THOMAS W. HILL, PETITIONER V. PAUL S. BRITT

   No. 89-1357

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

   Brief For The Respondent In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 34-45) is reported
at 884 F.2d 1318.  The district court's memorandum opinion and order
granting in part and denying in part respondent's motion to dismiss
(Pet. App. 15-33) is unreported.  The district court's orders denying
respondent's motion to supplement the motion to dismiss and setting
the case for trial (App., infra, 1a-2a) also are unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on July 7, 1989.
A petition for rehearing was denied on October 6, 1989 (Pet. App.
46-48).  The petition for a writ of certiorari was filed on January 3,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether respondent's notice of appeal was timely filed.

   2. Whether the court of appeals correctly concluded that
petitioner's Bivens claim against his former supervisor was precluded
by the Civil Service Reform Act of 1978.

                               STATEMENT

   1. Petitioner was a civilian employee of the Air Force from January
1966 to July 1985.  Immediately prior to the termination of his
employment, he was assigned to Kirtland Air Force Base, New Mexico,
where he worked in the Directorate of Aerospace Studies.  In May 1985,
the Air Force served him with a notice of proposed removal from the
federal service based on his alleged misuse of government long
distance telephone service and his unauthorized removal of records
from the desk of a prior supervisor.  For the same reasons, the Air
Force determined that petitioner was untrustworthy and suspended his
top secret security clearance.  In July 1985, petitioner's employment
was terminated.  Pet. App. 2-3, 7;  Gov't C.A. Br. 3-4.

   2. Petitioner appealed his removal to the Merit Systems Protection
Board (MSPB).  The MSPB "fully adjudicated" his discharge claim,
resulting "in a finding by the MSPB of misconduct" by petitioner and a
determination that petitioner's "'misconduct related to his integrity
and trustworthiness.'" Hill v. Department of Air Force, 844 F.2d 1407,
1413 (10th Cir.) (quoting MSPB Mem. Op. at 24), cert. denied, 488 U.S.
825 (1988).  The MSPB decision was affirmed by the Federal Circuit.
Hill v. Department of Air Force, 818 F.2d 874 (1987) (Table).

   3. Petitioner also filed suit against the Air Force and against two
of his former military supervisors, one of whom was respondent.
Petitioner alleged seven different causes of action.  In his fourth
cause of action, he requested that his security clearance be restored
and that a negative notation -- known as a "Z Code" modifier -- be
removed from his records.  The district court granted the motion for a
preliminary injunction.  Pet. App. 14;  Gov't C.A. Br. 5.  The court
of appeals reversed.  Hill v. Department of Air Force, 844 F.2d 1407
(10th Cir.), cert. denied, 488 U.S. 825 (1988).  Noting that
petitioner "lost his job because of misconduct," the court held that
petitioner "did not have a constitutional property or liberty interest
in his security clearance." 844 F.2d at 1410, 1411.

   4. In petitioner's fifth cause of action, he raised a Bivens claim
against respondent.  /1/ Petitioner alleged that respondent violated
petitioner's due process rights by interfering with petitioner's
security clearance and future job possibilities and by collecting and
disseminating to superiors and other agency officials information
concerning petitioner that was false and injurious to his reputation.
Pet. App. 20-21, 36.  Petitioner also alleged that respondent violated
his constitutional rights to due process and to privacy by "taking"
petitioner's personal phone conversations -- i.e., by eavesdropping on
those conversations from adjacent offices or the hallway or by
ordering others to do so.  Id. at 21, 36;  Gov't C.A. Br. 13-15.

   On September 30, 1986, respondent filed a motion to dismiss
arguing, inter alia, that he was entitled to qualified immunity and
that the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454,
92 Stat. 1111 (codified in scattered sections of 5 U.S.C.), precluded
the Bivens action.  Pet. App. 23, 36.  On September 21, 1987, the
district court denied the motion to dismiss the Bivens action.  The
court held that the CSRA did not preclude the action (id. at 23-29),
but did not address the issue of qualified immunity.  /2/

   On June 29, 1988, respondent moved to supplement his motion to
dismiss, bringing to the court's attention the fact that it had not
ruled on his qualified immunity defense to the constitutional claims.
Gov't C.A. Br. 6.  On October 14, 1988, the district court denied the
motion to supplement.  App., infra, 2a.  On the previous day (October
13, 1988), the district court had set the case for trial.  App.,
infra, 1a.  On November 9, 1988, respondent filed a notice of appeal
from both the October 13 and the October 14, 1988 orders.  Gov't C.A.
Br. 7.

   5. In July 1989, the court of appeals reversed the district court's
orders refusing to dismiss the Bivens action and setting the case for
trial.  Pet. App. 34-45.  The court initially noted that "(i)t is well
settled that a court of appeals has jurisdiction to consider an
interlocutory appeal involving an issue of qualified immunity" and
that "(respondent's) interlocutory appeal is properly before this
court, because his qualified immunity claim was apparently denied by
the district court." Id. at 37.  The court then concluded that,
because "no Bivens remedy" was available "under the circumstances of
this case," it was unnecessary to "address the qualified immunity
issue." Id. at 38.

   The court of appeals determined that the CSRA precludes
petitioner's Bivens claim.  Reviewing this Court's decisions in Bush
v. Lucas, 462 U.S. 367 (1983), and Schweiker v. Chilicky, 487 U.S. 412
(1988), the court concluded that those decisions "provide that courts
must withhold their power to fashion damages remedies when Congress
has put in place a comprehensive system to administer public rights,
has not inadvertently omitted damages remedies for certain claimants,
and has not plainly expressed an intention that the courts preserve
Bivens remedies." Pet. App. 40-41 (internal quotation marks omitted).
The court observed that two other circuits had "applied the reasoning
of Chilicky and Bush to situations similar to (petitioner's) * * * and
concluded (that) there was no Bivens remedy." Pet. App. 41 (citing
Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988) (en banc), and
McIntosh v. Turner, 861 F.2d 524 (8th Cir. 1988)).  Agreeing with the
holdings and reasoning of those decisions, the court concluded that
petitioner could not maintain a Bivens action for allegations of
prohibited personnel practices under the CSRA, and that interference
with security clearances and with job possibilities were prohibited
personnel practices.  Id. at 42-43.

   The court also concluded that, even though, in its view,
eavesdropping was "not * * * a listed prohibited personnel practice"
under the CSRA (Pet. App. 43), the Act precludes petitioner's Bivens
claim that the alleged eavesdropping constituted a violation of his
constitutional right to privacy.  The court noted that "(t)he nature
of the particular constitutional injury played little role in the
Supreme Court's reasoning in Bush," and that "the Court focused on the
special factor of federal employment." Ibid.  The court further
emphasized that, in light of Chilicky, "Bush even extends to
plaintiffs who have no remedy under the Civil Service Reform Act." Id.
at 43-44.  Finally, the court observed that petitioner "received full
due process, under the comprehensive statutory scheme, after he
contested his loss of employment." Id. at 44.  Accordingly, the court
ordered that the fifth cause of action be dismissed with prejudice.
/3/

                               ARGUMENT

   Petitioner raises two issues.  First, he asserts that the appeal
was not timely filed.  Second, he maintains that the court of appeals
erred in determining that a Bivens cause of action cannot be
maintained in the circumstances of this case.  Neither contention is
well founded, and neither warrants review.

   1. Petitioner argues (Pet. 7-12) that respondent's notice of
appeal, filed on November 9, 1988, was untimely.  Petitioner contends
that respondent waived the qualified immunity issue by not raising it
in his original motion;  alternatively, petitioner suggests that, if
it was raised, the notice was due 60 days after September 21, 1987,
when the district court issued its order denying respondent's motion
to dismiss the fifth cause of action.  Petitioner's arguments are
meritless.

   Rule 4(a)(1) of the Federal Rules of Appellate Procedure provides
that, in a civil case in which the United States or an officer of the
United States is a party, an appeal must be made within 60 days "after
the date of entry of the judgment or order appealed from." In his
supplemental motion to dismiss, respondent, an officer of the United
States, pointed out to the district court its failure to address his
defense of qualified immunity and sought dismissal on the basis of
that defense.  He then filed a notice of appeal within 60 days after
the entry of the district court's orders setting the case for trial
and denying his supplemental motion.  Respondent thus clearly complied
with the applicable rule.  Petitioner suggests that respondent failed
to raise the qualified immunity issue in his initial motion to
dismiss, and that respondent should not have been permitted to appeal
from the denial of the supplemental motion.  Pet. 4-5, 9.  But the
court of appeals explicitly determined that respondent's "motion to
dismiss alleg(ed) absolute and qualified immunity" (Pet. App. 36), and
that the district court had simply failed to consider the qualified
immunity issue in its September 21, 1987 order addressing that motion.
 See id. at 36-37 ("The district court dismissed part of the fifth
cause of action on absolute immunity grounds.  It did not discuss
qualified immunity.").  Contrary to petitioner's contention,
respondent's appeal was timely filed.  /4/

   2. Petitioner also maintains (Pet. 13-17) that the court of appeals
erred in concluding that the CSRA precludes his Bivens claim.  The
court of appeals' conclusion, however, is correct, and does not
conflict with any decision of this Court or any other court of
appeals.

   The court of appeals determined that, under this Court's decisions
in Bush v. Lucas and Schweiker v. Chilicky, no Bivens remedy should be
inferred as a supplement to the CSRA remedies afforded by Congress.
Petitioner's allegations that respondent impermissibly interfered with
petitioner's security clearances and job possibilities are
unquestionably allegations of prohibited personnel practices.  Pet.
App. 42 (citing 5 U.S.C. 2302).  The Tenth Circuit's conclusion that
the CSRA precludes a Bivens action concerning such practices is
consistent with the unanimous view of other courts of appeals.  /5/
Indeed, the district court's contrary analysis of this question was
issued before this Court's decision in Schweiker v. Chilicky.  Two of
the court of appeals decisions cited by the district court (Pet. App.
24) to support its analysis were subsequently vacated and decided
differently after Chilicky;  /6/ a third was explicitly disavowed in
the wake of Chilicky.  /7/ As the Tenth Circuit and other courts of
appeals have concluded, Congress explicitly addressed the problem of
prohibited personnel practices, and courts should not supplement that
scheme with Bivens remedies.  /8/

   Moreover, the same result is required with respect to petitioner's
eavesdropping/privacy claim even though the court of appeals
determined that such a claim is not a prohibited personnel practice.
As the Spagnola court explained (859 F.2d at 228), Chilicky makes
clear that "Bush extends even to those claimants within the system for
whom the CSRA provides 'no remedy whatsoever.'" 859 F.2d at 228.  In
other words, since the CSRA is a comprehensive regime governing the
relationship between federal employees and their superiors, Congress's
carefully constructed system should not be supplemented by implied
judicial causes of action.  "When the design of a government program
suggests that Congress has provided what it considers adequate
remedial mechanisms for constitutional violations that may occur in
the course of its administration, (this Court has) not created
additional Bivens remedies." Schweiker v. Chilicky, 108 S. Ct. at
2468.  Hence, the court of appeals correctly held that it could not
create a Bivens damages remedy for such a claim.  /9/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   BARBARA L. HERWIG

   HOWARD S. SCHER

      Attorneys

   APRIL 1990

   /1/ See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.
388 (1971).

   /2/ In its September 21, 1987 order, the district court also
granted the motion by respondent and another defendant to dismiss the
first and fifth causes of action to the extent that they alleged
common law and Federal Tort Claims Act claims.  Pet. App. 33.

   /3/ At the present time, the only claim that has not been dismissed
in this action is a claim under the Privacy Act.

   /4/ In view of the specific procedural background of this appeal,
there is no merit to petitioner's contention (Pet. 7-10) that a
conflict exists between the instant decision and Kenyatta v. Moore,
744 F.2d 1179 (5th Cir. 1984), cert. denied, 471 U.S. 1066 (1985).
The Kenyatta court emphasized that the defendants could not rely on
the district court's denial of the defendants' second motion for
summary judgment to trigger the 60 days for filing a notice of appeal
with respect to the absolute immunity claim because "the issue had
been previously decided" by the district court and because the
defendants' second summary judgment motion only "nominally reiterated"
that claim (744 F.2d at 1187).  Here, in contrast, the district court
never specifically addressed the qualified immunity claim.

   /5/ See, e.g., Feit v. Ward, 886 F.2d 848 (7th Cir. 1989);  Volk v.
Hobson, 866 F.2d 1398 (Fed. Cir.), cert. denied, 109 S. Ct. 2425
(1989);  Kotarski v. Cooper, 866 F.2d 311 (9th Cir. 1989);  McIntosh
v. Turner, 861 F.2d 524 (8th Cir. 1988);  Spagnola v. Mathis, 859 F.2d
223 (D.C. Cir. 1988) (en banc).

   /6/ See Spagnola, 859 F.2d at 224;  Kotarski, 866 F.2d at 311-312.

   /7/ See Feit v. Ward, 886 F.2d at 855-856 (disapproving Egger v.
Phillips, 710 F.2d 292 (7th Cir.), cert. denied, 464 U.S. 918 (1983)).

   /8/ The court of appeals ruled that, because the interlocutory
appeal of the order apparently denying qualified immunity was properly
before it, the court could address the related, dispositive issue of
the availability of a Bivens remedy.  That ruling is in accord with
the decisions of other courts of appeals.  See Pet. App. 37-38 (citing
Carlson v. Conklin, 813 F.2d 769, 770-771 (6th Cir. 1987) and Bolden
v. Alston, 810 F.2d 353, 356 (2d Cir.), cert. denied, 484 U.S. 896
(1987)).  See also Drake v. Scott, 812 F.2d 395, 399, modified on
other grounds, 823 F.2d 239 (8th Cir.), cert. denied, 484 U.S. 965
(1987).  Two courts of appeals, however, have suggested a contrary
view.  See Siegert v. Gilley, 895 F.2d 797, 800 (D.C. Cir. 1990);
Todd v. United States, 849 F.2d 365, 368 (9th Cir. 1988).  But see Le
Bid v. Hanson, 894 F.2d 1124, 1126 (9th Cir. 1990) (citing lack of
Bivens remedy as alternative basis for reversal on interlocutory
appeal of denial of qualified immunity).  But both the Siegert and
Todd decisions held that the defendant was entitled to qualified
immunity, and thus the discussion regarding the appealability of
closely related, potentially dispositive issues did not affect the
outcome on appeal.  In any event, petitioner has not raised this
question, and it therefore need not be considered by this Court.  Sup.
Ct. R. 14.1(a).

   /9/ Petitioner's suggestion (Pet. 13) that the court of appeals'
decision is in conflict with Harlow v. Fitzgerald, 457 U.S. 800
(1982), is incorrect.  As an initial matter, petitioner confuses
application of the qualified immunity standard in a Bivens action with
the threshold question addressed by the court of appeals (whether a
Bivens action may be maintained at all).  As the court of appeals
concluded, in view of Congress's comprehensive treatment of the
federal employment relationship, petitioner cannot succeed on the
threshold question.  Even if the qualified immunity issue itself were
considered, however, it is clear that respondent's conduct did not
violate "clearly established statutory or constitutional rights of
which a reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982).  Petitioner "did not have a constitutional
property or liberty interest in his security clearance" (Hill v.
Department of Air Force, 844 F.2d at 1411), nor did he have a
constitutionally protected interest with respect to future employment.
 See Board of Regents v. Roth, 408 U.S. 564, 577 (1972) (to have a
property interest in a job, an individual "must have more than a
unilateral expectation of it").  Moreover, respondent's alleged
collection of information and dissemination to other agency officials
violated no clearly established rights.  See Hill v. Department of Air
Force, 844 F.2d at 1412 ("The Air Force could not, and should not, be
prohibited from communicating to prospective employers who do work for
the government the facts underlying (petitioner's) discharge.").
Finally, petitioner's eavesdropping/privacy claim consists of
allegations of overhearing of his workplace telephone conversations
from adjacent offices and the hallway;  no decision clearly
establishes that an individual can have a reasonable expectation of
privacy in these circumstances.

   APPENDIX