*

Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois,

sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 97-8423.

Kenneth W. LEE, Plaintiff-Appellant,

v.

Robert C. HUGHES, Jr.; Daniel C. Lanford, Jr., Defendants-Appellees.

July 9, 1998.

Appeal from the United States District Court for the Middle District of Georgia. (No. 5:96-CV-316-

3), Frank M. Hull, Judge.

Before CARNES, Circuit Judge, KRAVITCH, Senior Circuit Judge, and MILLS*

, Senior District

Judge.

KRAVITCH, Senior Circuit Judge:

In this case, we must decide whether a federal employee who is not afforded an

administrative or judicial remedy under the Civil Service Reform Act of 1978 (codified and

amended in various sections of 5 U.S.C.) ("CSRA" or "the Act") can bring a federal claim under

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999,

29 L.Ed.2d 619 (1971), in order to recover monetary damages for alleged constitutional violations,

and whether § 1981 provides a cause of action against individuals acting under color of federal law.

We answer both questions in the negative.

I.

Kenneth W. Lee ("Lee" or "plaintiff") was hired as a U.S. Probation Officer for the Middle

District of Georgia in 1983 and served in that capacity until his employment was terminated in 1996.
 1

The EEO Plan adopted by the Middle District of Georgia is identical to the EEO plan that

had been considered and approved by the Judicial Conference of the United States. 

 2

EEO Plan at 2. 

 3

EEO Plan at 3. The EEO Plan does not provide for a hearing upon request of the

complainant, and the record does not suggest that plaintiff here requested a formal hearing

subsequent to the Chief Judge's final decision in this case. In fact, it appears that plaintiff's

attorney, in a letter sent to the Chief Judge that stated objections to Lee's potential termination,

only suggested that a formal hearing would be appropriate at some future date. See Letter of

March 14, 1996 ("I will be present at your court this afternoon and if some resolution cannot be

had prior to the informal hearing scheduled for 1:30 p.m., then I would move the court to

continue said matter to a date after the responses have been filed by the parties with the

2

At the time of Lee's termination, Daniel Lanford ("Lanford") was the Chief U.S. Probation Officer

for the district, and Robert Hughes ("Hughes") was the Deputy Chief U.S. Probation Officer. Lee

protested his termination on the ground that it was improperly motivated by race and sought redress

through the Equal Employment Opportunity ("EEO") Plan for the Middle District of Georgia.1

A complainant seeking to initiate an action under the EEO Plan must file a timely

discrimination complaint with the EEO Coordinator, who then makes the necessary investigation,

consults with the parties, and prepares a report "identifying the issues, describing his or her findings

and recommendations, explaining what resolution, if any, was achieved, and defining what

corrective actions, if any, will be undertaken."2 If the complainant objects to the rejection or

cancellation of the complaint, he may request that the Chief Judge of the district review the matter.

The Chief Judge then must:

a. Conduct any additional investigation which he or she deems necessary;

b. Determine whether to interview the parties or other persons;

c. Determine whether to hold a formal hearing on the matter; and

d. Issue a final decision on the rejection, cancellation, or merits of the complaint if it is found that

no interviews or hearings are necessary.3
Probation Department, against whom the complaints will have been made. At that time, a formal

hearing would be appropriate."). 

3

A magistrate judge was appointed to investigate Lee's allegations and subsequently

recommended approval of Lee's termination. The Chief Judge of the district accepted the report and

approved the termination. Lee then filed suit in district court against his supervisors in their

individual capacities asserting a Bivens claim for alleged racial discrimination and alleging a

violation of § 1981.

The district court dismissed the Bivens claim for lack of subject matter jurisdiction.

Specifically, the court held that the CSRA is the exclusive vehicle through which federal employees

can challenge or remedy adverse personnel decisions, even under circumstances in which the CSRA

does not provide for administrative or judicial review of the personnel decision at issue. In the

alternative, the district court dismissed both claims for failure to state a claim upon which relief

could be granted. Lee appeals the dismissal of both claims.

II.

 Lee contends that the district court erred in dismissing his Bivens claim, because he

otherwise will not be afforded a judicial remedy for the alleged discrimination. Defendants, on the

other hand, argue that Congress intended for the CSRA to be the exclusive vehicle through which

federal employees can challenge adverse personnel decisions and that, as such, the CSRA precludes

plaintiff's Bivens claim for damages. We review de novo the district court's decision to dismiss

plaintiff's Bivens claim. See McKusick v. City of Melbourne, 96 F.3d 478, 482 (11th Cir.1996).

The CSRA "comprehensively overhauled the civil service system," Lindahl v. Office of

Personnel Management, 470 U.S. 768, 773, 105 S.Ct. 1620, 1624, 84 L.Ed.2d 674 (1985), and
4

created an elaborate "new framework for evaluating adverse personnel actions against [federal

employees]," id. at 774, 105 S.Ct. at 1624. The CSRA details the protections and remedies available

to federal employees in such actions, including the availability of administrative and judicial review.

See United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). The CSRA

divides civil service employees into three main classifications, see 5 U.S.C. §§ 3132, 2102, 2103;

Fausto, 484 U.S. at 441 n. 1, 108 S.Ct. at 670 n. 1, within which employees are further classified

as preference-eligible or nonpreference-eligible, see 5 U.S.C. § 2108. Specific protections and

remedies available under the CSRA are dependent upon the civil service employee's classification

within the Act. See, e.g., 5 U.S.C. § 7511; see generally Fausto, 484 U.S. at 445-49, 108 S.Ct. at

672-75 (discussing various chapters within the CSRA and the protections provided therein). The

parties do not dispute that Lee is a preference-eligible member of the excepted service and, as such,

did not have the right to file a petition with the Office of Special Counsel ("OSC") of the Merit

Systems Protection Board ("MSPB"). Although the remedies provided in the EEO Plan were

available to Lee, the CSRA did not provide him with judicial or administrative review of the adverse

personnel action alleged.

In Fausto, the Supreme Court considered whether the CSRA precluded judicial review under

the Tucker Act, 28 U.S.C. § 1491, for nonpreference-eligible members of the excepted service who,

under the CSRA, were not afforded administrative or judicial review of suspension for misconduct.

After examining the purpose of the CSRA, the entirety of the text, and the structure of review

established by the Act, the Court held that the "CSRA established a comprehensive system for

reviewing personnel action taken against federal employees," id. at 454, 108 S.Ct. at 677, and that

Congress deliberately excluded certain employees from the provision establishing administrative
5

and judicial review for adverse personnel actions. Although the Fausto Court specifically was

considering the remedies afforded under the CSRA in the context of nonpreference-eligible members

of the excepted service, this court has held that "Fausto applies to preference-eligible as well as

non-preference employees." Stephens v. Dept. of Health and Human Servs., 901 F.2d 1571, 1575

(11th Cir.) (holding that CSRA precluded Bivens claim for damages for allegedly prohibited

personnel practice where, under the CSRA, the OSC refused to petition MSPB with plaintiff's

complaint), cert. denied, 498 U.S. 998, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990). Most notably, this

court has recognized Fausto as "emphatically and conclusively establish[ing] the preemptive nature

of the CSRA." Id.

 In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 396,

91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971), the Supreme Court held that a plaintiff could state a

cause of action and recover money damages against a federal official for constitutional violations

occurring under the color of federal law. "A Bivens action is only permitted where 1) the petitioner

has no alternative means of obtaining redress, and 2) there are no "special factors counseling

hesitation.' " Stephens, 901 F.2d at 1577 (citing Bivens, 403 U.S. at 396-97, 91 S.Ct. at 2005). The

Supreme Court has limited the circumstances under which a Bivens claim may be asserted and has

held:

When the design of a Government program suggests that Congress has provided what it

considers to be adequate remedies for constitutional violations that may occur in the course

of the program's administration[, we have not created additional Bivens remedies].

Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460, 2468, 101 L.Ed.2d 370 (1988).

Although this circuit has "recognized that the comprehensive statutory scheme established

by Congress relating to federal employment (CSRA) precludes the maintenance of job-related
6

Bivens actions by federal employees," Stephens, 901 F.2d at 1577, this case presents the court with

a novel issue: whether a federal employee for whom the CSRA provides no administrative or

judicial review for adverse personnel actions can assert a Bivens claim for monetary damages against

individual defendants who allegedly have violated the complainant's constitutional rights. We hold

that the CSRA precludes a Bivens remedy in this case notwithstanding the fact that the CSRA does

not provide administrative or judicial review of the adverse personnel action.

Lee relies almost exclusively on Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d

846 (1979), in support of his argument that he should be afforded a Bivens remedy here. His

reliance is misplaced. In Davis, the federal-employee plaintiff, who was not protected by Title VII,

brought a Bivens action for workplace discrimination. The Supreme Court held that a Bivens action

was permissible because there was "no evidence ... that Congress meant § 717 [of Title VII] to

foreclose alternative remedies available to those not covered by the statute." Davis, 442 U.S. at 247,

99 S.Ct. at 2278. The Court noted that "[f]or Davis, as for Bivens, "it is damages or nothing.' " Id.

at 245, 99 S.Ct. at 2277. As an initial matter, the Davis Court did not consider the effect of the

CSRA on Davis's Bivens claim because the CSRA had been enacted immediately prior to the ruling

and the preemptive effect of the Act was not an issue before the Court. Furthermore, more recent

Supreme Court cases do not reflect the Davis Court's willingness to recognize a Bivens claim in

instances where there is a clear congressional intent to exclude certain classes of employees from

a statute's comprehensive remedial scheme, as is the case with the CSRA. For example, in Bush v.

Lucas, 462 U.S. 367, 388, 103 S.Ct. 2404, 2416, 76 L.Ed.2d 648 (1983), the court stated:

Given the history of the development of civil service remedies and the comprehensive nature

of the remedies currently available, it is clear that the question we confront today is quite

different from the typical remedial issue confronted by a common-law court. The question

is not what remedy the court should provide for a wrong that would otherwise go
7

unredressed. It is whether an elaborate remedial system that has been constructed step by

step, with careful attention to conflicting policy considerations, should be augmented by the

creation of a new judicial remedy for the constitutional violation at issue.

Accord United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988).

We recognize that this case is troubling because plaintiff was not afforded a congressionally

enacted judicial or administrative procedure through which to vindicate the alleged constitutional

wrong. Since the creation of the Bivens cause of action, however, the Court has "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), and specifically has

held that the exclusion of certain classes of employees from the remedies provided by the CSRA

reflects not congressional silence from which courts may imply that an excluded employee is "free

to pursue whatever judicial remedies he would have had before enactment of the CSRA," Fausto,

484 U.S. at 447, 108 S.Ct. at 673 (considering CSRA's effect on the Tucker Act), but rather

congressional intent to deny the excluded employee specific protections otherwise afforded by the

Act, see id. In light of Congress's deliberate exclusion of certain employees from the protections

of the CSRA and this country's long-respected separation of powers doctrine, courts should be

hesitant to provide an aggrieved plaintiff with a remedy where Congress intentionally has withheld

one.

Although "[n]o Supreme Court opinion holds squarely that the CSRA always prevents

federal employees from bringing Bivens actions to right job-related wrongs," Saul v. United States,

928 F.2d 829, 836 (9th Cir.1991), at least three courts of appeals have held that "the CSRA

precludes even those Bivens claims for which the act prescribes no alternative remedy," Saul, 928

F.2d at 840. See id. (holding that "the CSRA is a special factor counseling against recognition of
 4

We recognize that the Eighth Circuit recently held that a local EEO Plan is not a special

factor counseling hesitation and therefore allowed plaintiff's Bivens claim to proceed. See Duffy

v. Wolle, 123 F.3d 1026, 1033 (8th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1839, ---

L.Ed.2d ---- (1998). It appears that the defendants in Duffy never suggested that the CSRA

preempted plaintiff's claim, but rather argued only that plaintiff's Bivens claim should have been

dismissed because the local EEO Plan provided plaintiff with a remedy. Because the Eighth

Circuit did not address the CSRA's effect on Duffy's Bivens claim, Duffy is not instructive here. 

8

a Bivens remedy"); Lombardi v. Small Business Admin., 889 F.2d 959, 961 (10th Cir.1989) ("The

recent Supreme Court cases of Fausto ... and in particular the most recent Chilicky case ... indicate

that the Court will not create a Bivens remedy in a Federal employment action even if no remedy

at all has been provided by the CSRA."); Volk v. Hobson, 866 F.2d 1398, 1403-04 (Fed.Cir.)

("Whether or not an employee has access to all of the procedures and remedies of the CSRA ..., it

illustrates the logic inherent in the Supreme Court's admonitions to leave the federal personnel

system to Congress[, which is in a] far better position to set the policy and adjust the system than

judges confronting ad hoc situations and trying to fill perceived gaps in the program by allowing

employees to prosecute Bivens suits against each other."), cert. denied, 490 U.S. 1092, 109 S.Ct.

2435, 104 L.Ed.2d 991 (1989); see also Mitchum v. Hurt, 73 F.3d 30, 35 (3d Cir.1995) (holding that

the CSRA does not prevent award of injunctive relief, but implying that the Act is a special factor

militating "against the creation of a new nonstatutory damages remedy"). No circuit has held to the

contrary.4

We agree with the Ninth Circuit's conclusion that "[t]he CSRA's comprehensive remedial

provisions convince us that there was no inadvertence by Congress in omitting a damages remedy

against supervisors whose work-related actions allegedly violate a subordinate's constitutional

rights," Saul, 928 F.2d at 840, and accordingly hold that the CSRA is a special factor counseling

against recognition of a Bivens suit here. In light of the comprehensive nature of the CSRA and the
9

Supreme Court's conclusion that the exclusion of certain employees from judicial review of adverse

personnel decisions reflects "manifestation of a considered congressional judgment," Saul, 928 F.2d

at 840, plaintiff is precluded from asserting a Bivens claim in an attempt to recover damages for the

constitutional violations alleged here.

III.

 Lee contends, without citing supporting authority, that the district court also erred in holding

that " § 1981 does not support a cause of action for claims of employment discrimination arising

under color of federal law." We review de novo the district court decision to dismiss the claim. See

McKusick v. City of Melbourne, 96 F.3d 478, 482 (11th Cir.1996). Because we agree with the

district court's conclusion that Lee's allegations of discrimination cannot support a claim under §

1981, we affirm the dismissal of that claim.

Both circuit precedent and the text of § 1981 compel us to hold that a plaintiff cannot

maintain a § 1981 claim against a federal defendant acting under color of federal law. Prior to the

Civil Rights Act of 1991, this court had held that a "suit against the federal defendant acting solely

under color of federal law could not have been brought pursuant to any of the statutes enumerated

in [42 U.S.C.] § 1988." Martin v. Heckler, 773 F.2d 1145, 1152 (11th Cir.1985) (emphasis in

original). Section 1981 is one of the statutes enumerated in § 1988. See 42 U.S.C. § 1988(b).

Through the Civil Rights Act of 1991, Congress amended § 1981 and added subsection (c), which

provides that "[t]he rights protected by this section are protected against impairment by

nongovernmental discrimination and impairment under color of state law." 42 U.S.C. § 1981(c).

Accordingly, the language of § 1981 is clear: Section 1981 provides a cause of action for

individuals subjected to discrimination by private actors and discrimination under color of state law,
 5

We are unaware of any court that has held otherwise. Cf. Espinueva v. Garrett, 895 F.2d

1164, 1165 (7th Cir.) ("Section 1981 does not apply to employment discrimination cases

involving the federal government ...."), cert. denied, 497 U.S. 1005, 110 S.Ct. 3241, 111 L.Ed.2d

751 (1990); Williams v. Glickman, 936 F.Supp. 1, 4 (D.D.C.1996) ("Weighing the inconclusive

legislative history and the statute's general statement of purpose against plain, unambiguous

statutory language, the Court must apply the plain language of the statute and dismiss plaintiffs'

§ 1981 claim because the plaintiffs do not allege impairment of rights by nongovernmental

discrimination or impairment under color of state law."); Carlton v. Ryan, 916 F.Supp. 832, 838

(N.D.Ill.1996) (stating that " § 1981 does not apply to the federal government"); La Compania

Ocho, Inc. v. U.S. Forest Serv., 874 F.Supp. 1242, 1250-51 (D.N.M.1995) (noting that "section

717 of Title VII constitutes the exclusive remedy for federal government discrimination in the

employment context," but holding that § 1981 applies against the federal government for

non-employment racial discrimination). 

 6

We note that the district court was incorrect to conclude that it lacked subject matter

jurisdiction, but was correct to dismiss for failure to state a claim. See Bell v. Hood, 327 U.S.

678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). We therefore affirm the district court's

judgment. See Bonanni Ship Supply, Inc. v. United States, 959 F.2d 1558, 1561 (11th Cir.1992)

("[T]his court may affirm the district court where the judgment entered is correct on any legal

ground regardless of the grounds addressed, adopted or rejected by the district court."). 

10

but does not provide a cause of action for discrimination under color of federal law.5 Because we

find no basis for Lee's argument that § 1981 should afford him relief, we affirm the district court's

dismissal of that claim.

IV.

Accordingly, we AFFIRM the district court's order dismissing Lee's claims for damages

under Bivens and 42 U.S.C. § 1981.6