United States Court of Appeals, Tenth Circuit

886 F.
2d 1282
Mary E. BROTHERS, M.D., Plaintiff/Appellee,

v.
Donald L. CUSTIS, in his official capacity as Administrator
of the Veterans Administration, Washington, D.C.; D. Earl
Brown, Jr., M.D., in his official capacity as Deputy
Assistant Chief Medical Director for Professional Services
of the Veterans Administration, Washington, D.C., Defendants,
K. Paul Poulose, M.D., individually, and in his official
capacity as Chief of Staff, Veterans Administration Medical
Center, Leavenworth, Kansas; Margaret C. Michelson,
individually and in her official capacity as Medical Center
Director, Veterans Administration Medical Center,
Leavenworth, Kansas, Defendants/Appellants.
No. 87-2890.
United States Court of Appeals,

Tenth Circuit.
Oct. 4, 1989.
Jeffrica Jenkins Lee, Attorney, Appellate Staff, Civ. Div. (John R. Bolton,
Asst. Atty. Gen., Benjamin L. Burgess, Jr., U.S. Atty., and Barbara L.
Herwig, Attorney, Appellate Staff, Civ. Div., with her on the briefs), Dept.
of Justice, Washington, D.C., for defendants/appellants.
David L. Ryan, Topeka, Kan. (Richard P. Senecal, Duncan, Senecal and
Bednar, Chartered, Atchison, Kan., with him on the brief), for
plaintiff/appellee.
Before SEYMOUR, ANDERSON, and BRORBY, Circuit Judges.
STEPHEN H. ANDERSON, Circuit Judge.
During the period from May 19, 1980 to June 10, 1981, Mary E. Brothers,
M.D., was employed as a temporary part-time surgical staff surgeon at the
Veterans Administration Medical Center, Leavenworth, Kansas. She was

denied a permanent staff position in 1981, allegedly in retaliation for her
whistle-blowing activities in connection with certain practices and conditions at
the medical center, and the medical center's handling of a drug trial known as
the Anafranil Study. Subsequently, Dr. Brothers brought this Bivens action1
against the defendants seeking damages for their alleged interference with the
exercise of Dr. Brothers' rights under the First Amendment to the United States
Constitution. A jury found in favor of Dr. Brothers, awarding her $90,937 in
compensatory damages, and $100,000 in punitive damages, subsequently
remitted to $10,000. The defendants/appellants have appealed.
2
The central question on appeal is whether a Bivens action was a remedy

available to Dr. Brothers. We conclude that it was not, and that the judgment of
the district court must be reversed.
In our recent decision in Hill v. Dept. of Air Force, 884 F.2d 1318 (10th
Cir.1989) (per curiam), we analyzed the constraints placed upon the
availability of Bivens actions, as follows:
"Bivens permits an action for damages against a federal agent who 'acting
under color of his authority' engages in unconstitutional conduct. 403 U.S. at
389 [91 S.Ct. at 2001]. When there are 'special factors counselling hesitation in
the absence of affirmative action by Congress,' id. at 396 [91 S.Ct. at 2005], or
a congressional statement that money damages could not be recovered due to
the availability of another equally effective remedy, id. at 397 [91 S.Ct. at
2005], courts should refuse to create damages remedies against federal agents.
Accord Bush v. Lucas, 462 U.S. 367 [103 S.Ct. 2404, 76 L.Ed.2d 648] (1983).
The Supreme Court has been cautious in extending Bivens into new contexts.
Schweiker v. Chilicky [--- U.S. ----], 108 S.Ct. 2460, 2467 [101 L.Ed.2d 370]
(1988).
"In Bush v. Lucas, 462 U.S. 367 [103 S.Ct. 2404], the Court held that because
claims that a superior violated the federal employees' first amendment rights
'arise out of an employment relationship that is governed by comprehensive
procedural and substantive provisions giving meaningful remedies,' it was
inappropriate to provide a new judicial remedy beyond the regulatory scheme.
Id. at 368 [103 S.Ct. at 2406]. Likewise, in the most recent Supreme Court case
on the subject, Schweiker v. Chilicky [--- U.S. ----], 108 S.Ct. 2460 [101
L.Ed.2d 370 1988], the Court declined to provide a damages remedy for Social
Security disability claimants who alleged federal officials unconstitutionally
terminated their benefits. The Court in Chilicky stated that '[w]hen 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.' Id. [108 S.Ct.] at 2468. 'The absence of statutory relief for a
constitutional violation ... does not by any means necessarily imply that courts
should award money damages against the officers responsible for the violation.'
Id. at 2467. The Court indicated that judicial deference must be given to
indications that Congress' inaction was not inadvertent. Id. at 2468. Read
together, Chilicky and Bush provide that 'courts must withhold their power to
fashion damages remedies when Congress has put in place a comprehensive
system to administer public rights, has "not inadvertently" omitted damages
remedies for certain claimants, and has not plainly expressed an intention that
the courts preserve Bivens remedies.' Spagnola v. Mathis, 859 F.2d 223, 228
(D.C.Cir.1988)."
6
Dr. Brothers argues that Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76
L.Ed.2d 648 (1983) is distinguishable on the grounds that Bush was an
established government employee who was within the jurisdiction of the Merit
Systems Protection Board, an agency which could grant him meaningful relief,
and that such is not true in Dr. Brothers' case. Dr. Brothers does concede,
however, that she had the right to petition the Office of the Special Counsel
("OSC") in connection with her claim that she was denied permanent
employment in violation of her constitutional rights. Brief for the Appellee at
pp. 24, 29, 32-34. In this connection she argues that recourse to the OSC is
"clearly no remedy," id. at 34, since "the OSC has no power of enforcement and
can furnish no affirmative relief," id. at 33, and that recourse to the OSC would
deny her a money damages remedy. We are unpersuaded by that reasoning.
The courts, including our court, are reading Chilicky broadly--that is, as cutting
back significantly on the availability of Bivens actions. In Kotarski v. Cooper,
866 F.2d 311 (9th Cir.1989) (on remand from the Supreme Court for
reconsideration in light of Chilicky ), the Ninth Circuit held that a probationary
federal employee who was allegedly demoted in violation of his First
Amendment rights had no Bivens action. The court stated:
8
"[P]robationary
employees may submit a complaint to the Special Counsel of the
[Merit Systems Protection] Board regarding 'prohibited personnel practices' which
includes reprisals against 'whistle blowers'.... Because Congress provided some
mechanism for appealing adverse personnel actions, it cannot be said that the failure
to provide damages, or complete relief, was 'inadvertent.' "
9
Id. at 312 (emphasis added). In McIntosh v. Turner, 861 F.2d 524 (8th
Cir.1988) (also on remand for reconsideration in light of Chilicky ), the Eighth
Circuit similarly held that an employee who had access to the OSC disciplinary
process could not pursue a Bivens action. The court stated:
10
"Congress
consciously referred to violation of an employee's constitutional rights as
one of the prohibited personnel practices for which the OSC disciplinary process
was available.... It did not provide for a damages action for such a violation. In view
of the explicit reference to constitutional rights in the legislative history, we cannot
say that the omission of a damages remedy was inadvertent."
11
Id. at 526. And, in Spagnola v. Mathis, 859 F.2d 223 (D.C.Cir.1988) (per
curiam) (en banc), the court held that employees who were not entitled to the
full panoply of administrative remedies for adverse personnel actions, but who
were instead limited to petitioning the OSC, had no right to pursue a Bivens
claim. The court stated:
12 we read Chilicky and Bush together, then, courts must withhold their power to
"As
fashion damages remedies when Congress has put in place a comprehensive system
to administer public rights, has 'not inadvertently' omitted damages remedies for
certain claimants, and has not plainly expressed an intention that the courts preserve
Bivens remedies."
13
Id. at 228. See also Karamanos v. Egger, 882 F.2d 447 (9th Cir.1989); Moreno
v. Small Business Admin., 877 F.2d 715 (8th Cir.1989); Hilst v. Bowen, 874
F.2d 725 (10th Cir.1989) (per curiam); Volk v. Hobson, 866 F.2d 1398
(Fed.Cir.1989), cert. denied, --- U.S. ----, 109 S.Ct. 2435, 104 L.Ed.2d 991. We
agree with our sister circuits, and hold that Dr. Brothers could not bring a
Bivens action against the defendants/appellants in this case. Accordingly, the
judgment of the district court is REVERSED.
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)

United States Court of Appeals, Tenth Circuit

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United States Court of Appeals, Tenth Circuit

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886 F.

Mary E. BROTHERS, M.D., Plaintiff/Appellee,

United States Court of Appeals,

Veterans Administration Medical Center, Leavenworth, Kansas. She was

The central question on appeal is whether a Bivens action was a remedy

adequate remedial mechanisms for constitutional violations that may occur in

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