Teed-Off Golf Instructor Can't Make Bivens Claim Fly

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By Lawrence E. Dubé

May 24— The Civil Service Reform Act precluded a naval base golf instructor from pursuing a constitutional claim for his alleged mistreatment during a theft investigation, the U.S. Court of Appeals for the Ninth Circuit held.

The decision shows the federal statute can have a broad preclusive effect, even on employees who cannot exploit CSRA remedies.

Brian Farkas alleged he was traumatized by the behavior of investigators and base administrators, but Judge Jennifer A. Dorsey wrote for the court May 24 that the CSRA prevented him from pursuing constitutional claims under the Supreme Court ruling in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

Because Farkas was employed under the Non-Appropriated Fund Instrumentality Program, he did not have a remedy under the CSRA, but Dorsey said he could have invoked the protections of Navy regulations or another statute.

Instructor Was Targeted in Investigation

Farkas worked at a golf course in Ventura County, Calif., that is a non-appropriated fund facility.

The instructor reported that a cashier skimmed money from a cash register, but the court said Farkas found himself being questioned by a Naval Criminal Investigative Services detective about an alleged “irregularity” concerning revenue from golf lessons.

Farkas alleged base administrators improperly placed him on administrative leave, and suspended him, without notice

The instructor was cleared of any wrongdoing and returned to work with back pay, but he filed a lawsuit against several officials, relying on Bivens, which allows federal employees in some situations to sue for damages resulting from violations of constitutional rights.

A federal district court granted summary judgment against Farkas, and the Ninth Circuit affirmed.

No Constitutional Remedy Under Bivens

Dorsey wrote that the CSRA's comprehensive scheme of remedies barred Farkas's claim.

Although the statute, 5 U.S.C. § 2105(c), excludes non-appropriate fund employees from its remedial scheme, the appeals court said the unavailability of a CSRA remedy did not authorize Farkas to bring a constitutional claim.

Citing Zimbelman v. Savage, 228 F.3d 367, 16 IER Cases 1303 (4th Cir. 2000), Dorsey said the exclusivity of the CSRA and the availability of other remedies for NAF workers, including a federal whistle-blower statute (10 U.S.C. § 1587) and Navy Department grievance procedures, “counsel against recognizing a Bivens action for Farkas's employment-related claims.”

No Claim for Interference With Freedom

Affirming the lower court's summary judgment, the Ninth Circuit also agreed Farkas did not suffer an unconstitutional restraint of his freedom when the NCIS detective required him to store his personal keys, wallet and loose change in a lockbox before entering an interview room.

The naval installation where Farkas was questioned was a “passage-restricted base,” the court said, and Farkas impliedly consented to the brief “restraint” by entering the base and the interview room.

Judges Barry G. Silverman and Susan P. Graber joined in the opinion.

Richard Hamlish of Westlake Village, Calif., represented Farkas. Assistant U.S. Attorneys Leon W. Weidman and Jessica O. Cheh in Los Angeles represented the defendants.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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