                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0151n.06
                           Filed: February 24, 2006

                                           No. 05-5331

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


LAMONT ROGERS,                                           )         ON APPEAL FROM THE
                                                         )         UNITED STATES DISTRICT
       Plaintiff-Appellant,                              )         COURT FOR THE EASTERN
                                                         )         DISTRICT OF TENNESSEE
v.                                                       )
                                                         )                           OPINION
GLENN MCCULLOGH, JR., in his Official
Capacity as Director of the Tennessee Valley
Authority,

       Defendant-Appellee.



BEFORE:        COLE, CLAY, and GIBBONS, Circuit Judges.

       PER CURIAM. Lamont Rogers filed a complaint in district court alleging that the

Tennessee Valley Authority (“TVA”) violated his rights under the First and Fifth1 Amendments of

the Constitution by retaliating against him when he brought work-place safety problems to the

attention of two federal agencies. The district court granted the TVA’s motion to dismiss, pursuant

to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. Specifically, the district

court held that Rogers’s complaint was preempted by the Civil Service Reform Act of 1978, see Pub.

L. 95-454, 92 Stat. 1111 et seq.




       1
        Rogers actually alleges a violation of the First and Fourth Amendments. However, his
complaint alleges in part that he was denied due process by the federal government; this claim
properly falls under the Fifth Amendment. See U.S. Const. Amend. V.
No. 05-5331
Rogers v. McCullogh

       Rogers did not file a response to the TVA’s motion to dismiss, nor did he appeal the

dismissal of his complaint. However, Rogers did file a motion, pursuant to Federal Rule of Civil

Procedure 60(b), to set aside the judgment dismissing his action. In this motion, Rogers claimed that

his timely reply was lost in transit, and argued that his complaint should not have been dismissed

for failure to state a claim. The district court decided to revisit its judgment, and concluded again

that Rogers’s claim was preempted. Following a careful review of the record and having considered

the arguments of both parties on appeal, we conclude that the district court’s opinion fully addressed

Rogers’s motion and that the court properly ruled in favor of the TVA.

       In sum, we AFFIRM the district court’s judgment on the basis of its opinion.




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