[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-12148

Non-Argument Calendar

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D.C. Docket No. 1:17-cv-00276-KD-C

JOSEPH WILBUR, JR., 

 Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA, 

 Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Alabama

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(April 8, 2019)

Before WILLIAM PRYOR, GRANT, and HULL, Circuit Judges.

PER CURIAM: 

Joseph Wilbur, Jr., appeals the dismissal of his Federal Tort Claims Act 

complaint as time-barred and within the discretionary function exception. We

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agree with the district court that Wilbur’s complaint should be dismissed, but for 

other reasons: Wilbur’s claims are precluded by the Civil Service Reform Act.

I.

We recite the facts in the light most favorable to Wilbur. See, e.g., Duty 

Free Ams., Inc. v. Estee Lauder Cos., 797 F.3d 1248, 1262 (11th Cir. 2015). 

Wilbur served as a compliance safety and health officer for the Occupational 

Safety and Health Administration (OSHA). His amended complaint alleges that in 

November or December of 2011, the area director (AD) for OSHA’s Mobile, 

Alabama office “performed a crude and sexually obnoxious behavior” in which the 

AD simulated a sexual act. Wilbur, finding the AD’s behavior “morally 

offensive,” reported the AD to his union representative, but nothing came of it.

In January 2012, the AD did the same thing in front of a new employee. 

This time Wilbur reported the behavior to the assistant area director, but again 

nothing came of it. In July 2012, Wilbur reported the AD to OSHA’s regional 

office, but—again—nothing came of it. In December 2012, the AD showed a 

“new female hire” inappropriate materials on his computer. Wilbur helped the new 

employee lodge a complaint with OSHA’s regional director; this one did lead to an 

investigation, but no inappropriate material was found on the AD’s computer and 

the new employee “was later forced to resign.” Wilbur continued to complain, but 

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the assistant area director warned him “not to continue making waves in the 

office.”

Wilbur’s work life quickly went downhill from there. In March 2013, he

was “verbally admonished” regarding one of his inspections. In June, he received 

a poor mid-year performance evaluation. There were smaller slights as well: 

Wilbur perceived that he was being treated differently by his coworkers, his travel 

reimbursement claims were delayed, he faced challenges to his attempts to take 

sick leave, and he experienced “other work related issues.” Wilbur “learned that 

management was reviewing case files, and traveling to inspection sites [that he 

had] previously inspected,” and based on that he “suspected, not confirmed, that 

the Defendant had initiated an investigation” into him. His suspicions were 

correct: the Department of Labor’s Office of Inspector General (OIG) had opened 

an investigation into allegations that Wilbur had committed perjury in connection 

with one of his inspections. Wilbur ultimately resigned in July 2013, which he 

characterizes as a constructive discharge attributable to a hostile work 

environment. 

Unbeknownst to Wilbur, OIG issued its investigative report the next month. 

The report covered not just Wilbur’s alleged perjury but also allegations regarding 

other inspections and unauthorized use of a government credit card. The AUSA 

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for the Southern District of Alabama declined to prosecute, and in light of that and 

Wilbur’s resignation, the case was closed.

Between July 2013 and July 2014, Wilbur filed multiple appeals before the 

Merit Systems Protection Board (MSPB). Those were dismissed, and Wilbur did 

not appeal to the Federal Circuit. For one of the appeals, Wilbur requested in 

March 2014 “that the appeal be dismissed without prejudice pending the outcome 

of a related investigation by the agency’s Office of Inspector General”—

suggesting that he was unaware at that time that the investigation had already 

concluded. Wilbur alleges that his attempts to procure the investigative report 

through FOIA were “stonewalled.”

In the meantime, Wilbur had applied to and received a tentative job offer 

from U.S. Citizenship and Immigration Services (USCIS) as a safety and health 

manager. But after receiving a copy of the OIG report, USCIS issued a notice of 

proposed action to Wilbur that indicated USCIS’s intent to withdraw the offer 

based on the misconduct charges in the OIG report. Wilbur did not immediately 

respond—he was deployed overseas at the time—and on February 5, 2015, USCIS 

sent Wilbur a letter withdrawing the job offer and barring Wilbur from USCIS 

employment for three years. Along with the letter, Wilbur received (apparently for 

the first time) a copy of the OIG report.

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The letter informed Wilbur of his right to appeal to the MSPB within 30 

days and provided instructions for doing so. Wilbur did appeal, but not until 

February 9, 2016—over a year after USCIS’s decision. Wilbur protested that he 

had been deployed with the military between February 3, 2015 and September 23, 

2015, but even after tolling the time for appeal under the Servicemembers Civil 

Relief Act, an ALJ concluded that Wilbur was 109 days late and had failed to 

establish good cause for waiving the filing deadline. Wilbur appealed that 

decision, arguing that the MSPB should waive the filing deadline because “when 

he returned from his deployment, he had to deal with ‘a backlog of mail,’ family 

issues, readjustment to civilian life, and ongoing unemployment.” Unconvinced, 

the MSPB affirmed the ALJ’s finding that Wilbur’s appeal was untimely filed 

without good cause. The MSPB’s decision informed Wilbur of his right to appeal 

to the Federal Circuit, but there is no indication that he did so.

Instead, on October 19, 2016, Wilbur filed a Federal Tort Claims Act 

(FTCA) administrative claim with the Department of Labor. After six months 

without a reply, Wilbur filed a federal complaint in the U.S. District Court for the 

Southern District of Alabama.1

 As amended, the complaint asserted two counts—

 1 After Wilbur had filed suit, the Department of Labor denied his claim in a brief letter.

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negligence and intentional infliction of emotional distress—stemming from OIG’s 

investigation of Wilbur and his subsequent inability to get a job.

A magistrate judge issued a report and recommendation concluding that 

1) because Wilbur filed his FTCA claim in October 2016, any claims that accrued 

before October 2014 were time-barred; 2) the only claim not time-barred related to 

the Department of Labor’s transmittal of its investigative report to USCIS; and 3) 

the transmittal of the report was a discretionary function. The district court agreed 

with this analysis and refused to equitably toll the limitations period because it 

concluded that, contrary to Wilbur’s contention that the Department of Labor 

wrongfully concealed the report from him, Wilbur was not entitled to receive the 

report at all. Wilbur now appeals.

II.

The United States moved the district court to dismiss the complaint under 

Rule 12(b)(1) for lack of jurisdiction and under Rule 12(b)(6) for failure to state a 

claim. Both issues are reviewed de novo, but we are freer to resolve factual issues 

in assessing jurisdiction than we are in deciding whether the complaint properly 

states a claim. See Morrison v. Amway Corp., 323 F.3d 920, 924–25 (11th Cir. 

2003).

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III.

We have our doubts about the decision that Wilbur’s FTCA challenge to the 

OIG report was untimely. True enough, the “general rule is that a claim under the 

FTCA accrues at the time of injury.” Diaz v. United States, 165 F.3d 1337, 1339 

(11th Cir. 1999). But even assuming that the relevant “injury” is the issuance of 

the report and not the withdrawal of a job offer, we have held that in some contexts 

an injury does not accrue until “the plaintiff knows of both the injury and its 

cause.” Id. (so holding for a wrongful death claim). Here, Wilbur alleges that his 

attempts to procure the investigative report were “stonewalled,” and he appears to 

have received it only when USCIS relied on it to withdraw his job offer; that would 

have presented a strong case for applying the diligence-discovery rule.

But we will not resolve the timeliness issue because we are first obliged—as 

was the district court—to address the government’s jurisdictional argument that 

Wilbur’s claims cannot proceed under the FTCA because Title VII and the Civil 

Service Reform Act (CSRA) provided Wilbur’s exclusive remedies. See, e.g., 

Ranbaxy Labs. Inc. v. First Databank, Inc., 826 F.3d 1334, 1338 (11th Cir. 2016) 

(noting that courts must address jurisdictional issues before reaching the merits);

see also Elgin v. Dep’t of Treasury, 567 U.S. 1, 8 (2012) (treating CSRA 

preclusion as jurisdictional). And we agree with the government that the CSRA 

precludes Wilbur’s FTCA claims.

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The CSRA comprises “a comprehensive system for reviewing personnel 

action taken against federal employees.” United States v. Fausto, 484 U.S. 439, 

455 (1988). Outside of Title VII,2 that comprehensive system provides a federal 

employee’s exclusive route to relief for federal personnel actions. See Stephens v. 

Dep’t of Health & Human Servs., 901 F.2d 1571, 1575 (11th Cir. 1990). Indeed, 

we have held before that if state common-law claims “are within the scope of the 

coverage of the CSRA, then the actions are preempted by the CSRA.” Broughton 

v. Courtney, 861 F.2d 639, 643 (11th Cir. 1988). A claim under the FTCA is 

essentially a state tort claim. See FDIC v. Meyer, 510 U.S. 471, 478 (1994). It 

follows that the CSRA precludes FTCA suits for claims contesting personnel 

actions against a federal employee. Accord, e.g., Tubesing v. United States, 810 

F.3d 330 (5th Cir. 2016); Premachandra v. United States, 739 F.2d 392 (8th Cir. 

1984).

Here, Wilbur had a chance to bring a claim under the CSRA: the February 5, 

2015 letter denying him a job at USCIS based on the allegations in the 

investigative report contained instructions for an appeal. Wilbur exercised that 

right, but he did so too late, and the MSPB affirmed the dismissal of his appeal for 

untimeliness. The MSPB’s decision informed Wilbur of his right to appeal to the 

 2 The “CSRA, by its own terms, does not preempt an action brought under Title VII.” McDowell 

v. Cheney, 718 F. Supp. 1531, 1543 n.9 (M.D. Ga. 1989) (citing 5 U.S.C. § 2302(d)(1)).

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Federal Circuit, but he apparently failed to do so. Having defaulted his exclusive 

avenue for relief, Wilbur cannot recast his complaint as an FTCA claim.

We therefore VACATE the district court’s dismissal with prejudice and 

REMAND WITH INSTRUCTIONS to dismiss for lack of jurisdiction. 

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