MEMORANDUM AND ORDER

RONNIE L. WHITE, District Judge.

This matter is before the Court on Defendant Postmaster General Megan Brennan's Motion to Dismiss the Second Amended Complaint. (ECF No. 37) The motion is fully briefed. After careful consideration, the Court grants Brennan's motion.

BACKGROUND

Plaintiff Delbert Jackson began his employment with the United States Postal Service ("USPS") in October 1994 as a casual clerk. (Second Am. Compl., ECF No. 31, ¶ 12) In October 2001, he was transferred within USPS and began to work as a letter carrier. (Id. at ¶ 13) While serving as a letter carrier, Plaintiff was represented by the exclusive bargaining unit for letter carriers, the National Association of Letter Carriers ("NALC"), and paid dues to his local chapter, Local 314. (Id. at ¶¶ 14-15) Plaintiff was again transferred within USPS in December 2001 and began service as a mail handler, a position in which he continues to serve as of the initiation of this lawsuit. (Id. at ¶ 16)

When Plaintiff transferred from letter carrier to mail handler, a representative of NALC allegedly informed him that "the otherwise compelled membership fees for union dues would no longer be withheld from his wages because NALC could not represent his interests as he switched positions and no longer served as a letter carrier." (Id. at ¶ 17) Plaintiff then contacted a human resources ("HR") representative at USPS who told him that, due to his change in position within USPS, his interests would be represented the exclusive bargaining unit for the mail handlers work group: the National Postal Mail Handlers Union ("NPMHU"). (Id. at ¶¶ 18-19) According to Plaintiff, the HR representative told him that his membership dues would be remitted to NPMHU from that point forward while he worked as a mail handler. (Id. at ¶ 20) Plaintiff claims he continued to authorize USPS to withhold membership fees for union dues from his wages to be remitted to NPMHU on his behalf for the next 16 years. (Id. at ¶ 21)

In early 2017, Plaintiff contacted NPMHU concerning a matter related to his employment. (Id. at ¶ 22) NPMHU, however, told Plaintiff it was unable to assist him as he was not a dues-paying member of the labor union. (Id. at ¶ 23) Plaintiff contacted an HR representative at USPS1 who confirmed that his membership dues had continued to be withheld from his wages and remitted to NALC. (Id. at ¶ 25) Plaintiff asserts he intended to cancel his membership — and related authorization to withhold union membership fees — with NALC in order to join NPMHU when he previously spoke to an HR representative once his job position changed. (Id. at ¶ 24) The HR representative at USPS instructed Plaintiff to contact NALC about representing him in his employment-related matter. (Id. at ¶¶ 26-27) NALC, however, informed Plaintiff that it could not represent him because he was no longer a letter carrier. (Id. at ¶ 27) Plaintiff thereafter requested a refund of the withholdings that had been remitted to NALC, but his request was denied. (Id. at ¶¶ 28-29) He further states he has since informed NPMHU that he no longer wishes to be a member. (Id. at ¶ 34)

In his Second Amended Complaint, Plaintiff names Brennan (individually and in her official position as postmaster general), NALC, and the NPMHU as defendants (referred to collectively as "Defendants").2 He alleges USPS continued to unlawfully withhold membership fees from his wages and remit such funds as union dues to NALC despite his specific request to change his union membership to NPMHU and despite all Defendants knowing his employment had changed such that NALC no longer could represent his interests. (Id. at ¶¶ 32-37) Plaintiff argues he is entitled to full reimbursement of the membership fees for union dues that were unlawfully withheld by USPS and provided to NALC and NPMHU, along with interest. (Id. at ¶ 38) Specifically, Count I asserts a claim of unjust enrichment against NALC and NPMHU (Id. at ¶¶ 39-43); Count II asserts a claim of money had and received against NALC and NPMHU (Id. at ¶¶ 44-48); Count III asserts a claim against all Defendants for violations of his constitutional rights under the First and Fourteenth Amendments to the U.S. Constitution and Article I, Sections 8 and 9 of the Missouri Constitution (Id. at ¶¶ 49-54); and Count IV seeks a permanent injunction and declaratory relief against all Defendants (Id. at 10-11).

Brennan filed a Motion to Dismiss the Second Amended Complaint (ECF No. 37), which is fully briefed and ready for disposition.

LEGAL STANDARD

"Federal courts are courts of limited jurisdiction. The requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception." Godfrey v. Pulitzer Pub. Co., 161 F.3d 1137, 1141 (8th Cir. 1998) (internal citations and quotation marks omitted). To dismiss a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), "the complaint must be successfully challenged on its face or on the factual truthfulness of its averments." Swiish v. Nixon, No. 4:14-CV-2089 CAS, 2015 WL 867650, at *2 (E.D. Mo. Feb. 27, 2015) (quoting Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993)). "The standard for a motion to dismiss under Rule 12(b)(6) applies equally to a motion to dismiss for lack of subject matter jurisdiction which asserts a facial challenge under Rule 12(b)(1)." Id. Accordingly, a court assessing a facial challenge under Rule 12(b)(1) assumes all facts in the complaint to be true and construes all reasonable inferences most favorably to the complainant as it would in a motion to dismiss under Rule 12(b)(6). Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015); U.S. ex rel. Raynor v. Nat'l Rural Utilities Co-op. Fin., Corp., 690 F.3d 951, 955 (8th Cir. 2012); Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008).

DISCUSSION

Brennan argues Plaintiff's claims against her in her individual and official capacity should be dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). She further asserts that, because 42 U.S.C. § 1983 does not provide Plaintiff with colorable federal claims against her in her individual or official capacity, he cannot seek a permanent injunction or declaratory relief.

I. Claims against Brennan in her individual capacity

(a) Liability for federal agents under § 1983

42 U.S.C. § 1983 was designed to provide a "broad remedy for violations of federally protected civil rights." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 685 (1978). Section 1983 provides no substantive rights; it merely provides a remedy for violations of all "rights, privileges, or immunities secured by the Constitution and laws [of the United States]." 42 U.S.C. § 1983; see also Albright v. Oliver, 510 U.S. 266, 271 (1994) (section 1983 "merely provides a method for vindicating federal rights elsewhere conferred"). To state a claim under § 1983, a plaintiff must establish: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged deprivation of that right was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

Brennan argues § 1983 cannot be invoked to bring claims against federal employees. Section 1983 specifically imposes liability on "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia" deprives someone of "any rights, privileges, or immunities secured by the Constitution and laws." (Emphasis added). This language means that only state actors, rather than federal actors, can be held liable under § 1983.3 Mehrkens v. Blank, 556 F.3d 865, 870-71 (8th Cir. 2009); Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 855 (8th Cir. 2001). Because postmaster general of the United States is a federal position, Brennan concludes Plaintiff cannot assert claims against her pursuant to § 1983.

The Supreme Court has established that plaintiffs can sue individual federal agents for violations of constitutional rights in certain circumstances. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 395-96 (1971), the Supreme Court held plaintiffs can sue federal agents for violations of the Fourth Amendment's prohibition against unreasonable search and seizures. The Supreme Court later extended the principal outlined in Bivens to violations of the Fifth Amendment in Davis v. Passman, 442 U.S. 228, 248-49 (1979) (sex-discrimination), and the Eighth Amendment in Carlson v. Green, 446 U.S. 14, 24-25 (1980) (failure to provide adequate medical treatment). "These three cases—Bivens, Davis, and Carlson—represent the only instances in which the [Supreme] Court has approved of an implied damages remedy under the Constitution itself." Ziglar v. Abbasi, 137 S.Ct. 1843, 1854-55 (2017).

The Supreme Court "has made clear that expanding the Bivens remedy is now a `disfavored' judicial activity."4 Id. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Moreover, the Supreme Court "has urged caution before extending Bivens remedies into any new context" and "[made] clear that a Bivens remedy will not be available if there are special factors counselling hesitation in the absence of affirmative action by Congress." Id. (internal quotation marks omitted) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001); Carlson, 446 U.S. at 18). Such a "special factor counselling hesitation" is one that "must cause a court to hesitate before answering . . . in the affirmative" the inquiry "whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed." Id. at 1857-58.

Plaintiff's claims clearly present a new context for a Bivens claim as his case involves alleged constitutional violations that are "different in a meaningful way from previous Bivens cases decided by [the Supreme Court]." See id. at 1879. Plaintiff's claims against Brennan allege she violated his rights under the First and Fourteenth Amendments to the U.S. Constitution and Article I, Sections 8 and 9 of the Missouri Constitution by compelling him to withhold membership fees from his wages and remit such funds as union dues without his authorization. As in Abbasi, the alleged constitutional violations Plaintiff asserts in this case

137 S.Ct. at 1860 (citing Bivens, 403 U.S. 388; Davis, 442 U.S. 228; Carlson, 446 U.S. 14). Consequently, the Court must perform a "special factors" analysis regarding Plaintiff's claims.

The claims at issue in Abbasi concerned the federal government's policy of detaining undocumented immigrants in the aftermath of the terrorist attacks on September 11, 2001. Id. at 1851. Specifically, the plaintiffs in Abbasi were six men of Arab or South Asian descent (five of whom were Muslim) who alleged they were detained for periods between three and eight months before eventually being removed from the United States. Id. at 1853. The plaintiffs brought Bivens claims against, among others, former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar. Id. The district court dismissed the claims against these executive branch officials, but the court of appeals reversed the lower court and reinstated the plaintiffs' claims against those executive branch officials. Id. at 1854.

In reversing the court of appeals, the Supreme Court in Abbasi noted that "a Bivens action is not `a proper vehicle for altering an entity's policy.'" Id. at 1860 (quoting Malesko, 534 U.S. at 74). Allowing a Bivens action to challenge a general government policy "would necessarily require inquiry and discovery into the whole course of the discussions and deliberations that led to the policies and governmental acts being challenged." Id. The Supreme Court held that "[t]hese consequences counsel against allowing a Bivens action against the Executive Officials, for the burden and demand of litigation might well prevent them—or, to be more precise, future officials like them—from devoting the time and effort required for the proper discharge of their duties." Id. "Allowing a damages suit in this context, or in a like context in other circumstances, would require courts to interfere in an intrusive way with sensitive functions of the Executive Branch." Id. at 1861.

Like the defendants in Abbasi, Brennan is an officer within the executive branch.5 Therefore, similar considerations are paramount in this case. As postmaster general, Brennan is the chief executive officer of USPS. Megan J. Brennan, Postmaster General and Chief Executive Officer, USPS, https://about.usps.com/who/leadership/officers/pmg-ceo.htm (last updated Feb. 2019). Permitting Plaintiff's claims against her to proceed would inevitably involve questions and discovery related to USPS's formulation and enforcement of policies regarding its approximately 630,000 employees and their respective union memberships. See id. Supreme Court precedent clearly counsels against allowing such a Bivens claim to proceed here.

The Eighth Circuit has provided additional guidance and held that "a Bivens action cannot lie where affirmative action by Congress provides an alternative remedial system." Turner v. Holbrook, 278 F.3d 754, 757 (8th Cir. 2002). Specifically, the Eighth Circuit has held that in cases where a USPS employee "possessed rights and had access to grievance procedures provided by the [Postal Reorganization Act], . . . and by the collective bargaining agreement between his union and the Postal Service, . . . he is precluded from seeking relief outside that system." Id. at 757-58 (omissions in original) (quoting Sisley v. Leyendecker, 260 F.3d 849, 851 (8th Cir. 2001)). Here, Plaintiff could have sought relief under the Postal Reorganization Act, 39 U.S.C. § 1208(b), which provides: "Suits for violation of contracts between the Postal Service and a labor organization representing Postal Service employees, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy." Accordingly, Bivens and its progeny counsel against allowing Plaintiff's claims against Brennan to continue in light of these special factors.6

(b) Brennan's personal involvement

Brennan also argues the claims against her in her individual capacity should be dismissed because Plaintiff has failed to allege facts suggesting she was personally involved in the alleged constitutional violations.

"Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Marsh v. Phelps Cty., 902 F.3d 745, 754 (8th Cir. 2018) (emphasis added) (quoting Iqbal, 556 U.S. at 676). A plaintiff "must allege specific facts of [the supervisory Government-official's] personal involvement in, or direct responsibility for, a deprivation of [his or her] constitutional rights." Id. (quoting Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006)). "Furthermore, a Bivens claim is brought against the individual official for his or her own acts, not the acts of others." Abbasi, 137 S. Ct. at 1860; see F.D.I.C. v. Meyer, 510 U.S. 471, 485 (1994) ("The purpose of Bivens is to deter the officer").

Plaintiff's Second Amended Complaint references Brennan only twice: when he simply states Brennan is the Postmaster General of USPS and when he "seeks an injunction permanently precluding [Brennan] from deducting the membership fees for union dues from Plaintiff's wages." (Second Am. Compl., ECF No. 31, at 2 & 11) Plaintiff does not allege any facts related to specific conduct Brennan personally took concerning his wages. See, e.g., McAlister v. Potter, 843 F.Supp.2d 117, 123 (D.D.C. 2012) (dismissing claims against the postmaster general because the complaint did not allege he "personally acted in any way, let alone in a way that violated her constitutional rights"). Consequently, the claims against Brennan in her individual capacity are dismissed.

II. Claims against Brennan in her official capacity

Brennan next argues the claims against her in her official capacity must be dismissed. As the Eighth Circuit has noted, "a suit against [the postmaster general] in his [or her] official capacity is treated as a suit against the Postal Service. It is well settled that a Bivens action cannot be prosecuted against the United States and its agencies because of sovereign immunity." Buford v. Runyon, 160 F.3d 1199, 1203 (8th Cir. 1998). "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Meyer, 510 U.S. at 475. Here, Plaintiff has failed to argue any congressional waiver of sovereign immunity applies to his case.7 Consequently, Plaintiff's claims against Brennan in her official capacity are dismissed.

III. Injunctive and declaratory relief

Lastly, Brennan argues Plaintiff's request for a permanent injunction and declaratory relief against her fail because he does not have a colorable claim against her. Permanent injunctions and declaratory judgments are not independent causes of actions; rather, they remedies for otherwise-colorable claims. See Public Water Supply Dist. No. 10 of Cass Cty., Mo. v. City of Peculiar, Mo., 345 F.3d 570, 572 (8th Cir. 2003); State of Mo. ex rel. Mo. Highway & Transp. Comm'n v. Cuffley, 112 F.3d 1332, 1334 n.2 (8th Cir. 1997); Henke v. Arco Midcon, LLC, 750 F.Supp.2d 1052, 1059-60 (E.D. Mo. 2010).

As explained above, Plaintiff has failed to state a claim against Brennan for which relief can be granted. Consequently, he cannot seek to permanently enjoin her actions or seek declaratory judgment against her.

Accordingly,

IT IS HEREBY ORDERED that Defendant Megan Brennan's Motion to Dismiss the Second Amended Complaint (ECF No. 37) is GRANTED and Plaintiff's claims against Brennan are DISMISSED with prejudice. A separate Order of Partial Dismissal accompanies this Memorandum and Order. The claims against defendants NALC and NPMHU remain pending.