                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 05-2395
EUGENE R. RICHARDS, JR.,
                                               Plaintiff-Appellant,
                                 v.

KATHLEEN L. KIERNAN, MALCOLM W. BRADY,
EDGAR DOMENECH, et al.,
                                Defendants-Appellees.
                   ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 04 C 4013—Rebecca R. Pallmeyer, Judge.
                          ____________
   ARGUED JANUARY 5, 2006—DECIDED AUGUST 25, 2006
                    ____________


  Before FLAUM, Chief Judge, and ROVNER, and WILLIAMS,
Circuit Judges.
  ROVNER, Circuit Judge. Eugene Richards, a former em-
ployee of the Bureau of Alcohol Tobacco, Firearms, and
Explosives (ATF), brought suit against his supervisors
alleging that they violated his First Amendment rights
by retaliating against him for his whistleblowing activi-
ties. The district court concluded that Richards’ sole remedy
was through the Merits Systems Protection Board (MSPB)
and that his appeal from that decision should have been
made to the United States Court of Appeals for the Federal
Circuit. We affirm.
2                                                    No. 05-2395



                                I.
  In our review of this motion to dismiss, we accept all well-
pleaded factual allegations in the complaint and draw all
reasonable inferences from those facts in favor of Richards.
Boim v. Quranic Literacy Inst. and Holy Land Found. for
Relief and Dev., 291 F.3d 1000, 1008 (7th Cir. 2002).1
Richards was a former supervisor in the Bureau of ATF. In
1998, ATF transferred Richards to the Chicago Field
Division, which turned out to be a hotbed of personality
conflicts and unpleasant office politics. At the core of the
torrent were Richards’ first line supervisor, Chicago Group
Supervisor, Mark Rusin, and Richards’ second-line supervi-
sor, Special Agent in Charge, Kathleen L. Kiernan. As the
storm swelled, agency superiors requested a review of the
Chicago Field Division. Over the course of the four day
investigation in June 1999, Richards backed Rusin’s
claim that Kiernan had acted in violation of ATF policy. He
also alleges that he reported additional instances of im-
proper conduct by Kiernan. ATF transferred Richards
to Washington D.C. in August 1999, and then back to
Chicago in December of that same year. In September 2000,
ATF selected him for transfer to New York City.
 Richards did not want to leave Chicago where his wife
was employed in a “highly compensated” position with the
Department of Housing and Urban Development. (R. at 1,


1
  Richards made this task more difficult by ignoring Fed. R. App.
P. 28(a)(7) which states that “[n]o fact shall be stated in the
statement of facts unless it is supported by a reference to the page
or pages of the record or the appendix where that fact appears.”
See also Fed. R. App. P. 28(e); 7th Cir. R. 28(c). Nevertheless,
because the sole question for review is whether the remedial
scheme of the Civil Service Reform Act precluded Richards from
bringing a claim in the district court, a detailed exposition of
the underlying facts is largely unnecessary.
No. 05-2395                                                  3

p.4). ATF, however, denied his request for a hardship
reprieve, and his requests to transfer to Washington D.C.
were thwarted, he alleges, by Malcolm Brady, the Deputy
Assistant Director of the Chicago Field Office, and another
supervisor, Larry Ford. Rather than transfer to New York
City, Richards tendered his resignation to his New York
supervisor, Edgar Domenech, on May 21, 2001, claiming
that he was resigning due to a “hostile work environment.”
And then his legal claims began.
  Richards first filed a formal complaint of discrimination
with the ATF. The Department of Treasury (the former
parent of the ATF) issued a Final Agency Decision finding
no discrimination or retaliation. Richards then turned to
the Office of Special Counsel alleging that his supervisors
had retaliated against him in response to his whistleblow-
ing activities. That claim and the appeal also failed. For his
third attempt, Richards filed a complaint in the dis-
trict court below alleging constructive discharge and retalia-
tion for exercise of his First Amendment rights. (R. at 1).
Richards sued five of his former supervisors, Kiernan,
Brady, Domenech, Ford, and David Benton in their personal
capacities. He also sued John Ashcroft and Carl J. Truscott
in their representative capacities as heads of the Depart-
ment of Justice and ATF, respectively, and the agencies
themselves. When the parties disagreed as to his exhaus-
tion requirements, however, Richards moved to voluntarily
dismiss his complaint with leave to reinstate so that he
could pursue his claims in his fourth venue, the MSPB, the
administrative agency charged with adjudicating federal
employee personnel appeals. The MSPB held that it lacked
jurisdiction over Richards’ discharge claim, concluding that
he had voluntarily retired, and denied the whistleblower
claim finding that Richards had not made any protected
disclosures. (R. at 10, Ex. 1, pp. 8, 11, 14). Even if Richards
had made a disclosure, the MSPB concluded, the Whistle-
blower Protection Act (WPA) protected only disclosures of
4                                                  No. 05-2395

information of which the agency was previously unaware.
(R. at 10, Ex. 1, p. 8-9) (citing Meuwissen v. Dep’t of Interior,
234 F.3d 9, 12-13 (Fed. Cir. 2000)). Rather than appealing
the MSPB’s decision to the Court of Appeals for the Federal
Circuit, the only court with power to review the decision (5
U.S.C. § 7703(b)(1)), Richards reinstated his First Amend-
ment claim in the district court below. The district court
granted the defendants’ motion to dismiss on the grounds
that the court lacked jurisdiction over Richards’ claims. The
district court noted that Richards’ appeal from the MSPB’s
decision had to be made to the Federal Circuit and not to
the Northern District of Illinois. (R. at 18). We review the
district court’s decision granting a motion to dismiss
de novo. Boim, 291 F.3d at 1008.


                              II.
   Richards maintains that the defendants violated his First
Amendment rights by retaliating against him for blowing
the whistle on allegedly improper conduct by an ATF
supervisor. The Supreme Court case of Bivens authorizes
the filing of constitutional suits against individual federal
officers. Bivens v. Six Unknown Agents of the Fed. Bureau
of Narcotics, 403 U.S. 388, 397 (1971). Not all constitutional
claims may be brought before the federal courts, however.
In some cases, Congress has established comprehensive
administrative bodies with broad remedial powers to
resolve all contested matters before them. The Supreme
Court has determined that, in light of the comprehensive
nature of some of these remedial schemes, it would be
inappropriate to allow judicial remedies as well. See Bush
v. Lucas, 462 U.S. 367, 368 (1983). The Civil Service Reform
Act (5 U.S.C. § 1101 et seq.) (CSRA) is one such scheme
which provides a “comprehensive framework for handling
the complaints of civil service employees faced with adverse
personnel decisions.” Ayrault v. Pena, 60 F.3d 346, 347 (7th
No. 05-2395                                               5

Cir. 1995). By creating the CSRA, Congress implicitly
repealed the jurisdiction of federal district courts over
personnel actions arising out of federal employment. Paige
v. Cisneros, 91 F.3d 40, 43 (7th Cir. 1996).
  Richards would like us to carve out an exception to this
rule so that he may proceed on his Bivens claim in this
court. The Supreme Court urges caution in extending
Bivens remedies into new contexts. Corr. Serv. Corp. v.
Malesko, 534 U.S. 61, 70 (2001) (“In 30 years of Bivens
jurisprudence we have extended its holding only twice.”);
F.D.I.C. v. Meyer, 510 U.S. 471, 484 (1994); Schweiker v.
Chilicky, 487 U.S. 412, 421 (1988); Paige, 91 F.3d at 44.
Federal courts will do so only when Congress has not
provided an adequate remedial mechanism for a constitu-
tional violation, and the omission of that particular remedy
was inadvertent. Schweiker, 487 U.S. at 423; Bagola v.
Kindt, 131 F.3d 632, 640 (7th Cir. 1997). “When the design
of a Government program suggests that Congress has
provided what it considers adequate remedial mecha-
nisms for constitutional violations that may occur in the
course of its administration, we have not created additional
Bivens remedies.” Schweiker, 487 U.S. at 423. This is true
even if the existing remedies do not provide complete relief
for the parties. Bush, 467 U.S. at 388; Robbins v. Bentsen,
41 F.3d 1195, 1201 (7th Cir. 1994) (“Courts may not provide
constitutional remedies to supplement a
congressionally-established administrative system even
where that system’s remedies are not as complete as the
constitutional remedy might be.”). For example, if an
administrative remedy provides only back pay and rein-
statement but a First Amendment claim brought in fed-
eral court could provide individual damages, the Supreme
Court has held that Congress nevertheless created a system
that provides for meaningful remedies for employees who
have been disciplined for making critical comments. Bush,
467 U.S. at 372 & n.8, 390. Congress, the Bush court
6                                                No. 05-2395

determined, was in a better position to determine what
remedies should be provided to civil service employees. Id.
at 389. In short, even if the remedies provided by the CSRA
are incomplete, the Act provides an adequate remedial
scheme and therefore precludes a Bivens claim. See Bagola,
131 F.3d at 642; Paige, 91 F.3d at 44; Robbins, 41 F.3d at
1201. Consequently, a court need not look into the
meaningfulness of an individual federal employee’s remedy
within the CSRA. Feit v. Ward, 886 F.2d 848, 854 (7th Cir.
1989). Once it has been determined that the administrative
system provides a comprehensive system of protecting a
plaintiff’s rights, that Congress has the expertise and
authority to fashion a system to protect those rights, and
that the omission of a particular remedy was not inadver-
tent, a court may conclude that a Bivens action is precluded.
Id. at 855.
  Richards argues that he was denied a meaningful remedy
because the MSPB and the Federal Circuit which reviews
its decisions, continue to protect only the initial whistle-
blowing disclosure despite legislative history indicating that
Congress intended that the Act would not be limited to
protecting only an “employee [who] is the first to raise the
issue.” S. Rep. No. 103-358, at 10. In essence, Richards
argues that both the MSPB and the Federal Circuit have
misinterpreted the WPA, and as proof of their error he
points to the Senate Committee Report. Of course the
legislative history expressing the intent of the WPA does
not carry the force of law. Exxon Mobil Corp. v. Allapattah
Servs., Inc., 125 S. Ct. 2611, 2626 (2005); Brill v. Country-
wide Home Loans, Inc., 427 F.3d 446, 448 (7th Cir. 2005)
(“when the legislative history stands by itself, as a naked
expression of ‘intent’ unconnected to any enacted text, it has
no more force than an opinion poll of legislators—less,
really, as it speaks for fewer.”). More importantly, however,
Richards has mislabeled his injury. Richards, was not
denied a meaningful remedy. He simply lost his case and
No. 05-2395                                                 7

believes the MSPB’s decision was wrong. It is true that the
MSPB denied him a remedy in a very literal sense—as any
litigant who loses a case is denied a remedy. But this is not,
of course, the same as being denied the opportunity for
meaningful remedy through an administrative process as
described in the Bivens preclusion case law. As we described
above, meaningful remedies are those that provide a
comprehensive system of protecting all employee’s rights,
even if the remedies are incomplete. Schweiker, 487 U.S. at
425 (“[t]he creation of a Bivens remedy would obviously
offer the prospect of relief for injuries that must now go
unredressed. Congress, however, has not failed to provide
meaningful safeguards or remedies for the rights of persons
situated as respondents were.”).
  Even if the MSPB and the Federal Circuit were incor-
rectly interpreting and applying the WPA, this would not be
cause for creation of a new Bivens remedy. When a tribunal
is simply wrong in its interpretation of the law or facts, the
remedy is to seek rehearing, Vidimos, Inc. v. Wysong Laser
Co., Inc., 179 F.3d 1063, 1065 (7th Cir. 1999), or appeal to
a higher authority. Maness v. Meyers, 419 U.S. 449, 458-59
(1975) (“Remedies for judicial error may be cumbersome but
the injury flowing from an error generally is not irrepara-
ble, and orderly processes are imperative to the operation
of the adversary system of justice.”) Richards had every
opportunity to convince the MSPB that a second disclosure
should be covered under the statute. (In fact, the Board has
indeed found secondary disclosures to be protected in some
instances. (R. at 10, Ex. 1, p. 10) (citing Askew v. Dep’t of
Army, 88 M.S.P.R. 674, 682 (2001))). On appeal he would
have the same opportunity to convince the Federal Circuit
to protect secondary disclosures. If the Federal Circuit
failed to alter its view and Richards continued to believe
that the Circuit’s interpretation of the act was incorrect,
his remedy would be to appeal the Federal Circuit’s decision
to the Supreme Court. A litigant cannot avoid the inevitable
8                                                      No. 05-2395

unfavorable decision from a U.S. Court of Appeals simply by
filing a new complaint in a district court in another circuit.
Richards’ counsel admits that he opted not to appeal the
MSPB decision to the Federal Circuit because he was fairly
certain that the Federal Circuit would rule against him.
(oral argument at 1min:28-35 sec and 4min:12-50 sec). It
would indeed be ironic to allow a litigant to claim “futility”
merely because her legal position was so weak that she was
certain to lose her case.
  There is no question but that the CSRA provides the
exclusive remedy for an alleged constitutional violation
(including an alleged First Amendment violation) arising
out of federal employment. Bush, 462 U.S. at 368; Paige, 91
F.3d at 42-43; Ayrault, 60 F.3d at 350; Robbins, 41 F.3d at
1200 (First Amendment claim), Feit, 886 F.2d at 855 (First
Amendment claim); Moon v. Phillips, 854 F.2d 147, 152 (7th
Cir. 1988). Other circuits have specifically concluded that
the CSRA provides the exclusive remedy for claims brought
pursuant to the WPA. See, e.g., Stella v. Mineta, 284 F.3d
135, 142 (D.C. Cir. 2002) (“[u]nder no circumstances does
the WPA grant the District Court jurisdiction to entertain
a whistleblower cause of action brought directly before it in
the first instance.”). See also Hendrix v. Snow, No.
05-11583, 2006 WL 288099 at *8 (11th Cir. Feb. 8, 2006);2
Harris v. Evans, 66 Fed. Appx. 465, 467 (4th Cir. 2003);
Grisham v. U.S., 103 F.3d 24, 27 (5th Cir. 1997); Desmond
v. Dep’t of Defense, No. 92-2201, 1993 WL 88196 at *2-3 (1st


2
   Citation to these unpublished opinions is permitted in the
rendering court when used, as they are here, as persuasive
authority. See 11th Cir. R. 36-2, 4th Cir. R. 36(c); 1st Cir. R. 36(c)
& 32.3(a)(2). And because citation is permitted in these circuits,
they may be cited here. 7th Cir. R. 53(e) (“[e]xcept to the purposes
set forth in Circuit Rule 53(b)(2)(iv), no unpublished opinion or
order of any court may be cited in the Seventh Circuit if citation
is prohibited in the rendering court.”).
No. 05-2395                                                 9

Cir. Mar. 19 1993); Gergick v. Austin, 997 F.2d 1237, 1239
(8th Cir. 1993), Rivera v. U.S., 924 F.2d 948, 952 (9th Cir.
1991). There is nothing about Richards’ claim that would
distinguish it from the scores of cases which have held that
these claims must be brought before the MSPB. Further-
more, as the district court correctly concluded, any judicial
review of a final decision by the MSPB lies with the United
States Court of Appeals for the Federal Circuit, and not
with the district courts or this court. See 5 U.S.C. §
7703(b)(1); U.S. v. Fausto, 484 U.S. 439, 446 (1988);
Ayrault, 60 F.3d at 348.
  There remains but one small housekeeping matter to
address. The district court’s order states as follows: “Defen-
dant’s [sic] motion to dismiss or in the alternative for
summary judgment (10) is granted. This complaint is
dismissed for lack of jurisdiction.” (R. at 18). We have
concluded before, however, that the appropriate basis for
dismissing a Bivens claim that should have been pre-
cluded by the comprehensive scheme of the MSPB is failure
to state a claim upon which relief can be granted, not lack
of subject matter jurisdiction. Massey v. Helman, 196 F.3d
727, 738 (7th Cir. 2000) The federal courts, of course, have
jurisdiction to decide all cases “arising under the Constitu-
tion.” 28 U.S.C. § 1331. The Supreme Court, however, has
determined that it is inappropriate for the federal courts to
supplement the comprehensive procedural and substantive
remedies provided to federal employees under the CSRA.
Bush, 462 U.S. at 368. Consequently, “the rule precluding
constitutional claims by federal employees who have
adequate administrative remedies stems from the absence
of substantive legal rights rather than the courts’ lack of
subject matter jurisdiction.” Massey, 196 F.3d at 738.
Because the defendants did indeed move the court to
dismiss under Federal Rule of Civil Procedure 12(b)(6) we
might conclude that the district court’s characterization was
merely a scrivener’s error. Even if it were not, we have
10                                             No. 05-2395

previously held that if remanding a case dismissed for want
of subject matter jurisdiction would be futile because the
party has also failed to state a claim upon which relief can
be granted, this court can affirm the district court, even
though the dismissal for lack of subject matter jurisdic-
tion was in error. Id.
  The decision of the district court granting the motion to
dismiss is AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-25-06
