Thomas Tubesing v. United States
810 F.3d 330
| 5th Cir. | 2016Background
- Tubesing was a federal employee at CDC (hired 2006; promoted 2007) assigned to Louisiana and terminated on December 7, 2007.
- He reported perceived public-health dangers and claimed his termination/other adverse actions were retaliatory and tied to those reports.
- He appealed to the MSPB; an ALJ ordered reinstatement and the MSPB later affirmed, but Tubesing contends he was not fully restored (pay, benefits, duties, etc.).
- In 2014 Tubesing sued the United States under the FTCA alleging torts including fraud and intentional infliction of emotional distress arising from employment-related conduct.
- The government moved to dismiss for lack of subject-matter jurisdiction, arguing the CSRA provides the exclusive remedy for these employment-related claims; the district court dismissed, and Tubesing appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FTCA claims based on employment-related conduct are barred by the CSRA | Tubesing: CSRA covers only the personnel actions explicitly listed, so his tort claims fall outside CSRA and may proceed under FTCA | U.S.: CSRA’s comprehensive remedial scheme and §2302 prohibit personnel practices cover Tubesing’s allegations, precluding FTCA remedies | Court: CSRA precludes FTCA; Tubesing’s claims fall within CSRA’s scope |
| Whether alleged actions (sabotage, onerous duties, false statements, interference with duties) constitute "personnel actions" under §2302 | Tubesing: some complained-of acts are not specifically listed and thus not covered | U.S.: §2302’s prohibited practices and merit-system principles broadly encompass such employment-related misconduct | Court: These allegations relate to personnel practices and are covered by CSRA |
| Whether CSRA’s remedial scheme is exclusive as to work-related controversies | Tubesing: FTCA should not be displaced for non-listed torts | U.S.: Allowing FTCA would supplant CSRA’s integrated scheme | Court: CSRA’s remedies are exclusive for these employment-related disputes; FTCA cannot supplant CSRA |
Key Cases Cited
- Rollins v. Marsh, 937 F.2d 134 (5th Cir. 1991) (CSRA provides comprehensive, exclusive procedures for work-related controversies; FTCA claims preempted)
- United States v. Fausto, 484 U.S. 439 (U.S. 1988) (CSRA’s framework precludes some judicial remedies for federal employment disputes)
- Bush v. Lucas, 462 U.S. 367 (U.S. 1983) (statutory review schemes can displace constitutional tort claims in employment context)
- Lehman v. Morrissey, 779 F.2d 526 (9th Cir. 1985) (FTCA employment-related claims preempted where CSRA provides sole recourse)
- Brock v. United States, 64 F.3d 1421 (9th Cir. 1995) (distinguishing rape/physical abuse claims as outside §2302 personnel actions, permitting FTCA recovery)
- Rivera v. United States, 924 F.2d 948 (9th Cir. 1991) (CSRA remedies should not be defeated by FTCA claims)