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 delay in their
receipt of the benefits. Id. at 425-26, 91 S.Ct. 1999. Relying
heavily on its decision in Bush, the Court concluded that
"Congress . . . has addressed the problems created by [the]
wrongful termination of disability benefits[,] . . . and we so
no legal basis that would allow us to revise its decision."
Id. at 429, 103 S.Ct. 2404.
In United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98
L.Ed.2d 830 (1988), the Court applied similar principles in
holding that a federal employee's claim under the Back Pay Act
was precluded by the Civil Service Reform Act of 1978 ("CSRA"),
Pub.L. No. 95-454, 92 Stat. 1111 et seq. (codified as amended
in scattered sections of 5 U.S.C.). Fausto, 484 U.S. at 455,
108 S.Ct. 668. The plaintiff, a former employee of the
Department of the Interior Fish and Wildlife Service, sought to
recover backpay allegedly owed as a result of an unlawful
suspension. Id. at 440, 108 S.Ct. 668. Because the plaintiff
qualified as a member of the "excepted service" under the CSRA,
he did not have the right under that statute to administrative
or judicial review of the agency's denial of his claim. Id. at
443, 108 S.Ct. 668. The Court found that "[a] leading purpose of
the CSRA was to replace the haphazard arrangements for
administrative and judicial review of personnel action . . .
with an integrated scheme . . . designed to balance the
legitimate interests of various categories of federal employees
with the needs of
sound and efficient administration." Id. at 444-45, 108 S.Ct.
668. It concluded:
The CSRA established a comprehensive system for
reviewing personnel action taken against federal
employees. Its deliberate exclusion of employees in
[plaintiff's] service category from the provisions
establishing administrative and judicial review for
personnel action of the sort at issue here prevents
respondent from seeking review in the Claims Court
under the Back Pay Act.
Id. at 455, 108 S.Ct. 668.
On the basis of Bush, Chilicky and Fausto, the courts of
appeals have uniformly rejected the efforts of federal employees
who lack any remedy under the CSRA to bring a Bivens action.
See, e.g., Zimbelman v. Savage, 228 F.3d 367, 371 (4th Cir.
2000) (plaintiffs, as employees of nonappropriated fund
instrumentality, were not covered by remedial scheme of CSRA);
Blankenship v. McDonald, 176 F.3d 1192, 1195 (9th Cir. 1999)
(plaintiff, as member of "excepted service" under CSRA, lacked
any remedy under statute for adverse personnel action);
Lombardi v. Small Bus. Admin., 889 F.2d 959, 961 (10th Cir.
1989) (same); Lee v. Hughes, 145 F.3d 1272, 1275-76 (11th Cir.
1998) (same); see also Spagnola v. Mathis, 859 F.2d 223,
228-29 (D.C.Cir. 1988) (en banc) (plaintiffs, as nonincumbent
employees challenging denial of their promotions, were entitled
to only limited administrative remedies under CSRA), cf.
Mitchum v. Hurt, 73 F.3d 30, 35 (3d Cir. 1995) (plaintiffs'
claim for injunctive and declaratory relief for alleged
constitutional violations was not precluded by CSRA). In
Blankenship, a federal court reporter brought a Bivens
action for the alleged violation of her rights under the First
and Fifth Amendments. Blankenship, 176 F.3d at 1194-95. In
affirming dismissal of the action, the Ninth Circuit observed:
Because congressional action has not been inadvertent
in providing certain remedies and denying others to
judicial employees, we hold that the CSRA precludes a
Bivens remedy in this case. Congress has given
judicial employees certain employment benefits and
remedies, such as back pay, severance pay, family and
medical leave, and health and retirement benefits.
Congress has withheld other benefits and remedies,
such as review of adverse personnel decisions. This
demonstrates that the lack of more complete remedies
was not inadvertent.
Id. at 1195 (internal citations omitted).
Here, the comprehensive statutory scheme established by
Congress to govern the rights of congressional employees clearly
precludes Payne's Bivens claim for unconstitutional discharge.
As an employee of a Member of Congress, Payne qualifies as an
"employee" and as a member of the "excepted service" under the
CSRA. See 5 U.S.C. § 2103(a), 2105(a)(1)(B). The CSRA grants
congressional employees certain employment benefits, including
retirement and health benefits and automatic life insurance
coverage. See 5 U.S.C. chs. 83, 87, 89. The CAA, enacted by
Congress in 1995, extends additional benefits and protections to
congressional employees by making 11 employment laws applicable
to the legislative branch, and by establishing administrative
and judicial procedures for the resolution of disputes arising
under the Act. See 2 U.S.C. § 1301-1438. Notably, the CAA
entitles congressional employees to review of adverse personnel
actions, a remedy previously available under the CSRA only to
agency employees. See 2 U.S.C. § 1311, 1401-1416;
5 U.S.C. § 2301, 2302. However, unlike the CSRA, which entitles agency
employees to review of adverse personnel actions taken in
violation of their constitutional rights, see
5 U.S.C. § 2301(b)(2), 2302(b)(11), the
CAA grants no analogous remedy to congressional employees.
Because Congress enacted the CAA against the background of the
CSRA, its withholding from congressional employees of a remedy
for constitutional violations cannot have been inadvertent.
Congress's enactment of the CAA therefore only confirms the
conclusion reached by several courts of appeals that federal
employees are precluded from bringing Bivens actions for
work-related grievances, even where the statutory scheme affords
them no alternative remedy. See, e.g., Blankenship, 176 F.3d
One additional consideration counsels against the creation of
a Bivens remedy in this case. As the Supreme Court has
observed, the structure of the statutory scheme governing the
rights of federal employees would be turned upside down if
employees lacking a remedy under the scheme were left free to
pursue other avenues of relief. Fausto, 484 U.S. at 449, 108
S.Ct. 668. As the preceding discussion makes clear, the scheme
established by the CSRA and the CAA creates a preferred position
for certain categories of employees (e.g., agency employees),
entitling them to specified, but limited, administrative and
judicial remedies that are not available to other, disfavored
categories of employees (e.g., congressional employees). This
preference would be inverted, and congressional intent
frustrated, if employees in the disfavored categories were
permitted to bring Bivens actions unconstrained by the
substantive and procedural limitations imposed by the statutory
scheme. See id.
II. Failure to State a Claim
Meeks also contends that Payne fails to state a claim for a
violation of her rights under the First Amendment because her
lawsuit against Flowers Physical Therapy and Neville Flowers
does not constitute speech on a matter of public concern.
(Def.'s Mem. at 12-14; Def.'s Reply Mem. at 11-14.) The Supreme
Court has held that the First Amendment "protects government
employees from termination because of their speech on matters of
public concern." Board of County Comm'rs v. Umbehr,
518 U.S. 668, 675, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996) (§ 1983 action
against state officials). However, where the primary aim of an
employee's speech is to seek redress for a personal wrong, the
speech is not protected by the First Amendment merely because
its subject matter "may affect the public." Tiltti v. Weise,
155 F.3d 596, 603 (2d Cir. 1998).
Two Second Circuit cases are particularly apposite here. In
Ezekwo v. New York City Health & Hospitals Corp., 940 F.2d 775
(2d Cir. 1991), the Second Circuit held that a physician's
complaints about various aspects of her hospital residency
program were not, for First Amendment purposes, matters of
public concern. Id. at 781. Although the quality of a
physician-training program may affect the public, the Second
Circuit concluded that the plaintiff "was not on a mission to
protect the public welfare. Rather, her primary aim was to
protect her own reputation and development as a doctor." Id.
Similarly, in Saulpaugh v. Monroe Community Hospital,
4 F.3d 134 (2d Cir. 1993), the Second Circuit held that a public
hospital employee's complaints about alleged sexual harassment
by her supervisor were not protected by the First Amendment.
Id. at 143. The Second Circuit observed:
In the instant case there is no indication that the
plaintiff wanted to debate issues of sex
discrimination, that her suit sought relief against
pervasive or systemic misconduct by a public agency
or public officials, or that her suit was part of an
overall effort to correct allegedly
unlawful practices or to bring them to public
Id. (internal citations and quotation marks omitted).
Here, Payne alleges that her employment was terminated because
she sued Flowers Physical Therapy and Neville Flowers for
injuries she sustained as a result of an alleged sexual assault.
(According to the newspaper article in the Jamaica Times, a
therapist at the facility attempted to insert his finger into
Payne's vagina while massaging her leg.) Payne argues that her
lawsuit implicates the First Amendment because it "raises the
public's awareness of grave health, safety, and criminal
issues." (Pl.'s Mem. at 8.) However, Payne's lawsuit focuses on
the misconduct of one employee of Flowers Physical Therapy, and
her primary aim is to obtain legal redress for the injury she
suffered. She neither seeks relief against "pervasive or
systemic misconduct by a public agency or public officials," nor
is her lawsuit "part of an overall effort to correct allegedly
unlawful practices or to bring them to public attention,"
Saulpaugh, 4 F.3d at 143. Under these circumstances, Payne's
complaint fails to state a Bivens cause of action for the
violation of her rights under the First Amendment.
I grant Meeks's motion to dismiss Count II of the amended
complaint for lack of subject-matter jurisdiction and for
failure to state a claim.
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