*

Honorable Maurice B. Cohill, Senior District Judge for the Western District of Pennsylvania,

sitting by designation. 

 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) 

United States Court of Appeals,

Eleventh Circuit.

No. 97-6575.

George MILLER, Plaintiff-Appellant,

v.

U.S. DEPARTMENT OF AGRICULTURE FARM SERVICES AGENCY, USDA, Office of

Inspector General, et al., Defendants-Appellees.

June 17, 1998.

Appeal from the United States District Court for the Northern District of Alabama. (No. CV 96-H496-NE), James H. Hancock, Judge.

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 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 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 ("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 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 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).

 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."

Schweiker 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 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. at 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 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 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 "nontraditional' 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
 2

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, 927 F.2d at 1053

(stating that "[t]here is no provision for any sort of judicial review" for ASCS county workers). 

Congress has granted ASCS workers:

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 non-Federal employees of county and area committees established

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. § 702.2

 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
 3

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). 

 4

We regret that neither Miller nor Appellees have chosen to cite these instructive cases from

our circuit in their submissions to this court. 

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 (5th Cir.1974);3

 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. Secretary of the Army, 799

F.2d 721, 725 n. 3 (11th Cir.1986).4

 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

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, Circuit Judge, 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).