United States District Court, D. Nebraska
TODD M. HEYNE, Plaintiff,
KEITH J. REID, MICHELLE LEE, BECKY KIRCHHOFF, and U.S. POSTAL SERVICE, Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
a non-prisoner, has been given leave to proceed in forma
pauperis. (Filing No. 5.) The court now conducts an initial
review of Plaintiff's claims to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
an employee at the Boys Town post office in Omaha, Nebraska,
sues the post office's station manager (Michelle Lee) and
postmaster (Becky Kirchhoff), as well as the Omaha postmaster
(Keith J. Reid), alleging that these Defendants prohibited
him from exercising his First Amendment right to discuss
politics and religion in the workplace. He claims that he has
been reprimanded numerous times for talking about these
subjects; was accused of using government equipment for
personal reasons when he prepared a memorandum to the Omaha
postmaster about his “rights and law”; and was
subjected to intensive personal supervision, during which he
was charged with creating a “workplace
disturbance” anytime he talked. (Filing 1 at CM/ECF p.
5.) Plaintiff seeks money damages and an order requiring
“the U.S. Postal Service, Central Plains
District-Omaha, to post President Clinton's executive
order dated August 17, 1997, Attorney General's
Memorandum (October 17, 2017) outlining the exercise of
religious rights thereof.” (Id. at CM/ECF p.
STANDARDS ON INITIAL REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e). The
court must dismiss a complaint or any portion of it that
states a frivolous or malicious claim, that fails to state a
claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B).
plaintiffs must set forth enough factual allegations to
“nudge their claims across the line from conceivable
to plausible, ” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 569-70 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”).
essential function of a complaint under the Federal Rules of
Civil Procedure is to give the opposing party ‘fair
notice of the nature and basis or grounds for a claim, and a
general indication of the type of litigation
involved.'” Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting
Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir.
1999)). However, “[a] pro se complaint must be
liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
seeks to bring Bivens claims against the United States
Postal Service, postal employees Reid and Lee in their
official capacities, and postal employee Kirchhoff in her
individual and official capacities. “A Bivens
claim is a cause of action brought directly under the United
States Constitution against a federal official acting in his
or her individual capacity for violations of constitutionally
protected rights.” Buford v. Runyon, 160 F.3d
1199, 1203 n.6 (8th Cir. 1998). The United States Postal
Service and postal employees in their official capacities are
considered federal agencies against which a Bivens
action cannot be brought. F.D.I.C. v. Meyer, 510
U.S. 471, 473 (1994); Buford, 160 F.3d at 1203
(postal employee's Bivens claim against
Postmaster General in his official capacity treated as suit
against Postal Service and, therefore, could not be
prosecuted because Bivens actions “cannot be
prosecuted against the United States and its agencies because
of sovereign immunity”). Accordingly, Plaintiff's
claims against Defendants Reid, Lee, and Kirchhoff in their
official capacities and against the United States Postal
Service fail based on sovereign immunity.
this court lacks subject-matter jurisdiction over
Plaintiff's remaining Bivens claim against
Defendant Kirchhoff in her individual capacity for the reason
that federal employees covered by the Civil Service Reform
Act (“CSRA”) cannot bring employment-related claims
in this court because the CSRA is a federal employee's
exclusive remedy for resolving employment disputes, and it
forecloses judicial review of claims arising from employment
disputes under any other statute or provision, including
Bivens. Bush v. Lucas, 462 U.S. 367, 390
(1983) (Bivens action was not implied for First
Amendment claim given government's comprehensive scheme
protecting civil servants against arbitrary action by
supervisors); McIntosh v. Turner, 861 F.2d 524 (8th
Cir. 1988) (employees' Bivens action against
federal officers for due process violations under Fifth
Amendment, arising out of alleged promotion bias, was barred
because Congress provided remedy through CSRA); Bradley
v. U.S. Postal Serv., 832 F.2d 1061, 1062 (8th Cir.
1987) (recognizing Supreme Court's finding in Bush v.
Lucas that federal employees may not bring
Bivens claims for alleged First Amendment violations
arising out of employment relationship in light of
comprehensive remedies laid out in CSRA); Bland v.
Burwell, No. 14-0226-CV-W-ODS, 2016 WL 110597, at *4
(W.D. Mo. Jan. 8, 2016) (CSRA prohibited federal employee
from bringing Bivens claim regarding revocation of
security clearance); Harshaw v. Astrue, No.
11-CV-1060, 2013 WL 4198057, at *5 (W.D. Ark. Aug. 14, 2013)
(dismissing federal employee's First and Fifth Amendment
Bivens claims stemming from denial of promotion
because sole remedy was to petition Office of the Special
Counsel under CSRA); Loos v. Napolitano, 665
F.Supp.2d 1054, 1062 (D. Neb. 2009) (plaintiff's
state-law claims challenging termination from federal agency
were precluded by CSRA because “that Act is the
comprehensive and exclusive means by which a federal employee
may challenge personnel decisions that come within the scope
of the Act, and this court cannot provide alternative
remedies beyond what Congress has found sufficient to include
in the CSRA”); Coatney v. U.S. Citizenship &
Immigration, No. 4:07CV3167, 2008 WL 650320, at *7 (D.
Neb. Mar. 5, 2008) (where former employee of federal agency
alleged wrongful discharge without due process, court found
that CRSA's comprehensive remedial scheme preempted
Plaintiff's remaining Bivens claim against
Defendant Kirchhoff in her individual capacity fails for lack
of subject-matter jurisdiction. See Sarullo v. U.S.
Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003) (because
CSRA was sole remedy for Bivens malicious
prosecution claim brought against U.S. Postal Service for
incident occurring in employment context, district court
should have dismissed such claim for lack of subject-matter
the CSRA did not apply to Plaintiff, the Eighth Circuit Court
of Appeals has held that a postal employee was precluded from
bringing a Bivens action for alleged constitutional
torts when the employee had access to the grievance
procedures set forth in the Postal Reorganization Act
(“PRA”), 39 U.S.C. § 1001-11 & 1201-09,
and in a collective bargaining agreement between the
employee's union and the United States Postal Service.
Turner v. Holbrook,278 F.3d 754, 758 (8th Cir.
2002); Sisley v. Leyendecker,260 F.3d 849, 850 (8th
Cir. 2001) (same); Ramirez v. Postmaster Gen., No.
4:04CV3258, 2005 WL 8176038, at *1 (D. Neb. Mar. 11, 2005)
(postal employee's First and Fifth Amendment
Bivens claims against postal officials were
precluded by grievance procedures in PRA). Here, Plaintiff
does not allege that he is not subject to the PRA or a