Johnson v. Runyon ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BERNIE B. JOHNSON,
Plaintiff-Appellant,
v.
No. 95-3083
MARVIN RUNYON, Postmaster
General, United States Postal
Service; CARL MILES; PUSHP KOHLI,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-95-810-A, CA-95-811-A)
Submitted: June 4, 1996
Decided: July 19, 1996
Before HALL and WILLIAMS, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Bernie B. Johnson, Appellant Pro Se. Meredith Manning, Carol E.
Robbins, Marc R. Hillson, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Bernie B. Johnson, appearing pro se, filed two complaints in state
court that were later removed to federal court and consolidated. John-
son's original complaints, alleging violations of Title VII of the Civil
Rights Act of 1964, 42 U.S.C.A. § 2000e-16 (West 1994), were dis-
missed for failure to exhaust administrative remedies, but the court
permitted Johnson to submit an amended complaint. Johnson's
amended complaint, against the United States Postal Service
("USPS") and two of its employees, alleged that the USPS discrimi-
nated against him because of his race, illegally searched his car, and
sexually harassed him. The district court dismissed the action for fail-
ure to state a claim. We affirm.
Because Johnson does not challenge the conclusion that he is
barred from asserting Title VII claims, his complaint is wholly void
of any cognizable claims other than allegations which express some
form of tortious conduct on the part of the USPS and its employees.
These claims can be separated into three categories: (1) constitutional
torts against the USPS; (2) constitutional torts against individual
employees of the USPS; and (3) nonconstitutional torts against the
USPS and its employees. All were properly dismissed, as discussed
below.
I.
Johnson may maintain constitutional claims against the USPS only
if the United States has waived its sovereign immunity relative to fed-
eral constitutional claims. However, the United States has not done
so. Although the Postal Reorganization Act of 1970, specifically 39
U.S.C. § 401(1) (1988), authorizes the USPS"to sue and be sued in
its official name," this Act does not completely eviscerate sovereign
immunity. Rather, 39 U.S.C. § 409(c) (1988) restricts this waiver to
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tort claims cognizable under the Federal Tort Claims Act ("FTCA").
Insurance Co. of N. Am. v. United States Postal Serv., 675 F.2d 756,
758 (5th Cir. 1982).
However, the FTCA waives the sovereign immunity of the United
States for the tortious acts of its employees only"where the United
States, if a private person, would be liable to the claimant in accor-
dance with the law of the place where the act or omission occurred."
28 U.S.C.A. § 1346(b) (West 1993). Accordingly, a tort action against
the United States must be cognizable in accordance with "the law of
the place" or local law. McCollum v. Bolger , 794 F.2d 602, 608 (11th
Cir. 1986), cert. denied, 479 U.S. 1034 (1987). However, federal con-
stitutional torts are not included within "the law of the place," since
local law and federal law by definition and terminology are different.
The FTCA, then, does not waive sovereign immunity for these federal
constitutional torts. Id. at 608; Brown v. United States, 653 F.2d 196,
201 (5th Cir. Unit A Aug. 1981), cert. denied , 456 U.S. 925 (1982).
Thus, the district court properly dismissed the constitutional claims
against the USPS.
II.
Johnson raises the same constitutional claims against two supervi-
sors employed by the USPS. In Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the
Supreme Court recognized that an individual may recover damages
for injuries sustained as a result of the violation by federal officials
of an individual's constitutional rights. But, the Court further rea-
soned that this doctrine has limitations. Specifically, the Court held
that the Constitution may provide a cause of action for damages
against federal officials, except when Congress has established an
alternate remedy and has indicated, either explicitly or implicitly, that
the constitutional claim should not be recognized. Id. at 396-97.
Applying this holding, the Supreme Court, in Bush v. Lucas, 462
U.S. 367 (1983), held that the plaintiff, a federal employee, could not
maintain a First Amendment constitutional claim against his supervi-
sor, since the claim for relief arose out of an employment relationship
governed by procedural and substantive administrative provisions that
established an effective remedy for constitutional violations by the
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government. The comprehensive remedial scheme at issue in Bush
was the federal civil service laws. Id. at 388-90.
Johnson, as a federal employee of the USPS, likewise had access
to the Congressionally approved grievance procedure of the Civil Ser-
vice Reform Act of 1978 ("CSRA"), 5 U.S.C.§ 1101 (1988).* Fur-
ther, we have held that CSRA remedies are constitutionally adequate
and therefore, create an insurmountable barrier to a Bivens suit in dis-
trict court. Pinar v. Dole, 747 F.2d 899, 910-12 (4th Cir. 1984), cert.
denied, 471 U.S. 1016 (1985). In addition, to the extent Johnson
attempts to raise claims of discrimination, his constitutional tort
claims were properly dismissed, because Title VII is"`an exclusive,
pre-emptive administrative and judicial scheme for the redress of fed-
eral employment discrimination.'" Newbold v. United States Postal
Serv., 614 F.2d 46, 47 (5th Cir.) (quoting Brown v. GSA, 425 U.S.
820, 829 (1976)), cert. denied, 449 U.S. 878 (1980). Accordingly,
Johnson's constitutional tort claims against individual employees of
the USPS were properly dismissed.
III.
Johnson's remaining claims are nonconstitutional and must be
viewed under the FTCA. 39 U.S.C. § 409(c) (FTCA applies to tort
claims arising out of activities of the Postal Service); see also
Insurance Co., 675 F.2d at 757. Although § 1346(b) of the FTCA per-
mits lawsuits for money damages for claims involving"injury or loss
of property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment . . . ," 28 U.S.C.
§ 2675(a) (1988) bars suit against a federal agency unless the claim-
ant first has filed a claim with that agency.
There is no evidence in the record that Johnson presented his
claims to the Postal Service. Notably, his complaint does not so
allege. Accordingly, these claims were properly dismissed for failure
to comply with the dictates of § 2675(a).
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*Defendants assert that Johnson was protected by the CSRA. Johnson
does not refute the allegation.
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IV.
Based on the foregoing reasoning, we affirm the dismissal of John-
son's action and deny Johnson's motion for appointment of counsel.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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