*

Honorable Maurice B. Cohill, Senior District Judge for the

Western District of Pennsylvania, sitting by designation.

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 97-6575 _______________

D. C. Docket No. CV 96-H-496-NE

GEORGE MILLER,

Plaintiff-Appellant,

versus

U.S. DEPARTMENT OF AGRICULTURE FARM SERVICES AGENCY, USDA, OFFICE

OF INSPECTOR GENERAL, et al.,

Defendants-Appellees.

______________________________

Appeal from the United States District Court

for the Northern District of Alabama

______________________________

(June 17, 1998)

Before ANDERSON and BIRCH, Circuit Judges, and COHILL*

, Senior

District Judge.

BIRCH, Circuit Judge:

In this appeal, we determine, as a matter of first impression,

whether a former employee of a county office of the United States
1

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)

2

Department of Agriculture Stabilization and Conservation Service

(“ASCS”) can bring a Bivens action against the federal government

officers responsible for his termination.1

 On summary judgment, the

district court ruled that alternate administrative remedies precluded

plaintiff-appellant from maintaining a Bivens suit. We affirm.

I. BACKGROUND

The Secretary of Agriculture (“the Secretary”) oversees three

levels of “representative” committees charged with assisting the

United States Department of Agriculture (“USDA”) in carrying out its

farm programs. See 16 U.S.C. § 590h(b). At the apex of this

structure, the Deputy Administrator supervises state committees

composed of farmers appointed by the Secretary. See 16 U.S.C. §

590h(b); 7 C.F.R. § 7.4. These state committees are “responsible

for carrying out the agriculture conservation program, the production

adjustment and price support programs, the acreage allotment and
3

marketing quota programs, the wool and mohair incentive payment

program, and any other program or function assigned by the

Secretary.” 7 C.F.R. § 7.20. Under these state committees, elected

county committees actually implement the ASCS’s programs. See

16 U.S.C. § 590h(b); 7 C.F.R. §§ 7.4, 7.21. Finally, below these

county committees are elected local committees that serve as

liaisons between farmers and the state and county committees. See

16 U.S.C. § 590h(b); 7 C.F.R. §§ 7.4, 7.9, 7.22. By regulation,

employees of the county and local ASCS committees are hired by

and serve at the pleasure of these committees. See 7 C.F.R. §§

7.28, 7.29. As a result, such workers are not “federal employees” for

purposes of the Civil Service Reform Act (“CSRA”) (codified in

various sections of 5 U.S.C.) and so may not avail themselves of its

protections. See, e.g., Hedman v. Department of Agriculture, 915

F.2d 1552 (Fed. Cir. 1990) (citing 5 U.S.C. 2105(a)).

In June 1983, plaintiff-appellant, George W. Miller, received an

appointment from the Madison County, Alabama ASCS Committee
4

(“the Mobile Committee”) to serve as its County Executive Director

(“CED”). See 16. U.S.C. § 590h(b)(5)(E); 7 C.F.R. § 7.21(b)(2).

Eleven years later, in March 1994, the Alabama State ASCS

Committee (“the Alabama Committee”) held a hearing to consider

removing Miller from his position because of charges that he had

violated ASCS policies upon his receipt of information of possible

criminal activity. Immediately following the hearing, the Alabama

Committee voted to terminate Miller’s employment pursuant to 7

C.F.R. § 7.28. According to Miller, however, the Alabama

Committee’s decision was motivated not by concern about his

alleged improper behavior but rather by a desire to punish him for

his Republican party affiliation.

After his removal, Miller requested a hearing before the Deputy

Administrator, pursuant to 7 C.F.R. §§ 7.30 and 7.31. As authorized

by 7 C.F.R. § 7.32, a designee of the Deputy Administrator held a

two-day hearing and issued a report to the Deputy Administrator

recommending Miller’s termination. Miller maintains that the Deputy
5

Administrator’s subsequent adoption of the recommendation

constituted a deprivation of due process. Miller further alleges that

improper motives inspired the Deputy Administrator’s confirmation

of Miller’s dismissal.

On February 26, 1996, Miller filed suit pro se in the district court

against a variety of federal officials and agencies, alleging violations

of his First Amendment right of free speech and his Fifth

Amendment right of due process. Although Miller initially sought

relief under 42 U.S.C. §§ 1983 and 1985(3), the district court

subsequently construed the complaint as asserting claims under

Bivens, since all of the defendants were federal agencies or officials.

On April 1997, the defendants-appellees (“Appellees”) moved to

dismiss, inter alia, on the ground that the Administrative Procedure

Act (“APA”), 5 U.S.C. §§ 701-706, provides an exclusive remedy for

improper terminations of ASCS county workers. On May 28, 1997,

the district court agreed that Miller’s right to judicial review under the
6

APA precluded him from bringing a Bivens action, and the court

therefore dismissed his suit.

II. DISCUSSION

On appeal, Miller renews his contention that he is entitled to

bring an action against Appellees for money damages. In assessing

a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),

a court must accept all of the facts in the complaint as true, granting

the motion only if it appears beyond doubt that the plaintiff can prove

no set of facts that would entitle him to relief. See St. Joseph’s

Hosp. v. Hospital Corp. of Am., 795 F.2d 948, 953 (11th Cir. 1986).

We review the district court’s decision to dismiss Miller’s claims de

novo. See McKusick v. City of Melbourne, 96 F.3d 478, 482 (11th

Cir. 1996).
7

In Bivens, the Supreme Court held that victims of Fourth

Amendment violations by federal officers could bring suit for money

damages in federal court even though no federal statute expressly

authorized such relief. See Bivens, 403 U.S. at 397, 91 S. Ct. at

2005. Although the Court subsequently allowed Bivens actions for

violations of other constitutional rights, it has more recently

“responded cautiously to suggestions that Bivens remedies be

extended into new contexts.” Schweicker v. Chilicky, 487 U.S. 412,

421, 108 S. Ct. 2460, 2467, 101 L. Ed. 2d 370 (1988). In particular,

the Court has emphasized that Congress is in a better position than

the courts to weigh the competing policy imperatives involved in the

creation of remedies for aggrieved employees. See Bush v. Lucas,

462 U.S. 367, 389, 103 S. Ct. 2404, 2417, 76 L. Ed. 2d 648 (1983).

Because of its better vantage point, Congress may preclude a

Bivens-type constitutional action by express declaration or by

creating an exclusive statutory remedy. See Chilicky, 487 U.S. at

421, 108 S. Ct. at 2467; Lucas, 462 U.S. at 377-78, 103 S. Ct. at
8

2411. Additionally, “special factors” may foreclose the bringing of a

Bivens action even “in the absence of affirmative action by

Congress.” Chilicky, 487 U.S. at 421, 108 S. Ct. at 2466 (internal

quotation marks omitted); Lucas, 462 U.S. at 377, 103 S. Ct. at

2411; Bivens, 403 U.S. 396-97, 91 S. Ct. at 2005. As the Court

explained in Chilicky:

[T]he concept of “special factors counselling hesitation in

the absence of affirmative action by Congress “ has

proved to include an appropriate judicial deference to

indications that congressional inaction has not been

inadvertent. When the design of a Government program

suggests that Congress has provided what it considers

adequate remedial mechanisms for constitutional

violations that may occur in the course of its

administration, we have not created additional Bivens

remedies.

487 U.S. at 423, 108 S. Ct. at 2468. Thus, before allowing Miller to

bring a Bivens action, we must determine whether Congress has

expressly precluded such a suit (through specific language to that

effect or through establishment of an exclusive remedy), and

whether any “special factors” counsel hesitation in extending Bivens
9

to allow aggrieved ASCS county workers to bring suits against their

superiors for money damages.

Although Miller has presented us with an issue of first

impression for this court, we do not write on an entirely blank slate.

Two Circuits, the Eight and the Ninth, have already explored

whether ASCS county staffers can bring Bivens actions against

federal officers who allegedly violated their constitutional rights. See

Krueger v. Lyng, 927 F.2d 1050 (8th Cir. 1991); Moore v. Glickman,

113 F.3d 988 (9th Cir. 1997). In Krueger, a panel of the Eighth

Circuit found an absence of either explicit congressional preclusion

or “special factors.” See Krueger, 927 F.2d at 1054-57. In the view

of the Krueger court, the administrative remedy made available by

the Secretary to terminated ASCS county workers is “hollow.” See

id. at 1056. Moreover, the Krueger court believed that “it is clear

that the general enabling language used in 16 U.S.C. § 590h(b)

cannot be read to evince an intent by Congress to provide a

separate (and less desirable) remedial scheme for ASCS county
10

office employees.” Id. at 1055. Therefore, the Krueger court saw no

indication that Congress intended “this meager remedy to be

Krueger’s exclusive remedy.” Id. at 1056. Moreover, because

ASCS county staffers’ “exclusion [from the CSRA] is solely the result

of the Secretary’s sua sponte decision to use a ‘non-traditional’

hiring method,” the Krueger court concluded that such workers’ lack

of a CSRA remedy reflects an “inadvertent omission” by Congress.

Id. Thus, the Krueger court held that ASCS county employees could

bring suit for Bivens damages against federal officials involved in

their terminations. See id. at 1057.

In Moore, however, a panel of the Ninth Circuit found Krueger

unpersuasive. Unlike the Krueger court, the Moore court believed

it had ample evidence not only that Congress is aware of ASCS

county staffers’ unique status but also that Congress has chosen to

give such workers only selective employment rights. See Moore,

113 F.3d at 992. Specifically, the Moore court noted that Congress

has granted ASCS workers:
11

entitlement to severance pay, 5 U.S.C. § 5595(a)(2)(B);

participation in the Civil Service Retirement System, 5

U.S.C. § 8331(1)(F); eligibility for group life insurance, 5

U.S.C. § 8701(a)(8); and eligibility for health insurance

benefits, 5 U.S.C. § 8901(1)(G). Former ASCS county

employees who have later taken civil service positions

governed by the CSRA receive credit for their ASCS

service, 5 U.S.C. § 3502(a)(4)(C)(i), and for their rights to

annual leave and transfer, 5 U.S.C. § 6312(a)(1).

Id. Further, the Moore court observed that, when Congress has

wished to confer CSRA “employee status” on ASCS county staffers,

it has done so by express terms, as in its inclusion of such workers

in the Civil Service Retirement System. See id. (citing 5 U.S.C. §

8331(1)(F)). Finally, the Moore court explained that, when Congress

restructured the Department of Agriculture in 1994, it explicitly

recognized the “non-employee” status of ASCS county workers.

See id. at 992-93; 7 U.S.C. § 6932(e)(1) (“In the implementation of

programs and activities assigned to the Consolidated Farm Service

Agency, the Secretary may use interchangeably in local offices of

the Agency both Federal employees of the Department and nonFederal employees of county and area committees established
1

Curiously, the Krueger court did not discuss the possibility

that an aggrieved ASCS county staffer might have a right to

judicial review under the APA. See Krueger, 113 927 F.2d at 1053

(stating that “[t]here is no provision for any sort of judicial

review” for ASCS county workers).

12

under section 8(b)(5) of the Soil Conservation and Domestic

Allotment Act . . . .”). In conjunction with this evidence of

congressional “advertence” regarding the status of ASCS county

staff, the Moore court also recognized that Congress has already

created a statutory remedy for non-CSRA workers through its

provision in the APA for judicial review of final agency orders. See

Moore, 113 F.3d at 994; 5 U.S.C. § 702.1 Therefore, the Moore

court concluded that ASCS county workers’ statutory right under the

APA precluded them from bringing Bivens actions. See Moore, 113

F.3d at 995.

Having carefully studied this split between our sister circuits, we

find Moore’s reasoning to be more persuasive and more consistent

with our precedents. As a federal worker outside the protections of

the CSRA, Miller already has a statutory right to judicial review

under the APA. See, Young v. United States, 498 F.2d 1211, 1218
2

See Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th

Cir. 1981) (en banc) (adopting as binding precedent all decisions

of the former Fifth Circuit handed down prior to October 1, 1981).

13

(5th Cir. 1974);2 see also Franks v. Nimmo, 796 F.2d 1230, 1239-40

(10th Cir. 1986); Heaney v. United States Veterans Admin., 756

F.2d 1215, 1219-22 (5th Cir. 1985). Because the Deputy

Administrator’s rejection of Miller’s appeal constitutes a final order,

he may bring suit in federal court for relief. See Franks, 796 F.2d at

1239-40; 5 U.S.C. § 702. Although the reinstatement and back pay

potentially available to Miller under the APA would not constitute a

complete remedy, the Constitution does not require Congress to

provide comprehensive relief for violations of federal employees’

constitutional rights. See Chilicky, 487 U.S. at 422-23; 108 S. Ct. at

2467.

Under our circuit’s precedents, the existence of a right to

judicial review under the APA is, alone, sufficient to preclude a

federal employee from bringing a Bivens action. See Gleason v.

Malcom, 718 F.2d 1044, 1048 (11th Cir. 1983) (per curiam); Grier v.
3

We regret that neither Miller nor Appellees have chosen to

cite these instructive cases from our circuit in their submissions

to this court.

14

Secretary of the Army, 799 F.2d 721, 725 n.3 (11th Cir. 1986).3 The

ample evidence, discussed above, that Congress has not only

recognized ASCS county staffers’ unique status (i.e., that they are

outside the protections of the CSRA) but also has acted to grant

such workers only selective employment rights, only strengthens the

necessary conclusion under our circuit’s precedents that Miller may

not seek a judicially-created damages remedy for violations of his

rights during the course of his termination. In sum, we hold that

Congress has not been “inadvertent” in providing Miller with only an

incomplete remedy under the APA and that this alternative remedy

precludes Miller from bringing a Bivens action for money damages

against Appellees in federal court.

III. CONCLUSION
15

Miller seeks to pursue a Bivens action against federal officers

who allegedly have violated his constitutional rights in terminating

him from his position as CED for the Mobile Committee. The only

remedy that Congress has provided Miller for the wrongs that he

claims to have suffered is that specified in § 702 of the APA.

Congress, however, has not failed to confer CSRA-protected status

on ASCS county workers through oversight or inadvertence;

Congress has recognized such staffers’ unique position and has

specifically granted them employment rights as it has thought

appropriate. Therefore, we hold that Miller’s right to judicial review

under the APA precludes him from bringing a Bivens action

concerning his termination from his position as CED for the Mobile

Committee, and we AFFIRM the decision of the district court.
ANDERSON, Concurring Specially:

I concur. I agree that our precedents indicate the result

reached in this case. See Grier v. Secretary of the Army, 799 F.2d

721 (11th Cir. 1986); Dynes v. Army Air Force Exchange Service,

720 F.2d 1495 (11th Cir. 1983); Gleason v. Malcom, 718 F.2d 1044

(11th Cir. 1983).