Berrios v. Department of Army

Decision Date02 March 1989
Docket NumberNo. 88-2103,88-2103
Citation884 F.2d 28
PartiesPedro BERRIOS, Plaintiff, Appellant, v. DEPARTMENT OF the ARMY, et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

Samuel C. Vazquez-Matias with whom Pedro Berrios, pro se., was on brief for plaintiff, appellant.

Isabel Munoz Acosta, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., was on brief for defendants, appellees.

Before TORRUELLA and SELYA, Circuit Judges, and CAFFREY, * Senior District Judge.

CAFFREY, Senior District Judge.

Pedro Berrios appeals from the district court's ruling dismissing his Complaint against the Department of the Army ("the Department"), two of his former supervisors, and other named defendants. 1 The district court allowed defendants' motion to dismiss on the grounds that plaintiff's federal constitutional claims can be maintained only in strict accordance with the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (1978) (codified in various sections of 5 U.S.C.) ("CSRA" or "Act"), and that his defamation claims against the supervisors are barred by the doctrine of absolute immunity. We conclude that the CSRA precludes both the federal and state claims in the present case and therefore affirm the district court's ruling.


Plaintiff was a sales store checker at the United States Army Commissary in Fort Buchanan, Puerto Rico, where he was employed for approximately four years. In May of 1985, plaintiff received a letter from his immediate supervisor, defendant Frank Ortiz, notifying him of his proposed removal. Plaintiff was charged with deliberately undercharging a customer for food items, sometimes referred to as "sweethearting." He was granted thirty days to reply, within which time he filed both initial and supplemental replies denying the charges. Plaintiff claims that he requested a hearing prior to removal and that such request was denied. On August 27, 1985, he received an undated letter signed by defendant Michael Leyva, commissary officer, informing plaintiff of his removal effective the following day.

Plaintiff appealed his removal to the regional office of the Merit Systems Protection Board ("MSPB"), pursuant to 5 U.S.C. Sec. 7513(d). Section 7513(d) provides that "[a]n employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board...." At the time of said appeal, plaintiff was represented by counsel and received an evidentiary hearing, during which he submitted evidence on his own behalf and had the opportunity to cross-examine his former supervisors. The regional MSPB affirmed the Department's decision to remove plaintiff in a January 14, 1986 Initial Decision. Plaintiff then petitioned the Washington MSPB for a review of the Initial Decision and the petition was denied.

The MSPB's Order denying the petition informed plaintiff of his right to seek judicial review before the United States Court of Appeals for the Federal Circuit under 5 U.S.C. Sec. 7703. Section 7703(a)(1) provides: "Any employee adversely affected or aggrieved by a final order or decision of the [MSPB] may obtain judicial review of the order or decision." Furthermore, Section 7703(b)(1) directs that "a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit." In accordance with Section 7703, plaintiff filed an appeal before the Federal Circuit Court of Appeals. Later, however, he requested and was granted leave to withdraw his appeal, without prejudice. Plaintiff then brought the present action in the United States District Court for the District of Puerto Rico seeking reinstatement, back pay, damages, and attorney's fees.

Plaintiff alleges that defendants, in failing to provide him with a hearing prior to removal from his government position, deprived him of his due process rights under the fifth amendment of the United States Constitution. Plaintiff also claims that he was defamed by his two former supervisors, defendants Leyva and Ortiz. He alleges specifically that they committed libel per se in the course of his removal proceedings by sending out two administrative letters containing intentionally false information.

Defendants filed a motion to dismiss under Fed.R.Civ.P. 12(b) arguing that plaintiff's federal claims are precluded by the CSRA and that the defamation claims are barred by the absolute immunity of defendants Leyva and Ortiz. The district court allowed defendants' motion dismissing plaintiff's Complaint, and plaintiff appealed.


Plaintiff's appeal raises the threshold question of whether his claims, both federal and state, are preempted by the CSRA. Defendants argue that the district court correctly determined that the CSRA preempts district court jurisdiction over plaintiff's federal constitutional claims and that the doctrine of absolute immunity bars plaintiff's libel claims against his former supervisors. Defendants argue in the alternative that the federal and state claims together fall within the scope of the CSRA and are thereby both preempted by that statute. Given our determination that the comprehensive remedial scheme provided for under the CSRA precludes plaintiff's entire district court action, we need not address the individual defendants' claims of absolute immunity. 2

Plaintiff contends that the district court erred in concluding that the Federal Circuit Court of Appeals is the exclusive forum for judicial review of his claims. According to plaintiff, a plain language reading of the relevant statutory provisions confirms this error. Plaintiff points specifically to the language of Section 7703(a)(1) which provides that the aggrieved employee "may" obtain judicial review of an adverse MSPB final order. Plaintiff contends that the word "may" cannot be interpreted as foreclosing other avenues of judicial review not contemplated in Section 7703. We reject outright this interpretation of Section 7703. The plain language of the statute indicates that the aggrieved party may or may not seek judicial review of an adverse MSPB order, but in the event the party does pursue such action it must be in the Federal Circuit Court of Appeals. See 5 U.S.C. Secs. 7703(a)(1) and (b)(1).

There is no longer any serious dispute that the CSRA preempts challenges to personnel actions brought under federal law. In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the United States Supreme Court refused to recognize a federal common law right to recover damages for unconstitutional actions in federal personnel decisions. Holding that the plaintiff was limited to the remedial scheme established by the CSRA, the Court explained:

Federal civil servants are now protected by an elaborate comprehensive scheme that encompasses substantive provisions forbidding arbitrary action by supervisors and procedures--administrative and judicial--by which improper action may be redressed. They apply to a multitude of personnel decisions that are made daily by federal agencies. Constitutional challenges to agency action ... are fully cognizable within this system.

Id. at 385-86, 103 S.Ct. at 2415 (internal footnote omitted). Furthermore, the Court in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), emphasizing that "[t]he CSRA established a comprehensive system for reviewing personnel action taken against federal employees," held that the CSRA precludes judicial review of certain adverse personnel action under the Back Pay Act, 5 U.S.C. Sec. 5596. Id. 108 S.Ct. at 677. See also Karahalios v. National Federation of Federal Employees, --- U.S. ----, 109 S.Ct. 1282, 103 L.Ed.2d 539 (1989) ("neither the language nor the structure of the [CSRA] shows any congressional intent to provide a private cause of action to enforce federal employees unions' duty of fair representation").

The actions challenged by plaintiff's constitutional claims are clearly "personnel actions" within the meaning of the CSRA. Section 2302(a)(2)(A) of Title 5 provides that personnel actions include actions under chapter 75 of that title, which incorporates removal proceedings. See 5 U.S.C. Sec. 7512(1). Plaintiff's constitutional challenge is directed against the removal proceedings which led to his dismissal from employment at the Commissary. Plaintiff challenges the relevant procedural provisions both on their face and as applied to him. He contends that certain of the provisions are unconstitutional on the grounds of vagueness and overbreadth. He also contends that the provisions as applied denied him of due process because, among other things, he was not afforded a hearing before his removal. Given that plaintiff's constitutional claims amount to a federal law challenge to an adverse personnel action, they are preempted by the CSRA consistent with the reasoning of Bush and Fausto.

The next question is whether the CSRA also preempts plaintiff's defamation claims against his former supervisors. In addition to arguing that the doctrine of absolute immunity bars the defamation claims against defendants Leyva and Ortiz, defendants argue that these state law claims are also precluded by the CSRA. Defendants rely principally on a recent Eleventh Circuit decision in which the court held that the CSRA preempts state law challenges to personnel actions within the scope of the Act's coverage. In Broughton v. Courtney, 861 F.2d 639 (11th Cir.1988), the court determined that the actions being challenged were personnel actions within the scope of the CSRA and concluded: "In light of the congressional policy to unify challenges to federal personnel actions, we hold these state law claims are preempted by the CSRA." Id. at 644. 3

We agree with the Broughton court's analysis of the preemption issue posed by state law challenges to adverse...

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