Unpublished Disposition, 884 F.2d 1394 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 884 F.2d 1394 (9th Cir. 1989)

Jean ANDERSON, Plaintiff-Appellant,v.Richard GREEN, Richard R. Trujillo, Jane Doe Trujillo,Hermilo R. Gloria, and Jane Doe Gloria,Defendants-Appellees.

No. 88-1549.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 14, 1989.Submission deferred March 14, 1989.Resubmitted Sept. 1, 1989.Decided Sept. 1, 1989.



Appellant Jean Anderson filed a lawsuit in Arizona state court against appellees Richard Green, Richard Trujillo, Hermilo Gloria, and the wives of Trujillo and Gloria for infliction of emotional suffering, a state common-law tort. The case was removed to federal district court under 28 U.S.C. § 1442 and dismissed on summary judgment. Anderson timely appeals.

* Anderson is a former employee of the Equal Employment Opportunity Commission (EEOC), where she served as a legal clerk from August 21, 1983, to January 17, 1986. Appellee Green was Anderson's supervisory attorney. Appellee Richard Trujillo was the EEOC Regional Attorney during this period, and appellee Hermilo Gloria was District Director of the EEOC's Phoenix office.

Anderson claims that she suffered emotional distress as a result of appellees' unfair treatment of her in the workplace. She complains generally about an inability to get satisfactory work assignments and support facilities from appellee Green. She also states that Green monitored her actions in an oppressive manner and did not so monitor the actions of the male legal clerks.

Anderson additionally alleges that Green suspended her for three days without pay for leaving her work station, even though an attorney had given her permission. Further, Green suspended her for ten days without pay when she left work early after they had an argument. On January 17, 1986, Green and Trujillo terminated Anderson's employment for excessive absences without leave. These acts, she alleges, constitute negligent and/or reckless and/or intentional infliction of emotional suffering.


The district court dismissed Anderson's sole allegation of infliction of emotional suffering on the basis of absolute immunity.1  We do not address the issue of immunity, but instead affirm the district court's decision on an alternate ground, preemption. See United States v. County of Humboldt, 628 F.2d 549, 551 (9th Cir. 1980).

* In 1978, Congress enacted the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C. (1980 & Supp.1988)), which provides procedures to redress adverse actions and prohibited personnel practices. See Karamanos v. Egger, D.A.R., August 17, 1989, at 10386, 10387 (9th Cir. Agu. 16, 1989). The CSRA established 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." United STates v. Fausto, 108 S. Ct. 668, 672 (1988); see also Lehman v. Morrissey, 779 F.2d 526, 527 (9th Cir. 1985) (per curiam).


Federal law may supersede state law in several different ways. First, Congress is empowered to preempt state law by so stating in express terms. Second, federal law may preempt state law if it conflicts with federal law. Third, congressional intent to preempt state law may be inferred where the scheme of federal regulation in a certain area is sufficiently comprehensive to make reasonable the inference that Congress "left no room" for supplementary state regulation. California Federal Sav. and Loan Ass'n v. Guerra, 479 U.S. 272, 280-81 (1987).

The Ninth Circuit has noted that "in enacting the C.S.R.A. Congress meant to limit the remedies of federal employees bringing claims closely intertwined with their conditions of employment those remedies provided in the statute." Lehman, 779 F.2d at 527-28 (citing Veit v. Heckler, 746 F.2d 508, 509 (9th Cir. 1984)). In Lehman, a federal employee brought a claim for intentional infliction of emotional distress because her supervisor provided her with inadequate information, was unavailable to answer questions, and denied her special training sessions. We held that the CSRA covered her common-law claim and thus was preempted with no alternative remedy. Broughton v. Courtney, 861 F.2d 639, 644 (11th Cir. 1988) (holding that CSRA preempts state-law claims for malicious and conspiratorial interference with employment, as these challenges to personnel actions were within scope of the CSRA); David v. United States, 820 F.2d 1038, 1043 (9th Cir. 1987) (Holding that common-law cause of action for emotional distress is preempted by the CSRA); see also Lehman, 779 F.2d at 526-27.


The essence of Anderson's complaint is her objection to specified personnel practices that she contends impermissibly led to her dismissal. We conclude that her state-law claim for emotional suffering derived from this complaint falls within the CSRA's reach and thus is preempted. The CSRA specifically prohibits the kinds of activities about which she complains. See 5 U.S.C. §§ 2301(b) (2) (employees should receive equitable treatment), 2301(b) (7) (employees should receive effective training and education), 2302(b) (10) (employees should not be discriminated against for conduct which does not adversely affect employee's performance), 7503 (employees may not be suspended for 14 days or less without cause), and 7512 (employees may not be removed without cause).

Anderson's oblique and sole attempt to avoid the impact of our decisions in Lehman and David is unconvincing. She notes that these cases predate Westfall v. Erwin, 108 S. Ct. 580 (1988), apparently arguing that the Court overruled them sub silentio. However, Westfall never addressed the issue of the preemptive force of the CSRA; instead, the question presented in Westfall involved the scope of the absolute immunity doctrine for federal employees. Id. at 582-83. See Sakamoto v. Duty Free Shoppers, LTD., 764 F.2d 1285, 1288 (9th Cir. 1985) (issues lurking in the record that are neither contested nor ruled upon have no precedential value), cert. denied, 475 U.S. 1081 (1986).


Our resolution of the preemption issue makes it unnecessary for us to consider the other claims made on appeal. The district court's dismissal order is



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by the Ninth Circuit Rule 36-3


This court reviews the grant of summary judgment de novo. Lang v. Great Falls School Dist., 842 F.2d 1046, 1048 (9th Cir. 1988)