Judge Denis Hurley
While employed at the Postal Service (USPS), Herbst complained of fraud, workplace safety violations, and breaches of USPS policies and procedures to supervisors, managers, the Inspector General. Postal inspector DeVaul's response to a report about Herbst caused his psychiatric commitment. The USPS later suspended Herbst, and sought his termination. District court dismissed, for lack of jurisdiction, Herbst's claims that defendants' treatment of him violated his rights under 42 USC §1983 and constituted intentional and negligent infliction of emotional distress. Despite finding Herbst's §1983 claims against the individual defendants precluded as a matter of law, the court interpreted his complaint as asserting Bivens claims that could not be maintained given remedial schemes outlined in the Postal Reorganization and Civil Service Reform Acts. Because the conduct for which Herbst sought relief occurred within the scope of the individual defendants' employment, his claims against them were preempted by the Federal Tort Claims Act such that action against the United States was his exclusive remedy for his tort claims. However, Herbst did not satisfy that portion of the FTCA requiring that he exhaust his administrative remedies.
