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The 4th U.S. Circuit Court of Appeals has denied the appeal of two civilianAir Force employees who alleged that their constitutional rights wereviolated when they were fired from their jobs at the Shaw Air Force Baseofficers’ club on suspicion of theft, fraud, and other misconduct. The case, Zimbelman v. Savage, No. 99-1607 (4th Cir. Sept. 21, 2000), addressedthe issue of whether a Bivens action, the judicially created damages remedydesigned by the U.S. Supreme Court to vindicate violations of constitutionalrights, could be brought by an individual employed by a federal agency whosefunds come primarily from its own activities rather than annualappropriations. Such agencies, known as non-appropriated fundinstrumentalities (NAFI), include the officers club at which the allegedmisconduct took place. Rita Zimbelman and Karen Michalik were notified of their termination byLieutenant Colonel Michael Filan in March 1995, after the Air Force’s Officeof Special Investigations (OSI) conducted an investigation into allegedmisconduct at the officer’s club. As NAFI employees, the two women were notcovered by the remedial scheme of the Civil Service Reform Act. The only waythey could challenge their termination was pursuant to the internalprocedures set forth in the Air Force Manual. After unsuccessfully exhausting all internal remedies available in themanual, Zimbelman and Michalik filed a Bivens complaint, alleging severalconstitutional violations, including the claim that the OSI investigationviolated their constitutional right to clear their names, a liberty interestdeemed to be protected by the Fifth Amendment. The U.S. District Court for the District of South Carolina, dismissed several of theemployees’ claims, but allowed the Fifth Amendment claim to stand. After thedefendants’ motion for summary judgment on the Fifth Amendment claim wasdenied, they filed for an interlocutory appeal to the 4th U.S. Circuit Courtof Appeals. Established by the U.S. Supreme Court in Bivens v. Six Unknown Federal Narcotic Agents, 403 U.S. 388 (1971), a Bivens action permits individualswhose constitutional rights have been violated to sue for damages directlyunder the Constitution in federal court. In Bush v. Lucas, 462 U.S. 367(1983), the court carved out exceptions to the Bivens rule, holding that Bivens actions are unavailable when Congress has provided alternateremedies, or when there are “special factors counseling hesitation.” “The idea is the Bivens remedy stands in as a judicially created remedyunless congress decides otherwise,” explains Professor Richard H. Seamon ofthe University of South Carolina School of Law. “Here the court understoodthe exemption of these employees from the CSRA as indicating congressionalintention that they not have any elaborate remedies other than the internalappeal, so congressional intent is controlling.” The 4th U.S. Circuit Court of Appeals found that Zimbelman and Michalik’sfederal employment constituted a “special factor” that made a Bivens remedyinappropriate. Because Congress has not enacted statutory law specificallyprotecting the constitutional rights of NAFI employees, the court found thattheir remedy for the alleged constitutional violation was limited. “Federal employment is a ‘special factor’ because federal personnel mattersare governed by the CSRA,” wrote Chief Judge J. Harvie Wilkinson for thecourt. “Because the CSRA constitutes a comprehensive set of procedural andsubstantive provisions governing the rights of federal employees, it wouldbe inappropriate ‘to supplement that regulatory scheme with a new judicialremedy.’” John Michael Brown, an Augusta, Ga., solo practitioner who representedZimbelman and Michalik before the court, finds troubling the idea that NAFIemployees can have their constitutional remedies restricted. “I think it’s a dangerous notion that any federal employee would be able tohave their constitutional rights limited if congress doesn’t take any actionto protect the employee,” Brown told American Lawyer Media. “This decisionsays that because congress didn’t enact any protection at all, then congressintended that they be denied what otherwise might be a constitutionalprotection.” Professor Seamon acknowledges the fact that courts generally give greaterleeway to the federal government when confronted with issues of itsemployees’ rights, but thinks that the internal remedies available toZimbelman and Michalik may have satisfied the protections they were entitledto by the Constitution. “In an ideal world, everybody would have their day in court — includingfederal employees,” Seamon said. “The government’s counter argument would bethat these employees did get some review. They got internal procedures, soyou can’t say they were necessarily deprived of all of their rights.”

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