FILED

United States Court of Appeals

Tenth Circuit

February 11, 2019

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KEVIN FRANKEN, 

No. 18-8019

(D.C. No. 2:16–CV–00189–ABJ)

(D. Wyo.)

Plaintiff–Appellant,

v.

DAVID BERNHARDT, Acting Secretary

of the Interior;*

 YELLOWSTONE

NATIONAL PARK; DAVID HALLAC,

Defendants–Appellees.

 

ORDER AND JUDGMENT**

Before HOLMES, McKAY, and CARSON, Circuit Judges.

Plaintiff Kevin Franken claims that his former federal government employer and

supervisor violated his rights when, at the end of his employment, they prevented him

from accessing all of the personal electronic files he had saved on his government work

computer and did not give him the “symbolic wooden arrow” that is customarily given to

departing long-term employees. (Appellant’s App. at 23.) The district court dismissed

*

 Current Acting Secretary David Bernhardt has been automatically substituted for the

prior Secretary pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure.

** This order and judgment is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
his complaint with prejudice on several grounds, including preemption under the Civil

Service Reform Act. This appeal followed.

“In reviewing the grant of a motion to dismiss, we accept the allegations in the

complaint as true.” Doe v. Woodard, 912 F.3d 1278, 1285 (10th Cir. 2019).

Plaintiff is a former employee of Yellowstone National Park, a division of the

United States Department of the Interior. Plaintiff alleges that it is a common practice for

government employees to maintain personal files on their work computers and that

Yellowstone’s electronic use policy permits such personal use of government-owned

work computers. In accordance with this practice and policy, Plaintiff stored thousands

of personal files on his work computer at his office in Yellowstone.

While he was still employed by the Park, Plaintiff filed a complaint with the Equal

Employment Opportunity Commission alleging discrimination and retaliation based on

his sexual orientation and advocacy for marriage equality. The parties settled the EEOC

claim on January 11, 2013, agreeing in part that Plaintiff would be transferred to a

different federal agency in California approximately one month later.

On Plaintiff’s last day of work, in February 2013, he “attempted to access the

computer at his office” to remove his personal files, but he was unable to do so because

he had been “locked out of his computer,” even though other departing employees are

granted “the opportunity to recover [their] property” when they leave. (Id. at 13, 23.) 

The next month, Plaintiff’s supervisor made two purported attempts to return Plaintiff’s

electronic files to him, but Plaintiff alleges that he received no files in the first attempt

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and only a portion of the files in the second attempt. After the second attempt, Plaintiff’s

supervisor “represented that he ‘provided all of the files that [he] was authorized to make

available.’” (Id. at 14.) Plaintiff further alleges that “[a]n unknown employee of the

Government Defendants refused to send all of Plaintiff’s files to him.” (Id.) Finally,

Plaintiff’s supervisor allegedly failed to present him with the symbolic wooden arrow that

is customarily given to departing long-term Yellowstone employees.

In his complaint, Plaintiff contended that the defendants’ failure to provide him

with all of the personal files he had saved on his work computer constituted conversion

and violated his First Amendment, due process, and equal protection rights. He also

asserted that his supervisor violated his First Amendment and equal protection rights by

failing to give him a symbolic wooden arrow when he transferred away from

Yellowstone.

The district court granted the defendants’ motion to dismiss on several grounds,

including preemption under the Civil Service Reform Act. The district court denied leave

to amend, noting that Plaintiff had already had two opportunities to amend his complaint

and finding that “any further amendments would be futile.” (Id. at 155.) 

We review the district court’s dismissal of the complaint de novo. Smith v. United

States, 561 F.3d 1090, 1097–98 (10th Cir. 2009). We agree with the district court that all

of Plaintiff’s claims are preempted by the CSRA. This statute created “an elaborate,

comprehensive scheme that encompasses substantive provisions forbidding arbitrary

action by supervisors,” establishes procedures “by which improper action may be

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redressed,” and “appl[ies] to a multitude of personnel decisions that are made daily by

federal agencies.” Bush v. Lucas, 462 U.S. 367, 385–86, 385 n.25 (1983); see also, e.g.,

United States v. Fausto, 484 U.S. 439, 443–45 (1988). This comprehensive scheme

“preempts other federal and state claims complaining of prohibited employment practices

and precludes claims asserted directly under the Constitution.” Pretlow v. Garrison, 420

F. App’x 798, 801 (10th Cir. 2011).1

 

Employment practices that are prohibited under the CSRA include taking or failing

to take “any personnel action” for discriminatory or retaliatory reasons. 5 U.S.C. §

2302(b)(1) and (9). “[P]ersonnel action,” in turn, is defined broadly to include “a

decision concerning pay, benefits, or awards,” and “any other significant change in duties,

responsibilities, or working conditions.” Id. § 2302(a)(2)(A)(ix) and (xii). Even where

an action does not fall under this broad definition of prohibited personnel actions, it may

still be preempted by the CSRA: As we held in Hill v. Dep’t of Air Force, 884 F.2d 1318,

1320–21 (10th Cir. 1989), because Congress established this comprehensive scheme to

administer public rights in the context of federal employment, it is inappropriate to

provide a judicial remedy beyond the regulatory scheme even if the complained-of action

is not “a listed prohibited personnel practice.”

1

 We note that there may be some exceptions to this broad preemption, see, e.g., Wilson v.

Harvey, 156 F. App’x 55, 57 n.4 (10th Cir. 2005) (“Contrary to the district court’s ruling, the

CSRA does not preempt Title VII.”), but the parties do not argue that any of these exceptions are

applicable here, and thus we do not address them.

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Accordingly, in Hill we held that the CSRA preempted a federal employee from

pursuing a Bivens claim against his supervisor for “eavesdropping on his personal

telephone conversations,” even though this was “not an allegation of a violation of a

listed prohibited personnel practice.” Id. at 1321. We explained, citing to the Supreme

Court’s holding in Bush, that our focus in this analysis must be on “the special factor of

federal employment,” not “[t]he nature of the particular constitutional injury” at issue. Id.

Thus, the CSRA preempts claims arising directly out of a federal employment

relationship even where the plaintiff has no remedy under the CSRA. Id.

In Lombardi v. Small Business Administration, 889 F.2d 959, 961 (10th Cir. 1989),

we further explained that the CSRA preempts claims based on violations that occur after

the employment relationship was terminated, if these violations “occurred only as a result

of the employment relationship” the plaintiff had with the government. We thus rejected

a former federal employee’s argument that he could pursue claims based on alleged posttermination violations: “His position as a federal employee is central to his complaints,

and it is this employment relationship that the Supreme Court emphasized in Bush and its

progeny, rather than the nature of the specific violation involved.” Id. The alleged posttermination timing of the violations was insufficient to “distinguish [the case] from the

numerous other cases finding no Bivens remedy in similar situations.” Id.

As in Hill and Lombardi, Plaintiff’s claims are preempted by the CSRA because

all of the alleged violations of his rights “occurred only as a result of the employment

relationship,” id., he had with the government. He alleges that, at the end of his

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employment relationship with the government, his supervisor and other government

officials prevented him from accessing the files he had placed on the government

computer at the government office where he worked as a government employee. He also

alleges that the government denied him a symbolic token of long-term government

employment that was given to other government employees. All of his claims arise from

these two allegations, which are both inextricably tied to his employment relationship

with the federal government. His claims are thus preempted under the reasoning of Hill

and Lombardi, regardless of whether or not these complained-of actions would fall under

the CSRA’s definition of prohibited employment practices and regardless of the timing of

the alleged violations.

In reaching this conclusion, we reject Plaintiff’s argument that his claims fall

outside the CSRA because his supervisor’s actions were allegedly motivated by personal

discriminatory and retaliatory animus rather than government business reasons. Because

one of the main purposes of the CSRA is to prohibit government supervisors from taking

personnel actions based on such impermissible motivations, see § 2302(b)(1), (9), and

(10), Plaintiff’s allegations of discriminatory and retaliatory animus in fact support CSRA

preemption, rather than negate it as he contends.

Based on Hill and Lombardi, we also affirm the district court’s denial of leave to

amend the complaint on the basis of futility. Plaintiff has not set forth any possible

amendment that would allow him to escape CSRA preemption for his claims arising out

of his federal employment at Yellowstone National Park, and thus he has not shown that

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the district court erred in denying leave to amend. See Bradley v. Val-Mejias, 379 F.3d

892, 901 (10th Cir. 2004) (“Although Fed. R. Civ. P. 15(a) provides that leave to amend

shall be given freely, the district court may deny leave to amend where amendment would

be futile. A proposed amendment is futile if the complaint, as amended, would be subject

to dismissal.” (internal quotation marks omitted)).

Because we affirm the district court’s dismissal on the basis of CSRA preemption,

we need not address the district court’s other reasons for dismissal. However, we note

that the district court lacks subject matter jurisdiction over claims that are preempted by

the CSRA. See Elgin v. Dep’t of Treasury, 567 U.S. 1, 23 (2012) (“For the foregoing

reasons, we conclude that it is fairly discernible that the CSRA review scheme was

intended to preclude district court jurisdiction over petitioners’ claims.”); Lombardi, 889

F.2d at 960; cf. Pliuskaitis v. USA Swimming, 720 F. App’x 481, 486 (10th Cir. 2018)

(“[T]he Sports Act preempts Mr. Pliuskaitis’s claims, so the district court properly

dismissed those claims under Rule 12(b)(1) for lack of subject matter jurisdiction.”). 

Thus, Plaintiff’s claims should have been dismissed without prejudice for lack of

jurisdiction. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006). 

We accordingly remand this case to the district court so the dismissal may be modified to

be without prejudice. See id. at 1220.

The district court’s holding that Plaintiff’s claims are preempted by the CSRA is

AFFIRMED, but we REMAND with directions for the district court to modify the 

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dismissal to be without prejudice.

Entered for the Court

Monroe G. McKay

Circuit Judge

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