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Miankanze Bamba v. U.S. Department of Homeland Security and John

July 24, 2012


The opinion of the court was delivered by: Denise Cote, District Judge:


Plaintiff Miankanze Bamba ("Bamba") brings this action, pursuant to 42 U.S.C. § 1983, against defendants the United States Department of Homeland Security ("DHS" or "Agency"), John Ulianko ("Ulianko"), Dennis McGowan ("McGowan"), David Suna ("Suna"), Michael Mischler ("Mischler"), the State of Florida ("the State" or "Florida"), and Eric Abrahamsen ("Abrahamsen"). The defendants have moved to dismiss Bamba's complaint pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6), Fed. R. Civ. P. For the following reasons, the defendants' motions are granted.


At all relevant times, Bamba was a DHS employee, whose duties included the review and audit of Agency financial accounts and transactions. Bamba alleges that after he reported suspicious transactions to superiors, DHS officials conspired against him and sought to have his federal employment terminated. Bamba identifies the DHS officials who allegedly sought to have him removed as Ulianko, McGowan, Suna, and Mischler (the "Individual Federal Defendants").

According to Bamba, the mechanism the Individual Federal Defendants used to retaliate against him and arrange for his removal was a stale Florida arrest warrant issued against Bamba in 2007. In February 2010, one of the Individual Federal Defendants placed the warrant in a national crime database and Ulianko, Bamba's DHS superior, directed Bamba to travel to Tallahassee, Florida to appear and address the warrant. Bamba was arrested on April 9 after voluntarily presenting himself at the Sheriff's Office in Leon County, Florida.

Subsequently, the Individual Federal Defendants actively cooperated with Abrahamsen, a Florida Assistant State's Attorney, in the prosecution of Bamba's case. Abrahamsen "certified" Bamba's case to the local court's felony division, and caused a writ of capias to be issued to effectuate Bamba's arrest.*fn1 Abrahamsen also caused Bamba's mug shot to be posted online. The Individual Federal Defendants communicated frequently with Abrahamsen in connection with the charges against Bamba, and provided Abrahamsen documentary evidence pertinent to the case.

As a result of the Florida charges, Bamba was initially placed on administrative leave by DHS. On January 3, 2011, Ulianko suspended Bamba indefinitely from Agency employment. Abrahamsen subsequently traveled to New York to testify before a Merit Board in connection with Bamba's suspension. The Florida charges against Bamba were dismissed on July 26, however, by the Assistant State's Attorney who had replaced Abrahamsen on Bamba's case.


Bamba filed his original complaint in this action on October 21, 2011. Bamba's amended complaint was filed on March 16, 2012. Florida moved to dismiss Bamba's amended complaint on April 16. Abrahamsen and the federal defendants moved to dismiss the amended complaint on April 27. The motion became fully submitted on June 8.


I. Federal Defendants The federal defendants contend that Bamba's constitutional

claims against the DHS and Individual Federal Defendants in their official capacities are barred by sovereign immunity. Additionally, the federal defendants argue that the Civil Service Reform Act ("CSRA"), 5 C.F.R. § 1021.191, precludes any Bivens remedy against the Individual Federal Defendants in their individual capacities.

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In reviewing a motion to dismiss under Rule 12(b)(1), the court "must accept as true all material factual allegations in the complaint, but [is] not to draw inferences from the complaint favorable to plaintiffs." J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 110 (2d Cir. 2004)(citation omitted). A district court may consider evidence outside the pleadings when resolving a motion to dismiss for lack of subject matter jurisdiction. Id.

A. Constitutional Claims against DHS and the Individual Federal Defendants in their Official Capacities Bamba's constitutional claims against the DHS and the Claims brought against a federal agency or a federal agent in his or her official capacity are effectively claims against the United States and are barred unless immunity is waived. Kentucky v. Graham, 473 U.S. 159, 165-166 (1985); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994). "[A] suit against a federal employee in his official capacity is a suit against the government and Congress has not ...

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