Jul 14 2006
The Tailoring Of A Suit
Siexon has done some excellent work on illustrating how the civil suit by the Wilsons and the minions was more than likely part of the overall plan as far back as October 2005, when there were still hopes for a Merry Fitzmas. As I have said many times, Wilson is on audio tape, prior to his own Op Ed coming out party in June 2003, saying that the only way for the Niger Forgery stories to do any damage was to create a scandal and keep it in the news. He implores the crowd to do so, and it seems they have done their best. But Bush and Co. are weathering the storm and may come out of this in better shape – because the American people do not support manipulating liars. So we have the Wilsons executing their long standing Plan B for civil action, which was necessary because, in the end, the Bush administration’s penchant for professionalism and discipline resulted in no concerted effort to PR-slam the Wilsons (a marker of the Clinton administration who hired people to go through personal files and leak those to the press!). The Wilson’s expected DC to be the same as it always has been, but Bush did change the tone where he could and it protected the administration from this set up. What is next? Did those arrayed against the Wilsons have a Plan B response? My guess is they did and it too would swing into action if triggered by a civil suit. Let the games begin.
Unsupported Claims Gazette…
Joe Wilson wrote a New York Times Op-Ed and said on many other public occasions that he found no evidence showing Saddam Hussein’s Iraq had sought uranium in Niger. This was later found to be untrue, as documented by the…
The case will be dismissed as it falls under the CSRA!!
Before WILKINSON, Chief Judge, and WILKINS and MOTZ, Circuit Judges. Judge Wilkins wrote the opinion, in which Chief Judge Wilkinson and Judge Motz joined.
OPINIONBY: WILKINS
OPINION:
WILKINS, Circuit Judge:
Sheryl L. Hall appeals a district court order dismissing her claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), and 42 U.S.C.A. § 1985(1) (West 1994), as being precluded [**2] by the Civil Service Reform Act (CSRA) of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.A.). Because the CSRA constitutes the exclusive remedy for claims arising out of federal employment, we affirm.
Hall maintains that the district court erred in dismissing her Fifth Amendment Bivens claim against Scott, Tayman, and Vaden as being precluded by the CSRA. We disagree.
A Bivens action is a judicially created damages remedy designed to vindicate violations of constitutional rights by federal actors. See Bivens, 403 U.S. at 395-97. In order for a Bivens remedy to be available, a court must determine that (1) Congress has not already provided an exclusive statutory remedy; (2) there are no “special factors counselling hesitation in the absence of affirmative action by Congress”; and (3) there is no “explicit congressional declaration” that money damages not be awarded. [**6] Id. at 396-97; see Schweiker v. Chilicky, 487 U.S. 412, 423, 101 L. Ed. 2d 370, 108 S. Ct. 2460 (1988). The “special factors” concept “includes an appropriate judicial deference to indications that congressional inaction has not been inadvertent.” Schweiker, 487 U.S. at 423.
The CSRA “comprehensively overhauled the civil service system,” creating a “framework for evaluating adverse personnel actions against [federal employees].” Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 773-74, 84 L. Ed. 2d 674, 105 S. Ct. 1620 (1985). “It prescribes in great detail the protections and remedies applicable to such action, including the availability of administrative and judicial review.” United States v. Fausto, 484 U.S. 439, 443, 98 L. Ed. 2d 830, 108 S. Ct. 668 (1988). A primary purpose of enacting the CSRA was “to replace the haphazard arrangements for administrative and judicial review of personnel action” that existed [*205] prior to the CSRA. Id. at 444. When the CSRA was enacted, the perception was that the existing appeals process was so lengthy and complicated that federal supervisors were [**7] discouraged from taking legitimate adverse personnel actions. See id. at 445. Further, because multiple jurisdictions had concurrent jurisdiction over actions challenging personnel decisions, there was a wide variation in decisions regarding the same or similar matters. See id. Accordingly, the CSRA was designed to eliminate this problem as well.
The Supreme Court examined the availability of a Bivens action in a federal employment context in Bush v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983). In Bush, the Supreme Court determined that federal employment constituted a “special factor” warranting refusal to recognize a First Amendment Bivens claim asserted by a federal employee. See Bush, 462 U.S. at 378-80; Zimbelman v. Savage, 228 F.3d 367, 370 (4th Cir. 2000). This court recently decided a similar case, the facts of which are closely analogous to the case at bar. In Zimbelman, two employees were fired from their jobs with the Air Force under suspicion of having committed various acts of misconduct, including theft and fraud. See Zimbelman, 228 F.3d at 369. [**8] The employees brought suit against their supervisors and the Air Force investigators who had conducted the investigation into their misconduct, asserting several constitutional claims, including one under Bivens for a violation of their Fifth Amendment right to preserve their reputations. See id. at 370. This court affirmed the dismissal of the Bivens claims, concluding that they “indisputably arose from a federal employment relationship.”
Hall contends that the CSRA does not preclude her Bivens action because although the CSRA provides for administrative or judicial review of the action taken against her, her Bivens claim is not against her supervisor. Hall’s argument is without merit, however. The salient fact here is that the wrongful acts Hall alleges were taken against her arose out of her federal employment relationship. Because they did arise out of her federal employment, Bush and Zimbelman dictate that Hall’s claim is precluded. That the CSRA does not provide the remedy that she would prefer is of no moment. See Bush, 462 U.S. at 388-90 (refusing to allow a Bivens action even though “existing remedies [did] [**9] not provide complete relief”); Zimbelman, 228 F.3d at 370-71 (holding that plaintiffs were not released from the exclusive remedial framework of the CSRA when their claims arose from their federal employment even though the CSRA provided plaintiffs with no remedy); cf. Lombardi v. Small Bus. Admin., 889 F.2d 959, 961 (10th Cir. 1989) (holding that plaintiff’s claims were precluded by CSRA because actions complained of arose from federal employment relationship even though many of the alleged violations occurred after the employment relationship was terminated); Gleason v. Malcom, 718 F.2d 1044, 1048 (11th Cir. 1983) (per curiam) (holding that claims by federal employee were barred under Bush even though one claim was against coworkers because “the purpose of denying a private cause of action to federal employees is to ensure that they do not bypass comprehensive and carefully balanced statutory and administrative remedies in order to seek direct judicial relief”). Accordingly, the district court correctly dismissed Hall’s Bivens claim.
SBD