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Billie Jo McAlister v. United States Attorney, Robert G. Ulrich, and Department of Health & Human Services Regional Attorney, Paul Cacioppo

Billie Jo McALISTER, Appellee, v. United States Attorney, Robert G. ULRICH, and Department of Health & Human Services Regional Attorney, Paul Cacioppo, Appellants

McAlister v. United States Attorney, Robert G. Ulrich, & Dep't of Health & Human Servs. Reg'l Attorney, Paul Cacioppo, 807 F.2d 752 (8th Cir. 1986)
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Court
Court of Appeals for the Eighth Circuit · U.S. Courts of Appeals
Decided
December 24, 1986
Docket
No. 86-1649
Judges
Ross, Gibson, Fagg
Citations
807 F.2d 7521986 U.S. App. LEXIS 3511942 Empl. Prac. Dec. (CCH) 36,712

Opinion — Per Curiam

*753 PER CURIAM.

United States Attorney Robert G. Ulrich and Department of Health & Human Services Regional Attorney Paul Cacioppo appeal the district court’s denial of their motion for summary judgment in a Bivens -type constitutional tort action brought against them by Billie Jo McAlister.

See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971). We reverse.

McAlister’s present action arises from a complaint, which he is now pursuing administratively, of handicap discrimination against him by his former employer, the Social Security Administration. McAlister contends Ulrich and Cacioppo’s failure to investigate his discrimination claim, to meet with him, or to answer his questions, violated his rights to due process and access to the courts. Ulrich and Cacioppo moved for summary judgment on the ground they were protected from suit by either absolute or qualified immunity.

We agree with the district court that McAlister’s complaint is difficult to comprehend, but as we read his pleadings, the complaint is cast as a Bivens -type constitutional tort claim. The United States Supreme Court, however, has refused to extend Bivens to encompass claims brought by federal employees for constitutional violations arising out of their employment relationship.

See Bush v. Lucas, 462 U.S. 367, 390 , 103 S.Ct. 2404, 2417 , 76 L.Ed.2d 648 (1983).

Cf. Premachandra v. United States, 739 F.2d 392, 394 (8th Cir.1984) (civil service remedies exclusive redress for wrongfully discharged federal employees) (relying on Bush).

Thus, McAlister has failed to state a claim for which relief may be granted.

Accordingly, we reverse the district court’s denial of summary judgment and remand with directions to dismiss McAlis-ter’s complaint. Because we dismiss for failure to state a claim, we do not reach the issue of immunity.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1988: 219882026peak 1988 · 2

Relies on it most ⓘ

  1. Kienlen v. Merit Systems Protection Board687 F. Supp. 461 (D. Minnesota 1988)
  2. Moreno v. Small Business Administration681 F. Supp. 1370 (D. Minnesota 1988)

Most recent

  1. Kienlen v. Merit Systems Protection Board687 F. Supp. 461 (D. Minnesota 1988)
  2. Moreno v. Small Business Administration681 F. Supp. 1370 (D. Minnesota 1988)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

DepthCaseCited by
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) 17,038
Bush v. Lucas, 462 U.S. 367 (1983) 1,232
Premachandra v. United States, 739 F.2d 392 (8th Cir. 1984) 35

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