Opinion
CV 99-1451 (ADS) (ARL)
November 23, 2002
John J. Broderick, Esq., Syosset, NY, for the Plaintiff.
Roslynn R. Mauskopf, United States Attorney Eastern District of New York, Susan L. Riley, Assistant United States Attorney, Central Islip, NY, for Defendant.
MEMORANDUM OF DECISION AND ORDER
On March 15, 1999, Stephen J. Yellico ("Yellico" or the "plaintiff") filed an action against the United States Postal Service ("Postal Service" or the "defendant"). Presently before the Court is a motion by the defendant to dismiss the plaintiff's amended complaint for lack of subject matter jurisdiction and for failure to state a claim pursuant to Rule 12(c) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.").
I. BACKGROUND
The following facts are taken from the amended complaint, dated August 1, 2001, which the Court takes to be true. On October 9, 1993, Yellico participated in a peaceful anti-abortion protest in Dobbs Ferry, New York. As a result of his conduct at the protest, he was arrested and charged with trespass. Yellico refused to pay a fine or accept probation or community service, claiming that for "spiritual reasons" and "as a matter of conscience," the only penalty acceptable to him was imprisonment. On a date not specified in the complaint, the plaintiff was also arrested in Vermont for the same conduct.
On October 7, 1997, Yellico applied for a position as an automotive mechanic with the Postal Service. In connection with his application, Yellico took a civil service examination and ranked ninth out of the approximately 300 people who took the exam. In addition, the plaintiff had over twenty-five years of experience as an automatic mechanic.
On May 13, 1998, during a pre-screening interview with the Postal Service, Yellico disclosed that he had been convicted twice for trespass. After the plaintiff disclosed his convictions, the interviewer left the room to talk to his supervisor and when he returned, informed the plaintiff that he must wait ten years after his last conviction before he could apply for the position.
On February 16, 1999, the plaintiff filed an appeal with the Merit Systems Protection Board ("MSPB"). In a decision dated March 22, 1999, the MSPB determined that it lacked jurisdiction over a Postal Service's decision not to select him for the automotive mechanic position. In dismissing his appeal, the MSPB further noted that the Postal Service's decision not to select him based on suitability grounds is a nonappealable action to the MSPB.
On March 15, 1999, the plaintiff, who was proceeding pro se at the time, filed the complaint in this case. On March 24, 1999, counsel for the plaintiff filed an amended complaint. In November 2000, after commencing the instant action, the plaintiff reapplied for a position as an automatic mechanic and again took the competitive written and practical examination. On March 12, 2001, the Postal Service moved to dismiss the plaintiff's complaint on the grounds that, (1) the complaint did not contain a statement of jurisdiction in violation of Rule 8(a) of the Fed.R.Civ.P.; (2) the Court lacked jurisdiction under the Postal Reorganization Act ("PRA"); and (3) the complaint failed to state a claim upon which relief can be granted.
On June 23, 2001, this Court issued a Memorandum of Decision and Order and concluded that it had subject matter jurisdiction under the PRA. However, the Court determined that the plaintiff had failed to explain the legal theory or cause of action on which the suit was based. Therefore, the Court granted the plaintiff 30 days to file an amended complaint.
On August 2, Yellico filed an amended complaint in which Yellico invokes jurisdiction pursuant to 39 U.S.C. § 409(a) and asserts a "claim for intentional or negligent misrepresentation by an authorized agent of the United States Postal Service under the common law of the State of New York." In addition, Yellico claims that "in eliminating a leading applicant in the competitive civil service for the position of automotive mechanic solely because he had been convicted and jailed as a protester in the national debate over abortion was arbitrary and capricious." He further alleges that he "reserves the right to challenge any such policy or practice [to eliminate convicted public interest protesters from the competitive civil service] which may emerge during trial in a Bivens claim under the First and Fourteenth Amendment to the United States."
On March 13, 2002, the Postal Service filed a motion for judgment on the pleadings pursuant to 12(c) of the Fed.R.Civ.P. In particular, the Postal Service claims that the amended complaint should be dismissed because: (1) the Court lacks subject matter jurisdiction under the PRA and the Federal Tort Claims Act ("FTCA"); (2) the Court lacks subject matter jurisdiction because Yellico failed to exhaust his administrative remedies; (3) the plaintiff fails to state a claim for relief under the PRA; and (4) the plaintiff failed to sufficiently allege a Bivens claim.
II. DISCUSSION A. Standard for Rule 12(c)
The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion to dismiss the complaint for failure to state a claim upon which relief may be granted. See Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). Under both rules, the Court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Id. The Court may dismiss the complaint only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957)). "Judgment on the pleadings is rarely granted and is not proper unless the movant clearly establishes that no material issue of fact remains to be resolved." James Miller Marine Servs., Inc. v. V.I.P. Yacht Cruises, Inc., No. 01-CV-2938, 2002 U.S. Dist. LEXIS 13530, at *2 (E.D.N.Y. Apr. 30, 2002) (citing 5A Wright, Miller Kane, Federal Practice Procedure, Civil 2d § 1368 2d 1990)).
B. The Misrepresentation Claim
The plaintiff asserts a claim for "intentional or negligent misrepresentation by an authorized agent of the United States Postal Service under the common law of New York." The United States, as sovereign, is immune from suit in the absence of an express waiver. See United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767 (1941). Under Section 401(1) of the PRA, Congress has enacted a general waiver of sovereign immunity which provides, in pertinent part, that "[t]he Postal Service shall have the following general powers: (1) to sue and be sued in its official name. . . ." However, tort suits brought against the Postal Service are specifically governed by the FTCA. 39 U.S.C. § 409(c); see Coffey v. United States Postal Serv., 939 F. Supp. 185, 190 (E.D.N.Y. 1996) (citing Pereira v. United States Postal Serv., 964 F.2d 873, 876 (9th Cir. 1992). Thus, Yellico's misrepresentation claim is barred unless he can demonstrate that the claim falls within the limited waiver provision of the FTCA, 28 U.S.C. § 1346(b).
"The FTCA applies to tort claims arising out of the activities of the Postal Service." Kurian v. Social Serv. Employees Union Local 371, No. 94-1779, 1995 U.S. Dist. LEXIS 17951, at *8 (S.D.N.Y. Nov. 30, 1995) (citing Myers Myers, Inc. v. United States Postal Serv., 527 F.2d 1252, 1255 (2d Cir. 1975). Where such claims are "cognizable" under the FTCA, it is the sole or exclusive remedy for the plaintiff's claims. See F.D.I.C. v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 1001 (1994). Section 2680(h) provides a list of exceptions to the FTCA's waiver of sovereign immunity. 28 U.S.C. § 2680(h).
The Postal Service asserts that intentional torts under state law, including the tort of misrepresentation, are expressly excluded from the FTCA's waiver of sovereign immunity. In particular, the Postal Service argues that although the PRA's waiver of sovereign immunity must be broadly construed, if Yellico's claim for misrepresentation is "cognizable" under the FTCA, it must be dismissed as barred under the intentional torts exception set forth in 28 U.S.C. § 2680(h). The Court finds the Postal Service's argument convincing.
Yellico invokes the Court's subject matter jurisdiction under the PRA, but in the complaint, his claim is based on misrepresentation under New York common law. Section 409(c) of the PRA limits the Postal Service's "sue and be sued" clause with regard to tort claims and provides that tort claims arising out of the postal service are governed by the FTCA. 39 U.S.C. § 409(c). Where the plaintiff's claim of misrepresentation arises under state law, the claim is cognizable under the FTCA. As such, the limitations of the FTCA's waiver of sovereign immunity also apply. See Southeast Grand Street Guild Fund Co., Inc. v. HUD, No. 91-8358, 1992 U.S. Dist. LEXIS 3865, at *18 (S.D.N.Y. Mar. 31, 1992).
Section 2680 of the FTCA states, "[t]he provisions of this chapter and section 1346(b) of this title shall not apply to . . . misrepresentation, deceit. . . ." 28 U.S.C. § 2680(h). Thus, because the tort of misrepresentation is specifically excluded under 28 U.S.C. § 2680(h), the Court finds that Yellico's claim does not fall within the limited waiver of sovereign immunity. Accordingly, the plaintiff's claim for misrepresentation must be dismissed for lack of subject matter jurisdiction. Furthermore, because the Court lacks subject matter jurisdiction, it need not address the Postal Service's argument that the Court lacks subject matter jurisdiction because of Yellico's alleged failure to exhaust his administrative remedies.
C. The Hiring Claim
Yellico claims that the Postal Service's decision not to hire him because of his past convictions was arbitrary and capricious. In response, the Postal Service argues that the PRA provides no support for the plaintiff's claim that he is entitled to relief from the Court. The Court agrees with the Postal Service.
The PRA sets forth a comprehensive scheme governing employment relations within the Postal Service and incorporates certain provisions of the Civil Service Reform Act ("CSRA"). Courts have established that "any statutory or nonstatutory right to judicial review of adverse personnel actions which postal employees previously may have enjoyed [has been] abrogated by the CSRA." Witzoske v. United States Postal Serv., 848 F.2d 70, 73 (5th Cir. 1988); see also Yokum v. United States Postal Serv., 877 F.2d 276, 278 (4th Cir.); Royals v. Tisch, 864 F.2d 1565, 1567 (11th Cir. 1989). Thus, the PRA is not a basis for reviewing or setting aside adverse employment actions by the Postal Service.
Chapter 75 of the CSRA provides an appeals procedure for reviewing adverse personnel actions taken by federal agencies. 5 U.S.C. § 7501-7543. However, to be entitled to appeal rights under Chapter 75, an individual must be either (1) an "individual in the competitive service" who has not served a probationary or trial period under an initial appointment or who has completed one year of current continuous service, or (2) a "preference eligible employee" who has completed one year of current continuous service in the same or similar positions. 5 U.S.C. § 7511(a)(1)(A), (B). The procedural safeguards apply to only those included within the statutory definition. Indeed, in determining that a nonpreference eligible employee was not entitled to judicial review of an adverse personnel action, the Supreme Court explained that:
[t]he comprehensive nature of the CSRA, the attention that it gives throughout to the rights of nonpreference excepted service employees, and the fact that it does not include them in provisions for administrative and judicial review contained in Chapter 75, combine to establish a congressional judgment that those employees should not be able to demand judicial review for the type of personnel action covered by that chapter. Their exclusion from the scope of those protections can hardly be explained on the theory that Congress simply did not have them in mind, since, as noted earlier, Congress specifically included in Chapter 75 preference eligible excepted service employees, § 7511(a)(1)(B), and specifically provided for optional inclusion (at the election of OPM) of certain nonpreference excepted service employees with respect to certain protections of the chapter, including MSPB and judicial review, § 7511(c).
United States v. Fausto, 484 U.S. 439, 448, 108 S.Ct. 668, 674 (1988).
Here, as a mere applicant for employment at the Postal Service, Yellico is not included in the category of employees to whom Congress granted review rights under the CSRA. Thus, Yellico's right to judicial review of his hiring claim is precluded by the CSRA and is not otherwise authorized by the PRA. Accordingly, the Court finds that to the extent the plaintiff seeks to state a claim for relief under the PRA with regard to the Postal Service's decision not to hire him, his claim is denied.
D. The Bivens Claim
Yellico also argues that he may maintain an action against the Postal Service employee who interviewed him pursuant to Bivens v. Six Unknown Names Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), on the ground that he has a constitutionally vested property interest in prospective employment. It is well-established that Bivens does not authorize suits against the United States government or its agencies. See Armstrong v. Sears, 33 F.3d 182, 185 (2d Cir. 1994). Instead, Bivens allows plaintiffs to sue individual defendants in their individual capacities for damages based on alleged constitutional violations. Id.
In order to sufficiently assert a Bivens action, a plaintiff must allege that, "(1) he was deprived of a right secured by the Constitution and the laws of the United States; and (2) in depriving him of that right, the defendant acted under color of federal law." Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S.Ct. 1729 (1978). In the instant case, Yellico asserts that he has a vested property interest in prospective employment. To the contrary, a candidate for employment at the Postal Service has no protected property interest in employment. Quick v. Runyon, No. 99-6276, 2000 U.S. Dist. LEXIS 27209, at *4 (2d Cir. Oct. 3, 2000). In addition, even assuming that Yellico had a property interest in employment, his claim must be dismissed because he does not claim a Bivens action against the Postal Service interviewer based on his individual capacity.
In the amended complaint, Yellico states that he "reserves the right to challenge any such policy [to eliminate convicted public interest protesters from the competitive civil service] which may emerge during trial in a Bivens claim under the First and Fourteenth Amendment to the United States." This bare assertion does not establish any basis for a Bivens claim as no First Amendment right was identified in the amended complaint. Furthermore, the Fourteenth Amendment applies only to deprivation of rights by the State and a Bivens action therefore may not be brought under the Fourteenth Amendment. Indeed, nowhere in the complaint does Yellico set forth any facts tending to support a Bivens claim. Accordingly, the plaintiff's Bivens claim and the entire amended complaint is dismissed.
III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED, that the plaintiff's claim for misrepresentation is dismissed for lack of subject matter jurisdiction; and it is further
ORDERED, that the plaintiff's hiring claim that the Postal Service acted arbitrarily and capriciously is dismissed; and it is further
ORDERED, that Yellico's Bivens claim against the Postal Service interviewer is dismissed; and it is further
ORDERED, that the amended complaint, in its entirety, is dismissed; and it is further
ORDERED, that the Clerk of the Court is directed to close this case. SO ORDERED.