The opinion of the court was delivered by: Korman, Chief Judge.
Plaintiff, Andrea Payne, was employed as a case worker by
defendant Gregory Meeks from March 1998 to October 2000. Meeks
is the United States Representative for the 6th Congressional
District of New York, which comprises parts of Queens County,
New York. Payne alleges that at all times during her employment
Meeks controlled the terms and conditions of her employment, and
that she performed her job duties "in a superior manner."
Defendant Employing Office of Representative Gregory Meeks (the
"Employing Office") is the personal office of Meeks and
qualifies as an "employing office" under § 101(9) of the
Congressional Accountability Act ("CAA"), 2 U.S.C. § 1301(9).
On February 14, 2000, Payne was injured in a car accident. Due
to her injuries, Payne took a medical leave from her job in
Meeks's office from the date of the accident until July 10,
2000. While on leave she underwent massage therapy at Flowers
Physical Therapy, a facility located in Queens County. The
facility is owned by Neville Flowers, whose wife, Joan Flowers,
is allegedly an important campaign supporter and fund raiser for
Meeks. On April 20, 2000, Payne was sexually assaulted by a
massage therapist at the facility. In May 2000, she commenced a
civil action against, inter alia, Flowers Physical Therapy and
Neville Flowers, seeking $25 million in damages.
On July 13, 2000, three days after Payne returned to work, the
Jamaica Times published an article about her lawsuit against
Flowers Physical Therapy and Neville Flowers, although the
article did not identify Payne by name or state where she was
employed. On the same date, Joan Flowers came to Meeks's office
in an agitated state, complaining loudly about the contents of
the article. On July 17, 2000,
Meeks held a staff meeting, attended by Payne, during which he
stated that he had received several complaints about his staff,
and that when he received a complaint from a campaign supporter
he had to treat the matter seriously. Immediately after the
staff meeting, Meeks met with Payne privately and informed her
that he would not pay her for overtime work she had performed
before taking medical leave.
Following the July 17, 2000 meetings, Meeks and certain other
senior employees in his office allegedly began a campaign of
retaliation against Payne for the filing of her lawsuit against
Flowers Physical Therapy and Neville Flowers. The campaign
included requiring Payne to work overtime without compensation,
refusing to reimburse her for travel she was required to
undertake in fulfillment of her job duties, and directing
verbally-abusive language against her. On September 8, 2000,
Payne filed a formal request for counseling with the
congressional Office of Compliance pursuant to § 402 of the CAA,
2 U.S.C. § 1402, alleging that the Employing Office had "failed
and refused to pay [her] for overtime hours worked." On October
10, 2000, Payne wrote to the Chair of the House Committee on
Standards and Official Conduct, complaining about defendants'
refusal to pay her for overtime and work-related travel. In the
letter Payne stated that she believed that she was being
retaliated against because of her lawsuit against Neville
On October 23, 2000, Meeks terminated Payne's employment.
Meeks allegedly informed Payne that her employment was being
terminated not because of the quality of her work, but because
he felt that she was unhappy at the job and that she was not
"lending to the atmosphere that [he was] trying to create." On
January 8, 2001, the Office of Compliance notified Payne of the
end of the mediation period provided for by § 404 of the CAA,
2 U.S.C. § 1404. On March 7, 2001, Payne filed this action,
alleging that defendants had violated § 207 of the CAA,
2 U.S.C. § 1317, which prohibits retaliation against employees for the
initiation of proceedings under the Act. Payne subsequently
amended her complaint. Count I of the amended complaint alleges
that the Employing Office violated Payne's rights under the CAA;
Count II alleges that Meeks — acting in his individual capacity
— violated her rights under the First Amendment by retaliating
against her for the filing of her lawsuit against Flowers
Physical Therapy and Neville Flowers. Meeks moves for dismissal
of Count II for lack of subject-matter jurisdiction and for
failure to state a claim.
I. Subject-Matter Jurisdiction
In Count II of the amended complaint Payne seeks to recover
money damages from Meeks for the alleged violation of her rights
under the First Amendment. Payne bases her claim on Bivens v.
Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971), which held that federal officers
acting under color of law are liable for damages caused by their
violation of the plaintiffs constitutional rights, id. at 397,
91 S.Ct. 1999. Bivens also noted, however, that the courts
should decline to create a remedy for constitutional violations
where there is an "explicit congressional declaration" that
injured parties should be "remitted to another remedy, equally
effective in the view of Congress," id., or where there are
"special factors counseling hesitation in the absence of
affirmative action by Congress," id. at 396, 91 S.Ct. 1999.
Meeks contends that the CAA constitutes a "special factor"
precluding Payne's Bivens claim because: (i) the CAA provides
remedy for her termination; and (ii) Congress intended that the
remedial scheme established by the CAA be exclusive. (Def.'s
Reply Mem. at 7-10.)
The CAA, enacted by Congress in 1995, makes 11 employment laws
applicable to the legislative branch, and establishes
administrative and judicial procedures for the resolution of
disputes arising under the Act. See 2 U.S.C. § 1301-1438. The
11 laws made applicable to the legislative branch are: (1) the
Fair Labors Standards Act of 1938; (2) Title VII of the Civil
Rights Act of 1964; (3) the Americans with Disabilities Act of
1990; (4) the Age Discrimination in Employment Act of 1967; (5)
the Family and Medical Leave Act of 1993; (6) the Occupational
Safety and Health Act of 1970; (7) Chapter 71 (relating to
Federal service labor-management relations) of Title 5; (8) the
Employee Polygraph Protection Act of 1988; (9) the Worker
Adjustment and Retraining Notification Act, (10) the
Rehabilitation Act of 1973; and (11) Chapter 43 (relating to
veterans' employment and reemployment) of Title 38.
2 U.S.C. § 1302(a). Significantly, however, the CAA does not provide any
remedy for the violation of a congressional employee's
Neither the text of the CAA nor its legislative history
expressly provides that the remedial scheme established by the
Act is exclusive. However, § 225(d)(1) of the CAA does provide
that the Act establishes the exclusive procedure for the
vindication of "the rights and protections afforded by this
[Act]." 2 U.S.C. § 1361(d)(1). Section 413 further provides that
"[t]he authorization to bring judicial proceedings under [the
Act] shall not constitute a waiver of sovereign immunity for any
other purpose. . . ." 2 U.S.C. § 1413. In addition, § 408(b)
provides that the defendant in any action arising under the Act
"shall be the employing office alleged to have committed the
violation, or in which the violation is alleged to have
occurred." 2 U.S.C. § 1408(b). Meeks argues that these
provisions indicate that it was Congress's intent that the CAA
establish the exclusive remedial scheme for congressional
employment claims. (Def.'s Mem. at 8-10; Def.'s Reply Mem. at
The Supreme Court developed the "special factors" doctrine of
Bivens in several cases predating the enactment of the CAA. In
Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846
(1979), the plaintiff, former deputy administrative assistant to
a Member of Congress, sought money damages under Bivens for
the termination of her employment on the basis of sex in
violation of her rights under the Due Process Clause of the
Fifth Amendment. Id. at 231, 99 S.Ct. 2264. The defendant
argued, inter alia, that the plaintiffs claim was precluded by
§ 717 of Title VII of the Civil Rights Act of 1964, which
protected some federal employees from discrimination but not
those such as the plaintiff who were not in the competitive
service. Id. at 247, 99 S.Ct. 2264. The Court rejected the
defendant's argument, holding that "[t]here is no evidence . . .
that Congress meant § 717 to foreclose alternative remedies
available to those not covered by the statute," and concluded
that the plaintiff did have a cause of action under the Fifth
Amendment. Id. at 247-48, 99 S.Ct. 2264.
By contrast, in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404,
76 L.Ed.2d 648 (1983), the Court refused to create a Bivens
remedy for a First Amendment violation "aris[ing] out of an
employment relationship that is governed by comprehensive
procedural and substantive provisions giving meaningful remedies
against the United States." Id. at 368, 103 S.Ct. 2404, The
plaintiff, an employee of the National Aeronautics and Space
was demoted, allegedly in violation of the First Amendment, for
making public statements critical of the agency. Id. at
369-70, 103 S.Ct. 2404. He was reinstated through the
administrative system established by Congress, with retroactive
seniority and full backpay, but was not permitted to recover for
any loss due to emotional distress or mental anguish, or for
attorneys' fees. Id. at 371, 372, nn. 89, 103 S.Ct. 2404.
Acknowledging that the "existing remedies do not provide
complete relief for the plaintiff," id. at 388, 103 S.Ct.
2404, the Court refused to create a Bivens remedy on the
ground that Congress's careful attention to the policy questions
in the case — including its creation of "meaningful remedies"
for agency employees whose constitutional rights have been
violated — constituted a "special factor counseling hesitation,"
id. at 380-88, 91 S.Ct. 1999; id. at 390, 91 S.Ct. 1999
(Marshall, J., concurring).
In Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101
L.Ed.2d 370 (1988), the Court again refused to create a Bivens
remedy in light of a comprehensive statutory scheme providing
the plaintiffs with meaningful remedies for the harm resulting
from the alleged violation of their constitutional rights. Id.
at 428-29, 91 S.Ct. 1999. The plaintiffs, disability claimants
under the Social Security Act, sought consequential damages
under Bivens for the termination of their benefits in
violation of the Due Process Clause of the Fifth Amendment.
Id. at 418-19, 91 S.Ct. 1999. The Court began its discussion
by observing that "[t]he absence of statutory relief for a
constitutional violation . . . does not by any means necessarily
imply that courts should award money damages against the
officers responsible for the violation." Id. at 421-22, 91
S.Ct. 1999 (citing Chappell v. Wallace, 462 U.S. 296, 103
S.Ct. 2362, 76 L.Ed.2d 586 (1983) (refusing to create Bivens
action for enlisted military personnel who alleged they had been
injured by unconstitutional actions of their superior officers
and who had no remedy against Government itself)). The Court
then observed that the plaintiffs could (and did) recover the
wrongfully withheld benefits under the Social Security Act;
their claim under Bivens was only for emotional distress and
other hardships suffered as a result of the ...