The opinion of the court was delivered by: TELESCA
MICHAEL A. TELESCA, United States District Judge
Joel Freedman has been a social worker at the Veterans Administration Medical Center in Canandaigua, New York since 1969. Over the years he has written numerous articles and letters to various magazines and newspapers including "Social Work Magazine", "Stars and Stripes" and The Canandaigua Daily Messenger concerning the medical treatment of institutionalized patients, including those in nursing homes, VA facilities and prisons. At times however, plaintiff's writings have been particularly critical of the treatment of patients at the Canandaigua Veterans Administration Medical Center.
Prior to April of 1983 plaintiff had regularly received a "highly satisfactory" rating of his job performance as a social worker. In June of 1983 plaintiff had published several letters and an article alleging abuse of the use of nasogastric feeding tubes in various Veteran Administration hospitals, state hospitals and nursing homes. In April of 1984 plaintiff had published several letters and an article in "Social Work Magazine" critical of excessive drugging in VA medical centers. On May 3, 1984 plaintiff was given a notice of proposed suspension stating two reasons; the first was the publication of the letters and article concerning excessive drugging, the second was that plaintiff had failed to prepare a report substantiating his claim of overdrugging as his immediate supervisor had directed him to do. Plaintiff contends that he was unable to prepare such a report because the VA refused to make available to him necessary medication records from which to make the report. Plaintiff was suspended for 11 days beginning June 12, 1984.
Pursuant to the grievance procedure negotiated between the American Federation of Government Employees and the Veterans Administration, plaintiff filed a grievance protesting his suspension. He continued the grievance through the third step, review by the Medical Center Director, and was denied at each stage. Plaintiff then requested that his union submit the grievance to Binding Arbitration pursuant to 5 U.S.C. § 7121(b)(3)(c). The union chose not to take the case to arbitration.
Prior to the actual suspension plaintiff filed a complaint with the Office of Special Council of the Merit System Protection Board protesting his notice of proposed suspension. 5 U.S.C. § 1206(a)(1) states that "the special council shall receive any allegation of prohibited personnel practice and shall investigate the allegation to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken." Prohibited personnel practices are defined in 5 U.S.C. § 2302, subsection (b)(8), known as the "whistle blower statute", states that
Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority . . . take or fail to take a personnel action with respect to any employee or applicant for employment as a reprisal for (A) a disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences (i) a violation of any law, rule or regulation or (ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; . . .
If the Office of Special Council determines that a personnel action is about to be taken against an employee as a result of a prohibited personnel practice it can request, pursuant to 5 U.S.C. § 1208, that the Merit System Protection Board stay the personnel action. The system of the Merit System Protection Board and the Office of Special Council, 5 U.S.C. § 1201 et seq, does not provide for any appeal from a determination by the Office of Special Council that no prohibited personnel practice has occurred.
Plaintiff filed suit in this Court alleging that the 11 day suspension violated his First Amendment rights. The Government has moved pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss the complaint on the grounds that the Court lacks subject matter jurisdiction. Particularly, the Government alleges first that the plaintiff has failed to exhaust his administrative remedies and second that plaintiff is barred from bringing a Bivens -type action in this Court because of the Supreme Court's determination in. Bush v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983) that employees who have been provided with a comprehensive administrative remedy cannot bring a Bivens -type action.
A. Exhaustion of Administrative Remedies
The exhaustion doctrine provides that "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted". Myers v. Bethlehem Ship Building Corporation, 56 S. Ct. 459 (1938). The reason for the exhaustion doctrine is to allow an agency to develop the factual background, exercise its discretion, and apply its expertise. McKart v. The United States, 395 U.S. 185, 89 S. Ct. 1657, 1666, 23 L. Ed. 2d 194 (1969).
Application of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.
As counsel for the plaintiff noted at oral argument, there were perhaps four separate systems of administrative remedy which the plaintiff could have used in challenging the propriety of his suspension: Appeal to the Merit System Protection Board ("MSPB"), appeal to the Office of Special Council ("OSC"), appeal to the Federal Labor Relations Authority ("FLRA"), and finally, the filing of a grievance pursuant to the Collective Bargaining Agreement. The Government's motion to dismiss is based on its allegation that the plaintiff failed to exhaust the administrative remedies available to him through the OSC and the grievance procedure. At oral argument counsel for both parties made reference to the FLRA procedures. In order to understand the administrative scheme created by the Civil Service Reform Act of 1978 it is essential to review the role of the MSPB. Therefore, an analysis of each of the four potential administrative remedies is necessary to determine whether the plaintiff has properly brought this action.
1. Merit System Protection Board
The Civil Service Reform Act of 1978 eliminated the Civil Service Commission and created two new agencies; the Office of Personnel Management and the Merit System Protection Board. The Officer of Personnel Management carries on the administrative functions of the Civil Service System. The Merit System Protection Board is the appeals agency to which civil service employees can appeal to protest disciplinary actions.
Essential purpose of this bifurcation was "to ensure that those who are responsible for administering the civil service system will not have the primary responsibility of determining whether that system is free from abuse" S. Rep. No. 95-969, 95th Cong., 2nd Sess. 24 (1978),
Perez v. Army and Air Force Exchange Service, 220 U.S. App. D.C. 230, 680 F.2d 779, 784 (D.C. Cir. 1982). 5 U.S.C. § 7701(a) states that "an employee, or applicant for employment, may submit an appeal to the Merit System Protection Board from any action which is appealable to the Board under any law, rule, or regulation." 5 U.S.C. § 7512 defines "actions covered". These include "(1) a removal; (2) a suspension for more than 14 days; Here plaintiff's suspension was for less than 14 days and therefore it does not constitute an adverse action appealable to the MSPB. Mercer v. Department of Health and Human Services, 772 F.2d 856, 858 (Fed. Cir. Ct. of App., 1985). Thus this first avenue of administrative ...