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
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
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 construction of the remedial
framework in the CSRA is persuasive in showing that Congress
intended to limit federal employee grievances to its framework.
Thus, there is no basis under which plaintiff can pursue an
independent action in this court against her federal supervisors
and employers for defamation.
For the foregoing reasons, this action should be dismissed for
lack of jurisdiction under Fed.R.Civ.P. 12(b)(1).
The parties are hereby directed that if you have any objections
to this Report and Recommendation you must, within ten (10) days
from today, make them in writing, file them with the Clerk of the
Court and send copies to the Honorable Jed S. Rakoff, to the
opposing party and to the undersigned. Failure to file objections
within ten (10) days will preclude later
appellate review of any order that will be entered by Judge
Rakoff. See 28 U.S.C. § 636(b)(1); Rules 6(a), 6(e), and 72(b)
of the Federal Rules of Civil Procedure; Thomas v. Arn,
474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL — CIO
Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993),
cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38
(1994); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert.
denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992);
Small v. Secretary of Health and Human Services, 892 F.2d 15,
16 (2d Cir. 1989) (per curiam); McCarthy v. Manson,
714 F.2d 234, 237 (2d Cir. 1983) (per curiam).
February 18, 1999.