Shirley DAVIS, Plaintiff-Appellant, v. Otto E. PASSMAN, Congressman of the United States, Defendant-Appellee

571 F.2d 793, 1978 U.S. App. LEXIS 11613, 18 Empl. Prac. Dec. (CCH) 8672, 17 Fair Empl. Prac. Cas. (BNA) 373

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 18, 1978
• Docket: 75-1691
• Status: Published

Opinions

CHARLES CLARK, Circuit Judge:

In today’s decision the court en banc reverses a panel opinion which implied a cause of action for money damages from the Due Process Clause of the fifth amendment of the Constitution.¹

In her complaint, Ms. Shirley Davis alleged that former Louisiana Congressman Otto Passman dismissed her as his Deputy Administrative Assistant solely because she was a woman and he wanted a man in the position. Davis claimed Passman’s actions violated the equal protection component of the fifth amendment Due Process Clause. Invoking the court’s jurisdiction under 28 U.S.C.A. § 1381(a), she sought specific relief, damages, and declaratory relief. Because Passman’s service in Congress ended after the suit was brought, the claim has -narrowed to one for recovery of money damages. The district court based its dismissal of the complaint on alternative grounds: (1) that the law affords Davis no private right of action and (2) that the conduct of which she complained did not violate the Constitution. Addressing only the surviving claim for money damages, we affirm the district court’s dismissal on the first ground.

The roster of constitutional rights which have been held to support implied damage actions began its growth with the Supreme Court’s seminal decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens, the Court noted that historically damages have been regarded as the “ordinary remedy for an invasion of personal interests in liberty,” and implied a cause of action for money damages for the invasion of the plaintiff’s liberty which abridged his fourth amendment rights. 403 U.S. at 395, 91 S.Ct. at 2004, 29 L.Ed.2d at 626.

Although the Supreme Court has neither extended nor further explained its initial position, many inferior federal courts have cited Bivens as authorizing implied actions for money damages based on constitutional rights other than the fourth amendment.² Generally, these decisions have recognized implicitly that Bivens has some yet unreached limits. Only isolated district court decisions have asserted that Bivens created damage actions for violation of constitutional rights as broadly as if it had decreed that 42 U.S.C.A. § 1983 applied to the federal government.³ This appeal requires either that we join other circuits, in projecting the scope of Bivens to the Due Process Clauses of the fourteenth and fifth amendments,⁴ or decline to follow their precedents. A choice is not foreclosed. In more than one decision the Supreme Court specifically has pointed out that this issue remains open.⁵

Our own decisions appear equivocal on this point. We have ruled district courts erred in finding no jurisdiction to consider damage claims based upon implied causes of action under the Due Process Clauses of both the fifth amendment, Weir v. Muller, 527 F.2d 872 (5th Cir. 1976), and the fourteenth amendment, Reeves v. City of Jackson, 532 F.2d 491, 495 (5th Cir. 1976). See also Roane v. Callisburg Independent School District, 511 F.2d 633, 635 n.1 (5th Cir. 1975); United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799, 801-02 & n.2 (5th Cir. 1974); Traylor v. City of Amarillo, 492 F.2d 1156, 1157 n.2 (5th Cir. 1974). However, in Rodriguez v. Ritchey, 556 F.2d 1185, 1192 (5th Cir. 1977) (en banc), we expressly declined to speak as an en banc court on the appropriateness of extending Bivens beyond the fourth amendment. Now we find ourselves face-to-face with the necessity to take a firm position.

To decide whether to imply a cause of action for money damages from the fifth amendment Due Process Clause, we must examine Bivens itself. While Bivens is not without ambiguity, the analysis employed by the Court shows that the cause of action created is not wholly of constitutional dimensions. The opinion of the Court expressly states:

we cannot accept respondents’ formulation of the question as whether the availability of money damages is necessary to enforce the Fourth Amendment. For we have here 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.

403 U.S. at 397, 91 S.Ct. at 2005, 29 L.Ed.2d at 627. The cases relied upon for guidance by the Court in Bivens dealt with implying a cause of action from federal statutes that created rights but provided no federal remedy.⁶ Moreover, in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court’s most comprehensive treatment of implied statutory causes of action, the Court relied upon Bivens to support two points of its four-part statutory analysis.⁷

If the fourth amendment had mandated a cause of action for monetary damages, Bivens would have had no occasion to consult or discuss the action or inaction of Congress. Since the Court explicitly reasoned its precedent on the latter ground, we take the Bivens remedy to be one implied as a matter of federal common law⁸ and therefore subject, like all such law, to the power of Congress to alter or withdraw. Therefore, we employ a two-step analysis. First, we look to the jurisprudence of statutory implication to determine whether to imply a damage action of non-constitutional dimensions. Second, if this initial inquiry does not suggest that such an action should be implied, we must determine whether the Constitution nevertheless compels the existence of a remedy in damages to vindicate the rights asserted. See Kostka v. Hogg, 560 F.2d 37, 42 (1st Cir. 1977). Applying this analysis to Davis’ claim, we find that the district court properly concluded that no cause of action existed.

Courts have considered several factors in determining whether to imply a cause of action from a statutory right: (1) whether the provision asserted creates an especial right in the plaintiff, (2) whether the action of Congress in the field indicates an intent to allow such a remedy or at least an intent not to deny the remedy, (3) whether implication of the remedy would be consistent with the purpose of the right asserted, and (4) whether the cause of action implied would be one appropriate for federal law. Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2088, 45 L.Ed.2d at 36. Of course, the factors examined in questions of implied statutory causes of action, as set forth in Cort and preceding cases, cannot be applied in precisely the same way where implying a Bivens -type action is at issue. However, this circuit has held that the Cort factors do not set forth a rigid pattern of analysis that a court must follow precisely. Rather, “the Court simply said that several factors were relevant and worthy of consideration.” Olsen v. Shell Oil Co., 561 F.2d 1178, 1188 (5th Cir. 1977).

Where federal courts have inferred a federal private cause of action not expressly provided, there generally has been a clearly articulated federal right in the plaintiff. Cort v. Ash, 422 U.S. 66, 82, 95 S.Ct. 2080, 2090, 45 L.Ed.2d 26, 38 (1975), citing Bivens v. Six Unknown Named Agents, 403 U.S. 388, 394-95, 91 S.Ct. 1999, 2003-04, 29 L.Ed.2d 619, 625-26 (1971). While the fifth amendment right to due process certainly confers a right upon Davis, the injury alleged here does not infringe this right as directly as the injury inflicted in the unreasonable search of Webster Bivens offended the fourth amendment. The concept of due process encompasses virtually all of the civil liberties derived from the Constitution. While the fifth amendment Due Process Clause surely exists for the “especial benefit” of Davis, as Cort required, it does not exist with equal certainty to protect her tenure in a non-competitive personal aide position statutorily denominated as service at will. 2 U.S.C.A. § 92.

Cort looked to “legislative intent, explicit or implicit, either to create such a remedy or to deny one.” 422 U.S. at 78, 95 S.Ct. at 2088, 45 L.Ed.2d at 36. Bivens recognized that congressional intent to create a remedy must guide a court in determining whether to imply a remedy from provisions of the Constitution. 403 U.S. at 396-97, 91 S.Ct. at 2004-05, 29 L.Ed.2d at 626-27. Congressional remedial legislation for employment discrimination has carefully avoided creating a cause of action for money damages for one in Davis’ position. In Section 701, Title VII of the Civil Rights Act of 1964, Congress excluded the federal government from the general definition of “employer,” thus denying federal employees a statutory damage action under Title VII. 42 U.S. C.A. § 2000e(b). In 1972, Congress amended Title VII to add Section 717, which provided a separate administrative remedy for discrimination in federal employment, but did not extend the remedy to employees of Congress not in the competitive service. Under Section 717, other federal employees may have review in the federal courts of final action by their employing agencies or the Civil Service Board of Review, 42 U.S. C.A. § 2000e-16(a) (1974). Congressional action in designing Title VII remedies shows Congress adhered to the legislative judgment expressed in the statute under which Davis was hired: Members of a congressman’s personal staff are removable by him “at any time . . . with or without cause.” 2 U.S.C.A. § 92.

Implying the cause of action asserted by Davis would have the anomalous result of granting federal employees in non-competitive positions, whom Congress did not intend to protect, a remedy far more extensive than Congress adopted for federal employees in the competitive service, whom it did intend to protect. When Congress enacted Section 717, it believed that no other effective remedy existed for federal employees treated discriminatorily. See Brown v. General Services Admin., 425 U.S. 820, 826-28, 96 S.Ct. 1961, 1965-66, 48 L.Ed.2d 402, 407-08 (1976); H.R.Rep.No.92-238, 92d Cong. 2d Sess., [1972] U.S.Code Cong. & Admin.News, 2137, 2160. However, in amending Title VII to make it the “exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination” for those federal employees it covered,⁹ Congress did not grant federal employees in the competitive service an action for damages against their superiors in their individual capacities.¹⁰ The Supreme Court has upheld the exclusivity of Title VII as a remedy for federal employment discrimination against employees in the competitive service whom it covers. In Brown, the Court held that Congress could require federal employees alleging discrimination to seek relief solely within the confines of Title VII, a limitation which plaintiffs could not surmount by the simple expedient of putting a different label on the pleadings. 425 U.S. at 832, 96 S.Ct. at 1968, 48 L.Ed.2d at 411. Congress cannot have intended to deal more generously with those in Davis’ position, from whom it deliberately withheld protection.

Cort calls for an examination of the consistency of a statutory cause of action with the statutory scheme enacted by Congress. 422 U.S. at 78, 84, 95 S.Ct. at 2088, 2090-91, 45 L.Ed.2d at 39. The Court in Bivens made an analogous inquiry in considering the particular difficulties presented in enforcing the guarantees of the fourth amendment. The fourth amendment has presented the Court with a series of remedial dilemmas, not encountered in other contexts, with which the Court has wrestled actively for over half a century. The amendment’s subject matter is such that law enforcement officials, who necessarily make the searches and seizures it governs, are themselves the group most likely to be hostile to its barriers. This hostility of law enforcement officials to the restraint of the fourth amendment led the Court initially to adopt the exclusionary rule for federal cases, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and then to apply it to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), when criminal actions and state law tort actions proffered as a substitute remedy in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), showed themselves ineffective. However, the exclusionary rule — the remedy chosen to secure the right — also has proved less than satisfactory. See Bivens v. Six Unknown Named Agents, 403 U.S. at 411, 91 S.Ct. at 2012, 29 L.Ed.2d 635 (1971) (Burger, C. J., dissenting). Thus the Court continues to struggle for a just means for enforcing the fourth amendment. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).

Violations of fourth amendment rights occur in a well-defined setting familiar to the courts. The relationship is always one between law enforcement officials and citizens suspected of possessing evidence of crime. The context in which these violations may arise is sufficiently limited to allow the court to determine that an action for damages would be consistent with the purpose of the fourth amendment in future instances in which such an action might be invoked. The fifth amendment Due Process Clause presents no similarly focused remedial issue. To the contrary, the breadth of the concept of due process indicates that the damage remedy sought will not be judicially manageable and that there is simply no way a court can judge whether this remedy will be appropriate for securing the right in future situations where some plaintiff might assert it.

The final factor considered in Cort is whether “the cause of action is one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law.” 422 U.S. at 78, 84-85, 95 S.Ct. at 2088, 2091, 45 L.Ed.2d at 36, citing Bivens v. Six Unknown Named Agents, 403 U.S. at 394-95, 91 S.Ct. at 2003-04, 29 L.Ed.2d at 625-26. Under this factor we consider the effect that implying a remedy would have upon both state law and the federal judiciary. Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 477, 97 S.Ct. 1292, 1303, 51 L.Ed.2d 480, 494 (1977); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 739-741, 95 S.Ct. 1917, 1927-28, 44 L.Ed.2d 539, 551-52 (1975). While the particular circumstances of the case at bar raise questions of federal rights in federal employment, adoption of the broad principle upon which the granting of relief to Davis hinges would expand federal jurisdiction into broad fields of law presently occupied by state court systems. Therefore, we properly consider this factor.

Adoption of Davis’ interpretation of Bivens would project the penumbra of federal court constitutional due process jurisdiction over every legally cognizable tortious injury inflicted by persons acting under color of federal law because, by its nature, every tort deprives the victim of due process through unlawful appropriation of liberty or property or both. Indeed, logically, the expansive effect of such a holding would not end there. It also would extend federal jurisdiction to cover all state action tort claims, either under pendent jurisdiction, cf. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), or under a cause of action implied from the fourteenth amendment. The latter of these state action claims would be cognizable without regard to diversity of citizenship, amount in controversy or other present statutory limitation. Because of the breadth of due process, a decision implying an action for money damages from the fifth amendment Due Process Clause alone would extend an action for damages to any constitutional guarantee. Thus, the danger of deluging federal courts with claims otherwise redressable in state courts or administrative proceedings looms far more ominously than in Bivens. 403 U.S. at 391 & n.4, 91 S.Ct. at 2002 & n.4, 29 L.Ed.2d at 623 & n.4.

Not only does this case fail to present special remedial difficulties analogous to those faced by the Court in dealing with the fourth amendment, but also Congress avoided creating an action for money damages for Congressional aides in non-competitive positions. Moreover, implying this damage action necessarily would draw into the federal judicial system a wide range of cases whose resolution Congress has not committed to the federal judiciary and whose resolution is better suited to courts of general jurisdiction. These special considerations, not present in Bivens, eliminate any question of our creating a remedial right under our federal common law powers. This conclusion does not end our inquiry, however, for we still must determine whether the Constitution nevertheless compels an action for money damages implied from the fifth amendment Due Process Clause.

Therefore, we next consider whether, in this case, a damage action is indispensible to the effectuation of the fifth amendment Due Process Clause and thus beyond the power of Congress to preclude. Cf. Kostka v. Hogg, 560 F.2d at 44. We conclude that the proposed damage remedy is not constitutionally compelled. Not every right that conceivably could be wedged within the literal breadth of due process demands federal protection through a cause of action for monetary damages. In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Court considered the reach of federal remedies where Congress, in 42 U.S.C.A. § 1983, expressly provided that violation of constitutional rights by one acting under color of state law would give rise to a cause of action for monetary damages. Even with an express statutory mandate to provide a federal damage action, the Court noted that “ ‘the range of interests protected by procedural due process is not infinite.’ ” 424 U.S. at 709, 96 S.Ct. at 1164, 47 L.Ed.2d at 418 (1976), citing Board of Regents v. Roth, 408 U.S. 564, 570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548, 556 (1972). Here, we do not consider, as the Court did in Paul, what due process may encompass given an express statutory mandate to extend a cause of action for money damages to the full reach of the right. Rather, we consider the extent to which the Constitution requires that we countermand the clearly discernible will of Congress to create a cause of action where Congress declined to provide one. Paul thus teaches that we should restrain our reach far more than the Court did there.

Denying an implied cause of action for money damages does not render meaningless any constitutional rights of congressional employees. A plaintiff might still seek equitable relief where the employer remained in office, although congressional employees in the non-competitive service whose allegedly discriminating employers are not in office may be left without a remedy for sex discrimination in employment unless Congress reverses its present statutory stand.¹¹ Other due process wrongs would either continue to be remedied in traditional ways through tort actions in courts of appropriate general jurisdiction or through special statutory remedies provided by state legislatures or Congress. Admittedly, some not now covered would remain inactionable.

Another provision of the Constitution must also be considered. Our rejection of the broad principle asserted by Davis is premised upon much more than just another “floodgates” argument. The prospect here is of so crushing an already precariously overloaded federal judicial system as to render meaningless the power the Constitution vests in Congress under Article III, Section 1, of the Constitution to establish the jurisdictional ambits of the inferior courts it has created. We decline to hold that by implication the fifth amendment requires such an anomalous result.

1 . The opinion of the panel, 544 F.2d 865 (5th Cir. 1977), had, in turn, reversed the district court’s dismissal of a complaint filed by a discharged female congressional employee.

2 . Apart from the Due Process Clauses, lower federal courts have looked favorably upon Bivens actions based upon the first, sixth, eighth, ninth, and thirteenth amendments. See, e. g., Cox v. Stanton, 529 F.2d 47 (4th Cir. 1975) (thirteenth and fourteenth amendments); Paton v. La Prade, 524 F.2d 862, 870 (3d Cir. 1975) (first amendment); Jihaad v. Carlson, 410 F.Supp. 1132 (E.D.Mich.1976) (first and eighth amendments); Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144, 160-62 (D.D.C.1976) (first and sixth amendments); Patmore v. Carlson, 392 F.Supp. 737 (E.D.M.1975) (fifth and eighth amendments). See also M. Lehmann, Bivens and Its Progeny, 4 Hastings Const. L.Q. 531, 566-72 (1977).

3 . E. g., Saffron v. Wilson, 70 F.R.D. 51, 53 n.1 (D.D.C.1975) (“This holding [Bivens] has been interpreted almost unanimously as recognizing a cause of action for damages for violation of any constitutionally protected interest.”); Gardels v. Murphy, 377 F.Supp. 1389, 1398 (N.D.Ill.1974) (.“Bivens recognizes a cause of action for damages for violation of any constitutionally protected interest.”)

4 . Several circuits have allowed plaintiffs to base Bivens implied actions solely upon the concept of due process: the Second Circuit, Gentile v. Wallen, 562 F.2d 193, 196 (2d Cir. 1977) (fourteenth amendment); the Third Circuit, United States ex rel. Moore v. Koelzer, 457 F.2d 892, 894 (3d Cir. 1972) (fifth amendment); but see Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977) (declining to allow cause of action on fourteenth amendment alone); the Fourth Circuit, States Marine Lines, Inc. v. Shultz, 498 F.2d 1146, 1156-57 (4th Cir. 1974) (fifth amendment); the Seventh Circuit, Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716, 718-19 & n.7 (7th Cir. 1975) (denying relief, but holding action could be brought solely under fourteenth amendment); the Eighth Circuit, Owen v. City of Independence, 560 F.2d 925, 932 (8th Cir. 1977) (fourteenth amendment in suit seeking back pay); the Ninth Circuit, Jacobson v. Tahoe Regional Planning Agency, 558 F.2d 928, 936-37, 941-43 (9th Cir. 1977) (one cause of action available on fifth amendment just compensation clause and another on fifth amendment due process clause).

Other circuits have commented favorably upon extension of Bivens to actions implied from the concept of due process: the Tenth Circuit, e. g., Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 932 & n.5 (10th Cir. 1975) (apparently referring to the fifth amendment); the D.C. Circuit, e. g., Lewis v. D.C. Dep't of Corrections, 174 U.S.App.D.C. 483, 484, 533 F.2d 710, 711 (1976).

The First Circuit has declined to imply a cause of action against municipalities from the fourteenth amendment Due Process Clause to grant damages for wrongful death. Kostka v. Hogg, 560 F.2d 37, 44 (1st Cir. 1977).

5 . In several cases since Bivens, the Supreme Court has expressly left open the question whether an action for damages might be implied from the Due Process Clauses. Mt. Healthy School Dist. v. Doyle, 429 U.S. 274, 277, 97 S.Ct. 568. 571, 50 L.Ed.2d 471, 477 (1977); Aldinger v. Howard, 427 U.S. 1, 3 n.3, 96 S.Ct. 2413, 2415-16 n.3, 49 L.Ed.2d 276, 280 n.3 (1976); City of Charlotte v. Local 660, Int’l Ass’n of Firefighters, 426 U.S. 283, 284 n.1, 96 S.Ct. 2036, 2038 n.1, 48 L.Ed.2d 636, 639 n.1 (1976); District of Columbia v. Carter, 409 U.S. 418, 432-33, 93 S.Ct. 602, 610, 34 L.Ed.2d 613, 624 (1973). See also City of Kenosha v. Bruno, 412 U.S. 507, 514, 93 S.Ct. 2222, 2227, 37 L.Ed.2d 109, 116 (1973).

6 . See 403 U.S. at 396-97, 91 S.Ct. at 2005, 29 L.Ed.2d at 626-27, citing J. I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423, 428 (1964) (federal securities laws); Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963) (action for abuse of process through misuse of statute governing Congress’ subpoena power); United States v. Gilman, 347 U.S. 507, 74 S.Ct. 695, 98 L.Ed. 898 (1954) (indemnity action by government under Federal Tort Claims Act); United States v. Standard Oil Co., 332 U.S. 301, 311, 67 S.Ct. 1604, 1609-10, 91 L.Ed. 2067, 2073 (1947) (government sought implied remedy, based upon established common law action).

7 . Bivens is cited in Cort to support the proposition that causes of action for damages should not be implied to govern matters “traditionally relegated to state law, in an area basically the concern of the States,” 422 U.S. at 78, 95 S.Ct. at 2088, 45 L.Ed.2d at 36, and the proposition that where such actions have been implied, “there has generally been a clearly articulated federal right in the plaintiff,” id. at 82, 95 S.Ct. at 2090, 45 L.Ed.2d at 39.

8 . See Kostka v. Hogg, 560 F.2d 37, 44 & n.7 (1st Cir. 1977). See also Rodriguez v. Ritchey, 556 F.2d 1185, 1193-94 (5th Cir. 1977) (en banc). See generally Jacobson v. Tahoe Regional Planning Agency, 558 F.2d 928, 937 & n.14 (9th Cir. 1977); C. Wright, Federal Courts § 60 (3d ed. 1976), citing D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 465-75, 62 S.Ct. 676, 683-88, 86 L.Ed. 956, 966, 971 (1942) (Jackson, J., concurring):

Federal common law implements the federal Constitution and statutes, and is conditioned by them. Within these limits, federal courts are free to apply the traditional common-law technique of decision and to draw upon all the sources of the common law

315 U.S. at 472, 62 S.Ct. at 686, 86 L.Ed. at 969; Monaghan, Foreword: Constitutional Common Law, 89 Harv.L.Rev. 1, 10-13, 22-26 (1975).

Where a remedy is of constitutional dimensions and particular elements are not subject to revisions by Congressional legislation, the Court has clearly so indicated. See, e. g., Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933); Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 43 S.Ct. 354, 67 L.Ed. 664 (1923).

9 . 425 U.S. at 828, 96 S.Ct. at 1966, 48 L.Ed.2d at 408.

10 . Section 717, 42 U.S.C.A. § 2000e-16(c) (1974), allows an employee or applicant aggrieved by final action or a failure to take final action on his administrative complaint to file a civil action under Section 706, 42 U.S.C.A. § 2000e-5 (1974), in which “the head of the department, agency, or unit . . shall be the defendant.” However, under this section, federal defendants may be sued only in their official capacities, and not as individuals. See Keeler v. Hills, 408 F.Supp. 386, 387 (N.D.Ga.1975); see also Jones v. Brennan, 401 F.Supp. 622, 627 (N.D.Ga.1975).

11 . Davis has not challenged the distinction in Title VII between federal employees in competitive positions and those in non-competitive positions for the purposes of Title VII remedies.