Rivera v. U.S., 90-35218

• Decision Date: 31 January 1991
• Docket Number: No. 90-35218,90-35218
• Citation: 924 F.2d 948
• Parties: Mary RIVERA; Dennis Rivera, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 948

924 F.2d 948

59 USLW 2509

Mary RIVERA; Dennis Rivera, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 90-35218.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1990.

Decided Jan. 31, 1991.

Michael J. Riccelli, Johnson, McLean & Riccelli, Spokane, Wash., for plaintiffs-appellants.

Lori M. Beranek, U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.

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

Before SCHROEDER, FLETCHER and FARRIS, Circuit Judges.

FLETCHER, Circuit Judge:

Mary and Dennis Rivera appeal the dismissal of their claims against the United States, brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b) & 2674 (1988), and the first and fifth amendments to the Constitution. They alleged that Mary Rivera's supervisor at the Air Force base where she was employed retaliated against her for notifying a superior about the supervisor's late arrivals at work and occasional complete absences. The district court granted the government's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(1) & (6). We affirm.

FACTS

According to the plaintiffs' complaint, Mary Rivera was a civilian employee of the United States Air Force at Fairchild Air Force Base, in Spokane County, Washington, where she began working in the library in 1980. In December 1986, Ms. Sherry Hokanson became Rivera's supervisor. Rivera soon noticed that Hokanson frequently arrived late for work and occasionally failed to show up at all, providing no notice, guidance, or instruction to Rivera and the other library employees. In February 1987, Rivera informed Captain Schneider, the official responsible for investigating personnel matters at Fairchild, of Hokanson's conduct. Schneider assured Rivera that she would be protected against any reprisals for her disclosures. Nevertheless, soon after Rivera's complaint to Schneider, Hokanson began to harass Rivera with verbal abuse and adverse personnel actions. These reprisals for Rivera's "whistleblowing" continued until April 19, 1988, when the distress from the reprisals, inducing emotional and physical harms including a miscarriage, caused Rivera to quit her job.

On February 23, 1989, the Riveras filed an administrative claim with the United States government, a prerequisite to suit under the FTCA. See 28 U.S.C. Sec. 2675(a) (1988). They did not seek redress through The government denied the Riveras' administrative FTCA claim, and on November 15, 1989, the Riveras filed a complaint against the United States in federal district court. The complaint contained several claims brought under the FTCA, including ones for wrongful termination, constructive discharge, harm to professional reputation, physiological and psychological harm, physical harm, and emotional distress. The Riveras also alleged that they and their marital community suffered and continue to suffer economic losses, psychological and physiological harm, disruption of their marital relationship, and loss of consortium. ² Finally, the complaint included a claim that Mrs. Rivera was deprived of her rights under the first and fifth amendments to the Constitution. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

the administrative scheme established for the protection of whistleblowers by 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.). The CSRA makes it a "prohibited personnel practice" to retaliate against a federal employee who has disclosed information about other federal employees' violations of laws or regulations, mismanagement, waste, abuse of authority, or public health or safety dangers. 5 U.S.C. Sec. 2302(b)(8) (1988). Under the scheme in effect at the time Rivera allegedly was suffering Hokanson's harassments, ¹ Rivera could have presented her grievance to the Office of Special Counsel ("OSC"), which was established to receive and investigate allegations of prohibited personnel practices. 5 U.S.C. Sec. 1206 (1988). When the OSC's investigation reveals "reasonable grounds to believe that a prohibited personnel practice has occurred," the OSC must report it to the agency involved and to the Merit Systems Protection Board ("MSPB"). 5 U.S.C. Sec. 1206(c) (1988). The OSC then can recommend, and the MSPB can take, corrective action, including a stay of the adverse personnel action constituting the retaliatory conduct. 5 U.S.C. Sec. 1208 (1988).

On January 11, 1990, the United States moved to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, arguing that the CSRA provides the exclusive redress for adverse federal employment actions and thus precludes claims brought under the FTCA and the Constitution. The Riveras countered that the Whistleblower Protection Act of 1989, Pub.L. No. 101-12, 103 Stat. 16, has made the CSRA's administrative remedies non-exclusive. The United States disputed this interpretation of the Whistleblower Protection Act, pointed out that in any event it became effective only after the conduct at issue, and argued that it does not apply retroactively. On February 13, the district court granted the government's motion, finding that the Riveras had conceded the exclusivity of the CSRA remedies prior to 1989 and that the Whistleblower Protection Act does not apply retroactively. The Riveras filed a timely notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. Sec. 1291 (1988).

DISCUSSION

We review de novo dismissals for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. 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). The central question raised in this appeal is how the Whistleblower Protection Act of 1989 affects the availability of remedies outside the CSRA for harms suffered in the context of federal employment. Before addressing this question, however, we first consider the availability of such alternative

remedies prior to the enactment of the Whistleblower Protection Act. ³

A. The Exclusivity of Remedies under the CSRA

The Riveras' complaint asserts claims pursuant to both the Constitution, see Bivens, and the FTCA. It is clear that the district court acted properly in dismissing the former claims. The courts lack subject matter jurisdiction to hear constitutional damage claims against the United States, because the United States has not waived sovereign immunity with respect to such claims. See, e.g., Clemente v. United States, 766 F.2d 1358, 1363 (9th Cir.1985), cert. denied, 474 U.S. 1101, 106 S.Ct. 881, 88 L.Ed.2d 917 (1986). In fact, the Bivens claims would fail even if the Riveras had named Hokanson or other individual defendants in their complaint. We have held that where, as in the CSRA, "Congress has designed a program that provides what it considers adequate remedial mechanisms for constitutional violations, Bivens actions should not be implied." Kotarski v. Cooper, 866 F.2d 311, 312 (9th Cir.1989).

It is less clear whether, at the time Mary Rivera suffered the reprisals of Hokanson, such conduct was actionable under the FTCA. The United States asserts that the administrative procedures of the CSRA preclude the alternative remedy of suing under the FTCA. While the Supreme Court has not directly considered the relationship between the CSRA and the FTCA, in two cases the Court has expounded on the comprehensive nature of the remedial scheme embodied in the CSRA and held that the scheme precludes other types of remedies. In Bush v. Lucas, 462 U.S. 367, 388, 103 S.Ct. 2404, 2417, 76 L.Ed.2d 648 (1983), the Court held that the CSRA precluded a first amendment Bivens claim, describing the CSRA as "an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations." More recently, in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), the Court held that the CSRA precluded a government employee's suit for backpay brought in the United States Claims Court pursuant to the Tucker Act, 28 U.S.C. Sec. 1491 (1988). The Court emphasized that the CSRA represents "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." 484 U.S. at 445, 108 S.Ct. at 672. In Bush and Fausto, the Court essentially has sought to preserve this balance by refusing to recognize alternative remedies for government employees whose grievances fall within the scope of the CSRA.

Our circuit has echoed these conclusions about the comprehensive nature of the CSRA scheme. In Kotarski, 866 F.2d at 312, we found that the CSRA precluded the alternative remedy of a first amendment Bivens claim. In Lehman v. Morrissey, 779 F.2d 526 (9th Cir.1985), we held that the CSRA preempted a Forest Service employee's common law tort claims, precluded federal court review of her claims, and represented her "sole recourse". We noted that "in enacting the C.S.R.A. Congress meant to limit the remedies of federal employees bringing claims closely intertwined with their conditions of employment to those remedies provided in the statute." Id. at 527-28. Because it is unclear whether the FTCA claim against the United States in Lehman was at issue on appeal, Lehman cannot strictly control our decision here. Nevertheless, the clear thrust of Bush, Fausto, Kotarski, and Lehman is that Congress's purpose in enacting the CSRA was to channel grievances and disputes arising out of government employment into a single system of...