Lombardi v. Small Bus. Admin., 889 F.2d 959 (10th Cir. 1989). · Go Syfert
Lombardi v. Small Bus. Admin., 889 F.2d 959 (10th Cir. 1989). Cases Citing This Book View Copy Cite
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At page 961 Declining to create bivens remedy for federal employment violations14 citing casesAs to Appellant’s assertion that injunctive relief is still available even after Chilicky, we are of the opinion that the clear purpose of Chilicky and the related cases is to virtually prohibit intrusion by the Courts into the statutory scheme established by Congress.1 citing court put it this way · 11 listed here
  • Perdeaux v. United States, 33 F. Supp. 2d 187 (E.D.N.Y. 1999).published
    (As to Appellant’s assertion that injunctive relief is still available even after Chilicky, we are of the opinion that the clear purpose of Chilicky and the related cases is to virtually prohibit intrusion by the Courts…)
  • Franken v. Zinke, No. 18-8019 (10th Cir. Feb. 11, 2019).unpublished
    In Lombardi v. Small Business Administration, 889 F.2d 959, 961 (10th Cir. 1989), we further explained that the CSRA preempts claims based on violations that occur after the employment relationship was terminated, if these violations “occu…
  • Elgin v. U.S. Dep't of the Treasury, 641 F.3d 6 (1st Cir. 2011).published
    Admin., 889 F.2d 959, 961-62 (10th Cir. 1989), with Mitchum v. Hurt, 73 F.3d 30, 35-36 (3d Cir. 1996), and Hubbard v. EPA, 809 F.2d 1 , 11 & n. 15 (D.C.Cir.1986), vacated in part on other grounds, Spagnola v. Mathis, 859 F.2d 223 (D.C.Cir.…
  • Dotson v. Griesa, 398 F.3d 156 (2d Cir. 2005).published 4 cites
    Admin., 889 F.2d at 961-62 [10th Cir.]; Berrios v. Dep’t of the Army, 884 F.2d 28, 31 (1st Cir.1989); Pinar v. Dole, 747 F.2d at 910-12 [4th Cir.]; Hallock v. Moses, 731 F.2d 754, 757 (11th Cir.1984).
  • Sarullo v. United States Postal Serv., 352 F.3d 789 (3d Cir. 2003).published 2 cites
    Id. at 961.
  • Tahy v. United States, No. 98-4167 (10th Cir. Aug. 26, 1999).unpublished 2 cites
    (declining to create Bivens remedy, even as to violations which occurred after termination of federal employment, where violations occurred only as a result of -6- employment relationship and plaintiff’s position as a fe…)
  • Joseph E. Paige v. Henry Cisneros, 91 F.3d 40 (7th Cir. 1996).published
    Saul v. United States, 928 F.2d 829, 843 (9th Cir.1991); Stephens v. Department of Health & Human Services, 901 F.2d 1571, 1576 (11th Cir.1990); Lombardi v. Small Business Administration, 889 F.2d 959, 961-62 (10th Cir.1989).
  • V. Carol Robbins v. Lloyd Bentsen in His Capacity as Sec'y of the Treasury v. Carol Robbins v. Keith Faust, Joe Williams & Donald Werner, 41 F.3d 1195 (7th Cir. 1994).published
    Indeed, some courts have refused to ‘^create a Bivens remedy in a Federal employment action even if no remedy at all has been provided by the CSRA.” Lombardi, 889 F.2d at 961; see-also Saul v. United States, 928 F.2d 829, 839-40 (9th Cir.1…
  • Krueger v. L.Y.N.G., 927 F.2d 1050 (8th Cir. 1991).published 2 cites
    See Maxey, 890 F.2d at 75 ; Lombardi, 889 F.2d at 961; Brothers, 886 F.2d at 1284 ; Feit, 886 F.2d at 853 ; Hill, 884 F.2d at 1320 ; Karamanos, 882 F.2d at 452 ; Kotarski, 866 F.2d at 312 ; McIntosh, 861 F.2d at 526 ; Spagnola, 859 F.2d at…
  • Jeffrey A. Saul v. United States Ray Larsen Colleen St. Louis John Doe St. Louis, 928 F.2d 829 (9th Cir. 1991).published 3 cites
    See Lombardi v. Small Business Admin., 889 F.2d 959 , 961 (10th Cir.1989); Volk v. Hobson, 866 F.2d 1398, 1403-04 (Fed.Cir.), cert. denied, 490 U.S. 1092 , 109 S.Ct. 2435 , 104 L.Ed.2d 991 (1989).
Show 1 more citing case
  • Hicks v. Brown, 929 F. Supp. 1184 (E.D. Ark. 1996).published
    See, e.g., Lombardi v. *1188 Small Business Administration, 889 F.2d 959, 961-62 (10th Cir.1989).
At page 962 Judicial intervention disfavored in relief remedies8 citing cases“judicial intervention in federal personnel matters is disfavored whether it is accomplished by the creation of a damages remedy or injunctive relief.”2 citing courts quote it · 7 listed here
  • Am. Fed'n of Gov't Employees Local 1 v. Stone, 502 F.3d 1027 (9th Cir. 2007).published 2 cites
    “judicial intervention in federal personnel matters is disfavored whether it is accomplished by the creation of a damages remedy or injunctive relief.”
  • Alfredo Semper v. Curtis Gomez, 747 F.3d 229 (3d Cir. 2014).published
    See, e.g., [Saul, 928 F.2d at 843 ]; Stephens v. Dep’t of Health and Human Services, 901 F.2d 1571, 1575-77 (11th Cir. 1990); [Lombardi, 889 F.2d at 962].” Mitchum, 73 F.3d at 34 (footnote omitted).
  • Pubentz v. Holder, 819 F. Supp. 2d 721 (N.D. Ill. 2011).published
    (holding CSRA as the exclusive vehicle for all federal employee claims related to federal employment)
  • Dotson v. Griesa, 398 F.3d 156 (2d Cir. 2005).published 4 cites
    Admin., 889 F.2d at 961-62 [10th Cir.]; Berrios v. Dep’t of the Army, 884 F.2d 28, 31 (1st Cir.1989); Pinar v. Dole, 747 F.2d at 910-12 [4th Cir.]; Hallock v. Moses, 731 F.2d 754, 757 (11th Cir.1984).
  • Mitchum v. Hurt, 73 F.3d 30 (3d Cir. 1996).published 2 cites
    See, e.g., Saul v. United States, 928 F.2d 829, 843 (9th Cir.1991); Stephens v. Dep’t of Health and Human Services, 901 F.2d 1571, 1575-77 (11th Cir.1990); Lombardi v. Small Business Administration, 889 F.2d 959, 962 (10th Cir.1989). 5 The…
  • Mitchum v. Hurt, No. 94-3358 (3d Cir. Dec. 29, 1995).
    See, e.g., Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991); Stephens v. Dep't of Health and Human Services, 901 F.2d 1571, 1575-77 (11th Cir. 1990); Lombardi v. Small Business Administration, 889 F.2d 959, 962 (10th Cir. 1989).5 T…
  • Bolivar v. Dir. of the FBI, 846 F. Supp. 163 (D.P.R. 1994).published
    “judicial intervention is disfavored whether it is accomplished by the creation of a damages remedy or injunctive relief”
At page 959 “his position as a federal employee is central to his complaints, and it is this employment relationship that the supreme court emphasized in bush and its progeny, rather than the nature of the specific violation involved.”5 citing cases3 citing courts quote it
  • Earle v. United States Sec. & Exch. Comm'n, No. 2019-1419 (D.D.C. Jan. 8, 2020).published
    (His position as a federal employee is central to his complaints, and it is this employment relationship that the Supreme Court emphasized …, rather than the nature of the specific violation involved.)
  • Kenneth W. LEE v. Robert C. HUGHES, Jr., 145 F.3d 1272 (11th Cir. 1998).published
    “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 be…”
  • Franken v. Zinke, No. 18-8019 (10th Cir. Feb. 11, 2019).unpublished
    In Lombardi v. Small Business Administration, 889 F.2d 959, 961 (10th Cir. 1989), we further explained that the CSRA preempts claims based on violations that occur after the employment relationship was terminated, if these violations “occu…
  • Newmark v. Principi, 262 F. Supp. 2d 509 (E.D. Pa. 2003).published
  • Sculimbrene v. Reno, 158 F. Supp. 2d 1 (D.D.C. 2001).published
At page 960 cited at this page1 citing case
  • Hightower v. United States, 205 F. Supp. 2d 146 (S.D.N.Y. 2002).published
    Id. at 960-61; see also Saul v. United States, 928 F.2d 829 (9th Cir.1991) (Bivens claim barred by CSRA even though plaintiff had no remedy under the CSRA because the offensive conduct, the unauthorized searching of his mail, was not a pro…
Other citing cases10 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Curtis LOMBARDI
v.
SMALL BUSINESS ADMINISTRATION, (SBA) James Sanders, individually and in his official capacity as Administrator of the SBA Michael Cardenas, individually and in his official capacity as Administrator of the SBA Robert Turnbull, individually and in his official capacity as Acting Administrator of the SBA Joe Mass, individually and in his official capacity as Director of Personnel for the Central Office of SBA Richard Osborne, individually and in his official capacity as Director of Personnel of SBA Central Office Barbara Spirydon, individually and in her official capacity as head of the Presidential Management Internship Program, SBA Central Office James Reed, individually and in his official capacity as Acting Regional Administrator for SBA Donald Beaver, individually and in his official capacity as SBA Assistant Regional Administrator for Procurement E. Maine Shafer, individually and in his official capacity as District Director of the Albuquerque SBA Office Gregory D. Devejan, individually and in his official capacity as Assistant Director for Management Assistance and Assistant Director of the Albuquerque Minority Small Business Program and Jack Dalton, individually and as District Counsel for the SBA Albuquerque District Office
No. 88-1718.
Court of Appeals for the Tenth Circuit.
Nov 20, 1989.
Published opinion
889 F.2d 959
1989 U.S. App. LEXIS 17379
E. Justin Pennington, Albuquerque, N.M., for plaintiff-appellant., Joan E. Hartman, Appellate Staff Civ. Div., U.S. Dept, of Justice, Washington, D.C. (John R. Bolton, Asst. Atty. Gen., William L. Lutz, U.S. Atty., John F. Cordes, Atty., Appellate Staff Civ. Div., U.S. Dept, of Justice, Washington, D.C., with her, on the brief), for defendants-ap-pellees.
Baldock, Daugherty, Moore.
Cited by 9 opinions  |  Published
2 passages pin-cited by 2 cases
Citer courts: Eleventh Circuit (1) · District of Columbia (1)
DAUGHERTY, District Judge.

Plaintiff-Appellant Curtis Lombardi appeals from a District Court order dismissing his Bivens action for lack of subject matter jurisdiction. We agree with the dismissal and affirm.

Plaintiff Lombardi was hired by the Small Business Administration (SBA) in August, 1980, as a Presidential Management Intern. Presidential Management Intern positions are short-term positions and participation in the intern program confers no expectation of continued Federal employment upon the participants. The Office of Personnel Management has listed interns in the program as “excepted service” employees, who are by definition not within the competitive service. As a result, the Civil Service Rules and Regulations do not apply to the Intern’s removal from the position.

The Plaintiff-Appellant’s employment was terminated on February 26, 1982, in order to “promote the efficiency of the service”. Plaintiff appealed his termination to the Acting Administrator of the SBA, stating that his discharge was in retaliation for his party affiliation and for certain activities such as discussing racism in the SBA District Office with Equal Opportunity investigators and calling attention to improper Department of Housing and Urban Development contract oversight activities. In May, 1984, Plaintiff Lombardi filed two requests under the Freedom of Information Act with the SBA seeking all documents relating to his dismissal. The request was denied and Lombardi subsequently filed a complaint in the District Court for the District of New Mexico under the Privacy Act seeking disclosure of the withheld documents. This litigation was settled by the parties on May 5, 1986.

Thereafter, on February 20, 1987, Lombardi filed a “Complaint for Violation of Constitutional Rights” in the District Court for the District of New Mexico based upon his termination. The allegations contained in the 1987 Complaint are nearly identical to the factual allegations set forth in Lombardi’s 1982 administrative appeals. Defendants moved to dismiss the case against the SBA and the individual Defendants in their official capacity on the ground of sovereign immunity and also moved to dismiss the remaining claims for damages against the Defendants in their individual capacity based upon the Supreme Court’s decisions in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) and United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). The Defendants also moved to dismiss the Complaint in its entirety based upon the expiration of the statute of limitations.

On January 22, 1988, the District Court granted the Motion to Dismiss based upon sovereign immunity, dismissing the action against the SBA and the individual Defendants in their official capacity. On March 29, 1988, the District Court dismissed the remaining claims against the individual Defendants, finding that there was no subject matter jurisdiction over the Plaintiff’s claims under Bush and Fausto because the Plaintiff was a Federal employee whose claims were governed by the Civil Service Reform Act of 1978 (CSRA).

The District Court declined to dismiss based upon the expiration of the statute of limitations. The SBA requested that the District Court reconsider this decision but the Court declined to do so.

The District Court determined that Plaintiff’s Bivens claim was precluded by the Supreme Court’s holdings in Bush and Fausto. We agree that the District Court correctly interpreted those cases to preclude the Plaintiff from judicial review of his termination, especially in light of the recent Supreme Court case of Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988).

The Supreme Court in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), held that there should be a cause of action for damages against a Federal official who engages in unconstitutional conduct. The Court, however, cautioned that if there are any “special factors counseling hesitation in the absence of affirmative action by Congress”, id., at 396,[*961] 91 S.Ct. at 2004, Courts should decline to create an additional remedy.

The existence of a comprehensive statutory scheme such as the CSRA was found to be such a special factor in the Bush case. In Bush, the Supreme Court held that because a Federal employee’s claim that his First Amendment rights were violated by his superiors arose “out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, we conclude that it would be inappropriate for us to supplement that regulatory scheme with a new judicial remedy”. Bush, 462 U.S. at 368, 103 S.Ct. at 2406.

The recent Supreme Court cases of Fausto, relied upon by the District Court in the case at bar, 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. The Court stated in Chilicky that “[o]ur most recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new context. The absence of statutory relief for a constitutional violation, for example, does not by any means necessarily imply that the Court should award money damages against the officers responsible for the violation.” Id., 108 S.Ct. at 2467. The Court continued by asserting that “the concept of ‘special factors counseling hesitation in the absence of affirmative action by Congress’ has proved to include an appropriate judicial deference to indications that Congressional inaction has not been inadvertent. When 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 rationale of the Bush, Fausto and Chilicky cases has been applied by this Court in a situation similar to that in the case at bar in Hill v. Dept. of Air Force, 884 F.2d 1318 (10th Cir.1989) (per curiam), and Brothers v. Custis, 886 F.2d 1282 (10th Cir.1989) (per curiam), in both of which this Court declined to create a Bivens remedy. This was also the decision of the 8th Circuit in McIntosh v. Turner, 861 F.2d 524 (8th Cir.1988), the D.C. Circuit in Spagnola v. Mathis, 859 F.2d 223 (D.C.Cir.1988) and the 7th Circuit in Feit v. Ward, 886 F.2d 848 (7th Cir.1989). The 9th Circuit case of Kotarski v. Cooper, 799 F.2d 1342 (9th Cir.1986), cited by the Appellant here in support of his position, was remanded by the Supreme Court in light of Chilicky, and upon reconsideration the 9th Circuit held that no Bivens action could be implied.

Plaintiff-Appellant acknowledged in his reply brief and in oral argument that, with Chilicky, the Supreme Court has virtually closed the door to any Bivens actions for damages in a federal employment context. Appellant maintains, however, that his case is distinguishable due to both the nature of the violation involved, and the fact that he is requesting injunctive relief.

Appellant asserts that he is seeking damages for actions “aside from and outside the normal employer-employee relationship”. Appellant’s Reply Brief at 5. Appellant claims that many of the violations complained of occurred after the employment relationship was terminated and urges that such actions are thus still permissible even after Chilicky.

We find, however, that the violations complained of by the Appellant occurred only as a result of the employment relationship with the Small Business Administration. His position as a federal employee is central to his complaints, and it is this employment relationship that the Supreme Court emphasized in Bush and its progeny, rather than the nature of the specific violation involved. This Court can find no facts in the case at bar that sufficiently distinguish it from the numerous other cases finding no Bivens remedy in similar situations, especially in light of the Supreme Court’s clear directive in Chilicky.

As to Appellant’s assertion that injunctive relief is still available even after Chilicky, we are. of the opinion that the[*962] clear purpose of Chilicky and the related cases is to virtually prohibit intrusion by the Courts into the statutory scheme established by Congress. This judicial intervention is disfavored whether it is accomplished by the creation of a damages remedy or injunctive relief. Reinstatement of a federal employee was denied by the courts in both Weatherford v. Dole, 763 F.2d 392 (10th Cir.1985) and Kotarski using the Bush rationale. This Court stated in Weatherford that “[cjertain agency personnel decisions are simply not subject to judicial review.” Id., at 394. We find that Lombardi has failed to distinguish his case from the preceding authority and refuse to imply a Bivens action.

The Appellees in this case assert in their Reply Brief that the case should also be dismissed because it is barred by the aplica-ble statute of limitations. The Appellees did not raise this issue on cross-appeal and thus we find the statute of limitations question not to be properly before us. In any event, our substantive disposition of the cause renders such consideration unnecessary.

AFFIRMED.