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May 1, 2002


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 Flowers.

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 a 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 constitutional rights.

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 9-10.)

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.

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 ...

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