Opinion
Civil Action No. 03-63
March 27, 2003
MEMORANDUM
The complaint in this case states that plaintiff, Nathaniel Henderson, (Henderson), was employed by the Department of Veterans Affairs Medical Center (VAMC) at Philadelphia.
In May 2002 Henderson was fired. He claims that the termination was instigated by Lily Santos, the department chief who apparently was his superior. He alleges that Ms. Santos' conduct violated his "constitutional and civil rights."
Prior to filing the present action, on October 8, 2002, Henderson filed an almost identical complaint in this district which was docketed at No. 02-cv-07756. That suit named the VA Medical Center as defendant, and set forth a claim to a violation of the Civil Service Reform Act (CSRA). Henderson litigated his discharge administratively before the Merit Systems Protection Board (MSPB). This court dismissed that complaint for lack of subject-matter jurisdiction on January 28, 2003, because only the Court of Appeals for the Federal Circuit has jurisdiction over an appeal by a federal employee from an adverse final MSPB decision.
A week after that dismissal, on January 7, 2003, Henderson filed the present action. Most of the pages of the present complaint are identical to the complaint previously dismissed by this court, and the complaint before the MSPB. In this case the summons designates Ms. Santos as the defendant and not the Veterans Affairs Medical Center.
Henderson apparently believes that he can cure the jurisdictional defect in No. 02-07756 by suing his supervisor in her personal capacity.
The government characterizes the present suit as a Bivens action. We agree with that characterization. Bivens actions, are inappropriate if there are "special factors counseling hesitation." Id. at 396, 91 S.Ct. 1999. One "special factor counseling hesitation" is federal employment. Bush v. Lucas, 462 U.S. 367, 389, (1983) (exclusiveness of the Civil Service Reform Act precludes claims raised under other statutes). Because the CSRA constitutes a comprehensive set of procedural and substantive provisions governing the rights of federal employees, it would be inappropriate "to supplement that regulatory scheme with a new judicial remedy," such as the tort claim brought by Henderson; Bush v. Lucas, at 368, 103 S.Ct. 2404 (1983). This action must be dismissed because Bivens actions by federal employees against their fellow employees are barred; Hall v. Clinton, 235 F.3d 202, 205 (4th Cir. 2000). Henderson's complaint arises from his employment at the VAMC and there is no set of facts that he could prove that can survive a motion to dismiss.
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, (1971).
In addition to the above the plaintiff has failed to respond to the government's motion to dismiss the complaint which was served on him February 21, 2003 and for that reason also the motion should be granted.
We therefore enter the following Order.
ORDER
AND NOW, this 27th day of March, 2003, the government's motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) is hereby GRANTED. The complaint in this action is DISMISSED.