Rollins v. Marsh, 90-4583

• Citation: 937 F.2d 134
• Decision Date: 18 July 1991
• Docket Number: No. 90-4583,90-4583
• Parties: Aletha ROLLINS and Jessie Rollins, Plaintiffs-Appellants, v. John O. MARSH, Jr., Secretary of the United States Department of the Army, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 134

937 F.2d 134

60 USLW 2105

Aletha ROLLINS and Jessie Rollins, Plaintiffs-Appellants, v. John O. MARSH, Jr., Secretary of the

United States Department of the

Army, et al., Defendants-Appellees.

No. 90-4583.

United States Court of Appeals, Fifth Circuit.

July 18, 1991.

Edward L. Pina, Karam, Naranjo & Kruger, San Antonio, Tex., for plaintiffs-appellants.

Bob Wortham, U.S. Atty., Steven M. Mason, Asst. U.S. Atty., Tyler, Tex., Maj. Robert L. Minor, Dept. of Army, Office of the Judge Advocate Gen., The Pentagon, D. Bruce La Pierre, Barbara L. Herwig, U.S. Dept. of Justice, Civ. Div., Appellate Staff, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Two federal civil-service employees, Jessie and Aletha Rollins, submitted photographs of Aletha Rollins in the nude for publication. The photographs appeared in print and Jessie Rollins was suspended without pay from his job. The Merit System Protections Board found that the suspension was an improper employment decision under the Civil Service Reform Act, and reinstated Mr. Rollins with full back pay. The Rollinses then filed this suit in federal district court, alleging numerous federal and state grounds of relief. The district court was persuaded that the CSRA offers the exclusive remedy for a challenge of the suspension. We affirm.

I

In 1987 Jessie and Aletha Rollins were both federal civilian employees at the Red River Army Depot in Texarkana, Texas. Aletha Rollins was a missile repairer, and Jessie Rollins was a warehouse worker supervisor. During this time, Mr. Rollins took nude photographs of Mrs. Rollins, and the Rollinses submitted the pictures to several publications. The pictures appeared in 1987 issues of The Best of Hustler, Genesis nd Club International. In February 1987, soon after the Hustler and Genesis issues hit the newsstands, RRAD security police picked up the Rollinses and questioned them about the photographs, informing them that disciplinary action might ensue. The Rollinses also allege that the RRAD police coerced them into signing written statements concerning the publication of the pictures and circulated those statements. Two weeks after the questioning, a local newspaper reported the publication of the photographs and mentioned that the Rollinses were employed at RRAD.

On May 29, 1987, RRAD removed Jessie Rollins as foreman, ostensibly because the newspaper article had caused unfavorable publicity for RRAD and because Rollins had misused on-duty federal employees for personal business. Rollins appealed his removal to the Merit Systems Protection Board. RRAD dropped the unfavorable-publicity charge before the MSPB hearing. At the appeal hearing, Rollins argued that the removal violated his First Amendment rights, because it was done in response to the publication of the pictures and the newspaper article. He further argued that some of the defendants had conspired to have him removed because of the pictures and that the charge was a pretext. He further argued that his removal was a form of illegal sex discrimination. The government states that "no adverse personnel action was ever taken against Aletha Rollins." The government concedes, however, that Mrs. Rollins's security clearance was revoked on February 13, 1987, and was reinstated several months later. Also, because of the photographs and the news story, Mrs. Rollins received a notice of a proposed three-day suspension, but the suspension never went into effect.

The administrative law judge reversed RRAD's decision to remove Jessie Rollins. The ALJ found that, although Rollins had misused a federal employee in one minor respect, RRAD's inquiry into the issue came only after, and in response to, the publication of the nude photographs and the newspaper article. Based on these findings, the ALJ held that the removal of Rollins was for "conduct unrelated to his performance or the performance of others" and was therefore a prohibited personnel practice under the Civil Service Reform Act. ¹ The ALJ held, however, that Rollins failed to establish a prima facie case of sex discrimination. The judge then ordered RRAD to reinstate Rollins with full back pay, accrued benefits, and attorneys fees. The order informed Rollins of the timing and procedures for seeking review of the ALJ's decision. Jessie Rollins accepted the relief ordered by the ALJ and sought no further review. According to the summary judgment record, Aletha Rollins did not pursue administrative relief.

In February 1988, the Rollinses filed a complaint, naming the Secretary of the Army and fifteen RRAD officials and employees as defendants. The complaint alleged violations of a broad array of federal constitutional and statutory rights as well as state-law rights. The Rollinses' allegations included, among other things, violations of their rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and violations of their right to privacy under federal and Texas common law and under the Privacy Act of 1974. ² They also alleged defamation and breach of an implied covenant of good faith and fair dealing.

The Rollinses sought damages specifically under 42 U.S.C.A. Secs. 2000e-16, 1985(2) & (3), and 1986; 28 U.S.C.A. Sec. 2680; ³ Bivens v. Six Unknown Named Agents of Fed. Narcotics Bureau; ⁴ the Federal Tort Claims Act; and the state-law theories of defamation and implied covenant of good faith and fair dealing. The district court granted defendant's motion to dismiss, alternatively for summary judgment, on the ground that all the allegations arose from the Rollinses' federal civilian employment and under Bush v. Lucas ⁵ were precluded by the comprehensive federal statutory remedies provided by the CSRA. The court noted that, although Bush involved only a First Amendment claim, the Bush analysis had been applied to claims under the First, Fourth, Fifth, and Sixth Amendments. ⁶ The court also relied on the Supreme Court's opinion in Schweiker v. Chilicky, ⁷ and the federal appellate court decisions that followed Schweiker, for the proposition that the CSRA precludes Bivens recovery for actions that arise out of federal employment.

II

The Civil Service Reform Act of 1978, ⁸ replaced the old civil-service system, an "outdated patchwork of statutes and rules built up over almost a century," ⁹ with "an elaborate 'new framework for evaluating adverse personnel action against [federal employees].' " ¹⁰ This new framework provided "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." ¹¹ The portion of the CSRA most relevant to this case, Chapter 23, prohibits certain personnel practices and establishes merit-system principles that govern civil-service employment. ¹² The merit-system principles include treating employees fairly and equitably and "with proper regard for their privacy and constitutional rights." ¹³ Prohibited personnel practices include the taking of any "personnel action" that violates merit-system principles. ¹⁴ The Act also provides federal employees with remedies against prohibited personnel practices, remedies that include staying or correcting the practice and seeking disciplinary action against the offenders. ¹⁵

The question is whether under Bush v. Lucas the CSRA provides the exclusive remedy for the claims brought by the Rollinses. In Bush a federal civil-service employee of NASA was demoted and his pay was reduced after he made public statements critical of NASA. NASA alleged that the statements were unfounded and intemperate and that they impeded the operation of the agency. Appealing through the civil-service system, the employee eventually won reinstatement with full back pay. During the administrative appeal process, however, he also filed a Bivens suit against the defendants for money damages, alleging violations of his First Amendment rights. Under the assumption that there had been a First Amendment violation and that the CSRA remedy had been less than fully compensatory, the Court declined to recognize a remedy beyond that provided by the CSRA. The Court stated that "[b]ecause such claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, ... it would be inappropriate ... to supplement that regulatory scheme with a new judicial remedy." ¹⁶

III

The Rollinses argue first that Bush is not controlling and that the CSRA does not provide the exclusive remedy, because this suit does not arise out of the Rollinses' federal employment relationship. They note that, unlike in Bush where the employee was demoted for making statements concerning his job, the Rollinses were disciplined for engaging in protected activity that was unrelated to their work. It is true that most of the cases applying the Bush principle involve protected employee conduct or speech that was related to the job. This fact, however, does not undercut the finding that the Rollinses' claims arose out of their employment relationship with the federal government. All the actions taken by the defendants were related to status as federal employees: Mr. Rollins was temporarily suspended from his job, and Mrs. Rollins temporarily lost her security clearance. ¹⁷ We have little doubt but that these actions constitute personnel decisions under the CSRA ¹⁸ and hence arise out of the employment relationship.

The Rollinses also distinguish Bush on the basis that their complaint presents claims different from those presented in Bush. They argue that Bush and the CSRA do not preclude their Bivens claims, because Bush involved only First-Amendment...