-
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-1694
NORMA F. ROTH,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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ERRATA SHEET
ERRATA SHEET
The opinion of the Court issued on December 30, 1991, is
amended as follows:
On page 6, line 5, "actions[s]" should be corrected to read
"action[s]."
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No. 91-1694
NORMA F. ROTH,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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_________________________
Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Norman Jackman, with whom Martha M. Wishart and Jackman &
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Roth were on brief, for appellant.
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Roberta T. Brown, Assistant United States Attorney, with
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whom Judith S. Yogman, Acting United States Attorney, was on
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brief, for appellee.
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SELYA, Circuit Judge. Concluding that the plaintiff's
SELYA, Circuit Judge.
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complaint failed to state a claim upon which relief could be
granted, Fed. R. Civ. P. 12(b)(6), the United States District
Court for the District of Massachusetts dismissed an action
brought by the plaintiff, Norma F. Roth, against the United
States.1 Roth appeals from the order of dismissal. We affirm.
I.
I.
We eschew an exegetic statement of the facts, opting
instead to discuss the averments of the complaint, to the extent
required, in connection with the body of the appeal. We do,
however, pause to reflect on the standard that governs our
oversight.
It is settled that "[a]ppellate review of a dismissal
under Fed. R. Civ. P. 12(b)(6) is plenary." Miranda v. Ponce
_______ _____
Federal Bank, ___ F.2d ___, ___ (1st Cir. 1991) [No. 90-2214,
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slip op. at 3]. We, like the district court, are bound by the
principle that a civil complaint seeking money damages should not
be jettisoned for failure to state an actionable claim unless it
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1Roth's action was originally brought against a government
official, Anne Harlan. On motion, the United States was substi-
tuted as party defendant pursuant to 28 U.S.C. 2679(d)(1)
(1988). The plaintiff has not appealed from the order of
substitution. In any event, the matters complained of Harlan's
statements and actions, described infra were sufficiently
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workplace-related that, even without the order of substitution,
dismissal would have been appropriate on preemption grounds, for
essentially the reasons stated infra. See, e.g., Bush v. Lucas,
_____ ___ ____ ____ _____
462 U.S. 367, 388-90 (1983) (holding constitutional tort action
against supervisor to be preempted under Civil Service Reform Act
of 1978); Berrios v. Department of the Army, 884 F.2d 28, 32 (1st
_______ ______________________
Cir. 1989) (holding state-law defamation claims against
supervisors to be likewise preempted); Broughton v. Courtney, 861
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F.2d 639, 644 (11th Cir. 1988) (similar).
3
plainly appears that the plaintiff can prove no set of facts
thereunder which would entitle her to recover. Id. at ___ [slip
___
op. at 3-4], citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
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In performing the requisite tamisage and assessing sufficiency, a
court must accept as true the complaint's well-pled factual
averments, excluding, however, "bald assertions, periphrastic
circumlocutions, unsubstantiated conclusions, or outright
vituperation." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d
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49, 52 (1st Cir. 1990). At the same time, the court must draw
all inferences reasonably extractable from the pleaded facts in
the manner most congenial to the plaintiff's theory. Miranda,
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___ F.2d at ___ [slip op. at 2]; Dartmouth Review v. Dartmouth
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College, 889 F.2d 13, 16 (1st Cir. 1989). In the last analysis,
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a plaintiff is obliged to set forth in her complaint "factual
allegations, either direct or inferential, respecting each
material element necessary to sustain recovery under some
actionable legal theory." Gooley v. Mobil Oil Corp., 851 F.2d
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513, 515 (1st Cir. 1988). If she has succeeded in this task,
dismissal will not lie under Rule 12(b)(6).
II.
II.
The plaintiff's complaint was brought in two counts,
both growing out of the same nucleus of operative facts. One
count sought money damages. The other count sought injunctive
relief. We hold that, to the extent the suit is still live, see
___
infra note 2, it is preempted by the Civil Service Reform Act of
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1978, Pub. L. No. 95-454, 92 Stat. 1111 (1978) (CSRA), codified
4
in various sections of 5 U.S.C.
A.
A.
__
At all times material hereto, Roth served as Branch
Manager, Labor Relations, in the Burlington, Massachusetts,
office of the Federal Aviation Administration (FAA). The
situation of which she complains arose out of actions taken by
her supervisor, Anne Harlan, the FAA's Division Manager.
According to Roth, Harlan bore a grudge against her dating back
to 1977 a grudge stemming from an incident that occurred when
both women were working in the private sector. Roth averred
that, once fate reunited the two women, this time as FAA
officials, Harlan became a constant thorn in her side. The
relationship hit rock bottom in the 1989-1990 time frame, when
the FAA considered discharging an employee named Richard Fontes.
Roth was involved in the termination proceedings. She alleged
that, thanks to Harlan, the proceedings took on a highly
irregular cast; that Fontes' constitutional rights were
imperilled; that Harlan attempted to enlist Roth's cooperation in
a wholly improper course of conduct; that Roth's refusal to
knuckle under enraged Harlan; and that Harlan proceeded to
complain loudly, openly, and unfairly about Roth's job
performance. In Roth's view, these slurs caused her grievous
harm. Believing Harlan's utterances and associated conduct to be
actionable, Roth sued for damages.2
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2Roth also asked that the district court issue "an
injunction prohibiting [Harlan] from taking any action to coerce
[Roth] into violating the Constitution and/or laws of the United
5
B.
B.
__
The CSRA was meant to provide a comprehensive framework
for personnel policies governing federal employees. See Saul v.
___ ____
United States, 928 F.2d 829, 833 (9th Cir. 1991), citing S. Rep.
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No. 969, 95th Cong., 2d Sess. 3, 53 (1978); Montplaisir v.
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Leighton, 875 F.2d 1, 3 (1st Cir. 1989). In the course of that
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endeavor, Congress set out procedures for challenging "prohibited
personnel practices." 5 U.S.C. 2302. The prohibited personnel
practices covered by the CSRA include "personnel actions" that
transgress the law's merit system principles merit system
principles which require the federal sovereign to treat its
employees fairly and shield them from capricious actions,
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States and/or the rules of the FAA, and to remove [Harlan] from
her position as Division Manager to prevent her from further
violations of the constitutional rights of employees of the FAA."
After filing suit, however, Roth resigned from the FAA, effective
June 7, 1991. Her quest for injunctive relief is, therefore,
moot; from June 7 forward, she had no further stake in the
agency's operation and "lack[ed] a legally cognizable interest in
the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969); see
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also Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974) ("The
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rule in federal cases is that an actual controversy must be
extant at all stages of review, not merely at the time the
complaint is filed."). Since Roth is no longer in the FAA's
employ, any attempts to pressure her to act in illegal or
unconstitutional ways would be pointless. Thus, Roth's
resignation quelled any "reasonable expectation . . . that the
alleged violation will recur." County of Los Angeles v. Davis,
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440 U.S. 625, 631 (1979). Moreover, while Roth can continue to
pursue her claim for damages caused by Harlan's past conduct,
accepted principles of standing foreclose her, now that she has
become a private citizen, from maintaining a suit to oust Harlan
or curb Harlan's excesses in order to protect others or vindicate
the public weal. See, e.g., Warth v. Seldin, 422 U.S. 490, 499
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(1975) ("[T]he plaintiff generally must assert his own legal
rights and interests, and cannot rest his claim to relief on the
legal rights or interests of third parties."); Gordon v.
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Crouchley, 554 F. Supp. 796, 798 (D.R.I. 1982) (similar).
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6
personal vendettas, favoritism, and the like. See Saul, 928 F.2d
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at 833. The thrust of Roth's allegations is that the combination
of Harlan's aspersions and conduct demeaned Roth and subjected
her to arbitrary action. Thus, the threshold question is whether
Harlan's antics, as Roth portrayed them, would qualify as a
prohibited personnel practice within the contemplation of the
CSRA.3
Under the CSRA, personnel actions include "corrective
actions[s]." 5 U.S.C. 2302(a)(2)(A)(iii). The corrective
action category is a capacious one, encompassing a wide variety
of conduct affecting federal employees. See Saul, 928 F.2d at
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834. The slanderous utterances that Roth bemoans, while
allegedly untrue, nevertheless concerned her job performance.
Those comments reflected a profound disagreement between Harlan
and Roth about the manner in which Fontes' termination
proceedings and, perhaps, termination proceedings generally
should appropriately be conducted. Harlan's behavior, as
described in the complaint, to the extent that Roth retains
standing to pursue it, see supra note 2, was similarly job-
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related. In sum, an objective assessment of the complaint leaves
no doubt that Roth was attempting to sue over utterances and
associated acts which reflected dissatisfaction with her work
within the FAA and which focused upon substantial conflicts anent
agency policy and procedures. For CSRA purposes, then, Roth's
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3Roth has not questioned the applicability of the CSRA to
federal employees of her rank and type.
7
complaint, no matter how generously it might be read, alleged a
prohibited personnel practice, that is, a personnel action
violative of the merit principles. Accord Saul, 928 F.2d at 834.
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This conclusion sounds the death knell for Roth's
statement of claim. It is now beyond serious question that the
CSRA preempts state-law challenges to prohibited personnel
practices in the federal workplace. See Berrios v. Department of
___ _______ _____________
the Army, 884 F.2d 28, 32 (1st Cir. 1989) (holding that, where
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the CSRA pertains, defamation claims touching upon prohibited
personnel practices are preempted); Montplaisir, 875 F.2d at 8
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(holding former government employees' private tort action against
union lawyers to be preempted by "the comprehensive nature of the
[CSRA's] remedial scheme"); Broughton v. Courtney, 861 F.2d 639,
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643 (11th Cir. 1988) ("If plaintiff's state law claims . . . are
within the scope of the coverage of the CSRA, then the actions
are preempted by the CSRA."). As we stated on an earlier
occasion:
The legislative history of the CSRA
establishes beyond dispute that Congress
intended that statute to provide an exclusive
procedure for challenging federal personnel
decisions. . . . "The history and intent of
the CSRA plainly prefigures that collateral
district court jurisdiction would impede the
ideals of fast, efficient management and
greater uniformity in the judicial review
process."
Berrios, 884 F.2d at 31-32 (quoting Tucker v. Defense Mapping
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Agency, 607 F. Supp. 1232, 1240 n.6 (D.R.I. 1985)). It follows
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inexorably that Roth's claim is preempted.
8
C.
C.
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To this point, the drill is straightforward. Roth,
however, has a fallback position. She says that, in her case,
administrative remedies have been almost, if not entirely,
foreclosed by the bodies from whom she has sought succor, viz.,
the Merit Systems Protection Board and its Office of Special
Counsel (both citing lack of jurisdiction). In addition, she
points out that administrative remedies, even if available, make
no provision for damage awards to deserving complainants.
The short answer to these assertions is that they are
nihil ad rem. As to Roth's complaint about the lack of an
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accessible administrative mechanism, we agree with the Ninth
Circuit that, even where the CSRA provides no guaranteed forum,
"preemption of . . . work-related tort claims is necessary to
fulfill congressional intent." Saul, 928 F.2d at 843. As to
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Roth's grievance concerning the unavailability of damage awards,
Montplaisir controls. There, in addressing a near-identical
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remonstrance, we responded: "That injured employees might be
left without a means of recovering money damages is a necessary
consequence of the [comprehensive nature of the CSRA]. Congress,
in its wisdom, was fully entitled to prefer administrative
enforcement to civil trials." Montplaisir, 875 F.2d at 5.
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We will not paint the lily. We suggest that the
Supreme Court, in its landmark decision construing the CSRA, has
itself provided a powerful refutation of Roth's lack-of-remedy
argument:
9
The question is not what remedy the court
should provide for a wrong that would
otherwise go unredressed. It is whether an
elaborate remedial system that has been
constructed step by step, with careful
attention to conflicting policy
considerations, should be augmented by the
creation of a new judicial remedy . . . .
That question obviously cannot be answered
simply by noting that existing remedies do
not provide complete relief for the
plaintiff. The policy judgment should be
informed by a thorough understanding of the
existing regulatory structure and the
respective costs and benefits that would
result from the addition of another remedy. .
. .
Bush v. Lucas, 462 U.S. 367, 388 (1983). On the basis of Bush,
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as explicated in Berrios, Montplaisir, and Saul, we find Roth's
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lamentations about the inadequacies of administrative relief
under the CSRA to be an exercise in irrelevancy.
III.
III.
Since civil service reform became a legislative reality
in 1978, the Supreme Court "has jealously guarded CSRA against
inconcinnous judicial incursions." Montplaisir, 875 F.2d at 3;
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accord Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991)
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(stating that "Congress's purpose in enacting the CSRA was to
channel grievances and disputes arising out of government
employment into a single system of administrative procedures and
remedies"). We are obliged to do no less. Considering the
CSRA's breadth and the comprehensive, integrated nature of its
remedial scheme, we believe the field is rather fully occupied,
leaving little, if any, room for state-law tort anodynes.
Indeed, "[p]erforming the requisite analysis . . . leads to the
10
inescapable conclusion that Congress intended to preempt state-
law tort actions." Montplaisir, 875 F.2d at 5.
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We need go no further. In general, a federal employee
whose position comes within CSRA's reach may seek redress for the
untoward effects of a prohibited personnel practice only through
the panoply of remedies that CSRA itself affords. Roth's case,
as she has stated it, is completely engulfed within this
generality.4
Affirmed.
Affirmed.
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4In view of our disposition of this matter, we need not
consider the government's alternative asseveration that the
plaintiff's complaint, insofar as it seeks an award of damages,
is also barred under the Federal Tort Claims Act, more
specifically, 28 U.S.C. 2680(h) (precluding maintenance against
the federal sovereign of "[a]ny claim arising out of . . .
slander"). By the same token, it would be supererogatory for us
to decide the plaintiff's motion to supplement the record; with
or without supplementation, the show has closed.
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Document Info
Docket Number： 91-1694
Filed Date： 10/19/1992
Precedential Status： Precedential
Modified Date： 9/21/2015