UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL KOSTISHAK,

Plaintiff-Appellant,

v.

PAUL MANNES, Chief Judge;

No. 97-1500

JAMES F. SCHNEIDER, Bankruptcy

Judge; E. STEPHEN DERBY,

Bankruptcy Judge,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Robert R. Merhige, Jr., Senior District Judge,

sitting by designation.

(CA-95-2788-PJM)

Argued: March 5, 1998

Decided: April 22, 1998

Before MURNAGHAN, Circuit Judge, KEELEY,

United States District Judge for the

Northern District of West Virginia, sitting by designation,

and MOON, United States District Judge for the

Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Joel Paul Bennett, LAW OFFICES OF JOEL P. BENNETT, P.C., Washington, D.C., for Appellant. Kaye A. Allison,
Assistant United States Attorney, Baltimore, Maryland, for Appellees.

ON BRIEF: Lynne A. Battaglia, United States Attorney, Baltimore,

Maryland, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

A former Bankruptcy Clerk, Michael Kostishak, brought suit

against Bankruptcy Judges Mannes, Schneider and Derby for various

claims challenging his forced resignation. Kostishak pursued these

claims through the administrative process of the Model Equal

Employment Opportunity Plan adopted for the District of Maryland.

His claims were denied by then-Chief Judge Black, and his appeal to

the Judicial Council of the Fourth Circuit was also denied. Kostishak

then brought this suit in district court, where it was dismissed on summary judgment. Kostishak has appealed the dismissal to us. Because

we believe that an adequate alternative remedy existed for the vindication of Kostishak's constitutional rights, to the extent that he has

alleged a violation of those rights, we affirm the grant of summary

judgment.

I.

After two years of borderline performance reviews, Bankruptcy

Judge Mannes asked Michael Kostishak, the Clerk of the United

States Bankruptcy Court for the District of Maryland, to tender his

resignation. Kostishak resisted, and Judge Mannes thereafter contacted the other Bankruptcy Judges, who all signed a letter terminating Kostishak.

Kostishak claimed that his termination was not due to poor work

performance, but rather was discrimination. He alleged that the firing

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was done in retaliation against him because he intended to serve as

a witness for another Bankruptcy Court employee who claimed racial

discrimination by Judge Mannes. Kostishak also claimed that the firing was discrimination based upon his age (60) and disability (hypertension).

Because Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 and the Americans With Disabilities Act of 1990 do not apply to judicial branch employees,

Kostishak did not sue for the alleged discrimination. Instead he filed

administrative claims pursuant to the court's Equal Employment

Opportunity (EEO) Plan. The EEO coordinator, Joseph Haas,

reviewed Kostishak's complaint and the Judges' response and found

Kostishak's claims to be meritless.

Kostishak requested review of this determination by Chief Judge

Black of the District of Maryland. Chief Judge Black reviewed the

claims based on the filings, without interviewing Kostishak or conducting a hearing. Chief Judge Black agreed with Haas that the claim

was meritless and wrote a letter to Kostishak in which he explained

his findings. Kostishak appealed to the Judicial Council for the Fourth

Circuit, who denied his appeal in a two-sentence letter.

Kostishak then brought this complaint in federal district court,

alleging a Bivens claim for discrimination, deprivation of property

and liberty without due process of law, and violation of First Amendment rights. The district court dismissed some of the claims and

granted summary judgment as to the others. Kostishak brings this

appeal.1

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1 Kostishak does little to advance his appeal through his brief. In his

"argument," the entire body of which totals only five pages, he merely

sets forth at length the standards for granting summary judgment and

then conclusorily asserts that the standards were not met. He does not

explain what genuine issues of material fact he believes he has demonstrated; in fact, he never even states what his claims are, much less

makes any actual arguments about them.

Kostishak asserts in his brief that he was pro se below and thus we

should be more forgiving than we normally would be before dismissing

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II.

A.

The district court correctly granted summary judgment on Kostishak's discrimination claims. Kostishak asserts that the Bankruptcy

Judges forced him to resign in retaliation for his participation as a witness to another employee's claim for racial discrimination, or alternatively as discrimination against him because of his age (he was 60 at

the time).2 Because neither Title VII of the Civil Rights Act of 1964

nor the Age Discrimination in Employment Act of 1967 ("ADEA")

apply to employees of the federal judiciary, Kostishak brings his

claims directly under the Constitution, as a Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

action for deprivation of Fifth Amendment rights. We will not fashion

a Bivens remedy, however, if Congress has explicitly provided that an

equally effective statutory remedy is exclusive, or if there are other

"special factors counselling hesitation." United States v. Stanley, 483

U.S. 669, 678 (1987).

In Davis v. Passman, 442 U.S. 228 (1979), the Supreme Court

"held that the Due Process Clause of the Fifth Amendment gave [the

plaintiff] a federal constitutional right to be free from official discrimination and that she had alleged a federal cause of action," Bush v.

Lucas, 462 U.S. 367, 376-77 (1983) (citing Davis). However, "[i]n

reaching the conclusion that an award of damages would be an appropriate remedy, [the Court] emphasized the fact that no other alternative form of judicial relief was available." Id. at 377. On the other

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his case. The assertion is simply not true: Kostishak was not pro se

before the district court, but rather was represented by the same attorney

who represents him now on appeal. See J.A. at 12 (complaint); J.A. at

236 (plaintiff's opposition to defendant's motion to dismiss or, in the

alternative, for summary judgment). Nor was Mr. Kostishak pro se during the administrative proceeding; in fact he explained on his original

complaint of discrimination that he was represented by another attorney.

J.A. at 36.

2 Apparently, Kostishak has abandoned the disability-discrimination

claim he earlier pursued.

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hand, where Congress has established an adequate alternative remedial scheme for the vindication of constitutional rights, the Court has

refused to extend a Bivens remedy, even if the Congressional scheme

is not as effective as a Bivens remedy would be. See id. at 388-90;

Schweiker v. Chilicky, 487 U.S. 412, 425-27 (1988). The establishment of such a scheme is a "special factor" that counsels hesitation

before we imply a judicially created remedy. See McCarthy v.

Madigan, 503 U.S. 140, 151-52 (1992).

Noting that Congress had specifically decided not to apply Title

VII to the federal judiciary,3see Congressional Accountability Act of

1995, Pub. L. No. 104-1 (1995), 2 U.S.C. §§ 1301, 1434, the district

court refused to imply a Bivens remedy because Kostishak had an

adequate alternative remedy: Kostishak could file an administrative

complaint pursuant to the Equal Employment Opportunity Plan promulgated by the Judicial Council for the Fourth Circuit and, if his

administrative complaint were successful, he could pursue a claim for

damages under the Back Pay Act, 5 U.S.C. § 5596. The district court

found that the EEO plan and Back Pay Act provided an adequate, if

not equally as effective, remedy for Kostishak's alleged deprivation

of rights. Compare Garcia v. Williams, 704 F. Supp. 984, 988-92

(N.D. Cal. 1988) (before revision of the Back Pay Act, holding that

a judicial branch employee had no effective remedy for discrimination and there were no other special factors counselling hesitation,

and therefore allowing a Bivens claim for discrimination), with Fultz

v. Waldron, 1994 WL 146361, *4-*7 No. 93-891 (D.N.J. April 19,

1994) (refusing to recognize a Bivens claim for discrimination, and

distinguishing Garcia, after the Back Pay Act had been revised to

allow damages for violations found under the Equal Employment

Opportunity plan).

Kostishak objects that the procedures provided by the Equal

Employment Opportunity Plan and the Back Pay Act are not adequate

to protect his rights because they do not provide"the opportunity for

a due process hearing before an independent adjudicator." Brief of

Appellant at 8. He argues that "a paper appeal to the supervisors of

the discriminating officials without any right to discovery, was woefully inadequate." Id.

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3 The same is true of the ADEA.

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Although affording a hearing would have been preferable, we do

not believe that one is necessary in every case for the EEO procedure

to be constitutionally adequate. It is important to note that the EEO

plan does provide for a hearing if "the Chief Judge or a designee finds

that a hearing is necessary." At such a hearing, each party has the

right to representation, to present evidence and to cross-examine

adverse witnesses. But where the evidence is uncontested or clear

enough that the Chief Judge or his designee can fairly review the merits of the complaint without such a hearing, the Constitution does not

demand that one be held.

Even in Title VII or ADEA cases, if the facts are uncontested, a

judge may find for a claimant or dismiss a claim as a matter of law

on summary judgment. Here, Judge Black found that

The only evidence of . . . retaliation [for Kostishak's role as

a witness to the racial discrimination charge] is the proximity of these events [Kostishak's firing] to the filing of the

[racial discrimination] complaint. Any inference to be drawn

therefrom is far outweighed by a review of the entire record

reflecting [Kostishak's] deficiencies in the operation of the

office . . . .

And Kostishak had "presented no evidence whatsoever to indicate

that [his] age played any part in the actions by the Court other than

the fact that [his] successor is younger than[he.]"4 These findings by

Chief Judge Black are equivalent to a finding by a judge in a Title VII

or ADEA case that Kostishak had not offered sufficient evidence to

make out a prima facie case of retaliation or discrimination, and that

he could not offer any evidence to rebut his employer's proffered

non-discriminatory justification. In such a situation Kostishak would

not be entitled to a trial-type hearing, but would lose on summary

judgment. We find it inappropriate to hold that the EEO plan's dismissal of these claims without a hearing was constitutionally inadequate in the circumstances presented.

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4 Additionally, "[h]andicap discrimination could not have been the

basis for the adverse personnel actions taken against [him] since [his]

alleged handicap was unknown to the Court at the time of the adverse

actions . . . ."

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B.

Kostishak also alleges that his due process rights were violated

because he was deprived of his job without being afforded a hearing.

However, the "procedural safeguards encompassed by the due process

clause extend to appellant's continued employment only if [he] had

a property interest in that employment." Pittman v. Wilson County,

839 F.2d 225, 226-27 (4th Cir. 1988). Kostishak's claim in his complaint that he "has a property right in his continued employment with

the Bankruptcy Court, pursuant to the Fifth Amendment to the United

States Constitution," is incorrect.

Kostishak has not alleged that he had any employment contract or

any promise of tenure. Apparently he is an employee at will. Mere

subjective expectation of continued employment, see Perry v.

Sindermann, 408 U.S. 593, 603 (1972), or longevity of employment,

see McNeill v. Butz, 480 F.2d 314, 320 (4th Cir. 1973), do not support

a cognizable property interest under the Constitution. "A person's

interest in a benefit is a `property' interest for due process purposes

if there are such rules or mutually explicit understandings that support

his claim of entitlement to the benefit and that he may invoke at a

hearing." Perry, 408 U.S. at 601. Because Kostishak has alleged no

such rules or mutually explicit understandings, this claim was properly dismissed.

C.

Kostishak also alleges a deprivation of liberty without due process.

In his complaint, Kostishak asserts that he "has a liberty right pursuant to the Fifth Amendment to the United States Constitution to hold

employment and to seek employment free of the stigma of false and

defamatory information being disseminated about him." The Supreme

Court has recognized that:

liberty might be implicated if the state made charges against

the employee which "might seriously damage his standing

and associations in his community," as, for example, accusations of dishonesty, disloyalty, or immorality. Thus, "liberty" is implicated and procedural due process is required

when government action threatens an employee's good

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name, reputation, honor, or integrity. Secondly, the Court

explained that government dismissal may abridge liberty if

it imposes a "stigma or other disability" which forecloses a

discharged employee's freedom to take advantage of other

employment opportunities.

McNeill, 480 F.2d at 319. Kostishak asserts in his complaint that he

has been damaged by the "stigmatization of his name and reputation,"

and that he has suffered "emotional distress, humiliation and personal

indignity resulting from [his] loss of employment and the loss of his

good name." These assertions are too vague and general to support a

claim.

The Fourth Circuit addressed a similar situation in Ogilbee v. Western District Guidance Center, Inc., 658 F.2d 257 (4th Cir. 1981).

There we observed that "[b]y means of his allegation that `[p]laintiff's

termination has damaged the plaintiff's reputation and good name,'

[the plaintiff]'s complaint might broadly be construed to claim deprivation of a liberty interest." Id. at 258 (second alteration in original).

However, the plaintiff in Ogilbee had not alleged any specific act of

defamation nor any public disclosure of the reasons for the adverse

employment action taken against him. The Fourth Circuit therefore

concluded that:

[plaintiff]'s complaint suggests only that, as a result of the

mere act of his termination, some unspecified damage to his

reputation has occurred. This suggestion, without more, is

not sufficient . . . to allege deprivation of a liberty interest.

Id. at 259.

The same is true here. Kostishak did not allege that his employer

made public the reasons for, nor even the fact of, his termination. See

Wooten v. Clifton Forge School Bd., 655 F.2d 552, 555 (4th Cir.

1981) (explaining that a plaintiff must allege public disclosure of the

reasons for his discharge to support a claim that such discharge

deprived him of a liberty interest in his reputation). Even if he had

alleged that the reasons for his termination were made public, published comments must include charges of serious character defects to

be the basis for a claim of infringement of a liberty interest. See

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Robertson v. Rogers, 679 F.2d 1090, 1092 (4th Cir. 1982). Kostishak

did not meet this burden, and thus the claim was properly dismissed.

D.

Finally, summary judgment was appropriate against Kostishak

regarding his allegation of infringement of his First Amendment right

to free speech. To demonstrate termination in violation of the First

Amendment, a public employee must comply with the two-pronged

test set forth in Hanton v. Gilbert, 36 F.3d 4, 6-7 (4th Cir. 1994).

First, he must show that his speech related to matters of public interest and that his interest in expression outweighed his employer's

interest in the efficient operation of the workplace. Second, he must

demonstrate that his protected speech was a substantial factor in his

employer's decision to terminate him. Although he may be able to

pass the first prong, Kostishak cannot satisfy the second prong. And

even if he could, the bankruptcy judges would be qualifiedly immune

from suit for any First Amendment violation.

The United States complains that Kostishak cannot meet the first

prong of the Hanton test because his speech was not on a matter of

public concern. The government argues that "a public employee's

expression of grievances concerning his own employment is not a

matter of public concern," Brief of Appellee at 21 (quoting Huang v.

Board of Governors of the Univ. of North Carolina , 902 F.2d 1134,

1140 (4th Cir. 1990)). The government further argues that because

Kostishak was the supervisor of the employee who was allegedly discriminated against, Kostishak's speech was merely a"mandated

responsibility" of his job. Therefore, we are urged not to "constitutionalize the employee grievance" by holding that the speech is on a

matter of public concern. Brief of Appellee at 20.

However, the speech for which Kostishak alleges he is being retaliated against is much more than a grievance about his own employment: Kostishak has alleged in his affidavit that he not only discussed

the discrimination with his subordinate, but that he"will act as a witness on [her] behalf in that matter." Taking the facts presented in the

light most favorable to the non-moving party, Kostishak has alleged

that he was terminated in retaliation for his intent to act as a witness

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in administrative or judicial proceedings. Such speech clearly relates

to matters of public concern.

The second half of the first prong of the Hanton test requires us to

balance the employee's interest in the speech against the employer's

interest in controlling his workplace. Only if Kostishak's interest outweighs the government's will the First Amendment protect his

speech. Kostishak's brief does not provide any context for his speech

-- for example, it does not explain what exactly it was that he witnessed to be discrimination, nor under what circumstances he would

have to serve as a witness on behalf of his subordinate. On this

skimpy record, and without any argument on Kostishak's behalf, we

must make the "subtle, difficult to apply, and not yet well-defined"

balancing called for by this part of the Hanton test. DiMeglio v.

Haines, 45 F.3d 790, 806 (4th Cir. 1995).

Additionally, we must keep in mind that, because this "particularized balancing" is so difficult even in a case where the record is fully

developed, a public employer will usually deserve qualified immunity

in such cases. Id. "[O]nly infrequently will it be `clearly established'

that a public employee's speech on a matter of public concern is constitutionally protected." Id. Even if we could make the required balancing in this case, we would find that Judges Mannes, Schneider and

Derby were qualifiedly immune for their actions.

The second prong of the Hanton test requires a showing that the

employee's "protected speech was a substantial factor in [his]

employer's termination decision." 36 F.3d at 7. To avoid summary

judgment, Kostishak must have demonstrated by admissible evidence

that there was a genuine issue of material fact in this regard. Kostishak did not meet this burden.

The government asserts, and the record demonstrates, that Kostishak's poor management of the Bankruptcy Clerk's Office had been

a source of contention between himself and the Bankruptcy Judges for

the two years leading up to his termination. Kostishak may not merely

rely on the assertions in his complaint that he was fired in retaliation

for his speech, but he must offer some admissible evidence demonstrating that there is a genuine issue for trial. He offered nothing of

the kind. The only affidavit in the record relevant to this question is

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Kostishak's 5-sentence affidavit, J.A. at 265-66, in which he explains

that he will act as a witness in the matter of the racial discrimination

of his subordinate. There is no affidavit or other admissible evidence

in the record suggesting that Kostishak's protected speech played any

role, much less a "substantial" one, in the decision to fire him. Summary judgment was therefore appropriate because Kostishak did not

carry his burden of demonstrating a genuine issue for trial in this

regard.

III.

The district court held that there was an adequate remedial scheme

and thus no Bivens claim was appropriate for Kostishak's discrimination claims. The holding did not dispose of Kostishak's other Due

Process and First Amendment causes of action, but because he failed

to introduce any evidence demonstrating a genuine issue for trial

regarding these claims, they were properly dismissed. The judgment

of the district court is, therefore,

AFFIRMED.

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