Petrini v. Howard, 88-2404

• Decision Date: 15 November 1990
• Docket Number: No. 88-2404,88-2404
• Citation: Petrini v. Howard, 918 F.2d 1482 (10th Cir. 1990)
• Parties: Joanne K. PETRINI, Plaintiff-Appellee, v. Dorothy M. HOWARD; Edward T. Doler, Defendants-Appellants, and United States of America, Department of the Interior, Bureau of Indian Affairs, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1482

918 F.2d 1482

Joanne K. PETRINI, Plaintiff-Appellee, v.Dorothy M. HOWARD; Edward T. Doler, Defendants-Appellants and United States of America, Department of the Interior, Bureau of Indian Affairs, Defendant.

No. 88-2404.

United States Court of Appeals Tenth Circuit.

Nov. 15, 1990.

Eileen Paez, Albuquerque, N.M., for plaintiff-appellee.

Stuart M. Gerson, Asst. Atty. Gen., William L. Lutz, U.S. Atty., Albuquerque, N.M., Barbara L. Herwig and John S. Koppel, Attys., Appellate Staff, Dept. of Justice, Washington, D.C., for defendants-appellants.

Before McKAY, McWILLIAMS and EBEL, Circuit Judges.

PER CURIAM.

During the period from August, 1983, to June, 1987, Joanne Kathleen Petrini(plaintiff) was employed by the Bureau of Indian Affairs (BIA) as a special education teacher at the San Felipe Elementary School (San Felipe) located in New Mexico.Plaintiff's employment contract was not renewed in 1987 allegedly in retaliation for her expressing concerns about the conditions and practices at San Felipe.Subsequently, plaintiff brought this action seeking damages from, among others, Dorothy M. Howard, an assistant principal at San Felipe, and Edward T. Doler, the principal at San Felipe, (together, defendants).Plaintiff asserted a Bivens ¹ claim for alleged interference with rights under the first amendment and state law tort and contract claims, apparently based on New Mexico law.²

Defendants have appealed from an order of the district court denying their motion for summary judgment on the ground that plaintiff's Bivens claim is barred by the doctrine of qualified immunity, and plaintiff's state law tort claims are barred by the doctrine of absolute immunity.³On appeal, defendants have not confined their arguments to the viability of their qualified and absolute immunity defenses.Instead, defendants have argued for the first time that the remedial scheme of the Civil Service Reform Act of 1978, Pub.L. No. 98-454,92 Stat. 1111(1978)(codified in various sections of 5 U.S.C.)(CSRA) prevents plaintiff from asserting her constitutional claim and her state law tort claims.We agree that the remedies available to plaintiff are constrained by the CSRA and, for the reasons set forth below, we reverse the district court's determination.⁴

Bivens Claim

In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648(1983), the Supreme Court, for the first time, refused to recognize a Bivens remedy for unconstitutional activities in federal personnel decisions.Holding that the plaintiff was limited to the remedial scheme of the CRSA, 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.462 U.S. at 385-86, 103 S.Ct. at 2414-15.

The Court recently reiterated its cautious approach to extending Bivens remedies into new contexts in Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370(1988).There the Court declined to provide a Bivens remedy for social security claimants challenging the termination of their benefits.The Court stated that "[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies."Id. at 423, 108 S.Ct. at 2467.

This court has recently applied Bush and Chilicky to claimants situated similarly to plaintiff and declined to create Bivens remedies in light of the CSRA.Lombardi v. Small Business Admin., 889 F.2d 959(10th Cir.1989);Brothers v. Custis, 886 F.2d 1282(10th Cir.1989);Hill v. Department of Air Force, 884 F.2d 1318(10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2206, 109 L.Ed.2d 532(1990).Plaintiff attempts to escape the rationale of Bush and Chilicky by arguing that she did not have access to the CSRA framework and, even if she did, her Bivens claim does not challenge conduct amounting to a "prohibited personnel practice" within the meaning of the CSRA, see5 U.S.C. Sec. 2302(1982).However, plaintiff, as a BIA educator, could have availed herself of the procedures and remedies of the CSRA by petitioning the Office of the Special Counsel and alleging a prohibited employment practice.See5 U.S.C. Sec. 1206(a)(1)(1982);see alsoBrothers, 886 F.2d at 1284(recourse to the Office of the Special Counsel is sufficient access to CSRA for purposes of Bush and Chilicky ).Furthermore, the alleged conduct underlying plaintiff's Bivens claim, retaliation for the exercise of first amendment rights, is plainly cognizable as a prohibited employment practice.Spagnola v. Mathis, 859 F.2d 223, 225 n. 3(D.C.Cir.1988)(discussing5 U.S.C. Sec. 2302(b)(11)(1982)).Therefore, since the CSRA accommodates plaintiff's constitutional challenge, creation of a Bivens remedy for her is unwarranted.See, e.g., Hill, 884 F.2d at 1321.

State Law Tort Claims

As we understand plaintiff's complaint, her state law tort claims are premised on a number of alleged activities which preceded the nonrenewal of her contract by the BIA.Specifically, plaintiff alleged that defendants made false statements to others regarding an unspecified disease she contracted from a student during the 1985-86 school year.Plaintiff also alleged that defendants harassed her over minor incidents occurring in the classroom and gave her unfavorable employment evaluations.These actions, according to plaintiff, constituted defamation and intentional infliction of emotional distress.Plaintiff further alleged that defendants tortiously interfered with her prospective employment relationship with the BIA.

This court has never addressed the effect of the CSRA on challenges to federal personnel actions brought under state law.In Bush and Chilicky, the refusal to create Bivens remedies in certain contexts was premised on the discretionary exercise of judicial restraint.This court, obviously, does not have discretion to deny application of the state common law asserted by plaintiff.In arguing that the CSRA nevertheless prevents plaintiff from asserting her tort claims, defendants have relied principally on Berrios v. Department of Army, 884 F.2d 28, 31(1st Cir.1989), andBroughton v. Courtney, 861 F.2d 639, 644(11th Cir.1988), where the courts held that state law challenges to federal personnel actions within the scope of the CSRA are "preempted" by the CSRA.

We agree with the analysis of Berrios and Broughton.Federal law may supersede state law in several different ways.First, Congress may preempt state law, or, second, the federal scheme may be sufficiently comprehensive to make reasonable the presumption that Congress intended to leave no room for state law or, third, state law may conflict with federal law.California Fed. Sav. & Loan Ass'n v. Guerra479 U.S. 272, 280-81, 107 S.Ct. 683, 689, 93 L.Ed.2d 613(1987)(discussing the preemptive effect of Title VII on state law).It is beyond dispute that the CSRA was intended to provide the exclusive procedure for challenging federal personnel decisions.Thus, adjudication of state law claims within the scope of the CSRA would "create an obstacle to the attainment of Congress's goal of unifying challenges to federal personnel decisions in a single administrative forum."Broughton, 861 F.2d at 641.

On appeal plaintiff argues, as she did in support of her Bivens claim, that the activities upon which she premised her state law tort claims are not prohibited by the CSRA.In our view, plaintiff's allegations that defendants harassed her over minor incidents occurring in the classroom, gave her unfavorable employment evaluations, and interfered with her...