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CSRA Preempts Federal Employee's Employment-Related Claims Under FTCA: Fifth Circuit
Practical Law Legal Update w-001-3234 (Approx. 4 pages)
CSRA Preempts Federal Employee's Employment-Related Claims Under FTCA: Fifth Circuit
by Practical Law Labor & Employment
| Published on 13 Jan 2016 • USA (National/Federal) |
In Tubesing v. USA, the US Court of Appeals for the Fifth Circuit held that a federal employee's claims for fraud and intentional infliction of emotional distress under the Federal Tort Claims Act (FTCA) were preempted by the Civil Service Reform Act (CSRA).
On January 6, 2016, in Tubesing v. USA, the US Court of Appeals for the Fifth Circuit held that a federal employee's fraud and intentional infliction of emotional distress claims under the FTCA were preempted by CSRA. The Fifth Circuit found that the personnel actions the Center for Disease Control's (CDC) took against the employee related to his employment relationship and fell squarely within CSRA's intended reach. ( (5th Cir. Jan. 6, 2016).)
Background
Thomas Tubesing worked as a Public Health Advisor for a subset division within the CDC. He was terminated in 2007, after reporting what he considered substantial and specific dangers to public health. The Merit Systems Protection Board (MSPB) reversed the termination, and ordered the agency to restore him to his position with full back pay, leave, health insurance, and other appropriate contributions. Tubesing filed a petition to enforce the order, which the MSPB granted in 2009.
In 2014, Tubesing sued the US under the FTCA alleging that the CDC:
- Never fully restored him to his position following the MSPB's 2009 decision.
- Took various adverse actions against him based on his prior petitions and appeals relating to his 2007 termination, including:
- sabotaging his ability to accomplish his job duties;
- requiring him to perform work outside his job description;
- intimidating other employees who cooperated with him; and
- making false and misleading statements and testifying falsely in the MSPB proceeding following his termination.
Tubesing alleged that the CDC's actions constituted fraud, intentional infliction of emotional distress, and other torts. The district court dismissed Tubesing's claims. Tubesing appealed.
Outcome
The Fifth Circuit affirmed the district court's dismissal of Tubesing's FTCA claims, holding that CSRA preempted the claims because the claims:
- Fell within CSRA's framework that is designed to:
- prohibit personnel practices that violate merit system principles of treating employees fairly and equitably and with sufficient regard for their privacy and constitutional rights; and
- remedy prohibited personnel practices by ending or correcting those practices and disciplining the offenders.
- Alleged improper actions that stemmed from Tubesing's employment relationship with the CDC, as distinguished from alleging torts that do not involve personnel actions or do not relate to the employment relationship between the agency and the employee.
The Fifth Circuit rejected Tubesing's argument that the CSRA applies only to promotions, reinstatements, and other personnel actions that are specifically listed in the statute.
The Fifth Circuit noted that the CSRA prohibits federal agencies from engaging in a comprehensive list of personnel practices against federal employees (5 U.S.C. § 2302(a); 5 U.S.C. § 2302 (b)). The court compared Tubesing's claims to the claims alleged in these three prior decisions:
- A prior Fifth Circuit decision that held that two federal employees' FTCA claims against a federal agency were precluded by the CSRA because the:
- claims of improper suspension over submitting nude photographs for publication were work-related; and
- CSRA provides the exclusive remedies for resolving work-related controversies involving federal civil service employees and federal agencies.
- A Ninth Circuit decision that held that the CSRA precluded the FTCA when the claims were employment-related and involved an agency inadequately training the employee and preventing her from competing that fit specific categories of prohibited personnel actions listed in Section 2302 (Lehman v. Morrissey, 779 F.2d 526 (9th Cir. 1991)).
- Another Ninth Circuit decision that held that the CSRA did not preclude the FTCA when the claims involved rape and sexual abuse by agency actors that did not fit any category of prohibited personnel actions in Section 2302 (Brock v. United States, 64 F.3d 1421 (9th Cir. 1995)).
The Fifth Circuit found that CSRA preempted Tubesing's FTCA claims because:
- The CSRA clearly prohibits the specific actions that Tubesing alleged he was subjected to by the CDC.
- Each of Tubesing's allegations including the CDC sabotaging his ability to accomplish his job duties, requiring him to perform work outside his job description, and blaming him for mistakes by others, directly relate to prohibited personnel practices listed in Section 2302(a) and (b).
Practical Implications
The Fifth Circuit's decision in Tubesing illustrates the type of claims by federal civil service employees that fall within the CSRA's sphere. Much of what Tubesing alleged involved alleged adverse actions that are not specifically enumerated in the CSRA's list of personnel actions defined in Section 2302(a), which includes promotions, reinstatements, and performance evaluations. The court disagreed that the CSRA only involves the listed types of personnel actions, and held that claims involving employment-related personnel actions fall within the CSRA's purview.