, individuals employed by federal agencies enjoy only the injunctive remedies afforded by Title VII to bring to bear against the federal government. The controlling precedent is the
Brown
decision. In
Brown,
the extension of Title VII remedies to federal employees brought about by the Equal Employment Opportunity Act of 1972 was held to preempt all other statutory bases for seeking relief against the federal establishment.
Id.
at 835,
Under
Brown,
then, either the aggrieved employee complies with the procedural requirements necessary to invoke Title VII, or he is without any avenue of
This disparity in remedies available to federal and private sector employees has not gone unchallenged, however. The absence of a damage remedy against the federal government has led aggrieved federal workers to pursue damage actions directly against the discriminating officials in their individual capacities. Numerous theories have been invoked to support this method of proceeding. One derives from
None of these theories, however, has fared well with the courts. In
Stith,
plaintiffs
The results reached in Stith, Dual and Carter are understandable and make eminently good sense. There is little reason to stretch marginally applicable statutory, common law and constitutional theories of individual recovery to cover discrimination in federal employment when Title VII furnishes an explicit method of redress against the federal government. This is especially so when consideration is given to the fact that the broad array of injunctive remedies provided in Title VII is in all but exceptional cases adequate to make aggrieved parties whole. Also worthy of attention in this regard is the fact that in federal sector employment Title VII prefaces resort to the courts with specific administrative procedures that could be deliberately bypassed if suits for damages against individual officers were sanctioned based on grounds independent of Title VII. 10
But no matter how sensible the results in Stith, Dual and Carter are regarding the exclusivity of Title VII remedies, these decisions are not controlled by the holding in Brown. The reason is that Brown did not address the question of Title VII’s preemptive effect on discrimination suits brought against individual officers for damages. This point is confirmed by a review of both the facts and the reasoning developed in the Brown case. A review of the facts in Brown reveals that plaintiff, in contrast to the complainants in Stith, Dual, Carter and the case at bar, did not attempt to redress his claim of discrimination through a damage action directed at the discriminating officials in their individual capacities. Instead, he directed his complaint at his agency and employing officers in their official capacities, seeking official remedies consisting of “a promotion to Communications Assistant, GS-9, a supervisory position, and appropriate back pay.” 11 Brown therefore does not settle the point that Title VII preempts individual damage actions because the issue was never presented. 12
The confines of
Brown’s
exclusivity holding are also delineated by the analysis developed in
Brown. Brown
was decided on the basis of the sovereign immunity doctrine, a doctrine that curtails the ability of claimants to obtain official relief
against the federal government,
including relief taking the form of retroactive promotion and back pay. As the Eighth Circuit stated
A suit against an officer of the United States is one against the United States itself ‘if the decree would operate against’ the sovereign, Hawaii v. Gordon,373 U.S. 57 , 58,83 S.Ct. 1052 , 1053,10 L.Ed.2d 191 (1963); or if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration’, Land v. Dollar,330 U.S. 731 , 738,67 S.Ct. 1009 ,91 L.Ed. 1209 (1947); or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act’, Larson v. Domestic & Foreign Commerce Corporation,337 U.S. 682 , 704,69 S.Ct. 1457 , 1468,93 L.Ed. 1628 (1949).
Citing
Gnotta,
the Second Circuit in
Brown
found that plaintiff’s “demands for promotion and back pay fall within the scope of this immunity as they necessarily involve expenditures from the Treasury and compel the exercise of administrative discretion in an official personnel area.”
Brown v. General Services Administration,
On appeal, the Supreme Court similarly analyzed the question of preemption in terms of the sovereign immunity doctrine. Looking to the relevant legislative history to discern legislative intent, the Court found that the Congress that passed the 1972 Amendments to Title VII was acting with the understanding that the Amendments “would ‘[f]or the first time, permit the Federal employees to sue
the Federal Government
in discrimination cases.’ ”
Brown, supra,
The import of the sovereign immunity element in the
Brown
rationale is not difficult to understand. Sovereign immunity serves to protect the federal government from unconsented suits that go to invading the public treasury and mandating governmental action.
See Gnotta, supra,
Indeed, just the opposite appears to be the law. The Federal Tort Claims Act,
Taking the Federal Tort Claims Act as a model, it emerges that waivers of sovereign immunity do not in and of themselves affect preexisting remedies available against individual officials. This is so even though the waivers embody exclusivity principles. Only when the waivers reflect an explicit intent to extinguish parallel remedies is the potential for individual liability diminished. Since nothing in Title VII reveals an intent to disturb avenues of
III. No Bivens Action Need be Implied.
This conclusion regarding the limits of Brown does not, however, settle the question of plaintiff’s ability to proceed against his alleged discriminators. Plaintiff bases his complaint on a Bivens theory that a cause of action for money damages to redress discriminatory treatment arises directly under the Constitution. Contrary to plaintiff’s suggestion, this assertion is far from a foregone conclusion. Indeed, as will appear more fully below, the implication of a damage remedy to redress conduct actionable under Title VII and to indicate interests already protected by the amended Civil Rights Act is doubtful as a matter of policy and unsupported by the case law.
(1)
Analysis begins with an inquiry into the doctrine of implication depicted in
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
Defendant officers sought to sustain the dismissal of plaintiff’s complaint on the grounds that, where Congress has not expressly authorized a remedy to redress privacy violations by federal officers, individuals in plaintiff’s position should be limited “to redresspng] invasion of these rights only by an action in tort, under state law, in the state courts.”
Bivens, supra,
Bivens
rejected this line of argument for three principal reasons. The first and foremost of these was that the range of conduct outlawed by the fourth amendment differed materially from the kinds of activities forbidden under the various state trespass laws. As the Court stressed: “Our cases have long since rejected the notion that the Fourth Amendment proscribes only such conduct as would, if engaged in by private persons, be condemned by state law.”
Id.
at 392,
In a like vein, a second reason for rejecting defendants’ position stemmed from the fact that the fourth amendment safeguards interests that differ from what state laws protect. “The interests protected by state laws regulating trespass and the invasion of privacy, and those protected by the Fourth Amendment’s guarantee against unreasonable searches and seizures, may be inconsistent or even hostile.”
Id.
at 894,
A final reason for overcoming defendants’ objections to the implication of damage actions for fourth amendment violations was the appropriateness and necessity of allowing the traditional remedy of damages as compensation for personal injuries occasioned by “an invasion of personal interests.”
Id.
Citing
J. I. Case Co. v. Borak,
The necessity for granting plaintiff a damage remedy was also apparent. As Justice Harlan made clear in his concurring opinion:
it is apparent that some form of damages is the only possible remedy for someone in Bivens’ alleged position. It will be a rare case indeed in which an individual in Bivens’ position will be able to obviate the harm by securing injunctive relief from any court. However desirable a direct remedy against the Government might be as a substitute for individual official liability, the sovereign still remains immune to suit. Finally, assuming Bivens’ innocence of the crime charged, the ‘exclusionary rule’ is simply irrelevant. For people in Bivens’ shoes, it is damages or nothing.
(2)
None of the considerations that guided the result in
Bivens
are present in the instant case, however. Unlike in
Bivens,
the plaintiff in this case will not be relegated to pursuing claims based on hostile state law theories if no constitutional damage action is implied allowing him to redress the alleged invasion of his rights of advocacy. Plaintiff’s right to speak out against discriminatory practices carried on by his employers is fully vindicated by Title VII. The language of the Act expressly prohibits employers from taking adverse action against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter . . .
Similarly, contrary to the situation faced by plaintiff in
Bivens,
the plaintiff in this case does not run the risk of being unable to safeguard constitutionally protected interests in free expression if no damage action is implied in his favor. To the extent that Title VII protects employees against reprisals based on their advocacy in support of minority rights, the statute serves as a more than adequate vehicle for vindicating first amendment interests.
Compare Mahone v. Waddle,
Nor is there any apparent necessity for implying a damage remedy in plaintiff’s favor in the present case. By contrast to
Bivens,
where plaintiff was confronted with the prospect of recovering “damages or nothing,”
The relief afforded by Title VII, including the monetary back pay component, is of course directed at the government and not the alleged individual discriminators. But plaintiff has no right to insist that his recovery come out of the pocketbooks of his superiors rather than out of governmental funds. While the imposition of individual liability can be justified on “the deterrent effect liability will have on federal official conduct,”
id.
at 408,
In short, a comparison of
Bivens
and the instant case reveals no reason in fact or logic for implying a constitutionally-based damage remedy against the individual officers named as defendants in plaintiff’s complaint.
Bivens,
however, is only the starting point for analysis. “Numerous jurisdictions have apparently concluded that Bivens establishe[s] a cause of action for damages arising from the violation of any constitutional right by a federal official.”
Briggs v. Goodwin,
(3)
Since
Bivens,
the Supreme Court has neither extended nor amplified on its original
In the Fourth Circuit,
States Marine Line, Inc. v. Schultz,
A review of the Seventh Circuit’s decisions indicates one case,
Fitzgerald v. Porter Memorial Hospital,
The Eighth Circuit upheld jurisdiction to hear a claim based on the sixth amendment right to effective assistance of counsel in
Wounded Knee Legal Defense/Offense Committee v. F.B.I.,
Unlike in the Ninth Circuit, the decisions of the District of Columbia Circuit have intimated no suggestion that
Bivens
extends beyond the fourth amendment to cover the full roster of constitutional protections. While this Circuit has indicated a willingness to
consider
broader applications
These factors were recently applied in
Dellums v. Powell,
This conclusion regarding the application of
Bivens
to the first amendment area is by no means surprising given the sharp parallels that can be drawn between
Dellums
and
Bivens.
As in
Bivens,
the
Dellums
case presented violations of “ ‘basic constitutional rights in their most pristine and classic form.’”
Id.
at 302,
This, however, is decidedly not the situation presented in the case at bar. A
In addition, by contrast to Bivens and Dellums, the plaintiff in the instant case will not be remitted to pursuing inadequate state law remedies if no damage action is implied in his favor. Title VII fully protects his asserted interest in advocating changes in his agency’s employment practices to benefit fellow minority workers. See, e. g., Stith, supra. Nor will the plaintiff in the present case be confronted with a damage or nothing situation if his constitutional damage claim is disallowed. Unlike in Bivens and Dellums, plaintiff’s injuries are primarily economic injuries that can be readily remedied through the issuance of back pay and reinstatement orders under Title VII.
In short, what emerges is that even though Dellums implied a damage action for the violation of first amendment rights, there is nothing in the facts or rationale of that decision, or in those of Bivens itself for that matter, that justifies taking the same step in the suit at bar. Merely because this case involves claims based on the same amendment that was involved in Dellums is no warrant for reaching an identical result. There must be a persuasive reason for a court to imply a remedy not authorized by Congress and in this instance, in light of the availability, and efficacy, of Title VII’s comprehensive remedies, that reason is lacking. Were this a case where plaintiff’s first amendment claims were unrelated to his Title VII claims in the sense that different conduct was being challenged and different interests asserted, a different result might well obtain. Such a case might arise if an employee claimed he had been penalized both because of his race, or sex, or national origin and because of his advocacy on subjects unrelated to minority rights. Similarly, a different result might obtain were this a case where, because of the predominantly' personal, non-economic nature of plaintiff’s injuries, Title VII remedies were likely to be ineffective in redressing plaintiff’s protected rights of advocacy. Such, however, is not the case here. Where, as in this case, plaintiff’s first amendment claim challenges conduct outlawed by Title VII and attempts to vindicate rights of expression also protected by the statute, and where, as here, Title VII’s remedial measures promise to be effective in redressing the asserted wrongs, there is simply no sound reason for treating the claims separately by implying a damage cause of action not authorized by Congress.
IV. Conclusion and Disposition.
For these reasons, the Court is of the opinion that while the Supreme Court’s decision in the Brown case provides no basis for extinguishing claims brought by federal employees against supervising officers in their individual capacities, neither does the Bivens decision afford a warrant for implying damage liability where Title VII applies. An order dismissing plaintiff’s first amendment claims will be issued of even date herewith.
Notes
. As is customary on motions to dismiss for failure to state cognizable claims, the well-pleaded allegations in plaintiffs complaint are accepted as true. Any embellishment of plaintiffs allegations is inadvertent and due to the fact this case has already reached the final stages of discovery and the factual record is well developed.
. Just prior to his termination, plaintiff brought suit against his employer in an attempt to enjoin the agency from removing him. The gist of this application was that the Bureau failed to conform to due process standards by denying plaintiff a formal pre-termination hearing. The District Court denied plaintiff preliminary relief and, on appeal, the denial of plaintiffs applica
. These defendants, James A. Conlon and Eth-eridge Kent, are also named in their official capacity insofar as plaintiff seeks injunctive relief directed at them. Conlon is the Director of the Bureau and as such has overall responsibility for the agency’s operations, including decisions to terminate employees. Kent is Chief of the Bureau’s Office of Security where plaintiff worked until he was discharged. The role played by Kent in plaintiff’s removal was that he prepared the specifications of misconduct that provided the basis for plaintiff’s being fired.
.
See, e. g., Loo v. Gerarge,
. This is so at least where racial discrimination is at issue. There is, however, a growing body of law to the effect that 1981 proscribes discrimination on grounds other than race.
.
See, e. g., Caperci v. Huntoon,
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
.
(1) If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from . holding any office, . . . under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed . . . ;
(3) If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
. See also Dual v. Roudebush, No. 76-0005 (D.D.C., filed Feb. 9, 1977) (unpublished opinion) (denying plaintiff leave to file amended complaint adding more explicit claims of intentional infliction of emotional distress).
. In dismissing plaintiff’s constitutionally-based claims, Carter distinguished Harney v. Secretary of HEW, No. 76-812-A (E.D.Va., filed Aug. 13, 1977). That case presented first and fifth amendment claims that were not covered by Title VII, so they could not be preempted by Brown’s preclusion rule. See also Marynow-ych v. Boorstin, No. 76-1480 (D.D.C., filed Feb. 8, 1977) (suggesting validity of first amendment claim for damages to vindicate interests not protected by Title VII).
. In addition, it should be noted that if Title VII claimants were permitted to join Title VII and constitutional tort claims in a single action, a number of problems would inevitably arise in connection with the processing of discrimination suits. First, Title VII suits are non-jury matters, while jury demands are proper in Bivens actions. Thus, to the extent that a complainant’s statutory and constitutional claims arise out of the same transactions, permitting joinder of the two kinds of actions would pose the prospect of converting every Title VII suit into a jury action. This Court’s experience with Title VII cases makes clear that Title VII actions are peculiarly well-suited for disposition by the Court because litigants, in the interest of expediting their cases, frequently will allow the Court to consider as evidence all or part of the earlier developed administrative record. This practice is unlikely if Title VII cases were made jury matters by the addition of constitutional claims.
Moreover, Title VII requires that statutorily-based suits be expedited and tried within 120 days,
.
Brown v. General Services Administration,
. It should be pointed out that plaintiff did attempt to base his claim on the Tucker Act,
. See
also United States v. Testan,
the United States, as sovereign, ‘is immune from suit save as it consents to be sued . and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.’ . And it has been said . that a waiver of traditional sovereign immunity ‘cannot be implied but must be unequivocally expressed.’ [citations omitted].
. Since the plaintiff in
Brown
had attempted to reverse the dismissal of his several discrimination claims on the grounds that, apart from Title VII, he stated claims against the government based on the Mandamus Act,
.
The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable undersection 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.
.
The remedy against the United States provided bysections 1346(b) and 2672 of this title for injury or loss of property or. personal injury or death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.
That a special statute is needed to immunize federal officers from suit was recently recognized by three Justices of the Supreme Court in
Martinez v. Shrock,
In the past, when Congress has seen fit to immunize certain categories of federal officials, including physicians, it has done so by statute. See38 U.S.C. § 4116 (1970 ed. and Supp. V);42 U.S.C. § 233 . . . . Apart from these statutes, this Court has recognized a very narrow category of judicially created absolute immunity for some federal officials, (emphasis supplied).
. Nothing in
Richardson v. Wiley,
186 U.S. App.D.C. 309,
. See Evaluation and Rating Form for Supervisors Performance in EEO, NAVSO 12430/7 (12-74).
.
When discrimination is found, the agency shall require remedial action to be taken in accordance with section 713.271, shall review the matter giving rise to the complaint to determine whether disciplinary action against alleged discriminatory officials is appropriate, and shall record the basis for its decision to take or not to take, disciplinary action
So substantial are the adverse effects occasioned by a finding of discrimination that one alleged discriminator has filed suit in this Court to challenge the constitutionality of the procedures leading to the imposition of administrative sanctions. See Graham v. Claytor, No. 77-995 (D.D.C., crossmotions for summary judgment taken under advisement March 3, 1978).
. In Briggs, the Court of Appeals for this Circuit assumed that a cause of action based on Bivens was available to redress plaintiffs claim that a federal officer had falsely procured his indictment. As the Court stated,
the District Court may eventually have to resolve the question of whether [plaintiff’s] complaint states a valid cause of action within the contemplation of Bivens. We need not now consider whether Bivens authorizes constitutional tort suits against federal officers to the same extent that § 1983 allows similar litigation against state functionaries.
. For additional cases, see Lehmann, Bivens and its Progeny, 4 Hastings Const.L.Q. 531, 566-68 & nn.226-229 (1977).
.
Payne
involved a fifth amendment claim based on an allegation that a police officer maliciously aimed and discharged his service revolver at plaintiffs as they were sitting innocently in their automobile. The only issue was that the lower court erred in dismissing the case for want of federal question jurisdiction.
Payne
did not decide whether
Bivens
remedies were available to redress plaintiffs’ asserted constitutional violations. “The court exhausts its present function when it concludes that the District Court has jurisdiction to make that determination upon reaching the merits.”