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BOAZ AVITZUR v. DAVIDSON

October 21, 1982

BOAZ AVITZUR, Plaintiff, v THOMAS E. DAVIDSON, DR. F. A. STEPHENS, JOHN E. BENSON, JR., ROBERT E. WEIGLE, F. W. SCHMIEDESHOFF, JOSEPH PEPE, RICHARD H. SAWYER and ANGELO M. DiNOVA, Defendants.


The opinion of the court was delivered by: MCCURN

MEMORANDUM-DECISION AND ORDER

NEAL P. McCURN, D.J.

 Plaintiff Boaz Avitzur commenced this action in 1977, alleging that the defendants conspired to terminate his civilian employment with the Department of the Army and thereby violated his First, Fourth, Fifth and Sixth Amendment rights. It is now before the Court on a renewed motion for summary judgment made by defendants.

 In our Memorandum-Decision and Order of April 28, 1980, we held that plaintiff's pursuit of administrative remedies, which led to his reinstatement with back pay, did not entirely negate his right to seek damages under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), and that this decision was consistent with Carlson v. Green, 446 U.S. 14, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980). An order was then issued denying defendants' motion for summary judgment with leave to renew, and inviting in particular information with respect to defendants' assertion of qualified immunity under Butz v. Economou, 438 U.S. 478, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978).

 Since that time this Court has had an opportunity to consider a substantial body of affidavits, depositions and other material introduced by both parties as well as a number of decisions from Circuit courts which have applied Carlson to facts analogous to those involved here. These sources cast new light on the nature and merit of plaintiff's claims and lead the Court to conclude that: (1) those of Avitzur's claims which exist only as a result of the employer-employee relationship (e.g., unconstitutional suspension and termination) may be remedied only through the various administrative procedures established, and not in a Bivens-type action for damages; (2) those of Avitzur's claims which would exist independent of the employer-employee relationship (i.e., unconstitutional surveillance) do not, on the uncontroverted facts now before us, amount to any deprivation of plaintiff's constitutional rights. As a result of our conclusions it has not been necessary to reach the defendant's assertions of qualified immunity. *fn1"

 The events leading to this action arise out of Avitzur's employment as a researcher in metallurgical sciences at the Watervliet U.S. Army Arsenal. *fn2" Plaintiff alleges in his complaint and supporting affidavits that during 1974 and 1975 the defendants, various supervisory personnel at the facility, forced him to take a psychiatric exam against his will; unsuccessfully applied for a disability retirement for him; directed police surveillance of him; suspended him from work for one and two day periods; terminated his employment at Watervliet Arsenal. The reason such measures were taken, according to Avitzur, is in retaliation for his unfavorable critique of a professional article by defendant Pepe, his "whistle blowing" with regard to possible administrative irregularities, and his general insistence upon learning and asserting his employment rights.

 The plaintiff first sought relief through the Army Grievance and Appeals System and, through that procedure, was afforded reinstatement with back pay. He insists, however, that the administrative remedy did not address his constitutional grievances, and did not fully compensate him for the injuries he sustained, primarily emotional upset and an "odious blemish" to his professional career. The question presented here, then, is to what extent may the plaintiff bring an action for damages directly under the Constitution on the allegations set forth above.

 In Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 397, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), the Supreme Court held that victims of a warrantless search and seizure by federal officers are entitled to seek damages where no other remedy is available. In finding an implied cause of action under the Constitution, the Court reasoned that there was "no explicit congressional declaration that persons injured by a federal officer's violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress." Id., at 397. In addition, it found "no special factors counseling hesitation" in determining that such a cause of action exists.Id., at 396.

 More recently, in Carlson v. Green, 446 U.S. 14, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980), the Court elaborated on its explanation of a Bivens-type cause of action, holding that this constitutional action would provide a more effective remedy against federal prison officials than would an action under the Federal Tort Claims Act. Id., at 20. The Carlson court confirms that a remedy under Bivens is available unless:

 1. There are "special factors counseling hesitation in the absence of affirmative action by Congress, Bivens, 403 U.S. at 396; Davis v. Passman, 442 U.S. 228, 245, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979)," or

 2. "defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective," Bivens, supra at 397; Davis v. Passman, supra at 245-247.

 446 U.S. at 18.

 In the wake of Carlson, Bush v. Lucas, 647 F.2d 573 (1981), cert. granted, 458 U.S. 1104, 102 S. Ct. 3481, 73 L. Ed. 2d 1365 (1982) was heard on remand from the Supreme Court for reconsideration by the Fifth Circuit Court of Appeals. In Bush, plaintiff was a federal employee seeking damages under Bivens for retaliatory demotion, in violation of his First Amendment rights. Like the plaintiff in this case, Bush first pursued an administrative remedy, under the Civil Service Reform Act, and was reinstated prior to commencing his Bivens-type action.Applying Carlson, the court found that the federal employer-employee relationship implicated the kind of factors which would counsel hesitation in finding a right of action under the constitution:

 The employer-employee context of this case serves to distinguish it from suits such as Bivens and Carlson which involved plaintiffs as private citizens seeking damages against agents of the Government acting in its sovereign capacity. Inferring a Bivens remedy in this case would tend to interfere with and undermine the traditional control of the Government over its internal and personnel affairs. It might encourage aggrieved employees to bypass the statutory and administrative remedies in order to seek direct judicial relief and thereby deprive the Government of the opportunity to work out its personnel problems within the framework it has so ...


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