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Disclaimer: The case on which this summary is based may no longer be current law. Also, if the case was decided on summary judgment, the court recited the "facts" in the light most favorable to the non-movant, which may not be the true facts.


Duffy v. Wolle, 123 F.3d 1026 (8th Cir. August 19, 1997)

Keywords: 42 U.S.C. Section 1983 (Bivens action, Fifth Amendment, sex discrimination, failure to hire; failure to exhaust administrative remedies; judicial immunity; individual immunity)

Introduction: David Duffy sued three federal district court judges under the Fifth Amendment for sex discrimination arising out of a failure to hire. The district court granted summary judgment on behalf of the judges. The Eighth Circuit affirms.

Facts: Duffy sought appointment to the position of Chief United States Probation Officer (CUSPO) for the United States District Court for the Southern District of Iowa. A female was selected instead. Duffy filed suit.


  1. A "Bivens action" is almost identical to an action under Section 1983 except that the former is maintained against federal officials while the latter is against state officials. Therefore, while this case summary is categorized with 42 U.S.C. Section 1983, this is technically incorrect.

  2. The judges are not entitled to have the case dismissed because Duffy allegedly failed to pursue an administrative remedy for discrimination that was instituted at the direction of the Judicial Conference. Only Congress has the power to decide that a statutory or administrative scheme will foreclose a Bivens action. There is no evidence that Congress intended to delegate to the Judicial Conference the authority to preempt a Bivens action in favor of administrative remedies.

  3. The federal district court judges are not entitled to absolute judicial immunity because they were performing an administrative function, not a judicial function.

  4. The Court does find that the judges have available the defense of qualified immunity and then analyzes the facts of this case under the McDonnell Douglas burden shifting analysis. The Court finds that the plaintiff failed to rebut the proffered reasons for hiring the female. It is unclear whether the Eighth Circuit affirms on the basis of qualified immunity or whether it affirms on the basis that these defendants are entitled to summary judgment because the plaintiff failed to create a jury question under the burden shifting analysis.

  5. In any event, the Eighth Circuit holds that the following arguments failed to create a jury question:

    1. The female was not as qualified as Duffy. But rejection of a similarly qualified candidate does not raise an inference of pretext.

    2. The judges were looking for female applicants. But an employer's affirmative action efforts do not constitute discrimination.

    3. These male judges hired more female law clerks than males. But the district court ruled that this evidence was not relevant. The Eighth Circuit holds that there was no abuse of discretion.

  6. Finally, Duffy argues that the district court abused its discretion in not allowing him to conduct discovery first. But Duffy has made no supportable allegations of discrimination and it is well settled that Rule 56(f) does not condone a fishing expedition.

  7. Therefore, the Eighth Circuit affirms the district court's grant of summary judgment.

  8. Click here to see actual case.




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