Orsay

Opinion by Judge HUG; Partial Concurrence and Partial Dissent by Judge D.W. NELSON.

Deputy United States Marshals David Orsay and Michael Smith (collectively “Appellants”) appeal the district court’s dismissal of their claims under the Privacy Act, 5 U.S.C. § 552a, and the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (“FTCA”). The district court held that it lacked subject matter jurisdiction to resolve the claims, which the court found preempted by the Civil Service Reform Act (“CSRA”), codified in various sections of Title 5 of the United States Code. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1346(b)(1), and we have jurisdiction over Appellants’ timely appeal under 28 U.S.C. § 1291 . We affirm, holding that the CSRA bars Appellants’ Privacy Act claims and some of their FTCA claims, and that the FTCA’s intentional tort exception, 28 U.S.C. § 2680 (h), bars Appellants’ remaining FTCA claims.

FACTS AND PROCEDURAL BACKGROUND

Appellants brought this action against the United States Department of Justice, the United States Marshals Service, the Office of the Inspector General, and seven employees of the United States Marshals Service (collectively…

concurring in part, dissenting in part:

I join with the majority except for part II.

I respectfully dissent from the majority’s holding that the federal government may not be held liable for the alleged tortious conduct of a federal law enforcement officer in this case because the officer was not engaged in specific investigative or law enforcement activities at the time the tort was committed.

The statute at issue clearly imposes liability for assaults committed by federal law enforcement officers:

*1137 28 U.S.C. § 2680 (h). There is no statutory limitation as to what activity the law enforcement officers must be engaged in other than the general requirement that the officer be “acting within the scope of his office or employment.” 28 U.S.C. § 1346 (b).

The defendants have conceded that Supervisor Claxton was acting within the scope of his employment as a federal law enforcement officer when he allegedly pointed a loaded gun at the plaintiffs and made statements such as: “You’re dead,” “You’re history,” “Gotcha,” and “You never had a chance.” This conduct falls within the enumerated tort of assault, and the government should be held liable if the allegations prove to be…