446 U.S. at 18, 100 S.Ct. at 1472. In the wake of Carlson, Bush v. Lucas, 647 F.2d 573 (1981), cert. granted, ___ U.S. ___, 102 S.Ct. 3481, 73 L.Ed.2d 1365 (1982) was heard on remand from the Supreme Court for reconsideration by the Fifth Circuit Court of Appeals. In Bush, plaintiff was a federal employee seeking damages under Bivens for retaliatory demotion, in violation of his First Amendment rights.
In redress for such violations, the plaintiff seeks to proceed on a Bivens cause of action in requesting damages from Mr. Volz and Mr. Civiletti. The plaintiff's right to maintain a constitutional tort action against the individual defendants must be examined in light of the Fifth Circuit's controlling decision in Bush v. Lucas, 647 F.2d 573 (5th Cir. 1981), cert. granted, ___ U.S. ___, 102 S.Ct. 3481, 73 L.Ed.2d 1365 (1982). In Bush, the plaintiff brought an action alleging defamation and retaliatory demotion against the director of the Marshall Space Flight Center.
We do not view petitioners' argument on the statutory question as insubstantial. Cf. Merrill Lynch, Pierce, Fenner Smith, Inc. v. Curran, 456 U.S. 353, 72 L.Ed.2d 182, 102 S.Ct. 1825 (1982) (controlling question in implication of statutory causes of action is whether Congress affirmatively intended to create a damages remedy); Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1 [ 101 S.Ct. 2615, 69 L.Ed.2d 435] (1981) (same); Texas Industries, Inc. v. Radcliff Materials, 451 U.S. 630, 638-39, 68 L.Ed.2d 500, 101 S.Ct. 2061 [2066] (1981) (same). Nor is the Bivens question. Cf. Bush v. Lucas, 647 F.2d 573, 576 (CA5 1981), affirming on remand 598 F.2d 958 (CA5 1981) (holding that the "unique relationship between the Federal Government and its civil service employees is a special consideration which counsels hesitation in inferring a Bivens remedy"). As in Nixon v. Fitzgerald, ante, however, we took jurisdiction of the case only to resolve the immunity question under the collateral order doctrine.
Carlson, supra, 446 U.S. at 18, 100 S.Ct. at 1471 (quoting Bivens). In Bush v. Lucus, 647 F.2d 573 (5th Cir. 1981) (on remand from 446 U.S. 14, 100 S.Ct. 1846, 64 L.Ed.2d 268 (1980)), cert. granted, ___ U.S. ___, 102 S.Ct. 3481, 73 L.Ed.2d 1365 (1982), a panel of the former Fifth Circuit held that this "unique relationship" was such a special factor, and refused to infer a direct cause of action. 647 F.2d at 576-77.
Pp. 380-390. 647 F.2d 573, affirmed. STEVENS, J., delivered the opinion for a unanimous Court.
The district court's analysis of the plaintiffs' Bivens claims centers on the question of whether such claims are viable in the government-employee and government-employer relationship. In Bush v. Lucas, 647 F.2d 573 (5th Cir. Unit B 1981), aff'd, 462 U.S. 367 (1983), this circuit held that Bivens did not apply in the context of the federal employee-employer relationship. The "relationship" was a "special factor" that counseled hesitation against the judicial creation of a damage remedy for the deprivation of a federal employee's constitutional rights.
In Broadway v. Block, 694 F.2d 979 (5th Cir. 1982) the plaintiff, who had been reassigned to a different position within the Farmer's Home Administration without a change in grade or pay, brought a Bivens cause of action in district court. In affirming the district court's dismissal of the case the court relied on its earlier decision of Bush v. Lucas, 647 F.2d 573 (5th Cir. 1981), aff'd., 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) and its holding in Broussard v. United States Postal Service, 674 F.2d 1103 (5th Cir. 1982) that a plaintiff terminated from his job as postmaster had no Bivens remedy against federal officials. The court in Broadway noted
Defendants moved to dismiss, or in the alternative for summary judgment. The district court dismissed the due process claims, reasoning that these constitutional claims against Williams' superiors were precluded by Bush v. Lucas, 647 F.2d 573 (5th Cir. 1981), affirmed, ___ U.S. ___, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), and Broussard v. United States Postal Service, 674 F.2d 1103 (5th Cir. 1982). The district court denied the motion directed to the remaining claims, finding that material issues of fact remained as to defendants' entitlement to official immunity.
Observing that Congress has neither specifically authorized nor expressly precluded the remedy sought by the petitioner, the Court declined to create such a cause of action stating: The court of appeals held in Bush v. Lucas, 647 F.2d 573 (5th Cir. Unit B 1981), that no such cause of action was available because of the "special relationship" between the federal government and its employees. Id. at 576.
This appeal requires that we distinguish those situations in which a Bivens plaintiff may secure direct judicial redress for a constitutional tort from those where alternative remedies are mandated. To do so we re-examine, particularly, Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), and Bush v. Lucas, 647 F.2d 573 (5th Cir. 1981) affirmed ___ U.S. ___, 103 S.Ct. 2404, 76 L.Ed.2d 648. Facts