Russell v. United States Dep't of the Army, 191 F.3d 1016 (9th Cir. 1999). · Go Syfert
Russell v. United States Dep't of the Army, 191 F.3d 1016 (9th Cir. 1999). Cases Citing This Book View Copy Cite
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Absent an express waiver of sovereign immunity, Title II of the FMLA does not authorize private suits by federal employees to enforce its provisions.

A federal civil service employee covered by Title II of the Family and Medical Leave Act sued the Army after her termination for absenteeism, alleging FMLA leave violations. Title II contains no express private right of action, and the government contended that sovereign immunity barred the suit. The court considers whether such employees may sue to enforce Title II, and whether alternative theories under the APA, section 1983, or Bivens are available. The court holds that Title II's silence is no unequivocal waiver of immunity, that the Civil Service Reform Act precludes APA review, and that the district court properly dismissed the claims and denied leave to amend.

68 citation events (68 in the last 25 years) across 25 distinct courts.
Treatment trajectory · 2003 → 2026 · click a year to view as-of
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At page 1018 Sovereign immunity bars private suits under FMLA Title II13 citing casesSection 1983, however, provides no right of 13 R. Doc. 11 at 19. 14 Id. at 23-24. 15 Id. at 22-23, 24-35. 16 Id. at 18. action against federal (rather than state) officials.5 citing courts put it this way
  • Yeh v. Mayorkas, No. 4:24-cv-00797 (N.D. Cal. June 6, 2025).
    ([T]he absence of an express 26 waiver of the government’s sovereign immunity in Title II of the FMLA bars private suits for 27 violations of its provisions.)
  • Black v. Guzman, No. 2022-1873, 2023 WL 3055427 (D.D.C. Apr. 24, 2023).published 2 cites
    (The absence of express statutory authorization for such suits under Title II would seem to bar [the plaintiff’s] FMLA claims because it is axiomatic that suits against the government are barred by sovereign immunity ab…)
  • Bryant, No. 1:25-cv-00166 (N.D. Ohio Sept. 15, 2026).
    “while title i and title ii employees under the fmla are afforded equivalent rights to leave time, title i expressly provides a private right of action to remedy employer action violating fmla rights.”
  • Montgomery, Jr. - Adams-II v. Anderson, No. 2:24-cv-02432 (E.D. La. Aug. 4, 2025).
    (Section 1983, however, provides no right of 13 R. Doc. 11 at 19. 14 Id. at 23-24. 15 Id. at 22-23, 24-35. 16 Id. at 18. action against federal (rather than state) officials.)
  • Schneider v. Unknown named F.B.I. agent(s), No. 3:23-cv-00261 (D. Alaska Feb. 9, 2024).
    (Section 1983, however, provides no right of action against federal (rather than state) officials.)
  • Sharp v. Perdue, No. 2019-2393 (D.D.C. Nov. 3, 2023).published
    “the absence of express statutory authorization for such suits under title ii would seem to bar the plaintiff's fmla claims because it is axiomatic that suits against the government are barred by sovereign immunity absen…”
  • Schneider v. Winkelman, No. 3:22-cv-00284 (D. Alaska July 6, 2023).
    (Section 1983, however, provides no right of action against federal (rather than state) officials.)
  • Navarrette v. Dep't of Homeland Sec., No. 3:22-cv-00006 (S.D. Cal. May 11, 2023).
    (Section 1983 [] provides 1 no right of action against federal (rather than state) officials.)
  • Brooks, III v. U.S. Dep't of Vets. Affairs, No. 1:20-cv-23114 (S.D. Fla. Jan. 7, 2021).
    “no unequivocal waiver of immunity exists in title ii, and, consequently, the omission of a provision in title ii similar to that in title i creating a private right of action is treated as an affirmative congressional d…”
  • (PS) Sharma v. Trump, No. 2:20-cv-00944, 2020 WL 5257709 (E.D. Cal. Sept. 3, 2020).
    (Section 1983, however, provides no right of 10 action against federal (rather than state) officials.)
Show 3 more citing cases
  • Barton v. Harker, No. 3:21-cv-01332 (S.D. Cal. Jan. 24, 2023).
    “[I]t is axiomatic that suits against 13 the government are barred by sovereign immunity absent an unequivocally expressed 14 waiver”
  • Klonoski v. Wilkie, No. 1:20-cv-00067 (D. Me. Nov. 2, 2020).
    Compare 29 U.S.C. § 2617 (a)(2), with 5 U.S.C. §§ 6381 - 6387.3 See, e.g., Mann, 120 F.3d at 37 ; Russell, 191 F.3d at 1018.
  • Niimi-Montalbo v. White, 243 F. Supp. 2d 1109 (D. Haw. 2003).published 2 cites
    Russell, 191 F.3d at 1018-19.
At page 1019 Sovereign immunity bars private suits under FMLA Title II7 citing casesstating that judicial review of claims under Title II of the FMLA is permitted under the CSRA1 citing court put it this way
  • Black v. Guzman, No. 2022-1873, 2023 WL 3055427 (D.D.C. Apr. 24, 2023).published 2 cites
    Oct. 27, 2022) (same); Chandler v. Bernanke, 531 F. Supp. 2d 193, 201 (D.D.C. 2008) (same). 7 As the Fourth Circuit explained, the rationale for interpreting the statute this way is straightforward: “Title II does not contain an express pr…
  • Terry L. Whitman v. Dep't of Transp. Norman Y. Mineta, 382 F.3d 938 (9th Cir. 2004).published 2 cites
    The Mudge/ASEDAC implicit-authorization approach is inconsistent with the law of our circuit, see Russell, 191 F.3d at 1019-20; Blue, 162 F.3d at 545 ; Veit, 746 F.2d at 511 , and with principles the Supreme Court has approved.
  • Niimi-Montalbo v. White, 243 F. Supp. 2d 1109 (D. Haw. 2003).published 2 cites
    Russell, 191 F.3d at 1018-19.
  • Coulibaly v. Kerry, 130 F. Supp. 3d 140 (D.D.C. 2015).published 3 cites
    See Russell, 191 F.3d at 1019. 9 *150 The Court thus concludes that sovereign . immunity does not bar Dr. Coulibaly’s claim under Title I of the FMLA. 3.
  • Hartzler v. Wolf, No. 2020-3802 (D.D.C. Oct. 27, 2022).published
    But that dooms her FMLA claim, because while Title I employees enjoy a private right of action under the FMLA, see 29 U.S.C. § 2617 (a)(2), “Title II contains no analogous provision,” Manga, 2020 WL 1451584 , at *5 (quoting Russell v. U.S.…
  • Burg v. United States Deparment of Health & Human Servs., 387 F. App'x 237 (3d Cir. 2010).unpublished
  • Johnson v. Spencer, No. 2:19-cv-05022 (E.D. Pa. Nov. 12, 2020).
While Title I and Title II employees under the FMLA are afforded equivalent rights to leave time, Title I expressly provides a private right of action to remedy employer action violating FMLA rights.no pin page on record · 2 citing cases listed
  • Bryant, No. 1:25-cv-00166 (N.D. Ohio Sept. 15, 2026).
    (While Title I and Title II employees under the FMLA are afforded equivalent rights to leave time, Title I expressly provides a private right of action to remedy employer action violating FMLA rights.)
  • Chin v. Small Bus. Admin. of the United States, No. 3:24-cv-00732 (S.D. Cal. Jan. 10, 2025).
    (While Title I and Title II employees under the FMLA are afforded 20 equivalent rights to leave time, Title I expressly provides a private right of action to remedy 21 employer action violating FMLA rights. Title II con…)
Other citing cases9 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Theresa D. RUSSELL, and Donald Russell, individually and on behalf of the marital community and as Guardians Ad Litem for their children Jhaunea Russell, Donald Russell, Jr. and Tajah Russell
v.
UNITED STATES DEPARTMENT OF THE ARMY United States Department of the Army, Corps, of Engineers Togo D. West, Jr., Secretary of the Army Joyce E. Rolstad John Doe Rolstad, and the marital community composed thereof Jack Erlandson Jane Doe Erlandson, and the marital community composed thereof John Barrett Jane Doe Barrett, and the marital community composed thereof Sermerion Smith John Doe Smith, and the marital community composed thereof Nancy L. January John Doe January, and the marital community composed thereof
No. 98-35545.
Court of Appeals for the Ninth Circuit.
Sep 14, 1999.
Published opinion
191 F.3d 1016
99 Cal. Daily Op. Serv. 7573
1999 U.S. App. LEXIS 21953
Theresa D. Russell, Pittsburgh, Pennsylvania, in pro se for the plaintiff-appellant., Mark Chutkow, Assistant United States Attorney, Seattle, Washington, for the defendants-appellees.
Brunetti, Canby, Scannlain.
Cited by 1 opinion  |  Published
4 passages pin-cited by 5 cases
Citer courts: D. Alaska (2) · E.D. California (1) · S.D. California (1) · District of Columbia (1) · E.D. Louisiana (1)
O’SCANNLAIN, Circuit Judge:

We must decide whether federal employees covered by Title II of the Family and Medical Leave Act may bring suit for violations of its provisions.

I

From March 1989 to March 1992, Theresa Russell worked at the Army Directorate of Engineering and Housing in Hanau, Germany as a federal civil service employee. Upon her husband’s reassignment from Germany to Fort Lewis, Washington, Russell left her position at the Directorate to return to the United States and was placed on leave without pay because of her pregnancy. Following her return stateside and the birth of her son, Russell commenced work in June 1993 as an engineer technician for the Army Corps of Engineers, Seattle district.

From September to November, 1993, Russell’s son Tajah suffered from asthma due to severe upper respiratory infections, and Russell was repeatedly absent from work because of her son’s unexpected complications that required hospital visits. Russell sought information from her superiors at the Corps regarding her rights to leave time under the Family and Medical Leave Act (“FMLA”), but allegedly was not provided with that information. Russell sought retroactive leave for her absences, which was denied, and she was also denied placement upon a reduced work schedule or intermittent leave. On November 3,1993, the Corps terminated Russell’s employment because of her excessive absenteeism and tardiness.

On November 23, 1993, Russell filed an appeal with the Merits Systems Protection Board challenging her termination. The ALJ dismissed Russell’s appeal because[*1018] the Board lacked jurisdiction over her claim. Russell did not appeal the ALJ’s decision. In December, Russell lodged an informal complaint of racial discrimination with the Equal Employment Opportunity Compliance and Complaint Review (“EEOCCR”) office of the Army. In response to her informal complaint, and following counseling, Russell was notified of her right to file a formal complaint. Russell filed a formal EEOCCR complaint on January 5, 1994, alleging unequal treatment and wrongful termination. On May 24, 1994, the investigator assigned to Russell’s case concluded that the Corps had not discriminated against her by denying leave under the FMLA and terminating her employment. At that time, Russell had the option of requesting a hearing before an Equal Employment Opportunity Commission ALJ or a final decision by the EEOCCR of the Army. Russell requested the latter, and in its final decision, the EEOCCR adopted the conclusion of the investigator. Russell did not appeal the EEOCCR’s decision to the EEOC.

Russell next brought suit in the United States District Court for the Western District of Washington, alleging claims of discrimination under the FMLA, and various other claims not before us on appeal. Russell was represented by counsel in the district court. The government moved to dismiss Russell’s FMLA claims, asserting that the FMLA does not provide a private right of action for federal employees to enforce its provisions. The district court agreed and dismissed Russell’s FMLA claims. Russell brought this pro se appeal.

II

The FMLA grants private and federal employees an entitlement to periods of leave for certain enumerated circumstances. See, e.g., 29 U.S.C. § 2612(a)(1); 5 U.S.C. § 6382(a)(1). Title II of the FMLA, 5 U.S.C. § 6381 et seq., governs leave for federal civil service employees with more than twelve months of service; Title I, 29 U.S.C. § 2601 et seq., governs leave for private employees and federal employees not covered by Title II.[1] The parties do not dispute that Russell was a Title II employee; Russell, in fact, expressly asserted before the district court that she was a Title II employee because she “was employed by the Department of the Army for over twelve months,” and the magistrate judge so found. Russell’s representations and the magistrate judge’s finding are in accord with the record, which reveals that Russell did not terminate her employment with the Department of the Army upon leaving Germany, but rather, was placed on leave. Russell was employed by the Department of the Army for far more than twelve months, and was therefore a Title II employee. See 5 U.S.C. § 6381(1)(B).

While Title I and Title II employees under the FMLA are afforded equivalent rights to leave time, Title I expressly provides a private right of action to remedy employer action violating FMLA rights. See 29 U.S.C. § 2617(a)(2). Title II contains no analogous provision. See 5 U.S.C. §§ 6381-6387. The absence of express statutory authorization for such suits under Title II would seem to bar Russell’s FMLA claims because it is axiomatic that suits against the government are barred by sovereign immunity absent an unequivocally expressed waiver. See Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir.), cert. denied, — U.S. -, 118 S.Ct. 62, 139 L.Ed.2d 25 (1997) (citing Lehman v. Nakshian, 453 U.S. 156, 160-61, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981)); see also Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 734, 102 S.Ct. 2118,[*1019] 72 L.Ed.2d 520 (1982) (stating that suits against the government may proceed “only if Congress has consented to suit; a waiver of the traditional sovereign immunity cannot be implied but must be unequivocally expressed” (internal quotation marks and citations omitted)). Russell provides no legal argument on this point; the government relies upon the Fourth Circuit’s decision in Mann v. Haigh, 120 F.3d 34 (1997) (“Mann ”), the only published opinion by a federal court of appeals to consider whether Title II employees may bring suit against the government for alleged violations of the FMLA.

As its premise, the Fourth Circuit recognized in Mann that suits against the government are barred by sovereign immunity absent unequivocal and express waiver. See id. at 37. Accordingly, the Fourth Circuit held that:

No unequivocal waiver of immunity exists in Title II, and, consequently, the omission of a provision in Title II similar to that in Title I creating a private right of action is treated as an affirmative congressional decision that the employees covered by Title II of the FMLA should not have a right to judicial review of their FMLA claims through the FMLA. Accordingly, Title II of the FMLA creates neither an express nor an implied right of action whereby [covered] employees may obtain judicial review of adverse employment decisions.

Id. We agree with the Fourth Circuit’s reasoning and similarly conclude that the absence of an express waiver of the government’s sovereign immunity in Title II of the FMLA bars private suits for violations of its provisions.

Ill

In the district court, Russell alternatively argued that review of FMLA violations is available under the Administrative Procedure Act (“APA”). See 5 U.S.C. § 702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ... is entitled to judicial review thereof.”). The government asserts that the Civil Service Reform Act (scattered sections of 5 U.S.C.) (“CSRA”) preempts APA review of FMLA claims, again relying on the Fourth Circuit’s decision in Mann. There, the Fourth Circuit held that, “in view of the comprehensiveness of the CSRA ... the CSRA prevents [government] employees from obtaining judicial review of an adverse employment decision under the APA.” Mann, 120 F.3d at 38.

In Veit v. Heckler, we similarly recognized that “[t]he CSRA provides a comprehensive scheme for administrative and judicial review of federal personnel actions and practices.” 746 F.2d 508, 510 (9th Cir.1984). Thus, we held that the CSRA precluded APA review of such actions and practices, stating that “the comprehensive nature of the procedures and remedies provided by the CSRA indicates a clear congressional intent to permit federal court review as provided in the CSRA or not at all.” Id. at 511; accord Moore v. Glickman, 113 F.3d 988, 994 n. 7 (9th Cir.1997). Consistent with our own precedent and the Fourth Circuit’s decision in Mann, we conclude that APA review of Russell’s FMLA claims is preempted by the CSRA.

IV

In the district court, Russell sought leave to amend in order to allege claims under 42 U.S.C. § 1983 against the various government officials for unspecified violations of her constitutional rights. Section 1983, however, provides no right of action against federal (rather than state) officials. See Gibson v. United States, 781 F.2d 1334, 1343 (9th Cir.1986) (“Federal officers acting under federal authority are immune from suit under section 1983”). Thus, the district court construed the request as an attempt to allege a Bivens action against the federal officials for the alleged constitutional violations. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). As the district court correctly noted, however,[*1020] we have consistently held that the CSRA preempts Bivens actions and other suits for constitutional violations arising from governmental personnel actions. See Brock v. United States, 64 F.3d 1421, 1425 (9th Cir.1995) (“The CSRA is the exclusive remedy for all prohibited personnel actions.”); Saul v. United States, 928 F.2d 829, 839-40 (9th Cir.1991) (“CSRA preclusion of Bivens claims applies even absent any CSRA remedy.”). Thus, amendment would have been futile, and the district court did not err by denying leave to amend. See, e.g., Dumas v. Kipp, 90 F.3d 386, 389 (9th Cir.1996) (holding that dismissal without leave to amend is appropriate where further amendment would be futile).

V

For the foregoing reasons, Russell’s claims under Title II of the Family and Medical Leave Act are barred by sovereign immunity and preempted by the Civil Service Reform Act.

AFFIRMED.

1

Through a series of nested definitions, an employee under Title II of the FMLA includes "an individual who is appointed in the civil service by ... a member of a uniformed service,” 5 U.S.C. § 2105(a)(1)(C), who "has completed at least 12 months of service as an employee,” id. § 6381(1)(B); see also id. § 6381(1)(A) (defining employee under Title II of the FMLA by reference to § 6301(2)); id. § 6301(2) (defining employee under FMLA by reference to § 2105).