Frank K. Kotarski v. V.L. Cooper, A.E. Navarro, W.J. Tinston, J.H. Kirkpatrick, Naval Air Rework Facility, Capt. P.A. Monroe, in His Official Capacity

799 F.2d 1342, 1986 U.S. App. LEXIS 30748, 41 Empl. Prac. Dec. (CCH) 36,479
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 16, 1986
Docket84-5673
StatusPublished
Cited by51 cases

This text of 799 F.2d 1342 (Frank K. Kotarski v. V.L. Cooper, A.E. Navarro, W.J. Tinston, J.H. Kirkpatrick, Naval Air Rework Facility, Capt. P.A. Monroe, in His Official Capacity) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frank K. Kotarski v. V.L. Cooper, A.E. Navarro, W.J. Tinston, J.H. Kirkpatrick, Naval Air Rework Facility, Capt. P.A. Monroe, in His Official Capacity, 799 F.2d 1342, 1986 U.S. App. LEXIS 30748, 41 Empl. Prac. Dec. (CCH) 36,479 (9th Cir. 1986).

Opinions

CANBY, Circuit Judge:

Plaintiff, a civilian employee of the Navy, was promoted to a supervisory position subject to a probationary period of one year. He was demoted to his former position during that year, and brought this action in district court to contest his demotion and seek Bivens1 damages for it. The district court dismissed his complaint with prejudice, and plaintiff appeals. We reverse.

BACKGROUND

In 1981, plaintiff Frank Kotarski was promoted from his position as a GS-12 civilian Navy engineer to the position of GM-13: industrial engineer with supervisory responsibilities. This competitive appointment was subject to a probationary period of one year. 5 U.S.C. § 3321; 5 C.F.R. § 315.802(a) et seq. Toward the close of this period, Kotarski’s immediate superiors, defendants here, notified him that his performance as a supervisor had been unsatisfactory. Kotarski was accordingly returned to his prior position.

Shortly thereafter, Kotarski filed this action against defendants, seeking reinstatement, back pay, and Bivens damages for his demotion. He also sought review of the agency action under the Administrative Procedure Act. The complaint alleged that defendants had violated Kotarski’s first, fifth and ninth amendment rights by demoting him from his position as supervisor. Five months later, Kotarski filed a second action alleging that his demotion also violated his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. That action is still pending in district court. The district court disposed of this first action by dismissing it with prejudice, upon the government’s motion. This appeal followed.

DISCUSSION

A. Jurisdiction

In addition to seeking Bivens damages against his immediate superiors and review of the agency action under the Administrative Procedure Act, Kotarski seeks reinstatement and back pay from defendant Naval Air Rework Facility, an instrumentality of the United States. Although Kotarski’s prayer for relief does not specify the amount of back pay sought, we conclude that it would exceed $10,000. See Doe v. United States Dept. of Justice, 753 F.2d 1092, 1101 (D.C.Cir.1985). As a result, the district court was without jurisdiction over Kotarski’s back pay claim. The Tucker Act, 28 U.S.C. § 1346(a)(2), requires that such actions be brought in the United States Claims Court.2 The claim against the Facility for reinstatement is so integrated with the claim for back pay, that it must likewise be entertained in the Claims Court. See Schulthess v. United States, 694 F.2d 175, 178 (9th Cir.1982); Giordano v. Roudebush, 617 F.2d 511, 514-15 (8th Cir.1980). Accordingly, we remand these claims to the district court for consideration of whether the interests of justice require transfer of Kotarski’s back [1345]*1345pay and reinstatement claims to the Claims Court. See 28 U.S.C. § 1631.3

There is no problem, however, with the district court’s jurisdiction over Kotarski’s constitutional claims against the individual defendants. Bivens actions brought against federal officials in their individual capacities for violations of a plaintiff’s constitutional rights are not suits requiring the consent of the United States. The Tucker Act is therefore not implicated. Van Drasek v. Lehman, 762 F.2d 1065, 1070 (D.C.Cir.1985); Doe, 753 F.2d at 1101. The district court therefore properly entertained Kotarski’s Bivens claims.

B. Title VII as Exclusive Remedy

The district court dismissed Kotarski’s Bivens claims on two alternative grounds. The first was that Kotarski’s exclusive remedy lay in Title VII, 42 U.S.C. § 2000e-16. We disagree.

Title VII bars discrimination in employment on the basis of race, color, religion, sex, or national origin. 42 U.S.C. §§ 2000e-2, 2000e-16. As the district court correctly observed, the Supreme Court has held that Title VII is the exclusive remedy for claims of discrimination in federal employment. Brown v. General Services Administration, 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976). That exclusive effect, however, extends only to claims of federal employees that are cognizable under Title VII. See Davis v. Passman, 442 U.S. 228, 247 n. 26, 99 S.Ct. 2264, 2278 n. 26, 60 L.Ed.2d 846 (1979). As a consequence, “Title VII does not preclude separate remedies for unconstitutional action other than discrimination based on race, sex, religion or national origin.” White v. General Services Administration, 652 F.2d 913, 917 (9th Cir.1981).

. Kotarski has alleged that he was demoted because his superiors disapproved of his private relationship and living arrangements with his woman friend, in violation of his constitutional right of privacy. He also alleges that he was demoted because of his expression of disagreement with certain policies, practices and expenditures of funds at the Naval Air Rework Facility, in violation of his first amendment rights.4 Neither of these claims is cognizable under Title VII; accordingly, they are not barred by its preclusive effect.

Defendants contend, however, that Kotarski effectively admitted that his Bivens claims were subsumed by his Title VII claim when he filed an affidavit in his Title VII action in which he did “swear and contend” that his involvement in an EEO complaint filed by his woman friend was “the primary reason” for his demotion. We decline to give this affidavit the effect that the defendants urge for it. The affidavit states a contention, and it was sworn on information and belief. It does not state that retaliation for participation in filing an EEO complaint was the only reason for Kotarski’s demotion. We fail to see how Kotarski’s pursuit of a Title VII remedy based on retaliation, see White v. General Services Administration, 652 F.2d at 917, can preclude his Bivens claims based on alleged constitutional infractions [1346]*1346having nothing to do with Title VII. See Ethnic Employees of Library of Congress v. Boorstin, 751 F.2d 1405, 1415 & n. 14 (D.C.Cir.1985).

C. The Effect of Bush v. Lucas

As an alternative ground for dismissing Kotarski’s Bivens

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799 F.2d 1342, 1986 U.S. App. LEXIS 30748, 41 Empl. Prac. Dec. (CCH) 36,479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-k-kotarski-v-vl-cooper-ae-navarro-wj-tinston-jh-ca9-1986.