                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     March 22, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                             FOR THE TENTH CIRCUIT


    BARRY C. PRETLOW,

                Plaintiff-Appellant,

    v.                                                     No. 10-6206
                                                   (D.C. No. 5:10-CV-00675-D)
    SHAWN M. GARRISON; RAMON G.                           (W.D. Okla.)
    MARTINEZ; SCOTT JENNINGS;
    JAMES CROFOOT; MICHAEL
    MOWLES; MICHAEL BARRETT;
    JOHN DOE, 1-6; UNITED STATES
    OF AMERICA,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.


         Plaintiff Barry C. Pretlow initiated this action in state court, invoking both

state and federal law. His claims arise out of his employment at Tinker Air Force

Base, where he worked as a sheet-metal mechanic until his termination in June of



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
2010. The individual defendants, all officials of the United States, removed the

action to federal district court under 28 U.S.C. § 1442(a)(1). The district court

upheld removal over Mr. Pretlow’s objection, substituted the United States as a

defendant, and ultimately dismissed the action on various jurisdictional grounds.

Mr. Pretlow timely appealed. 1 We affirm the dismissal of the action, though in

certain respects for reasons not previously explained to Mr. Pretlow, and remand

for the dismissal to be made without prejudice. 2

      Mr. Pretlow alleged defendants defamed and discriminated against him in

connection with his employment at Tinker Air Force Base. He also alleged they

retaliated against him in response to his whistleblowing activities. His pro se

pleadings give little detail regarding the nature of his and defendants’ activities,

but our disposition turns, rather, on basic legal principles regarding preemption,

exhaustion of administrative remedies, and sovereign immunity. We begin by

considering the removal of this action to federal court.


1
      Confusion regarding an amended notice of appeal led to the opening of a
second appeal, No. 10-6220. That appeal has been administratively closed.
2
       We may affirm on any legal grounds supported by the record, even if not
relied upon by the district court. Garcia v. Lemaster, 439 F.3d 1215, 1215
(10th Cir. 2006). Given the added complexity of the case and the need to
augment the district court’s stated rationale to account for it, we grant
Mr. Pretlow’s motion to proceed in forma pauperis (IFP) on appeal. See
generally Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir.
2007) (clarifying that court of appeals may grant IFP under Fed. R. App. P. 24
even when, as here, district court certified appeal was not taken in good faith
under 28 U.S.C. § 1915(a)(3)).

                                         -2-
                                    I. Removal

      We review the district court’s ruling on the propriety of removal de novo.

Lovell v. State Farm Mut. Auto. Ins. Co., 466 F.3d 893, 897 (10th Cir. 2006). As

mentioned, this case was removed under 28 U.S.C. § 1442, which affords the

federal government, its officers, and agencies a generous removal mechanism

over and above that provided by the general removal statute, 28 U.S.C. § 1441, to

all defendants:

             Because it is so important to the federal government to protect
      federal officers, removal rights under section 1442 are much broader
      than those under section 1441. Federal officers can remove both
      civil and criminal cases, while section 1441 provides only for civil
      removal. Unlike other defendants, a federal officer can remove a
      case even if the plaintiff couldn’t have filed the case in federal court
      in the first instance. And removals under section 1441 are subject to
      the well-pleaded complaint rule, while those under section 1442 are
      not. Whereas all defendants must consent to removal under section
      1441, a federal officer or agency defendant can unilaterally remove a
      case under section 1442.

Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1253 (9th Cir. 2006) (citations

omitted). The federal removal statute provides, in pertinent part, for removal by

federal defendants “sued in an official or individual capacity for any act under

color of [their] office.” 28 U.S.C. § 1442(a)(1). There is, however, an additional

constraint, derived from longstanding case law against which the statute has been

construed: “removal [under § 1442] must be predicated on the allegation of a

colorable federal defense.” Mesa v. California, 489 U.S. 121, 129 (1989).




                                        -3-
      Both of these requirements were met here. The actions at issue, relating to

the supervision and discipline of Mr. Pretlow in connection with his employment

at Tinker Air Force Base, were clearly taken by defendants under color of their

federal offices. 3 And as our discussion of federal preemption, exhaustion, and

sovereign immunity below reflects, Mr. Pretlow’s claims were subject to

colorable–indeed, meritorious–federal defenses, even though he invoked state law

in addition to federal law as the basis for those claims in his pleadings. On

appeal, Mr. Pretlow contends in conclusory terms that removal was somehow

effected through a “fraud on the court.” This groundless contention reflects a

fundamental misunderstanding of the legal concept invoked. Right or wrong–and

we find them to be right–defendants were undeniably entitled to argue for

removal on the basis that the actions complained of in Mr. Pretlow’s pleadings

were taken in connection with the duties of their offices.

                   II. Preemptive/Exclusive Federal Remedies

      Because Mr. Pretlow was a federal employee, his claims implicate three

distinct lines of federal preemption/remedial exclusivity. Insofar as he complains



3
       The United States Attorney certified that defendants “were acting within
the scope of their employment as employees of the United States at all times
relevant to the allegations in th[is] case.” R. Vol. 1 at 112. This certification is
prima facie evidence on the point that Mr. Pretlow bore the burden of rebutting.
Richman v. Straley, 48 F.3d 1139, 1145 (10th Cir. 1995). His conclusory
allegations of improper motive failed to do so. See, e.g., Harrison v. United
States, 287 F. App’x 725, 727 (10th Cir. 2008).

                                         -4-
of discrimination and associated retaliatory conduct, his exclusive remedy is

provided by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, as

the district court recognized. See Brown v. Gen. Servs. Admin., 425 U.S. 820, 835

(1976). This precludes claims asserted under the civil rights statutes, see Ford v.

West, 222 F.3d 767, 772-73 (10th Cir. 2000); directly under the Constitution,

Belhomme v. Widnall, 127 F.3d 1214, 1217 (10th Cir. 1997); and under state

anti-discrimination law, Rivera v. Heyman, 157 F.3d 101, 105 (2d Cir. 1998);

Schroder v. Runyon, 1 F. Supp. 2d 1272, 1279 (D. Kan. 1998), aff’d,

No. 98-3128, 1998 WL 694518, at *3 (10th Cir. Oct. 6, 1998) (unpub.).

      Insofar as Mr. Pretlow asserts employment-related claims based on conduct

distinct from the discrimination and retaliation addressed by Title VII, there is

another source of federal preemption: the Civil Service Reform Act of 1978

(CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (codified, as amended, in scattered

sections of 5 U.S.C.). The CSRA established a comprehensive scheme for

reviewing federal-personnel actions that preempts other federal and state claims

complaining of prohibited employment practices and precludes claims asserted

directly under the Constitution. See Steele v. United States, 19 F.3d 531, 532-33

(10th Cir. 1994); Petrini v. Howard, 918 F.2d 1482, 1483-85 (10th Cir. 1990). In

particular, Mr. Pretlow’s whistleblowing allegations implicate this preemption

principle in light of the provisions added to the CSRA by the Whistleblower

Protection Act of 1989 (WPA), Pub. L. No. 101-12, 103 Stat. 16 (1989) (codified

                                         -5-
in scattered sections of 5 U.S.C.). See Richards v. Kiernan, 461 F.3d 880, 885

(7th Cir. 2006) (collecting cases recognizing “that the CSRA provides the

exclusive remedy for claims brought pursuant to the WPA”). Even if state law

provides whistleblowing protections, cf. Wilburn v. Mid-South Health Dev., Inc.,

343 F.3d 1274, 1278 (10th Cir. 2003) (discussing Oklahoma cause of action for

wrongful discharge based on retaliation for whistleblowing), a federal employee

like Mr. Pretlow must look solely to the remedy provided in the CSRA, see, e.g.,

Steele, 19 F.3d at 532-33 (holding whistleblower’s claims of retaliation involved

activities covered, and hence preempted by, CSRA).

      Finally, insofar as Mr. Pretlow asserts tort claims against the United States

(that are not otherwise preempted by Title VII or the CSRA), the Federal Tort

Claims Act (FTCA) provides the exclusive remedy. See Franklin Sav. Corp.v.

United States (In re Franklin Sav. Corp.), 385 F.3d 1279, 1286-87 (10th Cir.

2004). This is true even though Mr. Pretlow did not name the United States in his

pleadings. When, as here, federal employees are sued in tort for actions taken

within the scope of their employment, the FTCA affords the employees absolute

immunity and requires the plaintiff to proceed against the United States, whose

sovereign immunity is waived in certain limited respects for this purpose. Salmon

v. Schwarz, 948 F.2d 1131, 1141-42 (10th Cir. 1991) (explaining effect of

amendment to FTCA made by Federal Employees’ Liability Reform and Tort

Compensation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563 (1988)).

                                        -6-
      With this understanding of the principles of preemption and remedial

exclusivity implicated by the claims asserted in Mr. Pretlow’s pleadings, we now

consider the substance and proper disposition of those claims.

                               III. Dismissal of the Action

A. Employment Discrimination Claims

      For reasons explained above, the district court properly held that

Mr. Pretlow’s claims of discrimination and associated retaliation must be treated

as Title VII claims. The district court proceeded to dismiss these claims based on

Mr. Pretlow’s failure to exhaust administrative remedies, which in this circuit is a

jurisdictional prerequisite to suit under Title VII, see Shikles v. Sprint/United

Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005); Logsdon v. Turbines, Inc.,

No. 09-6296, 2010 WL 4118811, at *2 & n. 2 (10th Cir. Oct. 20, 2010) (unpub.)

(noting that “EEOC exhaustion is still considered jurisdictional” in this circuit).

On de novo review, Khader v. Aspin, 1 F.3d 968, 971 (10th Cir. 1993), we affirm

the district court’s ruling.

      A plaintiff invoking the court’s subject matter jurisdiction “must allege in

his pleadings the facts essential to show jurisdiction” and, if challenged, must

support those allegations by a preponderance of the evidence. Celli v. Shoell,

40 F.3d 324, 327 (10th Cir. 1994) (quotation omitted); see United States v.

Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999). Thus, an




                                           -7-
employment-discrimination plaintiff must “plead and show” exhaustion. 4 Cudjoe

v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1063 (10th Cir. 2002); see Greenlee v.

U. S. Postal Serv., 247 F. App’x 953, 955 (10th Cir. 2007) (noting exhaustion

pleading requirement in connection with several employment claims, including

Title VII). Mr. Pretlow clearly failed to do so. His pleadings neither assert nor

factually demonstrate that he exhausted administrative remedies for his claims.

Indeed, as the district court noted in its dismissal order, he “specifically alleges

there are pending EEO complaints that remain under investigation.” R. Vol. 1

at 143. “[I]t is well-settled that administrative remedies must first be fully

exhausted” before suit is commenced. Khader, 1 F.3d at 971. On appeal,

Mr. Pretlow again refers to EEO complaints without any indication that he

pursued these to completion before filing this case. Under our precedent, the

district court properly dismissed Mr. Pretlow’s Title VII claims. 5

4
       Some panel decisions have wondered aloud whether this circuit’s
characterization of exhaustion as a jurisdictional prerequisite for the plaintiff in
the employment context might be revisited in light of the treatment of exhaustion
as an affirmative defense under the Prison Litigation Reform Act in Jones v.
Bock, 549 U.S. 199 (2007). See, e.g., McQueen v. Colorado Springs Sch. Dist.
No. 11, 488 F.3d 868, 873 (10th Cir. 2007); Logsdon, 2010 WL 4118811 at *2 &
n.2; Alcivar v. Wynne, 268 F. App’x 749, 753 (10th Cir. 2008); but cf. Martinez v.
Target Corp., 384 F. App’x 840, 845 n.2 (10th Cir. 2010) (concluding that “Bock
is inapposite” to jurisdictional status of exhaustion requirement in employment
cases). We remain, however, bound by extant circuit precedent on the matter.
Logsdon, 2010 WL 4118811, at *2 n.2.
5
      The district court couched its dismissal in terms of failure to state a claim,
which without express qualification is a prejudicial determination on the merits.
                                                                        (continued...)

                                         -8-
B. Whistleblower Claims

      The district court’s order does not address Mr. Pretlow’s whistleblower

allegations. As explained earlier, these trigger preemption under the CSRA, not

Title VII. Nevertheless, Mr. Pretlow’s CSRA/WPA claim would be fatally

deficient for the same basic reason as his Title VII claims: he did not plead or

otherwise show that he exhausted his remedies under the CSRA. See Gardner v.

United States, 213 F.3d 735, 737 n.1 (D.C. Cir. 2000) (holding the “district court

lacked subject matter jurisdiction of [plaintiff’s] claims for alleged [WPA]

violations . . ., because he failed to allege that he had exhausted his administrative

remedies, as required under the [CSRA]”); Ferry v. Hayden, 954 F.2d 658, 661

(11th Cir. 1992) (holding “[plaintiff’s] failure to exhaust his administrative

remedies under the CSRA precludes judicial review of his allegations of improper

agency action” in retaliation for whistleblowing).

C. Defamation Claim

      The district court held that Mr. Pretlow’s exclusive remedy for defamation

by the federal defendants here was against the United States under the FTCA.

And, because the FTCA specifically excludes defamation from its waiver of


5
 (...continued)
But a jurisdictional dismissal, here for lack of exhaustion, is a non-merits
disposition to be made without prejudice. We therefore must remand the matter
to the district court to modify its judgment accordingly. See, e.g., Hardeman v.
Sanders, 396 F. App’x 551, 556 (10th Cir. 2010) (citing similar cases following
this corrective procedure).

                                         -9-
sovereign immunity, see 28 U.S.C. § 2680(h), the court held it could not exercise

subject matter jurisdiction over Mr. Pretlow’s claim. Aviles v. Lutz, 887 F.2d

1046, 1048-49 (10th Cir. 1989). With one non-dispositive caveat, explained in a

moment, we agree with this analysis. As this court recognized in Aviles, 887 F.2d

at 1049-50, and the Supreme Court subsequently confirmed in United States v.

Smith, 499 U.S. 160, 165 (1991), the fact that the FTCA ultimately provides no

remedy for Mr. Pretlow’s defamation claim does not alter the fact that the FTCA

displaces any other tort remedies he may be attempting to invoke.

      Our only caveat is that defamation claims arising in the context of federal

employment can fall within the preemptive scope of the CSRA rather than the

FTCA. See, e.g., Mahtesian v. Lee, 406 F.3d 1131, 1134-35 (9th Cir. 2005); Roth

v. United States, 952 F.2d 611, 614-15 (1st Cir. 1991). This court’s decision in

Petrini v. Howard provides helpful guidance as to where, in this respect, the

CSRA ends and the FTCA begins. There, we held that allegations regarding

unfavorable employment evaluations “clearly describe matters covered by the

[CSRA]” and hence “tort claims based on these [allegations] are preempted by the

CSRA.” 918 F.2d at 1485. On the other hand, we held that defamation claims

“based on the alleged publication of false statements regarding a disease [the

plaintiff teacher] contracted from a student” were “arguably outside the scope of

the CSRA” and remanded for consideration under the FTCA. Id. While his

allegations are conclusory, it appears that some or all of the defamation of which

                                        -10-
Mr. Pretlow complains may fall within the scope of the CSRA. As noted above,

however, this would not alter the disposition here. Considered under the CSRA,

his claims would necessarily fail for lack of exhaustion.

                                    Conclusion

      In sum, this case was properly removed to federal court and dismissed for

various jurisdictional deficiencies. Mr. Pretlow’s claims involving employment

discrimination and associated retaliation were preempted by Title VII and failed

for lack of demonstrated exhaustion of administrative remedies. His allegations

of retaliation for whistleblowing were preempted by the CSRA and likewise failed

for lack of exhaustion. Finally, his defamation claim was either preempted by the

FTCA and barred by sovereign immunity, or preempted by the CSRA and barred

for lack of exhaustion.

      We AFFIRM the judgment of the district court, but REMAND for the court

to clarify that the action is dismissed without prejudice on jurisdictional grounds.

We GRANT appellant’s motion for leave to proceed in forma pauperis on appeal.


                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




                                        -11-
