
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                      __________          No. 91-1694                                    NORMA F. ROTH,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                      __________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion  of the  Court issued on  December 30,  1991, is          amended as follows:               On page 6, line 5,  "actions[s]" should be corrected to read          "action[s]."                                                                                     _________________________          No. 91-1694                                    NORMA F. ROTH,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                                                                     _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                                                                     _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                     _________________________               Norman  Jackman, with whom  Martha M. Wishart  and Jackman &               _______________             _________________      _________          Roth were on brief, for appellant.          ____               Roberta  T. Brown,  Assistant United  States Attorney,  with               _________________          whom  Judith S.  Yogman, Acting  United States  Attorney, was  on                _________________          brief, for appellee.                                                                                     _________________________                                                                                     _________________________                    SELYA, Circuit  Judge.  Concluding that the plaintiff's                    SELYA, Circuit  Judge.                           ______________          complaint  failed to  state a  claim upon  which relief  could be          granted, Fed.  R. Civ.  P. 12(b)(6),  the United States  District          Court  for  the  District of  Massachusetts  dismissed  an action          brought  by the  plaintiff,  Norma F.  Roth,  against the  United          States.1  Roth appeals from the order of dismissal.  We affirm.                                          I.                                          I.                    We  eschew an exegetic  statement of the  facts, opting          instead to discuss the averments  of the complaint, to the extent          required, in  connection with  the body  of the  appeal.   We do,          however, pause  to  reflect  on  the standard  that  governs  our          oversight.                    It is settled  that "[a]ppellate review of  a dismissal          under Fed. R.  Civ. P. 12(b)(6)  is plenary."   Miranda v.  Ponce                                                          _______     _____          Federal Bank,  ___ F.2d  ___, ___ (1st  Cir. 1991)  [No. 90-2214,          ____________          slip op.  at 3].  We, like  the district court, are  bound by the          principle that a civil complaint seeking money damages should not          be jettisoned for failure to  state an actionable claim unless it                                        ____________________               1Roth's action  was originally brought against  a government          official, Anne Harlan.  On  motion, the United States was substi-          tuted as  party  defendant pursuant  to  28 U.S.C.     2679(d)(1)          (1988).    The plaintiff  has  not  appealed  from the  order  of          substitution.  In any event, the matters complained of   Harlan's          statements  and actions,  described  infra     were  sufficiently                                               _____          workplace-related  that, even without  the order of substitution,          dismissal  would have been appropriate on preemption grounds, for          essentially the reasons stated infra.   See, e.g., Bush v. Lucas,                                         _____    ___  ____  ____    _____          462 U.S. 367,  388-90 (1983) (holding constitutional  tort action          against supervisor to be preempted under Civil Service Reform Act          of 1978); Berrios v. Department of the Army, 884 F.2d 28, 32 (1st                    _______    ______________________          Cir.   1989)   (holding  state-law   defamation   claims  against          supervisors to be likewise preempted); Broughton v. Courtney, 861                                                 _________    ________          F.2d 639, 644 (11th Cir. 1988) (similar).                                          3          plainly  appears that  the plaintiff  can prove  no set  of facts          thereunder which would entitle her to  recover.  Id. at ___ [slip                                                           ___          op. at 3-4], citing Conley v. Gibson, 355 U.S. 41,  45-46 (1957).                              ______    ______          In performing the requisite tamisage and assessing sufficiency, a          court  must  accept  as true  the  complaint's  well-pled factual          averments,  excluding,  however, "bald  assertions,  periphrastic          circumlocutions,   unsubstantiated   conclusions,   or   outright          vituperation."   Correa-Martinez v. Arrillaga-Belendez,  903 F.2d                           _______________    __________________          49, 52 (1st  Cir. 1990).  At  the same time, the  court must draw          all inferences reasonably  extractable from the pleaded  facts in          the manner  most congenial to  the plaintiff's theory.   Miranda,                                                                   _______          ___ F.2d  at ___ [slip op.  at 2]; Dartmouth  Review v. Dartmouth                                             _________________    _________          College, 889 F.2d 13, 16 (1st Cir. 1989).  In the  last analysis,          _______          a plaintiff  is obliged  to set forth  in her  complaint "factual          allegations,  either  direct  or   inferential,  respecting  each          material  element  necessary  to   sustain  recovery  under  some          actionable legal  theory."  Gooley  v. Mobil Oil Corp.,  851 F.2d                                      ______     _______________          513, 515 (1st  Cir. 1988).   If she has  succeeded in this  task,          dismissal will not lie under Rule 12(b)(6).                                         II.                                         II.                    The  plaintiff's complaint  was brought in  two counts,          both growing  out of the  same nucleus of  operative facts.   One          count sought  money damages.   The other count  sought injunctive          relief.  We hold that, to the extent the suit is still live,  see                                                                        ___          infra note 2, it is preempted by the Civil Service Reform  Act of          _____          1978, Pub. L.  No. 95-454, 92 Stat. 1111  (1978) (CSRA), codified                                          4          in various sections of 5 U.S.C.                                           A.                                          A.                                          __                    At all  times material  hereto, Roth  served as  Branch          Manager,  Labor  Relations,  in  the  Burlington,  Massachusetts,          office  of  the  Federal  Aviation  Administration  (FAA).    The          situation of  which she complains  arose out of actions  taken by          her  supervisor,  Anne   Harlan,  the  FAA's   Division  Manager.          According to Roth,  Harlan bore a grudge against  her dating back          to 1977   a  grudge stemming from an incident  that occurred when          both  women were  working in  the private  sector.   Roth averred          that,  once  fate  reunited  the  two women,  this  time  as  FAA          officials,  Harlan became  a constant  thorn  in her  side.   The          relationship  hit rock bottom  in the 1989-1990  time frame, when          the  FAA considered discharging an employee named Richard Fontes.          Roth was involved  in the termination  proceedings.  She  alleged          that,  thanks  to  Harlan,  the  proceedings  took  on  a  highly          irregular   cast;  that   Fontes'   constitutional  rights   were          imperilled; that Harlan attempted to enlist Roth's cooperation in          a  wholly improper  course  of conduct;  that  Roth's refusal  to          knuckle  under enraged  Harlan;  and  that  Harlan  proceeded  to          complain  loudly,   openly,  and   unfairly   about  Roth's   job          performance.   In Roth's  view, these  slurs caused  her grievous          harm.  Believing Harlan's utterances and associated conduct to be          actionable, Roth sued for damages.2                                        ____________________               2Roth  also  asked   that  the  district  court   issue  "an          injunction  prohibiting [Harlan] from taking any action to coerce          [Roth] into violating the Constitution and/or laws  of the United                                          5                                          B.                                          B.                                          __                    The CSRA was meant to provide a comprehensive framework          for personnel policies  governing federal employees.  See Saul v.                                                                ___ ____          United States, 928  F.2d 829, 833 (9th Cir. 1991), citing S. Rep.          _____________          No.  969, 95th  Cong.,  2d  Sess. 3,  53  (1978); Montplaisir  v.                                                            ___________          Leighton, 875 F.2d 1, 3  (1st Cir. 1989).  In the course  of that          ________          endeavor, Congress set out procedures for challenging "prohibited          personnel practices."  5 U.S.C.   2302.  The prohibited personnel          practices  covered by the  CSRA include "personnel  actions" that          transgress  the  law's  merit system  principles     merit system          principles  which  require  the federal  sovereign  to  treat its          employees  fairly  and  shield  them  from   capricious  actions,                                        ____________________          States and/or  the rules of the FAA,  and to remove [Harlan] from          her  position as  Division Manager  to prevent  her from  further          violations of the constitutional rights of employees of the FAA."          After filing suit, however, Roth resigned from the FAA, effective          June 7,  1991.   Her quest for  injunctive relief  is, therefore,          moot;  from June  7  forward, she  had  no further  stake in  the          agency's operation and "lack[ed] a legally cognizable interest in          the outcome."  Powell v. McCormack, 395 U.S. 486, 496 (1969); see                         ______    _________                            ___          also Steffel  v. Thompson,  415 U.S. 452,  459 n.10  (1974) ("The          ____ _______     ________          rule  in federal  cases is  that  an actual  controversy must  be          extant at  all  stages of  review,  not merely  at the  time  the          complaint  is filed.").   Since Roth  is no  longer in  the FAA's          employ,  any  attempts to  pressure  her  to  act in  illegal  or          unconstitutional  ways   would  be   pointless.     Thus,  Roth's          resignation quelled any  "reasonable expectation .  . . that  the          alleged violation will  recur."  County of Los  Angeles v. Davis,                                           ______________________    _____          440  U.S. 625, 631 (1979).   Moreover, while Roth can continue to          pursue  her claim  for damages caused  by Harlan's  past conduct,          accepted principles of standing  foreclose her, now that she  has          become a private citizen, from  maintaining a suit to oust Harlan          or curb Harlan's excesses in order to protect others or vindicate          the public weal.  See, e.g.,  Warth v. Seldin, 422 U.S. 490,  499                            ___  ____   _____    ______          (1975)  ("[T]he plaintiff  generally must  assert  his own  legal          rights  and interests, and cannot rest his claim to relief on the          legal   rights  or  interests  of  third  parties.");  Gordon  v.                                                                 ______          Crouchley, 554 F. Supp. 796, 798 (D.R.I. 1982) (similar).          _________                                          6          personal vendettas, favoritism, and the like.  See Saul, 928 F.2d                                                         ___ ____          at 833.  The thrust of Roth's allegations is that the combination          of  Harlan's aspersions and  conduct demeaned Roth  and subjected          her to arbitrary action.  Thus, the threshold question is whether          Harlan's  antics, as  Roth  portrayed them,  would  qualify as  a          prohibited  personnel practice  within  the contemplation  of the          CSRA.3                    Under the  CSRA, personnel actions  include "corrective          actions[s]."   5  U.S.C.    2302(a)(2)(A)(iii).   The  corrective          action category is  a capacious one, encompassing  a wide variety          of conduct  affecting federal employees.   See Saul, 928  F.2d at                                                     ___ ____          834.     The  slanderous  utterances  that  Roth  bemoans,  while          allegedly  untrue, nevertheless  concerned  her job  performance.          Those comments reflected  a profound disagreement  between Harlan          and   Roth  about  the   manner  in  which   Fontes'  termination          proceedings    and, perhaps, termination proceedings  generally            should  appropriately  be  conducted.     Harlan's  behavior,  as          described  in  the complaint,  to  the extent  that  Roth retains          standing  to pursue  it, see  supra  note 2,  was similarly  job-                                   ___  _____          related.  In sum, an objective assessment of the complaint leaves          no  doubt that  Roth was  attempting to  sue over  utterances and          associated  acts which  reflected dissatisfaction  with  her work          within the FAA and which focused upon substantial conflicts anent          agency policy and  procedures.  For  CSRA purposes, then,  Roth's                                        ____________________               3Roth has  not questioned the  applicability of the  CSRA to          federal employees of her rank and type.                                           7          complaint, no matter  how generously it might be  read, alleged a          prohibited  personnel  practice,  that  is,  a  personnel  action          violative of the merit principles.  Accord Saul, 928 F.2d at 834.                                              ______ ____                    This  conclusion  sounds  the  death  knell for  Roth's          statement of claim.   It is now beyond  serious question that the          CSRA  preempts  state-law   challenges  to  prohibited  personnel          practices in the federal workplace.  See Berrios v. Department of                                               ___ _______    _____________          the  Army, 884 F.2d 28,  32 (1st Cir.  1989) (holding that, where          _________          the  CSRA pertains,  defamation claims  touching upon  prohibited          personnel  practices are preempted);  Montplaisir, 875 F.2d  at 8                                                ___________          (holding former government employees' private tort action against          union lawyers to be preempted by "the comprehensive nature of the          [CSRA's]  remedial scheme"); Broughton v. Courtney, 861 F.2d 639,                                       _________    ________          643 (11th Cir. 1988) ("If plaintiff's state  law claims . . . are          within the scope  of the coverage of  the CSRA, then the  actions          are  preempted  by  the CSRA.").    As we  stated  on  an earlier          occasion:                    The   legislative   history   of   the   CSRA                    establishes  beyond  dispute   that  Congress                    intended that statute to provide an exclusive                    procedure for  challenging federal  personnel                    decisions.  . . .  "The history and intent of                    the CSRA  plainly prefigures  that collateral                    district court jurisdiction  would impede the                    ideals  of  fast,  efficient  management  and                    greater  uniformity  in the  judicial  review                    process."          Berrios, 884  F.2d at 31-32  (quoting Tucker  v. Defense  Mapping          _______                               ______     ________________          Agency, 607 F. Supp.  1232, 1240 n.6 (D.R.I. 1985)).   It follows          ______          inexorably that Roth's claim is preempted.                                          8                                          C.                                          C.                                          __                    To this  point, the  drill is  straightforward.   Roth,          however, has a  fallback position.   She says that, in  her case,          administrative  remedies  have  been  almost,  if  not  entirely,          foreclosed by the  bodies from whom she has  sought succor, viz.,          the  Merit  Systems Protection  Board and  its Office  of Special          Counsel (both  citing lack  of jurisdiction).   In addition,  she          points  out that administrative remedies, even if available, make          no provision for damage awards to deserving complainants.                      The short answer  to these assertions is  that they are          nihil ad  rem.   As  to Roth's  complaint about  the  lack of  an          _____ __  ___          accessible administrative  mechanism,  we agree  with  the  Ninth          Circuit that, even where the  CSRA provides no guaranteed  forum,          "preemption of  . .  . work-related tort  claims is  necessary to          fulfill congressional  intent."   Saul, 928 F.2d  at 843.   As to                                            ____          Roth's grievance concerning the  unavailability of damage awards,          Montplaisir  controls.   There,  in  addressing a  near-identical          ___________          remonstrance, we  responded:   "That injured  employees might  be          left without a  means of recovering money damages  is a necessary          consequence of the [comprehensive nature of the CSRA].  Congress,          in  its wisdom,  was  fully  entitled  to  prefer  administrative          enforcement to civil trials."  Montplaisir, 875 F.2d at 5.                                           ___________                    We  will not  paint  the  lily.   We  suggest that  the          Supreme Court, in its landmark decision  construing the CSRA, has          itself provided a  powerful refutation  of Roth's  lack-of-remedy          argument:                                          9                    The  question is  not what  remedy  the court                    should  provide  for   a  wrong  that   would                    otherwise go  unredressed. It  is whether  an                    elaborate  remedial  system   that  has  been                    constructed  step   by  step,   with  careful                    attention      to     conflicting      policy                    considerations,  should be  augmented by  the                    creation  of a  new judicial remedy  . .  . .                    That  question obviously  cannot be  answered                    simply  by noting  that existing  remedies do                    not   provide   complete   relief   for   the                    plaintiff.   The  policy  judgment should  be                    informed by  a thorough understanding  of the                    existing   regulatory   structure   and   the                    respective  costs  and  benefits  that  would                    result from the addition of another remedy. .                    . .          Bush v. Lucas, 462 U.S. 367,  388 (1983).  On the basis of  Bush,          ____    _____                                               ____          as  explicated in Berrios, Montplaisir, and  Saul, we find Roth's                            _______  ___________       ____          lamentations  about  the  inadequacies  of administrative  relief          under the CSRA to be an exercise in irrelevancy.                                         III.                                         III.                    Since civil service reform became a legislative reality          in  1978, the Supreme  Court "has jealously  guarded CSRA against          inconcinnous judicial incursions."   Montplaisir, 875 F.2d  at 3;                                               ___________          accord Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991)          ______ ______    _____________          (stating that  "Congress's purpose  in enacting  the CSRA  was to          channel  grievances  and  disputes  arising  out  of   government          employment  into a single system of administrative procedures and          remedies").   We  are  obliged to  do no  less.   Considering the          CSRA's  breadth and the  comprehensive, integrated nature  of its          remedial scheme, we believe  the field is rather  fully occupied,          leaving  little,  if  any,  room  for  state-law  tort  anodynes.          Indeed, "[p]erforming the  requisite analysis . . .  leads to the                                          10          inescapable conclusion that Congress  intended to preempt  state-          law tort actions."  Montplaisir, 875 F.2d at 5.                              ___________                    We need go no further.  In general, a federal employee           whose position comes within CSRA's reach may seek redress for the          untoward  effects of a prohibited personnel practice only through          the panoply of  remedies that CSRA itself affords.   Roth's case,          as  she  has  stated  it,  is  completely  engulfed  within  this          generality.4          Affirmed.            Affirmed.          ________                                        ____________________               4In  view of  our disposition  of this  matter, we  need not          consider  the  government's  alternative  asseveration  that  the          plaintiff's complaint, insofar  as it seeks an  award of damages,          is  also  barred  under   the  Federal  Tort  Claims   Act,  more          specifically, 28 U.S.C.   2680(h) (precluding maintenance against          the  federal  sovereign of  "[a]ny  claim arising  out  of .  . .          slander").   By the same token, it would be supererogatory for us          to decide the  plaintiff's motion to supplement  the record; with          or without supplementation, the show has closed.                                          11
