Case: 15-30347   Document: 00513331479     Page: 1   Date Filed: 01/06/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 15-30347                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
THOMAS R. TUBESING,                                             January 6, 2016
                                                                 Lyle W. Cayce
             Plaintiff - Appellant                                    Clerk

v.

UNITED STATES OF AMERICA,

             Defendant - Appellee




                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before PRADO, SOUTHWICK, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Thomas Tubesing (“Tubesing”) appeals the district court’s dismissal of
his claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)
and 2671 et seq. The district court found that it lacked subject-matter
jurisdiction based upon its conclusion that Tubesing’s FTCA claims were
precluded by the Civil Service Reform Act of 1978 (“CSRA”), Pub. L. No. 95-
454, 92 Stat. 1111 (codified as amended at 5 U.S.C. § 1101 et seq.). We
AFFIRM.
                                    I.
      In October 2003, Tubesing began employment with the United States as
a contract employee in the Division of the Strategic National Stockpile, a
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subset of the Centers for Disease Control and Prevention (“CDC”). Within a
year, Tubesing was transferred to the Division’s Program Preparedness
Branch and assigned to work as a Public Health Advisor in Louisiana.
      On December 10, 2006, Tubesing was hired as a full-time federal
employee, and later received a promotion on April 15, 2007. With the
promotion, Tubesing agreed to move from Atlanta to Baton Rouge to work
exclusively on Louisiana’s bio-terrorism preparedness program. Shortly after
arriving in Baton Rouge, Tubesing allegedly discovered and subsequently
reported what he considered “substantial and specific dangers” to public
health. Tubesing was terminated on December 7, 2007.
      After his termination, Tubesing appealed to the Merit Systems
Protection Board (“MSPB”) with claims that his firing was in retaliation for
reporting the perceived public health threats. On November 25, 2008, an
administrative law judge found in Tubesing’s favor and ordered he be restored
to his status quo ante position, retroactive to December 7, 2007, by January 19,
2009. Tubesing was placed back on the CDC payroll by January 9, 2009, but
alleges that other issues—including administrative leave removal, job
restoration, back pay, contributions, and health insurance—remained.
Aggrieved that he had not been adequately restored to his status quo position,
Tubesing filed a petition for enforcement with the MSPB on January 21, 2009.
An administrative law judge again found for Tubesing, and the MSPB affirmed
the judge’s ruling.
      Tubesing asserts that in relation to his reports of public health threats,
his termination, and his appeals and petitions, the CDC never fully restored
him to his position and took various other adverse actions against him.
      On October 9, 2014, Tubesing filed suit against the United States under
the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671 et seq.,
alleging that his employers’ actions constituted numerous torts, including
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fraud and intentional infliction of emotional distress. In response, the United
States moved to dismiss Tubesing’s claims pursuant to Fed. R. Civ. P. 12(b)(1)
on December 30, 2014. On March 24, 2015, the district court granted the
United States’ motion and dismissed Tubesing’s claims. This appeal followed.
                                       II.
      The question before us is whether Tubesing can proceed under the FTCA
to seek redress for his employment-related claims; or, as the district court
determined, Tubesing’s FTCA claims are precluded by the CSRA because they
fall within the statute’s intended reach. Tubesing argues that the CSRA
applies only to “personnel decisions” that are specifically listed in the statute,
such as “a promotion” or “a reinstatement.” Our review of the statute and
applicable law, however, leads us to conclude that Tubesing’s claims are
covered under the CSRA.
                                       III.
      The CSRA includes an elaborate framework for evaluating adverse
personnel action against federal employees. Rollins v. Marsh, 

,
137 (5th Cir. 1991) (citing United States v. Fausto, 

(1988)). This
framework aims to provide “an integrated scheme of administrative and
judicial review, designed to balance the legitimate interests of the various
categories of federal employees with the needs of sound and efficient
administration.” 

23 of the CSRA—the portion of the
CSRA most relevant to this case—prohibits certain personnel practices and
establishes merit-system principles that govern civil-service employment. 

principles include treating employees fairly and equitably
and “with proper regard for their privacy and constitutional rights.” 

practices include the taking of any ‘personnel action’
that violates merit-system principles.” 

further provides federal
employees with remedies against prohibited personnel practices, remedies that
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include staying or correcting the practice and seeking disciplinary action
against the offenders. 

in Rollins v. Marsh, considered whether two federal
employees’ claims against the United States for constitutional and privacy
violations were precluded by statutory remedies provided by the CSRA. 

The Rollins plaintiffs sought relief under the FTCA, stemming from their
claim of improper suspension from federal employment after submitting nude
photographs for publication. 

Recognizing that “the CSRA remedies
[are] the comprehensive and exclusive procedures for settling work-related
controversies between federal civil-service employees and the federal
government,” we affirmed the district court’s dismissal of the Rollins’ claims
because their available remedies under the CSRA precluded recovery under
the FTCA. 

(citing Bush v. Lucas, 

(1983) and 

)). In consideration of the CSRA’s purpose, we refused “to
permit FTCA claims to supplant the CSRA’s remedial scheme [or] to defeat
[the statute’s] purpose.” 

(citing Rivera v. United States, 

,
951 (9th Cir. 1991)).
      The Ninth Circuit has also held, in certain instances, that actions
brought by federal employees under the FTCA are precluded by the CSRA.
Those decisions—which turned on a critical examination as to whether the
respective plaintiffs’ claims fit within the prohibited personnel practices and
employment-related issues covered by the CSRA—are particularly illustrative
in this matter.
      In Lehman v. Morrissey, 

(9th Cir. 1991), Joan Lehman
brought several employment-related claims, including a claim for intentional
infliction of emotional distress, against her former supervisors in the United
States Forest Service and the United States. Upon review of the kinds of
activities complained of by Lehman, the Ninth Circuit determined that the
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FTCA claims were preempted by the CSRA; thus, Lehman’s remedies were
covered by the statute. 

That court further noted that Lehman’s
claims involving lack of effective training, obstruction of her ability to compete,
and interference with the merit system were specifically prohibited by the
CSRA. 

Thus, the Ninth Circuit affirmed the judgment of dismissal,
as “[the CSRA] provided Lehman’s sole recourse.” 

      Four years later, the Ninth Circuit held that a plaintiff’s claims—
including rape and sustained physical sexual abuse—could go forth under the
FTCA because they were not preempted by the CSRA. Brock v. United States,

(9th Cir. 1995). In allowing the plaintiff to pursue her claims
under the FTCA, the Ninth Circuit recognized the CSRA’s broad purpose and
preemptive effect, but determined that “[the defendant’s] rape and continued
physical sexual abuse of [the plaintiff] fit[] no category of personnel actions
listed in § 2302(a)(2).” 

In distinguishing Lehman, the Brock court
cautioned that its ruling resulted from the specifics of that case. 

Thus, “because the alleged rape and physical abuse d[id] not involve personnel
actions and was not perpetrated with respect to the supervisor’s authority, the
CSRA d[id] not preempt Brock’s FTCA claim.” 

CSRA clearly and categorically includes the specific activities and
claims of which Tubesing complains. Here, Tubesing, a federal employee, lists
a multitude of perceived agency infractions in furtherance of his FTCA claims.
Tubesing, for example, alleges:
     Agency officials conspired to and did sabotage [his] ability to
     accomplish his job duties and objectives, and schemed to impede
     the performance of his duties, by requiring him to perform work
     outside his job description, implementing onerous reporting
     requirements, intimidating other employees who cooperated
     with him, shifting blame to him for shortcomings and problems
     caused by others, interfering with his ability to discover pre-
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     existing problems and shortcomings within the state agency,
     making materially false and fraudulent statements and
     representations, falsifying documents, testifying falsely in the
     administrative proceeding following his termination, depriving
     Louisiana citizens of the benefits of good and efficient decision
     making, and committing other negligent and wrongful acts that
     caused [him] to suffer harm, financial losses, and severe
     emotional distress.

     It is clear that all of Tubesing’s claims stem from his employment
relationship with the CDC. It is even more clear that each of Tubesing’s
claims—which directly relate to the relevant § 2302(a) and (b) subsections
describing personnel practices and prohibitions—finds a home within the
larger CSRA framework.
      Section 2302’s prohibited personnel practices broadly cover a number of
violations in an effort to provide examples of the type of claims that may be
subject to employee action. Tubesing’s litany of complaints—including that his
employer sabotaged his ability to accomplish his job duties and objectives,
required him to perform work outside his job description, and blamed him for
mistakes by others—all fall squarely within the CSRA’s sphere. The CSRA’s
reach further extends to Tubesing’s claims involving training, reassignment
and transfer, and changes in working conditions. Hence, because Tubesing is
a federal employee, and due to the nature of his employment-related claims,
the CSRA provides Tubesing’s sole remedy against his employer.
                                        V.
      In an effort to overcome the preclusive effect of the CSRA, Tubesing
points this court to several actions that are not specifically listed as prohibited
personnel practices. According to Tubesing, these actions fall outside the
CSRA’s scope. We disagree. Congress never intended that the CSRA would
cover only those prohibitions expressed therein. Tubesing’s allegations, which


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involve claims that the CSRA is expected to cover, however, clearly fall within
the statute’s confines.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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