Arroyo-Planas et al v. Lamoutte et al

Filing 42

MEMORANDUM AND ORDER granting Defendants' 21 Motion to Dismiss the Complaint. Signed by Judge Mary M. Lisi on 9/22/2015. (JD)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

VIANCA A. ARROYO PLANAS,
her husband, VICTOR L. ROSARIO,
and their Conjugal Partnership,
Plaintiffs,
v.

C.A. No. 14-1468-MML

HON. ENRIQUE LAMOUTTE, Chief Judge,
U.S. Bankruptcy Court for the District of
Puerto Rico, and;
MARIA DE LOS ANGELES GONZALEZ, Clerk
of the Court, personally, and;
WILMA JAIME, Chief Deputy Clerk of the
Court, personally, and;
YOLANDA BENITEZ, Human Resources/
Training Specialist with the Office of the
Clerk of the Court, personally and;
SIX UNKNOWN DEFENDANTS, personally,
Defendants.

MEMORANDUM AND ORDER
The

primary

plaintiff

in

this

employment-related

action,

Vianca A. Arroyo-Planas (“Arroyo-Planas,” together with her husband
Victor L., Rosario (“Rosario”), the “Plaintiffs”), seeks damages as
well as declaratory and equitable relief for the alleged wrongful
termination of her employment at the Office of the Clerk of the
United States Bankruptcy Court for the District of Puerto Rico (the

1

“Bankruptcy Court”).1 The defendants in the case (the “Defendants”)
include one of the judges of the Bankruptcy Court where ArroyoPlanas had been employed for nearly sixteen years, the Clerk of the
Court, the Chief Deputy Clerk, the Human Resources Specialist, and
six “unknown defendants.”
The matter is before the Court on the Defendants’ motion to
dismiss Arroyo-Planas’s complaint (the “Complaint”) for lack of
subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1),
and for failure to state a claim upon which relief may be granted,
pursuant to Fed. R. Civ. P. 12(b)(6).
I.

Factual and Procedural Summary
Arroyo-Planas began working at the Bankruptcy Court as a full-

time Notice Clerk (Grade CL-21) on September 1, 1997. Complaint ¶13
(Dkt. No.1). By November 30, 2006, Arroyo-Planas was working as a
Court Services Clerk (Grade CL-25), a position she still held on
the day of her termination. Complaint ¶14. On July 2, 2013, ArroyoPlanas was informed by Chief Deputy Clerk Wilma Jaime and Clerk of
the Court Maria de los Angeles Gonzalez that her employment was
terminated as of July 5, 2013. Arroyo-Planas was also given a
letter, which stated that her Grade CL-25 position was being
abolished as “a direct result of a reduction in force due to

1

The case was assigned to this Court after two of the district
court judges of the United States District Court for the District
of Puerto Rico recused themselves from the case. Letter with
Designations (Dkt. No. 6).
2

budgetary constraints.” Complaint ¶¶16-21. Upon inquiry, ArroyoPlanas learned that the Grade CL-25 position of a younger male coworker was also being terminated, but that the termination of his
employment was not effective until September 30, 2013. Complaint
¶22.
According to the Complaint, Arroyo-Planas asked about the
reason for the different termination dates and was told that,
because she would be eligible to receive retirement benefits on
July 15, 2013, her fifty-sixth birthday, the Defendants had acted
“expeditiously” to terminate her employment before that date.
Complaint ¶23. It should be noted at this point that, although it
is

correctly

stated

that

Arroyo-Planas

became

eligible

for

retirement annuity payments on July 15, 2013, termination of her
employment just prior to that date did not affect her eligibility
for that benefit. However, the timing of the termination just prior
to the eligibility date allowed Arroyo-Planas to collect a year’s
salary as severance pay, which would not have been available to
her, had her employment continued beyond her retirement eligibility
date.
On July 9, 2013, Arroyo-Planas sent a letter to the Clerk of
Court as an “informal request” to reconsider the termination of her
employment. Complaint ¶36. Arroyo-Planas requested to be reinstated
to any lower grade position being held by a person with less
seniority or, in the alternative, postponement of her employment

3

termination until September 30, 2013. Complaint ¶ 37. According to
the Complaint, following the termination of her employment, ArroyoPlanas received a letter from the Administrative Office of the
United States Courts, informing her that, pursuant to 5 U.S.C.
§55952, she qualified for severance pay because her separation from
employment

was

involuntary.

Complaint

¶41.

According

to

the

Defendants’ Answer (Dkt. No. 17), between July 19, 2013 and July 4,
2014, Arroyo-Planas received severance payments totaling $54,183.
Answer at ¶6.
On October 4, 2013, after Arroyo-Planas had asked Human
Resources Specialist Yolanda Benitez (“Benitez”) how she could
appeal the termination of her employment, Benitez informed ArroyoPlanas that the Bankruptcy Court did not have a procedure to appeal
her termination. Complaint ¶¶43-44. Arroyo-Planas and her husband
were also informed that employment by judicial appointment was “at
will,” and that employees of the federal judiciary service were not
covered

by

the

Complaint ¶44.
but

was

not

legal

provisions

of

the

competitive

service.

Arroyo-Planas further alleges that she requested,
provided

with,

a

copy

of

the

personnel

manual.

Complaint ¶¶43, 45. According to the Complaint, at some point
following her separation, Arroyo-Planas withdrew her retirement

2

As set forth in 5 U.S.C. §5595, the severance pay is computed
based on the length of service and enhanced by an allowance “for
each year by which the age of the recipient exceeds 40 years at the
time of separation.” 5 U.S.C. §5595(c).
4

contributions to meet her financial commitments. Complaint ¶ 102.3
On June 12, 2014, Arroyo-Planas filed a four-count complaint
in the United States District Court for the District of Puerto
Rico, asserting claims of deprivation of procedural due process
(Count I) and substantive due process (Count II), and violation of
the Equal Protection Clause (Count III). In addition, Arroyo-Planas
seeks declaratory and equitable relief (Count IV), as well as
pecuniary and punitive damages.
Arroyo-Planas

contends

that

she

had

a

protected

liberty

interest in her continued employment and that she was deprived of
her constitutional right to effective notice and pre- and postdeprivation hearings prior to the termination. Complaint ¶¶58-62.
Arroyo-Planas also alleges that her male colleague was treated more
favorably and that the termination of her employment was intended
to impede her qualifications for retirement benefits and resulted
in the deprivation of her substantive due process rights. Complaint
¶¶71, 76. According to Arroyo-Planas, she was the subject of
intentional discrimination “by unequal treatment due to her gender
and her age.” Complaint ¶ 82. Arroyo-Planas suggests that the
asserted reason for the termination—budgetary constraints resulting

3

Although it is never explicitly stated in Arroyo-Planas’s
pleadings, it appears that the withdrawal of her retirement
contributions effectively rendered her ineligible for retirement
benefits, which would have consisted of life-long annuity payments
computed on her sixteen years of federal service. Answer at 63, 75,
87, 98.
5

in the abolishment of her position—was belied by (1) more favorable
treatment of her male colleague (to the extent that his employment
continued until September 2013); and (2) the conversion of two
temporary positions to permanent positions and/or the extension of
promotions to other employees, accompanied by pay raises. Complaint
¶83.

In her request for relief, Arroyo-Planas seeks a declaration

that, inter alia, she had the expectation of continued employment,
a “real, tangible and protectable interest regarding her Retirement
Benefits,” and that she is entitled to a reinstatement to her
position and/or the accumulation of the time needed to qualify for
Retirement Benefits and/or the replenishment of her retirement
contributions. Complaint ¶¶96-98, 103.
On October 2, 2014, following designation of this Court to
preside over the case, the Defendants filed an answer (Dkt. No. 17)
to the Complaint, asserting, inter alia, that the Court lacks
jurisdiction

over

Arroyo-Planas’s

claims

because

“[j]udiciary

employees have no property interest in their employment and thus no
due process protection under the Constitution.” Answer ¶1.
On December 7, 2014, following a November 5, 2014 telephonic
Rule 16 scheduling conference, the Defendants filed a motion to
dismiss the Complaint (Dkt. No. 21), to which the Plaintiffs filed
a response in opposition (Dkt. No. 27). The Defendants elected not
to file a reply thereto. The parties have engaged in settlement
discussions, which ultimately were unsuccessful.

6

II. Standard of Review
A.

Motion to Dismiss

The dismissal of a complaint is governed by Rule 12 of the
Federal Rules of Civil Procedure. The Court may dismiss a complaint
inter alia, for lack of subject-matter jurisdiction, Fed. R. Civ.
P. 12(b)(1), or for failure to state a claim upon which relief can
be granted, Fed. R. Civ. P. 12(b)(6). The standard of review under
Fed. R. Civ. P. 12(b)(1) “is similar to that accorded a dismissal
for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).”
Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) cert.
denied,

515

U.S.

1144,

115

S.Ct.

2581,

132

L.Ed.2d

831

(1995)(citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683,
1686, 40 L.Ed.2d 90 (1974)).
It is well established that, “when a defendant moves to
dismiss for lack of federal subject matter jurisdiction,

‘the

party invoking the jurisdiction of a federal court carries the
burden of proving its existence.’” Johansen v. United States, 506
F.3d 65, 68 (1st Cir. 2007)(quoting Murphy v. United States, 45
F.3d at 522). In determining a motion to dismiss a case for lack of
subject matter jurisdiction, the Court “give[s] weight to the
well-pleaded factual averments in the operative pleading (here, the
petitioners' amended complaint) and indulge[s] every reasonable
inference

in

the

pleader's

favor.”

Aguilar

v.

United

States

Immigration and Customs Enforcement Div. of Dept. of Homeland
7

Security, 510 F.3d. 1, 8 (1st Cir. 2007); Muñiz–Rivera v. United
States, 326 F.3d 8, 11 (1st Cir.2003). Accordingly, the Court must
“construe the complaint liberally, treat all well-pleaded facts as
true, and

indulge

plaintiff.”

all

reasonable

inferences in favor

of

the

Aversa v. United States, 99 F.3d 1200, 1210 (1st

Cir.1996). However, a “plaintiff cannot rest a jurisdictional basis
merely on ‘unsupported conclusions or interpretations of law.”
Johansen v. United States, 506 F.3d at 68 (quoting Murphy, 45 F.3d
at 522 (quoting Washington Legal Found. v. Massachusetts Bar
Found., 993 F.2d 962, 971 (1st Cir.1993)).
Similarly, in deciding a motion for dismissal pursuant to Fed.
R. Civ. P. 12(b)(6), the Court accepts “all well-pleaded facts as
true and draw[s] all reasonable inferences” in favor of the party
objecting to the dismissal. Carreiro v. Rhodes Gill and Co., Ltd.,
68 F.3d 1443,

1446 (1st Cir. 1995)(citing Washington Legal Found.

v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir.1993)).
However, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)(noting that the court is “not
bound to accept as true a legal conclusion couched as a factual
allegation”)(internal citation and quotation marks omitted).

8

III. The Parties’ Positions
A. Defendants’ Motion to Dismiss
The

Defendants

take

the

position

that

this

Court

lacks

jurisdiction over Arroyo-Planas’s claims because, as a judicial
employee included in the “excepted service” category of the Civil
Service Reform Act of 1978 (“CSRA”) Pub.L. 95-454, 92 Stat. 111,
she was an “at will” employee subject to removal by the Clerk of
the

Bankruptcy

Court.

Accordingly,

the

Defendants

argue

that

Arroyo-Planas had no property interest in her continued employment
and that she was precluded from challenging the termination of her
employment for alleged due process violations or from bringing a
damages claim under Bivens4.
With respect to Arroyo-Planas’s claims of violation of the
Equal

Protection

Clause,

the

Defendants

point

out

that,

notwithstanding the termination of her employment shortly before
her

fifty-sixth

birthday,

Arroyo-Planas

became

eligible

for

retirement benefits as soon as she reached the minimum retirement
age (“MRA”) of fifty-six, because she had worked as a federal
employee for more than ten years. The Defendants note, however,
that the termination of Arroyo-Planas’s employment on or after her
fifty-sixth birthday would have rendered her ineligible to receive
the severance payment. Arroyo-Planas’s younger male colleague,

4

Webster Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L.Ed.2d 619 (1971).
9

whose employment

was

terminated

at

the

same time,

but

which

termination did not take effect until September 2013, was not
subject to the same consideration since he had not reached his MRA
yet.
B.
In

Plaintiffs’ Objection
the

Complaint,

Arroyo-Planas

alleges,

without

further

context or elucidation, that “[t]he Civil Service Reform Act is not
applicable to the employees of the Judicial Branch,” Complaint ¶46,
an allegation to which the Defendants take no exception in their
answer. Answer ¶46. From that basis, the Plaintiffs argue that
because “the CSRA is inapplicable to federal judicial employees []
and Defendants have failed to identify the statute that would deny
plaintiffs a ‘judicial forum for a colorable constitutional claim,’
there is no impediment for the exercise of the district court’s
jurisdiction on the constitutional causes of action, 28 U.S.C.
3331.” Pltfs.’ Obj. at 11-12.
Arroyo-Planas rejects the Defendants’ contention that she was
an “at will” employee, arguing that the “special circumstances of
[her] employment, where she was a permanent tenured employee and
who subjectively and objectively believed that she had a right to
continued employment,” are sufficient to establish that she had “a
property interest that is protectable under the Constitution.”
Pltfs.’ Obj. at 12, 16.
Finally,

regarding

her

equal

10

protection

claim,

Arroyo

maintains that terminating her employment just before her fiftysixth birthday, while allowing her younger male colleague (whose
position was abolished at the same time) to work until September
30, 2013, constituted unequal treatment due to her age. Pltfs.’
Obj. 17-18. Arroyo-Planas’s support for that allegation is limited
to suggesting that termination of her employment just before her
fifty-sixth birthday was designed to deprive her of her retirement
benefits.
IV.

Discussion
A.

The Due Process Claims

At the outset, the Court notes that, contrary to ArroyoPlanas’s contention in the Complaint, the Civil Service Reform Act
(“CSRA”) is “applicable” to judicial employees. The CSRA defines
certain categories for all federal employees and it sets forth the
various remedies available to federal employees against prohibited
personnel practices. The CSRA does not, however, afford judicial
employees, who belong to the “excepted service” category, the same
opportunities

to

challenge

adverse

personnel

actions

that

it

provides to other categories of federal employees. Specifically,
the CSRA does not provide for administrative or judicial review of
personnel actions taken against members of the “excepted service”
category, to which Arroyo-Planas belongs.
The CSRA provides a comprehensive remedial scheme through
which

federal

employees

may

challenge

11

“prohibited

personnel

practices.”

5 U.S.C. §§ 2302, 7512–13, 7701. The purpose of the

CRSA’s integrated scheme of “administrative and judicial review”
for

adverse

employment

action

is

to

“balance

the

legitimate

interests of the various categories of federal employees with the
needs of sound and efficient administration.” United States v.
Fausto, 484 U.S. 439, 445, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). To
that end, the CSRA “prescribes in great detail the protections and
remedies applicable to such action, including the availability of
administrative and judicial review.” United States v. Fausto, 484
U.S. at 443, 108 S. Ct. at 671.
However,

the

“detailed

protections

and

remedies

afforded

federal civil servants by the CSRA do not apply uniformly to all
covered employees.” Dotson v. Griesa, 398 F.3d 156, 163 (2d. Cir.
2005). The CSRA distinguishes between employees in (1) the senior
executive

service,

5

U.S.C.

§3132(a)(2);

(2)

the

competitive

service, 5 U.S.C. §2102(a)(2); and (3) the excepted service. 5
U.S.C.

§2103(a).

Judicial

employees

like

Arroyo-Planas

are

categorized as excepted service personnel because they are not
included in either the senior executive or the competitive service.
See 5 U.S.C. §§ 7511 (a), 7511(b). The CRSA also allows for the
preferential treatment of employees in the three categories if they
are veterans or close relatives of veterans. 5 U.S.C. § 2108. There
has been no assertion that Arroyo-Planas belongs to a preferenceeligible category; for purposes of the CSRA, she is categorized as

12

a non-preference excepted service employee.
Chapters 43, 23, and 75 of the CSRA govern personnel action
against members of the civil service. Fausto, 484 at 445. It is
well established law that neither Chapter 75 nor either of the
other two chapters gives non-preference members of the excepted
service the right to judicial review for adverse personnel actions.
Fausto, 484 U.S. at 445-447 108 S.Ct. 668. In Fausto, the Supreme
Court of the United States, upon reviewing the efforts of a nonpreference

excepted

service

employee

to

seek

review

of

his

suspension, determined that the “deliberate exclusion of employees
in

respondent’s

establishing

service

category

administrative

and

from

judicial

the

[CSRA]

review

provision

for personnel

action” of which he complained, precluded him from “seeking review
in the Claims Court under the Back Pay Act.”
454, 108 S.Ct. 668.

Fausto, 484 U.S. at

The Supreme Court concluded 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.” United States v. Fausto,
484 U.S. at 448, 108 S. Ct.at 674); see also Elgin v. Dept’t of
Treasury,

----U.S.----,

132

S.Ct.

13

2126,

2133,

183

L.Ed.2d

1

(2012)(holding that the CSRA, which provides exclusive avenue to
judicial review

for

federal

employees,

“entirely

foreclose[s]

judicial review to employees to whom the CSRA denies statutory
review.”)
In other words, if the CSRA does not afford judicial review
procedures to non-preference excepted service employee for adverse
personnel actions, no judicial review is available to them at all.
Elgin, 132 S.Ct. at 2133. See, e.g. Paige v. Cisneros, 91 F.3d 40,
(7th Cir. 1996)(noting that “by creating a comprehensive review
system the CSRA implicitly repealed the jurisdiction of federal
district courts over personnel actions...even if the action is
against a member of the excepted service who has no right to a
[review under the CSRA].” Id. As a result, many personnel actions
are unreviewable in any court or administrative tribunal. Id.
(citing Fausto, 484 U.S. 439).
The First Circuit has recognized that an excepted service
employee is not covered by the same protective measures set forth
in the CSRA that are available to senior executive and competitive
service employees. See e.g. Berrios v. Department of Army, 884 F.2d
28, 30 (1st Cir. 1989) (concluding that because “the CSRA preempts
challenges to personnel actions brought under federal law” the CSRA
preempted “plaintiff's entire district court action,” including
constitutional claims against the defendants); see also Pathak v.
Department of Veterans Affairs, 274 F.3d 28 (1st Cir. 2001). The

14

plaintiff in Pathak, an excepted Service employee, brought an
action under the Administrative Procedures Act (“APA”) against the
Department of Veterans Affairs (“DVA”) to challenge his seven-day
suspension.

When Pathak appealed the district court’s grant of

summary judgment against him, the DVA raised the argument that
Pathak’s challenge was not subject to judicial review. The First
Circuit agreed, noting that as a non-preference eligible member of
the excepted service, Pathak was precluded from judicial review
under the CSRA. Pathak, F.3d at 31(“Fausto stands for the general
proposition that judicial review is unavailable to a federal
employee who has suffered an adverse personnel action if CSRA does
not provide judicial review.”). Moreover, because the CSRA did not
provide Pathak with a right to judicial review, the First Circuit
determined that “he cannot go around the CSRA and assert federal
jurisdiction by relying upon the [APA].” Pathak, 274 F.3d at 32.
The First Circuit also noted in Pathak that it would not
consider Pathak’s claim of violation of due process because it
concluded that his constitutional claim was “not even colorable,”
id. at 33; it suggested, however, “despite the CSRA’s expansive
reach,

we

might

have

jurisdiction

to

review

a

plaintiff’s

constitutional claims.” Elgin v. Dept. of Treasury, 641 F.3d 6, 18
n.12 (1st Cir. 2011). That issue was subsequently settled in Elgin
v. Dept’t of Treasury, ----U.S.----, 132 S.Ct. 2126, 2133, 183
L.Ed.2d 1 (2012). In Elgin, the Supreme Court, affirming the First

15

Circuit’s conclusion that the CSRA was the exclusive remedy for
federal employees to challenge the constitutionality of their
removal, Elgin, 641 F.3d at 11 (“[T]his circuit has been firm in
treating

the

CSRA

remedy

as

exclusive

as

to

equitable

constitutional claims”), held that “the CSRA precludes district
court jurisdiction over petitioners’ claims even though they are
constitutional claims for equitable relief.” Elgin v. Dept’t of
Treasury, 132 S.Ct. at 2133, 183 L.Ed.2d 1. It is noted, however,
that the plaintiffs in Elgin belonged to the competitive service
category

whose

constitutional

claims

could

be

”meaningfully

addressed” in the Federal Circuit. Elgin, 132 S.Ct. at 2132.
In the instant case, it is undisputed that Arroyo-Planas, a
former judicial employee at the Bankruptcy Court and the primary
plaintiff in this case, belongs to the “non-preference excepted
service”

category.

As

a

member

of

that

category

of

federal

employees, the CSRA provides to her no means for administrative or
judicial review. Because the CSRA provides the exclusive means for
review of adverse personnel actions even if the plaintiff raises
constitutional

claims,

the

deliberate

exclusion

from

the

protections of the CSRA precludes Arroyo-Planas from judicial
review of her involuntary separation from service in the Bankrupcty
Court. Accordingly, this Court has no jurisdiction over ArroyoPlanas’s claims regarding the termination of her employment or her
related due process claims.

16

B.

The Bivens Claim
Likewise, Arroyo-Planas is precluded by the CSRA from invoking

jurisdiction of this Court under Bivens. Under the Bivens doctrine,
plaintiffs

have

an

opportunity

to

“‘vindicate

certain

constitutionally protected rights through a private cause of action
for

damages

against

federal

officials

in

their

individual

capacities.’” Chiang v. Skeirik, 582 F.3d 238, 243 (1st Cir.
2009)(quoting DeMayo v. Nugent, 517 F.3d 11, 14 (1st Cir.2008)
(emphasis added in Chiang v. Skeirik). See also Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 70, 122 S.Ct. 515, 151 L.Ed.2d 456
(2001)(“The purpose of Bivens is to deter individual federal
officers

from

committing

constitutional

violations.”).

Bivens

actions have also been permitted under § 1331 for violations of the
Due Process Clause of the Fifth Amendment,

Davis v. Passman, 442

U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and the Cruel and
Unusual Punishments Clause of the Eighth Amendment, Carlson v.
Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). As the
Supreme Court noted in Schweiker v. Chilicky, 487 U.S. 412, 421,
108 S. Ct. 2460, 2466-67, 101 L. Ed. 2d 370 (1988), “[i]n each of
these cases, as in Bivens itself, the Court found that there were
no

special

factors

counseling

hesitation

in

the

absence

of

affirmative action by Congress, no explicit statutory prohibition
against the relief sought, and no exclusive statutory alternative
17

remedy.” Id. (citing Davis v. Passman, 442 U.S. at 246-247, 99
S.Ct. at 2277-2278 ; Carlson v. Green, 446 U.S. 14, 18-20, 100
S.Ct., 1468, 1471-1472 (1980).
The Supreme Court, in Bush v. Lucas, 462 U.S. 367, 381–90, 103
S.Ct. 2404, 76 L.Ed.2d 648 (1983), refused to infer a Bivens remedy
where the CSRA covered the underlying adverse employment action.
Subsequently, the Court declined in Schweiker v. Chilicky, 487 U.S.
412, to create additional Bivens remedies “[w]hen the design of a
Government program suggests that Congress has provided what it
considers

adequate

remedial

mechanisms

for

constitutional

violations that may occur in the course of its administration.”
Schweiker v. Chilicky, 487 U.S. at 423, 108 S. Ct. at 2468.
Other Circuits have followed suit.

See e.g., Dotson v.

Griesa, 398 F.3d 156, 165-171 (2d Cir. 2005) (holding that CRSA
precluded excepted service employee from bringing Bivens action);
Saul v. United States, 928 F.2d 829 (9th Cir.1991)(CSRA precluded
Social Security Administration employee’s Bivens claim); Lombardi
v. Small Bus. Admin., 889 F.2d 959, 960 (10th Cir. 1989) (holding
that because federal employee’s claims were governed by the CSRA,
Bivens claim was precluded by the Supreme Court's holdings in Bush,
Fausto, and Schweiker); Lee v. Hughes, 145 F.3d 1272 (11th Cir.
1998)(holding that CSRA precluded probation officer from bringing
Bivens claim to recover monetary damages for alleged constitutional
violations).

18

Based on the foregoing, the Court concludes that, given the
comprehensive statutory scheme of the CSRA, Arroyo-Planas, a nonpreference member of the excepted service, is precluded from
asserting a Bivens claim against the Defendants in connection with
the termination of her employment, even though she was not entitled
to administrative or judicial review under the CRSA.
C.

The Equal Protection Claim
The CSRA “does not extinguish any right or remedy available to

federal employees under federal discrimination laws. 5 U.S.C.
§2302(d)5,

see

also

42

U.S.C.

§2000e-16(c).”

Grosdidier

v.

Chairman, Broadcasting Bd. of Governors, 560 F.3d 495, 498 n. 2
(U.S.App.D.C.

2009)

cert.

denied

Grosdidier

v.

Chairman,

Broadcasting Bd. of Governors, 558 U.S. 989, 130 S.Ct. 488, 175
L.Ed.2d 345 (2009); Wilson v. Harvey, 156 Fed. Appx. 55, 57 n. 4
(10th Cir. 2005)(noting that “the CSRA does not preempt Title VII).
See 5 U.S.C. § 2302(d)(1) (“This section shall not be construed to
5

5 U.S.C. §2302(d) provides, in pertinent part, the following:
(d) This section shall not be construed to extinguish or lessen any
effort to achieve equal employment opportunity through affirmative
action or any right or remedy available to any employee or
applicant for employment in the civil service under-(1) section 717 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-16), prohibiting discrimination on the basis of race, color,
religion, sex, or national origin;
(2) sections 12 and 15 of the Age Discrimination in Employment Act
of 1967 (29 U.S.C. 631, 633a), prohibiting discrimination on the
basis of age;...
19

extinguish or lessen ... any right or remedy available to any
employee or applicant for employment in the civil service under ...
section 717 of the Civil Rights Act of 1964 (42 U.S.C.2000e–16),
prohibiting discrimination on the basis of race, color, religion,
sex, or national origin.”).
Accordingly, the Court next considers Arroyo-Planas’s unequal
treatment claim. Although neither party has addressed the issue,
the

Court’s

independent

review

has

revealed

that,

following

Congress’s enactment of the CSRA, federal courts were required to
adopt Equal Employment Opportunity (“EEOC”) plans “‘in conformance
with the national policy of providing equal employment opportunity
to all persons regardless of their race, sex, color, national
origin, religion, age ... or handicap.’” Dotson v. Griesa, 398 F.3d
at 172 (quoting Rep. of the Jud. Conf. of the United States,
Judiciary

Equal

Employment

Opportunity

Program—Model

Equal

Employment Opportunity Plan § 1 (1980, rev.1986)); Semper v. Gomez,
747 F.3d 229, 234-236 (3d Cir. 2014)(holding that CSRA precluded
judicial

employee

from

litigating

constitutional

claims

for

equitable and declaratory relief in a federal question action where
the employee could pursue meaningful relief under the employing
federal district court’s EEOC plan).
The

Court

takes

judicial

notice

that

the

United

States

District Court for the District of Puerto Rico has implemented a
“Consolidated Equal Employment Opportunity and Employment Dispute

20

Resolution Plan,6” (the “EEOC Plan”) which applies, inter alia, to
the Office of the Clerk of the Bankruptcy Court. Under the EEOC
Plan, a judicial employee who believes that he or she has been
subjected

to

workplace

discrimination,

may

initiate

informal

resolution procedures that include counseling and mediation. EEOC
Plan at 12-15. If the employee is not satisfied by the outcome, he
or she may submit a complaint to the court’s Employment Dispute
Resolution Coordinator, which is subject to review by the Chief
Judge or a designated judicial officer of the court. EEOC Plan at
15-17.

The final decision is subject to review by the Judicial

Council. EEOC Plan at 17.
There is no indication that Arroyo-Planas sought to avail
herself of the resolution processes available under the EEOC Plan.
According

to

the

Complaint,

Arroyo-Planas

made

an

“informal

request” to the Clerk of the Court to reconsider her separation;
she also requested to be reinstated to a lower-grade position, or
to have her termination made effective as of September 30, 2013.
Complaint ¶¶35-37. In addition, Arroyo-Planas sent an e-mail to the
HR Specialist as

to how she could appeal her termination. None of

those facts support an inference that Arroyo-Planas complained of
gender and/or age-discrimination; rather, that claim was first

6

A copy of the EEOC Plan is available at
http://www.prd.uscourts.gov/sites/default/files/documents/ajax/EE
OEDR20130612.pdf
21

asserted in her June 12, 2014 Complaint.
The question of whether a judicial employee who falls under
the non-preference excepted service category can seek redress for
alleged employment discrimination in the district court has not yet
been addressed by the First Circuit. The decision by the United
States Circuit Court of Appeals of the Second Circuit in Dotson v.
Griesa, 398 F.3d 156 (2d Cir. 2005) suggests that an excepted
service employee’s right to sue on the basis of unequal treatment
is foreclosed by the exclusivity of the CSRA, at least when that
employee is afforded an alternative means of pursuing the claim.
The plaintiff in Dotson, a former United States probation officer,
brought suit for alleged race discrimination and denial of due
process in connection with the termination of his employment.
Dotson asserted, inter alia, claims for employment discrimination.
In reviewing the district court’s dismissal of Dotson’s claims, the
appellate

court

administrative

concluded

that

judicial

review

or

(1)

the

rights

CSRA
to

provided

excepted

no

service

employees; (2) given the comprehensive remedial scheme established
by the judiciary itself, judicial employees “may not sue in equity
for

reinstatement

of

employment,

even

when

they

present

constitutional challenges to their termination;” and (3) as a
judicial employee, Dotson’s “right to seek review of and relief
from

any

adverse

employment

action

was

defined

by

the

administrative grievance plans of the court where he was employed.”

22

Dotson v. Griesa, 398 F.3d at 180. The Second Circuit noted that
Dotson had not availed himself of the administrative procedures
available to him. Id. at 172 n. 9.
Similarly, the United States Court of Appeals of the Third
Circuit concluded that the CSRA precluded an excepted service
employee from bringing constitutional claims for equitable and
declaratory relief “because he was a judicial employee who could
pursue meaningful relief under a remedial plan” adopted by the
court that employed him. Semper v. Gomez, 747 F.3d at 235. The
plaintiff in Semper, after he was terminated from his position as
a United States probation officer, brought an action in the Court
of

Federal

Claims,

alleging,

inter

alia,

that

he

had

been

terminated without cause and without a pre-termination hearing in
violation of the Due Process Clause of the Fifth Amendment.
After Semper’s claims were dismissed for lack of jurisdiction,
the dismissal was affirmed by the Federal Circuit on the ground
that the CSRA foreclosed excepted service employees from seeking
review of employment actions in the Court of Federal Claims.
Semper, 694 F.3d at 92. The Federal Circuit declined to address the
question whether Semper could pursue a due process claim in a
district Court action. Semper, 694 F.3d at 96.

Semper filed a new

action in district court, claiming federal question jurisdiction.
Semper’s claims were again dismissed for lack of jurisdiction, in
part, because the comprehensive scheme of the CSRA does not provide

23

the remedy of judicial review to excepted service employees. The
Third Circuit agreed with that determination, concluding that the
district court lacked jurisdiction over Semper’s constitutional
claims because the claims were precluded by the CSRA. Semper, 747
F.3d at 235.
In the instant case, because Arroyo-Planas did not avail
herself of the existing administrative means to address her unequal
treatment claim under the existing EEOC Plan, the Court is of the
opinion that judicial review in this Court is foreclosed to her by
the exclusivity of the CSRA. However, even if the Court were to
assume that Arroyo-Planas could pursue a claim of unequal treatment
in this Court, the facts asserted by Arroyo-Planas are insufficient
to establish even a prima facie case of employment discrimination.
As explained by the First Circuit, “an equal protection claim
requires ‘proof that (1) the person, compared with others similarly
situated, was selectively treated; and (2) that such selective
treatment was based on impermissible considerations such as race,
religion,

intent

to

inhibit

or

punish

the

exercise

of

constitutional rights, or malicious or bad faith intent to injure
a person.” Rosaura Bldg. Corp. v. Municipality of Mayaguyez, 778
F.3d 55, 68 (1st Cir. 2015)(quoting Freeman v. Town of Hudson, 714
F.3d 29, 38 (1st Cir.2013)).
In her Complaint, Arroyo-Planas alleges that she “has been
intentionally discriminated [against] by unequal treatment due to

24

her gender and age.” Complaint ¶82. In sole support of that
contention, Arroyo-Planas asserts that a younger, male colleague,7
whose position was also eliminated at the same time, was permitted
to continue working until September 30, 2013. Complaint ¶22, 29,
71, 83, 85, 87. Arroyo-Planas further suggests that “as of July 15,
2013, she would have been eligible for Retirement with Benefits,
but due to the strategically chosen date of effective termination
of

employment,

[she]

had

lost

that

right.”

Complaint

¶

28.

According to Arroyo-Planas, (1) she “was hastily terminated from
employment in order to impede her qualification for retirement
benefits,” Complaint ¶71; (2) the “preferential treatment of a male
coworker [is] unexplainable”, Complaint ¶ 85; (3) the Defendants
had

“no

conceivable

rational

basis

which

might

support

the

differentiated treatment given to Plaintiff due to her age and the
immediacy of her 56th birthday,” Complaint ¶88; and (4) the damage
she suffered “would not have occurred if [she] had not been
deprived of her rights to the equal protection of the laws.”
Complaint ¶93.
In sum, the only difference alleged between the Defendants’
treatment of Arroyo-Planas and her younger, male colleague is that
her male colleague was permitted to work an additional two and a

7

Although Arroyo-Planas alleges that her colleague was also
classified as Grade CL-25, no further facts have been asserted to
establish that he was “similarly situated.”
25

half months while Arroyo-Planas’s own employment was terminated
effective July 5, 2013, ten days before her fifty-sixth birthday.
Notwithstanding Arroyo-Planas’s insistence that such unequal
treatment was based on impermissible considerations and resulted in
damages, her claims lack any factual support. As a federal employee
with more than ten years of employment, Arroyo-Planas qualified for
retirement benefits in the form of an immediate annuity as soon as
she reached her MRA at fifty-six years of age. The termination of
her employment ten days before her fifty-sixth birthday had no
effect on that qualification and she would have been eligible to
receive her annuity payments from that day on. However, on the same
day, July 15, 2013, Arroyo-Planas’s entitlement to severance pay8
for involuntary termination would have ceased at the time she
became eligible for the annuity. 5 U.S.C. §5595 (a)(2)(iv). Had the
Defendants

made

the

termination

of

Arroyo-Planas’s

employment

effective on or beyond July 15, 2013, she would not have received
any severance pay, while her eligibility for retirement benefits

8

The basic severance pay to which Arroyo-Planas was entitled
before she became eligible for her retirement annuity was
approximately one week’s basic pay for each of the first ten years
of service, plus two week’s basic pay for each subsequent year,
enhanced by an “age adjustment allowance computed on the basis of
10 percent of the total basic severance allowance for each year by
which the age of the recipient exceeds 40 years at the time of
separation. 5 U.S.C. §5595(c)(2). In case of involuntary separation
of a 56-year old employee, the total basic severance is multiplied
by 2.6. Based on that formula, Arroyo-Planas received approximately
one year’s salary as her severance allowance.
26

remained unchanged. No such calculation applied to Arroyo-Planas’s
younger male colleague, who was not yet nearing the MRA.
In other words, the sole fact with which Arroyo-Planas seeks
to support her equal protection claim is that she was denied her
request to work an additional two and a half months like her male
colleague. Had her request been granted, this would have deprived
her of the opportunity to receive one year’s severance pay without
impacting her eligibility for retirement benefits. As such, ArroyoPlanas’s claim fails to allege that she was treated less favorably
than

her

younger,

male

colleague

or

that

the

difference

in

treatment between the two resulted in damages; instead, it appears
that the timing of the termination afforded her the additional
benefit of a severance payment, the entitlement to which would have
been lost to her ten days later. Although Arroyo-Planas contends
that she lost her retirement benefits “due to the strategically
chosen date of effective termination of her employment,” Complaint
¶ 28, that fact is both unsupported and erroneous. Arroyo-Planas’s
eligibility for retirement benefits on her fifty-sixth birthday was
unimpeded

by

her

earlier

termination;

it

was

her

voluntary

withdrawal of her retirement contributions after her separation
that rendered her ineligible for those annuity payments that were
based on the service period to which such contributions related.
On these facts, and in the absence of any other allegations
supporting a claim of unequal treatment, the Court is of the

27

opinion that Arroyo-Planas has failed to establish a prima facie
case sufficient to withstand the Defendants’ motion to dismiss the
Complaint.
Conclusion
For the reasons stated herein, the Defendants’ motion to
dismiss the Complaint is GRANTED.
SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
United States District Judge
September 22, 2015

28