BISHOP v. THE DEPARTMENT OF HOMELAND SECURITY et al

Filing 18

OPINION filed. Signed by Judge Freda L. Wolfson on 5/6/2015. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
PAUL J. BISHOP,
:
:
Plaintiff,
:
:
v.
:
:
DEPARTMENT OF HOMELAND
:
SECURITY, MERIT SYSTEMS
:
PROTECTION BOARD and U.S. OFFICE :
OF PERSONEL MANAGEMENT,
:
:
Defendants.
:
____________________________________

Civ. No. 14-5244 (FLW)

OPINION

WOLFSON, United States District Judge:
Presently before the Court is a motion filed by Defendants Department of Homeland
Security (“DHS”), Merit Systems Protection Board (“MSPB”), and U.S. Office of Personnel
Management’s (“OPM”) (collectively “Defendants” or “the Government”) to dismiss the
Complaint filed by pro se Plaintiff Paul Bishop (“Bishop” or “Plaintiff”). The Government
additionally moves for a pre-filing injunction that would enjoin Plaintiff from filing future suits
regarding his termination from DHS.
For the reasons stated below, the Government’s motion to dismiss is GRANTED and its
motion for a pre-filing injunction is also GRANTED.

1

I.

Background1
The following allegations are accepted as true for the purposes of this motion to dismiss.

In 2005, Bishop was appointed through the excepted service Federal Career Intern Program to
the position of Agriculture Specialist GS-9, as part of the Customs and Border Protection for the
Port of New York. (Bishop 2009 MSPB Decision, at 4). This appointment was for two years, and
Bishop was informed that if he satisfactorily completed the internship, he would be
“noncompetively granted a career or career-conditional position.” (Bishop 2009 MSPB Decision,
at 4). However, if “he did not satisfactorily complete the internship, his employment would be
terminated.” (Bishop 2009 MSPB Decision, at 4). In 2006, Bishop was promoted to a GS-11
position. (Bishop 2009 MSPB Decision, at 5). On August 20, 2007, Bishop was terminated from
his position. (Bishop 2009 MSPB Decision, at 9).2
Bishop alleges that in an attempt to mediate an EEO dispute, he made certain disclosures
to his supervisor at DHS, Assistant Port Director John Lava, that were used “to prevent the [him]
from being hired permanently into a GS-0401-11 Agriculture Specialist in the Department of

1

Typically on a motion to dismiss, a court will only consider the well-pled factual
allegations made in the complaint. See W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d
85, 97 n.6 (3d Cir. 2010) cert. denied, 132 S.Ct. 98 (2011). However, in certain circumstances,
there is “an exception to the general rule [permitting] a ‘document integral to or explicitly relied
upon in the complaint’ [to] be considered ‘without converting the motion [to dismiss] into one
for summary judgment.’” In re Burlington Coat Factory Litigation, 114 F.3d 1410, 1426 (3d Cir.
1997) (internal citation omitted). In his Complaint (which makes only minimal factual
allegations), Plaintiff relies on, and refers to, the MSPB’s decisions regarding his termination and
specifically asks that the decision be vacated. Because Plaintiff specifically refers to and relies
on these documents in his Complaint, the Court will consider them on this motion to dismiss. See
id.
2

This is the fourth civil action that Plaintiff has brought against the Government
regarding his 2007 termination. See Bishop v. Office of Personnel Mgmt., 514 Fed. Appx. 104
(3d Cir. 2013), cert. denied, 134 S. Ct. 396 (2013); Bishop v. U.S. Dep’t of Homeland Sec., No.:
11-573 (D.N.J. June 13, 2011); Bishop v. U.S. Dep’t of Homeland Sec., No. 2:10-cv-1095, 2010
WL 5392897 (D.N.J. Dec. 21, 2010).
2

Homeland Security. (Compl. at 1). Bishop appealed his termination to the MSPB, alleging
“because of his whistleblowing activity, he was denied certain on-the-job training and was
discharged.” (Bishop 2009 MSPB Decision, at 1). The MSPB denied Plaintiff’s appeal in a
decision dated October 14, 2009. (Bishop 2009 MSPB Decision, at 1-2). Plaintiff subsequently
filed a petition for review of the MSPB’s October 2009 decision. However, on February 24,
2010, the MSBP denied Bishop’s petition for review in its “Final Order.” (Bishop MSPB 2010
Final Order).
Plaintiff filed this Complaint on August 21, 2014. In his Complaint, Plaintiff asserts that
DHS deprived him of his Fifth Amendment due process rights by failing to provide Bishop the
appropriate termination procedure. (Compl. at 1). Specifically, Plaintiff alleges that the DHS did
not provide him with “thirty days advance written notice of the proposed action which identifies
specific instances of unacceptable performance by the Plaintiff on which its proposed adverse
action were based.” (Compl. at 1). Plaintiff additionally alleges that DHS failed to provide him
neither an opportunity to obtain counsel nor to respond to the proposed adverse action, as is
required by the Civil Service Reform Act (“CSRA”). (Compl. at 1). In support of this allegation,
Plaintiff notes that he requested documentation that his due process rights were satisfied under
the Freedom of Information Act and Privacy Act and “the [MSPB] stated that it did not have the
due process rights documentation required.” (Compl. at 2).
Plaintiff also alleges that “[his] status as an excepted service federal career intern
excludes him from the jurisdiction of the Merit Systems Protection Board,” and thus MSPB’s
October 14, 2009 decision is void under rule 60(b) of the Federal Rules of Civil Procedure.
(Compl. at 2). Lastly, Plaintiff asserts that because the MSPB did not have jurisdiction over him,
“[a]ny attempt to force the Plaintiff to appeal the Boards [sic] decision in the Court of Appeals

3

for the Federal Circuit is a violation of the Plaintiff’s Constitutional civil rights.” (Compl. at 2).
Plaintiff “demands” the following: (1) “to be instated as a GS-0401-11 Agriculture Specialist in
the Department of Homeland Security with back pay, front pay and student loan
reimbursement”; (2) “compensation for the lost employment benefits of his health care plan and
pension plan,” and (3) “the voiding of the Merit System Protection Board’s ruling in NY-121109-0201-W-1.” Compl. at 2.
The Government has moved to dismiss Plaintiff’s Complaint on two separate grounds:
(1) under Rule 12(b)(1) for lack of subject matter jurisdiction and (2) under Rule 12(b)(6) for
failure to state a claim based on the statute of limitations.3
II.

Standard of Review
A.

Subject Matter Jurisdiction

A defendant may move to dismiss a claim for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure Rule 12(b)(1). Fed. R. Civ. P. 12(b)(1). Because subject matter
jurisdiction is required for a district court to reach the merits of a claim, “’the court should
consider the 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject
matter jurisdiction, all other defenses and objections become moot.’” S.B. ex rel. A.B. v. Trenton
School Dist., No. 13-949, 2013 WL 6162814, at *3 (D.N.J. Nov. 25, 2013) (quoting In re
Corestates Trust Fee Litig., 837 F. Supp. 104, 105 (E.D. Pa. 1993)).
There is no presumption of truthfulness that attaches to the allegations of the complaint
when determining a challenge to the court's subject matter jurisdiction. Mortensen v. First
Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Once a 12(b)(1) challenge is
raised, the plaintiff bears the burden of demonstrating the existence of subject matter jurisdiction.
3

Plaintiff responded to the Government’s motion by filing a “motion to dismiss Defendant’s
Motion to Dismiss,” which was docketed as a cross-motion. See Dkt. 14.
4

See McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006). A Rule 12(b)(1)
motion to dismiss is treated as either a “facial or factual challenge to the court's subject matter
jurisdiction.” Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). Under a
facial attack, the movant challenges the legal sufficiency of the claim, and the court considers
only “the allegations of the complaint and documents referenced therein and attached thereto in
the light most favorable to the plaintiff.” Id. Under a factual attack, however, “the challenge is to
the actual alleged jurisdictional facts.” Liafom, LLC. v. Big Fresh Pictures, Civ. No. 10–0606,
2011 WL 3841323 (D.N.J. Aug. 24, 2011). The current motion makes a factual challenge on
subject matter jurisdiction, as it alleges that this Court lacks subject matter jurisdiction based on
sovereign immunity, see Blase v. Kaplan, 852 F. Supp. 268, 277 (D.N.J. 1994), or based on
preclusion by the Civil Service Reform Act (“CSRA”).
B.

Rule 12(b)(6)

On a motion to dismiss, brought pursuant to Federal Rule of Civil Procedure 12(b)(6), a
Court must “accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.
2008) (internal quotes and citation omitted). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
(2007), the Supreme Court clarified the 12(b)(6) standard: the factual allegations set forth in a
complaint “must be enough to raise a right to relief above the speculative level.” Id. at 1965. As
the Third Circuit has stated, “[t]he Supreme Court's Twombly formulation of the pleading
standard can be summed up thus: ‘stating ... [a] claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element. This ‘does not impose a probability
requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable

5

expectation that discovery will reveal evidence of’ the necessary element.” Phillips, 515 F.3d at
234 (quoting Twombly, 127 U.S. at 1965); see also Covington v. Int'l Ass'n of Approved
Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (“[A] claimant does not have to set out in
detail the facts upon which he bases his claim.... The pleading standard is not akin to a
probability requirement, . . . to survive a motion to dismiss, a complaint merely has to state a
plausible claim for relief.” (citations omitted)).
In affirming that Twombly 's standards apply to all motions to dismiss, the Supreme Court
explained several principles. First, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662,
(2009). Second, “only a complaint that states a plausible claim for relief survives a motion to
dismiss.” Id. Therefore, “a court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Id. at 1949. Ultimately, “a complaint must do more than allege the
plaintiff's entitlement to relief. A complaint has to ‘show’ such an entitlement with its facts.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). However, “a district court ruling
on a motion to dismiss may not consider matters extraneous to the pleadings . . . [although a]
limited exception exists for documents that are integral to or explicitly relied upon in the
complaint.” W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 97 n.6 (3d Cir. 2010)
cert. denied, 132 S.Ct. 98 (2011) (citation and internal quotation marks omitted).
The Third Circuit has reiterated that “judging the sufficiency of a pleading is a context
dependent exercise” and “[s]ome claims require more factual explication than others to state a
plausible claim for relief.” Id. at 98. That said, the Rule 8 pleading standard is to be applied
“with the same level of rigor in all civil actions.” Id. (quoting Iqbal, 556 U.S. at 684).

6

Although a statute of limitations question is an affirmative defense, which is normally
raised under Rule 8(c), the statute of limitations may be raised in a Rule 12(b)(6) motion “where
the complaint facially shows noncompliance with the limitations period and the affirmative
defense clearly appears on the face of the pleading.” Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994).
Moreover, while pro se pleadings are liberally construed, “pro se litigants still must
allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc.,
704 F.3d 239, 245 (3d Cir. 2013) (citation omitted) (emphasis added).
III.

Motion to Dismiss
A. Rule 12(b)(1) - Subject Matter Jurisdiction
The Government asserts that this Court lacks subject matter jurisdiction for three reasons.

First, the Government argues that this Court lacks subject matter jurisdiction because Congress
has not waived sovereign immunity for Section 1983 claims or Bivens-types claims against
federal agencies. Second, the Government asserts that the Civil Service Reform Act precludes
Plaintiff’s claim. Finally, the Government maintains that this action is an attempt by the Plaintiff
to appeal the MSPB’s 2010 decision, an action that must be brought in the Federal Circuit.
1. Sovereign Immunity
The Government argues that this Court lacks subject matter jurisdiction over this matter
based on the well-established principle that “[w]ithout a waiver of sovereign immunity, a court is
without subject matter jurisdiction over claims against federal agencies or officials in their
official capacities.” Treasurer of N.J. v. U.S. Dep’t of the Treasury, 684 F.3d 382, 395-96 (3d
Cir. 2012) (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)). The Government argues
that because Congress has not waived sovereign immunity to permit § 1983 or Bivens claims

7

against federal agencies, Plaintiff’s claim must be dismissed. In response, Plaintiff asserts,
without support, that the Government waived their sovereign immunity by engaging in the
alleged improper termination of Plaintiff.
At the outset, this Court will address Plaintiff’s claim that “by not following [CSRA]
statutory entitlements the Government has waived its claim [sic] sovereign immunity.” It is wellestablished that in order for a district court to have subject matter jurisdiction over an action
against the United States or any agency of the United States, Congress must first waive sovereign
immunity. Treasurer of N.J., 684 F.3d at 395–96. This waiver cannot be implied, but “must be
unequivocally expressed in statutory text.” Lane v. Pena, 518 U.S. 187, 192 (1996) (internal
citation omitted). Thus, the mere failure of a federal agency to follow procedure is insufficient to
waive sovereign immunity unless Congress has explicitly provided so. See id.
Plaintiff brings this action under 42 U.S.C. § 1983, which permits suits against “every
person who, under color [of state law] subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. Generally,
because § 1983 requires that a person act under the color of state law, “federal agencies and
officers are facially exempt from § 1983 liability inasmuch as in the normal course of events they
act pursuant to federal law.” Hindes v. FDIC, 137 F.3d 148, 158 (3d Cir. 1998). Importantly, the
United States is not considered a “person” for the purposes of § 1983 claims. Accardi v. United
States, 435 F.2d 1239, 1241 (3d Cir. 1970). In that connection, “[b]ecause the United States is
not a proper defendant in a § 1983 action, neither is a federal agency, an arm of the sovereign.”
Id. at 159. Accordingly, to the extent that Plaintiff attempts to bring a Section 1983 action
against DHS, MSPB, and OPM—all federal agencies—this Court lacks subject matter

8

jurisdiction because Congress has not authorized such a claim against these parties. Id.; see also
Lopez v. U.S. Dep't of Justice, No. 07-3230, 2007 WL 2988580, at *1 (3d Cir. Oct. 15, 2007)
(“Section 1983 is inapplicable to persons acting under color of federal law.”).
Even if this Court were to construe Plaintiff’s Complaint as attempting to bring a Bivens
action, this Court would still lack subject matter jurisdiction.4 In Bivens v. Six Unnamed Agents
of Federal Bureau of Narcotics, the Supreme Court implied a federal analogue to the § 1983
cause of action for civil rights violations by federal officials acting in their official capacity. See
Bivens v. Six Unnamed Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). However,
the Supreme Court has declined to extend this cause of action to federal agencies because the
imposition of a damages remedy against the Federal government and its agencies “would [create]
a potentially enormous financial burden for the Federal Government,” and, thus, has left such a
decision to Congress. FDIC v. Myer, 510 U.S. 471, 484-86 (1994). As Plaintiff brought suit
against only federal agencies, and not agency officials, his claim cannot be construed as a proper
Bivens action and must be dismissed. Id. Consequently, because Congress has not waived
sovereign immunity for claims of constitutional violations against federal agencies, this Court
lacks subject matter jurisdiction over Plaintiff’s claims. See Lopez, 2007 WL 2988580, at *1
(“[T]he Supreme Court has held that federal agencies are not appropriate defendants for Bivens
actions.”).
2. CSRA Preclusion
To the extent Plaintiff is seeking that this Court adjudicate his dispute with DHS in the
first instance, the Court lacks subject matter jurisdiction for another reason: such a claim is

4

In his briefing, Plaintiff denies bringing any Bivens claim and instead asserts that “[a]ll the
claims made against the Defendants are being made under the Civil Rights Act, the Privacy Act
and the Civil Service Reform Act.” Pl.’s Opp. Br. at 14.
9

precluded by the CSRA. In Bush v. Lucas, the Supreme Court declined to extend a Bivens-like
claim to constitutional violations that “arise out of an employment relationship that is governed
by comprehensive procedural and substantive provisions giving meaningful remedies against the
United States.” Bush v. Lucas, 462 U.S. 367, 368 (1983); see also Yu v. U.S. Dep’t of Veteran
Affairs, 528 Fed. Appx. 181, 184 (3d Cir. 2013).
Plaintiff asserts that the CSRA does not preclude his claim because he was employed as
an excepted service federal career intern. While excepted service employees do enjoy less
protections under the CSRA than permanent employees, “’the 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.’” Semper v. Gomez, 747 F.3d 229, 236 (3d Cir. 2014) (quoting United States v.
Fausto, 484 U.S. 439, 448 (1988)).
Specifically, the CSRA provides that the MSPB has jurisdiction over disputes arising
from the employment relationship that concern personnel actions, defined by the CSRA as “an
appointment; a promotion; . . . and “any other significant change in duties, responsibilities, or
working conditions.” 5 U.S.C. § 2302; see also Yu, 528 Fed. Appx. at 184. Plaintiff’s claim that
he was improperly terminated from his position falls into the definition of a personnel action. See
Yu, 528 Fed. Appx. at 184. Moreover, Section 2302 applies to employees in covered positions,
which includes specifically “position[s] in the excepted service.” 5 U.S.C. § 2302. Accordingly,
the CSRA mandates that Plaintiff bring any claim regarding constitutional violations that
occurred upon his termination from the DHS in front of the MSPB. See Yu, 528 Fed. Appx. at

10

184. Therefore, Plaintiff’s claim is precluded from being considered by this Court.5
3. Review of MSPB Decision
Moreover, to the extent that Plaintiff seeks judicial review of the MSPB’s 2010 Final
Order denying Plaintiff’s appeal of his termination, such relief must be sought in the Federal
Circuit. See Elgin v. Dep’t of Treasury, 132 S. Ct. 2126, 2133-34 (2012). Nonetheless, Plaintiff
contends that “[t]he Due Process Violation committed by [DHS] voids the jurisdiction of the
[MSPB],” and moreover, alleges that any transfer of his claim to the Federal Circuit “violate[s
his] Civil Rights under the Fourteenth Amendment of the Constitution as the Court of Federal
Appeals for the Federal Circuit requires [he] surrender all claims of discrimination.” Plaintiff’s
arguments are, again, misplaced.
Like Plaintiff’s prior suits, the current Complaint appears to be a further attempt by
Plaintiff to appeal the MSPB’s decision. See Bishop v. Office of Personnel Management, 514
Fed. Appx. 104 (3d Cir. 2013), cert. denied, 134 S. Ct. 396 (2013); Bishop v. U.S. Dep’t of
Homeland Sec., No.: 11-573 (D.N.J. June 13, 2011); Bishop v. U.S. Dep’t of Homeland Sec., No.
2:10-cv-1095, 2010 WL 5392897 (D.N.J. Dec. 21, 2010). Indeed, while Bishop brought each of
these cases under different legal theories and under different statutes, the cases all pertain to his
termination. Thus, to the extent that this is another attempt to appeal the decision of the MSPB,

5

While Plaintiff’s Complaint alleges that “[his] status as an excepted service federal
career intern excludes him from the jurisdiction of the [MSPB],” this argument is not tenable.
The MSPB typically does lack jurisdiction over appeals of termination decisions raised by
employees during a probationary period. See Johnson v. Merit Sys. Prot. Bd., 431 Fed. Appx.
915, 917 (Fed. Cir. 2011); Collins v. Merit Sys. Prot. Bd., 978 F.2d 675, 679 (Fed. Cir. 1992).
However, the MSPB may exercise jurisdiction over probationary employees who claim they
were terminated as a result of engaging in protected whistleblowing activity under the
Whistleblower Protection Act. 5 U.S.C. § 1221(a); 5 C.F.R. 1209.2(b)(1); see also Smart v.
Dep’t of Army, 157 Fed. Appx. 260, 261 (Fed. Cir. 2005). Indeed, this was the exact type of
appeal that Plaintiff filed with the MSPB following his termination. See Bishop 2009 MSPB
Decision, at 1. Therefore, Plaintiff’s argument regarding the MSPB’s jurisdiction is misplaced.
11

this Court lacks subject-matter jurisdiction, as judicial review of MSPB decisions lies in the
exclusive jurisdiction of the Federal Circuit. See Elgin v. Dep’t of Treasury, 132 S. Ct. at
2133−34; Semper, 747 F.3d at 235 (“As the Federal Circuit observed, this statutory scheme
provides for administrative review by the Merit Systems Protection Board (“MSPB”), followed
by judicial review by the Federal Circuit itself.”). Further, as the Court has discussed supra note
5, Plaintiff’s arguments that the MSPB does not have jurisdiction over his case are misplaced.
Plaintiff’s claim that 29 C.F.R. § 1614.407(d) forbids appeal to the Federal Circuit is
similarly untenable. 29 C.F.R. § 1614.407 governs timeliness of appeals pursuant to Title VII,
the ADEA, and the Rehabilitation Act, none of which apply to the instant matter. Despite the
lack of any allegations of discrimination in the Complaint, Plaintiff further asserts in his briefing
that this Court does properly have jurisdiction over his Complaint because he made an EEOC
complaint. While Plaintiff is correct in asserting that the CSRA permits appeal of a MSPB
decision in a district court “[w]hen a covered employee ‘alleges that a basis for the action was
discrimination’ prohibited by enumerated federal employment laws,” the exception does not
apply here because Plaintiff has not premised his claim on discrimination. Elgin, 132 S. Ct. at
2134.
Thus, this Court lacks subject matter jurisdiction over this matter for three reasons: (1)
Congress has not waived sovereign immunity to permit claims of constitutional violations
against federal agencies, (2) the CSRA precludes Plaintiff from bringing this claim in a district
court, and (3) to the extent that Plaintiff’s claim is an appeal of the MSPB’s decision, it must be
brought in the Federal Circuit. Accordingly, Plaintiff’s claim is dismissed for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1).
B. Rule 12(b)(6) - Statute of Limitations

12

While I find that this Court lacks subject matter jurisdiction over this action, I will
address the statute of limitations argument in the alternative, for the benefit of the parties,
specifically the pro se Plaintiff. The Government argues that Plaintiff’s claim fails under Rule
12(b)(6) because Plaintiff’s claim is barred by the statute of limitations for § 1983 and Bivens
actions.
The statute of limitations for any Section 1983 or Bivens actions is borrowed from the
state’s personal injury statute. Kost v. Kozakiewicz, 1 F.3d 176, 189-90 (3d Cir. 1993). In New
Jersey, the personal injury statute of limitation is two years. Hughes v. Kniebler, 341 Fed. Appx.
749, 752 (3d Cir. 2009) (citing N.J.S.A. §2A:14-2). The statutes of limitations for § 1983 and
Bivens actions begin to run “at the point that the plaintiff has ‘a complete a present cause of
action,’ meaning that he ‘can file suit and obtain relief,’” i.e. “when the plaintiff ‘knew or should
have known of the injury upon which its action is based.’” Raines v. Lappin, No. 11-5681, 2013
WL 3283930, at *3 (D.N.J. June 26, 2013).
Here, Plaintiff’s main allegation is that DHS “failed to provide the Plaintiff with thirty
days written notice of the proposed action which identifies specific instances of unacceptable
performance by the Plaintiff on which its proposed adverse action were based [and] failed to
provide the Plaintiff with the opportunity to obtain a lawyer and to answer any proposed adverse
action.” Compl. at 1. Thus, the statute of limitations began to accrue on before August 20, 2007,
the date of Plaintiff’s termination. See Raines, 2013 WL 328930, at *3. However, Plaintiff did
not file this Complaint until August 1, 2014. Thus, Plaintiff’s due process claim is barred by the
two-year statute of limitations. Cf. Mobley v. U.S. Postal Serv., 204 Fed. Appx. 12, 16 (Fed. Cir.
2006).6

6

To the extent that Plaintiff’s claim seeks judicial review of the 2010 MSPB Final Order, such a
13

IV.

Motion for a Pre-filing Injunction
Finally, the Government additionally requests that this Court enjoin Plaintiff from filing

future suits against them regarding his termination. While this Court does have the broad power
to issue such an injunction pursuant to 28 U.S.C. § 1651, Robinson v. N.J. Mercer Cty. VicinageFamily Div., 562 Fed. Appx. 145, 148 (3d Cir. 2014), it should exercise caution when
approaching a pre-filing injunction against a pro se plaintiff. Day v. Toner, 549 Fed. Appx. 66,
67 (3d Cir. 2014). “However, a District Court may enjoin a pro se litigant from future filings so
long as the injunction complies with three requirements: (1) the litigant must be continually
abusing the judicial process; (2) the litigant must be given notice of the potential injunction and
an opportunity to oppose the court's order; and (3) the injunction must be narrowly tailored to fit
the specific circumstances of the case.” Grossberger v. Ruane, 535 F. App'x 84, 86 (3d Cir.
2013) (citing Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993)).
Such an injunction is warranted in this case. As of the date that the Government filed its
motion, it appears that Plaintiff has filed four civil actions regarding his termination, all of which
appear to have lacked merit and have been dismissed, including the present lawsuit.7 Any future

request must have been filed with the Federal Circuit sixty days after the MSPB issued its final
decision. See 2010 MSPB Final Order; see also 5 U.S.C. § 7703(b)(1). The MSPB issued its
Final Order to Plaintiff on February 24, 2010. Thus, any request for judicial review must have
been brought by April 24, 2010. Accordingly, to the extent that Plaintiff’s claim seeks judicial
review of the MSPB’s decision, such a claim is also time-barred. See id.
7

The Third Circuit’s opinion in Bishop, 514 Fed. Appx. at 104–05, details Bishop’s prior suits.
Bishop’s first complaint sought reinstatement to his position on the ground
that the DHS breached a purported contract by improperly terminating him on the
basis of disclosures that he made while attempting to resolve a claim before the
EEOC. The District Court transferred the complaint to the United States Court of
Appeals for the Federal Circuit to be treated as a petition for review . . . . Bishop
did not pursue the petition, however, and the court dismissed it. Instead of
pursuing that petition, Bishop filed another nearly identical complaint in the
14

cases filed by Bishop regarding his termination would be repetitive and frivolous. Day v. Day,
510 U.S. 1, 2 (1993) (“‘[E]very paper filed with the Clerk of this Court, no matter how
repetitious or frivolous, requires some portion of the institution's limited resources. A part of the
Court's responsibility is to see that these resources are allocated in a way that promotes the
interests of justice.’”) (quoting In re McDonald, 489 U.S. 180, 184 (1989)); Whitaker v. Superior
Court of San Francisco, 514 U.S. 208, 210 (1995) (“‘The goal of fairly dispensing justice . . . is
compromised when the Court is forced to devote its limited resources to the processing of
repetitious and frivolous requests.’”) (quoting In re Whitaker, 513 U.S. 1, 2 (1994)); see also
Hibbard v. Penn-Trafford Sch. Dist., No. CIV.A. 13-622, 2015 WL 321654, at *3 (W.D. Pa. Jan.
23, 2015). As such, this Court finds Plaintiff’s filings on this issue are continually abusive of the
judicial process and that further such filings initiated by Plaintiff would exacerbate the abuse.
See id. at *3. Further, regarding the second element of the pre-filing injunction test, Plaintiff has
received (1) sufficient notice regarding the possibility of a pre-filing injunction being issued (by
way of the Government’s motion, properly served on Bishop, requesting such an injunction) and

District Court. The District Court dismissed that complaint, and Bishop did not
appeal.
Bishop then filed [his third lawsuit]. This time, he brought a claim under
the Privacy Act seeking an order requiring defendants to “correct” the purportedly
inaccurate records that led to his termination. He also alleged that defendants
refused his requests under the Freedom of Information Act (“FOIA”) for his
personnel file, which he claimed would reveal that his termination was illegal. In
addition he repeated his allegations regarding the purported misuse of his EEOCrelated disclosures, claimed that his termination as otherwise wrongful, and
sought damages for his “loss of salary and career opportunities.” The District
Court dismissed Bishop’s complaint, and Bishop appeal[ed].
Id. The Third Circuit affirmed the District Court’s dismissal of Plaintiff’s third lawsuit. Id. at
105.

15

(2) an opportunity to respond (by way of an opposition brief).8 See In re Oliver, 682 F.2d at
445−446 (3d Cir. 1982).
Therefore, to promote judicial efficiency and deter further frivolous filings, this Court
issues the following, narrowly tailored injunction: Plaintiff Paul J. Bishop, when proceeding pro
se, is enjoined from filing a complaint against any of the defendants herein or any employee,
agent, or attorney thereof, in the United States District Court, District of Jersey, relating to his
termination from DHS, without prior leave of the Court.9 See Gage v. Wells Fargo Bank, N.A.,
AS, 555 Fed. Appx. 148, 152 (3d Cir. 2014) (affirming a similar injunction against a pro se
plaintiff); see also Perry v. Gold & Laine, P.C., 371 F.Supp.2d 622, 632 (D.N.J. 2005) (issuing a
similar injunction against a pro se plaintiff).
In that regard, leave of court will be freely granted upon Bishop showing through a
properly filed petition that a specific proposed filing: (1) can survive a challenge under Federal
Rule of Civil Procedure 12; (2) is not barred by principles of claim or issue preclusion; and (3) is
not repetitive or violative of a court order. The Order and Injunction to follow will not apply to
the filing of timely notices of appeal from this Court to the Third Circuit Court of Appeals and
papers solely in furtherance of such appeals.
V.

Conclusion
Thus, for the foregoing reasons, the Government’s motion to dismiss is GRANTED, and

its motion for a pre-filing injunction is also GRANTED. An appropriate order shall follow.

8

In apparent response to the Government’s motion for a pre-filing injunction, Plaintiff states that
“[a]ny attempt to restrict my access to the Courts will violate my Civil Rights.” Pl.’s Opp. Br. at
15.
9

Further, Plaintiff must attach a copy of this opinion and order herewith to any subsequent
lawsuit filed pertaining to his termination from DHS.
16

Dated: May 6, 2015

/s/ Freda L. Wolfson
The Honorable Freda L. Wolfson
United States District Judge

17