1 Pursuant to 5th Cir. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5th Cir. R. 47.5.4.

1

United States Court of Appeals

Fifth Circuit

FILED

December 28, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

______________________

No. 05-10716

______________________ 

KAN PLASAI,

Plaintiffs-Appellant

versus

NORMAN Y. MINETA, SECRETARY, DEPARTMENT OF

TRANSPORTATION; MICHAEL C. MILLS; THOMAS E. STUCKEY; JAY

LAFLAIR; PETER J KERWIN; In their individual and

professional capacities,

Defendants-Appellees

___________________________________________________ 

Appeal from the United States District Court for

the Northern District of Texas, Dallas Division

3:04-CV-1477

___________________________________________________ 

Before GARWOOD, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:1

Kan Plasai appeals from the summary judgment in

favor of the defendants on her Bivens claim and her

state law claim for intentional infliction of emotional

distress. We affirm.
2 The FAA Standards of Conduct prohibit employees from

“[d]ivulg[ing] any official information obtained through or in

connection with their Government employment to any unauthorized

person. FAA HRPM § 4.1.4(a). Plasai was investigated for breaching

that standard.

2

I.

Kan Plasai worked for the Federal Aviation

Administration (“FAA”) as a computer security

specialist, responsible for, inter alia, administering

the network, upgrading equipment, and ensuring system

conformity. In early 2003, Plasai suspected that Melissa

Kerwin, a receptionist, had been using her work computer

to access personal email and online chat rooms. Melissa

Kerwin is the daughter of Peter Kerwin, an FAA

administrator in the agency’s Fort Worth regional

office. Plasai did not report her suspicions, but rather

copied emails from Melissa’s computer and took them home

to her husband, a self-employed contractor. Her husband

then notified Peter Kerwin of the unauthorized use via

email. Peter Kerwin forwarded the email to his division

manager, who began a formal investigation into both

Melissa Kerwin’s and Kan Plasai’s actions.2

During the investigation, the FAA confiscated and

retained Plasai’s work computers for four weeks. As a
3

result, she had to work overtime to meet federal

software deployment deadlines. While still under

investigation, Plasai found that two other FAA employees

had reconfigured their computers in violation of agency

policy. When she reported those findings to Michael

Mills, her supervisor, she was accused of “snooping

around;” Plasai cites this accusation as further

evidence of humiliating, discriminatory conduct meant to

“drive her from her job.” Shortly after this second

incident, Plasai’s husband confronted one of the two

employees. Plasai was placed on administrative leave,

without a hearing nor any other opportunity to challenge

her suspension. 

Plasai exhausted her administrative remedies and

then brought suit in federal district court claiming

discrimination based on race and national origin under

Title VII (42 U.S.C. § 2000e-16, et seq.) against Norman

Mineta, Secretary of Transportation. In a separate

complaint, she sued Norman Y. Mineta; Michael C. Mills,

her immediate supervisor; Thomas E. Stuckey, and Peter

J. Kerwin, both FAA administrators in the Fort Worth
3 “Under 28 U.S.C. § 636(c)(1), a district court, with the

voluntary consent of the parties, may authorize a magistrate

[judge] to conduct proceedings and enter final judgment in a case;

such judgment is then appealable to the circuit court directly.”

Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir. 1984). 

4 Although defendants submitted a “motion to dismiss”, the

magistrate judge treated it as a motion for summary judgment

because the motion relied on matters outside the pleadings for

support.

4

regional office; and Jay LaFlair, an FAA investigator.

She alleged a civil rights violation under Bivens v. Six

Unknown Agents of the Federal Bureau of Narcotics, 403

U.S. 388 (1971); and negligence and intentional

infliction of emotional distress under Texas state law.

The parties to both complaints waived their right to

proceed before a district court judge and agreed to

trial before a magistrate judge pursuant to 28 U.S.C. §

636(c).

3 Shortly thereafter, the two cases were

consolidated into the present suit. 

Defendants moved to dismiss plaintiff’s Bivens and

state law claims.4 The magistrate judge decided that all

claims but the Title VII claims were preempted by the

Civil Service Reform Act (“CSRA”), Pub.L.No. 95-454, 92

Stat. 1111 (1978). The magistrate judge held, in the

alternative, that plaintiff failed to establish the
5 Plasai does not challenge the dismissal of her state law

negligence claims.

5

violation of a federally protected right sufficient to

sustain a Bivens claim. Accordingly, the magistrate

judge granted the motion to dismiss the Bivens and state

law claims. Plasai timely appealed the magistrate

judge’s dismissal of the Bivens claim and her claim

under state law for intentional infliction of emotional

distress.5 Because we agree that Plasai has not

established the violation of a federally protected

right, and that the magistrate judge correctly

determined that the CSRA preempts her state law claim

for intentional infliction of emotional distress, we

affirm the dismissal.

II.

We review the magistrate judge’s summary judgment

ruling de novo. See Lockette v. Greyhound Lines, Inc.,

817 F.2d 1182, 1185 (5th Cir. 1987) (“[T]his court

applies the same standard of review to the findings and

conclusions of the magistrate that we would apply to a

decision of the district court.”) and Hanks v.
6

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997

(5th Cir. 1992) (“This court reviews the grant of

summary judgment motion de novo, using the same criteria

used by the district court in the first instance.”).

Summary judgment is appropriate where the record shows

"that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a

matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). Facts and inferences

reasonably drawn from those facts should be taken in the

light most favorable to the non-moving party. Eastman

Kodak Co. v. Image Technical Services, Inc., 504 U.S.

451, 456 (1992); Huckabay v. Moore, 142 F.3d 233, 238

(5th Cir. 1998). Where the non-moving party fails to

establish "the existence of an element essential to that

party's case, and on which that party will bear the

burden of proof at trial," no genuine issue of material

fact can exist. Celotex, 477 U.S. at 322-3. 

III.

On appeal, Plasai asserts three points of error: 1)
7

that the district court incorrectly determined that her

Bivens claim failed to allege the violation of a

federally protected right; 2) that the district court

incorrectly determined that her Bivens claim was

preempted by the CSRA; and 3) that the district court

incorrectly determined that her state law claim for

intentional infliction of emotional distress is

preempted by the CSRA. 

A. Plasai’s Bivens claim does not assert a violation of

a federally protected right.

Plasai claims that the government’s search and

seizure of her work computer constituted a civil rights

violation under Bivens v. Six Unknown Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971). On

appeal, she argues that the government interfered with

her constitutional right to prevent the “possible

criminal and subversive activity of Ms. Kerwin in using

her FAA workplace computer to make a threat against the

life of the President.” The magistrate judge held that

to the extent that Plasai claimed that her Bivens claim
8

was founded on her right to report and provide evidence

of suspected criminal activity, no such right exists

under the Constitution. On appeal, Plasai emphasizes

that she is not challenging the nonenforcement of a

criminal statute, but rather challenging a violation of

her right - and duty, under the FAA Standards of Conduct

- to prevent criminal activity. She claims, without

analysis or explanation, that her “affirmative

obligation under the FAA Standards of Conduct to report

suspected illegal or criminal activity” gives her

standing to challenge a search and seizure that

prevented her from complying with those obligations.

We need not decide today whether such a right

actually exists. Assuming, arguendo, that Plasai has

asserted a protected right, Plasai’s Bivens claim still

fails. To review: Plasai discovered that Melissa Kerwin

was using her work computer to access personal email and

online chat rooms, and that in those online chat rooms

Melissa posted entries critical of President Bush and

containing other vulgar and inappropriate language. Her

characterization of events misstates their actual
9

sequence: in fact, Plasai first observed Melissa

Kerwin’s alleged violation. Then, rather than reporting

the suspected violation to her supervisor, Plasai took

the information home to her husband. In turn, her

husband contacted Peter Kerwin and informed him of the

violation. At that point, the FAA began its

investigation, which resulted in the seizure of her work

computer. 

Even if the right she asserts (prevention of

criminal activity) is federally protected, Plasai has

not shown that she was attempting to prevent criminal

activity in a situation where, in fact, the alleged

criminal activity had already occurred. Nor has she

shown that the post hoc seizure of her computer

prevented her from exercising her “right” and obligation

to prevent a violation by reporting it. Ms. Plasai

rightly notes that her duties under the FAA Standards of

Conduct require her to report misuse of computing

resources, as well as suspected illegal or criminal

activity. The FAA Standards of Conduct, however, also

forbid Ms. Plasai from divulging official information
10

obtained in connection with her employment to any

unauthorized person. Plasai took the information she had

compiled against Melissa home and discussed that

information with her husband. She has not claimed that

such behavior - which precipitated the seizure, since it

was itself a violation of FAA policy - was necessary to

fulfilling her alleged duty to prevent criminal

activity. Furthermore, Plasai has not shown that the

agency’s seizure violated her hypothesized right to

prevent criminal activity. In fact, the events giving

rise to the FAA’s investigation of Plasai also resulted

in an investigation against Melissa Kerwin for the very

abuse of computing resources that Plasai had identified.

Accordingly, we hold that Plasai’s Bivens claim

fails to assert a violation of a federally protected

right and affirm the district court’s grant of summary

judgment on that claim. Because we conclude that the

Bivens claim is not viable in any event, we need not

address Plasai’s argument that her Bivens claim is not

precluded by the CSRA.
6 To the extent that Plasai is pursuing a tort claim

against the individuals involved, the FTCA makes clear

that it is the exclusive remedy for compensation for

tortious acts by a federal employee acting in the scope

of his employment. 28 U.S.C. § 2679. At no point does

Plasai argue that the individual defendants were acting

outside of the scope of employment.

11

B. Plasai’s state law claim is precluded by the CSRA.

The magistrate judge held that the CSRA preempted

Plasai’s state law claim of intentional infliction of

emotional distress, brought under the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq.,

6 was

preempted by the Civil Service Reform Act and the

remedies it affords her. See Pub.L. No. 95-454, 92 Stat.

1111 (1978). The CSRA provides “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.” Rollins v. Marsh, 937 F.2d 134, 137

(5th Cir. 1991). The Supreme Court has described this

panoply of defenses as an “elaborate remedial system”

and declined to permit additional remedies. Bush v.

Lucas, 462 U.S. 367, 368 (1983); see also id. at n.30
12

(discussing the sections of the CSRA providing

protection).

Plasai asserts that the magistrate judge’s ruling is

incorrect because she is not directly covered by the

CSRA, but rather falls under the FAA’s Personnel

Management System (“FAA PMS”). 49 U.S.C. § 40122(g).

While the FAA PMS explicitly states that as a general

rule, the provisions of the CSRA do not apply, it then

makes specific exceptions that render certain CSRA

provisions applicable to FAA employees. Id. §

40122(g)(2). Included among those exceptions are the

protections against “prohibited personnel actions”

contained in the CSRA at 5 U.S.C. § 2302(b), along with

the related investigative and enforcement provisions

contained in Chapter 12 of Title 5. See 49 U.S.C §

40122(g)(2)(A). For these reasons, we hold that the CSRA

does apply in this case, by virtue of its specific

incorporation into the FAA PMS.

Although the magistrate judge did not explicitly

note the connection between the CSRA and the FAA PMS, we

conclude that his analysis was correct in its result. He
13

first considered whether the agency’s action constituted

a “prohibited personnel action” under the CSRA; holding

that it did so, he then held that the CSRA preempts such

claims. A recent Supreme Court decision indicates

approval of his methodology. Whitman v. Dep’t of

Transp., --- U.S. ----, 126 S.Ct. 2014, 2014 (June 05,

2006) (noting that the FAA PMS specifically incorporates

particular provisions of the CSRA, and that the

appropriate course of action is to determine where and

whether the claims fit within that statutory scheme). 

Furthermore, we agree with his conclusions. The

magistrate judge held that the FAA’s seizure of Plasai’s

work computer constituted a “personnel action” for the

purposes of the CSRA because the seizure was tied to her

alleged violation of the FAA’s Standards of Conduct for

its employees. His holding comports with this circuit’s

precedent: we have found that conduct constituted a

personnel action where “[a]ll the actions taken by the

defendants were related to status as federal

employees[.]” Rollins, 937 F.2d at 138 (where actions

included temporary suspension and loss of security
14

clearance). The same is true in this case: defendants

seized only Plasai’s work computer, from her office, in

investigating an alleged violation. Since the seizure

falls within the types of personnel actions covered by

the CSRA as adopted by the FAA PMS, the magistrate

correctly concluded that the CSRA preempts Plasai’s

state law claim. We have held that such “‘comprehensive

and exclusive procedures for settling work-related

controversies between federal civil-service employees

and the federal government’” necessarily preempt FTCA

claims. Rollins, 937 F.2d at 139 (quoting Rivera v.

United States, 924 F.2d 948, 951 (9th Cir. 1991)). “‘To

permit FTCA claims to supplant the CSRA's remedial

scheme certainly would defeat that purpose.’” Rollins,

937 F.2d at 139 (quoting Rivera v. United States, 924

F.2d 948, 951 (9th Cir. 1991)); see also Grisham v.

United States, 103 F.3d 24, 26 (5th Cir. 1997); Bell v.

Laborde, 2006 WL 2930169 at *1 (5th Cir., Oct 13, 2006).

We therefore affirm the magistrate judge’s

determination.
15

CONCLUSION

We conclude that the magistrate judge correctly

held that Plasai failed to state a viable Bivens claim

and that her state law tort claim is preempted by the

CSRA. For these reasons, the judgment of the magistrate

judge is AFFIRMED.