Cannady v. Potter et al
Filing
24
MEMORANDUM OPINION that the Defendants' Motion to Dismiss Amended Complaint is hereby GRANTED. Plaintiff's Amended Complaint is hereby DISMISSED. Further, Plaintiff's Motion for Leave to File Second Amended Complaint is hereby DENIED. Signed by District Judge Robert G. Doumar and filed on 6/27/11. (jcow, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
JUN 2 7 2011
NORFOLK DIVISION
CL::UK. U S r'^' \\C'\ COURT
WILLIE L. CANNADY, III,
Plaintiff,
CIVILNO.2:10cv633
v.
PATRICK R. DONAHOE,
Postmaster General, the UNITED
STATES POSTAL SERVICE,
Defendants.
OPINION AND ORDER
In the instant action, Plaintiff Willie L. Cannady, III, ("Plaintiff) seeks to sue the United
States Postal Service (USPS) and the Postmaster General of the United States ("Defendants"),
alleging that he was removed from his employment with the USPS in violation of his
constitutional rights.
This matter comes is the Court on a Motion to Dismiss Amended Complaint
filed by Defendants, pursuant to Federal Rule of Civil Procedure 12(b)(l) and (6).
For the
reasons set forth below, the Court GRANTS Defendants' Motion to Dismiss.
I.
Factual and Procedural Background
Prior to December 31, 2009, Plaintiff was employed as a letter carrier by the United States
Postal Service, serving in Portsmouth, Virginia.
Following a series of workplace incidents,
Plaintiff entered into a "Last Chance Agreement" (LCA) with the USPS.
This LCA allowed
Plaintiff to avoid removal related to the incidents, subject to his compliance with its conditions.
On or about October 1,2009, Plaintiff requested leave on October 2 for a personal matter, which
was denied.
Plaintiff then notified the USPS of an "emergency situation," and did not appear for
work on October 2.
Plaintiff was subsequently removed from employment with the USPS as a
result of his failure to appear on October 2, which was a violation of his LCA.
On December 23,2010, Plaintiff filed a three-count lawsuit in this Court against the
Postmaster General, the USPS, the National Association of Letter Carriers (NALC), and his local
NALC branch.
In his original Complaint, Plaintiff alleged that his removal violated both a
personal employment contract with the USPS and a collective bargaining agreement between the
USPS and NALC.
Plaintiff also alleged that NALC had not upheld its duty to represent him in the
grievance process, as required by the bargaining agreement.
Both the Postmaster General and the
USPS and NALC and its affiliate moved to dismiss this complaint.
Following their motions to dismiss, Plaintiff filed an Amended Complaint on April 15,
2011.
This Amended Complaint removed the NALC defendants and restyled the contractual
allegations against the Postmaster General and the USPS as constitutional claims.
2011, Defendants again moved to dismiss these claims.
On April 22,
Although Plaintiff has not responded to
the April 22,2011, Motion to Dismiss within the time allotted him by the rules of this Court, he has
filed a Motion for Leave to File a Second Amended Complaint, by which he seeks to change the
defendant in the case from the Postmaster General to two other supervisory officials.
II. Analysis
A.
Jurisdiction
As an entity of the federal government, the USPS is afforded sovereign immunity unless
waived by Congress.
See FDIC v. Mever. 510 U.S. 471,475 (1994).
Congress has waived such
immunity under 39 U.S.C. § 401, which grants the USPS the power "to sue and be sued in its
official name," and 39 U.S.C. § 409, which provides that "the United States district courts shall
have original but not exclusive jurisdiction over all actions brought by or against the Postal
Service." See Global Mail Ltd. v. U.S. Postal Service. 142 F.3d 208, 210 (4th Cir. 1998). The
Court therefore has subject matter jurisdiction over this suit.
B.
Failure to State a Claim
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a claim.
Edwards v. Citv
ofGoldsboro. 178 F.3d 231,244 (4th Cir. 1999). In a Rule 12(b)(6) dismissal, the standard of
review is whether the complaint, accepting the allegations as true, allows recovery under the law.
Waterford Citizens' Ass'n v. Reillv. 970 F.2d 1287, 1290 (4th Cir. 1992), (citing Hospital Building
Co. v. Rex Hospital Trustees. 425 U.S. 738, 746, (1976)).
Accordingly, if the Court finds that sovereign immunity has been waived against a
governmental entity and jurisdiction is proper, it must then determine "whether the source of
substantive law upon which the claimant relies provides an avenue for relief." FDIC v. Mever.
510 U.S. 471.484 (U.S. 1994).
Here, Plaintiff has alleged deprivations of his "constitutionally
protected interest in ... continued employment and livelihood" as protected by the Fifth
Amendment, as well as "his constitutional rights to ... substantive and procedural due process."
While not alleged with particular specificity here, such claims are generally cognizable
under Bivens v. Fed. Bureau of Narcotics. 403 U.S. 388 (1985), which established a judicial
remedy for violations of constitutional rights by federal actors.
Under Bivens. however, a remedy
for such violations is only available if "(1) Congress has not already provided an exclusive
statutory remedy; (2) there are no 'special factors counseling hesitation in the absence of
affirmative action by Congress'; and (3) there is no 'explicit congressional declaration' that money
damages not be awarded." Hall v. Clinton. 235 F.3d 202,204 (4lh Cir. 2000), (citing Bivens. 403
U.S. at 396-97).
The Supreme Court has foreclosed Bivens remedies for federal employees who have
alleged constitutional violations by federal actors as a result of workplace grievances.
Luca. 462 U.S. 367 (1983).
Bush v.
In Bush, the Court held that federal employment constitutes the sort
of "special factor" that makes a Bivens remedy inappropriate, in light of the "comprehensive set of
procedural and substantive provisions governing the rights of federal employees."
Zimbelman v.
Savage. 228 F.3d 367, 370 (4lh Cir. 2000) (citing Bush, 462 U.S. at 368).
In his Amended Complaint, Plaintiff has made no allegation that he was denied access to
what the courts have determined to be the "comprehensive and elaborate remedial scheme for
aggrieved Postal workers" created by Congress.
Pereirav. U.S. Postal Service. 964 F.2d 873,875
(9th Cir. 1992). Instead, the Amended Complaint attempts to step outside that scheme entirely
and seek a direct judicial remedy from the Court.
Such attempts are precluded, even in cases
where "the remedies made available by Congress were not complete and some hardships would go
uncompensated."
Zimbelman. 228 F.3d at 371.
The Court therefore finds that the substantive
law on which Plaintiff relies does not provide an avenue of relief.
Even if all allegations in his
Amended Complaint are accepted as true, the law does not permit recovery.
Plaintiff has moved for leave to file a Second Amended Complaint, seeking to remove the
Postmaster General and join two other USPS employees, Postmaster Robert Shaw and Supervisor
Charles Jacobs, as defendants.
to be futile.
In light of the above analysis, the Court finds this motion to amend
Were leave granted, the named defendants would still be federal actors and agents of
the USPS, and as such Bivens claims would still be foreclosed against them.
Even with the
proposed amendments, Plaintiffs complaint could still not survive a Rule 12(b)(6) motion to
dismiss, and therefore must be denied as futile.
Accordingly, Defendants' Motion to Dismiss Amended Complaint is hereby GRANTED.
Plaintiffs Amended Complaint is hereby DISMISSED.
Further, Plaintiffs Motion for Leave to
File Second Amended Complaint is hereby DENIED.
The Clerk is DIRECTED to deliver a copy of this Opinion and Order to all Counsel of
Record in this case.
IT IS SO ORDERED.
KODeit (jr. i
SeriorUoit^ms District Judge
UNITED STATES DISTRICT JUDGE
Norfolk, Virginia
June 21,2011
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