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February 7, 2003


The opinion of the court was delivered by: Reggie B. Walton, District Judge


This matter comes before the Court upon the defendants' motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 The plaintiff's complaint alleges that the defendants are: (1) criminally liable under 18 U.S.C. § 242 and 371 (2000), for violations of the plaintiff's First, Fifth, and Seventh Amendment rights of the United States Constitution; and (2) civilly liable for damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (2000) ("Title VII"), as a result of his termination by the United States Department of Energy ("DOE"), purportedly in retaliation for allegations he made that the DOE had engaged in violations of safety and environmental laws.*fn2 Original Complaint ("Compl.") at 1. Upon consideration of the parties' submissions regarding the defendants' motion and for the reasons set forth below, the Court will grant the defendants' motion to dismiss because it is impermissible to bring a private cause of action under 18 U.S.C. § 242 and 371. Also, the plaintiff has failed to state a claim upon which relief can be granted under Title VII because he has never been an employee of the defendants. In addition, the Court notes that even if it were to construe the plaintiff's pro se complaint liberally and conclude that a claim under 42 U.S.C. § 1983 (2000) has been asserted, the claim would still have to be dismissed. This is because a § 1983 claim upon which relief could be granted can never be established against a federal government official for the performance of his or her official duties, and in any event, the defendants are entitled to the protection of absolute immunity.*fn3

I. Factual Background

In April 1993, the plaintiff began his employment at the DOE as an Environmental Scientist at the Carlsbad Area Office in Southeastern New Mexico. Compl. ¶ 9. In September 1997, the plaintiff filed a claim with the DOE's Merit System Protection Board ("MSPB") after the DOE notified him that it proposed to terminate his employment because of poor job performance. See Rockefeller v. Abraham, Nos. 01-2054, 00-2480, 2001 WL 1434623, at *1 (10th Cir. Nov. 15, 2001). In his claim before the MSPB, the plaintiff alleged that the proposed termination was in retaliation for alleged whistle-blowing activities he had engaged in regarding his prior identification of the DOE's purported violations of safety and environmental laws. Id. In November 1997, an MSPB administrative judge issued an initial decision finding that the plaintiff had not engaged in protected whistle-blowing activities, and the plaintiff filed a petition for review of that decision with the MSPB. Id.
Upon actually being terminated by the DOE in December 1997, the plaintiff filed another claim with the MSPB asserting that he was fired because of an alleged disability, as retaliation for having engaged in protected activity under Title VII and for engaging in the previously asserted whistle-blowing activities.*fn4 Id. After an administrative hearing was held on these claims, the MSPB ruled in favor of the DOE, concluding that it had sustained its burden of proof by demonstrating that the plaintiff's termination was due to the his unacceptable job performance. Id. In addition, the MSPB held that the plaintiff failed to prove that he engaged in protected whistle-blowing activity, that his termination resulted from employment discrimination, that he suffered from a disability, or that his termination was related to a disability. Id. Plaintiff then filed a petition for review with the MSPB, which was later voluntarily dismissed by the plaintiff. Id. In granting the plaintiff's request for voluntary dismissal, the MSPB required that if the plaintiff re-filed his petition, he had to do so by a specified deadline. Id. When the plaintiff attempted to re-file his petition after the expiration of the designated deadline, the MSPB denied the petition due to its untimeliness and the plaintiff's failure to show good cause why it should be accepted late. Id.
Thereafter, the plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), which was later denied for lack of jurisdiction. Id. After the EEOC dismissal, the plaintiff filed a complaint in the United States District Court for the District of New Mexico alleging that: (1) the DOE denied him reasonable accommodations for his disabilities as guaranteed by the American's with Disabilities Act ("ADA"), 42 U.S.C. § 12,181-89 (2000), and the Rehabilitation Act, 29 U.S.C. § 701-96 (2000); and (2) he suffered an adverse employment action in violation of Title VII by being placed under a "Performance Improvement Plan" in retaliation for complaining to the DOE's Equal Employment Opportunity Office ("EEO"). See Rockefeller, 2001 WL 1434623, at *2. The plaintiff then amended his complaint to include an allegation that he was improperly removed from his employment for engaging in whistle-blowing activities, in violation of the False Claims Act ("FCA"), 31 U.S.C. § 3730(h) (2000). See Rockefeller, 2001 WL 1434623, at *2. The plaintiff later filed another complaint, which was consolidated with his amended complaint, wherein he alleged that the DOE violated the ADA and Rehabilitation Act by intimidating his physicians in an effort to prevent him from receiving proper treatment. Id.
While the plaintiff's case was pending before the District Court of New Mexico, he filed several motions, including a motion to compel production of documents and a motion for the court to accept a 748-page document as self-authenticating. Id. The district judge denied the motion to compel on the grounds that it was overly broad and unduly burdensome. The court also denied the motion for the acceptance of the putative self-authenticated document, but instructed the plaintiff to submit for its consideration any parts of the document that he believed would preclude the entry of summary judgment for the defendant. Id. The district court awarded summary judgment to the defendant on the ADA and Rehabilitation Act claims on the ground that both acts authorize an employer to request an employee's medical information while a request for an accommodation due to a claimed disability is under consideration. Id. The court dismissed the plaintiff's remaining claims because (1) section 3730(h) of the FCA does not provide a remedy for discrimination against a federal employee, such as the plaintiff, but rather, is only applicable to a suit by a private person; (2) the court lacked jurisdiction over the MSPB appeal, as only the United States Court of Appeals for the Federal Circuit has jurisdiction to review MSPB jurisdictional decisions involving mixed claims; and (3) the complaint filed in the district court was untimely. Id. at 2-4. The plaintiff appealed the district court's decision to the United States Court of Appeals for the Tenth Circuit, which affirmed the district court's decision and denied the plaintiff's motion for a remand. The plaintiff subsequently filed the complaint that is now before this Court, in which he has named as defendants the district court judge in New Mexico who presided over his case that was filed there and the Tenth Circuit judges who comprised the three-judge panel that affirmed the district judge's rulings.

II. Standard of Review: Rule 12(b)(6)

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure 12(b)(6), this Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the alleged facts. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court need not accept inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. Kowal, 16 F.3d at 1276. In deciding whether to dismiss a claim under Rule 12(b)(6), the Court can only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice. E.E.O.C. v. St. Francis Xavier Paraochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997). The Court may dismiss a claim pursuant to Rule 12(b)(6) only if the defendant can demonstrate "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46.

III. Legal Analysis

(A) The Plaintiff's Claims Pursuant to 18 U.S.C. § 242, 371 for Violations of his Constitutional Rights
The plaintiff brings this pro se action against the defendants under 18 U.S.C. § 242 and 371 (2000) for alleged violations of the First, Fifth, and Seventh Amendments of the United States Constitution. However, the plaintiff is precluded from asserting any claims pursuant to 18 U.S.C. § 242 and 371 because, as criminal statutes, they do not convey a private right of action. See Dugar v. Coughlin, 613 F. Supp. 849, 852 n. 1 (S.D.N.Y. 1985) (the court held that a private individual could not bring a cause of action under 18 U.S.C. § 242 and 371 because there is no private right of action under these federal criminal statutes); see also Powell v. Kopman, 511 F. Supp. 700, 704 (S.D.N.Y. 1981) (stating that 18 U.S.C. § 242 does not create a private right of action); Fiorino v. Turner, 476 F. Supp. 962, 963 (D.Mass. 1979) ("With regard to the alleged violations of 18 U.S.C. § . . . 242 [and] . . . 371, . . . [the] plaintiff has failed to cite, and the court has been unable to locate, any authority which would support implying a civil cause of action for violations of these provisions."). Therefore, the Court must dismiss the plaintiff's claims that have been brought pursuant to 18 U.S.C. § 242 and 371.

(B) The Plaintiff's Claims Pursuant to Title VII

The plaintiff has also filed a claim under Title VII of the United States Code. Title VII makes it unlawful for an employer to discriminate against any of its employees. See 42 U.S.C. § 2000e. Thus, the determination of whether an individual is an employee is of "crucial significance for those seeking to redress alleged discriminatory actions in federal employment." Spirides v. Reinhardt, 613 F.2d 826, 829-30 (D.C. Cir. 1979). The analysis used to determine whether an employee-employer relationship exists requires the Court to weigh numerous factors regarding the work relationship. Although no one factor is determinative, the extent of the employer's right to control the "means and manner" of the worker's performance is the most important factor to review. See Redd v. Summers, 232 F.3d 933, 938 (D.C. Cir. 2000) (quoting Spirides, 613 F.2d at 831). The other additional factors for the Court to consider include: (1) the kind of occupation; (2) the skill required; (3) whether the "employer" or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment; (6) the manner in which the work relationship is terminated; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the "employer"; (9) whether the worker accumulates retirement benefits; (10) whether the "employer" pays social security taxes; and (11) the intention of the parties. Id. at 939. Applying each of these factors to ...

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