1 District Judge of the Southern District of Texas, sitting by

designation.

1 United States Court of Appeals,

Fifth Circuit.

No. 95-30964.

Claudious W. CHANNER, Petitioner-Appellant,

v.

Keith HALL, Warden; Gail Haynes; Bill Strunk; Ron Justice;

Immigration and Naturalization Service; Ms. Smith Food Services;

Janet Reno; and Nancy L. Hooks, Respondents-Appellees.

May 14, 1997.

Appeal from the United States District Court for the Western

District of Louisiana.

Before KING and HIGGINBOTHAM, Circuit Judges, and KAZEN, 1 District

Judge.

KAZEN, District Judge:

Background

Claudious W. Channer ("Channer"), a pro se appellant , was

scheduled to complete a federal prison sentence at the Federal

Correctional Institution at Oakdale, Louisiana ("Oakdale"), on

March 2, 1994. At his request, the Bureau of Prisons recalculated

his release date to January 29, 1994, to reflect jail-time credits.

Channer was released into INS custody on January 31, 1994 pursuant

to an Immigration and Naturalization Service ("INS") detainer. He

was class ified as an aggravated felon and held at Oakdale in "no

bond" status. Channer conceded his deportability and sought to be

deported prior to March 2, 1994, the dat e on which he had

originally been scheduled to comple te his federal sentence. He2

waived his right of appeal and received a final order of

deportation on March 2, 1994. On March 23, 1994, however, before

Channer could be deported, Connecticut officials executed a

detainer against him and took him into their custod y to serve a

twenty-year state sentenc e for armed robbery. During Channer's

detention at Oakd ale, both as a federal prisoner and as an INS

detainee, he worked in the Food Services Department from 4:30 a.m.

to 12:30 p.m. each day.

Channer brought an action in the Western District of

Louisiana, Lake Charles Division, against Keith Hall, the warden at

Oakdale during Channer's detention, and other federal officials and

emplo yees ("Appellees"). In an amended complaint filed in March

1994 and in later filings, Channer allege d that Appellees failed

expeditiously to deport him as allegedly required by the former 8

U.S.C. § 1252. He also alleged that the Appellees reduced him to

involuntary servitude in violation of the Thirteenth Amendment to

the U.S. Constitution by compelling him to work in the Food

Services Department while he was an INS detainee. He sought

injunctive and monetary relief.

Appellees filed a motion to dismiss or, in the alternat ive,

for summary judgment in which they raised the defense of qualified

immunity. After the magistrate judge issued his report and

recommendations, Channer filed a motion to compel discovery on the

Thirteenth Amendment issue. Appellees filed no summary judgment

evidence. In separate orders, the district court granted their

motion for summary judgment on all causes of action. The court did2 As the magistra te judge observed in his report and

recommendations, it appears that Channer's desire to have his

deportation expedited was fueled, at least in part, by his desire

to avoid serving his twenty-year Connecticut sentence. Connecticut

officials app arently were unaware that his sentence had been

recalculated to reflect jail-time credits.

3 not rule on the motion to compel discovery.

Channer raises four issues on appeal, only two of which merit

any discussion. First, he appeals the district court's order

dismissing his claim for damages arising out of the INS's failure

expeditiously to deport him pursuant to a since-repealed version of

8 U.S.C. § 1252. 2 Second, he appeals the order granting summary

judgment in favor of Appellees on his Thirteenth Amendment claim

for damages. Appellees again raise the qualified immunity defense,

which the magistrate judg e and district court did not reach. We

affirm.

INS's Failure to Deport

While this appeal was pending, the Illegal Immigration Reform

and Immigrant Responsibility Act ("IIRIRA"), §§ 305-306, Pub.L. No.

104-208, 110 Stat. 3009 (Sept. 30, 1996), was enacted. This

statute repealed 8 U.S.C. § 1252. The new provision which governs

the detention and removal of aliens ordered removed, 8 U.S.C.A. §

1231(h) (Supp.1997), provides that "[n]othing in this section shall

be construed to create any substantive or procedural right or

benefit that is legally enforceable by any party against the United

States or its agencies or office rs or any other person." The

effective date of this provis ion was April 1, 1997. IIRIRA, §

309(a). Because, as discussed below, Channer fails to state a4

claim under the repealed version of § 1252, we need not reach the

issue of whether the 1996 amendments to the Immigration and

Nationality Act ("INA") apply retroactively to his case.

Channer brings claims under the former 8 U.S.C. § 1252(c) and

§ 1252(i). The INA formerly provided that an alien who was not

deported within six months of receiving a final order of

deportation was to be released subject to supervision. 8 U.S.C. §

1252(c) (1994) (repealed 1996). The former 8 U.S.C. § 1252(i)

provided that "[i]n the case of an alien who is convicted of an

offense which makes the alien subject to deportation, the Attorney

General shall begin any deportation proceeding as expeditiously as

possible after the date of the c onviction." 8 U.S.C. § 1252(i)

(1994) (repealed 1996).

The INA also provided, however, that "[a]n alien sentenced to

imprisonment shall not be deported until such imprisonment has been

terminated by the release of the alien from confinement." 8 U.S.C.

§ 1252(h) (1994) (repealed 1996). When Channer was released to INS

custody after completing his federal prison sentence, he had not

yet begun to serve his Connecticu t prison sentence for armed

robbery. While no court appears to have addressed factual

circumstances similar to Channer's case, we conclude that, had the

INS "expeditiously" deported him before he began serving his

Connecticut sentence, it would have violated § 1252(h).

Moreover, Channer has no implied private cause of action for

damages for the INS's fai lure to expedite his deportation. In a

similar case, we held that an alien lacks standing under the5

Mandamus and Venue Act ("Mandamus Act"), 28 U.S.C. § 1361, or the

Administrative Procedure Act ("APA"), 5 U.S.C. §§ 500-706, to

compel the INS to commence deportation proceedings pursuant to

section 1252(i). G iddings v. Chandler, 979 F.2d 1104, 1110 (5th

Cir.1992). As stated in Giddings,

while § 1252(i) imposes a duty on the Attorney General to

begin proceedings once an alien is deemed deportable because

of a conviction, that statute also grants the Attorney General

discretion to proceed "as expeditiously as possible." ... We

read § 1252(i) as imposing a duty on the Attorney General to

deport criminal aliens, but we stop short of concluding that

this creates a duty owed to the alien.

Giddings, 979 F.2d at 1109-10 (quoting 8 U.S.C. § 1252(i)).

Neither the language nor the legi slative history of this section

suggests that Congress intended to create a private right of action

for aliens, and no circuit has recognized a private right of action

under section 1252(i). S ee, e.g., Urbina-Mauricio v. INS, 989 F.2d

1085, 1088 (9th Cir.1993). We decline to recognize such a right.

Dismissal of Channer's INA claim was proper.

Thirteenth Amendment

A. Standard of Review

We review the granting of summary judgment de novo, examining

the evidence in the light most favorable to the nonmovant. The

moving party will prevail if he has demonstrated that there is no

genuine issue of material fact and that he is entitled to judgment

a s a matter of law. H ale v. Townley, 45 F.3d 914, 917 (5th

Cir.1995). Furthermore, we must decide whether Channer has stated

a claim for a violation of a constitutional right before reaching

the issue of qualified immunity. Doe v. Rains County Indep. Sch.3 Channer also appeals the dismissal of his claim under the

13th Amendment for damages against the INS. No Bivens remedy is

available against a federal agency, FDIC v. Meyer, 510 U.S. 471,

482-86, 114 S.Ct. 996, 1004-06, 127 L.Ed.2d 308 (1994), and there

is no indication that Channer pursued a Federal Tort Claims Act

claim.

4 The Amendment's exception, which permit s involuntary

servitu de as punishment for a crime for which the party has been

duly convicted, would be inapplicable after Channer completed his

criminal sentence and became an INS detainee. While it is not

clear from the record that all of Channer's evidence on involuntary

servitude relates to his period of INS detention, Appellees do not

address this issue. For summary judgment purposes, therefore, we

treat this evidence as relating to the peri od in which he was

detained by the INS.

5 Section two "clothe[s] "Congress with power to pass all laws

necessary and proper for abolishing a ll badges and incidents of

slavery in the United States.' " J ones v. Alfred H. Mayer Co., 392

U.S. 409, 439, 88 S.Ct. 2186, 2203, 20 L.Ed.2d 1189 (1968) (quoting

The Civil Rights Cases, 109 U.S. 3, 20, 3 S.Ct. 18, 27-28, 27 L.Ed.

835 (1883)) (emphasis omitted). Appellees contend that there is no

direct private right of action under the Amendment because Congress

acting under § 2 is the creator and definer of 13th Amendment

rights. While it is true that suits attacking the "badges and

incidents of slavery" must be based on a statute enacted under § 2,

suits attacking compulsory labor arise directly under prohibition

of § 1, which is "undoubtedly self-executing without any ancillary

6 Dist., 66 F.3d 1402, 1404 (5th Cir.1995). 3

B. Analysis

The Thirteenth Amendment states:

Section 1. Neither slavery nor involuntary servitude, except

as a punishment for crime whereof the party shall have been

duly convicted, shall exist within the United States, or any

place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article

by appropriate legislation.

Channer alleges that, by forcing him to work from 4:30 a.m. to

12:30 p.m. every day in Oakdale's Food Services Department,

Appellees subjected him to involuntary servitude 4 in contravention

of the Thirteenth Ame ndment's first section. 5 We will assume,legislation" and "[b]y its own unaided force and effect

...

abolished slavery, and established universal freedom." The Civil

Rights Cases, 109 U.S. at 20, 3 S.Ct. at 28. The cases upon which

A ppellees rely are § 2 "badges and incidents" cases and are thus

inapplic able to Channer's claim. S ee, e.g., Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)

(suit under 42 U.S.C. § 1985(3) arising out of racially motivated

assault and battery); H olland v. Board of Trustees of Univ. Dist.

Colum., 794 F.Supp. 420, 424 (D.D.C.1992) ( holding that

discrimination-based "badges and incidents" s uit must be brought

under 42 U.S.C. § 1981, not directly under 13th Amendment).

6 We did not cite K ozminski in Watson. Instead, W atson's

definition of involuntary servitude relied on two pre- K ozminski

cases which held that psychological and private-sector economic

coercion did not constitu te involuntary servitude. S ee Flood v.

Kuhn, 316 F.Supp. 271, 281 (S.D.N.Y.1970), aff'd, 443 F.2d 264 (2d

Cir.1971), aff'd on other grounds, 407 U.S. 258, 92 S.Ct. 2099, 32

L.Ed.2d 728 (1972); United States v. Shackney, 333 F.2d 475, 486

7 arguendo, that the Thirteenth Amendment directly gives ri se to a

c ause of action for damages under the analysis articulated 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) and

its progeny. We proceed to the question whether the actions about

which Channer complains constitute involuntary servitude.

Our inquiry begins with United States v. Kozminski, 487 U.S.

931, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988). In that case, the

Supreme Court held that

the term "involuntary servitude" necessarily means a condition

of servitude in which the victim is forced to work for the

defendant by the use or threat of physical restraint or

physical injury, or by the use or threat of coercion through

law or the legal process.

Id. at 952, 108 S.Ct. at 2765 (emphasis added). K ozminski involved

a criminal prosecution, but we effectively extended its definition

of involuntary servitude to civil suits. S ee Watson v. Graves, 909

F.2d 1549 (5th Cir.1990). 6 In W atson, inmates who had participated(2d Cir.1964). These cases are consistent with Kozminski.

8 in a work-release program sued local law enforcement officials for

subjecting them to involuntary servitude. We recognized that the

inmates, despite their stat us as convicted criminals, retained

their civil right not be subjected to involuntary servitude because

they had not been sentenced to hard labor. S ee id. at 1551, 1552.

"Involuntary servitude" was defined as

an action by th e master causing the servant to have, or to

believe he has, no way to avo id continued service or

confinement. When the employee has a choice, even though it

is a painful one, there is no involuntary servitude. A

showing of comp ulsion is thus a prerequisite to proof of

involuntary servitude.

Id. at 1552. (citations omitted) (internal quotation marks

omitted).

Applying this rule, we held that the inmates failed to prove

compulsion. Rather, they had volunteered to work outside the jail

under a local policy that gave them "trusty" status, and the

choice of whether to work outside of the jail for twenty

dollars a day or remain inside the jail and earn nothing may

have indeed been "painful" and q uite possibly illegal under

state law, but the evid ence shows that neither [inmate] was

forced to work or continued to work against his will.

Id. at 1552-53; see also Brooks v. George County, Miss., 84 F.3d

157, 163 (5th Cir.1996) (holding that pretrial deta inee's choice

between periodically working outside jail in trusty status and

remaining in jail all day, whil e "painful," was not

unconstitutionally coercive); Franklin v. Kyle, 66 F.3d 323 (5th

Cir.1995) (unpublished opinion) (holding that forcing prisoner to

choose between working in prison industries program or risking loss9

of good-time credits was painful, but not unconstitutionally

coercive).

Channer argues that h e was intimidated and threatened with

solitary confinement if he failed to work. Because, however, he

presented no evidence that he or any other inmate had been

subjected to solitary confinement for refusing to work, the

district court fo und that he had not proved compulsion. It also

found that his labor was not forced because he had be en paid for

the work he performed while an INS detainee.

Channer, however, presented evidence of a policy at Oakdale to

place any inmate who refused to report to work, both criminal and

INS detainees, in a so-called "Segregation Unit." He cited the

Oakdale rule book that "[l]ate sleepers who are unable to maintain

their rooms or unable to arrive to work on time are subject to

disciplinary acti on." R. at 250. He included the affidavit of

Richard Haye, also an INS detainee at the time of Channer's

detention by the INS, who described a specific incident in which

Haye observed Channer being threatened with detention in the

segregation unit if he refused to return to the dish room to work.

R. at 248. Haye also averred that all inmates at Oakdale,

including himself and other INS detainees, were forced to work. R.

at 248-49. Assuming without deciding that segregated detention is

a form of legal p unishment, we find that there would be at least

some evidence that Channer's services were compelled by the use of7 Channer's services were n ot necessarily voluntary merely

because he was paid for his labors. While receiving payment for

services is relevant to determining volunta riness, we cannot

resolve that factual question against Channer on this record.

"Compensation for service may cause consent, but unless it does it

is no justification for forced labor." H eflin v. Sanford, 142 F.2d

798, 799 (5th Cir.1944).

10 legal coercion. 7

There are, however, two judicially-created exceptions to the

prohibition of involuntary servitude. K ozminski, 487 U.S. at 943,

108 S.Ct. at 2760. First, the government may compel its citizens,

by threat of criminal sanction, to perform certain civic duties.

See, e.g., Hurtado v. United States, 410 U.S. 578, 589 n. 11, 93

S.Ct. 1157, 1164 n. 11, 35 L.Ed.2d 508 (1973) (jury service);

Selective Draft Law Cases, 245 U.S. 366, 390, 38 S.Ct. 159, 165, 62

L.Ed. 349 (1918) (military service). Second, the Thirteenth

A mendment "was intended to cover those forms of compulsory la bor

akin to African slavery which, in practical operation, would tend

to produce like undesirable resu lts," B utler v. Perry, 240 U.S.

328, 332-33, 36 S.Ct. 258, 259-60, 60 L.E d. 672 (1916). It "was

not intended to apply to "exceptional' cases well established in

the common law at the time of the Thirteenth Amen dment," such as

laws preventing desertion by sailors. K ozminski, 487 U.S. at 944,

108 S.Ct. at 2760-61 (quoting Robertson v. Baldwin, 165 U.S. 275,

282, 17 S.Ct. 326, 329, 41 L.Ed. 715 (1897)).

Several courts have held that compelling individuals who are

involuntarily confined in mental institutions to perform

housekeeping tasks does not violate the Thirteenth Amendment. In

Bayh v. Sonnenburg, 573 N.E.2d 398, 412 (Ind.1991), the plaintiffs8 Because we hold that Channer's Th irteenth Amendment rights

were not violated, we do not reach the issue of qualified immunity.

We also fin d no merit to Channer's complaint with respect to the

motion to compel discovery and the alleged untimely objections to

the magistrate judge's report.

11 were mental hospital pa tients who performed a variety of work

activities while hospitalized, such as fixing meals , scrubbing

dishes, doing the laundry, and cleaning the building. The Indiana

Supre me Court held that such labor fit within the Thirteen

Amendment's "civic duty" exception. I d. at 410-11. Similarly, the

Second Circuit has held that inmates in mental hospitals can be

required to perform housekeeping chores. J obson v. Henne, 355 F.2d

129, 131-32 (2d Cir.1966). Like the mental hospital patients in

those cases, Channer performed a housekeeping chore, i.e., working

in Oakdale's Food Services Department. We hold that the federal

government is entitled to require a communal contribution by an INS

detainee in the form of housekeeping tasks, and that Channer's

kitchen service, for which he was paid, did not violate the

Thirteenth Amendment's prohibition of involuntary servitude. 8

For reasons stated, the judgment of the district court is

AFFIRMED.