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March 19, 1999


The opinion of the court was delivered by: Rakoff, District Judge.


On February 18, 1999, the Honorable Sharon E. Grubin, United States Magistrate Judge, issued a Report and Recommendation in the above-captioned matter, recommending that plaintiff's complaint be dismissed for lack of subject matter jurisdiction. No objections having been filed, and the parties for that reason having waived their right to further appellate review, see United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992), the Court hereby adopts the Report and Recommendation and dismisses plaintiff's complaint with prejudice. Clerk to enter judgment.



Plaintiff brings two claims under the Whistleblower Protection Act of 1989, Pub.L. No. 101-12, 103 Stat. 16 (codified as amended in scattered sections of 5 U.S.C.) ("the WPA"), and one claim of defamation. Defendants move to dismiss the complaint under Rules 8(a)(2), 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Because I conclude that this court does not have subject matter jurisdiction herein, I recommend that defendants' motion be granted.*fn1

For purposes of this motion we treat the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); In re Merrill Lynch Ltd. Partnerships Litig., 154 F.3d 56, 58 (2d Cir. 1998); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992), cert. denied, 507 U.S. 961, 113 S.Ct. 1387, 122 L.Ed.2d 762 (1993) and 507 U.S. 972, 113 S.Ct. 1412, 122 L.Ed.2d 784 (1993); Oliveira v. Frito-Lay, Inc., No. 96 Civ. 9289(LAP), 1999 WL 20849, at *2, 1999 U.S. Dist. LEXIS 352, at *4 (S.D.N Y Jan. 15, 1999); Brown v. Sara Lee Corp., No. 98 Civ. 1593(JSR), 1998 WL 809518, at *1, 1998 U.S. Dist. LEXIS 18325, at *2 (S.D.N.Y. Nov. 19, 1998). "[C]onsideration is limited to the factual allegations in [the] complaint, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993); see Society for the Advancement of Education, Inc. v. Gannett Co., No. 98 Civ. 2135(LMM), 1999 WL 33023, at *4, 1999 U.S. Dist. LEXIS 700, at *11 (S.D.N.Y. Jan. 21, 1999); Brodeur v. City of New York, No. 96 Civ. 9421(RPP), 1998 WL 557599, at *2 (S.D.N Y Sept.2, 1998); Rodriguez v. McGinnis, 1 F. Supp.2d 244, 248 (S.D.N.Y. 1998). A motion to dismiss is to be denied unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998); Walker v. City of New York, 974 F.2d at 298; Ericson v. Syracuse Univ., No. 98 Civ. 3435(JSR), 1999 WL 33467, at *4, 1999 U.S. Dist. LEXIS 691, at *11 (S.D.N.Y. Jan. 27, 1999); Barcher v. New York Univ. School of Law, 993 F. Supp. 177, 183 (S.D.N.Y. 1998).

Plaintiff was an employee in the Preparation Unit of the Acquisition and Material Management Service of the Bronx Veterans Administration Medical Center ("the VAMC") and held a supervisory position for four years. While in that position she filed a grievance under 5 C.F.R. § 735.201 and 5 U.S.C. § 2302(b)(6) against defendant Lorenzo Reese, Assistant Chief of Supply Distribution, for utilizing a "pre-selection process in personnel staffing of supervisory positions." Amended Complaint ("Am.Compl.") ¶ 5. Plaintiff's first claim herein is that Reese made impermissible staffing decisions and, with defendants Roger Johnson, Associate Director of the VAMC, Dan Heimowitz, Employee Assistance Program Coordinator, and Mary Ann Musumeci, Director, retaliated against plaintiff for complaining and acted "to disguise the existence of a pre-selection process in the personnel staffing of supervisory positions." Id. ¶ 6. As a result of their actions, the complaint alleges, plaintiff lost her supervisory position and pay grade and was suspended for a week. She seeks damages of $100,000. Plaintiff's second claim alleges the defendants "perpetrated an abuse of process, by threatening her with suspension if she failed to seek `psychotherapy' from the Employees Assistance Program" and that "[a]s a result of" this act of the defendants, she was "intentionally stripped of her then supervisory position." She seeks restoration of her title and grade. Both of these claims are alleged to have been violations of the WPA, 5 U.S.C. § 2302(b)(8). Plaintiff's third claim is for "libelous defamation," alleging that, as a result of the foregoing actions of defendants, unspecified letters and paperwork were placed in her permanent file at the VAMC and unspecified adverse publicity was disseminated in the work-place. She seeks punitive damages of $100,000 and the purging of adverse information from her file.

Plaintiff alleges that she "has exhausted all [administrative] avenues of relief." Am. Compl. ¶ 2. Although the parties argue the issue of exhaustion on this motion, the issue is irrelevant because, even assuming on this motion that plaintiff had properly exhausted her administrative remedies, there would be no judicial remedies available to plaintiff in this court.*fn2

The WPA is an amendment to the Civil Service Reform Act of 1978 ("the CSRA"), Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.). The CSRA established a comprehensive and detailed set of procedures to deal with workplace disputes between federal employees and the government. The Supreme Court explained in Bush v. Lucas, 462 U.S. 367, 385, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), as follows:

  Federal civil servants are now protected by an
  elaborate, comprehensive scheme that encompasses
  substantive provisions forbidding arbitrary action by
  supervisors and procedures — administrative and
  judicial — by which improper action may be redressed.
  They apply to a multitude of personnel decisions that
  are made daily by federal agencies.

There is no need to review all the procedural elements of the CSRA here. What is crucial is that the act limits an employee aggrieved by a personnel decision to various administrative review procedures but for exceptional cases in which the act allows judicial review of decisions of the Merit Systems Protection Board ("the MSPB") solely by the Court of Appeals for the Federal Circuit. Thus, 5 U.S.C. § 7703(b)(1) provides that "[e]xcept as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit," and a federal government employee cannot obtain a remedy for a violation of the CSRA in a federal district court.*fn3 A narrow exception confers jurisdiction in a federal district court of certain claims of discrimination. See 5 U.S.C. § 7702(a) and (e), 7703(b)(2). In such a case, the district court may review the discrimination claim de novo, and if other, nondiscrimination claims are also brought in that action, the district court may review the nondiscrimination claims in the manner of review by the Federal Circuit Court of Appeals, i.e., on the administrative record. See, e.g., Mack v. United States Postal Service, No. 92-CV-0068 (FB), 1998 WL 546624, at *5-*6, 1998 U.S. Dist. LEXIS 13480, at *16-*17 (E.D.N.Y. Aug. 26, 1998); Rhyne v. Perry, No. 91 Civ. 8691(LMM), 1995 WL 77970, at *5, 1995 U.S. Dist. LEXIS 2129, at *14-*15 (S.D.N.Y. Feb. 24, 1995); Williams v. McCausland, 791 F. Supp. 992, 998 (S.D.N.Y. 1992). Plaintiff here, however, has raised no such discrimination claims that would give this court jurisdiction to review her case.

That plaintiff claims here to have been a whistleblower does not create any greater right for her in a district court than under the general CSRA scheme because enactment of the WPA left the role of the federal courts unchanged in the review of employment decisions affecting federal employees. See Grisham v. United States, 103 F.3d 24, 26-27 (5th Cir. 1997); Rivera v. United States, 924 F.2d 948, 952-54 (9th Cir. 1991). It is true that the WPA created a procedure for relief labeled an "Individual Right of Action," 5 U.S.C. § 1221, but that right of action is not a cause of action in a federal district court, but rather one to permit review by the MSPB. The WPA thereby expanded the MSPB's jurisdiction to enable it to hear claims of retaliation for whistleblowing which had been previously outside its jurisdiction, see Knollenberg v. Merit Systems Protection Board, 953 F.2d at 625, but conferred no jurisdiction in this court. There remains the question of whether an implied cause of action can be found in the CSRA or the WPA in the absence of specific authorizing language in those acts. Although the Court of Appeals for this circuit has not ruled on this point, the issue has arisen in other courts. The answer has been uniform that there is no implied cause of action under the CSRA or the WPA. See, e.g., Braun v. United States, 707 F.2d 922, 925 (6th Cir. 1983); Broadway v. Block, 694 F.2d at 983-84; Hooks v. Army and Air Force Exchange Service, 944 F. Supp. 503, 506 (N.D.Tex. 1996) (claim of whistleblower retaliation); see also Tiltti v. Weise, 155 F.3d 596, 601 (2d Cir. 1998) (CSRA bars district court from reviewing claim, under Administrative Procedure Act, of agency's reassignment of employee). The extensive and carefully designed structure established by the CSRA, described by the Supreme Court as "an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations," Bush v. Lucas, 462 U.S. at 388, 103 S.Ct. 2404, has led these courts to reject any theory of an implied additional remedy in the form of a right of action in federal district court.

The final claim of the amended complaint, defamation, must also be dismissed because the CSRA preempts such claims by federal employees against their supervisors.*fn4 While, again, the precise issue has not been decided by the Court of Appeals for the Second Circuit, other courts have found that the CSRA is the exclusive remedy for federal employees alleged to have been aggrieved by actions related to their employment. See, e.g., United States v. Fausto, 484 U.S. 439, 455, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) (CSRA bars claim under Back Pay Act); Grisham v. United States, 103 F.3d at 27 (5th Cir. 1997) (CSRA bars claim under Federal Tort Claims Act); Saul v. United States, 928 F.2d 829, 840-43 (9th Cir. 1991) (CSRA bars claim for defamation and infliction of emotional distress); Rivera v. United States, 924 F.2d at 951-54 (CSRA bars claim under Federal Tort Claims Act); Berry v. United States, No. 93 Civ. 8652(LLS), 1995 WL 33284, at *4 (S.D.N.Y. Jan.27, 1995) (CSRA bars claim under Federal Tort Claims Act and under state law); Petrousky v. United States, No. 91-CV-1048, 1991 WL 268689, at *3-*4 (N.D.N.Y. Dec.11, 1991) (CSRA bars claims for conspiracy and RICO). Again, the deliberate ...

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