Frank K. Kotarski v. V.L. Cooper, A.E. Navarro, W.J. Tinston, J.H. Kirkpatrick, Naval Air Rework Facility, Capt. P.A. Monroe, in His Official Capacity

Plaintiff, a civilian employee of the Navy, was promoted to a supervisory position subject to a probationary period of one year. He was demoted to his former position during that year, and brought this action in district court to contest his demotion and seek Bivens 1 damages for it. The district court dismissed his complaint with prejudice, and plaintiff appeals. We reverse.

BACKGROUND

In 1981, plaintiff Frank Kotarski was promoted from his position as a GS-12 civilian Navy engineer to the position of GM-13: industrial engineer with supervisory responsibilities. This competitive appointment was subject to a probationary period of one year. 5 U.S.C. § 3321 ; 5 C.F.R. § 315.802 (a) et seq. Toward the close of this period, Kotarski’s immediate superiors, defendants here, notified him that his performance as a supervisor had been unsatisfactory. Kotarski was accordingly returned to his prior position.

Shortly thereafter, Kotarski filed this action against defendants, seeking reinstatement, back pay, and Bivens damages for his demotion. He also sought review of the agency action under the Administrative Procedure Act. The complaint alleged that defendants had violated Kotarski’s…

dissenting:

For what each man wishes, that he also believes to be true.

Demosthenes, Third Olynthiac § 19 (J. Vince trans. 1930).

The majority believes that central to the holding of the Supreme Court’s decision in Bush v. Lucas, 462 U.S. 367 , 103 S.Ct. 2404 , 76 L.Ed.2d 648 (1983) is the proposition that the remedies provided by Congress for federal employees must give “meaningful protection to ... constitutional rights.” Op. at 1347. In the majority’s opinion, “meaningful remedies” include only remedies where the employee has an “enforceable right,” a right to judicial review, or the “right of participation in the process of investigation and decision.” Op. at 1348. Because the majority believes that the remedies available to Kotarski after losing his temporary promotion are not “meaningful” and because the majority also believes that Bush requires such remedies, it concludes that Kotarski is entitled to a full damage remedy in federal court for loss of his temporary promotion if he can prove that his reduced status was effected in violation of constitutional rights. This remedy is available to Kotarski even though employees demoted after receiving permanent promotions in…

799 F.2d 1342 41 Empl. Prac. Dec. P 36,479 , 55 USLW 2200 Frank K. KOTARSKI, Plaintiff-Appellant, v. V.L. COOPER, A.E. Navarro, W.J. Tinston, J.H. Kirkpatrick, Naval Air Rework Facility, Capt. P.A. Monroe, in his official capacity, Defendants-Appellees. No. 84-5673. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 11, 1985. Decided Sept. 16, 1986. Frank K. Kotarski, in pro. per. Richard A. Olderman, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees. Appeal from the United States District Court for the Southern District of California. Before NELSON, CANBY and HALL, Circuit Judges. CANBY, Circuit Judge: 1 Plaintiff, a civilian employee of the Navy, was promoted to a supervisory position subject to a probationary period of one year. He was demoted to his former position during that year, and brought this action in district court to contest his demotion and seek Bivens 1 damages for it. The district court dismissed his complaint with prejudice, and plaintiff appeals. We reverse. BACKGROUND 2 In 1981, plaintiff Frank Kotarski was promoted from his position as a GS-12 civilian Navy engineer to the position of GM-13: industrial engineer with…