F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 26 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
NOTAH BEN TAHY,
Plaintiff-Appellant,
v. No. 98-4167
(D.C. No. 97-CV-55-S)
UNITED STATES OF AMERICA, (D. Utah)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA , McKAY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff-appellant Notah Ben Tahy appeals from the district court’s order
dismissing his complaint brought pursuant to Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971). We affirm.
Tahy’s amended complaint may be summarized as follows. He is a Native
American, a member of the Navajo tribe. Until his termination on June 19, 1995,
he was a special agent of the Federal Bureau of Investigation (FBI), operating out
of its Blanding, Utah office.
In October 1992, Tahy wrote a memorandum to a supervisor in the Salt
Lake City FBI office in which he accused a co-worker, Special Agent Trace L.
Kirk, of consorting with criminals. Tahy alleges that after he sent the memo, Kirk
told him that he had a lot of friends in the Salt Lake City office and elsewhere,
and that they would “get” Tahy for turning Kirk in. Kirk was transferred to the
FBI’s Coeur d’Alene, Idaho office in 1994.
Tahy alleges that the individual defendants, friends of Kirk, joined in a
conspiracy to take action to block Tahy’s advancement in the FBI and ultimately,
to obtain his termination from his position without cause. In furtherance of this
conspiracy, FBI and Department of Justice employees allegedly
fabricated allegations about sexual harassment, domestic abuse and
theft of government funds, lied about the existence of evidence
allegedly supporting those claims[,] provided false sworn statements,
lied about the existence of, and refused to disclose the names of,
alleged witnesse[s] against Tahy, propounded questions designed to
-2-
show a false deceptive result on polygraph tests, and otherwise
deprived Tahy of both procedural and substantive due process of law.
Appellant’s App. at 12. 1
The FBI terminated Tahy’s employment on June 19, 1995. His final
administrative appeal of the termination was denied on September 15, 1995. In
his district court complaint, he asserted the following claims: (1) a Bivens claim
against the individual defendants for violation of his constitutional rights in
connection with the termination and appeal process; (2) a claim for wrongful
termination in violation of public policy against the FBI, Department of Justice
(DOJ) and the United States; (3) a claim for intentional interference with his
employment contract against the individual defendants; (4) a claim for breach of
contract and breach of the implied covenant of good faith and fair dealing against
the FBI, DOJ and the United States; (5) a claim for intentional infliction of
emotional distress against the individual defendants; and (6) a claim for
defamation against the individual defendants.
Tahy consented to dismissal of his contract claims, expressing his intention
to refile them before the United States Court of Claims. The district court found
that the remaining claims all were preempted by the Civil Service Reform Act of
1
Tahy also asserts that his supervisor, or someone in the Salt Lake City
office, failed to forward his application for additional compensation for use of his
Navajo language skills through the FBI’s “Flip-Flap” program.
-3-
1978, Pub. L. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of
5 U.S.C.) (CSRA), and dismissed them. It further denied as futile Tahy’s motion
to amend his complaint to assert a claim under the Federal Tort Claims Act
(FTCA).
We review the district court’s dismissal of Tahy’s complaint de novo. See
Steele v. United States , 19 F.3d 531, 532 (10th Cir. 1994). We agree with the
district court that the CSRA preempts his claims, and that it was proper to deny
his motion to amend his complaint.
1. Bivens claim
The CSRA provides protection to federal employees “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.” Bush v. Lucas , 462 U.S. 367, 385
(1983). Given this broad scheme, the Supreme Court has refused to create a
separate, Bivens remedy for federal employees who assert a violation of
constitutional rights in connection with a personnel decision. See Bush , 462 U.S.
at 388-90. Tahy acknowledges this limitation on Bivens actions, but contends his
claim escapes preclusion for several reasons.
-4-
Tahy first argues that since he is not personally entitled to invoke CSRA
protections, 2
this court should create a Bivens remedy to vindicate his rights. Our
precedent is clear, however: we will not create a Bivens remedy in a federal
employment action, even if the CSRA provides the employee with no remedy at
all. See Lombardi v. SBA , 889 F.2d 959, 961 (10th Cir. 1989). Tahy presents us
with no compelling reason to depart from this rule in his case. 3
Tahy next argues that the CSRA does not preclude the creation of a Bivens
remedy to address his claims against non-supervisory employees. He claims
2
As an FBI agent, Tahy served in the excepted service. See 28 U.S.C.
§ 536. Although most excepted service employees are eligible to invoke the
CSRA’s procedures relating to prohibited personnel practices, the CSRA
expressly exempts FBI excepted service employees from its protections. See 5
U.S.C. § 2302(a)(2)(C)(ii); see also id. § 7511(b)(8). Instead, the CSRA provides
only a limited and specific protection to FBI agents who are subject to
employment-based reprisals for whistleblowing. See 5 U.S.C. § 2303(a).
3
Tahy does argue the venerable principle that there is no legal wrong
without a legal remedy. See Marbury v. Madison , 5 U.S. (1 Cranch) 137 (1803).
The Supreme Court has indicated, however, that the Marbury principle must be
balanced against the countervailing principle that “the federal courts are courts of
limited jurisdiction whose remedial powers do not extend beyond the granting of
relief expressly authorized by Congress.” Bush , 462 U.S. at 373. Noting that
constitutional challenges to agency personnel action are fully cognizable within
the CSRA system, id. at 385, the Bush Court denied a Bivens remedy because
Congress is best situated to determine what remedies are available, see id. at 390.
This is true even though the CSRA may not provide complete relief for a plaintiff
whose rights have been violated. See id. at 388; see also Schweiker v. Chilicky ,
487 U.S. 412, 425-29 (1988) (holding that where Congress has provided what it
considers an adequate remedial mechanism for constitutional violations, the
courts will not create a Bivens remedy).
-5-
co-workers in the FBI and DOJ violated his rights in furtherance of the
conspiracy to “get him.” Their actions allegedly included making false
accusations of sexual harassment against Tahy, depriving him of information
about where to send reimbursement for travel expense checks, suborning perjury
concerning instructions Tahy was given about the checks, designing polygraph
questions about the checks so as to produce a false deceptive result, manipulating
Tahy’s wife into making misleading allegations of domestic violence against him,
misrepresenting Tahy’s wife’s medical records so as to show a history of domestic
violence, and denying him various procedural rights in connection with the appeal
of his termination.
Tahy’s Bivens claim is more narrow than these factual allegations would
suggest, however. His sole complaint is that he was deprived of due process in
connection with his termination and the subsequent internal appeals process. See
Appellant’s App. at 20-21. Since Tahy’s claim against non-supervisory
employees relates exclusively to the effect of their actions on subsequent federal
employment decisions against him, it would be inappropriate to circumvent the
CSRA scheme by creating a Bivens remedy. Cf. Lombardi , 889 F.2d at 961
(declining to create Bivens remedy, even as to violations which occurred after
termination of federal employment, where violations occurred only as a result of
-6-
employment relationship and plaintiff’s position as a federal employee was
central to his complaints).
Tahy next argues that when the FBI created its own appeals process, it
subjected its employees to liability for constitutional violations through a Bivens
action. We disagree. The CSRA’s comprehensive administrative scheme
provides a federal employee’s exclusive avenue for redress of constitutional
violations in the field of federal employment. See Jones v. Tennessee Valley
Auth. , 948 F.2d 258, 264 (6th Cir. 1991). Tahy fails to show that any exception
should be made to this rule simply because the alleged constitutional violations
occur as part of an employer-created appeals process.
Finally, Tahy argues that “to the extent any actions of the individuals are
based on race-based animus, plaintiff may state a Bivens claim against the
individuals for race discrimination.” Appellant’s Br. at 25. This argument fails
for several reasons. First, Tahy’s complaint fails to state a Bivens claim based on
racial discrimination. Second, notwithstanding Tahy’s argument to the contrary,
the CSRA precludes employment-based Bivens claims based on racial
discrimination. See Lee v. Hughes , 145 F.3d 1272, 1274-76 (11th Cir. 1998),
cert. denied , 119 S. Ct. 1026 (1999). 4
Finally, Title VII precludes federal
4
Tahy relies on Davis v. Passman , 442 U.S. 228 (1979), in which the
Supreme Court permitted a Bivens remedy for workplace discrimination in the
(continued...)
-7-
employees from asserting a Bivens claim for employment discrimination. Cf.
Belhomme v. Widnall , 127 F.3d 1214, 1217 (10th Cir. 1997) (holding Title VII
preempts statutory causes of action for violation of constitutional rights based on
employment discrimination), cert. denied , 118 S. Ct. 1569 (1998). 5
We conclude
that the district court properly dismissed Tahy’s Bivens claim.
2. State-law claims
Tahy argues that the CSRA does not preempt his state-law claims against
the individual, non-supervisory defendants. These include his claims for
intentional infliction of emotional distress and for defamation.
Our denial of a Bivens remedy for Tahy’s employment-related claim against
his co-workers rests to some degree on a discretionary exercise of judicial
4
(...continued)
case of a federal employee who was not protected by Title VII. In Lee , the
Eleventh Circuit noted that Davis predates the Supreme Court’s jurisprudence
concerning the effect of the CSRA on Bivens remedies. See Lee , 145 F.3d at
1275-76. We agree with the Eleventh Circuit and do not consider Davis
controlling here.
5
Tahy contends that Johnson v. Railway Express Agency, Inc. , 421 U.S. 454
(1975) permits him to assert a Bivens claim for racial discrimination. In Brown
v. General Services Administration , 425 U.S. 820, 833 (1976), however, the
Supreme Court explained that Johnson was based upon legislative history of the
1964 Civil Rights Act, which expressly permitted resort to other statutory
remedies in addition to Title VII remedies. The 1972 amendments to the Act,
which extended Title VII protections to federal employees, do not contain such
legislative history. See id. Therefore, Title VII “provides the exclusive judicial
remedy for claims of discrimination in federal employment.” Id. at 835.
-8-
restraint. Judicial restraint is not the issue where preemption of state common
law claims is concerned, however. See Petrini v. Howard , 918 F.2d 1482, 1484
(10th Cir. 1990). The CSRA preempts only those state law tort actions which
complain of activities specifically prohibited by the CSRA. See id. at 1485.
The CSRA offers an administrative remedy to federal employees who have
been subjected to “prohibited personnel practices” by “[a]ny employee who has
authority to take, direct others to take, recommend, or approve any personnel
action.” 5 U.S.C. § 2302(a)(1), (b). Given this definition, some courts have
stated that the CSRA does not preempt state law tort claims against co-employees
who do not have the authority to participate in personnel decisions. See, e.g. ,
Nevarez v. United States , 957 F. Supp. 884, 890-91 (W.D. Texas 1997).
Tahy’s state law claims are preempted, however, because they include
supervisory defendants and target supervisory decisions. Tahy’s claims are
premised upon the existence of a broad-ranging conspiracy whose purpose was to
cause him to lose his employment. He includes within the conspiracy Edward
Leary, who recommended his termination. He also includes Thomas J. Coyle,
who denied Tahy’s appeal from the termination decision. He charges that both
Leary and Coyle were active and knowing participants in the conspiracy.
The CSRA permits an employee whose employment has been terminated to
seek an appeal with the Merit Systems Protection Board. See 5 U.S.C. § 7513(d).
-9-
The Board will reverse the decision if the employee can show harmful error in the
agency’s application of its procedures, that the decision was based on a prohibited
personnel practice, or that the decision was not in accordance with law. See id. §
7701(c)(2). 6
Here, Tahy named defendants who had supervisory authority and
complained of prohibited personnel practices taken by those defendants which
violated the CSRA. See id. §§ 2301(b)(8) (“[e]mployees should be– (A)
protected against arbitrary action”); 2302(b)(12) (Supp. 1999) (forbidding
supervisor to “take or fail to take any other personnel action if the taking of or
failure to take such action violates any law, rule or regulation implementing, or
directly concerning, the merit system principles contained in section 2301 of this
title”).
Although invoking his rights under the CSRA in this fashion does not
provide the employee with an action for damages against individual malefactors
responsible for trumping up evidence or otherwise subverting the decisional
process, the claim is nevertheless within the scope of the CSRA, which provides
the employee’s sole remedy. See, e.g. , Saul v. United States , 928 F.2d 829, 841
(9th Cir. 1991) (holding Congress left no room for state tort remedies to operate
6
Of course, as previously noted, Tahy cannot invoke CSRA’s protections
because of his status as an excepted service FBI agent. This exclusion reflects a
Congressional policy choice. Complaints which are theoretically reviewable
under CSRA cannot be said to fall outside the subject matter of CSRA’s
comprehensive scheme.
-10-
when it enacted the CSRA). We conclude that Tahy’s state tort claims are within
the scope of the CSRA and that the CSRA preempts them.
3. Motion for leave to amend
Tahy also appeals from the district court’s order denying him leave to
amend his complaint to state a claim under the Federal Tort Claims Act (FTCA).
We review the district court’s denial of a motion for leave to amend for abuse of
discretion. See Jefferson County Sch. Dist. No. R-1 v. Moody’s Investor’s Servs.,
Inc. , 175 F.3d 848, 859 (10th Cir. 1999). Although Fed. R. Civ. P. 15(a) requires
that leave to amend be given freely, that requirement does not apply where an
amendment obviously would be futile. See Moody’s Investor’s Servs., Inc. , 175
F.3d at 859. The district court correctly determined that the CSRA would
preclude Tahy’s proposed FTCA claims. It did not abuse its discretion in denying
Tahy’s motion to amend.
The judgment of the United States District Court for the District of Utah is
AFFIRMED.
Entered for the Court
Deanell R. Tacha
Circuit Judge
-11-