                    United States Court of Appeals

                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 98-3700
                                  ___________

Carpenter's Produce, An Arkansas         *
General Partnership, and Abraham         *
Carpenter, Sr., Abraham Carpenter,       *
Jr., Danny Carpenter, Terry Carpenter,   *
Sr., and Albert Carpenter, Sr.,          *
                                         *
            Appellants,                  *
                                         *   Appeal from the United States
v.                                       *   District Court for the Eastern
                                         *   District of Arkansas.
Mary Ann Arnold, Pam Bredlow,            *
Garland Bryant, Thad Freeland,           *
Ronald Chastain, Antonio Franco,         *
Wayne Perryman, Gerald Steed, and        *
Leon Steel, All as Present or Former     *
Agents and Employees, Arkansas           *
Consolidated Farm Services Agency,       *
United States Department of              *
Agriculture,                             *
                                         *
            Appellees.                   *

                                  ___________

                            Submitted: June 15, 1999

                                 Filed: September 3, 1999
                                  ___________
Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and PANNER,
      District Judge.1
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       The plaintiffs in this case, Carpenter's Produce and several members of the
Carpenter family, received federal disaster relief money until their benefits were
reconsidered following an audit by the Department of Agriculture. After appealing that
decision through several levels of administrative review and eventually having their
benefits restored with interest, the Carpenters sued under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging racial
discrimination in violation of the fifth amendment at an intermediate stage of review,
and seeking damages directly under the Constitution. The district court2 dismissed the
complaint on the grounds that the Bivens action was precluded by the existence of an
elaborate review process and, alternatively, that the defendants were entitled to
qualified immunity. The Carpenters appeal and we affirm.

                                            I.
       Bivens actions are implied causes of action for damages against government
officials for constitutional violations where Congress has not specifically provided for
such a remedy. The Supreme Court has allowed Bivens actions only in the absence of
" 'special factors counselling hesitation in the absence of affirmative action by
Congress,' " Schweiker v. Chilicky, 487 U.S. 412, 423 (1988), quoting Bivens, 403
U.S. at 396. "[T]he concept of 'special factors counselling hesitation' ... has proved to


      1
       The Honorable Owen M. Panner, United States District Judge for the District
of Oregon, sitting by designation.
      2
       The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.

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include an appropriate judicial deference to indications that congressional inaction has
not been inadvertent." Chilicky, 487 U.S. at 423, quoting Bivens, 403 U.S. at 396.
Thus, Bivens actions have not been allowed where "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 [the program's]
administration." Chilicky, 487 U.S. at 423.

       We believe, as did the district court, that the case before us is controlled by
Chilicky. In that case, the plaintiffs' disability benefits under the Social Security Act
were terminated after an audit performed pursuant to a congressionally mandated
"continuing disability review" program. In addition to pursuing administrative
remedies, the plaintiffs sued in federal court, alleging a violation of their fifth
amendment right to procedural due process. After the district court dismissed the
complaint, the Ninth Circuit reversed, see Chilicky v. Schweiker, 796 F.2d 1131 (9th
Cir. 1986), and was then itself reversed by the Supreme Court, which held that the
plaintiffs' Bivens action was precluded by the presence of the elaborate statutory
remedial scheme included in the Social Security Act. Chilicky, 487 U.S. at 424-29.

       The statutory scheme held to preclude the Bivens action in Chilicky, 487 U.S.
at 424, consisted of de novo reconsideration by the state agency that made the initial
decision to revoke benefits, subsequent review by the Secretary of Health and Human
Resources (through an administrative law judge), and a hearing available before the
Appeals Council of the Social Security Administration. After these remedies were
exhausted, the plaintiffs were entitled to seek judicial review, including a review of
constitutional claims. See id. The review process available to the plaintiffs in the
circumstances of the case before us is at least as extensive as that in Chilicky.

       After an initial decision by the relevant county committee on eligibility for
disaster relief benefits, a claimant may seek reconsideration by that committee,
followed by an appeal to, and possible reconsideration by, the state committee. See 7

                                          -3-
C.F.R. § 780.7. In addition to the regulatory remedies available, Congress provided
for several other levels of review. A claimant may appeal a state committee decision
to the National Appeals Division (NAD), see 7 U.S.C. § 6996(a), an independent body
within the Department of Agriculture, see 7 U.S.C. § 6992(a). An adverse decision by
the NAD may be appealed to the NAD director, see 7 U.S.C. § 6998(b), who, under
the relevant regulations, may subsequently be petitioned to reconsider his or her
decision, see 7 C.F.R. § 11.11. Finally, Congress provided for judicial review under
standards established by the Administrative Procedure Act (APA), see 5 U.S.C.
§§ 551-559, including reversal of the final agency decision if it is "contrary to
constitutional right, power, privilege, or immunity," see 5 U.S.C. § 706(2)(B).

                                           II.
       We believe, as the Court held in Chilicky, that the exhaustive scheme of
remedies summarized above, supplemented by judicial review of constitutional
violations, precludes the Carpenters' Bivens action. Cf. Maxey v. Kadrovach, 890 F.2d
73, 75-76 (8th Cir. 1989) (per curiam), cert. denied, 495 U.S. 933 (1990) (holding that
judicial review under APA standards is alone sufficient to preclude a Bivens action).
The Carpenters contend, as the Chilicky plaintiffs did, that their Bivens action should
not be precluded, because the remedial scheme available to them provides for only the
reinstatement of benefits, and not for any consequential damages or attorney's fees
designed specifically to compensate for the alleged constitutional violation. The
Supreme Court rejected this argument in Chilicky, 487 U.S. at 428, however, holding
that "[i]n light of the comprehensive statutory schemes involved, the harm resulting
from the alleged constitutional violation [could not] be separated from the harm
resulting from the denial of the statutory right." Although the remedies provided by
Congress may not have been complete, the Court reasoned, the decision not to provide
specific, separate remedies for the constitutional violation was a policy decision best
made by Congress, and not by the Court. Id. at 428-29.




                                          -4-
       The fact that Congress created the remedial process at question in Chilicky
counseled the conclusion that the lack of a separate remedy for the alleged
constitutional violation was not inadvertent. Id. at 423, 425-26, 429. Similarly, the
lack of separate remedies for the constitutional violations alleged in this case does not
appear inadvertent in light of the fact that Congress supplemented the regulatory review
process by statute. We therefore believe that the design of the remedial scheme is a
"special factor counselling hesitation," Bivens, 403 U.S. at 396, to allow a Bivens cause
of action in the context of the Carpenters' case.

       The Carpenters maintain that this case is more similar to Krueger v. Lyng, 927
F.2d 1050 (8th Cir. 1991), than to Chilicky. In Krueger, 927 F.2d at 1055, we stated
that "[o]nly Congress has the power to decide that a statutory or administrative scheme
will foreclose a Bivens action." We held, therefore, that a general enabling statute
empowering agency heads to prescribe regulations for their departments did not evince
an intent to provide a remedial scheme that would preclude a Bivens action. Id. The
remedial scheme in Krueger, however, unlike that in Chilicky and in the Carpenters'
case, was created entirely by regulation, and that was the point of our holding. Here,
Congress evinced the specific intent to provide a comprehensive remedial scheme by
adding extra statutory steps to the administrative remedial scheme. The addition of
these extra steps distinguishes this case from Krueger, and serves as evidence that
Congress's creation of a remedial scheme that provides no specific, separate remedy
for discrimination was not inadvertent.

      For the reasons stated, we affirm the judgment of the district court.

      A true copy.

             Attest:

                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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