Roth v. States

• Court: Court of Appeals for the First Circuit
• Decided: October 19, 1992
• Docket: 91-1694
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                      __________

          No. 91-1694

                                    NORMA F. ROTH,
                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,
                                 Defendant, Appellee.

                                      __________

                                     ERRATA SHEET
                                     ERRATA SHEET

               The opinion  of the  Court issued on  December 30,  1991, is
          amended as follows:

               On page 6, line 5,  "actions[s]" should be corrected to read
          "action[s]."

_________________________

No. 91-1694
                                    NORMA F. ROTH,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.
                                                       
                              _________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

_________________________

                                        Before

                                Selya, Circuit Judge,
                                       _____________

                            Coffin, Senior Circuit Judge,
                                    ____________________

                               and Cyr, Circuit Judge.
                                        _____________
                                                       
                              _________________________

Norman  Jackman, with whom  Martha M. Wishart  and Jackman &
               _______________             _________________      _________
          Roth were on brief, for appellant.
          ____
               Roberta  T. Brown,  Assistant United  States Attorney,  with
               _________________
          whom  Judith S.  Yogman, Acting  United States  Attorney, was  on
                _________________
          brief, for appellee.

_________________________

_________________________

SELYA, Circuit  Judge.  Concluding that the plaintiff's
                    SELYA, Circuit  Judge.
                           ______________

          complaint  failed to  state a  claim upon  which relief  could be

          granted, Fed.  R. Civ.  P. 12(b)(6),  the United States  District

          Court  for  the  District of  Massachusetts  dismissed  an action

          brought  by the  plaintiff,  Norma F.  Roth,  against the  United

          States.1  Roth appeals from the order of dismissal.  We affirm.

                                          I.
                                          I.

                    We  eschew an exegetic  statement of the  facts, opting

          instead to discuss the averments  of the complaint, to the extent

          required, in  connection with  the body  of the  appeal.   We do,

          however, pause  to  reflect  on  the standard  that  governs  our

          oversight.

                    It is settled  that "[a]ppellate review of  a dismissal

          under Fed. R.  Civ. P. 12(b)(6)  is plenary."   Miranda v.  Ponce
                                                          _______     _____

          Federal Bank,  ___ F.2d  ___, ___ (1st  Cir. 1991)  [No. 90-2214,
          ____________

          slip op.  at 3].  We, like  the district court, are  bound by the

          principle that a civil complaint seeking money damages should not

          be jettisoned for failure to  state an actionable claim unless it
                              
          ____________________

               1Roth's action  was originally brought against  a government
          official, Anne Harlan.  On  motion, the United States was substi-
          tuted as  party  defendant pursuant  to  28 U.S.C.     2679(d)(1)
          (1988).    The plaintiff  has  not  appealed  from the  order  of
          substitution.  In any event, the matters complained of   Harlan's
          statements  and actions,  described  infra     were  sufficiently
                                               _____
          workplace-related  that, even without  the order of substitution,
          dismissal  would have been appropriate on preemption grounds, for
          essentially the reasons stated infra.   See, e.g., Bush v. Lucas,
                                         _____    ___  ____  ____    _____
          462 U.S. 367,  388-90 (1983) (holding constitutional  tort action
          against supervisor to be preempted under Civil Service Reform Act
          of 1978); Berrios v. Department of the Army, 884 F.2d 28, 32 (1st
                    _______    ______________________
          Cir.   1989)   (holding  state-law   defamation   claims  against
          supervisors to be likewise preempted); Broughton v. Courtney, 861
                                                 _________    ________
          F.2d 639, 644 (11th Cir. 1988) (similar).

                                          3

plainly  appears that  the plaintiff  can prove  no set  of facts

          thereunder which would entitle her to  recover.  Id. at ___ [slip
                                                           ___

          op. at 3-4], citing Conley v. Gibson, 355 U.S. 41,  45-46 (1957).
                              ______    ______

          In performing the requisite tamisage and assessing sufficiency, a

          court  must  accept  as true  the  complaint's  well-pled factual

          averments,  excluding,  however, "bald  assertions,  periphrastic

          circumlocutions,   unsubstantiated   conclusions,   or   outright

          vituperation."   Correa-Martinez v. Arrillaga-Belendez,  903 F.2d
                           _______________    __________________

          49, 52 (1st  Cir. 1990).  At  the same time, the  court must draw

          all inferences reasonably  extractable from the pleaded  facts in

          the manner  most congenial to  the plaintiff's theory.   Miranda,
                                                                   _______

          ___ F.2d  at ___ [slip op.  at 2]; Dartmouth  Review v. Dartmouth
                                             _________________    _________

          College, 889 F.2d 13, 16 (1st Cir. 1989).  In the  last analysis,
          _______

          a plaintiff  is obliged  to set forth  in her  complaint "factual

          allegations,  either  direct  or   inferential,  respecting  each

          material  element  necessary  to   sustain  recovery  under  some

          actionable legal  theory."  Gooley  v. Mobil Oil Corp.,  851 F.2d
                                      ______     _______________

          513, 515 (1st  Cir. 1988).   If she has  succeeded in this  task,

          dismissal will not lie under Rule 12(b)(6).

                                         II.
                                         II.

                    The  plaintiff's complaint  was brought in  two counts,

          both growing  out of the  same nucleus of  operative facts.   One

          count sought  money damages.   The other count  sought injunctive

          relief.  We hold that, to the extent the suit is still live,  see
                                                                        ___

          infra note 2, it is preempted by the Civil Service Reform  Act of
          _____

          1978, Pub. L.  No. 95-454, 92 Stat. 1111  (1978) (CSRA), codified

4

in various sections of 5 U.S.C. 

                                          A.
                                          A.
                                          __

                    At all  times material  hereto, Roth  served as  Branch

          Manager,  Labor  Relations,  in  the  Burlington,  Massachusetts,

          office  of  the  Federal  Aviation  Administration  (FAA).    The

          situation of  which she complains  arose out of actions  taken by

          her  supervisor,  Anne   Harlan,  the  FAA's   Division  Manager.

          According to Roth,  Harlan bore a grudge against  her dating back

          to 1977   a  grudge stemming from an incident  that occurred when

          both  women were  working in  the private  sector.   Roth averred

          that,  once  fate  reunited  the  two women,  this  time  as  FAA

          officials,  Harlan became  a constant  thorn  in her  side.   The

          relationship  hit rock bottom  in the 1989-1990  time frame, when

          the  FAA considered discharging an employee named Richard Fontes.

          Roth was involved  in the termination  proceedings.  She  alleged

          that,  thanks  to  Harlan,  the  proceedings  took  on  a  highly

          irregular   cast;  that   Fontes'   constitutional  rights   were

          imperilled; that Harlan attempted to enlist Roth's cooperation in

          a  wholly improper  course  of conduct;  that  Roth's refusal  to

          knuckle  under enraged  Harlan;  and  that  Harlan  proceeded  to

          complain  loudly,   openly,  and   unfairly   about  Roth's   job

          performance.   In Roth's  view, these  slurs caused  her grievous

          harm.  Believing Harlan's utterances and associated conduct to be

          actionable, Roth sued for damages.2
                              
          ____________________

               2Roth  also  asked   that  the  district  court   issue  "an
          injunction  prohibiting [Harlan] from taking any action to coerce
          [Roth] into violating the Constitution and/or laws  of the United

                                          5

B.
                                          B.
                                          __

                    The CSRA was meant to provide a comprehensive framework

          for personnel policies  governing federal employees.  See Saul v.
                                                                ___ ____

          United States, 928  F.2d 829, 833 (9th Cir. 1991), citing S. Rep.
          _____________

          No.  969, 95th  Cong.,  2d  Sess. 3,  53  (1978); Montplaisir  v.
                                                            ___________

          Leighton, 875 F.2d 1, 3  (1st Cir. 1989).  In the course  of that
          ________

          endeavor, Congress set out procedures for challenging "prohibited

          personnel practices."  5 U.S.C.   2302.  The prohibited personnel

          practices  covered by the  CSRA include "personnel  actions" that

          transgress  the  law's  merit system  principles     merit system

          principles  which  require  the federal  sovereign  to  treat its

          employees  fairly  and  shield  them  from   capricious  actions,

____________________

          States and/or  the rules of the FAA,  and to remove [Harlan] from
          her  position as  Division Manager  to prevent  her from  further
          violations of the constitutional rights of employees of the FAA."
          After filing suit, however, Roth resigned from the FAA, effective
          June 7,  1991.   Her quest for  injunctive relief  is, therefore,
          moot;  from June  7  forward, she  had  no further  stake in  the
          agency's operation and "lack[ed] a legally cognizable interest in
          the outcome."  Powell v. McCormack, 395 U.S. 486, 496 (1969); see
                         ______    _________                            ___
          also Steffel  v. Thompson,  415 U.S. 452,  459 n.10  (1974) ("The
          ____ _______     ________
          rule  in federal  cases is  that  an actual  controversy must  be
          extant at  all  stages of  review,  not merely  at the  time  the
          complaint  is filed.").   Since Roth  is no  longer in  the FAA's
          employ,  any  attempts to  pressure  her  to  act in  illegal  or
          unconstitutional  ways   would  be   pointless.     Thus,  Roth's
          resignation quelled any  "reasonable expectation .  . . that  the
          alleged violation will  recur."  County of Los  Angeles v. Davis,
                                           ______________________    _____
          440  U.S. 625, 631 (1979).   Moreover, while Roth can continue to
          pursue  her claim  for damages caused  by Harlan's  past conduct,
          accepted principles of standing  foreclose her, now that she  has
          become a private citizen, from  maintaining a suit to oust Harlan
          or curb Harlan's excesses in order to protect others or vindicate
          the public weal.  See, e.g.,  Warth v. Seldin, 422 U.S. 490,  499
                            ___  ____   _____    ______
          (1975)  ("[T]he plaintiff  generally must  assert  his own  legal
          rights  and interests, and cannot rest his claim to relief on the
          legal   rights  or  interests  of  third  parties.");  Gordon  v.
                                                                 ______
          Crouchley, 554 F. Supp. 796, 798 (D.R.I. 1982) (similar).
          _________

                                          6

personal vendettas, favoritism, and the like.  See Saul, 928 F.2d
                                                         ___ ____

          at 833.  The thrust of Roth's allegations is that the combination

          of  Harlan's aspersions and  conduct demeaned Roth  and subjected

          her to arbitrary action.  Thus, the threshold question is whether

          Harlan's  antics, as  Roth  portrayed them,  would  qualify as  a

          prohibited  personnel practice  within  the contemplation  of the

          CSRA.3

                    Under the  CSRA, personnel actions  include "corrective

          actions[s]."   5  U.S.C.    2302(a)(2)(A)(iii).   The  corrective

          action category is  a capacious one, encompassing  a wide variety

          of conduct  affecting federal employees.   See Saul, 928  F.2d at
                                                     ___ ____

          834.     The  slanderous  utterances  that  Roth  bemoans,  while

          allegedly  untrue, nevertheless  concerned  her job  performance.

          Those comments reflected  a profound disagreement  between Harlan

          and   Roth  about  the   manner  in  which   Fontes'  termination

          proceedings    and, perhaps, termination proceedings  generally  

          should  appropriately  be  conducted.     Harlan's  behavior,  as

          described  in  the complaint,  to  the extent  that  Roth retains

          standing  to pursue  it, see  supra  note 2,  was similarly  job-
                                   ___  _____

          related.  In sum, an objective assessment of the complaint leaves

          no  doubt that  Roth was  attempting to  sue over  utterances and

          associated  acts which  reflected dissatisfaction  with  her work

          within the FAA and which focused upon substantial conflicts anent

          agency policy and  procedures.  For  CSRA purposes, then,  Roth's

____________________

               3Roth has  not questioned the  applicability of the  CSRA to
          federal employees of her rank and type. 

                                          7

complaint, no matter  how generously it might be  read, alleged a

          prohibited  personnel  practice,  that  is,  a  personnel  action

          violative of the merit principles.  Accord Saul, 928 F.2d at 834.
                                              ______ ____

This  conclusion  sounds  the  death  knell for  Roth's

          statement of claim.   It is now beyond  serious question that the

          CSRA  preempts  state-law   challenges  to  prohibited  personnel

          practices in the federal workplace.  See Berrios v. Department of
                                               ___ _______    _____________

          the  Army, 884 F.2d 28,  32 (1st Cir.  1989) (holding that, where
          _________

          the  CSRA pertains,  defamation claims  touching upon  prohibited

          personnel  practices are preempted);  Montplaisir, 875 F.2d  at 8
                                                ___________

          (holding former government employees' private tort action against

          union lawyers to be preempted by "the comprehensive nature of the

          [CSRA's]  remedial scheme"); Broughton v. Courtney, 861 F.2d 639,
                                       _________    ________

          643 (11th Cir. 1988) ("If plaintiff's state  law claims . . . are

          within the scope  of the coverage of  the CSRA, then the  actions

          are  preempted  by  the CSRA.").    As we  stated  on  an earlier

          occasion:

                    The   legislative   history   of   the   CSRA
                    establishes  beyond  dispute   that  Congress
                    intended that statute to provide an exclusive
                    procedure for  challenging federal  personnel
                    decisions.  . . .  "The history and intent of
                    the CSRA  plainly prefigures  that collateral
                    district court jurisdiction  would impede the
                    ideals  of  fast,  efficient  management  and
                    greater  uniformity  in the  judicial  review
                    process."

          Berrios, 884  F.2d at 31-32  (quoting Tucker  v. Defense  Mapping
          _______                               ______     ________________

          Agency, 607 F. Supp.  1232, 1240 n.6 (D.R.I. 1985)).   It follows
          ______

          inexorably that Roth's claim is preempted.

                                          8

C.
                                          C.
                                          __

                    To this  point, the  drill is  straightforward.   Roth,

          however, has a  fallback position.   She says that, in  her case,

          administrative  remedies  have  been  almost,  if  not  entirely,

          foreclosed by the  bodies from whom she has  sought succor, viz.,

          the  Merit  Systems Protection  Board and  its Office  of Special

          Counsel (both  citing lack  of jurisdiction).   In addition,  she

          points  out that administrative remedies, even if available, make

          no provision for damage awards to deserving complainants.  

                    The short answer  to these assertions is  that they are

          nihil ad  rem.   As  to Roth's  complaint about  the  lack of  an
          _____ __  ___

          accessible administrative  mechanism,  we agree  with  the  Ninth

          Circuit that, even where the  CSRA provides no guaranteed  forum,

          "preemption of  . .  . work-related tort  claims is  necessary to

          fulfill congressional  intent."   Saul, 928 F.2d  at 843.   As to
                                            ____

          Roth's grievance concerning the  unavailability of damage awards,

          Montplaisir  controls.   There,  in  addressing a  near-identical
          ___________

          remonstrance, we  responded:   "That injured  employees might  be

          left without a  means of recovering money damages  is a necessary

          consequence of the [comprehensive nature of the CSRA].  Congress,

          in  its wisdom,  was  fully  entitled  to  prefer  administrative

          enforcement to civil trials."  Montplaisir, 875 F.2d at 5.  
                                         ___________

                    We  will not  paint  the  lily.   We  suggest that  the

          Supreme Court, in its landmark decision  construing the CSRA, has

          itself provided a  powerful refutation  of Roth's  lack-of-remedy

          argument:

9

The  question is  not what  remedy  the court
                    should  provide  for   a  wrong  that   would
                    otherwise go  unredressed. It  is whether  an
                    elaborate  remedial  system   that  has  been
                    constructed  step   by  step,   with  careful
                    attention      to     conflicting      policy
                    considerations,  should be  augmented by  the
                    creation  of a  new judicial remedy  . .  . .
                    That  question obviously  cannot be  answered
                    simply  by noting  that existing  remedies do
                    not   provide   complete   relief   for   the
                    plaintiff.   The  policy  judgment should  be
                    informed by  a thorough understanding  of the
                    existing   regulatory   structure   and   the
                    respective  costs  and  benefits  that  would
                    result from the addition of another remedy. .
                    . .

          Bush v. Lucas, 462 U.S. 367,  388 (1983).  On the basis of  Bush,
          ____    _____                                               ____

          as  explicated in Berrios, Montplaisir, and  Saul, we find Roth's
                            _______  ___________       ____

          lamentations  about  the  inadequacies  of administrative  relief

          under the CSRA to be an exercise in irrelevancy.

                                         III.
                                         III.

                    Since civil service reform became a legislative reality

          in  1978, the Supreme  Court "has jealously  guarded CSRA against

          inconcinnous judicial incursions."   Montplaisir, 875 F.2d  at 3;
                                               ___________

          accord Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991)
          ______ ______    _____________

          (stating that  "Congress's purpose  in enacting  the CSRA  was to

          channel  grievances  and  disputes  arising  out  of   government

          employment  into a single system of administrative procedures and

          remedies").   We  are  obliged to  do no  less.   Considering the

          CSRA's  breadth and the  comprehensive, integrated nature  of its

          remedial scheme, we believe  the field is rather  fully occupied,

          leaving  little,  if  any,  room  for  state-law  tort  anodynes.

          Indeed, "[p]erforming the  requisite analysis . . .  leads to the

10

inescapable conclusion that Congress  intended to preempt  state-

          law tort actions."  Montplaisir, 875 F.2d at 5.
                              ___________

                    We need go no further.  In general, a federal employee 

          whose position comes within CSRA's reach may seek redress for the

untoward  effects of a prohibited personnel practice only through

          the panoply of  remedies that CSRA itself affords.   Roth's case,

          as  she  has  stated  it,  is  completely  engulfed  within  this

          generality.4

Affirmed.  
          Affirmed.
          ________

____________________

               4In  view of  our disposition  of this  matter, we  need not
          consider  the  government's  alternative  asseveration  that  the
          plaintiff's complaint, insofar  as it seeks an  award of damages,
          is  also  barred  under   the  Federal  Tort  Claims   Act,  more
          specifically, 28 U.S.C.   2680(h) (precluding maintenance against
          the  federal  sovereign of  "[a]ny  claim arising  out  of .  . .
          slander").   By the same token, it would be supererogatory for us
          to decide the  plaintiff's motion to supplement  the record; with
          or without supplementation, the show has closed.

                                          11