Patricia C. Carroll, Plaintiff-appellant, v. United States of America, et al., Defendants-appellees, 721 F.2d 155 (5th Cir. 1983)

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US Court of Appeals for the Fifth Circuit - 721 F.2d 155 (5th Cir. 1983) Dec. 16, 1983

Angel & Gassaway, Steven M. Angel, San Antonio, Tex., for plaintiff-appellant.

Anthony W. Vaughn, Asst. U.S. Atty., Fort Worth, Tex., Barbara L. Herwig, Edward R. Cohen, Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.


(Opinion June 20, 1983, 5 Cir., 1983, 707 F.2d 836)

Before INGRAHAM, REAVLEY and POLITZ, Circuit Judges.


Treating the suggestion for rehearing en banc as a petition for panel rehearing, the petition for rehearing is granted. The intervening decision by the Supreme Court in Bush v. Lucas, --- U.S. ----, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983), requires the recall of our original opinion.

In Bush v. Lucas, the Supreme Court declined "to authorize a new nonstatutory damages remedy for federal employees whose First Amendment rights are violated by their superiors," because the claims there presented arose out of "an employment relationship governed by comprehensive procedural and substantive provisions." Id., --- U.S. at ----, 103 S. Ct. at 2406, 76 L. Ed. at 651. Bush v. Lucas involved an employee complaining of an adverse personnel action allegedly triggered by public statements of the employee. Administrative remedies were available and were exercised. The instant case involves a former employee who complains of mistreatment in reemployment because of union activity during the prior period of employment. A measure of administrative remedies was available and was exercised.

We cannot make a principled distinction between an employee and a former employee seeking re-employment, in the context as here presented, sufficient to base a holding that the teachings of Bush v. Lucas do not control. We consider Bush v. Lucas dispositive.

The judgment of the district court is AFFIRMED.