Saul v. U.S.

• Decision Date: 11 March 1991
• Docket Number: No. 89-35698,89-35698
• Citation: 928 F.2d 829
• Parties: 136 L.R.R.M. (BNA) 2783, 59 USLW 2585, 6 Indiv.Empl.Rts.Cas. 447 Jeffrey A. SAUL, Plaintiff-Appellant, v. UNITED STATES of America; Ray Larsen; Colleen St. Louis; John Doe St. Louis, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 829

928 F.2d 829

136 L.R.R.M. (BNA) 2783, 59 USLW 2585,

6 Indiv.Empl.Rts.Cas. 447

Jeffrey A. SAUL, Plaintiff-Appellant, v. UNITED STATES of America; Ray Larsen; Colleen St. Louis John Doe St. Louis, Defendants-Appellees.

No. 89-35698.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 13, 1990.

Decided March 11, 1991.

Samuel Kornhauser, Rose & Kornhauser, San Francisco, Cal., for plaintiff-appellant.

Richard A. Olderman, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, SCHROEDER and NORRIS, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Today we consider what remedies are available to a federal employee who has work-related differences with his supervisors. Specifically, we decide whether a federal employee may use either a constitutional or a common law tort theory to sue his supervisors over disputes growing out of his employment.

BACKGROUND

Jeffrey Saul worked for the Social Security Administration (SSA) in Seattle as a Claims Representative. He also served as a union representative for the American Federation of Government Employees (AFGE). His supervisors at the SSA included Ray Larsen, an Area Director, and Colleen St. Louis, Saul's immediate supervisor.

Saul sued Larsen and St. Louis in state court, charging constitutional and common law torts. He alleged that St. Louis had seized and opened personal mail addressed to him at the office, thereby violating his constitutional rights and invading his privacy. He further alleged that Larsen had twice defamed him ¹ and that both supervisors had tortiously inflicted emotional distress upon him. ²

The defendants removed to federal district court by invoking 28 U.S.C. Sec. 1442(a)(1). They convinced the district court that they were entitled to absolute immunity under the doctrine of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), ³ and Judge McGovern entered summary judgment for them. Saul appealed the district court's acceptance of removal jurisdiction and its determination that his supervisors were immune from his claims.

We affirmed initially by an unpublished memorandum. Simultaneously, however, the Supreme Court altered the analysis of federal employees' immunity by its decisions While this case was pending on remand, Congress responded to Westfall by enacting the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. No. 100-694, 102 Stat. 4563 (Westfall Act). The Westfall Act amended the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671 et seq., to protect federal employees from personal liability. Westfall Act Sec. 2(b). In tort actions against federal employees, the act required substituting the United States as sole defendant if the Attorney General certified that the defendant employee had acted within the scope of employment. Id. Sec. 6 (now codified at 28 U.S.C. Sec. 2679(d)). ⁴ A United States Attorney certified that Larsen and St. Louis had acted within the scope of their employments.

                in Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988), and Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988).  On Saul's petition for rehearing we vacated our memorandum, reversed the grant of summary judgment and remanded for the district court's reconsideration of the immunity issue in light of Westfall and Forrester.    Saul v. Larsen, 847 F.2d 573, 576 (9th Cir.1988) (Saul I )
                

At issue now are several rulings by the district court on remand. First, following the Westfall Act certification, the district court granted the defendants' motion to substitute the United States as the sole defendant of the common law tort claims. Saul contests this substitution order.

Second, the district court granted partial summary judgment dismissing Saul's constitutional tort claim. It found this claim precluded by the special factor of federal employment. Saul disputes this finding.

The United States moved for summary judgment on the common law tort claims. Saul opposed this motion. He sought to amend his complaint concerning the opening of mail to seek both injunctive relief and class relief on behalf of all SSA employees.

Judge McGovern denied Saul leave to amend and entered summary judgment dismissing his common law tort claims. He found that Saul had failed to exhaust the administrative claim requirements of the FTCA. See 28 U.S.C. Secs. 2672, 2675(a). He also found that the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.), preempted Saul's common law tort claims, depriving the court of subject matter jurisdiction. Saul's third and fourth arguments on appeal challenge the denial of leave to amend and the summary dismissal of his common law tort claims.

DISCUSSION

Only three legal issues require our resolution. First, we must decide whether Saul's federal employment status precludes him from bringing a constitutional tort action to challenge his supervisor's work-related conduct. Second, we must determine whether the Civil Service Reform Act (CSRA) preempts Saul's common law tort claims. Third, we must consider whether the district court erred in denying Saul leave to amend.

Because Saul appeals from grants of summary judgment, our review is de novo. See Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). We must view both the facts and the inferences to be drawn from them in the light most favorable to Saul, the nonmoving party. We consider whether genuine issues of material fact preclude summary judgment, and whether the district court correctly applied the substantive law. See Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

The CSRA is the bedrock of our analysis, for we conclude that it precludes Saul's Bivens claim and preempts his state tort claims. We begin by examining the CSRA.

I THE CIVIL SERVICE REFORM ACT OF 1978

Congress enacted the CSRA to replace "an outdated patchwork of statutes and rules built up over almost a century." S.Rep. No. 969, 95th Cong., 2d Sess. 3, 53 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 2723, 2725 (Senate Report). ⁵ The goal was "a single unified personnel policy which [takes] into account the requirements of all the various laws and goals governing Federal personnel management." Id. at 2775. The Act "replaced the patchwork system with 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." United States v. Fausto, 484 U.S. 439, 445, 108 S.Ct. 668, 672, 98 L.Ed.2d 830 (1988).

Two of the CSRA's several appeal mechanisms are relevant here. The act permits federal employees to challenge "prohibited personnel practices" by their supervisors. See 5 U.S.C. Sec. 2302. It also requires that any collective bargaining agreement covering federal employees contain a grievance procedure that culminates in binding arbitration. Id. Sec. 7121. The United States argues that Saul could have challenged the actions of Larsen and St. Louis through either of these CSRA appeal procedures.

A Prohibited Personnel Practices

The "prohibited personnel practices" of the CSRA include taking "personnel action[s]" violative of its merit system principles. 5 U.S.C. Sec. 2302(b)(11). The merit system principles include treating employees fairly and equitably, "with proper regard for their privacy and constitutional rights," id. Sec. 2301(b)(2), as well as protecting employees against arbitrary action and personal favoritism. Id. Sec. 2301(b)(8)(A).

The Act offers an administrative remedy to federal employees who allege prohibited personnel practices. ⁶ The Office of Special Counsel (OSC) must receive allegations of prohibited personnel practices and perform any necessary investigation. CSRA Sec. 202(a) (formerly 5 U.S.C. Sec. 1206(a)(1)), repealed in part by Whistleblower Protection Act of 1989 Sec. 3(a)(8), Pub.L. No. 101-12 Sec. 3(a)(8), 103 Stat. 16, 18. That office must report back to the person who alleged the prohibited practice. Id. (formerly 5 U.S.C. Sec. 1206(a)(2)). When the OSC has reasonable grounds to believe that a prohibited personnel practice has occurred, it may petition the Merit System Protection Board (MSPB) to stay the personnel action, id. (formerly 5 U.S.C. Sec. 1208), or to correct the prohibited personnel practice. Id. (formerly 5 U.S.C. Sec. 1206(c)(1)(B)). It may even seek disciplinary action against the employee who committed the prohibited practice. Id. (formerly 5 U.S.C. Sec. 1206(g)). Saul did not initiate a complaint to the Office of Special Counsel.

The CSRA makes a "personnel action" an element of a prohibited personnel practice. 5 U.S.C. Sec. 2302. It defines "personnel action" as including "disciplinary or corrective action," id. Sec. 2302(a)(2)(A)(iii), but it provides no definitions for these latter terms. Saul argues that he could not have challenged the opening of his mail under the procedures for prohibited personnel practices, because the definition of "personnel action" encompasses only actions bearing some relationship to employees' pay.

We reject this cramped construction of "personnel action." The CSRA's legislative history indicates that Congress rejected a pay-relatedness requirement. The House Conference Report states that "a personnel action must be significant, but it need not be expected to result in a reduction in pay or grade." House Conf. Report at 2863 (also indicates that some reassignments that do not affect pay are "personnel actions"; others are not). Congress did expect "prohibited personnel practices" to cover supervisors' violations of employees' constitutional and privacy...