Clary, et al v. Brownfield, et al

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10656
Summary Calendar
KENNETH W CLARY; CAROLYN J CLARY,
Plaintiffs-Appellants,
VERSUS
JIM BROWNFIELD; GLENN HIXSON; VEDA HARBISON,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas, Fort Worth
(4:99-CV-535-Y)
January 24, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiffs Kenneth W. Clary and Carolyn J. Clary appeal the
Federal Rule of Civil Procedure 12(b)(6) dismissal of their claim
that defendant failed to accurately maintain Kenneth Clary’s
employment records and caused him to be denied a promotion, as well
as their claims for slander and defamation. The district court
concluded that it lacked subject matter jurisdiction over

-- 1 of 2 --

2
Plaintiffs’ claims, which are preempted by the Civil Service Reform
Act of 1978, Pub.L.No. 95-454, 92 Stat. 111 (codified as amended in
Title 5, United States Code)(“CSRA”). On appeal, Plaintiffs
contend that the district court abused its discretion in failing to
remand the case to state court, in denying leave to amend the
complaint and in dismissing the case before they conducted
discovery.
Plaintiffs’ claims arose from Kenneth Clary’s employment with
the Federal Aviation Administration. Because all of his claims
were preempted by the CSRA, the district court did not abuse its
discretion in dismissing the case rather than remanding it to state
court. Bush v. Lucas, 462 U.S. 367, 368 (1983).
Clary was allowed to file a more definite statement and to
respond to defendants’ motion to dismiss, but still failed to state
a cognizable claim. The district court did not abuse its
discretion in denying yet another leave to amend. Foman v. Davis,
371 U.S. 178, 182 (1962). Finally, we find no abuse of discretion
granting a motion to dismiss prior to discovery. Plaintiffs’ claims
were dismissed for failure to state a claim, not for insufficient
development of facts.
For the foregoing reasons, the district court’s order of
dismissal is AFFIRMED.

-- 2 of 2 --