Rita J. Zimbelman; Karen Michalik v. STEVEN S. SAVAGE, Colonel

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RITA J. ZIMBELMAN; KAREN
MICHALIK,
Plaintiffs-Appellees,
v.
STEVEN S. SAVAGE, Colonel, in his
official capacity and as an
individual; MICHAEL P. FILAN,
Lieutenant Colonel, in his official
capacity and as an individual;
DONALD J. WHALEN, in his official
capacity as Services Squadron
Flight Chief and as an individual;
DON COOK, in his official capacity
as Deputy of Services Squadron and
No. 99-1607
as an individual; LESTER M. RIDALL,
in his official capacity as Chief,
Human Resources Office, and as an
individual; GEORGE J. ZALASKY, in
his official capacity as an OSI
Agent and as an individual;
MICHAEL D. GOODRICH, in his
individual capacity; BRUCE J.
GUYOTE, in his individual capacity;
JAMES R. CAPPS, in his individual
capacity; THOMAS E. WELCH, in his
individual capacity,
Defendants-Appellants,
and

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UNITED STATES AIR FORCE; S. E.
WIDNALL, Doctor, Secretary; OSI
AGENT 1, sued as "Four Other
Unnamed OSI Agents, in their
official capacities and as
individuals"; OSI AGENT 2, sued as
"Four Other Unnamed OSI Agents,
in their official capacities and as
individuals"; OSI AGENT 3, sued as
"Four Other Unnamed OSI Agents,
in their official capacities and as
individuals"; OSI AGENT 4, sued as
"Four Other Unnamed OSI Agents,
in their official capacities and as
individuals",
Defendants.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Mathew J. Perry, Jr., Senior District Judge.
(CA-97-592-3-10)
Argued: June 5, 2000
Decided: September 21, 2000
Before WILKINSON, Chief Judge, and MICHAEL and
MOTZ, Circuit Judges.
_________________________________________________________________
Reversed and remanded by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judge Michael and Judge Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: Richard Alan Olderman, Appellate Staff, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
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D.C., for Appellants. John Michael Brown, Augusta, Georgia, for
Appellees. ON BRIEF: David W. Ogden, Acting Assistant Attorney
General, J. Rene Josey, United States Attorney, Barbara L. Herwig,
Appellate Staff, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellants. Kristina M. Ander-
son, Aiken, South Carolina, for Appellees.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
Plaintiffs Rita Zimbelman and Karen Michalik were fired from
their Air Force jobs based on suspicions of theft, fraud, and other mis-
conduct. Their internal appeals seeking reinstatement failed. Plaintiffs
then filed this Bivens action alleging several constitutional violations,
among them that the Air Force violated their Fifth Amendment rights
by failing to grant them a name-clearing hearing. The district court
denied the defendants' motion for partial summary judgment on the
Fifth Amendment claim. Because the special factor of plaintiffs' fed-
eral employment precludes the remedy they seek, we reverse the
judgment of the district court and remand with instructions to dismiss
Zimbelman and Michalik's Fifth Amendment claim against the defen-
dants.
I.
Rita Zimbelman and Karen Michalik worked for the Officers' Club
at Shaw Air Force Base in Sumter, South Carolina. The club is a non-
appropriated fund instrumentality (NAFI), meaning that it is a federal
agency whose funds come primarily from its own activities rather
than annual appropriations. Based on reports of misconduct at the
club, the Air Force's Office of Special Investigations (OSI) conducted
an investigation of the club's employees, including Zimbelman and
Michalik.
OSI's investigation concluded on March 13, 1995. On March 15,
1995, Lieutenant Colonel Michael Filan sent Zimbelman written noti-
fication that he was recommending termination of her employment
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because of suspicions of theft and fraud. Zimbelman filed a three-
page response on March 17, 1995, and a ten-page response on April
10, 1995. On April 13, 1995, Filan issued a decision terminating her
as manager of the Officer's Club.
As a NAFI employee, Zimbelman was not covered by the remedial
scheme of the Civil Service Reform Act (CSRA). See 5 U.S.C.
§ 2105(c) (1994). Thus, the only way she could challenge her termi-
nation was pursuant to the internal procedures set forth in the Air
Force Manual. Accordingly, Zimbelman filed a Step 1 grievance with
Colonel Steven Savage, who rejected the appeal in a four-page deci-
sion. Zimbelman's Step 2 and Step 3 grievances were rejected by Col-
onel Thomas Poole and Colonel Richard Hamer, respectively. This
exhausted her administrative remedies. Zimbelman was subsequently
indicted on criminal charges but was acquitted by a directed verdict
at the close of the government's case.
Michalik, also a NAFI employee, received written notification of
her proposed termination on March 20, 1995. The Air Force also
accused her of engaging in misconduct. She filed a response to the
charges that day and later initiated a Step 1 grievance. Lt. Col. Filan
rejected her Step 1 appeal. Michalik's Step 2 grievance was summa-
rily dismissed because she filed it in an untimely fashion. This
brought the internal appeals process to an end. The Air Force never
filed any criminal charges against Michalik.
Zimbelman and Michalik then filed this Bivens action against
members of the OSI team and their supervisors. The complaint
alleged several constitutional violations, among them that OSI offi-
cers violated plaintiffs' Fifth Amendment right to preserve their repu-
tations. Zimbelman and Michalik claim that the false accusations
caused each of them to lose gainful employment and the opportunity
for future employment. Moreover, they claim that they did not have
the constitutionally required opportunity to clear their names.
The district court dismissed some claims but allowed, among oth-
ers, the Fifth Amendment claim to stand. The defendants then moved
for partial summary judgment on the Fifth Amendment claim. The
district court denied this motion and defendants filed this interlocu-
tory appeal. See Mitchell v. Forsyth, 472 U.S. 511, 527 (1985).
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II.
A Bivens action is a judicially created damages remedy designed
to vindicate violations of constitutional rights. See Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Bivens
actions, however, are inappropriate if there are"special factors coun-
selling hesitation." Id. at 396. For example, Bivens actions are not
allowed "[w]hen the design of a Government program suggests that
Congress has provided what it considers adequate remedial mecha-
nisms for constitutional violations . . . ." Schweiker v. Chilicky, 487
U.S. 412, 423 (1988).
In Bush v. Lucas, 462 U.S. 367 (1983), the Supreme Court refused
to recognize a First Amendment Bivens action brought by an engineer
against the director of a federal space flight center. The Court held
that federal employment constitutes the sort of"special factor" that
makes a Bivens remedy inappropriate. See id. at 389. Federal employ-
ment is a "special factor" because federal personnel matters are gov-
erned by the CSRA. See id. Because the CSRA constitutes a
comprehensive set of procedural and substantive provisions govern-
ing the rights of federal employees, it would be inappropriate "to sup-
plement that regulatory scheme with a new judicial remedy." Id. at
368; see also United States v. Fausto, 484 U.S. 439 (1988) (exclu-
siveness of the CSRA precludes claims raised under other statutes).
Congress is more competent to decide "whether or not it would be
good policy" to create "a new species of litigation between federal
employees" and to evaluate how this might effect"the efficiency of
the civil service." Bush, 462 U.S. at 389-90.
Zimbelman and Michalik's claims indisputably arise from a federal
employment relationship. Their complaint is that at no point before
losing their federal jobs did the applicable federal statutes and regula-
tions grant them a name-clearing hearing. Zimbelman and Michalik
contend that because the processes governing their appeals were
insufficient, they deserve a Bivens remedy. But as Bush and Chilicky
make clear, a Bivens remedy is inappropriate where the "special fac-
tor" of federal employment exists.
The fact that Zimbelman and Michalik were NAFI employees and
thus exempted by Congress from the Civil Service Reform Act does
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not release them from its exclusive remedial framework. In Mann v.
Haigh, 120 F.3d 34, 38 (4th Cir. 1997), this court held that the com-
prehensiveness of the CSRA barred NAFI employees from obtaining
judicial review of their employment decisions under the Administra-
tive Procedures Act (APA). This ruling accords with cases from other
circuits. For example, the Fifth Circuit noted in McAuliffe v. Rice, 966
F.2d 979, 981 (5th Cir. 1992), that Congress exempted NAFI employ-
ees from the CSRA in order to give the armed services the "maximum
possible personnel flexibility." To view the exemption of NAFI
employees from the CSRA as an invitation for the judicial creation of
new employee remedies would both constrict this flexibility and
afford NAFI employees more safeguards than ordinary civil servants
receive under the CSRA. See id. The courts have thus uniformly
rejected the efforts of other, non-NAFI, federal employees who lack
a CSRA remedy to bring a Bivens action. See Blankenship v. McDon-
ald, 176 F.3d 1192 (9th Cir. 1999) (court reporter with no effective
remedies under the CSRA precluded from bringing Bivens action);
Lee v. Hughes, 145 F.3d 1272 (11th Cir. 1998) (federal employee
without a CSRA remedy barred from bringing Bivens suit); Lombardi
v. Small Bus. Admin., 889 F.2d 959, 961 (10th Cir. 1989) ("even if
no remedy at all has been provided by the CSRA" federal employee
still cannot pursue a Bivens claim); Spagnola v. Mathis, 859 F.2d 223,
228 (D.C. Cir. 1988) (en banc) (same).
It is not relevant that plaintiffs believe the procedures governing
their employment relationship were insufficient. The Supreme Court
has twice refused to allow a Bivens action in cases where it agreed
that the remedies made available by Congress were not complete and
that some hardships would go uncompensated. In both cases the Court
found that (1) "special factors" counseled against creating a judicial
remedy; (2) other safeguards, such as an internal review process,
existed; and (3) the failure to grant complete relief was not inadver-
tent. See Chilicky, 487 U.S. at 425 ("Here, exactly as in Bush, Con-
gress has failed to provide for `complete relief'. . . .").
The same factors counsel against plaintiffs' Bivens action. First,
there is the special factor of federal employment. Second, Zimbelman
and Michalik had other safeguards, in the form of internal appeals,
available to them. Third, no evidence exists that the absence of more
comprehensive procedural safeguards was inadvertent. In fact, Con-
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gress explicitly addressed the status of NAFI employees when it
removed them from the CSRA's coverage. See 5 U.S.C. § 2105(c).
Our holding is consistent with circuit precedent. In the context of
federal personnel policy, this court has consistently refused to add
layers of process to what Congress has already provided. For exam-
ple, in Pinar v. Dole, 747 F.2d 899, 910 (4th Cir. 1984), we refused
to create a Bivens action for an alleged First Amendment violation on
the grounds that "[t]he absence of a provision for direct judicial
review . . . among the carefully structured remedial provisions of the
CSRA is evidence of Congress' intent that no judicial review in dis-
trict court be available . . . ." In Mann, we cited the comprehensive-
ness of the CSRA in denying a NAFI employee the right to obtain
judicial review of an employment decision under the APA. See 120
F.3d at 38. We now decline again to substitute our judgment for that
of Congress in federal employment disputes by creating a Bivens rem-
edy for plaintiffs' Fifth Amendment claim.
III.
Since we have dismissed plaintiffs' claim on the basis of the spe-
cial factor of their federal employment, we have no need to reach the
additional grounds for dismissal raised by appellants. The judgment
of the district court is reversed and remanded with instructions to dis-
miss plaintiffs' Fifth Amendment claim.
REVERSED AND REMANDED
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