CAROLYN KING PALERMO, PETITIONER V. DEWAYNE ROREX, ET AL.

   No. 86-1838

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Fifth Circuit

   Memorandum for the Respondents in Opposition

   Petitioner contends that the district court erred in dismissing her
suits seeking damages from federal officials for their involvement in
allegedly unconstitutional and tortious personnel actions directed at
her husband, a federal employee who was supervised by respondents.

   1. Petitioner brought two separate damages actions against
respondents, alleging that their actions contributed to the death of
her husband, a former IRS employee.  Petitioner filed one complaint in
Louisiana state court, in the Civil District Court for the Parish of
Orleans.  She filed the other complaint in the United States District
Court for the Eastern District of Louisiana.  The state court action
subsequently was removed to federal court and consolidated with the
federal action.  Pet. App. A3.

   The gravamen of the complaints, which are virtually identical, is
that respondents, who were Mr. Palermo's supervisors at the IRS, /1/
wrongfully commenced disciplinary proceedings against him with the
intention of inflicting mental and emotional distress.  The complaints
further alleged that these actions caused or contributed to Palermo's
suicide on October 3, 1983.  The state court action alleged that
respondents' conduct was tortious;  the federal court action alleged
that respondents had violated Palermo's constitutional rights to due
process and to be free from cruel and unusual punishment.  Pet. App.
A3-A4.

   The particular allegations of the complaints were as follows:  In
February 1980, respondent Rorex told Palermo that he was being
"rotated" to a different position within the IRS and that the
"rotation" would last only 12 months.  Palermo understood that at the
end of that time period he would be permitted to return to his
original position.  However, Palermo was never "rotated" back to his
previous position.  Apparently as a result of the transfer and other
job-related pressures, Palermo developed emotional and psychological
problems, suffered a nervous breakdown, and was hospitalized.  Pet.
App. A4-A5.

   The complaints further alleged:  In April 1983, Rorex brought a
disciplinary action against Palermo for conduct related to his
breakdown.  In that same month, Palermo again was hospitalized for his
emotional problems.  Subsequently, although respondents were advised
by Palermo's psychiatrist of the seriosness of Palermo's mental
illness, Rorex informed Palermo that disciplinary action would be
taken against him if he attempted to return to work.  On July 2, 1983,
Palermo applied for disability retirement;  that request was denied in
August 1983.  Palermo then returned to work, and in September 1983
respondents reinstated the disciplinary action against Palermo;  they
requested that Palermo be given a disciplinary downgrade and did not
accede to his request to take a voluntary downgrade.  Palermo
committed suicide on October 3, 1983.  Pet. App. A5.

   2. The district court granted respondents' motion to dismiss the
complaints.  At the hearing on that motion, the court explained orally
that it was dismissing the suits because "in this case * * * there is
an exercise in the judgment of the employer/employee relationship * *
* (and) I'm satisfied that the two cases (Bush v. Lucas, 462 U.S. 367
(1983), and Gremillion v. Chivatero, 749 F.2d 276 (5th Cir. 1985))
preclude the claim * * * ." (II R. 7-8).

   The court of appeals affirmed (Pet. App. A3-A17).  Accepting
arguendo the truth of the allegations of the complaints, the court
held that petitioner had failed to state a claim for which relief
could be granted.  The court explained that in Bush v. Lucas, 462 U.S.
367 (1983), this Court had recognized that the special nature of the
federal employer-employee relationship counselled against the creation
of an additional constitutional remedy.  The court concluded (Pet.
App. A12):  "In this highly regulated area of federal employment,
where Congress has created exhaustive administrative avenues for
employee disputes, there are those very strong 'special factors
counselling hesitation' preventing us from creating a Bivens-type
constitutional remedy for violations of employees(') constitutional
rights arising in and from the employment context." /2/

   Relying on Barr v. Matteo, 360 U.S. 564 (1959), the court of
appeals rejected petitioner's state law tort claim.  The court held
that respondents were absolutely immune from liability for the
common-law torts alleged in the state court complaint because all of
the actions complained of in that suit came within the scope of
respondents' employment as Palermo's supervisors.  Pet. App. A13-A16.
The court distinguished Dretar v. Smith, 752 F.2d 1015 (5th Cir.
1985), where the court of appeals had stated that absolute immunity
was not available in a case where the defendant was charged with
committing a severe and maliciously-inspired physical battery.  The
court stated that to extend its statement regarding a physical battery
to "less tangible intentional inflictions of emotional distress" would
"open the floodgates to actions by every public employee for emotional
distress for every administrative action taken by a federal official
(, which) would surely contradict the reasoning in Barr (v. Matteo,
supra)" (Pet. App. A15).

   3. Petitioner contends that the court of appeals erred in holding
that Bush v. Lucas, supra, required rejection of her attempt to bring
a nonstatutory suit for damages based on alleged constitutional
violations.  In Bush, this Court held that a federal employee could
not bring such an action against his superiors based on the allegation
that his dismissal was the product of unconstitutional conduct.  The
Court explained (462 U.S. at 368):  "Because such claims arise out of
an employment relationship that is governed by comprehensive
procedural and substantive provisions giving meaningful remedies
against the United States, * * * it would be inappropriate for us to
supplement that regulatory scheme with a new judicial remedy." Bush
controls this case.  /3/

   Petitioner appears to recognize that Bush would be directly on
point if Palermo were alive.  The thrust of petitioner's contention,
as we understand it, is that now that Palermo is dead, and can no
longer pursue a reinstatement remedy, a constitutional suit for
damages must be permitted (see Pet. 6-7).  But his death does not
alter the fact that Congress has prescribed procedures for remedying
improper dismissals or demotions of federal employees, even if the
claim is constitutionally based, and that this Court has determined
that those remedies are not to be supplemented by a nonstatutory
action for damages.  The death of a federal employee cannot suddenly
make appropriate the availability of such a damage suit, particularly
when it is his own actions that have deprived him of administrative
remedies made available by Congress.  Here, as the court of appeals
recognized (see Pet. App. A12-A13), petitioner's claim that Palermo's
suicide was caused by respondents' allegedly unconstitutional
personnel decisions seeks an element of damages for which Congress has
not provided a remedy.  But this Court in Bush specifically held that
the fact that the administrative remedies Congress has provided do not
allow complete recovery is not enough to warrant importing a
non-statutory remedy into the federal employment arena (see 462 U.S.
at 372, 388), and that holding is dispositive here.  /4/

   4. Petitioner asserts (Pet. 9-10) that the Court should grant
certiorari here to resolve a conflict in the circuits regarding the
scope of Barr v. Matteo, supra.  The decision below, however, does not
even arguably conflict with any of the decisions cited by petitioner.

   It is true that the Fifth Circuit stated on an earlier occasion
(Dretar v. Smith, 752 F.2d at 1018), and reiterated here (Pet. App.
A16), that it disagrees with the courts that have stated that there
can never be an absolute immunity defense to an allegation of battery.
 Compare Araujo v. Welch, 742 F.2d 802 (3d Cir. 1948);  McKinney v.
Whitfield, 736 F.2d 766 (D.C. Cir. 1984).  But that issue is not
involved here, where there is no allegation that respondents committed
a battery upon Palermo.  Rather, the alleged tort is intentional
infliction of emotional distress, which the court in Araujo
specifically held to be subject to an absolute immunity defense (742
F.2d at 806).  All of the cases relied upon by petitioner simply hold
that the defendant's conduct in those cases, such as battery or sexual
harassment, exceeded the "outer perimeter of (their) line of duty"
(Barr v. Matteo, 360 U.S. at 575 (plurality opinion)).  That clearly
was not the case here, where the only allegations made against the
respondents are that they transferred Palermo to a different job and
commenced a disciplinary action against him within the proper
procedural channels.  In the words of the court of appeals, "(f)ew
actions could be closer to the center of the scope of (respondents')
employment as supervisors, and (they) certainly do not begin to test
the perimeters" (Pet. App. A16).  There is no reason whatsoever to
believe that any other court of appeals would have denied an absolute
immunity defense for this conduct on the ground that it exceeded the
"outer perimeter" of the scope of respondents' employment.  /5/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   SEPTEMBER 1987

   /1/ DeWayne Rorex was the Chief, Collection Division, Jack
Chivatero was a District Director, and Charles Hoyle was an Assistant
District Director.

   /2/ The court found that petitioner's Eighth Amendment claim was
"patently frivolous," because the prohibition against cruel and
unusual punishment "applies only in criminal actions, following a
conviction" (Pet. App. A13).

   /3/ We note that, quite apart from the impact of Bush, it is clear
that petitioner has not stated a claim for relief.  Even if a
nonstatutory damages action were available here in appropriate
circumstances, it is not apparent that petitioner could bring such a
suit to recover damages for alleged violations of her husband's
constitutional rights.  More importantly, it is plain that such a suit
would have no chance of success in this case, even if all the
allegations of petitioner's complaints are true.  As the court of
appeals noted, petitioner's Eighth Amendment claim is frivolous.  And,
because respondents are accused of doing no more than pursuing a
disciplinary proceeding against Palermo through the normal procedural
channels, it is difficult to see how they could have violated any due
process rights of his, much less have committed the violation of
"clearly established * * * constitutional rights" that would have to
be shown in order to overcome their qualified immunity.  See, e.g.,
Mitchell v. Forsyth, 472 U.S. 511, 524 (1985).

   /4/ To the extent Palermo's death was a result of his federal
employment, petitioner may have a claim for benefits under the Federal
Employees Compensation Act, 5 U.S.C. 8101 et seq.  We understand that
petitioner has filed such a claim, which is now pending before the
Employees' Compensation Appeals Board of the Department of Labor (ECAB
Docket No. 87-731;  OWCP File No. A7-187400).

   /5/ Petitioner does not dispute that respondents were of sufficient
rank in the federal hierarchy, and had sufficient responsibility, to
be entitled, under Barr v. Matteo, supra, to invoke absolute immunity
in appropriate circumstances.  Nor, we submit, would petitioner have
had a persuasive basis for claiming otherwise, in light of the
considerable discretion that each of the respondents must exercise in
the course of his duties.  There is, accordingly, no need for the
Court to hold this case pending the decision in Westfall v. Erwin,
cert. granted, No. 86-714 (Mar. 2, 1987), which involves the question
of the type of employee that is entitled to the absolute immunity
defense.