* District Judge of the Southern District of Texas, sitting by designation.

1 

### REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-20305.

Joe P. GRISHAM, Plaintiff-Appellant,

v.

UNITED STATES of America; National Aeronautics and Space Administration, DefendantsAppellees.

Jan. 10, 1997.

Appeal from the United States District Court for the Southern District of Texas.

Before KING and HIGGINBOTHAM, Circuit Judges, and KAZEN, * District Judge.

PER CURIAM:

Joe P. Grisham appeals the district court's order dismissing his case pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure. Finding no error, we affirm.

I. BACKGROUND

Taking Grisham's version of the facts, as we must in reviewing a 12(b)(6) dismissal, the facts

are as follows. In 1991, Grisham began work as a civil service employee at the Johnson Space Center

of the National Aeronautics and Space Administration ("NASA"). He was employed as a reliability

engineer on the space shuttle and space stati on programs. Grisham became chief reliability engineer

on the space shuttle project konwn as "Simplified Aid for EVA Rescue," dubbed "SAFER."

During a NASA reorga nizat ion, the SAFER project safety duties became Grisham's

responsibility. Grisham contends that he was told to prepare a "Preliminary Design Review" before

doing a "Preliminary Hazards Analysis," which he contends violat ed NASA safety regulations.

Grisham claims that aft er he disclosed this alleged violation to his superiors, he was reprimanded,

denied a transfer, and ultimately terminated.2

Following his dismissal, Grisham filed an appeal wit h t he United States Merit System

Protecti on Board ("MSPB"), as provided for in the statutory scheme set o ut in the Civil Service

Reform Act ("CSRA"). On September 9-10, 1993, the Administrative Law Judge ("ALJ") conducted

a hearing on Grisham's appeal. At that hearing, Grisham contended that the adverse employment

actions he suffered were the result of complaining about the safety violations, which he has labeled

"whistleblowing." The Whistleblower Protection Act of 1989 ("WPA"), an amendment to the CSRA,

protects government employees from retaliation for disclosing potentially embarrassing or damaging

information about government operations. The WPA proscribes the following actions by supervisors

if an employee makes a relevant disclosure:

(8) tak[ing] or fail[ing] to take

... a personnel action with respect to any employee

... because

of—

(A) an y disclo sure of information ... which the employee ... reasonably believes

evidences—

(i) a violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety....

5 U.S.C. § 2302(b)(8).

In his written order affirming Grisham's discharge, th e ALJ found that Grisham was

discharged for insubordination, not in retaliation for his alleged whistleblowing activities. Grisham

appealed the ALJ's ruling to the United States Court of Appeals for the Federal Circuit, pursuant to

5 U.S.C. § 7703(b)(1), and the Federal Cir cuit affirmed the ALJ's decision without a published

opinion. Grisham chose not to seek review in the United States Supreme Court.

On March 1, 1995, Grisham filed this lawsuit against the United States and NASA

(collectively "the government") in the district court, bringing claims under the First Amendment and

the Federal Tort Claims Act ("FTCA"). Grisham alleged that his termination for whistleblowing

violates his rig h t to freedom of speech under the First Amendment and constitutes wrongful

discharge. The government moved to dismiss under Rule 12(b)(6) for failure to state a claim upon1 The government also moved to dismiss under Rule 12(b)(1) for lack of subject matter

jurisdiction. The district court denied that motion, and the government has not appealed on that

ground.

3 which relief can be granted. 1 The government contended that Grisham's claims are precluded by the

CSRA. Alternatively, the government argued that Grisham's claims are barred by the doctrine of res

judicata. The court adopted the recommendation of the magistrate judge and dismissed Grisham's

suit based on the governme nt 's preclusion argument. The district court did not address the

government's res judicata argument.

Grish am t imely appealed. On appeal, he argues that his claims are not precluded by the

CSRA. Furthermore, he contends that the district court's order violates the doctrine of separation

of powers. The government disputes these arguments and re-urges its res judicata argument

presented b elo w. Because we determine that Grisham's claims are precluded and that there is no

separation of powers violation, we affirm, and we decline to reach the res judicata argument.

II. DISCUSSION

A. Standard of Review

In reviewing a district court's dismissal for failure to state a claim under Rule 12(b)(6), we

accept all factual allegations in the pleadings as true and examine whether the allegations state a claim

sufficient to avoid dismissal. K ansa Reinsurance Co. v. Congr essional Mortgage Corp., 20 F.3d

1362, 1366 (5th Cir.1994). We can uphold a Rule 12(b)(6) dismissal only if it appears that, under

any set of facts that could be proven consistent with the allegations in the pleadings, no relief could

be granted. I

d. While we must accept all factual allegations as true, we "need not resolve unclear

questions of law in favor of the plaintiff." Id.

B. Preclusion

Grisham argues that the WPA was not meant to preclude other remedies such as claims under

the FTCA or the Constitution. The government argues that because the CSRA, including the WPA,

is a comprehensive remedial scheme, it precludes causes of action relating to the type of employment

disputes covered by the statute. We agree with the government.2 Bivens v. Six Unknow n Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.

1999, 29 L.Ed.2d 619 (1971).

4 An analysis of the history and case law of the CSRA and the WPA makes it clear that

Grisham's claims are precluded and that he is limited to asserting his rights in the administrative

process. The CSRA was enacted in 1978 to replace the old civil service system, which we have

described as "an "outdated patchwork of statutes and rules built up over almost a century.' " R ollins

v. Marsh, 937 F.2d 134, 137 (5th Ci r.1991) (footnote omitted). The CSRA is a comprehensive

scheme providing for judicial and administrative review and designed to balance the needs of federal

employees with the needs of sound and efficient administration. Id.

In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), a NASA employee

was fired after making public statements that were highly critical of NASA, and, after pursuing the

administrative process, the employee brought a First Amendment Bivens 2 claim against the director

of the NASA center. I

d. at 369-72, 103 S.Ct. at 2406-09. The Supreme Court held that it would

be inappropriate to supplement the CSRA with a B ivens claim under the First Amendment. I d. at

368, 103 S.Ct. at 2406. The Court emphasized the importance of leaving undisturbed the "elaborate

remedial system" Congress carefully constructed to address the grievances of federal employees and

noted that constitutional challenges "are fully cognizable within this system." I d. at 386, 388-89, 103

S.Ct. at 2415, 2416-17. This court also addressed the preclusive effect of the CSRA in R ollins v.

Marsh. The Rollinses worked for the Red River Army Depot (RRAD), and they sued when Mr.

Ro llins was suspended without pay after publishing nude photos of Mrs. Rollins. 937 F.2d at 135-36.

The Rollinses brought, inter alia, FTCA and First Amendment Bivens claims against the Secretary

of the Army and fifteen RRAD o fficials and employees after Mr. Ro llins pursued these claims in the

administrative process. I

d. We held that both the Rollinses' B ivens and FTCA claims were effectively

precluded by the comprehensive remedial scheme set forth in the CSRA. I d. at 137, 139-40. Thus,

under B ush and Rollins, it is clearly established in the Fifth Circuit that FTCA and Bivens claims

under the First Amendment by employees regarding employment actions covered by the CSRA are5

precluded.

The Whistleblowe r Protection Act was enacted in 1989 to increase protections for

whistleblowers by prohibiting adverse employ m ent actions taken because a federal employee discloses

information that the employee reasonably believes evid ences a violation of any law or actions that

pose a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8). Grisham

contends that the WPA is substantially different from the other portions of the CSRA and that it

should not preclude his other causes of act ion. Grisham points to 5 U.S.C. § 1222, entitled

"Availability of other remedies," which states as follows:

Except as provided in section 1221(i), nothing in this chapter or chapter 23 shall be

construed to limit any right or remedy available under a provision of statute which is outside

both this chapter and chapter 23.

Grisham then quotes the following passage from the WPA's legislative history:

The bill contains a new section 1222 of title 5, United States Code, which provides

that the network of rights and remedies created under chapter 12 and chapter 23 of title 5 is

not meant to limit any right or remedy which might be available under any o ther statute....

Section 1222 is not intended to create a cause of action where none otherwise exists or to

reverse any court decision. Rather section 1222 says it is not the intent of Congress that the

procedures under chapter s 12 and 23 of title 5, United States Code, are meant to provide

exclusive remedies.

Grisham contends tha t t hese two authorities establish that claims covered by the WPA are not

exclusive and thus he is not limit ed to a claim before the MSPB. We disagree. As Grisham concedes

in his brief, the dispositive issue is whether the remedy would have been available before the WPA.

Bush and Rollins c learly indicate that FTCA and First Amendment B ivens claims are effectively

precluded by the CSRA. As we have previously stated, the WPA "refined and enhanced" the CSRA.

Rollins, 937 F.2d at 137 n. 15. It did not fundament ally alter its structure. Because the CSRA

precluded FTCA and Bivens First Amendment claims before the WPA, it necessarily must preclude

those claims after the WPA, given that the WPA was "not intended to create a cause of action where

none otherwise exists." We agree with the conclusion of the Ninth Circuit in R ivera v. United States,

924 F.2d 948, 954 (9th Cir.1991): "The Whistleblower Protection Act of 1989 increases protections

for whistleblowers, but it does so within the context of the CSRA. The Act does not authori ze3 See also Rollins, 937 F.2d at 139 (endorsing the analysis in Rivera ).

4 Grisham complains that this judicial review is ineffective because it gives deference to the

administrative law judge's factual findings. However, Grisham provides no authority for this

proposition.

6 government employees to bring FTCA claims arising out of conduct addressed by the CSRA." 3 S ee

also Gergick v. Austin, 997 F.2d 1237, 1239 (8th Cir.1993) (holding that the CSRA is an "exclusive

remedial scheme" and that the WPA cannot be used to supplement or replace CSRA remedies), cert.

denied,

--- U.S.

----, 114 S.Ct. 1536, 128 L.Ed.2d 189 (1994). Therefore, the trial court did not err

in dismissing Grisham's claims on the grounds that they are precluded by the CSRA.

C. Separation of Pow ers

Grisham argues that determining that the WPA precluded his FTCA and First Amendment

causes of action violates the separation of powers doctrine. Grisham asserts t hat because

administrative law judges are members of the executive branch, giving them exclusive power to make

factua l findings in whistleblowing cases when the executive branch has the most to lose by

whistleblowing violates the separation of powers doctrine. We disagree.

According to the Supreme Court in Commodity Futures Trading Comm'n v. Schor, 478 U.S.

833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986), a congressional delegation of adjudicative functions

to an administrative agency is not objectionable unless it creates a "substantial threat to the separation

of powers." I

d. at 854, 106 S.Ct. at 3259. We find no substantial threat to the separation of powers

from the conclusion that the WPA precludes Grisham's FTCA and First Amendment Bivens causes

of action. First, the WPA, as part of the CSRA's administrative scheme, provides for an appeal to

the Federal Circuit, thereby providing some level of judicial review. 4 S ee Northern Pipeline Constr.

Co. v. Marathon Pipe Line Co., 458 U.S. 50, 69 n. 23, 102 S.Ct. 2858, 2870 n. 23, 73 L.Ed.2d 598

(1982) ("[W]hen Congress assigns these matters to administrative agencies, or to legislative courts,

it has generally

pro vided, and we have suggested that it may be required to provide, for Art. III

judicial review."). Second, Grisham challenges only the preclusive effect of the WPA. Given that

the entire CSRA has the same preclusive effect, it is difficult to see how the narrow preclusive effect7

provided specifically by the WPA could constitute a substantial threat. Therefore, the trial court did

not violate the separation of powers doctrine in holding that Grisham's claims are precluded by the

CSRA.

III. CONCLUSION

For the foregoing reasons, we AFFIRM.