In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2395

EUGENE R. RICHARDS, JR.,

Plaintiff-Appellant,

v.

KATHLEEN L. KIERNAN, MALCOLM W. BRADY,

EDGAR DOMENECH, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 4013—Rebecca R. Pallmeyer, Judge.

____________

ARGUED JANUARY 5, 2006—DECIDED AUGUST 25, 2006

____________

Before FLAUM, Chief Judge, and ROVNER, and WILLIAMS,

Circuit Judges.

ROVNER, Circuit Judge. Eugene Richards, a former employee of the Bureau of Alcohol Tobacco, Firearms, and

Explosives (ATF), brought suit against his supervisors

alleging that they violated his First Amendment rights

by retaliating against him for his whistleblowing activities. The district court concluded that Richards’ sole remedy

was through the Merits Systems Protection Board (MSPB)

and that his appeal from that decision should have been

made to the United States Court of Appeals for the Federal

Circuit. We affirm.
2 No. 05-2395

1 Richards made this task more difficult by ignoring Fed. R. App.

P. 28(a)(7) which states that “[n]o fact shall be stated in the

statement of facts unless it is supported by a reference to the page

or pages of the record or the appendix where that fact appears.”

See also Fed. R. App. P. 28(e); 7th Cir. R. 28(c). Nevertheless,

because the sole question for review is whether the remedial

scheme of the Civil Service Reform Act precluded Richards from

bringing a claim in the district court, a detailed exposition of

the underlying facts is largely unnecessary.

I.

In our review of this motion to dismiss, we accept all wellpleaded factual allegations in the complaint and draw all

reasonable inferences from those facts in favor of Richards.

Boim v. Quranic Literacy Inst. and Holy Land Found. for

Relief and Dev., 291 F.3d 1000, 1008 (7th Cir. 2002).1

Richards was a former supervisor in the Bureau of ATF. In

1998, ATF transferred Richards to the Chicago Field

Division, which turned out to be a hotbed of personality

conflicts and unpleasant office politics. At the core of the

torrent were Richards’ first line supervisor, Chicago Group

Supervisor, Mark Rusin, and Richards’ second-line supervisor, Special Agent in Charge, Kathleen L. Kiernan. As the

storm swelled, agency superiors requested a review of the

Chicago Field Division. Over the course of the four day

investigation in June 1999, Richards backed Rusin’s

claim that Kiernan had acted in violation of ATF policy. He

also alleges that he reported additional instances of improper conduct by Kiernan. ATF transferred Richards

to Washington D.C. in August 1999, and then back to

Chicago in December of that same year. In September 2000,

ATF selected him for transfer to New York City.

Richards did not want to leave Chicago where his wife

was employed in a “highly compensated” position with the

Department of Housing and Urban Development. (R. at 1,
No. 05-2395 3

p.4). ATF, however, denied his request for a hardship

reprieve, and his requests to transfer to Washington D.C.

were thwarted, he alleges, by Malcolm Brady, the Deputy

Assistant Director of the Chicago Field Office, and another

supervisor, Larry Ford. Rather than transfer to New York

City, Richards tendered his resignation to his New York

supervisor, Edgar Domenech, on May 21, 2001, claiming

that he was resigning due to a “hostile work environment.”

And then his legal claims began.

Richards first filed a formal complaint of discrimination

with the ATF. The Department of Treasury (the former

parent of the ATF) issued a Final Agency Decision finding

no discrimination or retaliation. Richards then turned to

the Office of Special Counsel alleging that his supervisors

had retaliated against him in response to his whistleblowing activities. That claim and the appeal also failed. For his

third attempt, Richards filed a complaint in the district court below alleging constructive discharge and retaliation for exercise of his First Amendment rights. (R. at 1).

Richards sued five of his former supervisors, Kiernan,

Brady, Domenech, Ford, and David Benton in their personal

capacities. He also sued John Ashcroft and Carl J. Truscott

in their representative capacities as heads of the Department of Justice and ATF, respectively, and the agencies

themselves. When the parties disagreed as to his exhaustion requirements, however, Richards moved to voluntarily

dismiss his complaint with leave to reinstate so that he

could pursue his claims in his fourth venue, the MSPB, the

administrative agency charged with adjudicating federal

employee personnel appeals. The MSPB held that it lacked

jurisdiction over Richards’ discharge claim, concluding that

he had voluntarily retired, and denied the whistleblower

claim finding that Richards had not made any protected

disclosures. (R. at 10, Ex. 1, pp. 8, 11, 14). Even if Richards

had made a disclosure, the MSPB concluded, the Whistleblower Protection Act (WPA) protected only disclosures of
4 No. 05-2395

information of which the agency was previously unaware.

(R. at 10, Ex. 1, p. 8-9) (citing Meuwissen v. Dep’t of Interior,

234 F.3d 9, 12-13 (Fed. Cir. 2000)). Rather than appealing

the MSPB’s decision to the Court of Appeals for the Federal

Circuit, the only court with power to review the decision (5

U.S.C. § 7703(b)(1)), Richards reinstated his First Amendment claim in the district court below. The district court

granted the defendants’ motion to dismiss on the grounds

that the court lacked jurisdiction over Richards’ claims. The

district court noted that Richards’ appeal from the MSPB’s

decision had to be made to the Federal Circuit and not to

the Northern District of Illinois. (R. at 18). We review the

district court’s decision granting a motion to dismiss

de novo. Boim, 291 F.3d at 1008.

II.

Richards maintains that the defendants violated his First

Amendment rights by retaliating against him for blowing

the whistle on allegedly improper conduct by an ATF

supervisor. The Supreme Court case of Bivens authorizes

the filing of constitutional suits against individual federal

officers. Bivens v. Six Unknown Agents of the Fed. Bureau

of Narcotics, 403 U.S. 388, 397 (1971). Not all constitutional

claims may be brought before the federal courts, however.

In some cases, Congress has established comprehensive

administrative bodies with broad remedial powers to

resolve all contested matters before them. The Supreme

Court has determined that, in light of the comprehensive

nature of some of these remedial schemes, it would be

inappropriate to allow judicial remedies as well. See Bush

v. Lucas, 462 U.S. 367, 368 (1983). The Civil Service Reform

Act (5 U.S.C. § 1101 et seq.) (CSRA) is one such scheme

which provides a “comprehensive framework for handling

the complaints of civil service employees faced with adverse

personnel decisions.” Ayrault v. Pena, 60 F.3d 346, 347 (7th
No. 05-2395 5

Cir. 1995). By creating the CSRA, Congress implicitly

repealed the jurisdiction of federal district courts over

personnel actions arising out of federal employment. Paige

v. Cisneros, 91 F.3d 40, 43 (7th Cir. 1996).

Richards would like us to carve out an exception to this

rule so that he may proceed on his Bivens claim in this

court. The Supreme Court urges caution in extending

Bivens remedies into new contexts. Corr. Serv. Corp. v.

Malesko, 534 U.S. 61, 70 (2001) (“In 30 years of Bivens

jurisprudence we have extended its holding only twice.”);

F.D.I.C. v. Meyer, 510 U.S. 471, 484 (1994); Schweiker v.

Chilicky, 487 U.S. 412, 421 (1988); Paige, 91 F.3d at 44.

Federal courts will do so only when Congress has not

provided an adequate remedial mechanism for a constitutional violation, and the omission of that particular remedy

was inadvertent. Schweiker, 487 U.S. at 423; Bagola v.

Kindt, 131 F.3d 632, 640 (7th Cir. 1997). “When the design

of a Government program suggests that Congress has

provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the

course of its administration, we have not created additional

Bivens remedies.” Schweiker, 487 U.S. at 423. This is true

even if the existing remedies do not provide complete relief

for the parties. Bush, 467 U.S. at 388; Robbins v. Bentsen,

41 F.3d 1195, 1201 (7th Cir. 1994) (“Courts may not provide

constitutional remedi es to supplement a

congressionally-established administrative system even

where that system’s remedies are not as complete as the

constitutional remedy might be.”). For example, if an

administrative remedy provides only back pay and reinstatement but a First Amendment claim brought in federal court could provide individual damages, the Supreme

Court has held that Congress nevertheless created a system

that provides for meaningful remedies for employees who

have been disciplined for making critical comments. Bush,

467 U.S. at 372 & n.8, 390. Congress, the Bush court
6 No. 05-2395

determined, was in a better position to determine what

remedies should be provided to civil service employees. Id.

at 389. In short, even if the remedies provided by the CSRA

are incomplete, the Act provides an adequate remedial

scheme and therefore precludes a Bivens claim. See Bagola,

131 F.3d at 642; Paige, 91 F.3d at 44; Robbins, 41 F.3d at

1201. Consequently, a court need not look into the

meaningfulness of an individual federal employee’s remedy

within the CSRA. Feit v. Ward, 886 F.2d 848, 854 (7th Cir.

1989). Once it has been determined that the administrative

system provides a comprehensive system of protecting a

plaintiff’s rights, that Congress has the expertise and

authority to fashion a system to protect those rights, and

that the omission of a particular remedy was not inadvertent, a court may conclude that a Bivens action is precluded.

Id. at 855.

Richards argues that he was denied a meaningful remedy

because the MSPB and the Federal Circuit which reviews

its decisions, continue to protect only the initial whistleblowing disclosure despite legislative history indicating that

Congress intended that the Act would not be limited to

protecting only an “employee [who] is the first to raise the

issue.” S. Rep. No. 103-358, at 10. In essence, Richards

argues that both the MSPB and the Federal Circuit have

misinterpreted the WPA, and as proof of their error he

points to the Senate Committee Report. Of course the

legislative history expressing the intent of the WPA does

not carry the force of law. Exxon Mobil Corp. v. Allapattah

Servs., Inc., 125 S. Ct. 2611, 2626 (2005); Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 448 (7th Cir. 2005)

(“when the legislative history stands by itself, as a naked

expression of ‘intent’ unconnected to any enacted text, it has

no more force than an opinion poll of legislators—less,

really, as it speaks for fewer.”). More importantly, however,

Richards has mislabeled his injury. Richards, was not

denied a meaningful remedy. He simply lost his case and
No. 05-2395 7

believes the MSPB’s decision was wrong. It is true that the

MSPB denied him a remedy in a very literal sense—as any

litigant who loses a case is denied a remedy. But this is not,

of course, the same as being denied the opportunity for

meaningful remedy through an administrative process as

described in the Bivens preclusion case law. As we described

above, meaningful remedies are those that provide a

comprehensive system of protecting all employee’s rights,

even if the remedies are incomplete. Schweiker, 487 U.S. at

425 (“[t]he creation of a Bivens remedy would obviously

offer the prospect of relief for injuries that must now go

unredressed. Congress, however, has not failed to provide

meaningful safeguards or remedies for the rights of persons

situated as respondents were.”).

Even if the MSPB and the Federal Circuit were incorrectly interpreting and applying the WPA, this would not be

cause for creation of a new Bivens remedy. When a tribunal

is simply wrong in its interpretation of the law or facts, the

remedy is to seek rehearing, Vidimos, Inc. v. Wysong Laser

Co., Inc., 179 F.3d 1063, 1065 (7th Cir. 1999), or appeal to

a higher authority. Maness v. Meyers, 419 U.S. 449, 458-59

(1975) (“Remedies for judicial error may be cumbersome but

the injury flowing from an error generally is not irreparable, and orderly processes are imperative to the operation

of the adversary system of justice.”) Richards had every

opportunity to convince the MSPB that a second disclosure

should be covered under the statute. (In fact, the Board has

indeed found secondary disclosures to be protected in some

instances. (R. at 10, Ex. 1, p. 10) (citing Askew v. Dep’t of

Army, 88 M.S.P.R. 674, 682 (2001))). On appeal he would

have the same opportunity to convince the Federal Circuit

to protect secondary disclosures. If the Federal Circuit

failed to alter its view and Richards continued to believe

that the Circuit’s interpretation of the act was incorrect,

his remedy would be to appeal the Federal Circuit’s decision

to the Supreme Court. A litigant cannot avoid the inevitable
8 No. 05-2395

2 Citation to these unpublished opinions is permitted in the

rendering court when used, as they are here, as persuasive

authority. See 11th Cir. R. 36-2, 4th Cir. R. 36(c); 1st Cir. R. 36(c)

& 32.3(a)(2). And because citation is permitted in these circuits,

they may be cited here. 7th Cir. R. 53(e) (“[e]xcept to the purposes

set forth in Circuit Rule 53(b)(2)(iv), no unpublished opinion or

order of any court may be cited in the Seventh Circuit if citation

is prohibited in the rendering court.”).

unfavorable decision from a U.S. Court of Appeals simply by

filing a new complaint in a district court in another circuit.

Richards’ counsel admits that he opted not to appeal the

MSPB decision to the Federal Circuit because he was fairly

certain that the Federal Circuit would rule against him.

(oral argument at 1min:28-35 sec and 4min:12-50 sec). It

would indeed be ironic to allow a litigant to claim “futility”

merely because her legal position was so weak that she was

certain to lose her case.

There is no question but that the CSRA provides the

exclusive remedy for an alleged constitutional violation

(including an alleged First Amendment violation) arising

out of federal employment. Bush, 462 U.S. at 368; Paige, 91

F.3d at 42-43; Ayrault, 60 F.3d at 350; Robbins, 41 F.3d at

1200 (First Amendment claim), Feit, 886 F.2d at 855 (First

Amendment claim); Moon v. Phillips, 854 F.2d 147, 152 (7th

Cir. 1988). Other circuits have specifically concluded that

the CSRA provides the exclusive remedy for claims brought

pursuant to the WPA. See, e.g., Stella v. Mineta, 284 F.3d

135, 142 (D.C. Cir. 2002) (“[u]nder no circumstances does

the WPA grant the District Court jurisdiction to entertain

a whistleblower cause of action brought directly before it in

the first instance.”). See also Hendrix v. Snow, No.

05-11583, 2006 WL 288099 at *8 (11th Cir. Feb. 8, 2006);2

Harris v. Evans, 66 Fed. Appx. 465, 467 (4th Cir. 2003);

Grisham v. U.S., 103 F.3d 24, 27 (5th Cir. 1997); Desmond

v. Dep’t of Defense, No. 92-2201, 1993 WL 88196 at *2-3 (1st
No. 05-2395 9

Cir. Mar. 19 1993); Gergick v. Austin, 997 F.2d 1237, 1239

(8th Cir. 1993), Rivera v. U.S., 924 F.2d 948, 952 (9th Cir.

1991). There is nothing about Richards’ claim that would

distinguish it from the scores of cases which have held that

these claims must be brought before the MSPB. Furthermore, as the district court correctly concluded, any judicial

review of a final decision by the MSPB lies with the United

States Court of Appeals for the Federal Circuit, and not

with the district courts or this court. See 5 U.S.C. §

7703(b)(1); U.S. v. Fausto, 484 U.S. 439, 446 (1988);

Ayrault, 60 F.3d at 348.

There remains but one small housekeeping matter to

address. The district court’s order states as follows: “Defendant’s [sic] motion to dismiss or in the alternative for

summary judgment (10) is granted. This complaint is

dismissed for lack of jurisdiction.” (R. at 18). We have

concluded before, however, that the appropriate basis for

dismissing a Bivens claim that should have been precluded by the comprehensive scheme of the MSPB is failure

to state a claim upon which relief can be granted, not lack

of subject matter jurisdiction. Massey v. Helman, 196 F.3d

727, 738 (7th Cir. 2000) The federal courts, of course, have

jurisdiction to decide all cases “arising under the Constitution.” 28 U.S.C. § 1331. The Supreme Court, however, has

determined that it is inappropriate for the federal courts to

supplement the comprehensive procedural and substantive

remedies provided to federal employees under the CSRA.

Bush, 462 U.S. at 368. Consequently, “the rule precluding

constitutional claims by federal employees who have

adequate administrative remedies stems from the absence

of substantive legal rights rather than the courts’ lack of

subject matter jurisdiction.” Massey, 196 F.3d at 738.

Because the defendants did indeed move the court to

dismiss under Federal Rule of Civil Procedure 12(b)(6) we

might conclude that the district court’s characterization was

merely a scrivener’s error. Even if it were not, we have
10 No. 05-2395

previously held that if remanding a case dismissed for want

of subject matter jurisdiction would be futile because the

party has also failed to state a claim upon which relief can

be granted, this court can affirm the district court, even

though the dismissal for lack of subject matter jurisdiction was in error. Id.

The decision of the district court granting the motion to

dismiss is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-25-06