Orsay v. U.S. Dept. of Justice

Citation289 F.3d 1125
Decision Date14 May 2002
Docket NumberNo. 00-16860.,00-16860.
PartiesDavid ORSAY, Deputy U.S. Marshal; Michael Smith, Deputy U.S. Marshal, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF JUSTICE; United States Marshals Service; Office of the Inspector General; Eduardo Gonzalez; G. Ray Havens; Deborah Westbrook; Richard E. Kelly; Jerry Enomoto; Michael Nelson; Carolyn Griffin, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Gary W. Gorski, Fair Oaks, CA, for the plaintiffs-appellants.

Joanne P. Rodriguez, Assistant U.S. Attorney, Boise, ID, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California; Edward J. Lodge,* District Judge, Presiding. D.C. No. CIV-S-99-456-EJL.

Before: HUG, D.W. NELSON, and HAWKINS, Circuit Judges.

Opinion by Judge HUG; Partial Concurrence and Partial Dissent by Judge D.W. NELSON.

HUG, Circuit Judge.

Deputy United States Marshals David Orsay and Michael Smith (collectively "Appellants") appeal the district court's dismissal of their claims under the Privacy Act, 5 U.S.C. § 552a, and the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"). The district court held that it lacked subject matter jurisdiction to resolve the claims, which the court found preempted by the Civil Service Reform Act ("CSRA"), codified in various sections of Title 5 of the United States Code. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1346(b)(1), and we have jurisdiction over Appellants' timely appeal under 28 U.S.C. § 1291. We affirm, holding that the CSRA bars Appellants' Privacy Act claims and some of their FTCA claims, and that the FTCA's intentional tort exception, 28 U.S.C. § 2680(h), bars Appellants' remaining FTCA claims.

FACTS AND PROCEDURAL BACKGROUND

Appellants brought this action against the United States Department of Justice, the United States Marshals Service, the Office of the Inspector General, and seven employees of the United States Marshals Service (collectively "Appellees"). This appeal follows the district court's judgment granting Appellees' motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, and denying Appellants' motion to file a proposed second amended complaint, which Appellants had lodged with the court. Because we are reviewing a Rule 12(b)(1) dismissal, we accept as true the following factual allegations of Appellants' first amended and proposed second amended complaint. See U.S. ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1189 (9th Cir.2001).

Appellants are Deputy United States Marshals in the employment of Appellee United States Marshals Service ("USMS"), a subdivision of Appellee United States Department of Justice ("USDOJ"). In or about November of 1997, Appellants filed a number of reports of misconduct by their supervisors with the USMS's Internal Affairs department and with Appellee Office of the Inspector General ("OIG"), also a USDOJ subdivision. In particular, Appellant Michael Smith complained about sexual improprieties by a USMS supervisor, Appellee Carolyn Griffin ("Griffin"). Appellants also reported that Griffin fraudulently dispersed large amounts of overtime pay to USMS employees for hours not actually worked. Lastly, Appellants filed a criminal report against a USMS supervisor, Michael Claxton ("Claxton"), for assault with a deadly weapon. Claxton allegedly pointed a loaded gun at Appellants on a number of occasions, and said things like: "You're dead," "You're history," "Gotcha," and "You never had a chance."

After Appellants filed these formal complaints, Appellees allegedly initiated an investigation of Appellants and opened a disciplinary file on them that supposedly focused on their formal complaints and included incomplete, inaccurate, irrelevant, and untimely records. Based upon this investigation and disciplinary file, Appellees allegedly assigned Appellants to less desirable positions that precluded them from gaining valuable experiences important for promotion within the USMS. Appellees' investigation and maintenance of the disciplinary file also allegedly led to Appellants' constructive suspension and/or discharge in January of 1998. Finally, according to Appellants, Appellees' maintenance of the disciplinary file created a record of implied wrongdoing by Appellants.

Based upon these factual allegations, Appellants brought this action in the district court, asserting, inter alia, claims under the Privacy Act and the FTCA. Appellants contend that Appellees' improper maintenance of the disciplinary file's records violated the Privacy Act, 5 U.S.C. § 552a(g)(1)(C), because it adversely affected Appellants' careers in law enforcement. Under the FTCA, Appellants argue that Claxton's conduct constituted assault and intentional infliction of emotional distress. Appellants further claim that Appellees were complicit in Claxton's assault and intentional infliction of emotional distress because after Appellants filed their criminal report, Claxton's only reprimand was a Letter of Instruction, apparently the least amount of discipline that the USMS gives. Appellants contend that this minimal punishment is favored treatment due to the fact that the regional USMS leadership consists of Claxton's friends.

Under Rule 12(b)(1), Appellees moved to dismiss Appellants' claims for lack of subject matter jurisdiction. Appellants moved to amend their complaint a second time. Finding Appellants' claims barred by the CSRA, the district court granted Appellees' motion to dismiss and denied Appellants' motion to amend. Appellants appeal this decision.

DISCUSSION

Appellants argue that the district court erred in holding that the CSRA preempts their Privacy Act and FTCA claims. Appellees counter that the district court correctly found that the CSRA's administrative procedures are Appellants' exclusive means of redress. Alternatively, Appellees argue that the FTCA's intentional tort exception, 28 U.S.C. § 2680(h), bars Appellants' FTCA claims of assault and intentional infliction of emotional distress.

We review de novo the district court's dismissal for lack of subject matter jurisdiction. See La Reunion Francaise SA v. Barnes, 247 F.3d 1022, 1024 (9th Cir.2001). We review for an abuse of discretion the district court's denial of Appellants' motion to amend their complaint. See U.S. v. SmithKline Beecham, Inc., 245 F.3d 1048, 1051 (9th Cir.2001).

I. The CSRA.

The CSRA provides a remedial scheme through which federal employees can challenge their supervisors' "prohibited personnel practices." 5 U.S.C. § 2302. If the conduct that Appellants challenge in this action falls within the scope of the CSRA's "prohibited personnel practices," then the CSRA's administrative procedures are Appellants' only remedy, and the federal courts cannot resolve Appellants' claims under the Privacy Act and the FTCA. See Houlihan v. Office of Pers. Mgmt., 909 F.2d 383, 384-85 (9th Cir.1990) (the CSRA preempted a federal employee's Privacy Act claim that alleged the misclassification of her employment position, a "prohibited personnel practice" under the CSRA); Rivera v. U.S., 924 F.2d 948, 951-52 (9th Cir.1991) (the CSRA preempted a federal employee's FTCA claim regarding her supervisor's retaliation after the employee filed a complaint about the supervisor, a "prohibited personnel practice" under the CSRA).

Appellants argue that (1) the conduct underlying their Privacy Act and FTCA claims does not come within the CSRA's ambit, and (2) the CSRA cannot bar their claims because the CSRA's remedies are more limited than those available to the federal courts.

We have previously rejected Appellants' second argument, holding that the CSRA preempts federal claims that fall within its scope even when the statute provides no alternative remedy. See Collins v. Bender, 195 F.3d 1076, 1079 (9th Cir.1999) ("[E]ven if no remedy were available to [plaintiff] under the CSRA, he still could not bring [his] action if the acts complained of fell within the CSRA's confines."); Blankenship v. McDonald, 176 F.3d 1192, 1195 (9th Cir.1999) (holding that even though the federal employee was without an effective remedy under the CSRA, the CSRA precluded the employee's Bivens action "[b]ecause congressional action has not been inadvertent in providing certain remedies and denying others to judicial employees"); Saul v. U.S., 928 F.2d 829, 840 (9th Cir.1991) ("[T]he preclusive effect of the CSRA sweeps beyond the contours of its remedies."). Given our case law on this point, Appellants' second argument regarding the inadequacy of the CSRA's remedies must fail. Thus, the central issue before us is whether the conduct underlying Appellants' Privacy Act and FTCA claims comes within the CSRA's ambit.

A. Appellants' Privacy Act Claims.

We conclude that Appellants' Privacy Act claims fall under the CSRA's definition of "prohibited personnel practices" because, first, the decisions at issue were "personnel actions," and second, they were allegedly taken for reasons prohibited by the statute.

At bottom, Appellants assert that Appellees retaliated against them for their formal complaints by opening a disciplinary file on them that contained false information and resulted in their involuntary leave of absence from the USMS, and in their assignment to less desirable positions that lacked promotional opportunities. The conduct that Appellants allege falls within a number of the CSRA's definitions of "personnel action": (1) a "disciplinary or corrective action," (2) "a detail, transfer, or reassignment," (3) "a decision concerning pay, benefits, or awards, or concerning ... training if the ... training may reasonably be expected to lead to [a] ... promotion," and (4) "any other significant change in duties, responsibilities, or working conditions." 5 U.S.C. § 2302(a)(2)(A)(iii), (iv), (ix), & (xi). Given the...

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