     Case: 13-50079      Document: 00512545317         Page: 1    Date Filed: 02/26/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                      No. 13-50079                        February 26, 2014
                                                                             Lyle W. Cayce
BRYAN GONZALEZ,                                                                   Clerk

                                                 Plaintiff–Appellant,
v.

VICTOR M. MANJARREZ, JR.,

                                                 Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 3:11-CV-29


Before STEWART, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
       This appeal arises from the district court’s dismissal of Plaintiff–
Appellant Bryan Gonzalez’s suit against Defendant–Appellee Victor M.
Manjarrez, Jr., pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), and the U.S. Declaratory Judgment
Act, 28 U.S.C. §§ 2201–02, alleging violations of his First Amendment right to
freedom of speech.       The district court found that it lacked jurisdiction to


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 13-50079


provide a Bivens remedy under Broadway v. Block, 694 F.2d 979 (5th Cir.
1982), and other precedent.    It also declined to exercise jurisdiction over
Plaintiff–Appellant’s request for a declaratory judgment.       For the reasons
herein, we AFFIRM.
                                    I.
      Gonzalez was employed as a Border Patrol Agent from October 15, 2007
to September 16, 2009. During that time, Manjarrez was the Chief Patrol
Agent of the sector in which Gonzalez worked. When the events giving rise to
this suit took place, Gonzalez had not yet completed his two-year probationary
status. His probationary status would have expired in October 2009.
      On April 13, 2009, Gonzalez and fellow Border Patrol Agent Shawn
Montoya were patrolling the border between the United States and Mexico.
During a break, Gonzalez and Montoya pulled their vehicles alongside each
other and began talking. The topic of drug-related violence in Mexico came up
in their discussion. Gonzalez remarked that legalization of drugs would end
the drug war and related violence in Mexico. He also stated that the drug
problems in America were due to American demand for drugs supplied by
Mexico. He mentioned an organization made up of former law enforcement
officers who oppose the drug war, called “Law Enforcement Against
Prohibition,” along with the organization’s website. Gonzalez expressed his
opinion that Mexicans came to the United States because of the lack of jobs in
Mexico. He noted that he considered himself Mexican because, although he
was born in the United States and a citizen of the United States, he had had
dual citizenship with Mexico until he was eighteen years old.
     Montoya mentioned Gonzalez’s remarks to another Border Patrol Agent,
Richard Carrasquillo. On April 27, 2009, Carrasquillo reported Gonzalez’s
remarks to the Joint Intake Command in Washington, D.C. Soon thereafter,


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an Internal Affairs Investigation was commenced, ultimately resulting in
Gonzalez’s termination by Manjarrez on September 16, 2009. The termination
letter stated, in part, that Gonzalez held “personal views that were contrary to
the core characteristics of Border Patrol Agents, which are patriotism,
dedication, and esprit de corps.”
       Following his termination, Gonzalez filed a complaint of discrimination
with the Equal Employment Opportunity Commission (“EEOC”) alleging that
he was unlawfully terminated on account of his race or national origin. On
August 31, 2010, an EEOC administrative judge rejected that claim on the
merits, holding that the Border Patrol had articulated a legitimate, non-
discriminatory reason for its action. 1 Gonzalez did not seek further review of
the EEOC’s decision. Nor did he file a complaint with the Merit Systems
Protection Board’s (“MSPB”) Office of Special Counsel (“OSC”) at that time.
Instead, on January 20, 2011, Gonzalez filed suit against Manjarrez, pursuant
to Bivens and the Declaratory Judgment Act alleging violations of his First
Amendment right to freedom of speech. Gonzalez later filed an unopposed
motion to stay the litigation to permit him time to pursue a complaint with
OSC. 2
       The district court dismissed the case for lack of subject matter
jurisdiction and denied all other pending motions as moot, including the
unopposed motion to stay proceedings. This appeal ensued.
                                                 II.



1 The administrative judge wrote that the “Agency had reason to believe that [Gonzalez], a
probationary employee, might not ‘uphold and enforce the laws of the United States of America at all
times.’”
2 Although the district court denied the motion to stay, Gonzalez did indeed file a complaint with the

OSC. The OSC made a preliminary decision to close the matter, to which Gonzalez responded that
closure would be premature and argued that the matter should proceed to the MSPB. The OSC was
unconvinced and made a final determination to close the matter on September 30, 2013.


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       We review de novo a district court’s dismissal for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) or for failure
to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). 3 Ctr. for
Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 421 (5th Cir. 2013).
       The Civil Service Reform Act (“CSRA”) was enacted to provide a
comprehensive scheme for federal employees to challenge adverse personnel
decisions. See United States v. Fausto, 484 U.S. 439, 455 (1988). It replaced
an “outdated patchwork of statutes and rules that afforded employees the right
to challenge employing actions in district courts across the country.” Elgin v.
Dep’t of Treasury, 132 S. Ct. 2126, 2135 (2012) (internal quotation marks and
citation omitted). The availability of administrative and judicial review under
the CSRA generally turns on the type of civil service employee and adverse
employment action at issue. Certain employees may seek review of certain
types of adverse personnel actions before the Merit Systems Protection Board
(“MSPB”), whose decisions may be appealed to the United States Court of
Appeals for the Federal Circuit.                  Employees must meet “requirements
regarding probationary periods and years of service” in order to be entitled to
review. 4 Elgin, 132 S. Ct. at 2130.
       As we noted above, Gonzalez was in his probationary period when he was
terminated. He correctly points out that, as a consequence of his probationary
status and the OSC’s closure of his matter, the district court’s dismissal of his
claims resulted in the preclusion of any judicial review of his First Amendment
claim under the CSRA. He claims that this lack of judicial review constitutes



3 Defendant–Appellee brought a motion to dismiss under Rule 12(b)(6), but the district court also
assessed the validity of its subject matter jurisdiction under Rule 12(b)(1).
4 Probationary employees like Gonzalez may not directly seek MSPB review of adverse employment

actions. See 5 U.S.C. § 7511. Instead, they have the right to “seek corrective action” from the OSC. 5
U.S.C. § 1214.


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just the kind of “serious constitutional question” that the Supreme Court in
Elgin said “would arise if a federal statute were construed to deny any judicial
forum for a colorable constitutional claim.” Id. at 2132 (internal quotation
marks and citation omitted). As such, he argues that preclusion of his claim
requires a “heightened showing” of “clear” Congressional intent under Elgin.
Id. (internal quotation marks and citation omitted).                      His arguments are
unavailing.
       Bivens actions by federal employees against their employers for First
Amendment violations have been expressly precluded by this court.                               See
Grisham v. United States, 103 F.3d 24, 26 (5th Cir. 1997) (“[I]t is clearly
established in the Fifth Circuit that . . . Bivens claims under the First
Amendment by employees regarding employment actions covered by the CSRA
are precluded.”); see also Bush v. Lucas, 462 U.S. 367, 390 (1983) (reasoning
that “Congress is in a better position to decide whether or not the public
interest would be served by creating” a damages remedy for aggrieved federal
employees’ First Amendment rights); Bell v. Laborde, 204 F. App’x 344, 345
(5th Cir. 2006) (per curiam) (unpublished); Rollins v. Marsh, 937 F.2d 134,
138–39 (5th Cir. 1991); Broadway, 694 F.2d at 985–86. We have repeatedly
held that the CSRA provides the exclusive remedy for federal employees
seeking damages for alleged constitutional violations arising out of the
employment relationship. See, e.g., Guitart v. United States, 3 F.3d 439, *1–2
(5th Cir. 1993) (per curiam) (unpublished); Rollins, 937 F.2d at 138–39;
Broadway, 694 F.2d at 984. 5 In Broadway, we declined to create a Bivens
remedy for a federal employee against her employer, concluding that allowing


5Two of these cases—Broadway and Guitart—presented very similar facts to the case before us now.
In both, a former federal employee was afforded no judicial review under the CSRA and brought a
constitutional claim in district court. We found that the CSRA’s remedy in both cases was exclusive,
regardless of its perceived inadequacy.


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such a remedy would “encourage aggrieved employees to bypass the statutory
and administrative remedies [established under the CSRA] in order to seek
direct judicial relief and thereby deprive the Government of the opportunity to
work out its personnel problems within the framework it has so painstakingly
established.” 694 F.2d at 985 (citation omitted).
       Elgin did not alter this precedent. In fact, the Court in Elgin came to
the “conclusion that the statutory review scheme is exclusive, even for
employees who bring constitutional challenges to federal statutes.” Elgin, 132
S. Ct. at 2135. The Court knew that some of these employees (i.e. probationary
employees like Gonzalez) were denied any judicial review under the CSRA, 6
yet it still declared that this scheme was “exclusive” with regard to
constitutional claims. Moreover, in considering the CSRA, we have previously
stated that we are “satisfied that Congress did not neglect expressly to create
a judicial remedy where it wanted one to exist.” Broadway, 694 F.2d at 984;
see also Guitart, 3 F.3d at *2 (indicating that the exclusion of certain employees
from “the realm of the CSRA” is a “policy decision . . . made by Congress, and
it would be inconsistent with [a federal court’s] place in the constitutional
scheme to engraft a nonstatutory remedy onto the comprehensive framework
of the CSRA”); McAuliffe v. Rice, 966 F.2d 979, 980 (5th Cir. 1992) (“[Judicial
review is foreclosed for some under the CSRA] because Congress had
determined to establish a comprehensive framework designed to balance the
legitimate interest of the various categories of federal employees with the




6 In Bush the Court acknowledged that “[n]ot all personnel actions are covered by this system”—“[f]or
example, there are no provisions for appeal . . . [for] adverse actions against probationary employees.
. . .” 462 U.S. at 385 n.28 (1983). In Schweiker v. Chilicky it interpreted Bush as standing for the
proposition that the CSRA offers “no remedy whatsoever . . . for adverse personnel actions against
probationary employees.” 487 U.S. 412, 423 (1988).


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needs of sound and efficient administration.” (internal quotation marks and
citation omitted)).
        Accordingly, we conclude that the district court did not err in dismissing
the claim for lack of subject matter jurisdiction. 7
                                                  III.
        We turn next to the district court’s denial of Plaintiff–Appellant’s request
for a declaratory judgment under 28 U.S.C. § 2201 that Defendant–Appellee’s
actions violated Plaintiff–Appellant’s First Amendment rights. We review the
dismissal of a declaratory judgment action for abuse of discretion. Sherwin-
Williams Co. v. Holmes Cnty., 343 F.3d 383, 389 (5th Cir. 2003).
        On appeal, Gonzalez argues that the district court erred when it
concluded that Broadway is controlling in this matter and when it found that
the availability of the remedial framework outlined in the CSRA—in
particular, the OSC process—weighed in favor of its declining to hear the claim
for declaratory relief. He does not challenge the district court’s application of
the standard derived from Brillhart v. Excess Insurance Co. of America, which
affords the district court broad discretion in determining whether to hear an
action brought pursuant to the Declaratory Judgment Act. 8 316 U.S. 491, 494–
96 (1942). Plaintiff–Appellant also concedes that the district court was correct
to apply the factors from St. Paul Insurance Co. v. Trejo to the claim for
declaratory relief. 9 39 F.3d 585 (5th Cir. 1994). We have held that “unless the


7 In light of our finding that the district court did not have jurisdiction to consider Gonzalez’s Bivens
claim, we also conclude the district court did not err in denying his motion to stay.
8 Although in oral argument counsel for Gonzalez mentioned that the district court should have applied

the standard from Colorado River Water Conservation District v. United States, 424 U.S. 800, 817–18
(1976), instead of the Brillhart standard, the briefs are silent on this point. Thus, we will not consider
it here. Proctor & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) (“Failure
adequately to brief an issue on appeal constitutes waiver of that argument.”).
9 The seven nonexclusive Trejo factors are:

         1) whether there is a pending state action in which all of the matters in controversy
         may be fully litigated, 2) whether the plaintiff filed suit in anticipation of a lawsuit


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district court addresses and balances the purposes of the Declaratory
Judgment Act and the factors relevant to the abstention doctrine on the record,
it abuses its discretion.” Vulcan Materials Co. v. City of Tehuacana, 238 F.3d
382, 390 (5th Cir. 2001) (internal quotation marks and citation omitted).
        For the reasons stated in Section II, we find Broadway is controlling in
this case. Furthermore, the district court considered the seven Trejo factors
on the record and concluded that the first, third, fourth, and sixth weighed
heavily in favor of declining to exercise jurisdiction, while the second, fifth, and
seventh did not particularly support the discretionary exercise of jurisdiction.
In particular, the district court detailed the reasons why it viewed the
declaratory judgment suit as interfering with Congress’s comprehensive
remedial scheme for complaints of this type. Thus, the district court did not
abuse its discretion by dismissing the declaratory judgment claim.
                                                  IV.
        Accordingly, we AFFIRM the district court’s dismissal of Gonzalez’s
Bivens and declaratory judgment claims, as well as its denial of his motion to
stay.




        filed by the defendant, 3) whether the plaintiff engaged in forum shopping in bringing
        the suit, 4) whether possible inequities in allowing the declaratory plaintiff to gain
        precedence in time or to change forums exist, 5) whether the federal court is a
        convenient forum for the parties and witnesses, . . . 6) whether retaining the lawsuit
        in federal court would serve the purposes of judicial economy, . . . [and 7)] whether the
        federal court is being called on to construe a state judicial decree involving the same
        parties and entered by the court before whom the parallel state suit between the same
        parties is pending. Trejo, 39 F.3d at 590–91.


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