Opinion · District Court, D. Colorado

Nietert v. Kelley

Nietert v. Kelley, 582 F. Supp. 1536 (District Court, D. Colorado 1984)

Type
Opinion
Court
District Court, D. Colorado
Jurisdiction
Colorado
Date
1984-04-24
Topic
general

ORDER CARRIGAN, District Judge. At my request, counsel in this federal employment case submitted supplemental briefs on whether the Supreme Court’s opinion in Bush v. Lucas, — U.S. —, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) applies to Army and Air Force Exchange Service (“AAFES”) personnel, thus denying them an implied remedy under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In requesting these briefs, I informed counsel of the Eleventh Circuit’s recent decision in Dynes v.

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NIETERT v. KELLEY, (D.Colo. 1984)
582 F. Supp. 1536
Keith L. NIETERT, Plaintiff, v. Robert E. KELLEY, Major General, United
States Air Force, Superintendent, United States Air Force Academy; David E.
Urso, Roger Cohen, Ralph H. Byerly, Parties Defendant Names Unknown,
Defendants.
Civ. A. No. 82-C-1213.
United States District Court, D. Colorado.
April 24, 1984.
Charles J. Haase, Colorado Springs, Colo., for plaintiff.

Nancy E. Rice, Asst. U.S. Atty., Denver, Colo., for defendants.
ORDER
CARRIGAN, District Judge.
At my request, counsel in this federal employment case submitted supplemental briefs on whether the Supreme Court's opinion inBush v. Lucas,___ U.S. ___,103 S.Ct. 2404,76 L.Ed.2d 648(1983) applies to Army and Air Force Exchange Service ("AAFES") personnel, thus denying them an implied remedy underBivens v. Six Unknown Federal Narcotics Agents,403 U.S. 388,91 S.Ct. 1999,29 L.Ed.2d 619(1971). In requesting these briefs, I informed counsel of the Eleventh Circuit's recent decision inDynes v. AAFES,720 F.2d 1495(11th Cir. 1983). Further oral argument on this issue would not materially assist in deciding it, and theWest Page 1537trial date tugging at my sleeve precludes my writing a detailed opinion on the interesting issue here involved.

After reviewing the authorities presented, I conclude that the Tenth Circuit probably will not follow the Eleventh Circuit's reasoning inDynes.There the Eleventh Circuit held that noBivensremedy should be implied for AAFES employees because of the existence of meaningful remedies against the United States. But the Eleventh Circuit did not discuss as a significant factor the difference between AAFES regulations and the extensive civil service protections reviewed inBush v. Lucas.Under the rationale ofBush,the critical difference between civil service regulations and the AAFES regulations is that judicial review of the latter is neither provided nor available.See Dynes,720 F.2d at 1498-99, fn. *.

This lack of judicial review of an AAFES employee's constitutional claims requires that aBivensremedy be implied to provide judicial review of alleged constitutional violations. There is nothing new about such a review; it derives fromMarburyv. Madison,1 Cranch 137,5 U.S. 137,2 L.Ed. 60(1803). IfDyneswere followed, employees of the Department of Defense, an executive agency, would have the last word on an AAFES employee's appeal of his or her claim of unconstitutional conduct by that agency. Such a result would be contrary to the principle laid down inMarbury.

For these reasons, the plaintiff will be allowed to assert, against all four remaining defendants, aBivensclaim for his allegedly improper exclusion from the Air Force Academy grounds. Whether the plaintiff prevails on any of his claims of course, will be for the jury to decide.West Page 1552