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GILLAM v. ROUDEBUSH

May 26, 1982

CLAUDE GILLAM, PLAINTIFF,
v.
RICHARD L. ROUDEBUSH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Decker, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Claude Gillam filed this action against defendants Richard Roudebush, Odell Vaughn, Rufus Wilson, John Hagan, and Paul Mahoney, alleging violations of his constitutional rights. Each of the defendants was or is a federal official. On June 11, 1981, the court entered a memorandum opinion and order, holding that defendants had to be sued in their individual capacities, and requiring plaintiff to obtain personal service over each of them. Plaintiff has succeeded in personally serving most, if not all, of the defendants. Pending are motions from all defendants to dismiss plaintiff's complaint. The alleged grounds for dismissal are the same in all the motions, and so they will be discussed as a group rather than individually.

Factual Background

In August 1974, Gillam became Director of the Chicago Regional Office. Prior to the time plaintiff assumed his new position, a black female employee of the Chicago Regional Office had filed a complaint charging discrimination and reprisals for the filing of earlier complaints. On November 29, 1974, the General Counsel of the Veterans Administration issued a decision which held that the employee had in fact been subject to reprisals and which ordered that certain corrective actions be taken. As Director, plaintiff was responsible for implementing the General Counsel's order.

Plaintiff immediately questioned the validity of the General Counsel's order, in particular the propriety of the corrective action that was ordered. There followed an exchange of numerous letters, several telephone conversations, and conferences between Gillam and his superiors, particularly defendants Hagan and Wilson, concerning the order. Plaintiff Gillam held to his position that the order could not be implemented because it would require an unlawful personnel action. Hagan and Wilson both maintained that the order was proper and legal, because it was issued by the highest legal authority in the Veterans Administration, and so continued to order plaintiff to carry it out. Finally, on January 20, 1976, Wilson wrote to Gillam ordering him to implement the order and notify him (Wilson) by teletype on Monday, February 2, 1976, of Gillam's compliance with that order.

Apparently, Mr. Gillam did not respond to the January 20 letter as requested. In a phone conversation with Hagan on February 2, Gillam again refused to take the action requested in the January 20 letter. As a result, Wilson issued to Gillam a notice of proposed removal for insubordination and failure to conform to Civil Service regulations. The notice was dated February 10, 1976. On March 30, 1976, after considering Gillam's reply to the notice, the Administrator of Veterans Affairs, defendant Roudebush, issued a decision to remove Gillam, which became effective on April 6, 1976.

Meanwhile, on January 30, 1976, Gillam filed an informal grievance, in which he restated his position that the General Counsel had exceeded his authority in ordering corrective actions for the reprisals against the black employee, and that the order could not be used as justification for effecting an illegal personnel action. In accordance with the grievance procedure, Gillam received an oral reply to his informal grievance on February 12, 1976. According to the procedures, an employee is required to file a formal grievance within ten days after receiving the informal reply, if he so desires. On February 19, 1976, Gillam requested an extension of time in which to file a formal grievance. Defendant Wilson granted an extension until March 15, 1976. On March 12, Gillam requested a further extension of time. On this occasion, the Deputy Administrator of the Veterans Administration, defendant Vaughn, responded and denied Gillam's request for more time. When asked to reconsider his decision, Vaughn informed Gillam that the decision on the matter was final.

Gillam appealed the unfavorable final decision of the FEAA to the Appeals Review Board of the Civil Service Commission. The Review Board, now known as the Office of Appeals Review, Merit Systems Protection Board, decided to reopen Gillam's case. On April 18, 1979, it issued its decision, reversing the FEAA, and ordering that Gillam be restored retroactively to the position from which he was removed or to one of equal grade and rank. Gillam also received back pay for the time that he was removed from his position. As grounds for its decision, the Review Board stated that the interference by defendant Mahoney, resulting in the hearing officer changing his original decision, was a violation of due process significant enough to justify vacating the FEAA decision and remanding the case for a new hearing. However, the Review Board concluded that that was not a practical solution, due to the lapse of time and the difficulties that would be encountered in again finding the necessary witnesses. Therefore, the Review Board considered the extensive record before it from the earlier hearing, and concluded, for various reasons, that Gillam's removal had been improper.

In his current complaint, plaintiff alleges that the actions taken by defendants Hagan, Wilson, Vaughn, and Roudebush were done as part of a conspiracy to violate Gillam First Amendment right to free speech. Specifically, Gillam claims he was removed from his position as Director of the Chicago Regional Office in retaliation for filing a grievance against the General Counsel's order. In addition, plaintiff alleges that the defendants violated his Fifth Amendment right not to be deprived of his employment without due process of law. Finally, plaintiff claims that defendant Mahoney's interference in the administrative review process before the FEAA constituted a violation of plaintiff's Fifth Amendment right to a hearing concerning his discharge. Plaintiff requests actual damages in the amount of $104,000 and punitive damages of $50,000 against the USVA defendants, and actual damages of $101,000 and punitive damages of $15,000 against defendant Mahoney.

Discussion

Plaintiff has sued for damages in this case directly under the First and Fifth Amendments. Such suits were first allowed in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), where the Supreme Court inferred a private right of action against federal officers who had violated the plaintiff's Fourth Amendment rights. The narrow cause of action established by the Court in Bivens was most recently discussed and expanded in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). In Carlson, the Court held that plaintiff could maintain a Bivens -type suit for damages against federal prison officials, who allegedly violated plaintiff's decedent's Eighth Amendment rights, even though plaintiff also could have sued the government under the Tort Claims Act. The Court stated that Bivens created a parallel remedy for constitutional violations that could only be defeated in two situations:

  "The first is when defendants demonstrate `special
  factors counselling hesitation in the absence of
  affirmative action by Congress.' 403 U.S., at 396, 91
  S.Ct. at 2004; Davis v. Passman, 442 U.S. 228, 245, 99
  S.Ct. 2264, 2277, 60 L.Ed.2d 846 (1979). The second is
  when defendants show that Congress has provided an
  alternative remedy which it explicitly declared to be
  a substitute for recovery directly under the
  Constitution and viewed as

  equally effective. Bivens, supra, at 397, 91 S.Ct. ...

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