Nietert v. Kelley, 582 F. Supp. 1536 (D. Colo. 1984)

Charles J. Haase, Colorado Springs, Colo., for plaintiff.

Nancy E. Rice, Asst. U.S. Atty., Denver, Colo., for defendants.

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. AAFES, 720 F.2d 1495 (11th Cir. 1983). Further oral argument on this issue would not materially assist in deciding it, and the *1537 trial 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 in Dynes. There the Eleventh Circuit held that no Bivens remedy 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 in Bush v. Lucas. Under the rationale of Bush, 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 a Bivens remedy be implied to provide judicial review of alleged constitutional violations. There is nothing new about such a review; it derives from Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L. Ed. 60 (1803). If Dynes were 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 in Marbury.

For these reasons, the plaintiff will be allowed to assert, against all four remaining defendants, a Bivens claim 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.