                    Case: 12-10021         Date Filed: 10/30/2012   Page: 1 of 5

                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10021
                                        Non-Argument Calendar
                                      ________________________

                             D.C. Docket No. 5:10-cv-00467-TJC-TBS



JAMES MICHAEL SMITH,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellant,

                                                 versus

SECRETARY, U.S. DEPARTMENT OF COMMERCE,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (October 30, 2012)

Before MARCUS, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 12-10021     Date Filed: 10/30/2012    Page: 2 of 5

      James Smith, proceeding pro se, appeals the dismissal of his civil complaint

alleging a violation of his constitutional due process rights, pursuant to Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and a

claim for libel and slander. Smith’s claims arose out of his termination by the U.S.

Census Bureau based on a prior criminal conviction. On appeal, Smith does not

contest the district court’s finding that it lacked subject matter jurisdiction over his

complaint because, first, the Civil Service Reform Act (“CSRA”) precluded Smith’s

constitutional claim and, second, the Federal Tort Claims Act (“FTCA”) did not

waive sovereign immunity for Smith’s libel and slander claim. Instead, Smith argues

that he exhausted his administrative remedies and that the Department of Commerce

violated his constitutional rights. After thorough review, we affirm.

      We review a district court’s order granting a motion to dismiss for lack of

subject matter jurisdiction de novo, viewing the facts in the light most favorable to

the plaintiff. Parise v. Delta Airlines, Inc., 141 F.3d 1463, 1465 (1998). Factual

findings concerning subject matter jurisdiction made by the district court will be

overturned only if clearly erroneous. Barnett v. Okeechobee Hosp., 283 F.3d 1232,

1238 (11th Cir. 2002). Federal Rule of Civil Procedure 12(h)(3) says that a court

shall dismiss an action whenever it appears by suggestion of the parties or otherwise

that the court lacks jurisdiction of the subject matter. A facial attack on the complaint

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requires the court to look and see if the plaintiff has sufficiently alleged a basis of

subject matter jurisdiction, and the allegations of his complaint are taken as true for

the purposes of the motion. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511

(5th Cir. 1980).1

       Bivens permitted plaintiffs to bring civil rights actions against federal officers.

Bivens, 403 U.S. at 397. However, the Supreme Court has limited the circumstances

under which a Bivens claim may be asserted. When the design of a government

program suggests that Congress has provided adequate remedies for constitutional

violations that may occur in the course of its administration, Bivens remedies are not

available. Schweiker v. Chilicky, 487 U.S. 412, 423 (1988). The CSRA created an

elaborate framework for evaluating adverse personnel actions against federal

employees. Lee v. Hughes, 145 F.3d 1272, 1274 (11th Cir. 1998). The CSRA is

designed to preclude a Bivens remedy, even if the CSRA does not provide for

administrative or judicial review of an adverse personnel action. Id. at 1275-76. In

United States v. Fausto, 484 U.S. 439 (1988), the Supreme Court “emphatically and

conclusively established the preemptive nature of the CSRA.” Stephens v. Dep’t of

Health & Human Servs., 901 F.2d 1571, 1575-76 (11th Cir. 1990).


       1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), we adopted as
binding precedent all decisions of the Fifth Circuit handed down before the close of business on
September 30, 1981.

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      The United States may not be sued without its consent. Simons v. Vinson, 394

F.2d 732, 735-36 (5th Cir. 1968). The FTCA provides a limited waiver of the United

State’s sovereign immunity for tort claims that allows the government to be sued by

certain parties under certain circumstances. Dalrymple v. United States, 460 F.3d

1318, 1324 (11th Cir. 2006). A federal court does not have jurisdiction under the

FTCA unless the plaintiff first files an administrative claim with the appropriate

agency. Id. Section 2680(h) of Title 28 provides a statutory exemption from the

FTCA for claims arising out of libel and slander.

      In this case, the district court provided three separate grounds for its dismissal

based on lack of subject matter jurisdiction: (1) preclusion by the CSRA; (2) the

Department’s sovereign immunity; and (3) Smith’s failure to exhaust his

administrative remedies. Even if we were to liberally construe Smith’s pro se

appellate brief, he did not challenge the district court’s finding that his claims were

precluded by the CSRA and by sovereign immunity. Because he failed to raise these

issues in his brief, Smith has abandoned any challenge to them on appeal. See United

States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).

      Further, a brief analysis shows that the district court did not err in its dismissal

of Smith’s claims. First, Smith’s constitutional claim was properly dismissed for lack

of subject matter jurisdiction. Smith attempted to bring a Bivens complaint against

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the Secretary for violation of his due process rights during the hiring process. The

CSRA precludes a Bivens remedy, and therefore, any claim against the government

for adverse personnel action must be brought according to the CSRA. As a result, the

district court properly concluded that it did not have subject matter jurisdiction over

Smith’s due process claim.

       Similarly, Smith’s tort claim for defamation was properly dismissed for lack

of subject matter jurisdiction. The FTCA specifically states that it does not waive the

United State’s sovereign immunity for claims arising out of libel and slander. See 28

U.S.C. § 2680(h). Consequently, the Department is immune to Smith’s libel and

slander claims.

       As we’ve noted, Smith’s appeal only contests the district court’s finding that

he did not exhaust his administrative remedies. But even had Smith exhausted his

administrative remedies, both the CSRA and principles of sovereign immunity

preclude the district court from exercising subject matter jurisdiction over his claim.

Accordingly, we affirm.2

       AFFIRMED.




       2
         Further, because the district court correctly dismissed the action based on lack of subject
matter jurisdiction, the appellant’s motion for summary judgment is DENIED.

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