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WALDEN v. CENTERS FOR DISEASE CONTROL & PREVENTION
669 F.3d 1277 (2012)
Marcia WALDEN, Plaintiff-Appellant,
v.
CENTERS FOR DISEASE CONTROL AND PREVENTION, Computer Sciences Corporation, Christie Zerbe, Centers for Disease Control and Prevention Project Officer for Occupational Health and Preventive Services, in her individual and official capacities, L. Casey Chosewood, Director of the Office of Health and Safety at the Centers for Disease Control and Prevention, in his individual and official capacities, Defendants-Appellees,
John Doe, Centers for Disease Control and Prevention Official, in his individual and official capacities, Defendant.
No. 10-11733.
United States Court of Appeals, Eleventh Circuit.
February 7, 2012.
Brian W. Raum, Benjamin W. Bull, James A. Campbell, Alliance Defense Fund, Scottsdale, AZ, David Andrew Cortman, Alliance Defense Fund, Lawrenceville, GA, Jonathan D. Crumly, Sr., Little, Crumly & Chambliss, LLP, Marietta, GA, for Plaintiff-Appellant.
Matthew M. Collette, Marleigh D. Dover, U.S. Dept. of Justice-Consumer Protection Branch, Marcia Berman, U.S. Dept. of Justice, Washington, DC, Aileen Bell Hughes, Sharon Douglas Stokes, Jeffrey A. Schwartz, Melanie S. Lastrapes, Jackson Lewis, LLP, Atlanta, GA, for Defendants-Appellees.
Before TJOFLAT, WILSON and SEYMOUR,* Circuit Judges.
Marcia Walden brought this action against Computer Sciences Corporation ("CSC"), the Centers for Disease Control and Prevention ("CDC"), and two CDC employees, Dr. Casey Chosewood and Christie Zerbe. Ms. Walden alleged that all defendants violated her free exercise rights under the First Amendment and the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb et seq. She also alleged that CSC violated her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court granted summary judgment in favor of all defendants on all claims. We affirm. I.CDC is a federal agency based in Atlanta, Georgia, where it has over 6,000 employees. It maintains an Employee Assistance Program ("EAP"), which provides health and wellness services to its employees. At all times relevant to this litigation, CSC administered CDC's EAP pursuant to a contract. CSC managed and staffed the CDC clinics located in Atlanta, but CDC's approval was required for all EAP counselor positions. Under the EAP contract, CDC could request the immediate removal of an EAP employee from the program. Specifically, the contract stated: The Contracting Officer may ... require the Contractor to immediately remove any contract employee from the on-site facility should it be determined that the individual who is being assigned to duty has been disqualified for suitability reasons, or who is found to be unfit for performing duties during their tour(s) of duty. Rec., doc. 85-6 at 59.
* Honorable Stephanie K. Seymour, United States Circuit Judge for the Tenth Circuit, sitting by designation.
1. In resolving the defendants' motions for summary judgment, the district court assumed that Ms. Walden did not insist on disclosing her religious beliefs to future clients, as opposed to her "personal values" or "personal beliefs." The district court instead assumed that Ms. Byrum reached her conclusion because Ms. Walden repeatedly refused to say that she was inexperienced in relationship counseling.
2. In proceedings below, neither the magistrate judge nor the district court determined whether Ms. Walden had standing to seek declaratory relief under 28 U.S.C. § 2201 against CDC or against Dr. Chosewood and Ms. Zerbe in their official capacities. "Although neither side raises the issue here, we are required to address the issue even if the courts below have not passed on it, and even if the parties fail to raise the issue before us. The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of [the jurisdictional] doctrines." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31, 110 S.Ct. 596, 607, 107 L.Ed.2d 603 (1990) (citations and internal quotation marks omitted) (alteration in original); see also Arnold v. Martin, 449 F.3d 1338, 1341 (11th Cir.2006) (per curiam) ("Precedent obligates us to determine on our own initiative whether [the plaintiff] has standing.").
3. Ms. Walden's First Amendment claims against Dr. Chosewood and Ms. Zerbe seek damages pursuant to Bivens, 403 U.S. 388, 91 S.Ct. 1999. In many respects, "[a] Bivens action is analogous to § 1983 suits against state and local officers." Smith ex rel. Smith v. Siegelman, 322 F.3d 1290, 1297 n. 15 (11th Cir.2003). In Bivens, the Supreme Court held that a plaintiff could bring a suit for damages against federal officials for violations of the plaintiff's Fourth Amendment rights. 403 U.S. at 397, 91 S.Ct. at 2005. The Supreme Court has extended Bivens to allow damages actions under the Eighth and Fifth Amendments. See Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). Since Carlson, however, the Court has repeatedly declined to imply a Bivens remedy in a variety of contexts. See, e.g., Minneci v. Pollard, ___ U.S. ___, 132 S.Ct. 617, 181 L.Ed.2d 606 (2012) (collecting and summarizing cases). The Court has "rejected the claim that a Bivens remedy should be implied simply for want of any other means for challenging a constitutional deprivation in federal court." Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69, 122 S.Ct. 515, 520, 151 L.Ed.2d 456 (2001). Because of our disposition of this case on other grounds, we need not decide whether a Bivens claim is appropriate here. We therefore only assume without deciding that Ms. Walden may seek a Bivens remedy for violations of the First Amendment's Free Exercise Clause. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (assuming, without deciding, that a First Amendment Free Exercise Clause claim is actionable under Bivens). But see Bush v. Lucas, 462 U.S. 367, 388-90, 103 S.Ct. 2404, 2416-17, 76 L.Ed.2d 648 (1983) (declining to create a Bivens remedy against a federal official for a First Amendment violation arising in the context of federal employment where administrative remedies existed).
4. Although the plurality opinion in Waters garnered only four votes, "[a] majority of the Court agree[d] that employers whose conduct survives the plurality's reasonableness test cannot be held constitutionality liable (assuming the absence of pretext)...." Waters, 511 U.S. at 685, 114 S.Ct. at 1893 (Souter, J., concurring).
5. RFRA has been held unconstitutional as applied to states. See City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).
6. Congress passed RFRA in response to Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which Congress found "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion." 42 U.S.C. § 2000bb(a)(4). RFRA's stated purpose was "to restore the compelling interest test" provided in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), "where free exercise of religion is substantially burdened" by government. 42 U.S.C. § 2000bb(b)(1).
In proceedings below, the magistrate judge determined that in light of Congress's intent to use RFRA to restore the law to its pre-Smith state, RFRA's heightened compelling interest standard was inapplicable to a government employer. It reasoned that even before Smith, Pickering's balancing test, rather than Sherbert's compelling interest standard, applied when the government burdened the First Amendment rights of one of its employees.
The district court declined to resolve whether RFRA applies to the government when it acts as an employer rather than as sovereign, as do we. Notably, the government does not argue that RFRA is inapplicable. We therefore assume RFRA applies here.
7. Ms. Walden also seeks a declaratory judgment against CSC. She lacks standing to do so for the reasons given in Part II.A. of our opinion.
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