The opinion of the court was delivered by: McMAHON, U.S.D.J.
MEMORANDUM DECISION AND ORDER DISMISSING THE COMPLAINT FOR LACK
OF SUBJECT MATTER JURISDICTION
In this action, Willie Hightower ("Hightower"), a federal employee with
the Department of Veterans Affairs ("VA"), seeks money damages from the
United States, and the three individual defendants, based on alleged
injuries sustained from mace or pepper spray used against him in the
course of his arrest on April 26, 1999. He was arrested after he was
stopped on the Montrose VA Hospital campus for driving his automobile in
a reckless manner.
As a federal employee, plaintiff applied for and received benefits
under the Federal Employee's Compensation Act, 5 U.S.C. § 8101, et
seq., ("FECA") for the injuries he sustained as a result of the April
26, 1999 incident. In order to obtain those benefits, Hightower
affirmatively represented to the Secretary of Labor that they had been
sustained in the course of duty. Notwithstanding plaintiffs recovery
under FECA, he now seeks to collect additional monies from the United
States and/or the individual defendants under state law tort (malicious
prosecution, slander, libel and intentional infliction of emotional
distress) pursuant to the Federal Tort Claims Act, 28 U.S.C. § §
1346, 2671-2680 ("FTCA").
He also asserts constitutional claims
(excessive force, and false arrest) presumably under Bivens v. Six
Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.
1999 (1971) ("Bivens").
Defendants argue that because the allegations of the complaint
expressly allege that the individual defendants were acting within the
scope of their federal employment at all times relevant to the
complaint, any state law tort claims for malicious prosecution, slander,
libel or intentional infliction of emotional distress against them must
be dismissed as a matter of law, since the FTCA expressly immunizes them
from such claims. See 28 U.S.C. § 2679 (b). They further argue that
plaintiff cannot recover against the United States under the FTCA because
he has already successfully received benefits on his FECA claim. See
5 U.S.C. § 8116 (c). Their final argument is that even if this Court
had jurisdiction to hear plaintiffs state law tort claims against the
United States under the FTCA, the FTCA does not waive the United States'
sovereign immunity for claims of slander and libel. See
28 U.S.C. § 2680 (h). Defendants argue that the Court therefore is
without subject matter jurisdiction over plaintiffs state law tort claims
(reflected in the Second, Fifth, Sixth and Seventh Causes of Action), and
these claims must be dismissed in their entirety.
Although the complaint indicates that plaintiffs constitutional claims
purport to be brought under 42 U.S.C. § 1983 and/or the New York State
Constitution, they are properly construed as Bivens claims for violations
of the United States Constitution, because the defendants are all federal
employees acting under federal law. Defendants argue that to the extent
plaintiffs constitutional claims (the First, Third and Fourth Causes of
Action) might be construed as asserting a claim for money damages against
the United States itself or the individual defendants in their official
capacities for excessive force or false arrest in violation of the Fourth
Amendment, and maintenance of an official custom or policy that violated
plaintiffs constitutional rights, the claims cannot survive this motion,
because the United States has not waived its sovereign immunity for such
Bivens claims. Defendants assert that the comprehensive schemes Congress
has established for federal employees, i.e., the FECA and the Civil
Service Reform Act ("CSRA"), are the kind of "special factors" that weigh
against the recognition of a private constitutional remedy against the
individual defendants in their individual capacities for excessive force
and false arrest (the First and Third Causes of Action). Bivens, 403
U.S. at 396.
A. Plaintiff's Arrest and Criminal Trial
At all times relevant to this complaint, plaintiff was (and remains) a
federal employee employed at the Montrose VA Hospital Campus. See
Declaration of Sharon J. Weiner dated January 8, 2002 ("Weiner
¶ 13, 14. Plaintiffs claims in this action arise from a routine
traffic stop on the Montrose VA Hospital Campus on the morning of April
26, 1999. See Complaint at ¶ 2; Decision and Order entered Sept. 15,
1999, USA v. Willie Hightower, 99 Mag. 1120 (MRG) (the "Decision") (Ex. C
to Weiner Decl.), at 8. At approximately 7:10 a.m., plaintiff drove his
green Volkswagen through the Montrose VA Hospital Campus on his way to
his office located in Building No. 8. See Decision at 8. After parking
and exiting his car, plaintiff alleges he was first approached by Bunce
who asked plaintiff if he knew how fast he was going. See id. Plaintiff
allegedly responded that he did not know his speed because his
speedometer was not working. See id. When Bunce asked for plaintiffs
driving license, plaintiff claims he responded by seeking permission to
first go inside his building to "punch in" for work, and then return
outside. See id.
Thereafter, plaintiff alleges that Bunce called for assistance from
Porter and Mackin, and that "one or more of the individual defendants
applied excessive force in effecting his arrest "by grabbing the plaintiff
at his shirt collar, grabbing and/or pulling the plaintiff by his left
upper extremity, impeding the plaintiff from ambulating forward, spraying
the plaintiff with MACE and/or pepper spray, handcuffing the plaintiff
and arresting him." See Complaint ¶ 15. Once plaintiff cooperated, he
was issued three United States District Court Violation Notices for: (1)
Assaulting, Resisting, or Impeding Certain Officers or Employees in
Violation of 18 U.S.C. § 111 ("Assaulting, Resisting or Impeding a
Federal Officer"); (2) Disorderly Conduct in Violation of
38 C.F.R. § 1.218 (b)(11); and (3) Operation of Vehicle in Reckless
or Unsafe Manner, in Violation of 38 C.F.R. § 1.218 (b)(33)
("Reckless Driving"), see Weiner Decl. ¶ 5; United States District
Court Violation Notices (Violation Nos. V526079-081) (copies of which are
attached as Ex. B to Weiner Decl.).
On June 24, 1999, plaintiff was charged in a three-count misdemeanor
complaint filed in this Court charging him with: (1) Assaulting,
Resisting or Impeding a Federal Officer (Count One); (2) Disorderly
Conduct (Count Two); and (3) Reckless Driving (Count Three). See Decision
at 1 (Weiner Decl., Ex. C). By an Amended Superceding Complaint filed on
July 29, 1999, Counts One and Three were dismissed by operation of law,
leaving the single count of disorderly conduct in violation of
38 C.F.R. § 1.218 (a)(5) ("Disorderly Conduct") to be tried. See id.
On August 10, 1999, plaintiff was tried in a bench trial before the
Honorable Martin R. Goldberg on a single count of Disorderly Conduct. See
id. at 2. Plaintiff, Bunce and Mackin testified at trial. See id. at 3,
5, and 7. On September 13, 1999, the Court found plaintiff "Not Guilty"
of the Charge of Disorderly Conduct, but also concluded that "[i]t's the
Court's belief that the Defendant, Willie Hightower, was late for work
and was probably annoyed that he was being stopped and questioned by the
police and delayed from work and was probably further annoyed that the
police were preventing him from signing in, thereby causing him to be
tardy or late for work." See id. at 13.
B. Plaintiff's Remedies As a Federal Employee
On April 30, 1999, four days after the alleged incident, plaintiff
filed a Federal Employee's Notice of Traumatic Injury and Claim for
Continuation of Pay/Compensation ("FECA Claim") to the Secretary for the
United States Department of Labor ("Secretary of Labor") pursuant to
the Federal Employment Compensation Act ("FECA"). See Weiner Decl.
¶ 7, FECA Claim (Weiner Decl., Ex. D). In his FECA claim, plaintiff
sought and received compensation for the injuries ("lesion in head and
vision affected in both eyes") allegedly sustained from pepper spray
applied by VA police in the VA parking lot on April 26, 1999 at 7:10 a.m.
See FECA Claim (Weiner Decl., Ex. D). By filing his FECA Claim,
plaintiff certified under penalty of law that his injury "was sustained in
performance of duty as an employee of the United States Government". See
id. On June 30, 1999, the Secretary of Labor conducted a telephone
conference with the VA and plaintiff on his FECA Claim to specifically
determine whether plaintiff "sustained an injury in the performance of
duty." See Conference Memorandum, dated July 30, 1999 (Weiner Decl., Ex.
E). On December 27, 1999, the Secretary of Labor accepted plaintiffs FECA
Claim for all injuries sustained as a result of his April 26, 1999
arrest. See Secretary of Labor's letter to plaintiff dated Dec. 27, 1999
(Weiner Decl., Ex. F).
On November 20, 2000, more than a year after plaintiff was notified
that his FECA Claim had been accepted by the Secretary of Labor,
plaintiff, with the assistance of his current counsel, filed his Claim for
Damage, Injury, or Death (Standard Form 95) (the "FTCA Claim") seeking
approximately $1,000,000 in damages based on the injuries he allegedly
sustained as a result of his arrest by VA police at the Montrose Campus
of the VA Hudson Valley Health Care System on April 26, 1999. See FTCA
Claim (a copy of which is attached to the Complaint and for the Court's
convenience may also be found as Ex. G to the Weiner Decl.). In his FTCA
Claim, plaintiff alleges that:
The incident giving rise to this claim occurred at the
Montrose Veteran's Administration Hospital Montrose,
New York at or near Parking Lot "B" and was caused by
the unlawful, reckless intentional acts, excessive
force, malicious prosecution, assault, battery, false
arrest and/or negligent acts of Officer John Bunce and
Officer Robert Porter, all in violation of claimant's
civil rights and liberties; the Fourth Fifth and
Fourteenth Amendments of the United States
Constitution; the New York Constitution; the New York
State Executive Law Section 296; and 42 U.S.C. § 1981,
1983 and 1985.
See FTCA Claim (Weiner Decl., Ex. G) at Box No. 8 "Basis of Claim."
Plaintiff claimed that the following injuries were sustained as a
result of his April 26, 1999 arrest:
Chemical burn to scalp; scabs and lesions to left side
of head/scalp; scar tissue to both eyes; blurred
vision in both eyes; need for change of eyeglasses
prescription; excessive dryness in both eyes;
excessive tearing in both eyes; chemical trauma to
eyes and ...