Opinion
Civil Action NO. 02-7756
January 28, 2003
MEMORANDUM AND ORDER
This matter is before the court on the government's motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1). According to the complaint pro se plaintiff, Nathaniel Henderson ("Henderson") was employed by the Department of Veterans Affairs Medical Center ("VAMC") at Philadelphia. In April 2002 he was notified by VAMC that he was subject to dismissal. On May 29, 2002 he was removed from federal service. The termination followed what is known as a "last chance settlement agreement". Briscoe v. Dep't of Veterans Affairs, 55 F.3d 1571, 1573 (Fed. Cir. 1995).
A "last chance agreement" evidently follows an agency's final decision to terminate an employee; the "agreement" is that execution of the termination decision is suspended and the employee is placed on a form of probation. Violation of the terms of the agreement results in the separation of the employee without further proceeding at the agency level. Typically an employee waives his appeal rights as an inducement to the agency to enter into the agreement. Buchanan v. Dep't of Energy, 247 F.3d 1333, 1337-38 (Fed. Cir. 2001).
Henderson filed an appeal to the Merit Systems Protection Board ("MSPB") Northeast, at Philadelphia. The MSPB dismissed Henderson's appeal on December 27, 2002 because the appeal failed to raise a non-frivolous case that he did not breach the "last chance" settlement agreement. The MSPB's initial decision became final on November 1, 2002. Henderson was advised of his right to proceed to a final decision before the full Board.
Henderson did not present his case to the full MSBP, but filed this complaint on October 8, 2002. In his complaint Henderson alleges that he was fired from the VAMC in violation of various amendments to the Constitution.
The government has filed the present motion contending that the complaint should be dismissed for lack of subject matter jurisdiction.
The Civil Service Reform Act ("CSRA") Pub.L. No. 94-454, 92 Stat. 1111 (1979) provides the exclusive remedy for a discharged employee's grievances. See Bush v. Lucas, 462 U.S. 367, (1983); U.S. v. Fausto, 484 U.S. 439 (1988). In those cases the court refused to allow a federal employee a damage cause of action for alleged First Amendment violations arising out of an employment relationship on the grounds that Civil Service damages were available. The CSRA precludes any other theory of relief, including a Bivens claim against another federal employee, a state law tort claim against other employees or federal agencies, or any Constitutional claims against the government generally. Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996), cert. denied, 519 U.S. 1150 (1997); FDIC v. Meyer, 510 U.S. 471 (1994); Saul v. United States, 928 F.2d 829 (9th Cir. 1991).
Henderson has a right of redress under the CSRA but not in this court. The CSRA states that:
[e]xcept as provided in paragraph (2) of this subsection, a petition to review a final order or decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for review must be filed within 60 days after the date the petitioner received notice of the final order or decision of the Board.5 U.S.C. § 7703(b)(1) (West 2002).
The paragraph 2 referred to above confers jurisdiction on the district courts to review final decisions of the Merit Systems Protection Board, only when the petitioner has alleged discrimination under the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(c), under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a(c), or under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 216(b).
Henderson does not allege discrimination under Title VII or its companion statutes; his complaint is that he was terminated from federal employment without sufficient due process. Therefore, only the Court of Appeals for the Federal Circuit has jurisdiction to review his case. See 28 U.S.C. § 1295(a)(9); 5 U.S.C. § 7703(b)(1). In considering the present motion this court must accept the complaint's allegations as true. The government points out, that its motion makes no challenge to the allegations of the complaint. Rather the motion is predicated on Henderson's failure to assert that he has exhausted his administrative remedies pursuant to a discrimination claim. See Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997). Furthermore, the complaint does not plead any facts indicating that this court otherwise has jurisdiction of his claim. While we acknowledge that this court must construe a pro se plaintiff's complaint liberally, this complaint did not plead exhaustion of administrative remedies which is an essential element of the claim.
Because the Federal Circuit has exclusive jurisdiction in a non-discrimination federal employee case this court lacks subject matter jurisdiction over Henderson's complaint. Urban v. Henderson, No. 2:99-CV-04244-LCB, 2001 WL 44119, *7 (E.D.Pa. Apr. 5, 2001). "Even if the plaintiff had exhausted his administrative remedies, this court would not be the proper forum for his First Amendment claims because the CSRA establishes that the Court of Appeals for the Federal Circuit is the proper forum".
We therefore enter the following Order.
ORDER
AND NOW, this 28th day of January, 2003, after considering the defendant's motion to dismiss and plaintiff's response thereto, it is hereby ORDERED AND DECREED that the said motion is GRANTED. The above-captioned case is DISMISSED.