    12-1947
    Doe v. Fed. Deposit Ins. Corp.


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    25th day of September, two thousand thirteen.

    Present:
                ROBERT A. KATZMANN,
                            Chief Judge,
                DENNIS JACOBS,
                ROSEMARY S. POOLER,
                            Circuit Judges.
    __________________________________________

    JANE DOE,

                                 Plaintiff-Appellant,

                       v.                                                     No. 12-1947

    FEDERAL DEPOSIT INSURANCE CORPORATION,

                                 Defendant-Appellee.

    __________________________________________

    FOR PLAINTIFF-APPELLANT:                            Jane Doe, pro se, Parlin, NJ.

    FOR DEFENDANT-APPELLEE:                             Kathryn Norcross, Acting Assistant General Counsel,
                                                        Lawrence H. Richmond, Senior Counsel,
                                                        Jaclyn C. Taner, Counsel, Federal Deposit
                                                        Insurance Corporation, Arlington, VA.
        Appeal from the United States District Court for the Southern District of New York

(Jones, J.).

        UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-Appellant Jane Doe, proceeding pro se, appeals from a judgment entered

February 28, 2012 dismissing her complaint for lack of subject matter jurisdiction. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

        “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). Doe argues that the district court erred by

determining that the Civil Service Reform Act (“CSRA”) applied to her claims. The CSRA

forced Doe to seek relief through one of the methods specified under 5 U.S.C. § 7121(g), and

barred her from pursuing her claims in federal court.

        The Federal Deposit Insurance Act (“FDIA”) provides that “[n]o Federal banking agency

. . . may discharge or otherwise discriminate against any employee with respect to compensation,

terms, conditions, or privileges of employment because the employee . . . provided information

to any such agency or bank . . . regarding any possible violation of any law or regulation, gross

mismanagement, a gross waste of funds, [or] an abuse of authority.” 12 U.S.C. § 1831j(a)(2).

The FDIA further provides that an employee who believes a violation of the FDIA has occurred

may file an action in a federal district court. 12 U.S.C. § 1381j(b).




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         The CSRA, on the other hand, sets forth a “comprehensive system for reviewing

personnel action taken against federal employees.” United States v. Fausto, 484 U.S. 439, 455

(1988). It provides that any “employee who has authority to take, direct others to take,

recommend, or approve any personnel action, shall not, with respect to such authority . . . take

. . . a personnel action with respect to any employee . . . because of . . . any disclosure of

information by an employee . . . which the employee . . . reasonably believes evidences . . . any

violation of any law, rule or regulation.” 5 U.S.C. § 2302(b)(8). If such a personnel action it

taken, it is considered a “prohibited personnel practice.” 5 U.S.C. § 2302(a). Under 5 U.S.C.

§ 2302, “personnel action” is defined as including, inter alia, “a performance evaluation,” “a

decision . . . concerning education or training if the education or training may reasonably be

expected to lead to an appointment [or] promotion,” reassignment, or “any . . . significant change

in duties, responsibilities, or working conditions.” The CSRA further provides that “[a]n

aggrieved employee affected by a prohibited personnel practice . . . may elect not more than one

of the [following] remedies . . . (A) An appeal to the Merits Systems Protection Board . . . . (B)

A negotiated grievance procedure under this section. . . . [or] (C) Procedures for seeking

corrective action under” 5 U.S.C. §§ 1211 et seq., which governs proceedings before the Office

of Special Counsel. 5 U.S.C. § 7121(g). We have held that “the [Civil Service] Reform Act . . .

provides the exclusive remedy by which [federal] employees may challenge such actions and,

unless the Reform Act either explicitly or by necessary implication sanctions judicial challenges

to such actions, judicial challenge is foreclosed.” Tiltti v. Weise, 155 F.3d 596, 600 (2d Cir.

1998).




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       Doe’s complaint is founded on her claim that she reported violations of law by several

banks and was retaliated against by her employer, the Federal Deposit Insurance Corporation

(“FDIC”) as evidenced by: (1) the creation of negative performance evaluations; (2) her being

taken off certain projects and her work product being “altered” to include additional information;

and (3) restrictions being placed on her employment including the denial of training and

advancement opportunities. Since the CSRA defines “prohibited personnel practices” as

including, inter alia, negative performance evaluations, reassignment and a change of duties, and

a decision about training or further education, Doe’s claims constitute “prohibited personnel

practices” within the meaning of the CSRA. As Doe’s claims do not fall within any of the

exceptions to the CSRA’s applicability, see 5 U.S.C. §§ 7121(d), (e), the CSRA governs Doe’s

claims and Doe must seek relief through one of the methods specified under 5 U.S.C. § 7121(g).

       With respect to Doe’s claim that her rights under the Privacy Act were violated because

she received negative performance evaluations and responses to grievances that included

information with which she did not agree, these actions also fall within the definition of

“prohibited personnel actions.” 5 U.S.C. §§ 2302(a)(2)(A), 2302(b)(8). When Privacy Act

claims fall within the meaning of “prohibited personnel practices” under the CSRA, the CSRA

precludes federal courts from considering such claims. See, e.g., Orsay v. U.S. Dep’t of Justice,

289 F.3d 1125, 1130 (9th Cir. 2002), abrogated on other grounds by Milbrook v. United States,

133 S. Ct. 1441 (2013); Kleiman v. Dep’t of Energy, 956 F.2d 335, 338 (D.C. Cir. 1992);

Henderson v. Soc. Sec. Admin., 908 F.2d 559, 560-61 (10th Cir. 1990). Because Doe’s Privacy

Act claims fall within the definition of a “prohibited personnel action,” the CSRA dictates that

Doe may not pursue her claims in federal court.



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          Finally, Doe challenges the district court’s protective and sealing orders, which the

district court entered after Doe’s counsel filed motions requesting those orders. “Normally, the

conduct of an attorney is imputed to his client, for allowing a party to evade ‘the consequences

of the acts or omissions of []his freely selected agent’ ‘would be wholly inconsistent with our

system of representative litigation, in which each party is deemed bound by the acts of his

lawyer-agent.’” S.E.C. v. McNulty, 137 F.3d 732, 739 (2d Cir. 1998) (alteration in original)

(quoting Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962)). Consequently, since Doe’s

retained attorney specifically requested that the district court enter protective and sealing orders,

these requests are imputed to Doe and this Court rejects her challenges to the entry of these

orders.

          We have considered all of the petitioner’s remaining arguments and find them to be

without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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