Krafsur v. Davenport et al

Filing 34

MEMORANDUM OPINION AND ORDER, GRANTING: 27 Defendant's MOTION to Dismiss and the plaintiff's Second Amended and Supplemental Complaint will be DISMISSED. Signed by District Judge J Ronnie Greer on 3/5/2013. (FMM, )

UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
GERALD I. KRAFSUR,
Plaintiff,
v.
MICHAEL J. DAVENPORT, individually
and in his official capacity, and the
SOCIAL SECURITY ADMINISTRATION,
Defendants.

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NO. 2:11-CV-170

MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendants’ motion to dismiss plaintiff’s Second Amended
and Supplemental Complaint, [Doc. 27]. Plaintiff has responded in opposition, [Doc. 29],
defendants have replied, [Doc. 33], and the matter is now ripe for disposition. For the reasons which
follow, the motion to dismiss will be GRANTED.
I.Procedural Background
On June 13, 2011, the plaintiff, an administrative law judge (“ALJ”) with the Social Security
Administration (“SSA”) filed his initial complaint, [Doc. 1]. All defendants moved to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), [Doc. 4]. On October 4, 2011,
plaintiff filed an Amended and Supplemental Complaint, [Doc. 13], and defendants again moved
to dismiss, [Doc. 16]. After full briefing on the motion to dismiss, plaintiff was granted leave by
the Magistrate Judge to file a second amended complaint, [Doc. 25], and the Second Amended and
Supplemental Complaint was filed on June 26, 2012, [Doc. 26].
In the pending motion to dismiss, defendants argue the complaint must be dismissed because
(1) the plaintiff’s claims are constitutional tort claims, known as “Bivens claims,” for which federal
agencies and federal officials have not waived sovereign immunity and the Administrative

Procedures Act and the Tucker Act are not applicable to the plaintiff’s “Bivens claims”; (2) the
plaintiff’s claims, including the plaintiff’s claims against the defendant Davenport in his individual
capacity, allege prohibited personnel actions which are preempted by the comprehensive statutory
scheme of the Civil Service Reform Act (“CSRA”); and (3) the plaintiff’s tort claim for intentional
infliction of emotional distress against defendant Davenport in his individual capacity fails because
it is also preempted by the CSRA and because the plaintiff has failed to exhaust his administrative
remedies under the Federal Tort Claims Act.
II.Facts
The following facts, taken from the Second Amended and Supplemental Complaint, are
accepted as true:
The plaintiff, a licensed attorney, is an ALJ for the SSA assigned to SSA’s Region Four field
office in Kingsport, Tennessee. He hears and decides claims for Social Security disability benefits
and conducts hearings in Kingsport, Morristown, Tennessee and Asheville, North Carolina. Krafsur
also decides claims for attorney’s fees by successful claimants. Defendant Michael J. Davenport
(“Davenport”) is the Hearing Office Chief ALJ (“HOCALJ”) for the Kingsport field office.
Krafsur “has been routinely conservative in awarding attorney’s fees in response to fee
petitions” from claimant’s attorneys who have no fee agreement with their clients. The fees are paid
by the claimants and deducted from their disability awards. In September, 2010, Davenport began
pressuring Krafsur to make higher attorney’s fee awards. Krafsur objected to the “illegal” directive
from Davenport “on the grounds that it interfered with his judicial independence.” Davenport then
began to retaliate against Krafsur to punish him for refusing to make higher attorney’s fee awards.
Since 1991, Krafsur had established a pattern of working several hours on some Saturdays

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and after normal office hours during the week to complete his assigned cases. He was not paid
extra, and did not request extra pay, for Saturday and after-hours work. Davenport, in retaliation
for Krafsur’s refusal to grant higher attorney’s fees, directed Krafsur to stop his Saturday and afterhours work, causing Krafsur to “suffer mental and physical distress,” making it more difficult for
him to perform his job duties.
In further retaliation, Davenport began to deny Krafsur’s request for personal “use or lose”
leave, unless he presented the leave request to Davenport in person, contrary to the prior office
practice of placing such request for leave in the timekeeper’s interoffice box. Other ALJs were
allowed to continue the prior practice. Davenport declared Krafsur “AWOL” for approximately 26
hours of requested leave which had not been presented to him personally and accused Krafsur of
being “insubordinate.” As a result of the “unapproved” leave, money was withheld from Krafsur’s
paycheck by Davenport and Krafsur’s available “use or lose” leave hours were reduced to match the
reduction in pay, depriving Krafsur of both pay and leave hours.
In January, 2011, Davenport retaliatorily cancelled hearings Krafsur had scheduled in
Asheville, North Carolina without Krafsur’s agreement. Krafsur was notified of the cancellations
by Davenport by telephone before he drove to Asheville. Krafsur objected that Davenport did not
have the authority to cancel hearings and Davenport “announced” he had done so because of bad
weather. Krafsur was embarrassed by the cancellations.
Krafsur notified the Office of Special Counsel (“OSC”), Davenport and SSA regional
managers by his January 6, 2011 letter of his objection to Davenport’s “illegal and retaliatory
interference with his judicial independence.” Krafsur’s letter advised OSC that he considered
Davenport’s actions to be “constructive and involuntary adverse employment actions” and that SSA

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had not advised him of his appeal rights to the Merit Systems Protection Board (“ MSPB”) as
required by the CSRA. Neither OSC nor SSA responded to Krafsur’s letter and have “stonewalled”
his complaints.
In May, 2011, Davenport “disparaged” plaintiff’s work performance to Region Four
supervisors and “threatened” to deny the plaintiff non-emergency leave if Krafsur did not meet
performance “benchmarks.” Davenport has continued to retaliate against Krafsur by “insisting” that
he present leave requests personally and “threatening” Krafsur with disciplinary action if “he
requests or takes leave without meeting” performance benchmarks which were imposed on plaintiff
but not other ALJs.
Retaliation against plaintiff has continued since the filing of the initial complaint. In July,
2011, the “defendants” altered a leave request slip submitted by Krafsur while Davenport was out
of the office on vacation. The leave request was altered “by a co-conspirator in the retaliation cabal”
to reflect that Krafsur had requested two hours of leave on July 14, 2011, instead of eighteen hours
of leave for July 14 - 18, 2011. As a result, Krafsur was again declared AWOL and one day’s pay
deducted from his next paycheck. When Krafsur advised Davenport after Davenport returned from
his vacation that he had called the Kingsport SSA office on July 18, Davenport accused him of being
a “liar.” Krafsur submitted a duplicate leave request at Davenport’s insistence, which Davenport
then rejected. Davenport subsequently sent plaintiff two letters demanding that Krafsur and
Davenport discuss the July leave situation as if the prior discussion and duplicate leave request had
never occurred. Krafsur requested that the Inspector General investigate the illegal alteration of the
leave request by letter dated August 23, 2011.
In further retaliation, Davenport then misrepresented the July leave situation to Region Four

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supervisors. As a result, Regional Chief ALJ Ollie Garmon (“Garmon”) issued a written reprimand
to Krafsur. Davenport “withheld” from his report to Region Four supervisors that the interim
HOCALJ had approved Krafsur’s request for leave during Davenport’s absence on vacation, that
an SSA employee in the Kingsport office altered the request, that Krafsur and Davenport had
discussed the July leave report in detail when Krafsur returned to the office, and that Davenport had
insisted that Krafsur submit a duplicate leave request. SSA later reimbursed the plaintiff’s AWOL
pay deduction.
Krafsur has suffered further “retaliation” since the filing of his Amended and Supplemental
Complaint. In March, 2012, Krafsur was notified by Garmon that he would be investigating
Krafsur’s disability hearing procedures and conduct. On or about April 12, 2012, Garmon came to
Kingsport and “interrogated” Krafsur for approximately 6.5 hours regarding several of his 2011
disability decisions. The questioning was an effort by SSA to harass and intimidate Krafsur and
“discourage him from continuing to pursue this federal court action.” Garmon instructed Krafsur
to refrain from discussing topics involving the SSA.
On May 10, 2012, Davenport placed Krafsur on paid administrative leave and began
reassigning Krafsur’s disability cases to other ALJs. Krafsur was ordered to turn over all case files.
When Krafsur telephoned Garmon later on May 10, Garmon confirmed that Krafsur had to return
his files to the Kingsport office. Krafsur did as directed. During a telephone conference, Garmon
directed Krafsur to clean out his office, turn in his government identification and certification
documents, and to remain at his residence until further notice. Defendants’ actions effectively
removed Krafsur from his ALJ position without affording him any administrative civil service
remedies.

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Krafsur seeks injunctive relief, compensatory and punitive damages against Davenport, and
compensatory damages against SSA “not to exceed $10,000.00.”
III.Standard of Review
A.

Rule 12(b)(1)

Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(1) where the court
lacks subject matter jurisdiction over a plaintiff’s claim. Fed. R. Civ. P. 12(b)(1). If a Rule 12(b)(1)
motion challenges the court’s subject matter jurisdiction based on the sufficiency of the pleadings’
allegations, the motion is a facial attack. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).
In reviewing a Rule 12(b)(1) facial attack, the court must accept all material allegations as true and
construe them in a light most favorable to the non-moving party. Id. The defendants here raise a
facial challenge to the Second Amended and Supplemental Complaint.
B.

Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, plaintiff’s complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 1949 (citing Twombly, 550 U.S. at 556). Furthermore, the plaintiff must provide in
the claim “more than an unadorned, the – defendant– unlawfully– harmed– me accusation.” Id.
(citing Twombly, 550 U.S. at 555).

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IV.Analysis and Discussion
As noted above, defendants essentially argue two broad bases in support of their motion to
dismiss: (1) Sovereign immunity, and (2) preemption by the CSRA.
A.

Sovereign Immunity

“It is axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.” Munaco v. United States, 522 F.3d 651, 65253 (6th Cir. 2008) (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). In other words,
“the United States cannot be sued at all without the consent of Congress.” Block v. N.D. ex. rel Bd.
of Univ. and Sch. Lands, 461 U.S. 273, 287 (1983). Sovereign immunity “extends to the agencies
of the United States” or “federal officers [acting] in their official capacities.” Whittle v. United
States, 7 F.3d 1259, 1262 (6th Cir. 1993); Robinson v. Overseas Military Sales Corp., 21 F.3d 502,
510 (2d Cir. 1994). The plaintiff has the burden of proving jurisdiction in order to survive a motion
to dismiss premised on lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
A waiver of sovereign immunity may not be implied and exists only when Congress has expressly
waived immunity by statute. United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992).
Although the Second Amended and Supplemental Complaint is a somewhat rambling, often
repetitious, 24-page document, making it difficult to discern the exact contours of plaintiff’s claims,
the plaintiff characterizes his claim here as “a Bivens claim against defendant Davenport because
his attempted interference with the plaintiff’s judicial independence and his subsequent pattern and
practice of retaliation have been committed under color of federal law,” [Doc. 26, ¶ 21]. In his
memorandum in opposition to the motion to dismiss, plaintiff further characterizes his claims against
SSA and Davenport in his official capacity as claims premised on Krafsur’s “federal statutory right

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of quasi-judicial decisional independence” created by the Social Security Act and the Administrative
Procedures Act.
1.

Bivens-Claims Against SSA andDavenport in his Official Capacity

The defendants first assert that plaintiff may not bring a Bivens action against the
SSA or Davenport in his official capacity, citing F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994) and
Salt Lick Bancorp v. F.D.I.C., 187 Fed. App’x 428 (6th Cir. 2006). In his response, plaintiff
apparently concedes as much, acknowledging that his Bivens claim is only against Davenport
individually. In any event, defendants are correct. To the extent Krafsur is asserting Bivens-type
claims against SSA, a federal agency, or Davenport in his official capacity, these claims are
DISMISSED because SSA and Davenport are immune from suit and the Court lacks jurisdiction.
2.

Waiver of Sovereign Immunity?

As noted above, the plaintiff must demonstrate that sovereign immunity has been
waived; otherwise, the plaintiff’s claims must be dismissed for lack of subject matter jurisdiction.
Reetz v. United States, 224 F.3d 794, 795 (6th Cir. 2000). Plaintiff identifies two federal statutes
in his complaint which he argues waive sovereign immunity--the Administrative Procedure Act
(“APA”), 5 U.S.C. § 702 et seq. and the Tucker Act, 28 U.S.C. § 1346. The APA, he claims,
“waives the sovereign immunity of federal agencies, including the Social Security Administration[,]
for a federal civil action based on federal statutes which seek equitable and injunctive relief.” The
Tucker Act, he alleges, “waives the sovereign immunity of the United States for civil actions for
non-tort unliquidated damages based on federal statutes . . .” [Doc. 26, ¶ 2]. Neither of these federal
statutes, responds the defendants, constitute an express waiver of sovereign immunity for plaintiff’s
claims against SSA or Davenport in his official capacity.

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The APA provides, in part:
A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning
of a relevant statute, is entitled to judicial review thereof. An action
in a court of the United States seeking relief other than money
damages and stating a claim that an agency or an officer or employee
thereof acted or failed to act in an official capacity or under color of
legal authority shall not be dismissed nor relief therein be denied on
the ground that it is against the United States or that the United States
is an indispensable party. . . .
5 U.S.C. § 702. The plaintiff, however, misconstrues the relevant provisions of the APA and his
reliance on the Sixth Circuit’s decision in Toledo v. Jackson, 485 F.3d 836 (6th Cir. 2007) is
misplaced. Contrary to plaintiff’s apparent assertion, “the APA does not afford an implied grant of
subject-matter jurisdiction permitting federal judicial review of agency action.” Califano v. Sanders,
430 U.S. 99, 107 (1977); Chelsea Comm. Hosp. v. Michigan Blue Cross Ass’n., 630 F.2d 1131, 1133
(6th Cir. 1980) (holding that the “APA is not an independent basis for jurisdiction.”). While § 702
does not vest subject matter jurisdiction in the court, the APA may operate as a waiver of the defense
of sovereign immunity for non-monetary relief under 28 U.S.C. § 1331, federal question jurisdiction.
Leonard v. Orr, 590 F.Supp. 474, 477 (S. D. Ohio 1984). However, by its terms, the APA
authorizes challenges only to “final agency action for which there is no other adequate remedy in
a court.” 5 U.S.C. § 704; Beamon v. Brown, 125 F.3d 965, 967 (6th Cir. 1997) (“Although the APA
provides a broad waiver of sovereign immunity . . . the waiver is limited . . . . [U]nder the APA, a
federal district court may only review ‘[a]gency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a court.’”). Such statutory waivers of
sovereign immunity are “strictly construed in favor of the United States.” Reed v. Reno, 146 F.3d
392, 398 (6th Cir. 1998).
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The Tucker Act, 28 U.S.C. § 1491, contains a limited waiver of sovereign immunity
for claims against the United States “founded either upon the Constitution, or any act of Congress
or any regulation of an executive department, or upon any express or implied contract with the
United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C.

§ 1491(a)(1). The United States Court of Federal Claims has jurisdiction over such claims. Id. The
so-called “little” Tucker Act, 28 U.S.C. § 1346(a)(2), grants to federal district courts concurrent
jurisdiction to hear these claims for amounts not exceeding $10,000.
The defendants argue that there has been no waiver of sovereign immunity by the
APA for Krafsur’s claims for equitable relief and damages against SSA and Davenport in his official
capacity. Defendants correctly argue that § 702 of the APA does not independently confer subject
matter jurisdiction on the court. They furthermore argue that where a plaintiff alleges that an agency
has taken unlawful personnel actions, the CSRA precludes jurisdiction under the APA or the Tucker
Act.
The plaintiff’s rambling response does not make a coherent argument for subject
matter jurisdiction. He largely relies on Toledo v. Jackson and Nash v. Califano, 613 F.2d 10 (2d
Cir. 1980) (“Nash I”) to provide subject matter jurisdiction. He misreads both cases. Neither deals
with the precise question before the Court. In Toledo v. Jackson, employees brought an action
against the Secretary of the Department of Housing and Urban Development alleging breach of a
collective bargaining agreement. The Sixth Circuit, affirming the district court’s finding of lack of
subject matter jurisdiction, noted that the plaintiffs had “not identified an applicable waiver of
sovereign immunity--by, say, invoking the Administrative Procedure Act, 5 U.S.C. § 702.” 485
F.3d at 840. The case does not hold, as plaintiff appears to assert, however, that the “Sixth Circuit
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Court of Appeals has urged federal employees who file federal court actions for injunctive relief
against their federal agency-employer to utilize the waiver of sovereign immunity provisions” of the
APA or that the APA in fact waives sovereign immunity for such claims, [Doc. 29 at 4].
Likewise, plaintiff’s reading of Nash v. Califano is off the mark. In Nash, the Second
Circuit considered the question of whether an ALJ, asserting a statutory right to decisional
independence, had standing to bring suit for “an allegedly unauthorized regime of monitoring,
evaluation and control” over the ALJ’s decision making. 613 F.2d at 11. Nash I, as defendants
assert, stands only for the narrow proposition that plaintiff had standing to pursue his claims. See
Nash v. Bowen, 869 F.2d 675, 678 (2d Cir. 1989) (Nash II) (“. . . we agree Nash I stands only for
the narrow premise that plaintiff has standing to pursue his claims . . . .”).1 Defendants have not
challenged Krafsur’s standing here and the Second Circuit’s pronouncements shed little light on the
question before the Court.
Despite plaintiff’s obfuscation of the issue, the Court will examine whether the APA
might provide subject matter jurisdiction to the Court for Krafsur’s claims. It might. First of all,
the Sixth Circuit has decided that the waiver of sovereign immunity in § 702 is not limited to cases
brought under the APA but may extend to cases brought under other statutes. United States v. City
of Detroit, 329 F.3d 515 (6th Cir. 2003). In that case, an en banc court held that § 702, providing
for suits against the government for relief “other than money damages” serves as a waiver of
governmental immunity with respect to non-monetary claims, id. at 520-521, unless relief is
forbidden by another statute, id. at 521 (citing Up State Fed. Credit Union v. Walker, 198 F.3d 372,
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As the defendants point out, the district court entered judgment in favor of defendants and dismissed the
plaintiff ALJ’s claim and the Second Circuit affirmed. Nash II, 869 F.2d at 676-77. Because the district court found
for the agency, the Second Circuit expressly declined to decide whether the APA conferred jurisdiction in the case. Id.
at 678.

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375 (2d Cir. 1999) (describing § 702 as a “general waiver” but noting that relief is forbidden if
another statute forbids it)). As a result, the APA waives sovereign immunity for an action stating
a claim against the United States or its officers or employees and seeking relief other than money
damages without concern for whether the case involves “agency action” or “final agency action.”
Renteria-Villegas v. Metro. Gov’t of Nashville and Davidson Co., 2011 WL 4048523, *8 (M.D.
Tenn. Sept., 12, 2011). See also Snyder Computer Systems Inc., v. LaHood, 2010 WL 3167851, *3
(S.D. Ohio August 10, 2010); Muniz-Muniz v. United States Border Patrol, 2012 WL 5197250 (N.D.
Ohio October 19, 2012). Thus, the APA may provide a waiver of immunity for Krafsur’s claim for
injunctive and equitable relief unless another statute precludes judicial review. 5 U.S.C. § 701(a)(1).
Likewise, the Little Tucker Act may provide jurisdiction for Krafsur’s monetary
claim against SSA. The defendants argue otherwise, however, asserting that the language of the Act
only extends concurrent jurisdiction to district courts for contract cases, if the amount sought is less
than $10,000, citing Auction Co. of America v. F.D.I.C., 132 F.3d 746, 749 (D.C. Cir. 1997). The
defendants misread both the District of Columbia Circuit’s holding and the plain language of the
statute. While the statute clearly confers concurrent jurisdiction on district courts and the Court of
Federal Claims for contract cases if the amount sought is less than $10,000, it does not limit
coverage of the Act to contract disputes. The Tucker Act, by its plain terms, governs non-tort claims
against the United States based on “the Constitution, or any act of Congress, or any regulation of
an executive department, or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort . . .” 28 U.S.C. § 1346(a)(2)
(emphasis added).
B.

Preemption by Civil Service Reform Act (“CSRA”)

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Thus, the APA may provide jurisdiction for Krafsur’s demand for non-monetary
injunctive and equitable relief and the Little Tucker Act for his monetary claim unless some federal
statute forbids the relief sought. That is exactly what defendants contend. They specifically allege
that the CSRA precludes jurisdiction under the APA and Tucker Act because the basis for Krafsur’s
claims is alleged wrongful personnel actions for which he has a remedy under the CSRA. Plaintiff
does not argue that Krafsur is not subject to, or that “personnel actions generally” are not within the
scope of, the CSRA’s coverage, but he does argue that the specific actions taken by the defendants
and complained of by Krafsur are outside the scope of the protection afforded by the CSRA and that
this action is not precluded by the CSRA.
The holdings of the United States Supreme Court in United States v. Fausto, 484 U.S.
439 (1998) and of the Sixth Circuit in Fligiel v. Samson, 440 F.3d 747 (6th Cir. 2006) cert. denied,
549 U.S. 1111 (2007) guide and control the Court’s analysis here. In Fausto, the Supreme Court
considered whether an administrative officer in the Department of the Interior Fish and Wildlife
Service had the right to bring an action in the Federal Court of Claims challenging his removal from
his position and seeking back pay under the CSRA (codified and amended in various sections of
Title 5 of the United States Code). Fausto had sought review of his removal with the MSPB which
dismissed his appeal on the grounds that “a nonpreference eligible in the excepted service has no
right to appeal to the MSPB.” Id. at 442. In other words, the Claims Court dismissed Fausto’s
complaint on the grounds that, although it left Fausto with no available remedy in the federal courts,
the CSRA provides the only mechanism for a federal employee to challenge his termination.
The Court of Appeals reversed, Fausto v. United States, 783 F.2d 1020 (Fed. Cir.
1986) and the Supreme Court reversed the Court of Appeals. The Supreme Court found that in

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enacting the CSRA Congress had created an elaborate new framework to replace the pre-CSRA
“patchwork system” with “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.” Id. at 445. The new statute, the Court explained, “prescribes
in great detail the protections and remedies applicable to such [adverse agency] action, including
the availability of administrative and judicial review.” Id. at 443. The precise question framed by
the Supreme Court was “whether that withholding of remedy was meant to preclude judicial review
for those employees, or rather merely to leave them free to pursue the remedies that had been
available before enactment of the CSRA.” Id. at 443-44.
The Court concluded that the CSRA “displays a clear congressional intent to deny
the excluded employees the protections of Chapter 75--including judicial review--for personnel
action covered by that chapter.” Id. at 447.

The Court regarded the statute as reflecting “a

congressional judgment that those employees should not be able to demand judicial review for the
type of personnel action covered by that chapter.” Id. at 448.
In Fligiel, a physician employed by the Veterans Administration (“VA”) sued the
chief of staff at the VA medical center, the VA Deputy Undersecretary for Health, the Secretary of
the VA and the Department of Veterans Affairs seeking damages based on her alleged wrongful
transfer to another VA medical center. She also pursued a Bivens claim based on an alleged Fifth
Amendment violation. The district court claimed jurisdiction pursuant to 28 U.S.C. § 1331, relying
on the Veterans Benefit Act, 38 U.S.C. § 7461 et seq. (“VBA”) and the APA. Relying largely on
Fausto, the Sixth Circuit held that Fligiel could not gain judicial review in reliance on the APA or
the VBA because Congress had precluded review by the passage of the CSRA. Under Fausto, the
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Sixth Circuit said, “Where a comprehensive remedial scheme exists to address agency adverse
actions, and Congress has clearly indicated that no judicial review is available, an individual may
not choose other federal statutory avenues to obtain review.” Fligiel, 440 F.3d at 752 (citing Fausto,
488 U.S. at 455).
The Sixth Circuit noted that it had previously relied on Fausto to deny judicial review
to federal employees governed by the CSRA. Id. at 751. In Leistiko v. Stone, a lieutenant colonel
in the Ohio National Guard who was medically disqualified from aviation service, alleged violations
of his rights under the Constitution, the National Guard Technicians Act, the Rehabilitation Act and
the Veterans Reemployment Rights Act. The Sixth Circuit held that “the logic of Fausto is that his
removal from the technicians position is not subject to judicial review” and the “CSRA [ ]
preclude[s] Leistiko’s right of review under the APA.” Id. at 753-54 (quoting Leistiko v. Stone, 134
F.3d 817, 818, 820 (6th Cir. 1998)). In Harper v. Frank, 985 F.2d 285 (6th Cir. 1993), a postal
worker had no right to administrative or judicial review for her claims that the postal service did not
follow its own regulations when it denied her a promotion. Fligiel, 440 F.3d at 754 n.4. See also
Anderson v. TVA, 221 F.3d 1333 (Table), 2000 WL 924607, *1 (6th Cir. 2000) (the CSRA
“preempts any action arising out of plaintiff’s federal employment and precludes the district court’s
judicial review of such claims.”); Blade v. U.S. Bankruptcy Court, 109 F.Supp.2d 872, 876 (S.D.
Ohio 2008) (“[i]n light of the special relationship between the federal government and its employees,
this Court holds that the presence of a deliberately crafted statutory employment system is a ‘special
factor’ that precludes a Bivens remedy for federal employees.” (citing Moore v. Glickman, 113 F.3d
988 (9th Cir. 1997)); Giesken v. Department of Veterans Affairs, 2007 WL 1287958 (E.D. Mich.
May 2, 2007).

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Every other federal circuit court of appeals to consider the question since Fausto has
come to the same conclusion. See Semper v. United States, 694 F.3d 90 (Fed. Cir. 2012) (noting that
Fausto did not limit its inquiry to employees of the executive branch, but to all “federal employees”
and holding that plaintiff, a probation officer for the District Court of the Virgin Islands, who had
no right of administrative or judicial review under the CSRA, was foreclosed from obtaining judicial
review of his termination by an alternative mechanism, i.e., through an action in the Court of
Federal Claims under the Tucker Act); Weber v. Dept. of Veterans Affairs, 521 F.3d 1061 (9th Cir.
2008) (relying on Fausto, holding that physician’s claim for back pay fell outside the scope of the
APA and the comprehensive statutory scheme for the Veterans Health Administration did not permit
judicial review of plaintiff’s claim); Dotson v. Griesa, 398 F.3d 156 (2d Cir. 2005) (federal
probation officer’s Bivens action precluded by comprehensive remedial scheme of CSRA even
though his grievances were excluded from coverage of CSRA); Graham v. Ashcroft, 358 F.3d 931
(D.C. Cir. 2004) (FBI agent’s suit alleging the FBI failed to abide by its own internal procedures and
regulations during a disciplinary proceeding against him barred by the exclusive remedy of the
CSRA); Pathak v. Dept. of Veterans Affairs, 274 F.3d 28 (1st Cir. 2001) (review of a seven day
suspension of a physician employed by Department of Veterans Affairs precluded because the
CSRA does not provide judicial review of plaintiff’s adverse personnel action); Ayrault v. Pena, 60
F.3d 346 (7th Cir. 1995) (CSRA precluded judicial review in wrongful termination action brought
by student trainee); Stephens v. Dept. of Health and Human Services, 901 F.2d 1571 (11th Cir. 1990)
(“Fausto, [ ] emphatically and conclusively established the preemptive nature of the CSRA.”);
Yokum v. United States Postal Service, 877 F.2d 276 (4th Cir. 1989) (“We agree, then, that ‘[u]nder
Fausto any employee, including one in the postal service, who is not included in the provisions of

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Chapter 75 was intended by Congress not to have the right to judicial review of his dismissal,”
notwithstanding any “statutory or non-statutory” procedural protection which postal employees
“previously may have enjoyed.”); Witzkoske v. United States Postal Service, 848 F.2d 70 (5th Cir.
1988) (“The clear holding of Fausto is that employees excluded from the coverage of Chapter 75
are not entitled to judicial review of adverse personnel decisions.”).
Based on the clear weight of authority, the Court holds that it lacks subject matter
jurisdiction under either the APA or the Tucker Act because this action, arising out of Krafsur’s
federal employment, is precluded by the “comprehensive remedial scheme” established by the
CSRA. It is beyond dispute that Krafsur is subject to the CSRA. ALJs employed by SSA are clearly
civil service2 employees. See Nash I, 613 F.2d at 12.
In an effort to avoid the preclusive effect of the CSRA, Krafsur advances several
arguments. First of all, Krafsur argues that the CSRA affords him protection only for (1) a removal,
(2) a suspension, (3) a reduction in grade, (4) a reduction in pay, and (5) a furlough of 30 days or
less, but does not afford him protection for the actions taken by defendants such as interference with
his statutorily created right of decisional judicial independence, declaring him AWOL or deducting
unapproved leave time from his pay check. In other words, he argues that the CSRA does not permit
him to seek relief from the MSPB for some of the agency actions of which he complains. True
enough, but of no consequence. As the cases make abundantly clear, Krafsur is limited to the
remedies afforded by the CSRA; if Congress has provided for none under the Act, none exist.
Fausto, 484 U.S. 439, 448-49 (“The absence of provision for these employees to obtain judicial

2

The term “civil service” is expressly defined, for purposes of all of Title 5, to include positions in “the
executive, judicial, and legislative branches” of the federal government. 5 U.S.C. § 2101.

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review is not an uninformative consequence of the limited scope of the statute, but rather
manifestation of a considered congressional judgment that they should not have statutory entitlement
to review for adverse action . . .”); Fligiel, 440 F.3d at 752 (“The absence of a provision allowing
judicial review of Fausto’s adverse personnel action in the CSRA was an indication that Congress
did not intend employees to have such a right.”). While Krafsur focuses on the question of whether
defendants actions are of the type for which he is afforded a remedy under CSRA, the proper focus
is on whether the claims arise out of his federal employment relationship with the United States.
See Anderson, supra.
Secondly, Krafsur argues that the failure of SSA to give “plaintiff the adverse
personnel action notices required by 5 CFR § 1201.21 to advise him that he has the right to appeal
to the MSPB” and the fact that OSC has not “complied with the 15-day and 90-day notice provisions
and the investigation obligations” imposed by 5 U.S.C. § 1214 also show that the complained of
actions are “outside the scope” of the CSRA, [Doc. 29 at 13, 14 n.8]. The Court disagrees.
Complaints about SSA’s failure to comply with the procedural requirements of the CSRA may be
made but only in the correct forum, the agency itself, the MSPB, the Court of Claims, not in this
district court. Furthermore, plaintiff’s extensive citation of MSPB opinions simply underscores that
the MSPB is the correct forum. Indeed, one of the decisions Krafsur cites confirms MSPB
jurisdiction over a constructive removal claim based on interference with an ALJ’s decisional
judicial independence. See Doyle v. Dept. of Health and Human Services, 29 M.S.P.R. 170, 174
(1985). Finally, Krafsur appears to argue that the result is somehow different because he is asserting
a federal statutory right of quasi-judicial independence, that he asserts a constitutional claim for
violation of his First and Fifth Amendment rights, and that he is asserting a Bivens-type claim. He
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is mistaken. See, e.g., Leistiko, 134 F.3d at 818, 820 (under Fausto, plaintiff was precluded from
district court review of his asserted claims arising both under the Constitution and various statutes
and holding that “[t]he reasoning of Fausto . . . does not depend on whether constitutional violations
are alleged;” Fligiel, 440 F.3d at 749 (plaintiff’s statutory and Bivens claims precluded). See also
Elgin v. Dept. of Treasury, __ U.S. __, 132 S.Ct. 2126 (2012) (holding that CSRA provided
exclusive avenue to judicial review over constitutional claims). Thus, all of Krafsur’s claims,
whether against the SSA, Davenport in his official capacity or Davenport individually, whether
asserted under statute, the Constitution or otherwise, are precluded by the operation of the CSRA.
C.

Intentional Infliction of Emotional Distress

Finally, the defendants argue that, to the extent plaintiff asserts a claim for intentional
infliction of emotional distress, it is also preempted by the CSRA or, alternatively, barred by the
Federal Tort Claims Act because Davenport’s acts were within the scope of his federal employment
and plaintiff has failed to plead exhaustion of available remedies. Defendants cite to ¶ 41 of
plaintiff’s second amended and supplemental complaint for what appears to be the assertion of a
claim for intentional infliction of emotional distress. Krafsur, in his response, does not respond to
the defendants’ assertion and does not clarify whether he is in fact attempting to make a claim for
intentional infliction of emotional distress. Despite the language used in ¶ 41 of the Second
Amended and Supplemental Complaint, it does not appear to the Court that Krafsur is, in fact,
asserting such claim. To the extent he does, however, the government is correct that such a claim
is preempted by the CSRA which not only preempts Krafsur’s federal claims under the Constitution,
statute and/or regulation but also preempts state law claims. See Rollins v. Marsh, 937 F.2d 134,
140 (5th Cir. 1991) (finding that CSRA preempts state law claims).

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V.Conclusion
For the reasons set forth herein, the defendants’ motion to dismiss, [Doc. 27], will be
GRANTED and plaintiff’s Second Amended and Supplemental Complaint will be DISMISSED.
So ordered.
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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