Bennett v. Barnett

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-60166

MELANIE BENNETT; LYNN HARRELL,

Plaintiffs-Appellants-Cross-Appellees,

VERSUS

RICHARD BARNETT; KEVIN FORD; GUY ROBINSON; BARBARA A. HARRIS,
Executrix of the Estate of Jack L. Harris,

Defendants-Appellees,

UNITED STATES OF AMERICA,

Defendant-Appellee-Cross-Appellant.

Appeals from the United States District Court
for the Southern District of Mississippi
April 12, 2000

Before HIGGINBOTHAM and PARKER, Circuit Judges; and WARD, District
Judge.1

ROBERT M. PARKER, Circuit Judge:

This case arises out of an internal investigation by the

United States Postal Service of an altercation between two postal

workers. Plaintiff-Appellants sought damages for constitutional

violations against individual federal employees pursuant to

1
District Judge of the Eastern District of Texas, sitting
by designation.

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Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and

against the United States under the Federal Tort Claims Act

(“FTCA”). The district court dismissed the Bivens claims as pre-

empted by the plaintiffs' collective bargaining agreements and

held a trial on the FTCA claims of plaintiff Melanie Bennett

while dismissing all other FTCA claims. Bennett was awarded

$2,500 on one of her FTCA claims. The plaintiffs appeal and the

United States cross-appeals.

FACTUAL HISTORY AND PROCEEDINGS BELOW

Plaintiff Lynn Harrell and another postal employee got into

an argument wherein the latter told Harrell that they could

settle the situation “any place and anytime.” Richard Barnett, a

customer services supervisor, heard about the altercation and put

both employees on administrative leave. Postal inspector Kevin

Ford began investigating the situation and arranged an initial

interview with Harrell. The events that occurred during this

interview led to the filing of this lawsuit.

Harrell's union steward, Melanie Bennett, was permitted to

attend the interview. The questioning turned toward whether

Harrell owned a gun. Harrell admitted that he owned a gun and

that he had, in fact, brought it to work with him the day of the

interview. Ford summoned another inspector to assist in the

interview and then sought to obtain Harrell's consent to a search

for the gun in his car. At this point, Bennett interrupted and

attempted to persuade Harrell to leave the room. The

interviewers (now including Bennett's supervisor, Jack Harris)

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asked Bennett to be quiet and even to leave the room. Bennett

refused both requests. Harrell admits that he was not

mistreated. After repeatedly refusing to leave the interview,

Bennet was forcibly removed from the room by another postal

inspector, Guy Robinson.2

Harrell eventually signed the consent form and the gun was

subsequently taken from his car. After a full investigation,

Harrell was reinstated to his previous position and his gun was

returned to him. Bennett was suspended for her actions during

the interview. Bennett claims that she was suspended on pre-

textual grounds, needlessly investigated for “bogus charges” and

subsequently harassed in other ways.

This action was filed on October 11, 1997. Bennett claims

that her First Amendment rights were violated. Harrell claims

that his Fourth, Fifth and Sixth Amendment rights were violated.

On July 27, 1998, both Bennett and Harrell added the United

States as a defendant and asserted claims under the FTCA,

including intentional infliction of emotional distress, assault,

battery and false imprisonment.

STANDARD OF REVIEW

The district court's determination that the remedies

provided by the plaintiffs' collective bargaining agreements pre-

empt their Bivens claims is a question of law. The district

2
Bennett filed criminal charges against Robinson for
physically removing her from the building. The municipal court
in Hattiesburg, Mississippi directed a verdict of not guilty at
the close of the city's case.

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court's determination whether plaintiffs' claims presented a

“substantial question” of coverage under the FECA is also a

question of law. “This court reviews de novo a district court's

conclusions on questions of law.” Hart v. Bayer Corp., 199 F.3d

239, 243 (5th Cir. 2000).

DISCUSSION

I. Constitutional (Bivens) Claims.

The district court’s analysis of the plaintiffs’ Bivens

claims centers on the question of whether such claims are viable

in the government-employee and government-employer relationship.

In Bush v. Lucas, 647 F.2d 573 (5th Cir. Unit B 1981), aff’d, 462

U.S. 367 (1983), this circuit held that Bivens did not apply in

the context of the federal employee-employer relationship. The

“relationship” was a “special factor” that counseled hesitation

against the judicial creation of a damage remedy for the

deprivation of a federal employee’s constitutional rights. See

Bush, 647 F.2d at 389. After assuming that the petitioner’s

constitutional claims had merit and that the civil service

remedies were less compensatory than an individual damage

remedy,3 the Supreme Court affirmed this circuit’s opinion and

noted the following:

[W]e do not decide whether or not it would be good
policy to permit a federal employee to recover damages

3
“We assume for purposes of decision that petitioner’s
First Amendment rights were violated by the adverse personnel
action. We also assume that, as petitioner asserts, civil
service remedies were not as effective as an individual damages
remedy and did not fully compensate him for the harm he
suffered.” Bush, 462 U.S. at 367.

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 from a supervisor who has improperly disciplined him
for exercising his First Amendment rights. As we did
in Standard Oil, we decline “to create a new
substantive legal liability without legislative aid and
as at the common law,” because we are convinced that
Congress is in a better position to decide whether or
not the public interest would be better served by
creating it.

Bush, 462 U.S. at 390 (citation omitted). In other words, the

Bush Court left it up to Congress to provide the appropriate

remedy.

Chapters 10 and 12 of the Postal Reorganization Act (“PRA”)

set out a comprehensive scheme governing employment relations

within the Postal Service. See 39 U.S.C. §§ 1001-11, 1201-09

(1994). Although the Civil Service Reform Act (“CSRA”) generally

excluded postal employees from its coverage, see 5 U.S.C. §

2105(e) (1994), the PRA provided for CSRA coverage for some

postal employees, called “preference eligible” postal employees,

who are entitled to avail themselves of the CSRA's procedures for

administrative and judicial review of adverse personnel actions.

See 39 U.S.C. § 1005(a)(4) (1994).4 For other postal employees,

such as the plaintiffs, the Postal Service shall establish

procedures guaranteeing them “an opportunity for a fair hearing

on adverse actions, with representatives of their own choosing.”

4
See Kroll v. United States, 58 F.3d 1087, 1091 (6th Cir.
1995) (“Indeed, we find that the extent to which the PRA removed
the USPS and its employees from the general provisions related to
government organizations and employees as expressed in Title 5
clearly illustrates the intent to make the PRA as codified in
Title 39, a comprehensive scheme governing the USPS and its
employees.”).

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39 U.S.C. § 1001(b) (1994).5

Under the PRA, postal employees have collective bargaining

rights. The PRA also provides that employee-management relations

are generally subject to the provisions of the Labor Relations

Management Act (LRMA) and the National Labor Relations Act

(“NLRA”). See 39 U.S.C. § 1209(a)-(b) (1994). The collective

bargaining agreements may include “any procedures for resolution

by the parties of grievances and adverse actions arising under

the agreement, including procedures culminating in binding third-

party arbitration.” 39 U.S.C. § 1206(b) (1994). The collective

bargaining agreement in effect during the actions described

herein contained such provisions.

In Pipkin v. United States Postal Serv., 951 F.2d 272 (10th

Cir. 1991), the court dismissed a postal employee’s Bivens

claims, citing its deference to Congress’s judgment in creating

the collective bargaining agreement system for postal employment

disputes.

Congress explicitly authorized the USPS to adopt
comprehensive binding arbitration provisions in its
collective bargaining agreements between the USPS and
its employees. The applicable collective bargaining
agreement provided grievance procedures, including
arbitration, to address plaintiffs’ disputes arising
from the employment relationship. Because Congress has
provided a comprehensive procedure to address postal
employees’ constitutional claims arising from their

5
A number of courts have recognized that Postal Service
grievance procedures are constitutionally sufficient, and
preclude constitutional causes of action against postal
officials. See, e.g., Bradley v. United States Postal Serv., 832
F.2d 1061, 1062 (8th Cir. 1987); McCollum v. Bolger, 794 F.2d
602, 607 (11th Cir. 1986); Ellis v. United States Postal Serv.,
784 F.2d 835, 840 (7th Cir. 1986).

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 employment relationship with the USPS, those
arbitration procedures preclude plaintiffs' Bivens
claims.

Pipkin, 951 F.2d at 275 (citation omitted). See also Eure v.

United States Postal Serv., 711 F. Supp. 1365, 1371 (S.D. Miss.

1989) (“[B]ecause plaintiffs in their positions as federal

employees of the Postal Service had access to the Congressionally

approved grievance procedure of the collective bargaining

agreement, then it follows that plaintiffs may not maintain their

federal constitutional claims against the certain named

individual Postal Service officials.”).

Plaintiffs argue that the procedures contained in their CBA

do not constitute “alternative procedures” which provide

meaningful remedies against the Postal Service or the United

States. The district court rejected this argument. In Pipkin

the court also rejected this argument and emphasized the

comprehensive nature of the statutory scheme to address the

claims of postal employees.

When Congress has acted to create a comprehensive
statutory scheme to address a particular class of
claims, the courts will not act to create additional
judicial remedies, even where a particular litigant
does not have a remedy available under the statutory
scheme. This is particularly true in federal
employment relationships, where Congress has provided a
comprehensive civil service scheme to address disputes.

951 F.2d at 275 (citations omitted) (emphasis added). See also

Schweiker v. Chilicky, 487 U.S. 412, 423 (1988) (“When 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

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have not created additional Bivens remedies.”); Pereira v. United

States Postal Serv., 964 F.2d 873, 875 (9th Cir. 1992)

(“Pereira’s [constitutional] claim lacks merit because the

collective bargaining agreement itself, and the concomitant ban

on judicial review . . . are themselves generated by statute;

they are part of Congress’[s] overall remedial scheme.”).

We agree with the district court and hold that the PRA (via

the plaintiffs' collective bargaining agreements) pre-empts

Bivens claims like those asserted in this case. The district

court's decision on this issue is affirmed.

II. FTCA Claims.

A. FECA Coverage.

The district court next turned to the provisions of the

Federal Employees' Compensation Act (FECA) to analyze plaintiffs'

FTCA claims. The FECA provides compensation for personal

injuries that federal employees “sustain[] while in the

performance of his duty.” 5 U.S.C. § 8102(a) (1994).

The FECA functions as a federal workers' compensation act

and provides a substitute for, not supplement to, recovery. “In

enacting [FECA], Congress adopted the principal compromise--the

'quid pro quo'--commonly associated with workers' compensation

legislation: employees are guaranteed the right to receive

immediate, fixed benefits, regardless of fault and without need

for litigation, but in return they lose the right to sue the

Government.” Lockheed Aircraft Corp. v. United States, 460 U.S.

190, 194 (1983). The district court held that this remedy is

-8-
exclusive of any other remedy including the FTCA. See also

Avasthi v. United States, 608 F.2d 1059, 1060 (5th Cir. 1979).

The district court considered the issue of whether a substantial

question existed as to “whether plaintiffs’ claims of emotional

distress are within the coverage of the FECA.”

Federal courts are divided on this question. The Fifth

Circuit has yet to answer it, but we have held that where a

“substantial question” exists as to FECA coverage, a tort action

is barred unless the Secretary of Labor determines that the FECA

does not apply. See Avasthi, 608 F.2d at 1060. The district

court found that a “substantial question” existed as to FECA

coverage and held that the plaintiffs could not maintain their

FTCA actions unless and until the Secretary of Labor determined

that their claims were not covered by the FECA.

Because Harrell did not submit his FTCA claims to the

Secretary of Labor and since a “substantial question” existed

with regard to coverage of his claims under the FECA, they were

pre-empted. The court dismissed Harrell's FTCA claims without

prejudice. We affirm this ruling.

The district court held that Bennett could pursue her FTCA

claims because she submitted them to the Secretary of Labor. The

United States cross-appeals this ruling which allowed Bennett's

claims to go to trial.6 It argues that the district court should

6
The district court held a bench trial on Bennett's two
claims for emotional distress. The court found for the United
States on the first claim and for Bennett on the second claim.
Bennett appeals the district court's ruling on her first claim.
See discussion infra.

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have held that all of the FTCA claims were precluded by the FECA.

Bennett's second FTCA claim was for emotional distress based

on alleged on-the-job harassment. As noted above, employees may

not bring FTCA claims that arise out of federal employment

relationships until they submit the claim to the Secretary of

Labor for a determination of FECA coverage. While Bennett

submitted her claim, it was not denied because of lack of

coverage under the FECA, but for lack of proof. By ruling on the

sufficiency of the evidence, the Secretary thought coverage

existed.7 Thus, the district court did not have jurisdiction to

try the claim. See White v. United States, 143 F.3d 232, 234

(5th Cir. 1998) (“FECA vests with the Secretary of Labor the

power to 'administer, and decide all questions arising under

FECA,' 5 U.S.C. § 8145, and the Secretary's action in allowing or

denying an award under FECA is final and conclusive and not

subject to review by a court of law, 5 U.S.C. § 8128(b).”). The

award of damages to Bennett is reversed.8

7
Plaintiffs disagree with this assertion in that even if
the claims did occur during the performance of their work duties,
there is not a “substantial question” that they are covered by
the FECA. Plaintiffs argue that their claims are “dignity torts”
that did not result in physical injury. They argue that FECA
covers “injury by accident,” see 5 U.S.C. § 8101(5) (1994), and
that the FECA anticipates that employees will suffer a disability
causing the employee to perform restricted duty. If no medical
or disability benefits, then there is not disability claim. We
reject this argument. Had the Secretary of Labor agreed with
this, the Secretary would have dismissed the claim for lack of
coverage; however, the dismissal was based on lack of proof.
8
Because we find that a “substantial question” exists as
to FECA coverage of plaintiffs' tort claims, it is unnecessary
for us to examine the district court's determination that these
claims are not pre-empted by the CSRA and the PRA.

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 B. Bennett's First Emotional Distress Claim.

Bennett's first FTCA claim was also for emotional distress

and was based on facts surrounding the interview. The district

court dismissed this claim at the conclusion of the bench trial

because Bennett exceeded her authority as a union steward.

Bennett charges that this ruling was erroneous. We disagree.

The district court's legal determination of the limits of

Bennett's authority as a steward is correct. She advised Harrell

that he had the right to an attorney and that he did not have to

answer any questions. At that point Bennett only had the right

to remain in the interview as long as she did not interfere with

the legitimate employer objective of conducting an orderly

investigatory interview of Harrell's involvement in the

altercation and his possession of a gun on postal property. See

National Labor relations Bd. v. J. Weingarten, Inc., 420 U.S.

251, 258 (1975); Southwestern Bell Telephone Co., 667 F.2d 470,

473-74 (5th Cir. 1982). The district court found Bennett

exceeded her authority as union steward by interfering with the

interview. The district court's factual determination that

Bennett interfered with the interview is not clearly erroneous.

See Gebreyesus v. F.C. Schaffer & Assoc's, Inc., --- F.3d ---,---

, No. 98-30974, 2000 WL 194518, at *2 (5th Cir. Mar. 6, 2000)

(“The standard of review for bench trials is well-established:

'findings of fact are reviewed for clear error; legal issues de

novo.'”) (quoting F.D.I.C. v. McFarland, 33 F.3d 532, 536 (5th

Cir. 1994)). Therefore, the district court's dismissal of

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Bennett's first FTCA claims for emotional distress claim is

affirmed.

CONCLUSION

The district court's ruling that plaintiffs’ Bivens claims

are preempted by the CBA as per Bush is AFFIRMED. The district

court's dismissal of Harrell's claims because he did not submit

them to the Secretary of Labor is AFFIRMED. The district

court's ruling that Bennett could pursue her FTCA claim for

emotional distress because she submitted the claim to the

Secretary of Labor and said claim was denied by the Secretary of

Labor is REVERSED. The district court's dismissal of Bennett's

first FTCA claim for emotional distress because she exceeded her

authority as union steward is AFFIRMED.

AFFIRMED in part, REVERSED in part.

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