COFFEY, Circuit Judge.
Plaintiff Joseph Feit appeals the district court's dismissal of his suit against the defendants, John Ward and Eugene Grapa, his supervisors while he was employed with the United States Department of Agriculture Forest Service ("Forest Service"). Feit alleges they were responsible for the termination of his employment in violation of his first amendment rights. We affirm.
Feit was a seasonal forestry technician employed by the United States Forest Service in Park Falls, Wisconsin. Feit was originally hired in the summer of 1982, and was hired every summer thereafter up to and including the summer of 1987. On April 26, 1987, the day before Feit was scheduled to commence his 1987 employment, he attended and participated in a rally organized to protest native American spearfishing in northern Wisconsin. Feit was arrested at the rally and charged with disorderly conduct.
On May 13, 1987, defendants Ward and Grapa informed the plaintiff that his employment with the Forest Service was being terminated due to his involvement in the native American spearfishing protest. After Ward and Grapa terminated Feit's employment, they directed other Forest Service employees not to attend protests, public benefits or other meetings concerning the issue of native American spearfishing rights.
On April 15, 1988, the defendants removed this action to the United States District Court for the Western District of Wisconsin pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446(d). On May 16, 1988, the defendants filed a motion to dismiss for failure to state a claim upon which relief could be granted. The district court found that under Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), a damages remedy is unavailable to the plaintiff because the Civil Service Reform Act of 1978 ("CSRA"),
Feit filed this appeal on August 3, 1988, arguing that the district court erred in dismissing his claim for damages because, as a seasonal employee, he has no remedy under the CSRA to redress the defendants' violation of his first amendment rights. Feit further argues that his claims for declaratory and injunctive relief fall within the "capable of repetition, yet evading review" exception to the mootness and standing doctrines, and thus were improperly dismissed by the district court.
Feit's first allegation of error is that the district court improperly dismissed his claim for damages against Ward and Grapa for their allegedly unconstitutional termination of his employment with the Forest Service. As an initial matter we note that Feit's damages action is premised on the constitutional tort theory first enunciated in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens, the petitioner alleged that federal agents subjected him to arrest and the unlawful search of his home in violation of the fourth amendment and sought damages based on the agents' unconstitutional conduct. Despite the absence of a federal statutory basis for the plaintiff's damages claim, the Supreme Court held that the Constitution itself supports a private cause of action and that the petitioner was entitled to recover damages from the agents for their violation of his fourth amendment rights. The Supreme Court has subsequently recognized "Bivens actions" for money damages based on violations of the fifth amendment's due process clause, see Davis v. Passman, 442 U.S. 228,
In recognizing that "the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right," Carlson, 446 U.S. at 18-19, 100 S.Ct. at 1471, the Supreme Court has also stated that plaintiffs alleging constitutional violations are precluded from maintaining Bivens actions in two situations:
Id. at 18-19, 100 S.Ct. at 1471 (emphasis in original and citations omitted). Accord Bivens, 403 U.S. at 396-97, 91 S.Ct. at 2004-05; Davis, 442 U.S. at 245-47, 99 S.Ct. at 2277-78. It is uncontested that Congress has not explicitly declared the remedies provided in the CSRA to be substitutes for Bivens actions. Thus, the relevant inquiry in this case is whether there are "special factors counseling hesitation" in recognizing Feit's Bivens action against the defendants.
In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the Supreme Court employed the "special factors" analysis in considering the propriety of a federal employee's Bivens action seeking damages against his supervisors for demoting him in violation of his first amendment rights. Although Bush invoked his administrative and statutory remedies to obtain reinstatement to his former position with full back pay, the Supreme Court assumed that Bush's "civil service remedies were not as effective as an individual damages remedy and did not fully compensate him for the harm he suffered." Id. at 372, 103 S.Ct. at 2408 (footnotes omitted). The Court went on to state, however, that
Id. at 388, 103 S.Ct. at 2416-17. After concluding that Bush's Bivens claim "ar[ose] out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States," id. at 368, 103 S.Ct. at 2406, the Court held that the creation of a Bivens remedy in favor of the petitioner would be inappropriate, because Congress, as opposed to the Court, "is in a better position to decide whether or not the public interest would be served by creating it." Id. at 390, 103 S.Ct. at 2417.
In this case, the district court found that under Bush, "the federal employment relationship is a special factor counseling hesitation in creating a judicial remedy," and thus, that Feit "is precluded from bringing an action under the Constitution for damages [against his federal employers]." Feit contends that the Supreme Court's rationale in Bush is not controlling on the question of whether this court should authorize his Bivens action against the defendants because, unlike the petitioner in Bush, he is without an administrative or judicial remedy under the CSRA to redress the alleged constitutional violation committed by the defendants.
At the outset, we disagree with Feit's assertion that he is without a remedy under the CSRA, when, in fact, the CSRA provides Feit and other similarly situated federal
Harrison v. Bowen, 815 F.2d 1505, 1510 (D.C.Cir.1987) (footnote omitted). As a seasonal employee, Feit was a member of the "excepted" civil service, see 5 C.F.R. 213.3102(m)(1), meaning that he was entitled to file a complaint with the Office of Special Counsel ("OSC") of the Merit Systems Protection Board ("MSPB"). The CSRA authorizes the OSC to "receive any allegation of a prohibited personnel practice." See 5 U.S.C. §§ 1206 and 2302(a)(2)(B). It is beyond dispute that the term "prohibited personnel practice" encompasses violations of a federal employee's constitutional rights.
Once the OSC receives an allegation of a prohibited personnel practice, the Special Counsel is authorized to investigate the charges himself, see 5 U.S.C. § 1206(a)(1), or require the head of the federal agency employing the complainant to conduct the investigation. See 5 U.S.C. § 1206(b)(3)(A). If the investigation reveals "that there are reasonable grounds to believe that a prohibited personnel practice has occurred," the OSC is required to report this conclusion to the MSPB, the agency involved, and the Office of Personnel Management. In addition, the OSC may recommend corrective action to the agency involved. 5 U.S.C. § 1206(c)(1)(A).
Feit concedes that he had the right to petition the OSC alleging that the defendants violated his constitutional rights in terminating his employment based on his participation in the anti-spearfishing rally. Nonetheless, he persists in his contention that the Supreme Court's holding in Bush does not bar this court from recognizing his Bivens action against the defendants. Citing the Court's references to the meaningful remedies available to the employee in Bush, see id. 462 U.S. at 368, 386, 103 S.Ct. at 2406, 2415, Feit argues that under Bush, Bivens actions are precluded only where the CSRA provides the aggrieved employee with some "meaningful" remedy to redress alleged constitutional violations. Feit next contends that the OSC remedy is ineffective, and thus not "meaningful," to redress the alleged violation of his first amendment rights because the Special Counsel has absolute discretion in deciding whether or not an investigation of a claim is warranted, as well as whether a recommendation
The defendants argue that Feit's attempt to distinguish Bush based on the "meaningfulness" of his CSRA remedies has been foreclosed by Schweiker v. Chilicky, ___ U.S. ___, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) — the Supreme Court's most recent application of the "special factors" doctrine. Although conceding that prior to Chilicky there was a dispute on the question of whether Bush requires a separate inquiry into the meaningfulness of the particular remedies the aggrieved employee has available under the CSRA,
In Chilicky, three individuals receiving Social Security disability benefits filed suit against various state and federal disability review officials alleging that the officials had terminated their benefits in violation of their due process rights. Although the plaintiffs had been restored to disabled status and awarded retroactive disability benefits, they sought money damages from the officials under the authority of Bivens for emotional distress and other injuries proximately caused by the officials' unconstitutional termination of their benefits. The Supreme Court held that a Bivens remedy was unavailable to the plaintiffs, stating:
108 S.Ct. at 2470-71.
In reaching this conclusion, the Court found that "[t]he case before us cannot reasonably be distinguished from Bush v. Lucas," noting that in both cases Congress created elaborate systems to protect the rights of the plaintiffs, but failed to provide "complete relief" in the form of a damages remedy. Id. at 2468. The court stated that the "special factors" doctrine
Id. The Court went on to state that "we declined in Bush `"to create a new substantive legal liability ..." because we are convinced that Congress is in a better position to decide whether or not the public interest would be served in creating it.' ... That reasoning applies as much, or more, in this case as it did in Bush itself." Id. at 2469 (citations omitted).
The Chilicky plaintiffs argued that Bush was distinguishable from their case because if Bivens relief were denied, they would merely receive the benefits "to which they would have been entitled had there been no constitutional violation," id., whereas the plaintiff in Bush was reinstated to his former position through the remedies provided in the CSRA. The Supreme Court disagreed, stating:
Id. at 2470.
Simply stated, the Supreme Court's rationale in Chilicky, particularly the Court's analysis of Bush v. Lucas, makes clear that under the "special factors" analysis, determining whether the particular remedies available to the plaintiff claiming a violation of his constitutional rights are meaningful and adequate is unnecessary. Indeed, at one point the Chilicky court stated that "[t]he absence of statutory relief for a constitutional violation ... does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation." 108 S.Ct. at 2567 (emphasis added). Thus, Feit's attempt to distinguish Bush by maintaining that he has no meaningful remedy under the CSRA is clearly without merit in light of Chilicky.
Four other circuits have rejected similar attempts to distinguish Bush, concluding, as we do, that it is clear from Chilicky that the "special factors" doctrine does not require a foray into the meaningfulness of a federal employee's remedies within the CSRA. See Volk v. Hobson, 866 F.2d 1398, 1402-03 (Fed.Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 2435, 104 L.Ed.2d 991 (1989); Kotarski v. Cooper, 866 F.2d 311, 312 (9th Cir.1989); McIntosh v. Turner, 861 F.2d 524, 525-26 (8th Cir.1988); Spagnola v. Mathis, 859 F.2d 223, 227-29 (D.C. Cir.1988) (en banc).
As noted above, Feit, as a seasonal employee, could have petitioned the Office of Special Counsel alleging that his supervisors engaged in a "prohibited personnel practice," the definition of which clearly encompasses constitutional violations. Because Congress has provided Feit and others similarly situated with an avenue of relief to redress violations of their constitutional rights, it cannot be said that Congress' omission of a separate damages remedy for constitutional violations from the remedies available under the CSRA was inadvertent. Kotarski, 866 F.2d at 312; McIntosh, 861 F.2d at 526; Spagnola, 859 F.2d at 229. Thus, we hold as a matter of law that a Bivens remedy is unavailable to Feit. We refuse to disregard the Supreme Court's mandate in Chilicky and create such a remedy.
The plaintiff-appellant argues that our holding is foreclosed by Egger v. Phillips, 710 F.2d 292 (7th Cir.) (en banc), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). As noted above, in Egger a plurality of this court, sitting en banc, held that a Bivens remedy is available to redress violations of the first amendment. The plaintiff in Egger was a former FBI agent who was allegedly transferred and later discharged for criticizing the activities of other agents in the FBI's Indianapolis (Indiana) Field Office. The agent filed suit against his supervisors seeking damages based on his allegation that he had been transferred and discharged in violation of his first amendment rights. The plaintiff argued that because he had no administrative remedy to redress the violation of his constitutional rights, he was entitled to damages under the authority of Bivens. The defendant argued that Congress' unwillingness to provide FBI agents with civil service protections and the federal employment relationship itself were "special factors counseling hesitation in entertaining a Bivens action arising from [federal] employment." Id. at 297. The plurality concluded that the absence of an alternative remedy is a factor in favor of recognizing a Bivens action. Id. Feit emphasizes the similarity between Egger and the present case, urging us to reverse the district court's dismissal of his Bivens action based on the holding of the Egger plurality. We refuse to do so for the following reasons.
As an initial matter, the portion of Egger recognizing the FBI agent's right to bring a Bivens action against his supervisors garnered the support of only four out of the eight judges hearing the case. Thus,
The question of whether Egger is in contravention of Bush, and thus whether Egger remains good law, has been discussed by this court on two prior occasions. In both cases we distinguished Egger based on the remedies available to the plaintiff-employee in the case before us and the lack of remedies available to the FBI agent in Egger, thus passing on the question of Egger's continued validity. See Moon, 854 F.2d at 151; Ellis v. United States Postal Service, 784 F.2d 835, 840 (7th Cir.1986). We are unable to distinguish Egger on this basis. Recognizing that Feit was a seasonal employee and Egger was a full-time FBI Agent, we note that both were members of the "excepted" civil service, see 28 U.S.C. § 536 (FBI Agents) and 5 C.F.R. § 213.3102(m)(1) (seasonal employees), and thus lacked the full panoply of procedural protections the CSRA extends to "preference eligibles" and members of the "competitive" civil service. In any case, we have previously determined that under Chilicky distinctions based on the "meaningfulness" of an employee's remedies under the CSRA are without merit. Thus, the question of Egger's viability must be addressed.
The Egger plurality concluded that the "constitutional rights of federal employees in the workplace which are not protected by statute properly form the basis of a Bivens action." 710 F.2d at 298. This conclusion directly contradicts the Supreme Court's statement in Chilicky that "[t]he absence of statutory relief for a constitutional violation ... does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation." 108 S.Ct. at 2467. Thus, although it may have been questionable in the aftermath of Bush,
Feit also contends that the district court erred in dismissing his claims for a declaratory judgment that the defendants' policy prohibiting Forest Service employees from participating in spearfishing protests violated the first amendment and an injunction permanently barring the "defendants from disciplining and/or discharging employees for exercising their First Amendment rights." The district court ruled that Feit lacked standing to assert these claims because "he is no longer a Forest Service employee who would be affected by the defendants' actions...." For the same reason, the district court also ruled that Feit's claims were moot. Feit argues that his claims were not moot (and apparently that he had standing to sue) because his claims fall within the "capable of repetition, yet evading review" exception to the
"It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an actual case or controversy." City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983). In order to allege an actual case or controversy, a plaintiff must establish that he has a personal stake in the outcome of the case. Id. "[W]hen a plaintiff's standing is brought into issue the relevant inquiry is whether ... the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). Further, when seeking injunctive and declaratory relief, a plaintiff must establish "that he is in immediate danger of sustaining some direct injury." Robinson, 868 F.2d at 966. As the Supreme Court stated in O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974): "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects."
In light of these standards we agree with the district court that Feit lacks standing to pursue his equitable claims against the defendants. In his request for declaratory relief, Feit seeks to have the policy of prohibiting Forest Service employees from protesting native American spearfishing invalidated as violative of the employees' first amendment rights. Similarly, in his request for an injunction, Feit seeks to bar the defendants from disciplining or discharging employees for exercising their first amendment rights. Because Feit is no longer an employee of the Forest Service, even if we were to grant the relief he requests, he would not benefit from this relief. Moreover, Feit has failed to establish that he is in immediate danger of injury resulting from the conduct he challenges as unconstitutional — termination in violation of his first amendment rights. Feit is not presently employed with the Forest Service; thus, he is no longer affected by the defendants' actions. Further, Feit, in his complaint, does not seek reinstatement to his former position. Obviously, Feit cannot again be terminated unless and until such time as he is rehired by the United States Forest Service.
Feit argues that this court has jurisdiction over his claims for equitable relief because such claims are "capable of repetition, yet evading review," a doctrine applicable in situations where "a claim is so transitory that a plaintiff may have standing when litigation begins but loses it — loses his personal stake — as the litigation continues." Robinson, 868 F.2d at 967. Feit states that because he was terminated on May 13, 1987, and the termination became effective on May 14, 1987, he had no opportunity to litigate his claim as an employee of the Forest Service. However, the Robinson court noted that "[t]he capable-of-repetition doctrine does not apply except in those exceptional situations where a plaintiff can reasonably show that he will again be subject to the alleged illegality." Id. Since he is no longer a Forest Service employee, he is no longer subject to the Forest Service policy he challenges as illegal.
Feit attempts to avoid the conclusion that he is no longer subject to the allegedly
Even if Feit had standing to seek equitable relief in federal court, the district court's dismissal of Feit's claims for declaratory and injunctive relief was proper because Feit, in challenging the alleged Forest Service policy prohibiting employees from participating in anti-spearfishing activities, sued the improper defendants. In his complaint Feit seeks relief from the defendants in their individual capacities only. The policy Feit challenges, however, is that of the Forest Service and is carried out by the defendants in their capacities as supervisory Forest Service employees, i.e., in their official capacities. Moreover, the equitable relief Feit requests — a declaration that the policy is unconstitutional and an injunction barring the defendants from implementing the policy in the future — can be obtained only from the defendants in their official capacities, not as private individuals. See Del Raine v. Carlson, 826 F.2d 698, 703 (7th Cir.1987). Thus, Feit's attempt to obtain declaratory and injunctive relief from the defendants in their personal capacities fails to state a claim upon which relief may be granted and his claims were properly dismissed even if he had standing to assert them.
Feit's claims for damages and equitable relief against the defendants are without merit. Feit's damages claim, premised on Bivens, is precluded because the comprehensive nature of the CSRA statute — the statutory scheme governing the rights of federal employees — and Congress' expertise and authority in the area of federal employer-employee relations are "special factors counseling hesitation" in the creation of Bivens remedies. With regard to Feit's claims for declaratory and injunctive relief, Feit lacks standing to pursue these claims as Feit is no longer a Forest Service employee and thus is no longer affected by the policies of the defendants. Accordingly, the district court's dismissal of Feit's action against Ward and Grapa is AFFIRMED.
In Spagnola, two panels of the District of Columbia Circuit issued opinions on the same day differing on the question of whether Bush precludes all Bivens remedies for alleged constitutional violations arising in the federal employment context or only when the aggrieved employee had other meaningful remedies under the CSRA. Compare Spagnola v. Mathis, 809 F.2d 16, 22-24 (1986), vacated in part, 809 F.2d 15 (D.C.Cir.1987) with Hubbard v. EPA, 809 F.2d 1, 7-9 (1986), vacated in part, 809 F.2d 15 (D.C. Cir.1987). The Court vacated the portions of the two opinions discussing this issue, and scheduled the matter for rehearing en banc. After considering the question in light of Chilicky, the Court unanimously held that the comprehensiveness of the CSRA system and Congress' expertise in the field of federal employment are "`special factor[s]' preclud[ing] the creation of a Bivens remedy for civil service employees and applicants who advance constitutional challenges to federal personnel claims," concluding that the "adequacy" of the plaintiff's remedies was irrelevant. Spagnola, 859 F.2d at 227, 230. We are particularly persuaded by the D.C. Circuit's holding in Spagnola, taking note that it is a unanimous en banc opinion of the court.