United States District Court, Southern District of New York
April 26, 2002
WILLIE J. HIGHTOWER, PLAINTIFF,
THE UNITED STATES OF AMERICA, ET AL., DEFENDANTS.
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
1. FECA Claim
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).
2. FTCA Claim
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 face, resulting in permanent damage and
disability to those areas.
See id. at No. 10 — "Personal injury/Wrongful Death."
On April 4, 2001, plaintiffs FTCA Claim was denied because the
Secretary of Labor had already approved his FECA claim based on these
same injuries, thereby effectively foreclosing any potential claim
against the United States under the FTCA pursuant to 5 U.S.C. § 8116
(c). See VA's Letter to plaintiffs attorney, dated April 4, 1999 (Exhibit
H to the Weiner Decl.). Plaintiffs FTCA Claim was also denied because
"[a] review of all the circumstances associated with this case does not
reveal any liability for negligence and/or intentional torts on the part
of the Department
of Veterans Affairs or any of its employees." See
Weiner Decl., Ex. H.
3. Plaintiff's Grievance Rights Under the CSRA
As a federal employee, plaintiff may file formal and informal
grievances for "any matter of concern or dissatisfaction relating to
employment" under Chapter 771, "Employee Grievances and Administrative
Appeals" MP-5, Part-1, which sets forth the VA's employee grievance
procedures pursuant to the Civil Service Reform Act of 1978, Pub. L.
95-454, 92 Stat. 1111 et seq., ("CSRA"). See Chapter 771, "Employee
Grievances and Administrative Appeals" MP-5, Part-1 (Weiner Decl., Ex.
I). There is no evidence in the record from which I could conclude that
plaintiff ever filed such a grievance.
C. The Instant Complaint
On April 23, 2001, Plaintiff filed his seven-count complaint against
the United States and the individual defendants seeking more than
$5,000,000 in damages based on state law tort claims and constitutional
claims. Jurisdiction over this action is alleged under the FTCA, the
United States Constitution, Section 1983 and the New York Constitution.
Plaintiffs complaint contains four state law tort claims: (a) Second
Cause of Action (Malicious Prosecution); (b) Fifth Cause of Action
(Libel); (c) Sixth Cause of Action (Libel/Slander); and (d) Seventh
Causes of Action (Intentional Infliction of Emotional Distress). See
Complaint. Plaintiffs complaint also contains three constitutional
claims: (a) First Cause of Action (Excessive Force); (b) Third Cause of
Action (False Arrest); and (c) Fourth Cause of Action (Maintenance of an
Official Custom or Policy Which Lead to Constitutional Violations). See
THE COURT IS WITHOUT SUBJECT MATTER JURISDICTION OVER PLAINTIFF'S
STATE LAW TORT CLAIMS
A. The Court Lacks Subject Matter Jurisdiction to Hear Plaintiff's State
Law Tort Claims as Against the United States because Plaintiff Has
Already Recovered for These Injuries in his FECA Claim
Plaintiffs state law tort claims in this action brought against the
United States under the FTCA are dismissed for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1), because the Secretary of Labor
has already allowed plaintiffs FECA Claim based on the injuries plaintiff
allegedly sustained on April 26, 1999 during the course of his duties.
FECA provides the exclusive remedy against the federal government for
work-related injuries sustained by federal employees. 5 U.S.C. § 8116
(c); Votteler v. United States, 904 F.2d 128, 130 (2d Cir. 1990).*fn2
See also Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995).
Where FECA applies, federal courts have no jurisdiction to entertain FTCA
claims asserted by an injured federal employee:
FECA . . . was designed to protect the Government from
suits under statutes, such as the Federal Tort Claims
Act, that had been enacted to waive the Government's
sovereign immunity. In enacting this provision,
the principal compromise — the
quid pro quo" — commonly found in workers'
compensation legislation: employees are guaranteed the
right to receive immediate, fixed benefits regardless
of fault and without need for litigation, but in
return they lose the right to sue the Government.
Lockheed Aircraft Corp. v. United States, 460 U.S. 190
, 193-94 (1983).
"FECA contains an "unambiguous and comprehensive' provision barring any
judicial review of the Secretary's determination of FECA coverage. . . .
Consequently the courts have no jurisdiction over FTCA claims where the
Secretary of Labor determines that FECA applies." Southwest Marine, Inc.
v. Gizoni, 502 U.S. 81, 90 (1991). See also Votteler, 904 F.2d at 130;
Swafford v. United States, 998 F.2d 837
, 839-41 (10th Cir. 1993);
McDaniel v. United States, 970 F.2d 194
, 196-98 (6th Cir. 1992); Grijalva
v. United States, 781 F.2d 472
, 474 (5th Cir. 1986).
Plaintiff alleges that there is an open question of fact concerning
whether his injuries were sustained within the course of his federal
employment, because he was still in the parking lot, and had not yet
formally reported for duty, at the time of his arrest. Plaintiff also
claims that: (1) an unnamed supervisor forced him to file his FECA claim
on April 30, 1999 by telling him that he would not be able to return to
work from his immediate suspension following the incident unless he filed
a FECA claim see Pl.'s Decl. ¶ 5; and (2) he has never received any
compensation under his FECA claim other than compensation for the time he
missed from work as a result of the incident. See id.*fn3
There is no open question of fact concerning whether plaintiff
sustained his injuries during the course of his federal employment. And
even if his other contentions are true, they do not confer jurisdiction
over plaintiffs claims on this Court.
The Secretary of Labor has the "sole discretion" to decide whether a
particular injury is compensable under FECA. McDaniel, 970 F.2d at
197-98. "[T]he determination of [FECA] coverage is made by the Secretary
of Labor or his designee and his finding is final and not subject to
judicial review." Griffin v. United States, 703 F.2d 321, 321-22 (8th
Cir. 1983). Defendants correctly note that when there is a substantial
question of FECA coverage, for example, whether an injury occurred while
in the performance of duty, district courts will stay their proceedings
pending a decision by the Secretary of Labor. See e.g., McDaniel v. United
States, 970 F.2d 194, 198 (6th Cir. 1992). If the Secretary decides that
the employee was injured in the performance of his duty, the Secretary's
decision is binding on the court, even if no compensation is awarded to
the employee. Id. In this case, the Secretary of Labor has already
decided that plaintiffs injuries occurred during the course of his
The facts of this case are similar to those in Grijalva v. United
States, 781 F.2d 472 (5th Cir. 1986). In that case, a government employee
was injured when her car collided with a U.S. Army vehicle that failed to
stop at a stop sign. The accident took place on a U.S. Army Military
Reservation, and the plaintiff was driving home from work at the time.
The employee filed a claim under FECA and
was awarded compensation. She
then sued the U.S. government in the federal district court under the
Tort Claims Act. The plaintiff argued that because she was on her way
home when the accident happened, she was not "injured in the performance"
of her federal employment. She also argued that her mental capacity was
affected by the accident, and therefore her application for compensation
under FECA was not an informed and voluntary application for benefits.
Id. at 474. The court decided that, even viewing the facts as plaintiff
alleged them, she could not sustain an action against the government in
the district court. The Secretary of Labor had awarded the plaintiff
benefits under FECA and that decision could not be collaterally attacked
in the district court. Id.
Similarly, in this case, if plaintiff wishes to pursue his theory that
his injuries are not covered by FECA, he must seek relief from the
Secretary of Labor, not the district court. See e.g., Grijalva v. United
States, 781 F.2d 472 (5th Cir. 1986); Coffey v. United States,
939 F. Supp. 185, 190 (E.D.N.Y. 1996).
It is immaterial to the jurisdictional question that some of plaintiffs
damage claims might go uncompensated because "the only compensation [. . .
he has received] pursuant to his FECA claim was for reimbursement for
time missed from work during his suspension." Pl.'s Mem. at 8. As set
forth above, Section 8116(c) provides the exclusive remedy for federal
employees injured within the course of their employment. The mere fact
that plaintiff would like to recover benefits besides those he has
already recovered or may be entitled to under FECA does not alter the
fact that FECA provides his sole and exclusive remedy against the United
States. See Balancio v. United States, 267 F.2d 135, 138 (2d Cir. 1959)
("Congress meant that whenever `compensation' was available to a Federal
employee, [FECA] was to be a his sole remedy"). Accordingly, plaintiffs
claims against the United States are barred by his recovery under FECA.
Finally, even if plaintiffs recovery under FECA did not foreclose the
Court's jurisdiction over his state law tort claims under the FTCA, the
Court would still lack jurisdiction over plaintiffs slander and libel
claims against the United States (the Sixth and Seventh Causes of
Action). Significantly, the FTCA expressly excludes from its waiver of
sovereign immunity "[a]ny claim arising out of . . . libel, slander or
misrepresentation." 28 U.S.C. § 2680 (h). Courts routinely dismiss
claims of defamation and libel improperly brought against the United
States. See, e.g., Prestop v. Hamlett, No. 99 Civ. 2747 (GBD), 2001 WL
363676, at *6 (S.D.N.Y. Apr. 12, 2001) (dismissing defamation claim
against the United States); Saghezi v. Reno, No. 94 Civ. 8291, 1996 WL
524338, at *6 (S.D.N.Y. Sept. 16, 1996) (same). Thus, Counts Six and
Seven must also be dismissed on this alternate ground.
B. The Court Lacks Subject Matter Jurisdiction to Hear Plaintiff's State
Law Tort Claims As Against the Individual Defendants
To the extent the complaint might be construed to also allege state law
tort claims against the individual defendants, such counts are dismissed
because the FTCA effectively immunizes the individual defendants from
liability from such claims.
Section 2679(b)(1) of the FTCA provides that a suit against the United
States is the exclusive remedy for a suit for damages for injury
"resulting from the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office or
employment," 28 U.S.C. § 2679 (b)(1), and provides government
officers and employees acting within the scope of their employment with
absolute immunity from claims of state law torts. See Rivera v. United
States, 928 F.2d 592, 608-09 (2d Cir. 1991). Because the complaint
expressly alleges that the individual defendants were each federal
employees of the VA, see Complaint ¶¶ 6, 8 and 10, acting within "the
scope of their employment," Complaint ¶ 35, any state law torts
claims based on their conduct would be cognizable, if at all, only as a
suit against the United States under the FTCA. However, for the reasons
discussed supra at Point I.A., plaintiffs recovery under FECA forecloses
any additional recovery against the United States under the FTCA.
Alternatively, to the extent these state law tort claims could be
considered as against the individual defendants under New York law, they
must be dismissed under the relevant statute of limitations. The torts
alleged by plaintiff — libel, false arrest, malicious prosecution,
intentional infliction of emotional distress — are intentional
torts. Under N.Y.C.P.L.R. § 215(c), the statute of limitations
governing such torts is one year. By any measure, the latest date any of
plaintiffs claims could have accrued was September 15, 1999, the date he
was found "not guilty." However, plaintiff did not commence this
litigation until April 23, 2001, more than eighteen months later.
Therefore, plaintiffs state law tort claims are time barred.
For the foregoing reasons, all of plaintiff's state law tort claims
(the Second, Fifth, Sixth and Seventh Causes of Action) are dismissed in
THE COURT IS WITHOUT SUBJECT MATTER JURISDICTION TO HEAR PLAINTIFF'S
A. The Court Lacks Subject Matter Jurisdiction Over Plaintiff's Damage
Claims Against the United States For Alleged Constitutional
claims for excessive force, false arrest and
maintenance of a custom or practice that resulted in the violation of his
constitutional rights (Counts One, Three and Four) as against the United
States are also dismissed for lack of subject matter jurisdiction. It is
well settled that "the United States, as sovereign, is immune from suit
save as it consents to be sued . . . and the terms of its consent to be
sued in any court define that court's jurisdiction to entertain suit."
United States v. Mitchell, 445 U.S. 535
, 538, 100 S.Ct. 1349, 1351
(1980); United States v. Testan, 424 U.S. 392
, 399, 96 S.Ct. 948, 954
(1976) (same). A waiver of sovereign immunity "cannot be implied but must
be unequivocally expressed." Mitchell, 445 U.S. at 358.
In Bivens, the Supreme Court first recognized that claims against
federal agents for constitutional violations may be implied directly
under the Constitution where otherwise no statute specifically creates
such a remedy. See Bivens, 403 U.S. at 397. However, such an action can
be brought only against federal agents in their individual capacities.
Therefore, to the extent the First, Third and Fourth Causes of Actions
can be fairly read to state a Bivens claim against the United
the individual defendants in their official capacities, such claims are
barred by sovereign immunity and must be dismissed. See Federal Deposit
Ins. Corp. v. Meyer, 510 U.S. 471, 484, 114 S.Ct. 996, 1005 (1994);
Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.
1994). Indeed, such constitutional claims against the United States are
"routinely dismissed for lack of subject matter jurisdiction." Keene
Corp. v. United States, 700 F.2d 836, 845 n. 13 (2d Cir. 1983).
With respect to his Fourth Cause of Action, plaintiff seeks to hold the
United States liable for alleged constitutional violations committed by
the individual defendants based on the erroneous view that the United
States can be held liable for money damages if those violations resulted
from an official government custom, policy, practice or usage. While
municipalities may be held liable under Section 1983 for maintaining such
a custom, policy or practice, see Monell v. Department of Social
Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037 (1978), no similar
doctrine applies to the Federal Government. The doctrine of sovereign
immunity clearly precludes a Bivens action against an officer in his or
her official capacity, a federal agency or the United States. See Meyer,
510 U.S. at 484-86; Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct.
3099, 3106 (1985); Robinson, 21 F.3d at 510.
B. The Court Lacks Subject Matter Jurisdiction to Entertain Plaintiffs
Bivens Claims As Against the Individual Defendants In Light of
Plaintiff's CSRA And FECA Remedies
By this complaint, plaintiff urges this Court to extend the implied
damages remedy first recognized in Bivens to the federal employment
context, so that he may not only retain what he has recovered under
FECA, but also ignore his available remedies under the CSRA, and instead
seek money damages from individual federal defendants. Plaintiffs attempt
to introduce Bivens into the field of federal employment must be denied
in light of the Supreme Court's decisions in Bush v. Lucas, 462 U.S. 367
103 S.Ct. 2404 (1983) (refusing to extend Bivens claim to a federal
employee in light of the comprehensive scheme Congress had established
over the field of federal employment), and Correctional Services Corp.
v. Malesko, 534 U.S. 61
, 122 S.Ct. 515
(2001) (rejecting Bivens claim
against private entity acting under color of federal law).
The rights of federal employees have already been adequately protected
by Congress through, inter alia, the availability of at least two avenues
currently available to plaintiff — a FECA claim against the United
States for the injuries sustained during the course of his employment
(which plaintiff has already collected), and the potential to file a
grievance under the CSRA. This comprehensive structure created by
Congress in the field of federal employment forecloses the fashioning of
a private constitutional remedy, particularly where plaintiff, a federal
employee, has already recovered through FECA for the injuries allegedly
By enacting both the CSRA and FECA within the field of federal
employment, Congress has demonstrated a clear intent to foreclose the
award of money damages against federal employees for constitutional
violations that occur within the course of federal employment. Under
FECA, federal employees can and do recover monetary compensation for the
injuries they sustain in the course of their employment. For example,
plaintiff has already recovered
for the injuries allegedly sustained as
result of his arrest on April 26, 1999 by submitting his FECA claim and
demonstrating that his injuries were sustained within the course of his
employment. See Weiner Decl., Ex. F.
In addition to FECA, Congress also established the CSRA as the remedial
scheme for the protection of constitutional rights in the field of
federal employment. See United States v. Fausto, 484 U.S. 439, 443, 108
S.Ct. 668 (1988) (CSRA "comprehensively overhauled the civil service
system, . . . creating an elaborate new framework for evaluating adverse
personnel actions against [federal employees].") Under the CSRA, federal
employees, like plaintiff, may file grievances pursuant to Chapter 71 of
the CSRA. See 5 U.S.C. § 7101-35. The term "grievance" is defined as
a complaint "by any employee concerning any matter relating to the
employment of the employee." 5 U.S.C. § 7103 (a)(9)(A). The CSRA
provides that the "grievance procedure shall be the exclusive
administrative procedure for resolving grievances which fall within its
coverage." 5 U.S.C. § 7121 (a)(1). An employee's "employment-related
claims alleging constitutional violations are "prohibited personnel
actions" within the meaning of the CSRA." See Black v. Reno, No. 99 Civ.
2704, 2000 WL 37991, at *8 (S.D.N.Y. Jan. 18, 2000).
The CSRA requires an employee aggrieved by a prohibited personnel
practice to complain initially to the Office of Special Counsel ("OSC") of
the Merit Systems Protection Board ("MSPB"). See 5 U.S.C. § 1214
(a)(1)(A). The OSC is required to investigate any allegation of a
prohibited personnel practice, and take any correction action that is
needed. See §§ 5 U.S.C. § 1212, 1214(b)(2)(B). Therefore, the
CSRA creates "an integrated scheme of administrative and judicial
review, designed to balance the legitimate interests of the various
categories of federal employees with the needs of sound and efficient
administration." Fausto, 484 U.S. at 445.
In Bush, the Supreme Court held that the comprehensiveness of the
CSRA's structure constitutes a "special factor" that cautions against the
fashioning of a private constitutional remedy in employment disputes
involving federal workers. See Bush, 462 U.S. at 368. The Supreme Court,
refused to recognize a Bivens cause of action for a federal employee who
was allegedly demoted for publicly criticizing NASA, in violation of his
First Amendment rights. See 462 U.S. at 369-72. In holding that the
employee's Bivens suit was precluded, the Supreme Court noted "[f]ederal
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." Id. at 385. "Although the
plaintiff [in Bush] had no opportunity to fully remedy the constitutional
violation, [the Supreme Court] held that the administrative review
mechanisms crafted by Congress provided meaningful redress and thereby
foreclosed the need to fashion a new, judicially crafted cause of
action." Malesko, 122 S.Ct. at 520. The Supreme Court expressly
recognized that the CSRA reflected Congress' balancing of government
efficiency with employee rights, and counseled against the allowance of
additional remedies, even if those remedies offered superior employee
compensation. Bush, 462 U.S. at 388-89.
In Schweicker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460 (1988), the
Supreme Court refused to extend a Bivens claim to recipients of Social
benefits who claimed defendants' unconstitutional
conduct resulted in the denial of their benefits, causing injury above
and beyond the amount lost in benefits alone. While recognizing that such
injury had been inflicted, the Supreme Court again held that a Bivens
claim could not be maintained because Congress had established an
administrative system for claim resolution: "When the design of a
Government program suggests that Congress has provided what it considers
adequate remedial mechanisms . . . we have not created Bivens remedies."
Id. at 423.
Significantly, the availability of remedies under the CSRA precludes
suit under state law or Bivens even when, for whatever reason, the
federal employee cannot obtain complete relief under that statute. "Under
Chilicky, the central question is whether Congress has provided a
comprehensive remedial scheme, not whether the remedy applied to the
particular injury is meaningful." Kassel v. United States Veterans'
Administration, 709 F. Supp. 1194, 1207 (D. N.H. 1989). Therefore, there
is no need to "foray into the meaningfulness of federal employees'
remedies under the CSRA. . . . [E]ven if no remedy at all has been
provided by the CSRA, courts will not create a Bivens remedy." Jones v.
TVA, 948 F.2d 258, 264 (6th Cir. 1991). Thus, for example in Lombardi v.
Small Business Administration, 889 F.2d 959 (10th Cir. 1989), the court
held that the CSRA barred a Bivens claim even though the plaintiff was an
employee who had no recourse to CSRA remedial measures. Id. at 960-61;
see also Saul v. United States, 928 F.2d 829 (9th Cir. 1991) (Bivens
claim barred by CSRA even though plaintiff had no remedy under the CSRA
because the offensive conduct, the unauthorized searching of his mail,
was not a proscribed "personnel action").
Plaintiff acknowledges in his memorandum of law that, "Taken together,
Bush and Chilicky stand for the proposition that Courts cannot provide
constitutional remedies to supplement a Congressionally-established
administrative system even where the system's remedies are not as
complete as the constitutional remedy might be." Pl. Mem. at 6-7.
Nonetheless, he contends that plaintiffs claims for false arrest and
excessive force are not covered by the CSRA, because they occurred before
he reported to work. For this proposition he relies on Judge Sweet's
decision in Black v. Reno, 2000 WL 37991.
Black is indeed apposite here, but it supports defendants' position
rather than plaintiffs. In Black, Judge Sweet held that the CSRA
precluded a federal employee's Bivens claims arising from the alleged
illegal search and seizure of her office, but did not preclude her
Bivens claims arising from her prior arrest at her home. See id. at *
12. He concluded that the arrest claim, while ultimately arising out of
Black's workplace activity, was too far removed from those activities to
fall within the CSRA scheme. In this case, plaintiffs Bivens claims of
alleged false arrest and excessive force arise from an incident that
occurred on the premises of the VA Hospital where plaintiff worked, after
he had arrived at his work site, and while he was attempting to sign in.
As stated in Plaintiffs Memorandum of Law opposing the Government's
motion, plaintiff was arrested as he was attempting to "punch into work
and return to the scene in order to avoid being marked late for work that
morning." Pl. Mem. at 9. The incident occurred at 7:10 AM, ten minutes
after the scheduled beginning of plaintiffs tour. Weiner Decl. Ex. D;
Bell Decl. Ex. A. The fact that plaintiff had not quite made it into the
building in which he worked does not render his injury unconnected to his
federal employment. But for
his job, plaintiff would not have been on the
VA premises at the date and time in question.
In any event, plaintiff has already received benefits under FECA, after
submitting a sworn statement to the Secretary of Labor stating that these
same injuries were sustained by him in the course of him duties as a
federal employee. See FECA Claim (Weiner Decl., Exs. D, E and F). The
Secretary's determination that plaintiffs injury was incurred in the
course of his federal employment is not subject to judicial review.
5 U.S.C. § 8128 (b). Plaintiffs constitutional claims against
defendants are necessarily preempted by the expansive scope of the
remedial scheme established under the CSRA and FECA.
Accordingly, the Court declines plaintiffs invitation in this case to
expand the Bivens remedy into the area of federal employment. See Saul,
928 F.2d at 840 ("In the area of federal employment, Congress is better
equipped than we to strike an appropriate balance between employees'
interests in remedying constitutional violations and the interests of the
government and the public in maintaining the efficiency, morale and
discipline of the federal workforce.") While plaintiff may prefer a more
complete remedy for his alleged constitutional claims, the comprehensive
scheme established by Congress in the field of federal employment
counsels against recognition of a Bivens claim under these
circumstances. See Malesko, 122 S.Ct. at 520 ("So long as the plaintiff
has an avenue of some redress, bedrock principles of separation of powers
foreclosed judicial imposition of a new substantive liability.)
For the foregoing reasons, the complaint is dismissed for lack of
subject matter jurisdiction. The Clerk of the Court is directed to close