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WHITACRE v. DAVEY

August 29, 1988

MARGARET T. WHITACRE, Plaintiff,
v.
JAMES F. DAVEY, and LEEANN FLYNN, Defendants


David B. Sentelle, United States Circuit Judge.


The opinion of the court was delivered by: SENTELLE

DAVID B. SENTELLE, UNITED STATES CIRCUIT JUDGE, Sitting By Designation

 The Plaintiff, Margaret T. Whitacre, brought this action in October of 1987 against James F. Davey, the Clerk of the United States District Court for District of Columbia, and Lee Ann Flynn, the Administrative Assistant to the Chief Judge of the United States District Court for the District of Columbia and the Equal Employment Opportunity (EEO) Coordinator for the District Court under its discrimination complaints procedures. Ms. Whitacre alleged that in an August 1985 reorganization of the management of the Clerk's Office, Davey discriminated against her because of her age. In that reorganization Davey abolished the two Assistant Clerk positions, one of which had previously been held by Plaintiff, and created a single Chief Deputy Clerk position. Ms. Whitacre applied for the vacancy as Chief Deputy Clerk. Nancy Mayer, previously the other Assistant Clerk and a younger person with a lower grade than Ms. Whitacre, was the successful applicant. Ms. Whitacre was left with a lower level, non-supervisory staff position; one, according to her complaint, "without real duties or any responsibilities."

 Ms. Whitacre complained to Flynn in her capacity as EEO Coordinator and in the complaint asked Flynn to recuse herself from dealing with the complaint because of "defendant Flynn's close personal contact and well-known friendship with Nancy Mayer, the person who most benefited from defendant Davey's act of age discrimination against Plaintiff, and her long association with defendant Davey himself. . . ." Flynn declined to recuse herself, conducted a "fact-finding/investigation" without an evidentiary hearing requested by Whitacre, and ultimately found that Davey had not committed any act of age discrimination. Plaintiff appealed to Chief Judge Robinson who summarily affirmed Flynn's finding of no discrimination. Plaintiff then brought this action.

 In February of 1988 the undersigned, sitting by designation as a Judge of the United States District Court, heard the matter on the motions of Flynn and Davey to dismiss the action pursuant to Rule 12 (b)(6) because of Plaintiff's failure to state a claim upon which relief may be granted and because of the official immunity of both defendants. The court allowed Flynn's Motion to Dismiss but permitted Plaintiff to replead as to the Defendant Davey. Plaintiff's Amended Complaint is now before the court on a Motion for Reconsideration as to Defendant Flynn and Davey's renewed Motion to Dismiss the Amended Complaint. For the reasons set out below, the court denies Whitacre's Motion for Reconsideration as to the Complaint against Flynn and grants Davey's Motion for Dismissal, both by order filed contemporaneously herewith.

 I. The Claim Against Flynn

 As the undersigned previously noted in open court at the hearing of the original Motions to Dismiss, the only complaint against Flynn, other than her failure to rule in Plaintiff's favor in her quasi-judicial capacity as EEO Coordinator, is that she failed to recuse herself. It would appear obvious that her failure to rule in Plaintiff's favor could not by itself support a constitutional tort action like the one pursued here, but if it could, certainly the same is insulated by Chief Judge Robinson's affirmance. In any event, it seems rather well established that disciplinary action, even including discharge, of federal employees though it be in alleged violation of constitutional right does not support a constitutional tort action like the one alleged here where there is an adequate alternative remedy. Bush v. Lucas, 462 U.S. 367, 378, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983). Here there is.

 Thus, if Plaintiff has a Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), type constitutional tort action against Flynn, it must be on the basis that her failure to recuse constituted a violation of the due process rights of Plaintiff. As this court previously held, it did not. The Amended Complaint contains nothing that causes this court to reconsider the earlier decision. Plaintiff has shown this court no authority that a failure to recuse in an administrative proceeding or a quasi-judicial hearing has ever been the foundation for a Bivens action nor has the court independently found any. Even in cases of direct appeal, as opposed to constitutional tort, the Supreme Court has stated that ". . . only in the most extreme of cases would disqualification . . . be constitutionally required " Aetna Life Ins., Co. v. Lavoie, 475 U.S. 813, 821, 89 L. Ed. 2d 823, 106 S. Ct. 1580 (1986). General allegations of friendship between an administrative assistant functioning in a quasi-judicial capacity and a stranger to the administrative proceeding, who happened to be the beneficiary of the questioned act, simply does not create such an extreme case, even if failure to recuse could otherwise be the basis of a Bivens-type action. Certainly it is not necessary to decide whether a failure to recuse ever could be the basis, although this court doubts it, but the present allegation is not that case, even if one does exist. Not only law but also common sense seems to underline this conclusion in the present case. The EEO plan obviously requires the function of someone in the agency. The existence of anyone within the agency who could not be said to have been associated with anybody in a claimed case appears so unlikely that recusal of all possible employees would seem a real possibility were Plaintiff's standards applied.

 Finally, even if an action were otherwise stated, Flynn's dismissal motion was well taken in that her qualified immunity protects her in the present circumstances. *fn1" The Supreme Court has clearly held that

 
government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

 Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1981).

 Plaintiff argues that Harlow is distinguishable because, in plaintiff's view, the quasi-judicial function here is not "discretionary" and Harlow spoke to summary judgment proceedings rather than motion to dismiss. Neither of these distinctions makes any difference in this case. The nature of the quasi-judicial function, in this court's view, entitles defendant, if anything, to more rather than less immunity protection. Since Harlow, the Supreme Court has held

 
unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.

 Mitchell v. Forsyth, 472 U.S. 511, 526, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). The right to recusal is not established in any clear body of prior law nor is the right to an evidentiary hearing. Plaintiff's proposed amendment to complaint, setting out that Flynn had granted evidentiary hearings in another case or cases and that some other EEO Coordinator had once recused ...


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