Thayne Griener v. United States
900 F.3d 700
| 5th Cir. | 2018Background
- Dr. Thayne Griener, a part‑time VA otolaryngologist (avg. 35 hrs/wk), was terminated in 2012; he alleges the firing was retaliation for whistleblowing about VA medical practices.
- Griener filed an MSPB appeal (denied) and an administrative FTCA claim with the VA (denied); he never petitioned the Office of Special Counsel (OSC).
- He sued under the FTCA in federal court asserting intentional/negligent infliction of emotional distress, tortious interference, and related torts.
- The United States moved to dismiss under Rule 12(b)(1), arguing the Civil Service Reform Act (CSRA) preempts FTCA claims that arise from adverse employment actions.
- The district court dismissed for lack of subject‑matter jurisdiction; the Fifth Circuit affirmed that the CSRA preempts Griener’s FTCA claims but modified the dismissal to be without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CSRA preempts FTCA tort claims based on alleged retaliatory discharge | Griener: CSRA does not permit him individual MSPB review as a part‑time physician, so he may pursue FTCA tort claims in district court | U.S.: CSRA provides the exclusive remedial scheme for personnel actions and therefore preempts FTCA claims tied to employment decisions | CSRA preempts FTCA claims based on the same facts as CSRA personnel claims; dismissal for lack of jurisdiction affirmed |
| Whether an OSC remedy is available/required before a district court suit | Griener: contends statutory exceptions (e.g., §7405/§2105 interplay) permit FTCA suit | U.S.: §2105(f) and CSRA structure make part‑time VA physicians "employees" for prohibited personnel practices and OSC/MSPB process is the proper remedy | OSC/MSPB process is the available CSRA remedy; Griener’s failure to seek OSC relief means FTCA suit is preempted |
| Whether the dismissal should be with or without prejudice | Griener: urged unfairness given administrative dismissals | U.S.: dismissal appropriate for lack of jurisdiction | Dismissal for lack of subject‑matter jurisdiction must be without prejudice; district court’s with‑prejudice dismissal was modified to without prejudice |
Key Cases Cited
- United States v. Fausto, 484 U.S. 439 (1988) (CSRA is an exclusive, comprehensive remedial scheme for federal personnel actions)
- Elgin v. Dep’t of Treasury, 567 U.S. 1 (2012) (CSRA’s scheme forecloses other judicial review outside its procedures)
- Mangano v. United States, 529 F.3d 1243 (9th Cir. 2008) (CSRA preempts non‑CSRA causes of action arising from termination)
- Grisham v. United States, 103 F.3d 24 (5th Cir. 1997) (CSRA/WPA preclusion of other remedies for covered employment disputes)
- Broadway v. Block, 694 F.2d 979 (5th Cir. 1982) (OSC authority to investigate prohibited personnel practices and seek MSPB corrective action)
- Tubesing v. United States, 810 F.3d 330 (5th Cir. 2016) (affirming dismissal where FTCA claims were precluded by CSRA)
- In re FEMA Trailer Formaldehyde Prod. Liab. Litig., 668 F.3d 281 (5th Cir. 2012) (Rule 12(b)(1) jurisdictional dismissal standards)
- Campos v. United States, 888 F.3d 724 (5th Cir. 2018) (jurisdictional dismissals must not be entered with prejudice)
- Voisin’s Oyster House, Inc. v. Guidry, 799 F.2d 183 (5th Cir. 1986) (dismissal for lack of jurisdiction is without prejudice)