Plasai v. Mineta , 212 F. App'x 287 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 28, 2006
FOR THE FIFTH CIRCUIT
______________________
Charles R. Fulbruge III
No. 05-10716 Clerk
______________________
KAN PLASAI,
Plaintiffs-Appellant
versus
NORMAN Y. MINETA, SECRETARY, DEPARTMENT OF
TRANSPORTATION; MICHAEL C. MILLS; THOMAS E. STUCKEY; JAY
LAFLAIR; PETER J KERWIN; In their individual and
professional capacities,
Defendants-Appellees
___________________________________________________
Appeal from the United States District Court for
the Northern District of Texas, Dallas Division
3:04-CV-1477
___________________________________________________
Before GARWOOD, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:1
Kan Plasai appeals from the summary judgment in
favor of the defendants on her Bivens claim and her
state law claim for intentional infliction of emotional
distress. We affirm.
1
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
1
I.
Kan Plasai worked for the Federal Aviation
Administration (“FAA”) as a computer security
specialist, responsible for, inter alia, administering
the network, upgrading equipment, and ensuring system
conformity. In early 2003, Plasai suspected that Melissa
Kerwin, a receptionist, had been using her work computer
to access personal email and online chat rooms. Melissa
Kerwin is the daughter of Peter Kerwin, an FAA
administrator in the agency’s Fort Worth regional
office. Plasai did not report her suspicions, but rather
copied emails from Melissa’s computer and took them home
to her husband, a self-employed contractor. Her husband
then notified Peter Kerwin of the unauthorized use via
email. Peter Kerwin forwarded the email to his division
manager, who began a formal investigation into both
Melissa Kerwin’s and Kan Plasai’s actions.2
During the investigation, the FAA confiscated and
retained Plasai’s work computers for four weeks. As a
2
The FAA Standards of Conduct prohibit employees from
“[d]ivulg[ing] any official information obtained through or in
connection with their Government employment to any unauthorized
person. FAA HRPM § 4.1.4(a). Plasai was investigated for breaching
that standard.
2
result, she had to work overtime to meet federal
software deployment deadlines. While still under
investigation, Plasai found that two other FAA employees
had reconfigured their computers in violation of agency
policy. When she reported those findings to Michael
Mills, her supervisor, she was accused of “snooping
around;” Plasai cites this accusation as further
evidence of humiliating, discriminatory conduct meant to
“drive her from her job.” Shortly after this second
incident, Plasai’s husband confronted one of the two
employees. Plasai was placed on administrative leave,
without a hearing nor any other opportunity to challenge
her suspension.
Plasai exhausted her administrative remedies and
then brought suit in federal district court claiming
discrimination based on race and national origin under
Title VII (42 U.S.C. § 2000e-16, et seq.) against Norman
Mineta, Secretary of Transportation. In a separate
complaint, she sued Norman Y. Mineta; Michael C. Mills,
her immediate supervisor; Thomas E. Stuckey, and Peter
J. Kerwin, both FAA administrators in the Fort Worth
3
regional office; and Jay LaFlair, an FAA investigator.
She alleged a civil rights violation under Bivens v. Six
Unknown Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971); and negligence and intentional
infliction of emotional distress under Texas state law.
The parties to both complaints waived their right to
proceed before a district court judge and agreed to
trial before a magistrate judge pursuant to 28 U.S.C. §
636(c).3 Shortly thereafter, the two cases were
consolidated into the present suit.
Defendants moved to dismiss plaintiff’s Bivens and
state law claims.4 The magistrate judge decided that all
claims but the Title VII claims were preempted by the
Civil Service Reform Act (“CSRA”), Pub.L.No. 95-454, 92
Stat. 1111 (1978). The magistrate judge held, in the
alternative, that plaintiff failed to establish the
3
“Under 28 U.S.C. § 636(c)(1), a district court, with the
voluntary consent of the parties, may authorize a magistrate
[judge] to conduct proceedings and enter final judgment in a case;
such judgment is then appealable to the circuit court directly.”
Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir. 1984).
4
Although defendants submitted a “motion to dismiss”, the
magistrate judge treated it as a motion for summary judgment
because the motion relied on matters outside the pleadings for
support.
4
violation of a federally protected right sufficient to
sustain a Bivens claim. Accordingly, the magistrate
judge granted the motion to dismiss the Bivens and state
law claims. Plasai timely appealed the magistrate
judge’s dismissal of the Bivens claim and her claim
under state law for intentional infliction of emotional
distress.5 Because we agree that Plasai has not
established the violation of a federally protected
right, and that the magistrate judge correctly
determined that the CSRA preempts her state law claim
for intentional infliction of emotional distress, we
affirm the dismissal.
II.
We review the magistrate judge’s summary judgment
ruling de novo. See Lockette v. Greyhound Lines, Inc.,
817 F.2d 1182, 1185 (5th Cir. 1987) (“[T]his court
applies the same standard of review to the findings and
conclusions of the magistrate that we would apply to a
decision of the district court.”) and Hanks v.
5
Plasai does not challenge the dismissal of her state law
negligence claims.
5
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997
(5th Cir. 1992) (“This court reviews the grant of
summary judgment motion de novo, using the same criteria
used by the district court in the first instance.”).
Summary judgment is appropriate where the record shows
"that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Facts and inferences
reasonably drawn from those facts should be taken in the
light most favorable to the non-moving party. Eastman
Kodak Co. v. Image Technical Services, Inc., 504 U.S.
451, 456 (1992); Huckabay v. Moore, 142 F.3d 233, 238
(5th Cir. 1998). Where the non-moving party fails to
establish "the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial," no genuine issue of material
fact can exist. Celotex, 477 U.S. at 322-3.
III.
On appeal, Plasai asserts three points of error: 1)
6
that the district court incorrectly determined that her
Bivens claim failed to allege the violation of a
federally protected right; 2) that the district court
incorrectly determined that her Bivens claim was
preempted by the CSRA; and 3) that the district court
incorrectly determined that her state law claim for
intentional infliction of emotional distress is
preempted by the CSRA.
A. Plasai’s Bivens claim does not assert a violation of
a federally protected right.
Plasai claims that the government’s search and
seizure of her work computer constituted a civil rights
violation under Bivens v. Six Unknown Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971). On
appeal, she argues that the government interfered with
her constitutional right to prevent the “possible
criminal and subversive activity of Ms. Kerwin in using
her FAA workplace computer to make a threat against the
life of the President.” The magistrate judge held that
to the extent that Plasai claimed that her Bivens claim
7
was founded on her right to report and provide evidence
of suspected criminal activity, no such right exists
under the Constitution. On appeal, Plasai emphasizes
that she is not challenging the nonenforcement of a
criminal statute, but rather challenging a violation of
her right - and duty, under the FAA Standards of Conduct
- to prevent criminal activity. She claims, without
analysis or explanation, that her “affirmative
obligation under the FAA Standards of Conduct to report
suspected illegal or criminal activity” gives her
standing to challenge a search and seizure that
prevented her from complying with those obligations.
We need not decide today whether such a right
actually exists. Assuming, arguendo, that Plasai has
asserted a protected right, Plasai’s Bivens claim still
fails. To review: Plasai discovered that Melissa Kerwin
was using her work computer to access personal email and
online chat rooms, and that in those online chat rooms
Melissa posted entries critical of President Bush and
containing other vulgar and inappropriate language. Her
characterization of events misstates their actual
8
sequence: in fact, Plasai first observed Melissa
Kerwin’s alleged violation. Then, rather than reporting
the suspected violation to her supervisor, Plasai took
the information home to her husband. In turn, her
husband contacted Peter Kerwin and informed him of the
violation. At that point, the FAA began its
investigation, which resulted in the seizure of her work
computer.
Even if the right she asserts (prevention of
criminal activity) is federally protected, Plasai has
not shown that she was attempting to prevent criminal
activity in a situation where, in fact, the alleged
criminal activity had already occurred. Nor has she
shown that the post hoc seizure of her computer
prevented her from exercising her “right” and obligation
to prevent a violation by reporting it. Ms. Plasai
rightly notes that her duties under the FAA Standards of
Conduct require her to report misuse of computing
resources, as well as suspected illegal or criminal
activity. The FAA Standards of Conduct, however, also
forbid Ms. Plasai from divulging official information
9
obtained in connection with her employment to any
unauthorized person. Plasai took the information she had
compiled against Melissa home and discussed that
information with her husband. She has not claimed that
such behavior - which precipitated the seizure, since it
was itself a violation of FAA policy - was necessary to
fulfilling her alleged duty to prevent criminal
activity. Furthermore, Plasai has not shown that the
agency’s seizure violated her hypothesized right to
prevent criminal activity. In fact, the events giving
rise to the FAA’s investigation of Plasai also resulted
in an investigation against Melissa Kerwin for the very
abuse of computing resources that Plasai had identified.
Accordingly, we hold that Plasai’s Bivens claim
fails to assert a violation of a federally protected
right and affirm the district court’s grant of summary
judgment on that claim. Because we conclude that the
Bivens claim is not viable in any event, we need not
address Plasai’s argument that her Bivens claim is not
precluded by the CSRA.
10
B. Plasai’s state law claim is precluded by the CSRA.
The magistrate judge held that the CSRA preempted
Plasai’s state law claim of intentional infliction of
emotional distress, brought under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq.,6 was
preempted by the Civil Service Reform Act and the
remedies it affords her. See Pub.L. No. 95-454, 92 Stat.
1111 (1978). The CSRA provides “an integrated scheme of
administrative and judicial review, designed to balance
the legitimate interests of the various categories of
federal employees with the needs of sound and efficient
administration.” Rollins v. Marsh, 937 F.2d 134, 137
(5th Cir. 1991). The Supreme Court has described this
panoply of defenses as an “elaborate remedial system”
and declined to permit additional remedies. Bush v.
Lucas, 462 U.S. 367, 368 (1983); see also id. at n.30
6
To the extent that Plasai is pursuing a tort claim
against the individuals involved, the FTCA makes clear
that it is the exclusive remedy for compensation for
tortious acts by a federal employee acting in the scope
of his employment. 28 U.S.C. § 2679. At no point does
Plasai argue that the individual defendants were acting
outside of the scope of employment.
11
(discussing the sections of the CSRA providing
protection).
Plasai asserts that the magistrate judge’s ruling is
incorrect because she is not directly covered by the
CSRA, but rather falls under the FAA’s Personnel
Management System (“FAA PMS”). 49 U.S.C. § 40122(g).
While the FAA PMS explicitly states that as a general
rule, the provisions of the CSRA do not apply, it then
makes specific exceptions that render certain CSRA
provisions applicable to FAA employees. Id. §
40122(g)(2). Included among those exceptions are the
protections against “prohibited personnel actions”
contained in the CSRA at 5 U.S.C. § 2302(b), along with
the related investigative and enforcement provisions
contained in Chapter 12 of Title 5. See 49 U.S.C §
40122(g)(2)(A). For these reasons, we hold that the CSRA
does apply in this case, by virtue of its specific
incorporation into the FAA PMS.
Although the magistrate judge did not explicitly
note the connection between the CSRA and the FAA PMS, we
conclude that his analysis was correct in its result. He
12
first considered whether the agency’s action constituted
a “prohibited personnel action” under the CSRA; holding
that it did so, he then held that the CSRA preempts such
claims. A recent Supreme Court decision indicates
approval of his methodology. Whitman v. Dep’t of
Transp., --- U.S. ----, 126 S. Ct. 2014, 2014 (June 05,
2006) (noting that the FAA PMS specifically incorporates
particular provisions of the CSRA, and that the
appropriate course of action is to determine where and
whether the claims fit within that statutory scheme).
Furthermore, we agree with his conclusions. The
magistrate judge held that the FAA’s seizure of Plasai’s
work computer constituted a “personnel action” for the
purposes of the CSRA because the seizure was tied to her
alleged violation of the FAA’s Standards of Conduct for
its employees. His holding comports with this circuit’s
precedent: we have found that conduct constituted a
personnel action where “[a]ll the actions taken by the
defendants were related to status as federal
employees[.]” Rollins, 937 F.2d at 138 (where actions
included temporary suspension and loss of security
13
clearance). The same is true in this case: defendants
seized only Plasai’s work computer, from her office, in
investigating an alleged violation. Since the seizure
falls within the types of personnel actions covered by
the CSRA as adopted by the FAA PMS, the magistrate
correctly concluded that the CSRA preempts Plasai’s
state law claim. We have held that such “‘comprehensive
and exclusive procedures for settling work-related
controversies between federal civil-service employees
and the federal government’” necessarily preempt FTCA
claims. Rollins, 937 F.2d at 139 (quoting Rivera v.
United States, 924 F.2d 948, 951 (9th Cir. 1991)). “‘To
permit FTCA claims to supplant the CSRA's remedial
scheme certainly would defeat that purpose.’” Rollins,
937 F.2d at 139 (quoting Rivera v. United States, 924
F.2d 948, 951 (9th Cir. 1991)); see also Grisham v.
United States, 103 F.3d 24, 26 (5th Cir. 1997); Bell v.
Laborde, 2006 WL 2930169 at *1 (5th Cir., Oct 13, 2006).
We therefore affirm the magistrate judge’s
determination.
14
CONCLUSION
We conclude that the magistrate judge correctly
held that Plasai failed to state a viable Bivens claim
and that her state law tort claim is preempted by the
CSRA. For these reasons, the judgment of the magistrate
judge is AFFIRMED.
15