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HARRIS v. MOYER

October 23, 1985

DAVID HARRIS, PLAINTIFF,
v.
ALVIN D. MOYER, JAMES M. COLE, ROBERT E. WALKER, BRIAN R. PERRYMAN, FRANCES FALKOWSKI, AND THOMAS FARRIS, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES WITH THE DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, AND THE UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff David Harris was discharged from a probationary appointment with the Immigration and Naturalization Service (INS) under somewhat unusual circumstances which he claims violated his constitutional and common law rights. Defendants have moved to dismiss the complaint on the grounds that the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et seq., provides plaintiff with a comprehensive scheme of remedies and therefore that this court has no subject matter jurisdiction. Because the court disagrees with how defendants characterize the CSRA, it denies their motion to dismiss.

I.

Plaintiff claims that these reasons were pretextual and made in an attempt to save a senator from embarrassment. The senator's nephew was in the same training program as Harris and had difficulty with several phases of the training program. Plaintiff asserts that by October 1983 it was common knowledge in the training program that the nephew had failed the final examination and would be terminated. Plaintiff also claims that the senator personally called defendant Moyer to discuss his nephew's future. Feeling pressured from the senator, Moyer decided to fire at least one other criminal investigator along with the nephew, figuring this would keep the senator from feeling that his nephew had been singled out. Plaintiff claims this was the real reason behind his being fired.

Plaintiff appealed his dismissal to the Merit System Protection Board, which found that the agency's explanation of his termination was "unworthy of credence and pretextual." The INS has appealed this finding to the United States Court of Appeals for the Federal Circuit, arguing that the Board was without jurisdiction to hear plaintiff's claims because he was a probationary employee.*fn1

In the meantime, plaintiff has filed this lawsuit in federal district court. In count I he claims defendant deprived him of his liberty and property interest in his reputation and job for partisan political reasons, in violation of the Fifth Amendment; in count II he asks for punitive damages on count I violations; in count III he claims defamation; and in count IV he claims breach of his employment contract.

II.

In their motion to dismiss defendants make one argument: that the provisions of the CSRA protecting government employees against arbitrary actions by their superiors create a comprehensive scheme of remedies which precludes judicial remedies.*fn2 In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the Supreme Court held that a federal employee did not have a judicial remedy for a First Amendment claim because

  [f]ederal civil servants are now protected by an
  elaborate, comprehensive scheme that encompasses
  substantive provisions forbidding arbitrary action by
  supervisors and procedures — administrative and
  judicial — by which improper action may be redressed.
  They apply to a multitude of personnel decisions that
  are made daily by federal agencies.

462 U.S. at 385, 103 S.Ct. at 2415. However, the Court noted that probationary employees are not "covered by this system." Id. at 385 n. 28, 103 S.Ct. at 2415 n. 28.

The Court has provided for remedies against federal officials directly under the Constitution, when no other relief is available. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). In Carlson, the Court stated that

  [s]uch a cause of action may be defeated . . . in two
  situations. The first is when defendants demonstrate
  "special factors counselling hesitation in the
  absence of affirmative action by Congress." [Bivens
  v. Six Unknown Fed. Narcotics Agents] 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 had
  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. at 2005];
  Davis v. Passman, supra, at 245-247 [99 S.Ct. at
  2277-2278].

446 U.S. at 18-19, 100 S.Ct. at 1471-1472. While some language in Bush indicates the Court rested on the fact that Congress had created an equally effective remedial scheme in the CSRA, other passages suggest the Court grounded its decision on the presence of "special factors counseling hesitation," particularly the historical attention Congress had paid to the problem of balancing ...


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