UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


SLOAN, LEON SR.

v.

HUD


99-5146a

D.C. Cir. 2000


*	*	*


Edwards, Chief Judge: Appellants Leon Sloan, Sr. and  Jimmie Lee Furby
were partners and owners of J&L Reno- vation Company ("J&L"), a small
demolition contracting com- pany specializing in interior demolition.
On August 18, 1995,  they received a notice from the United States
Department of  Housing and Urban Development ("HUD") that the agency 
was seeking debarment of Sloan, Furby, and J&L from  government
contracting for a period of five years based upon  allegations of
improper clean-up and disposal of waste at a  public housing
construction site. HUD issued suspensions  pending a final
determination on the debarment action. In  August 1996, a HUD
Administrative Law Judge ("ALJ")  denied the five-year debarment and
terminated the suspen- sions. The ALJ, however, declined to void the
suspensions ab  initio, and the Secretary of HUD affirmed this


Sloan and Furby sought relief in the District Court, claim- ing that
the agency's failure to void the suspensions ab initio  violated the
Administrative Procedure Act ("APA"), and that  the actions of various
HUD officials deprived them of due  process. In a second complaint
against individual HUD  officials, Sloan and Furby sought damages
under Bivens v.  Six Unknown Named Agents of the Federal Bureau of 
Narcotics, 403 U.S. 388 (1971). The District Court, after 
consolidating the cases, entered an order dismissing the  consolidated
complaint. In a related, unconsolidated case,  Sloan and Furby brought
claims pursuant to the Federal Tort  Claims Act ("FTCA"). Appellants'
FTCA claims are the  subject of a separate appeal, Sloan v. United
States Depart- ment of Housing and Urban Development, No. 99-5145, 
heard on the same day as this case.


Appellants raise two principal issues in the instant appeal. 
Appellants' first claim is that HUD's refusal to void their 


suspensions ab initio was arbitrary and capricious. Appellee  HUD
contends that there was ample evidence to support the  suspensions at
the time they were imposed, as well as when  the case was heard by the
ALJ. We disagree. HUD origi- nally had based the issuance of the
suspensions on three  distinct charges. The debarment proceeding
conclusively  revealed that the first and third charges--relating to
hazard- ous waste containment--were completely unsupported. Fur-
thermore, the ALJ did not find, and HUD does not argue,  that the
second charge alone--relating to improper disposal  of construction
debris--would have supported issuance of the  suspensions. Finally,
the Secretary's decision is devoid of  any good reason to justify the
denial of the relief sought by  appellants. On this record, we hold
that the agency's failure  to void the suspensions ab initio was


Appellants' second claim challenges the District Court's  finding that
the APA's comprehensive remedial structure  precludes recognition of
appellants' Bivens claims. We need  not reach this issue, however,
because we reject appellants'  claim that individual HUD defendants
violated their constitu- tional rights to due process in conducting
and supervising the  investigations and prosecution associated with
the suspen- sions and debarment proceedings. We therefore affirm the 
judgment of the District Court dismissing the Bivens claims.


I. Background


A. Factual Background


In 1989, the Allegheny County Housing Authority  ("ACHA") received
funds from HUD to perform moderniza- tion work at the Burns Heights
public housing project in  Duquesne, Pennsylvania. Part of the funding
was intended  for lead-based paint testing at the site. Because a
previous  x-ray fluorescence ("XRF") test for lead-based paint had 
proven inconclusive, ACHA prepared specifications calling for  the
demolition contractor to assume all existing painted sur- faces
contained lead-based paint.


In November 1992, Mistick Construction, PBT ("Mistick"),  in
conjunction with its bid for demolition work at Burns  Heights,
reviewed ACHA's XRF test and hired an industrial  hygienist to perform
a toxic characteristic leaching procedure  ("TCLP") test of Burns
Heights wall debris. The TCLP test  established that the lead content
of the wall debris was  substantially less than the United States
Environmental Pro- tection Agency ("EPA") threshold for hazardous
waste.  ACHA subsequently hired Mistick to perform the demolition 


In January 1993, before beginning the demolition work,  Mistick
conducted a test of the air inside the Burns Heights  buildings to
determine whether hazardous levels of lead were  present. The air test
results indicated that lead levels were  significantly less than the
Occupational Safety & Health  Administration ("OSHA") limit; Mistick
therefore concluded  that OSHA worker protection requirements need not
be  followed when work was done on the site. Mistick provided  the
TCLP and air test results to ACHA, and ACHA con- firmed that hazardous
lead-based paint protocols were not  required for demolition work at
Burns Heights. The parties  agreed, in writing, that the test results
were "well within  EPA guidelines" and that demolition waste from
Burns  Heights need not be disposed of as contaminated waste.  Mistick
Inc. Proposed Hazardous Materials Work Plan for  the Burns Heights
Project (Jan. 7, 1993), reprinted in Appen- dix ("App.") 416, 419.


In February 1993, Mistick subcontracted the interior demo- lition work
at Burns Heights to J&L, the company owned by  appellants Sloan and
Furby. From February 1993 until May  1995, when J&L completed its
demolition work, J&L disposed  of most of its demolition debris in
dumpsters provided by  Mistick. For a period beginning in 1994,
however, J&L  began separating plaster from other demolition debris
and  delivering it to an unapproved landfill (the "Perrone site"). 
Under the then applicable Pennsylvania regulations, plaster  was
defined as construction/demolition waste which had to be  dumped in an
approved landfill. See 25 Pa. Code s 271.1  (1999) (adopted April 8,
1988, effective April 9, 1988). Appel-


lants were unaware of the change in state regulations. See  Matter of
Sloan, HUDBCA Nos. 96-C-106-D3, 96-C-107- D4, 96-C-108-D5, 1996 WL
506267 (H.U.D.B.C.A. Aug. 30,  1996) (ALJ determination) (finding that
appellants "would not  have dumped the plaster debris in an unapproved
landfill if  they had been aware of the change in state


Upon discovering that a rival construction group was fol- lowing and
taping J&L's dumping activities, Mistick request- ed J&L to
discontinue disposing of plaster at the unapproved  site, which J&L
did. Mistick subsequently informed the  Pennsylvania Department of
Environmental Protection  ("Pennsylvania DEP") of the placement of
plaster at the  Perrone site. The Pennsylvania DEP determined that no 
action was required.


In November 1994, during an unrelated HUD debarment  proceeding, HUD
received information that Mistick was not  properly performing
lead-based paint abatement at Burns  Heights. Thereafter, two HUD
officials, Mark Chandler, an  auditor in HUD's Office of Inspector
General, and Dane  Narode, an attorney from HUD's Office of Public and
Indian  Housing, began investigating the demolition work at Burns 
Heights. Chandler conducted the performance audit.


Chandler and Narode visited the Perrone site, where they  observed
paint chips resembling those from the Burns  Heights project before
allegedly being chased from the site  by its owner. Chandler and
Narode also visited Burns  Heights where they photographed J&L's
failure to contain  dirt, dust, and paint chips. Chandler then spoke
with Furby  on the telephone and also met with David McLean, Director 
of Maintenance and Development for ACHA. During the  latter
conversation, McLean mistakenly indicated that Burns  Heights was an
ACHA lead-based paint project. Chandler  did not inquire as to whether
there were hazardous levels of  lead at Burns Heights nor whether
lead-based paint abate- ment was being performed there.


Subsequent to his meeting with McLean, Chandler received  from ACHA
copies of the XRF test, the November 1992  TCLP test, and the January
1993 air test. These tests 


clearly indicated that there were no hazardous levels of lead  present
at Burns Heights, but Chandler was not qualified to  interpret or
evaluate the test results. Amazingly, Chandler  did not ask either
ACHA or Mistick what the test results  meant and he never spoke to
Mistick or J&L about whether  the subcontract covered lead-based paint
abatement. Chan- dler's final audit report, which was sent to HUD's
Pittsburgh  Area Office on October 18, 1995, stated, without good
basis,  that Mistick and J&L had failed to properly perform lead-
based paint abatement; on this erroneous finding, Chandler's  report
concluded that Mistick and J&L had not performed  demolition work at
Burns Heights in accordance with contrac- tual requirements.


B. Administrative Proceedings


On August 18, 1995, three months after the demolition  work at Burns
Heights had been completed, Assistant Secre- tary for Public and
Indian Housing Joseph Shuldiner noti- fied Sloan and Furby that they
were suspended from all  HUD-related government contracting work and
that HUD  was seeking a five-year debarment from participation in 
HUD-funded construction work. The notice asserted that  the Department
had information "indicating serious irregu- larities in [J&L's]
business dealings with the Government,"  namely: (1) improper cleanup
of waste from the lead-based  paint abatement process; (2) improper
disposal of construc- tion debris from the demolition; and (3) failure
to adhere to  contract requirements or HUD Guidelines by allowing haz-
ardous waste to be tracked outside of containment and al- lowing
workers to perform abatement work without proper  notification. See
Letters from Joseph Shuldner, Assistant  Secretary, HUD, to Jimmie L.
Furby, Leon Sloan, Sr., and  J&L Renovation Company (Aug. 18, 1995),
reprinted in App.  151, 153, 155. George Dickey, a HUD Program
Official in  the Office for Public and Indian Housing, processed the 
sanctions against Mistick and J&L.


Appellants contend that, during discovery for the debar- ment
proceeding, they requested depositions of Assistant  Secretary
Shuldiner and Dickey. HUD opposed the deposi-


tions and the ALJ denied the requests. Appellants also aver  that,
during discovery, HUD failed to produce an exchange of  letters
confirming that ACHA did not find "sufficient grounds  to pursue a
claim for non-performance, and that contamina- tion and associated
costs are non-existent." See Letter from  George Arendas, Executive
Director, ACHA, to Paul LaMar- ca, HUD Pittsburgh Area Office (Jan.
17, 1995), reprinted in  App. 174. Appellants argue that the failure
to produce these  "exculpatory documents" hindered their efforts at
the debar- ment proceeding. See Appellants' Br. at 14.


On August 30, 1996, after a five-day administrative hearing,  the ALJ
rejected the Government's case seeking debarment  and terminated the
suspensions against J&L, Sloan, and  Furby. Matter of Sloan, 1996 WL
506267 (ALJ determina- tion). The ALJ specifically found that "there
was not a lead  hazard present at Burns Heights that would have made
lead- based paint abatement protocols necessary." Id. The ALJ, 
however, denied Sloan and Furby's request to have their  suspensions
voided ab initio. The ALJ's decision not to void  the suspensions ab
initio was based on an erroneous finding  that the written contract
documents required Mistick to treat  the job as though there were
hazardous levels of lead present  at Burns Heights. See id. After
unsuccessfully appealing  the ALJ's ruling to the HUD Secretary, Sloan
and Furby  filed suit in the District Court.


II. Analysis


A. The APA challenge


The disputed suspension and debarment actions in this case  arose
pursuant to the federal regulations implementing sec- tion 3 of
Executive Order 12549, 51 Fed. Reg. 6370 (1986),  which provides that,
to the extent permitted by law, Execu- tive departments and agencies
shall participate in a govern- ment-wide system for nonprocurement
debarment and sus- pension. 24 C.F.R. s 24.100(a) & (b) (1995). Under
the  applicable regulations, debarment and suspension are discre-
tionary measures taken to protect the public interest and to  promote
an agency's policy of "conduct[ing] business only 


with responsible persons." 24 C.F.R. s 24.115(a) (1995).  The issuance
of a suspension is a "serious action," hence it  "may be imposed only
when: (1) [t]here exists adequate  evidence of one or more of the
causes set out in s 24.405, and  (2) [i]mmediate action is necessary
to protect the public  interest." 24 C.F.R. s 24.400(b) (1995); see
also 24 C.F.R.  s 24.405 (1995). A party who contests a suspension or
possi- ble debarment may request a hearing before an ALJ pursu- ant to
24 C.F.R. s 24.313 (1995), followed by an appeal to and  discretionary
review by the Secretary pursuant to 24 C.F.R.  s 24.314(c) (1995). Any
review taken by the Secretary "shall  be based on the record of the
initial hearing [before the ALJ]  and shall fully recite the
evidentiary grounds upon which the  Secretary's determination is
made." 24 C.F.R. s 24.314(e)  (1995).


The parties agree that judicial review of the Secretary's  final
decision in this case is available pursuant to the Adminis- trative
Procedure Act ("APA"), 5 U.S.C. ss 702, 704, 706  (1994). Appellants
contend that the agency's refusal to void  their suspensions ab initio
was arbitrary and capricious and  thus violated s 706(2)(A) of the
APA, and that the agency's  administrative procedures infringed their
due process rights  in violation of s 706(2)(B) of the APA. We find
merit in  appellants' first claim.


Neither party contests the applicability of the APA's "arbi- trary and
capricious" standard. Appellee urges, nonetheless,  that our review of
HUD's decision in the instant case should  be "highly deferential,"
and "presume the validity of agency  action." See Appellees' Br. at 15
(quoting Kisser v. Cisneros,  14 F.3d 615, 618 (D.C. Cir. 1994)). It
is well-established that,  when conducting review under the "arbitrary
and capricious"  standard, a court may not substitute its judgment for
that of  agency officials; rather, our inquiry is focused on whether 
"the agency [ ] examine[d] the relevant data and articulate[d]  a
satisfactory explanation for its action including a 'rational 
connection between the facts found and the choice made.' "  Motor
Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,  463 U.S. 29,
43 (1983) (quoting Burlington Truck Lines, Inc.  v. United States, 371
U.S. 156, 168 (1962)). Our deference to 


agency decisionmaking does not require us, however, to coun- tenance an
agency's failure to "consider[ ] ... relevant fac- tors" or "clear
error[s] of judgment." Id. (quoting Bowman  Transp., Inc. v.
Arkansas-Best Freight Sys., Inc., 419 U.S.  281, 285 (1974)).


On the basis of the record before us, we find that HUD's  decision not
to void the suspensions ab initio cannot with- stand review, because
the decision cannot be squared with the  applicable regulations and,
also, because the decisions of the  ALJ and the Secretary fail to
"articulate a satisfactory expla- nation for [the agency's] action
including a 'rational connec- tion between the facts found and the
choice made.' " State  Farm, 463 U.S. at 43 (quoting Burlington Truck
Lines, Inc.,  371 U.S. at 168).


Under the applicable regulations, a suspension is justified  only when
there is "adequate evidence" of wrongdoing and  "immediate action is
necessary to protect the public interest."  24 C.F.R. s 24.400(b). "In
assessing the adequacy of the  evidence, the agency should consider
how much information is  available, how credible it is given the
circumstances, whether  or not important allegations are corroborated,
and what infer- ences can reasonably be drawn as a result." 24 C.F.R. 
s 24.400(c) (1995). Moreover, the agency's "assessment  should include
an examination of basic documents such as  grants, cooperative
agreements, loan authorizations, and con- tracts." Id. In applying
these regulations, the ALJ and the  Secretary are required to consider
both whether there is  adequate justification for the suspensions at
the time they are  issued, and whether, in light of the evidence
adduced at the  debarment hearing, there is good reason to terminate
the  suspensions. See 24 C.F.R. ss 24.313, 24.314 (1995).


Many years ago, in Horne Brothers, Inc. v. Laird, 463 F.2d  1268 (D.C.
Cir. 1972), Judge Leventhal had occasion to con- strue what it means
for an agency to have "adequate evi- dence" to justify the
"suspension" of a government contrac- tor:


The "adequate evidence" showing need not be the kind  necessary for a
successful criminal prosecution or a 


formal debarment. The matter may be likened to the  probable cause
necessary for an arrest, a search warrant,  or a preliminary hearing.
This is less than must be  shown at the trial, but it must be more
than uncorrob- orated suspicion or accusation.


Id. at 1271. Obviously, as Horne Brothers suggests, "[a]  question of
judgment is involved" in any agency decision  to issue a suspension.
Id. What is noteworthy here, how- ever, is that, under the controlling
regulations, there can  be no suspension without "adequate evidence,"
the necessi- ty of "immediate action...to protect the public
interest," a  consideration of "whether or not important allegations
are  corroborated," "an examination of basic documents," and a 
determination, based on "all available evidence," that rea- sonable
inferences of wrongdoing can be drawn. 24  C.F.R. ss 24.400, 24.410


At the hearing before the ALJ, the Government withdrew  the third
ground for debarment and suspension--failure to  adhere to contract
requirements or HUD Guidelines--recog- nizing that the agency had
nothing concrete upon which to  justify this charge. The ALJ
subsequently dismissed the  first charge--improper cleanup of waste
from the lead-based  paint abatement process--finding no basis in the
record.  Matter of Sloan, 1996 WL 506267 (ALJ determination). This 
left only the charge that J&L had improperly disposed of  construction
debris from the demolition. The ALJ did not  find, and appellee does
not argue, that this single remaining  charge provided cause for the
suspensions. Rather, appellee  asserts that the decision not to void
the suspensions ab initio  should be upheld because the administrative
judge found  appellants and Mistick largely to blame for the misunder-
standings leading to the faulty audit and resulting sanctions.  The
suggestion that appellants should bear the onus of  HUD's poor
investigatory work is ridiculous. Had HUD  officials been more precise
in their investigation, they would  have discovered that the November
1992 TCLP test and the  January 1993 air test clearly established that
there were no  hazardous levels of lead present at Burns Heights. The


auditor had only to examine the test results or request  assistance
with their interpretation.


We also reject appellee's related argument, that the deci- sion not to
void the suspensions ab initio rests on the ALJ's  conclusion that
government investigators had been misled  into thinking that lead
abatement was part of the disputed  contract because the change in
contract specification regard- ing lead abatement had not been
captured in a written  amendment. See Appellees' Br. at 20-21. The
ALJ's finding  on this point is simply wrong; the record is clear that
the  parties had agreed in writing that demolition waste from  Burns
Heights need not need be disposed of as contaminated  waste. See
Mistick Inc. Proposed Hazardous Materials Work  Plan for the Burns
Heights Project, reprinted in App. 416,  419 (Jan. 7, 1993).


Whatever agency officials may have thought about the case  against the
appellants when the suspensions were issued,  their view of the case
should have changed rather dramatical- ly following the hearing before
the ALJ. The hearing made  it clear that the initial finding of
probable cause was flimsy at  best, riding on the heels of a
hastily-conducted and technical- ly-flawed audit. In other words, even
if HUD officials  thought they had more than "uncorroborated suspicion
or  accusation" at the time when the suspensions were issued, it  was
abundantly clear at the conclusion of the hearing that  there had been
no basis at the outset to suspend appellants.  It was therefore
arbitrary and capricious for the agency to  deny full relief to


Government contracting has become an economic mainstay  for a number of
commercial enterprises. It goes without  saying, therefore, that
disqualification from government con- tracting is a very serious
matter for these businesses. See  Gonzalez v. Freeman, 334 F.2d 570,
574 & n.5 (D.C. Cir.  1964). In this case, appellants have endured
economic losses,  professional indignities, and injuries to their
reputations, and  these sufferings no doubt will continue to linger so
long as  appellants are tarnished by an official record suggesting
that  they engaged in "serious irregularities" in their business 


dealings with the Government. Even the applicable regula- tions
recognize the potentially harsh consequences that flow  from
suspension, for they make it clear that "[s]uspension is a  serious
action" that should be imposed only "when it has been  determined that
immediate action is necessary to protect the  Government's interest."
24 C.F.R. s 24.410(c).


In this case, appellants' claim for relief was sufficiently  compelling
that the Secretary granted review specifically to  consider the
following question: "Under what circumstances  is it appropriate for
the Secretarial designee to void a suspen- sion ab initio when, in
hindsight, it is clear that the Respon- dents are not guilty of the
charges that led to the suspen- sion?" Matter of Sloan, HUDBCA Nos.
96-C-106-D3, 96-C- 107-D4, 96-C-108-D5 (Nov. 18, 1996) (order granting
respon- dent's petition for secretarial review); see also Matter of 
Sloan, HUDBCA Nos. 96-C-106-D3, 96-C-107-D4, 96-C- 108-D5 (Dec. 18,
1996) (order on Secretarial review), reprint- ed in App. 452 n.1. It
is not surprising that the Secretary  accepted discretionary review of
the appellants' administra- tive appeal, for the Secretary's decision
does not doubt the  availability of the relief sought by appellants.
See Matter of  Guillen, HUDBCA No. 91-1739-DB, 1992 WL 45853 
(H.U.D.B.C.A. Feb. 28, 1992) (ALJ determination). What is  surprising,
however, is the Secretary's treatment of appel- lants' claim.


It is clear that there was no need for "immediate action" to  be taken
against appellants. See 24 C.F.R. s 24.400(b)(2).  The Secretary's
decision does not suggest that appellants  should have been suspended
for the allegations that prompted  the first and third charges. And
the Secretary acknowledges  that appellants' alleged improper activity
in connection with  the second charge--placing debris in an unapproved
landfill-- had ceased before the issuance of the suspensions. In other
 words, the Secretary could not find that there was adequate  evidence
that appellants lacked "present responsibility" when  the suspensions
were issued. Nonetheless, the Secretary's  decision suggests that
appellants' "past irresponsible acts" in  connection with the second
charge justified the suspensions.  See Matter of Sloan (order on
Secretarial review), reprinted 


in App. 454. This is a specious conclusion. First, the  Secretary's
decision simply ignores the requirement that  there must be a real
need for immediate action to protect the  public interest in order to
justify a suspension. Further- more, as noted above, the Government
does not contend that  the second charge against appellants, without
more, could  have warranted suspensions, so the Secretary's reason for
 refusing to void the suspensions ab initio makes no sense.


The Secretary's decision is at best a half-hearted attempt  to address
appellants' claim for relief. And, as is true with  portions of the
ALJ's decision, the Secretary's decision seems  to blame the
appellants for the blunders committed by agency  investigators. In
short, the decision fails to "articulate a  satisfactory explanation
for [the agency's] action including a  'rational connection between
the facts found and the choice  made.' " State Farm, 463 U.S. at 43
(quoting Burlington  Truck Lines, Inc., 371 U.S. at 168). Accordingly,
we find the  agency's action to be arbitrary and capricious.


Because we find that the decision not to void the suspen- sions ab
initio was arbitrary and capricious, we need not  linger on
appellants' alternative argument that HUD violated  the due process
rights of Sloan and Furby by failing to  produce critical witnesses
and HUD documents. "An agency  may not impose even a temporary
suspension without provid- ing the 'core requirements' of due process:
adequate notice  and a meaningful hearing." Commercial Drapery
Contrac- tors, Inc. v. United States, 133 F.3d 1, 6 (D.C. Cir. 1998);
see  also Reeve Aleutian Airways, Inc. v. United States, 982 F.2d 
594, 595, 599-602 (D.C. Cir. 1993). In the instant case, the 
procedures followed by HUD adequately safeguarded appel- lants' due


B. The Bivens claims


In asserting their Bivens claims for money damages  against individual
HUD defendants, appellants charge that  HUD officials violated their
due process rights in conducting  and supervising the audit,
processing and issuing the sanc- tions, and prosecuting the
suspensions. The District Court  held that any Bivens remedy was
precluded by the availabili-


ty of relief under the APA. Examining the APA, the District  Court
found it to be a comprehensive remedial scheme for  administering
public rights which did not inadvertently omit  damage remedies for
certain claimants.


We need not decide whether the APA precludes appellants'  Bivens
claims, because we find that appellants have failed to  allege the
violation of a constitutional right. The focus here,  in contrast to
the APA claim, is on the investigation into  appellants' alleged
misdeeds as well as the decisions to pro- cess and enforce the
administrative sanctions--not the result- ing records of suspension.
Indeed, with the exception of the  claim against Attorney Narode for
prosecution of the adminis- trative action, all of appellants' Bivens
claims center mainly  on the investigations conducted before the


Appellants maintain that the disputed investigations and  prosecution
by government officials violated their due process  rights. The law is
clear, however, that "there is no constitu- tional right to be free of
investigation," United States v.  Trayer, 898 F.2d 805, 808 (D.C.
Cir.), cert. denied, 498 U.S.  839 (1990), and appellants have not
shown that the investiga- tion was part of a scheme or conspiracy to
deprive them of  their constitutional rights. See, e.g., Anthony v.
Baker, 767  F.2d 657, 662 (10th Cir. 1985).


Appellants contend that individual HUD employees contra- vened the
broad standards incorporated in HUD's Consolidat- ed Audit Guide for
Audits of HUD Programs, but these  alleged violations do not support a
claim for denial of due  process. See, e.g., Schweiker v. Hansen, 450
U.S. 785, 789,  reh'g denied, 451 U.S. 1032 (1981) (stating that
Social Securi- ty Administration claims manual, as opposed to official
regu- lations, had no legal force); Kugel v. United States, 947 F.2d 
1504, 1507 (D.C. Cir. 1991) (department guidelines "do not  create a
duty in favor of the general public"); Lynch v.  United States Parole
Comm'n, 768 F.2d 491, 497 (2d Cir.  1985) (finding that Police
Commission internal procedures  manual did not create due process
rights enforceable in  court). We therefore conclude that the errors


HUD officials during their investigation of appellants did not  rise to
the level of constitutional infringement.


Furthermore, as noted above, appellants were given clear  notice of the
charges against them and a fair opportunity to  prepare a defense;
they were then afforded extensive rights  to a full hearing before an
ALJ, during which the Govern- ment carried the burden of proof,
followed by an appeal to  the Secretary and then judicial review. In
other words, they  were given a full panoply of due process
protections to  redress any preceding mistakes that may have occurred 
during the agency investigations. Assuming, arguendo, that  appellants
had cognizable property or liberty interests justify- ing due process
protections, see, e.g., Old Dominion Dairy  Prods. v. Secretary of
Defense, 631 F.2d 953 (D.C. Cir. 1980),  the postdeprivation
procedures provided under HUD regula- tions were more than enough to
satisfy the requirements of  procedural due process. See Hudson v.
Palmer, 468 U.S.  517, 533 (1984); see also Stuto v. Fleishman, 164
F.3d 820,  825 (2d Cir. 1999) (quoting Hudson, 468 U.S. at 533)
("[T]he  negligent or intentional deprivation of property through the 
random and unauthorized acts of a state or federal employee  does not
constitute a deprivation of due process if 'a meaning- ful
postdeprivation remedy for the loss is available.' ").


Finally, appellants' claims against Attorney Narode for  prosecution of
the administrative sanctions fail because of  absolute immunity. See
Butz v. Economou, 438 U.S. 478,  516-17 (1978); Imbler v. Pachtman,
424 U.S. 409, 424-29  (1976). In Butz, the Court held that, in
general, federal  executive officials charged with constitutional
violations were  entitled only to qualified immunity. See Butz, 438
U.S. at  507. The Court noted, however, that there were "some 
officials whose special functions require[d] a full exemption  from
liability," id. at 508, and observed that the adjudicatory  process
within federal administrative agencies "share[d]  enough of the
characteristics of the judicial process that those  who participate in
such adjudication should also be immune  from suits for damages." Id.
at 512-13. Finding "no sub- stantial difference between the function
of the agency attor- ney in presenting evidence in an agency hearing


function of the prosecutor who brings evidence before a  court," id. at
516, the Court granted absolute immunity to  federal attorneys whose
duties in administrative proceedings  were functionally similar to
those of a prosecutor. See id. at  517. We recognize a fortiori that
the actions taken to enforce  the sanctions against Sloan and Furby,
such as presenting  evidence at the administrative hearing, deserve no
less pro- tection from suit.


In view of our conclusion that appellants have not alleged  the
violation of a constitutional right, we need not determine  whether
appellants' Bivens claims are precluded by the APA.  This court has
suggested that a Bivens action may be fore- closed where the
possibility of judicial review under the APA,  along with other
"statutes, executive orders and regulations,"  provides a meaningful
remedy. Krodel v. Young, 748 F.2d  701, 712-13 & 712 n.6 (D.C. Cir.
1984), cert. denied, 474 U.S.  817 (1985). The Government, however,
did not suggest that  Krodel was applicable here.


III. Conclusion


For the foregoing reasons, the judgment of the District  Court is
affirmed in part and reversed in part. The agency's  refusal to void
appellants' suspensions ab initio was arbitrary  and capricious and is
accordingly reversed. The case is  hereby remanded to the agency with
instructions to make  void appellants' suspensions ab initio.


So ordered.