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Peter B. v. United States

September 29, 2008


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiff Peter B.*fn1 brings this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., alleging various acts of tortious conduct by his former employer, the Central Intelligence Agency ("CIA"), that caused him severe emotional distress. The government has moved to dismiss for lack of subject-matter jurisdiction. In response, the plaintiff urges that limited discovery as to the status of his employment with the CIA is necessary before addressing the government's motion. Because plaintiff's action would be precluded under the Civil Service Reform Act ("CSRA") if he were a CIA employee, and, alternatively, would be precluded under the FTCA if he were a CIA contractor, discovery on the issue of plaintiff's employment status is unnecessary and the government's motion to dismiss will be granted.


Plaintiff sued the CIA under the FTCA alleging that the CIA terminated him for unspecified reasons and that the termination caused him to fall into severe clinical depression. He seeks damages for negligent false light invasion of his privacy, negligent infliction of emotional distress, and negligent interference with prospective economic opportunity. (See Compl. ¶¶ 15-17.) In response to the government's motion to dismiss his complaint for lack of subject-matter jurisdiction, plaintiff argues that limited discovery is warranted to determine whether he was an employee or contractor of the CIA before the issue of jurisdiction can be addressed. The government insists that no such discovery is necessary, however, because regardless of whether plaintiff was a CIA employee or contractor, his claims are statutorily precluded under the CSRA and FTCA, respectively.*fn2


"On a motion to dismiss for lack of subject-matter jurisdiction pursuant to [Federal] Rule [of Civil Procedure] 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction." Shuler v. United States, 448 F. Supp. 2d 13, 17 (D.D.C. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). In reviewing the motion, a court accepts as true all of the factual allegations contained in the complaint, Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998), and may also consider "undisputed facts evidenced in the record." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003); see also Tootle v. Sec'y of the Navy, 446 F.3d 167, 174 (D.C. Cir. 2006) (explaining that a court may look to certain materials beyond the pleadings to resolve disputed jurisdictional facts when considering a motion to dismiss under Rule 12(b)(1)). The "nonmoving party is entitled to all reasonable inferences that can be drawn in [his] favor." Artis, 158 F.3d at 1306.


When enacted, the CSRA "established an elaborate new framework for evaluating adverse personnel actions [taken] against certain categories of federal employees." Doe v. Goss, Civil Action No. 04-2122 (GK), 2007 WL 106523, at *4 (D.D.C. Jan. 12, 2007). It provides "'an integrated scheme . . . designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration.'" Id. (quoting United States v. Fausto, 484 U.S. 439, 445 (1988)). The scheme is a comprehensive and "exclusive framework for judicial review of adverse disciplinary actions taken by federal agencies." Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv., 940 F.2d 704, 709 (D.C. Cir. 1991) (internal quotations and citations omitted); Fausto, 484 U.S. at 455.

"Chapter 75 of the CSRA sets up a series of procedural safeguards for covered employees who have suffered adverse personnel actions . . . . These safeguards include [the] appeal of [a] termination decision to the Merit Systems Protection Board ["MSPB"] . . . and review by the United States Court of Appeals for the Federal Circuit." Am. Postal Workers Union, AFL-CIO, 940 F.2d at 708. However, "[t]he CSRA expressly excludes CIA employees from the classes of employees for whom the CSRA's review procedures [under Chapter 75] are available." Doe, 2007 WL 106523, at *6 (citing 5 U.S.C. §§ 2302(a)(2)(A), 7511(b)(7)); see 5 U.S.C. § 7511(b)(7) (excluding from Chapter 75 "an employee . . . whose position is within the Central Intelligence Agency"). Although CIA employees are excluded from those permitted to invoke the CSRA's review procedures, their exclusion does not leave them "free to pursue whatever judicial remedies [they] would have had before enactment of the CSRA." Fausto, 484 U.S. at 447. This exclusion, "[i]n the context of the entire statutory scheme, . . . displays a clear congressional intent to deny the excluded employees the protections of Chapter 75 ---including judicial review --- for personnel action covered by that chapter." Id. Fausto explained that "[d]irect judicial review for non-covered employees would undermine 'the development, through the MSPB, of a unitary and consistent Executive Branch position on matters involving personnel action,' and would frustrate the congressional intent to 'avoid[] an unnecessary layer of judicial review in lower federal courts." Doe, 2007 WL 106523, at *5 (quoting Fausto, 484 U.S. at 449 (internal quotations omitted)).

"Congress intended to preclude non-CSRA remedies for [adverse personnel] actions . . . [and] this preclusion applies to federal employees' FTCA claims." Doe, 2007 WL 106523, at *10 (citing Am. Postal Workers Union, AFL-CIO, 940 F.2d at 708-09). Specifically, the D.C. Circuit has explained:

[The CSRA's] scheme for review of adverse employment decisions is the type of narrowly tailored employee compensation scheme that the Supreme Court has held pre-empts the more general tort recovery statutes. . . . [T]he CSRA [is] an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, and we have no warrant to permit . . . use [of] the FTCA as a means of circumventing it.

Am. Postal Workers Union, AFL-CIO, 940 F.2d at 708 (internal quotations and citations omitted).

Further, the CSRA precludes non-CSRA remedies for an adverse personnel action "even where the CSRA does not make those remedies available to the plaintiff." Doe, 2007 WL 106523, at *10 (citing Am. Postal Workers Union, AFL-CIO, 940 F.2d at 708-09) (holding that the CSRA preempted FTCA claim even where plaintiffs did not have access to other remedies provided to other classes of employees under the CSRA)). In Fausto, the Supreme Court, considering whether a nonpreference member of the excepted service --- a federal employee who had no right to administrative or judicial review under the CSRA --- could still pursue judicial review of his suspension in district court, concluded that:

The comprehensive nature of the CSRA, the attention that it gives throughout to the rights of nonpreference excepted service employees, and the fact that it does not include them in provisions for administrative and judicial review contained in Chapter 75, combine to establish a congressional judgment that those employees should not be ...

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