Opinion
01-CV-1609 Lead Case, 01-CV-1609 Member Case.
January 13, 2005
DON, JOHN ANN CAROLYN MOORE, Jordan, New York, Plaintiffs pro se.
GLENN T. SUDDABY, PAULA RYAN CONAN, AUSA, United States Attorney for the Northern District of New York, Syracuse, New York, Attorney for Respondent.
MEMORANDUM DECISION AND ORDER
BACKGROUND
Plaintiffs John and Carolyn Moore are the parents of their adult son, plaintiff Don Moore, a former employee of defendant United States Postal Service ("USPS"). He had worked at the Jordan Post Office from July 15, 1989 until March 10, 1995, the date he resigned from his work as an employee of the USPS. The record does not indicate that Don Moore ever instituted an EEO claim, a Merit Systems Protection Board ("MSPB") review, or any other USPS administrative action regarding his resignation from the USPS, and has not filed an administrative tort claim with the USPS on any other issue.
From July 1979 to March 2001, John and Carolyn Moore rented Post Office Box No. 395 at the Jordan Post Office in their names and Don Moore identified as an "authorized user" of Box 395. All three plaintiffs have received mail at their home address since 1997.
During the period 1996-1998, Don Moore wrote letters to USPS stating his disapproval of the USPS and responses he had received to his letters. In a letter to the USPS Deputy Inspector General dated December 8, 1998, Don Moore wrote that he planned to engage in "civil disobedience" at the Jordan Post Office. On the morning of March 9, 1999, Don Moore appeared briefly at the Jordan Post Office, stated that he would later return to be arrested. Upon his return that afternoon, he began playing a tape recording of what he claimed to be conversations between himself and USPO officials. At that point, the Postmaster and her assistant, defendant John Phelan, asked him to leave. When he refused to do so, the New York State Police were summoned and he was arrested for trespassing. On March 10, 1999, the Village of Jordan Justice Court issued an order protecting the Jordan Postmaster and all employees of the Village of Jordan Post office from Don Moore. This order was renewed on January 21, 2000 and May 10, 2000.
On March 14, 2000, Don Moore entered the Jordan Post Office, made a stamp purchase, and lingered in the customer service area. About ten minutes later, the Postmaster asked him if he had any further postal business to undertake. When he replied that he did not, he was asked to leave, but would not do so. He was then arrested again for trespassing by he New York State Police. He was convicted of the charge in the Village of Jordan Justice Court. The conviction was appealed to Onondaga County Court, and on November 1, 2000, that court set the conviction aside, and vacated the protection order due to insufficient evidence. On November 9, 2000, he entered the Jordan Post Office, announced the result of his appeal and stated that he would be back.
During the afternoon of December 6, 2000, he entered the Jordan Post Office and remained for approximately forty minutes. He did not carry out any postal business, but read aloud from some papers, including the decision of the appeal court, and asked permission to post a copy of the appeal decision on the Post Office community bulletin board. The Postmaster denied his request. On December 7, 2000, and January 3, 2001, he again returned to the Jordan Post Office, stated his disapproval with the USPS to all those present, and read aloud a copy of his letter protesting the denial of his request to post a copy of the appeal court's decision in his case on the Post Office community bulletin board.
Don Moore has used language in written and oral communications with USPS personnel which the USPS takes to be threatening. In January 1994, while still an USPS employee, Don Moore wrote a letter to the Postmaster General in which he stated "what do you recommend I do . . should I, 1) hold a gun to their head? 2) shoot them, or 3) try to get answers someplace else (like I did)" (Def.'s. Ex. A; ¶ 7 Amended Complaint). A December 8, 1998, letter to the USPS Deputy Inspector-General stated that "[e]verytime I hear of a Postal shooting and the comment that the person had previous mental problems I wonder what games the EPA and psychiatrist played to drive the person into psychosis. Unfortunately I'm not asking a rhetorical question this time." (Weyand-Rogers Declaration ¶ 19, and Ex. D). A letter dated December 31, 1998, was sent to a member of the USPS Inspector General's Office. The letter quoted from an article in the National Enquirer in which an unnamed person says, "I am sick and tired of this. You promised me a stop sign-where is my stop sign. Do we have to wait until someone is killed." (Weyand-Rogers Declaration ¶ and Ex. D) During a telephone call with defendant Phelan on December 18, 2001, Don Moore said "I am coming to the end of my peaceful displays." In correspondence to an USPS official dated January 15, 2001, Don Moore wrote:
". . . I do not mind bothering the Postmaster after she committed perjury or since I read some of the BS she has written . . . if [communication] results in no remedial action . . . Direct action and violence not infrequently replaced the more rational processes of the dialogue . . . violence serves then, in the eyes of some, as the only remaining means of communication . . . the USPS plays games and drives people into psychosis . . . the USPS should be grateful that I have remained peaceful for so long . . ."
(Def.'s Ex. N)
Troubled with the serious innuendos of Don Moore's various assertions, in February 2001, the USPS made several pieces of Don Moore's mailings available to a forensic psychiatrist for threat evaluation. (Def.'s Ex. — 2). After examining Don Moore's correspondence and work record, forensic psychiatrist A.M. Drukteinis, M.D., J.D., concluded in a lengthy report dated February 21, 2001, that "there is sufficient information to raise strong concern that his behavior should not be treated casually. It should not be assumed that he will not become violent." The report further recommended that Don Moore be legally prevented from entering the Jordan Post Office. (Id. p. 6).
On March 5, 2001, the USPS sent written notice to Don Moore that, effective immediately, he was forbidden to enter the Jordan, NY Post Office. The letter stated that Don Moore had ". . . repeatedly threatened to engage in acts of civil disobedience . . . loudly read from legal documents on postal premises . . . lingered at the Post Office for unreasonable amounts of time after conducting [his] business . . . refused to leave the premise when asked to do so . . . [and] been argumentative with the Postmaster and disrupted her from performing her duties . . ." The letter also stated that Mr. Moore's activities had ". . . interfered, inhibited and disturbed our employees while they were attempting to work. These activities have also caused concern and fear to our employees at the Postal Service." (Def's Ex. O).
As authorization for issuing the letter, the USPS cited Postal Operations Manual ("POM") § 1214.5, which prohibits "[d]isorderly conduct; loud and unusually noisy conduct; conduct that otherwise obstructs the usual use of entrances, foyers, corridors, offices, elevators, stairways, and parking lots; or conduct that otherwise tends to impede or disturb public employees while working or that impedes or disturbs the general public in transacting business on postal property." The letter also directed Don Moore to address any further efforts to communicate with the USPS to Postal Inspector Matt Puro, and informed Don Moore that USPS would consider future telephone calls or letters directed to any other Postal Service employees to be harassing behavior for which it would seek legal redress."(Id.) The Postal Service decision to bar Don Moore from entering the Jordan Post Office was not appealable and represented the Postal Service's final decision in that regard. (Def.s' Ex. S).
In a separate letter, also dated March 5, 2001, the USPS advised plaintiffs John and Carolyn Moore that their post office box rental agreement was terminated, and returned a previously paid fourteen dollar rental fee to them. (Def.'s Ex. P). The letter advised the Moores that the box termination occurred due to ". . . the inappropriate conduct of your son, Dan Moore, authorized user of the box, on postal premises. Mr. Don Moore has engaged in conduct which has been menacing, abusive and disruptive to Postal Services employees." (Id.). § D910.8.2 of the USPS Domestic Mail Manual (DMM), permits the termination of a post office box if a "box customer or its representative . . . conducts himself or herself in a violent threatening, or otherwise abusive manner on postal premises. . . ." The letter further stated that the USPS could be petitioned for review of the box termination decision, and the box termination could be stayed pending the conclusion of the review process. (Id.).
A petition for review was filed and, in an Initial Decision dated July 12, 2001, the USPS reversed the box termination, however, upon USPS's further appeal, a Postal Service Decision upheld the box termination holding that Don Moore had "conducted himself in a violent, threatening, or otherwise abusive manner," and that Don Moore was the "the box customer's representative" within the meaning of DMM § 910.8.2. (Def.'s Ex. U)
Defendant John Phelan is employed by USPS as a Manager of Post Office Operations. His responsibilities include oversight and supervision of all the post offices situated within the CNY-West Section of the Albany Postal District, including the Jordan Post Office and its Postmaster. (Phelan Declaration. ¶¶ 1-2). He was in the Jordan Post Office on March 9, 1999, when Don Moore was first arrested there, and signed the December 15, 2000, USPS letter to Don Moore confirming the denial of his request to use the Post Office community bulletin board. Phelan also signed the two USPS letters of March 25, 2001, the letter advising Don Moore that he was forbidden to enter the Jordan, NY Post Office, and the box termination letter to John and Carolyn Moore.
Plaintiffs, proceeding pro se, have commenced a Bivins type federal constitutional tort action alleging that defendants USPS and John Phelan, Manager of Post Office Operations, violated their First Amendment free speech and petition rights, and Fifth Amendment due process rights by closing their post office box in the Jordan, NY Post Office, indefinitely prohibiting plaintiff Don Moore from entering the premises of the Jordan, NY post office, and having Don Moore falsely arrested twice.Bivens-type suits are the federal counterpart of 42 U.S.C. § 1983. Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975).
The amended complaint also states that the court has jurisdiction over this action under 42 U.S.C. § 1983, but § 1983 only applies to actions taken under color of state law, District of Columbia v. Carter, 409 U.S. 418, 93 S. Ct. 602, 34 L. Ed.2d 61 (1973). Plaintiffs have not, and in fact cannot, allege any action by the USPS and/or John Phelan under color of state law. Therefore, plaintiffs' claims under 42 U.S.C. § 1983 must be dismissed under Federal Rule of Civil Procedure 12(b)(6).
Plaintiffs' seek declaratory relief, Don Moore's lost wages and restoration of his full health insurance, reopening of their post office box, recision of the order denying Don Moore entry into the Jordan Post Office, posting of Judge Aloi's order in the Jordan and Taft Road postal facilities as well as compensatory and punitive damage.
Currently before the court is defendants' motion pursuant Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss the complaint for lack of subject matter jurisdiction, and alternatively, pursuant to Rule 56, for summary judgment dismissing the complaint. Plaintiffs have entered opposition to this motion.
DISCUSSION
When a motion to dismiss is based on lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the court should consider this motion first because, if it must dismiss the complaint for lack of subject matter jurisdiction, an alternative motion for summary judgment need not be addressed. Bartholomew v. Librandi, 737 F. Supp. 22 (E.D. Pa. 1990), aff'd, 919 F.2d 133 (3d Cir. 1990)
When a question concerning the district court's subject matter jurisdiction is raised either by the parties or by the court on its own motion pursuant to Fed.R.Civ.P. 12(b)(1), evidentiary matters relevant to the jurisdictional challenge presented by affidavit or otherwise may be considered by the court. Kamen v. ATT, 791 F.2d 1006, 1011 (2d Cir. 1986); Solow v. Stone, 994 F. Supp. 173, 178 (S.D.N.Y. 1998) (construing a motion regarding a court's subject matter jurisdiction as a motion to dismiss under Rule 12(b)(1)). Consideration of matters outside the pleadings does not convert the Rule 12(b)(1) motion to a motion for summary judgment under Fed.R.Civ.P. 56. Kamen, 791 F.2d at 1011 (noting that a motion that includes "evidentiary matters outside the pleadings is properly converted into a Rule 56 motion only when it is made under Rule 12(b)(6) for failure to state a claim"). Rule 56 is relevant, however, in guiding the court's analysis of evidence submitted outside the pleadings and in dealing with factual issues raised in the Rule 12(b)(1) motion. Exchange National Bank of Chicago v. Touche Ross Co., 544 F.2d 1126, 1130-31 (2d Cir. 1975) (citing Land v. Dollar, 330 U.S. 731, 734 n. 4, 67 S. Ct. 1009, 1011 n. 4, 91 L. Ed. 1209 (1947)). In deciding a 12(b)(1) motion, "a court must accept all well pleaded facts as true and construe the complaint in the light most favorable to the plaintiff." Solow, 994 F. Supp. at 178. Moreover, similar to a Rule 56 motion, "a party opposing a Rule 12(b)(1) motion cannot rest on the mere assertion that factual issues may exist."Exchange National Bank, 544 F. Supp. at 1131.
When ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1), the court "is not bound to accept as true the allegations of the complaint which tend to establish jurisdiction where a party properly raises a factual question concerning the jurisdiction of the . . . court to proceed with the action." Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979). Instead, the court will "look beyond the jurisdictional allegations in the complaint and view whatever evidence has been submitted on the issue in determining whether in fact subject matter jurisdiction exists." Id.
When a motion to dismiss is based on a lack of subject matter jurisdiction pursuant to Rule 12(b)(1), as well as other Rule 56 defenses, the court should consider the Rule 12(b)(1) challenge first. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L. Ed. 939 (1946). In most circumstances, it makes little practical difference whether the district court correctly labels its dismissal of an action as one for lack of subject matter jurisdiction under Rule 12(b)(1) or for failure to state a claim under Rule 12(b)(6). However, a dismissal pursuant to Rule 12(b)(1) is not on the merits, it can have no res judicata effect. Exchange National Bank v. Touche Ross Co., 544 F.2d 1126, 1130-31 (2d Cir. 1976), modified on other grounds, 726 F.2d 930 (2d Cir. 1984), cert. denied, 469 U.S. 884, 105 S.Ct. 253, 83 L. Ed.2d 190 (1984).
Pursuant to Rule 56 of the Fed.R.Civ.P., judgment may be entered in favor of the moving party if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed.2d 202 (1986). On a motion for summary judgment, all facts must be construed in favor of the non-moving party. Id. Butry v. General Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995).
Because plaintiffs appear pro se, the court will give their pleadings a liberal construction, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L. Ed.2d 652 (1972), and "interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions, unsupported by evidence, are insufficient to overcome a well-founded motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). Faced with this evidence on a motion for summary judgment, plaintiff must do more than rest on the allegations in his complaint; he must come forward with "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson v. Liberty Lobby, 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L. Ed.2d 202 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("a party may not rest on the bare allegations of a pleading to defeat a properly submitted motion for summary judgment").
The court notes that defendants' motion in this case adequately put plaintiffs on notice of the requirements of Rules 12(b)(1) and 56, and the consequences of complying with those requirements. Irby v. New York City Trans. Auth., 262 F.3d 412 (2d Cir. 2001).
A First Amendment claim that the government is impermissibly restricting a speaker's access to government property is controlled by the now-familiar tripartite forum analysis.General Media Communications, Inc. v. Cohen, 131 F.3d 273, 278-79 (2d Cir. 1997). Under this analysis, government property falls into one of three classifications: (1) traditional public fora, consisting of "`places which by long tradition or by government fiat have been devoted to assembly and debate,'" id. at 278 (quoting Cornelius v. NAACP Legal Defense Education Fund, 473 U.S. 788, 802, 105 S.Ct. 3439, 3448-49, 87 L. Ed.2d 567 (1985)); (2) designated public fora, places "`not traditionally open to assembly and debate' but `which the State has opened for use by the public as a place for expressive activity,'" id. (quoting Cornelius, 473 U.S. at 802, 105 S.Ct. at 3448-49, and Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983)); and (3) nonpublic fora, consisting of "all remaining public property." Id. at 278. "The extent to which the Government can control access depends on the nature of the relevant forum." United States v. Kokinda, 497 U.S. 720, 726, 110 S.Ct. 3115, 3119, 111 L. Ed.2d 571 (1990) (plurality opinion).
Governmental intent is the "touchstone" for determining into which category a particular property falls. General Media, 131 F.3d at 278-79. Generally speaking, "when the state reserves property for its `specific official uses,' it remains nonpublic in character." Id. (quoting Capitol Square, 515 U.S. at 761, 115 S.Ct. at 2446 (1995)). In addition, "dedication of property to a commercial enterprise is `inconsistent with an intent to [create] a public forum.'" Id. at 278-79 (quoting Cornelius, 473 U.S. at 804, 105 S.Ct. at 3450).
There is little question that the Postal Service is essentially a commercial enterprise — delivering mail and packages for its customers in return for payment. Kokinda, 497 U.S. at 732, 110 S.Ct. at 3122-23 ("Congress has directed the Service to become a self-sustaining service industry. . . ."). Its facilities are, in the main, reserved for the specific purpose of "accomplish[ing] the most efficient and effective postal delivery system." Id.; 39 U.S.C. § 403(b)(3) (responsibility of the Postal Service is to maintain post offices "of such character" that customers will have "ready access to essential postal services"); 39 U.S.C. § 101(g) (Postal Service policy regarding new postal facilities must emphasize, inter alia, "a maximum degree of convenience for efficient postal services"). The Postal Service intent with regards to its facilities is to accomplish no other purpose than effective delivery of the mails.
Moreover, in Longo v. United States Postal Service, 983 F.2d 9 (2d Cir. 1992), the Second Circuit held that a walkway in the interior of a post office in Torrington, Connecticut was a nonpublic forum. Expressly adopting the analysis of the plurality opinion in Kokinda, the Longo court held that because the walkway was used "solely for the purpose of assisting patrons of the post office to get from the parking lot to the front door of the post office," it was therefore a nonpublic forum. Id. at 11. Although the Longo holding involved only a particular post office, if a walkway whose sole purpose is to allow access to the post office is a nonpublic forum, it follows virtually a fortiori that the post offices themselves are nonpublic fora. See alsoUnited States v. Belsky, 799 F.2d 1485, 1489 (11th Cir. 1986) (ingress and egress walkways to the post office are a nonpublic forum); United States v. Bjerke, 796 F.2d 643 (3d Cir. 1986) (same).
Forum analysis turns on the access which the government provides to the public for expressive activity. Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449 (government creates public forum "only by intentionally opening a nontraditional forum for public discourse"). The fact that the government is speaking does not turn an otherwise nonpublic forum into a public one. See, Greer v. Spock, 424 U.S. 828, 838 n. 10, 96 S.Ct. 1211, 1217 n. 10, 47 L.Ed.2d 505 (1976); United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 130 n. 6, 101 S.Ct. 2676, 2685 n. 6, 69 L. Ed.2d 517 (1981) (rejecting contention that "simply because an instrumentality is used for the communication of ideas or information it thereby becomes a public forum"); cf. Rust v. Sullivan, 500 U.S. 173, 194, 111 S.Ct. 1759, 1773, 114 L. Ed.2d 233 (1991) (government's choice to promote one viewpoint does not require it to fund opposing viewpoints). This is consonant with the principle that in a nonpublic forum, the state's actions are "most analogous to that of a private owner." Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991). If the government's speech on its own property by itself turned that property into a public forum, virtually all government facilities would become public fora open for a wide range of expressive activity. The First Amendment does not require this. See International Society for Krishna Consciousness v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 2705, 120 L.Ed.2d 541 (1992) ("[I]t is also well settled that the government need not permit all forms of speech on property that it owns and controls."); Lehman v. City of Shaker Heights, 418 U.S. 298, 304, 94 S.Ct. 2714, 2718, 41 L.Ed.2d 770 (1974) (plurality opinion) ("Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require.")
The Court again notes that the facial nature of this challenge does not require this court to find that all Postal Service facilities are necessarily nonpublic fora. There may very well be, for example, individual post offices in this nation which have long been used for public debate so as to become traditional public fora, or that the Postal Service has devoted some areas to some form of public debate so as to turn them into designated or limited public fora. However, the court does reject any contentions that all post offices are necessarily public fora;Longo, and the principles of forum analysis, foreclose such a possibility. The court further finds that the interior of the Jordan, NY Post Office is a non-public forum with respect to which reasonable restrictions on speech may be imposed.
In nonpublic fora, the government has wide latitude in regulation of speech, it may even be content-based as long as it is "reasonable" and "not an effort to suppress the speaker's activity due to disagreement with the speaker's view." General Media, 131 F.3d at 279. Although, a regulation need not be the most reasonable restriction, Lee, 505 U.S. at 683,112 S.Ct. at 2705-06, a regulation is reasonable "when it is consistent with the [government's] legitimate interest in preserv[ing] the property . . . for the use to which it is lawfully dedicated."Lee, 505 U.S. at 688, 112 S.Ct. 2701 (O'Connor, J., concurring).
Each of the Postal Service decisions disputed by the plaintiffs in the instant case, were based on the Postal Service's decision that Don Moore had been behaving in manners which transgressed Postal Service regulations. These regulations prohibit individuals from obstructing post office entrances, disturbing postal employees in the performance of their duties, or impeding the public in the transaction of postal business, and reflect the government's interest in preventing any disruption of post office business. The USPS determined that Don Moore's conduct violated the following UPSC regulations:
39 C.F.R. § 232(e)
(e) Disturbances. Disorderly conduct, or conduct which creates loud and unusual noise, or which obstructs the usual use of entrances, foyers, corridors, offices, elevators, stairways, and parking lots, or which otherwise tends to impede or disturb the public employees in the performance of their duties, or which otherwise impedes or disturbs the general public in transacting business or obtaining the services provided on property, is prohibited.
39 C.F.R. § 232(h)(3)
(3) Leafleting, distributing literature, picketing, and demonstrating by members of the public are prohibited in lobbies and other interior areas of postal buildings open to the public. Public assembly and public address, except when conducted or sponsored by the Postal Service, are also prohibited in lobbies and other interior areas of postal building open to the public.
Over a protracted period Don Moore had sent various letters containing threats against postal employees (Weyland-Roger Declaration, Phelan Declaration, Exhibits A, D, E and N). He further engaged in harassing, scurrilous and threatening behavior while in the Jordan Post Office building and was arrested there twice, when he did not comply with the request of Manager of Post Office Operations Phelan and Postmaster Weyand-Rogers to stop his disruptive behavior and leave the premises. This continuing course of conduct clearly violated the above postal regulations, which, under the circumstances were reasonable, and not invoked to inhibit Don Moore's activities because the USPS did not agree with his contentions.
Don Moore's allegations that not allowing him to post a copy of a state court opinion concerning the reversal of trespass conviction on the Post Office public bulletin board also violated his First Amendment rights, is unavailing.
39 C.F.R § 232.1(o) grants local officials discretion to make case-by-case judgments concerning the appropriateness of displaying community notices and other materials of public interest on postal bulletin boards. This regulation contains language insuring the authority of postmasters to allow the placement in post offices of bulletin boards for the display of public notices and announcements. Thus, both 39 C.F.R 232.1(h)(1)(ii) and 232.1(o)(1) contain language excepting from their coverage, posting notices on bulletin boards as authorized in 39 C.F.R. § 243.2(a).
Plaintiffs' false arrest claims:
The Postal Service has the general power to sue and be sued in its official name. 39 U.S.C. § 401(a)(1). § 409(c) of Title 39, however, provides that the provisions of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., "shall apply to tort claims arising out of the activities of the postal service." § 401(a)(1) has been read as a waiver of sovereign immunity which is limited, however, by the FTCA.
The FTCA grants jurisdiction to the federal courts via a limited waiver of sovereign immunity. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 807-08, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). Under the Act, the United States will be liable for acts or omissions of its agents that are tortuous under the law of the place where the act or omission occurred. 28 U.S.C. §§ 1346(b), 2674; Norton v. United States, 581 F.2d 390, 394 (4th Cir. 1978). However, a plaintiff is not permitted to bring a suit against the United States for damages unless he shall have first presented the claim to the appropriate federal agency. 28 U.S.C. § 2675(a). Koehler v. Cortland Memorial Hospital, 65 F. Supp.2d 103, 105 (N.D.N.Y 1999). Plaintiffs did not meet this strictly construed statutory prerequisite to bringing suit, (Declaration Diane Taylor, USPS paralegal) therefore, the false arrest claims are dismissed. Don Moore's employment claims:
In this lawsuit, plaintiff Don Moore has asserted that he is entitled to payment for seven years lost wages and restoration of full health insurance from USPS. These claims appear to be made for the first time in this action without any prior timely claims being made to the Merit System Protection Board ("MSPB") or the Equal Employment Opportunity Commission ("EEOC").
The Civil Service Reform Act of 1978 ("CSRA") comprehensively overhauled the civil service system, Lindahl v. OPM, 470 U.S. 768, 773, 105 S.Ct. 1620, 1624, 84 L. Ed.2d 674 (1985), creating an elaborate "new framework for evaluating adverse personnel actions against [federal employees], id., at 774, 105 S.Ct., at 1624. It prescribes in great detail the protections and remedies applicable to such action, including the availability of administrative and judicial review. A leading purpose of the CSRA was to replace the haphazard arrangements for administrative and judicial review of personnel action, part of the "outdated patchwork of statutes and rules built up over almost a century" that was the civil service system, S. Rep. No. 95-969, p. 3 (1978), U.S. Code, Congressional Administrative News 1978, p. 2723.
Congress also created an elaborate remedial framework for aggrieved Postal workers. "Chapters 10 and 12 of the Postal Reorganization Act (PRA), 39 U.S.C. §§ 1001- 1011, 1201-1209, set out a comprehensive scheme governing employment relations within the Postal Service." American Postal Workers Union v. United States Postal Service, 940 F.2d 704, 708 (D.C. Cir. 1991). This statute sets forth the right to collectively bargain regarding the terms of employment for bargaining unit employees like Don Moore when he worked for the USPS. 39 U.S.C. § 1202 et seq.
The CSRA and PRA are the sole remedial schemes and provide the exclusive statutory avenues by which postal employees may dispute adverse personnel actions. Berrios v. Department of the Army, 884 F.2d 28, 30-32 (1st Cir. 1989). Moreover, the fact that the CSRA or other legislative curative schemes may provide a specific employee with only limited, or no relief at all, does not preempt the exclusivity requirements of the statute. United States v. Fausto, 484 U.S. 439, 443, 108 S. Ct. 668, 98 L. Ed.2d 830 (1988).
The declaration of Daniel J. Lilly, employed as Manager, Labor Relations, Albany District, by the United States Postal Service, states the a search of the Labor Relations files does not show that Don Moore has not filed an appeal to the MSPB, or that any claim is pending against the Postal Service regarding the employment claims he makes in the instant case. Nor does the record disclose that Don Moore has filed or pursued any Title VII related claims against the USPS through the Equal Employment Opportunity Commission. Without having filed and pursued such claims to their administrative conclusions with these two agencies, Don Moore is precluded by statute from seeking their further review in court proceedings. The employment claims will be dismissed.
Appeal of P.O. Box termination and no entry order:
Plaintiffs contend that the order closing their post ofice Box and denying Don Moore post office entry and its approval by the USPS's Administrative Law Judge, constituted censorship and lack of due process.
A court reviewing an administrative decision will consider whether it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law standard." Administrative Procedures Act 5 U.S.C § 706. The arbitrary and capricious standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Normally, an administrative decision would be arbitrary and capricious if entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; the court may not supply a reasoned basis for the agency's action that the agency itself has not given. A decision of less than ideal clarity, however, will be upheld if the agency's path may reasonably be discerned. Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L. Ed.2d 443 (1983); Henley v. FDA, 77 F.3d 616, 620 (2d Cir. 1996).
In the final administrative decision approving the post office box closing no entry order, the USPS Administrative Law Judge stated that the order in question was issued by the Post Office Operations Manager (John Phelan) ("Manager"), and it advised Don Moore that it was "based upon [his] conduct on the premises which impedesand disturbs Postal Service employees while they are working." In support of the order, the Manager specifically listed Don Moore's repeated threats to engage in acts of civil disobedience, his actions loudly reading from legal documents on postal premises, lingering at the Post Office for unreasonable periods of time after conducting business, refusing to leave when asked to do so and being argumentative with the Post Master and disrupting her work. In a separate Determination the Manager found that the conduct of Petitioners' son on postal premises violated Domestic Mail Manual D910.8.2.
The Administrative Law Judge found that the only issue to be determined in the proceeding was whether service to a post office box has been denied or terminated in accordance with postal regulations. Therefore, there was no need to address the legality of the order prohibiting Petitioners' son from entering the Jordan, NY Post Office or Petitioner's other argument that went beyond the scope of the post office box proceeding. The decision found that:
The applicable regulation, Domestic Mail Manual ("DMM"), § D910.8.2. permits termination of post office box service for violent, threatening, or otherwise abusive conduct of a box customer or the customer's representative. Since Petitioners' son (Don Moore) is an authorized user of Petitioners' post office box and has a right to receive and pick up mail from that box, he is Petitioners' representative within the meaning of DMM § D910.8.2. Further, the evidence establishes that Petitioner's son has conducted himself in a violent, threatening or otherwise abusive manner and that he remains a threat to continue to conduct himself in such a manner despite the administrative ban. Under such circumstances, it was proper for the Manager to terminate Petitioners' post office box service.
The Administrative Law Judge, here, examined the relevant evidence, ascertained that Don Moore's conduct was abusive and reasonably decided that the post office box was terminated in accordance with Postal Service regulations. The court additionally concludes that the decision did not violate 5 U.S.C. § 506, was not in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, or failed to observe any procedure required by law.
The decision of the USPS Administrative Law Judge is thereby affirmed.
The Bivens claims:
A Bivens action is an action that allows an individual to sue a federal employee for damages for violating an individual's Constitutional rights.Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In order to maintain a Bivens action in federal court, a plaintiff must show that a federal employee violated one of the plaintiff's established Constitutional rights, Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir. 1992), that an individual's established Constitutional right was violated by the federal employee while the employee was acting under the color of federal law, Bivens, 403 U.S. at 388, 91 S.Ct. 1999, that the federal employee is being sued in his or her individual capacity,Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996);Daly-Murphy v. Winston, 837 F.2d 348 (9th Cir. 1987), and that there is no alternative way in which the plaintiff can seek relief for the violation of the plaintiff's Constitutional right,Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460, 101 L. Ed.2d 370 (1988). A Bivens claim cannot be asserted against the United States or an agency of the United States. F.D.I.C. v. Meyer, 510 U.S. 471, 484-86, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Bivens is not a mechanism for deterring the unconstitutional actions of a federal agency or the United States. F.D.I.C., 510 U.S. at 484-86, 114 S.Ct. 996. Rather, the purpose of a Bivens action is to deter individual federal employees from committing Constitutional torts while acting under the color of federal law. Correctional Services Corp. v. Malesko, 534 U.S. 61, 70-71, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001); F.D.I.C., 510 U.S. at 485, 114 S.Ct. 996.
Since a Bivens claim may not be asserted against the USPS, plaintiffs' must be alleging that defendant John Phelan violated their First and Fifth Amendment rights.
Defendant Phelan's involvement in the instant case consists of his being present when plaintiff Don Moore was first arrested for trespass in the Jordan Post Office, and signing the December 15, 2000, USPS letter to Don Moore denying his request to use the Jordan Post Office bulletin board and the March 5, 2001 USPS letters to Don Moore barring his entry to the Jordan Post Office, and advising John and Carolyn Moore of the termination of their use of a Jordan post office box.
On March 9, 1999, Don Moore began playing tape recording between himself and other postal employees in the Jordan, NY Post Office. After it was clear that he had no postal business to conduct, the Post Master asked him to turn off the tape recorder and leave that facility. (Declaration of Postmaster Barbara Weyand-Rogers). Defendant Phelan was there when these events took place and advised Don Moore to leave or the police would be called. (Declaration of John Phelan). Don Moore did not leave the post office, the police were called, he was arrested and convicted of trespassing. Neither the USPS or defendant Phelan were parties to the court case. The conviction was not appealed. (Amended Complaint ¶ 21). Since the positions held by the Postmaster and Defendant Phelan required them to prevent the disruption of post office business, they were obviously authorized to take the steps they did, and Don Moore's Constitutional rights were not violated by their actions.
Defendant Phelan's letter of December 15, 2000, denying Don Moore's request to post a trial opinion on the Jordan, NY Post Office public bulletin board was not constitutionally deficient.
Postmasters are not required to provide bulletin board space for non-governmental public use, but they are encouraged by postal policy to provide such space for the display of notices of public assemblies and judicial sales, official election notices issued by State or local government, and similar announcements so long as there is sufficient space for the effective display of scheduled postal materials and other Federal Government notices." 43 Fed.Reg. 38824-38825 (1978).
It is evident that the Postal Authorities had the right to decide that Don Moore's trial decision did not meet the content requirements for posting on the Post Office public bulletin board.
The Constitutional validity of the post office box closing and no entry letters of March 5, 2001, is reflected in this court's affirmance of the decision of the USPS Administrative Law Judge that the action taken resulted from Don Moore's unsatisfactory conduct, and was done in accordance with Postal Regulations.
Because no constitutional rights are at issue here, no cause of action has been established under Bivens.
Even assuming that the Amended Complaint properly alleged the deprivation of an actual constitutional right, Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L. Ed.2d 818 (1999), and that right was clearly established at the time of the alleged violation. Id., the case would turn on whether an objectively reasonable officer would have understood that his conduct was unlawful in the situation that he was facing. Id. The inquiry as to whether a right is clearly established must be done not on a wide general measure, but in view of the precise circumstances of the case. Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 150 L. Ed.2d 272 (2001). Prior to taking the actions he did, defendant Phelan, requested Don Moore to cease his disturbing conduct in the Jordan Post Office. When he did not, Phelan consulted with other Postal Officials and examined the pertinent Postal Service Rules and Regulations before taking the remedial procedures made necessary by Don Moore's behavior in the Post Office. The court finds that a "reasonable officer" facing the various difficult situations created by Don Moore would not consider that the law would not permit him to close the post office. box in the Jordan Post Office and prohibit Don Moore from entering the building, and, therefore would be entitled to qualified immunity from legal action.
Accordingly, the decision of the USPS Administrative Law Judge regarding the post office box closing and non-entry Order, is AFFIRMED, Defendants' motion for summary judgment is GRANTED, and the case is dismissed as to all defendants.