861 F.

2d 639

Edward BROUGHTON, Plaintiff-Appellee,

v.
Russell A. COURTNEY, Donald A. D'Lugos, DefendantsAppellants.
No. 87-3300.

United States Court of Appeals,

Eleventh Circuit.
Dec. 8, 1988.

Robert W. Merkle, Michael P. Finney, Asst. U.S. Atty., Pensacola, Fla.,

Richard A. Olderman, Dept. of Justice, Washington, D.C., for defendantsappellants.
Jeffrey L. Sakas, Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of
Florida.
Before JOHNSON and CLARK, Circuit Judges, and ZLOCH* , District
Judge.
JOHNSON, Circuit Judge:

This case arises on appeal from the denial of defendants' motions for summary
judgment on state law claims for malicious interference with employment and
conspiracy to interfere with employment. Defendants, two federal employees at
the Naval Air Rework Facility in Pensacola, Florida, assert that absolute
immunity insulates them from these claims. Defendants further assert that the
Civil Service Reform Act of 1978, Pub.L. No. 95-454, 91 Stat. 1111 (1978)
(codified in scattered sections of 5 U.S.C.A.) ("CSRA"), preempts these
actions. We agree that the CSRA preempts these claims. Consequently, we
reverse.

I. FACTS

Plaintiff was a civilian employee of the Navy at the Naval Air Rework Facility
in Pensacola, Florida. In 1980, plaintiff was promoted to the position of
Preservation Package Foreman. Between 1980 and 1982, three disciplinary
actions were taken against plaintiff for failure to follow orders. On April 16,
1982, plaintiff, claiming safety hazards, failed to follow the order of appellant
Courtney to remove a number of transmissions or gear boxes from their
containers. Plaintiff then refused to obey the order of appellant D'Lugos to
report to the office of the General Foreman until D'Lugos reduced that order to
writing. As a result, plaintiff was demoted from his position as foreman for
insubordination.

Plaintiff appealed his demotion to the Merit System Protection Board's

("MSPB") regional office pursuant to the procedures established by the CSRA.
See 5 U.S.C.A. Sec. 7513(d) ("An employee against whom an action is taken
under this section is entitled to appeal to the Merit System Protection Board
under Section 7701 of this title."). The regional MSPB held a hearing and
concluded that plaintiff's demotion was reasonable and justified. The decision
of the regional office was affirmed by the Washington MSPB, and plaintiff
failed to seek judicial review. See 5 U.S.C.A. Sec. 7703(b)(1) (providing for
review by the Federal Circuit Court of Appeals). Plaintiff subsequently filed a
claim with the EEOC alleging racial discrimination. The EEOC found no
evidence to support the charge. Plaintiff then brought suit in federal district
court under Title VII, alleging racial discrimination. That suit was dismissed for
lack of jurisdiction.

Plaintiff filed the present action in Florida state court, claiming that defendants
tortiously interfered with his employment and that defendants engaged in a
conspiracy to interfere with his employment in violation of Florida law.
Specifically, plaintiff alleges that defendant D'Lugos recommended another
person for a job for which he was applying and prohibited typists from assisting
him in the preparation of reports. Plaintiff alleges that both defendants required
him to do additional work without providing him sufficient manpower, spied on
him, accused him of insubordination, proposed restructuring the work force to
place him under defendant Courtney's supervision, and replaced him in his old
position. Plaintiff seeks reinstatement, back pay, and punitive damages.

Defendants removed the case to federal court pursuant to 28 U.S.C.A. Secs.

1442(a)(1) and 1446. After discovery, defendants moved to dismiss the suit
and, in the alternative, for summary judgment. The district court denied both
motions, and defendants appealed.1

II. DISCUSSION

We first address whether the CSRA preempts these claims. Federal law can
preempt state law in several ways: Congress may expressly preempt state law;
the federal scheme may be sufficiently comprehensive to make reasonable the
presumption that Congress intended to "leave no room" for state law; or state
law may conflict with federal law. California Federal Sav. and Loan Ass'n v.
Guerra, 479 U.S. 272, 107 S.Ct. 683, 689, 93 L.Ed.2d 613 (1987) (discussing
preemptive effect of Title VII on state law). State law may conflict directly with
federal law, such that compliance with both state and federal law is impossible,
or state law may create an obstacle to the attainment of federal policy goals.2 Id.
Courts rely on Congress's intent in determining whether a federal statute
preempts state law. Id. The presumption is against preemption. See Maryland v.
Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128, 68 L.Ed.2d 576 (1981).

In the present case, defendants argue that the CSRA preempts these state
common law actions for conspiracy and for tortious interference with
employment. Defendants argue that the CSRA creates a comprehensive scheme
which does not permit the continued existence of parallel state tort claims.
Defendants further argue that this state law action conflicts with Congress's
intent to unify challenges to federal personnel decisions in one federal
administrative scheme. We agree that adjudication of these state law claims
under the facts of this case would create an obstacle to the attainment of
Congress's goal of unifying challenges to federal personnel decisions in a single
administrative forum.

Prior to the enactment of the CSRA, federal civil service employment disputes
were resolved under a complex arrangement of statutory and regulatory
provisions. See S.Rep. No. 969, 95th Cong., 2d Sess., reprinted in 1978
U.S.Code Cong. & Admin.News 2723, 2725 ("The civil service system is an
outdated patchwork of statutes and rules built up over almost a century.").
Congress intended the CSRA to ensure that personnel decisions involving
federal civil service employees are based on merit. See 5 U.S.C.A. Sec. 2301(b)
(outlining the merit principles). The MSPB is the agency charged with
protecting these merit principles. See 5 U.S.C.A. Sec. 1205 (outlining powers
and functions of the MSPB); S.Rep. No. 969, 95th Cong., 2d.Sess., reprinted in
1978 U.S.Code Cong. & Admin.News 2728-29 (MSPB is responsible for
safeguarding merit principles in practice); Bush v. Lucas, 462 U.S. 367, 103
S.Ct. 2404, 76 L.Ed.2d 648 (1983) (MSPB is the primary body for resolving
federal personnel disputes). To ensure consistent enforcement and
interpretation of these principles, Congress intended to establish a uniform
system for review of federal personnel actions in the MSPB. See United States
v. Fausto, --- U.S. ----, 108 S.Ct. 668, 675, 98 L.Ed.2d 630 (1988); see generally
S.Rep. No. 969, 95th Cong., 2nd Sess., reprinted in 1978 U.S.Code Cong. &

Admin.News 2723et seq. The purpose behind this statutory framework is to

allow the development of a unified civil service review system to replace the
patchwork system that had existed prior to 1978. Fausto, 108 S.Ct. at 674.
9

The CSRA addresses a wide range of personnel practices. See 5 U.S.C.A. Sec.
2302(a)(2)(A) (listing personnel practices). These practices are prohibited by
the CSRA if taken for one of the reasons enumerated in 5 U.S.C.A. Sec.
2302(b). If a federal employee is adversely affected by a prohibited personnel
practice,3 the employee can appeal the personnel action to the MSPB under 5
U.S.C.A. Sec. 7701. Most Board decisions are appealable to the Federal Circuit
Court of Appeals under 5 U.S.C.A. Sec. 7703(b)(1). This is the procedure that
the plaintiff in this case followed in challenging his demotion, although he
chose to forego his opportunity for judicial review.

10

The question we must address is whether the CSRA preempts this state
common law tort action. The CSRA does preempt challenges to personnel
actions brought under federal law. See, e.g., Fausto, 108 S.Ct. at 674-75
(comprehensiveness of CSRA prevented review of certain personnel actions in
Claims Court under Back Pay Act). In Bush v. Lucas, 462 U.S. 367, 103 S.Ct.
2404, 76 L.Ed.2d 648 (1983), the Supreme Court declined to recognize a
federal common law right to recover damages in a civil action taken for
unconstitutional actions in federal employment decisions because Congress in
the CSRA had provided the exclusive remedy for challenging personnel
decisions. The Court refused to recognize a private cause of action for damages
in this situation.4 Similarly, in Hallock v. Moses, 731 F.2d 754 (11th Cir.1984),
this Court refused to create a federal common law remedy for violations of First
Amendment rights occurring in the federal employment context. The Court held
that the aggrieved employee had to follow the remedial procedures of the
CSRA.

11

The district court in this case relied on the fact that the Supreme Court's
decision in Bush v. Lucas involved judicial restraint. In Bush, the Supreme
Court exercised its discretion in declining to recognize a private cause of action
for First Amendment claims in the federal employment context. The district
court held that because the common law is self-executing, the court did not
have the discretion to deny its application. The fact that a federal court may not
have the discretion to refuse to apply state common law, however, does not
mean that Congress did not intend to preempt that law.

12

It is clear that where state law creates an obstacle to the attainment of federal
policy goals, that law is preempted. California Federal Sav. and Loan Ass'n,
107 S.Ct. at 689; see also Fidelity Federal Sav. and Loan Ass'n v. De La

Cuesta, 458 U.S. 141, 153-54, 102 S.Ct. 3014, 3022-23, 73 L.Ed.2d 664 (1982)
(discussing preemptive effect of regulations promulgated by federal agency
pursuant to federal statute); Howard v. Parisian, Inc., 807 F.2d 1560, 1565
(11th Cir.1987) ("Preemption is required if the assertion of a state law claim
would contravene the structure and purpose of a federal statute."). Here,
Congress intended the CSRA to provide an exclusive procedure for challenging
federal personnel decisions. The issue for preemption purposes is whether this
state common law action interferes with the attainment of that goal under the
facts of this case.
13

The Ninth Circuit has held that where state common law claims are included in
the personnel actions that employees can challenge under the CSRA, those state
actions are preempted. David v. United States, 820 F.2d 1038, 1043 (9th
Cir.1987) (CSRA allows no alternative state common law remedy); Lehman v.
Morrissey, 779 F.2d 526, 526-27 & n. 1 (9th Cir.1985) (per curiam) (same). In
light of Congress's policy to unify challenges to federal personnel actions, we
adopt the approach taken by the Ninth Circuit in David and Lehman. If
plaintiff's state law claims in this action are within the scope of the coverage of
the CSRA, then the actions are preempted by the CSRA.

14

In David and Lehman, the employees could have challenged the personnel
actions under the CSRA. Plaintiff in this case asserts that he would not have
been able to present his conspiracy claim before the MSPB. We note that 5
U.S.C.A. Sec. 2302(b) seems to allow a plaintiff to assert claims of bad faith in
challenging a personnel action. Even if the plaintiff in this case could not have
raised this claim, however, it would not disturb our conclusion. See Howard v.
Parisian, Inc., 807 F.2d 1560, 1565 (11th Cir.1987) (the fact that giving
preemptive effect to a federal statute would leave an individual without a
remedy does not mean that Congress did not intend to preempt state law). If
adjudication of these state law claims obstructs the attainment of Congress's
policy goal of unifying personnel challenges, then the claims are preempted.

15

The actions plaintiff challenges include recommending certain applicants for

employment positions, assigning work, disciplining employees, and
restructuring the workforce. Under 5 U.S.C.A. Sec. 2302(a)(2)(A), personnel
actions covered by the CSRA include appointments, promotions, disciplinary
actions, transfers or reassignments, performance evaluations, and significant
changes in duties and responsibilities inconsistent with the employee's job. The
actions challenged in this case thus are personnel actions within the meaning of
the CSRA.

16

Plaintiff's claims of tortious interference with employment involve willful

16

obstruction of his work performance and granting unauthorized preference to

the employee who eventually replaced plaintiff. Plaintiff's conspiracy action
includes claims of bad faith or malevolent intent on the part of Courtney and
D'Lugos. Under 5 U.S.C.A. Sec. 2302(b), it is a prohibited employment
practice to deceive or willfully obstruct any person with respect to that person's
right to compete for employment, to influence any person to withdraw from
competition for the purpose of improving or injuring the prospects of any other
person for employment, or to grant any preference not authorized by law, rule,
or regulation to any employee or applicant for employment. 5 U.S.C.A. Sec.
2302(b)(4), (5), and (6). Plaintiff's claims are thus included among 5 U.S.C.A.
Sec. 2302(b)'s prohibited employment practices.

17

Plaintiff asserts that the Court in Bush created an exception to the

comprehensiveness of the CSRA for intentional torts. The Court did state that
"certain actions by supervisors against federal employees, such as wiretapping,
warrantless searches, or uncompensated takings, would not be defined as
'personnel actions' within the statutory scheme." Bush, 462 U.S. at 385 n. 28,
103 S.Ct. at 2415 n. 28. This exception does not apply in the present case,
however. As indicated, the specific actions challenged in this case are defined
as personnel actions in 5 U.S.C.A. Sec. 2302(a). The prohibited personnel
actions defined in 5 U.S.C.A. Sec. 2302(b) include a variety of actions
otherwise characterized as torts under state law. The fact that these are
intentional torts does not mean that they are not included in 5 U.S.C.A. Sec.
2302(b). As the Senate Report made clear, "A prohibited personnel practice is
a personnel action which is taken for a prohibited purpose." S.Rep. No. 969,
95th Cong., 2d Sess., reprinted in 1978 U.S.Code Cong. & Admin.News 2742.
Plaintiff's characterization of his claims as conspiracy and intentional
interference with employment claims does not alter our conclusion that the
claims are included within the scope of 5 U.S.C.A. Sec. 2302(b).

18

Finally, defendants are among that class of federal employees whose personnel
decisions may be challenged under the CSRA. Plaintiff conceded at oral
argument that defendant Courtney acted as his supervisor. It was undisputed
that defendant D'Lugos was plaintiff's supervisor. These actions were then
taken by an "employee who has authority to take, direct others to take,
recommend, or approve any personnel action." 5 U.S.C.A. Sec. 2302(b).

19

In this case, the personnel actions challenged are included in 5 U.S.C.A. Sec.
2302(a)(2)(A); the challenges are among those challenges included in 5
U.S.C.A. Sec. 2302(b)(4), (5), and (6); and the defendants are members of the
class of federal officials covered by 5 U.S.C.A. Sec. 2302(b). This action, then,
clearly falls within the scope of the CSRA. In light of the congressional policy

to unify challenges to federal personnel actions, we hold these state law claims
are preempted by the CSRA.
20

We emphasize that we do not decide whether the CSRA preempts all state
common law actions for tortious interference with employment by federal
employees. We merely decide that where, as here, an employee challenges
personnel actions within the scope of the Act's coverage under state law, those
challenges are preempted by the CSRA.

III. CONCLUSION
21

Because we hold that these state common law claims are preempted by the
Civil Service Reform Act of 1978, we need not address appellants' claims of
absolute immunity. The judgment of the district court is REVERSED, and the
case is REMANDED to the district court to grant defendants' motions for
summary judgment.

Honorable William J. Zloch, U.S. District Judge for the Southern District of
Florida, sitting by designation

This Court has jurisdiction to review the denial of a summary judgment motion
brought under claims of absolute immunity. Mitchell v. Forsyth, 472 U.S. 511,
525, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (denial of summary
judgment based on immunity is an appealable final order within the meaning of
28 U.S.C.A. Sec. 1291). Appellants assert that the district court's ruling on
preemption is appealable as an issue pendant to the absolute immunity claim.
Plaintiff does not challenge this assertion. The same facts are needed to decide
both claims. To avoid finding these claims preempted after a full jury trial, we
will consider the preemption issue

A precondition to preemption on conflict grounds is that the state law must

implicate a "uniquely federal interest." Boyle v. United Technologies Corp., --U.S. ----, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). Potential civil liability of
federal officials is a uniquely federal interest. Id., 108 S.Ct. at 2514

The employee must work in a covered position as defined by 5 U.S.C.A. Sec.

2302(a)(2)(B), in an executive agency as defined by 5 U.S.C.A. Sec. 2302(a)(2)
(C), before the employee has access to the MSPB. There is no dispute that the
plaintiff in this case worked in a covered position in an agency included in 5
U.S.C.A. Sec. 2302(a)(2)(C)

In other situations, the Court has recognized a private cause of action against
federal officials for damages caused by violations of constitutional rights. In
Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971), the Court recognized a private cause of action for damages
for violations of the Fourth Amendment. That has been extended to the due
process clause of the Fifth Amendment, Davis v. Passman, 442 U.S. 228, 99
S.Ct. 2264, 60 L.Ed.2d 846 (1979), and to the Eighth Amendment. Carlson v.
Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980)