AYYAKKANNU MANIVANNAN v. UNITED STATES DEPARTMENT OF ENERGY; UNITED STATES OF AMERICA
No. 20-3463
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
July 26, 2022
PRECEDENTIAL. Argued on November 18, 2021.
Before: AMBRO, JORDAN, and ROTH, Circuit Judges
Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2-18-cv-00297) Magistrate Judge: Honorable Maureen P. Kelly
Dylan F. Henry
John J. Powell (Argued)
Kimberly L. Sachs
Montgomery McCracken Walker & Rhoads
1735 Market Street
21st Floor
Philadelphia, PA 19103
Counsel for Appellant
Laura S. Irwin
Matthew S. McHale (Argued)
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellees
AMBRO, Circuit Judge
Ayyakkannu Manivannan, a former government scientist, resigned from his job with the U.S. Department of Energy following allegations of disturbing actions taken against an intern. The allegations prompted both an internal investigation and a state criminal prosecution. Manivannan has since filed several lawsuits relating to those events, including this one. Here he asserts Privacy Act,
At issue is whether the Magistrate Judge properly dismissed these federal statutory claims for lack of subject matter jurisdiction. The Magistrate Judge held them precluded by the Civil Service Reform Act (CSRA),
I. Background
Manivannan asserts he is one of the leading materials scientists in the United States. He was hired by the federal Department of Energy (DOE) in 2005 and assigned to the National Energy Technology Laboratory in Morgantown, West Virginia.
Conflict best defined Manivannan‘s time at the DOE. He was mired in disputes with his supervisors, including Dr. Randall Gemmen. Their feud began in 2010, when one of Gemmen‘s mentees removed Manivannan‘s co-author attribution from a paper. That incident ended with Gemmen
A more serious conflict was to follow. In 2015, Gemmen and Alvin learned from an administrator at Pennsylvania State University that a former DOE student-intern had alleged a sexual relationship with Manivannan and accused him of inappropriate and abusive behavior. The DOE began an internal investigation, titled a Management Directed Inquiry, and placed Manivannan on administrative leave. The investigation—conducted by outside counsel Marissa Williams with assistance from Mark Hunzeker, a DOE lawyer—resulted in a final report quite unfavorable to Manivannan. See generally Manivannan v. Dep‘t of Energy, No. PH-1221-18-0230-W-3, 2020 WL 1130149 (M.S.P.B. Mar. 4, 2020).
Meanwhile, the District Attorney for Centre County, Pennsylvania, was pursuing criminal charges against Manivannan based on his alleged misconduct. In March 2015, he was charged with two misdemeanors: stalking and harassment. Hunzeker reached out to the prosecutors early the next year and offered them information he thought could aid their case. Following that conversation, the Commonwealth charged Manivannan with five felony counts of unlawful use of a computer premised on the theory that on several occasions he hacked into the intern‘s email account.
Manivannan alleges that Hunzeker encouraged the state prosecutors to subpoena the DOE for internal records relating to Manivannan, even drafting the subpoena himself. Responding to that subpoena, Hunzeker produced several DOE records, including the internal investigation report and approximately 1,500 pages of . . . e-mails, time and attendance records, travel records, telephone records, and other records. J.A. 186. He allegedly continued to communicate with the prosecutors, providing them with information throughout their pretrial preparations.
Following a two-day trial, the jury acquitted Manivannan of stalking but convicted him of harassment and unlawful use of a computer. He appealed and the Pennsylvania Superior Court vacated the convictions, holding (among other things) that certain evidence regarding Manivannan‘s alleged hacking was improperly admitted. See Commonwealth v. Manivannan, 186 A.3d 472, 488-89 (Pa. Super. Ct. 2018). It remanded for a new trial. Id. at 489. On remand, the state prosecutors dismissed the charges with prejudice.
Shortly before the criminal trial, the DOE began removal proceedings against Manivannan. He resigned from his position before he could be fired. His separation from the DOE was documented in a Standard Form 50 (Form 50) that states: Agency finding: Resigned after receiving written notice on April 8, 2016, of proposal to separate due to employee misconduct. J.A. 180. The DOE refused to allow Manivannan or his attorney to collect his personal belongings—including custom-built diamond sensor electrodes—from his office following his resignation.
A. Post-Resignation Litigation
Manivannan then launched a series of lawsuits. In April 2017, he filed a pro se complaint in West Virginia state court seeking to recover his personal belongings. See Manivannan v. Bochenek, No. 17-cv-216, 2018 WL 3069202, at *1 (N.D.W. Va. Feb. 21, 2018). That case was removed to federal court and then dismissed for failure to exhaust administrative remedies. Id. at *1, *4.
Later that year, Manivannan filed another pro se complaint, this time in the U.S. District Court for the Northern District of West Virginia. It again sought return of his personal property as well as to compel the DOE to produce certain documents under the Freedom of Information Act. That Court dismissed the property-return claim (again on exhaustion grounds) but allowed the document-request claim to proceed. On appeal, the U.S. Court of Appeals for the Fourth Circuit affirmed in part, reversed in part, and remanded for further proceedings. See Manivannan v. Dep‘t of Energy, 843 F. App‘x 481, 484-85 (4th Cir. 2021).
Most relevant here, Manivannan also filed a complaint with the federal Office of Special Counsel asserting that several of the personnel decisions made by the DOE during his employment were intended to punish him for protected conduct. See Manivannan, 2020 WL 1130149. He challenged (1) a 2011 department transfer, (2) the initiation of the 2015 internal investigation, (3) a 2014 department transfer, (4) a change in duties after the termination of a research project, (5) his proposed removal, and (6) his supervisors’ alleged creation of a hostile work environment. Id. Manivannan asserted that these personnel decisions were made to retaliate against him for whistleblowing on Gemmen, Alvin, and others for abusing their authority. Id.
The Office of Special Counsel declined to pursue Manivannan‘s complaints. In March 2018, he appealed that decision to the Merit Systems Protection Board (an executive branch agency authorized to hear such appeals). An administrative judge found that Manivannan failed to establish a prima facie case of whistleblower retaliation. See id. The judge also noted, without analysis, that he did not deem the [DOE‘s] cooperation with the prosecutor‘s office a personnel action implicating the Board‘s jurisdiction. See id. at n.8. Manivannan appealed to the U.S. Court of Appeals for the Federal Circuit, which affirmed without opinion. See Manivannan v. Dep‘t of Energy, No. 20-1804, 2021 WL 4735304 (Fed. Cir. Oct. 12, 2021).
B. This Action
In March 2018, Manivannan (now counseled) sued in the U.S. District Court for the Western District of Pennsylvania, alleging that the DOE‘s production of records to state prosecutors violated the Privacy Act. He filed a separate action in that District the next year asserting three Tort Claims Act violations against the DOE. The cases were consolidated, and Manivannan filed a single amended complaint asserting seven counts.
Two counts alleged that the DOE violated the Privacy Act by disclosing information and records to state prosecutors without Manivannan‘s consent (Count I), along with failing to (a) ensure the accuracy and completeness of the internal investigation report and (b) maintain an accurate Form 50 (Count II). Five counts were brought under the Tort Claims Act: a conversion claim premised on the DOE‘s refusal to return Manivannan‘s personal property (Count III), negligence claims tied to its internal investigation and failure to maintain an accurate Form 50 (Counts IV and V), an invasion-of-privacy claim arising from Williams‘s conduct during the internal investigation (Count VI), and an intentional-infliction-of-emotional-distress claim resting on Hunzeker‘s cooperation with the state prosecutors (Count VII).
The Government moved to dismiss the complaint in its entirety for lack of subject
The Magistrate Judge accepted the Government‘s jurisdictional argument without addressing its other grounds for dismissal. She held that, regardless of the existence of separate remedies under the Privacy Act or under common law as to his [Tort Claims Act action], Manivannan‘s claims arise because of his DOE employment and thus must be pursued through the CSRA review process. J.A. 14 (emphasis in original). He appeals that conclusion to us.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under
We review anew (de novo) an order dismissing a claim for lack of subject matter jurisdiction. In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 632 (3d Cir. 2017). A jurisdictional challenge may be facial (in that it attacks the complaint without disputing its allegations) or factual (by presenting competing facts undermining federal jurisdiction). Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). Because the challenge here is facial, we accept the complaint‘s well pled allegations as true, id., and review the allegations of the complaint and documents referenced therein and attached thereto[] in the light most favorable to the plaintiff, Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).2
III. Discussion
Ostensibly, this is a Privacy Act and Tort Claims Act lawsuit. Those are federal claims, and a federal court would normally have jurisdiction to review them (assuming all other jurisdictional requirements are met). See
That Act governs the rights and obligations of most federal employees. As we will explain, it provides exclusive administrative and judicial review procedures for disputes falling in its ambit. The Government, construing the statute broadly, submits that its exclusive review procedures bar a federal court from exercising jurisdiction over any claim aris[ing] in the [federal] employment context. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003) (per curiam). If so, none of Manivannan‘s claims may be heard in a district court because they all clearly arose in the context of his work with the DOE. But the CSRA does not sweep so wide. Rather, for reasons discussed below, it precludes a court from addressing an otherwise reviewable claim only if that claim challenges an employment matter covered by the statute.
A. CSRA Preclusion
Before the CSRA‘s enactment, courts routinely exercised jurisdiction to review a variety of administrative actions against [federal] employees, such as denials of promotions and denials of leave requests. Barbara A. Atkin, Elaine Kaplan & Gregory O‘Duden, Wedging Open the Courthouse Doors: Federal Employee Access to Judicial Review of Constitutional and Statutory Claims, 12 Emp. Rts. & Emp. Pol‘y J. 233, 244 (2008). But this patchwork system of review led to wide variations in the kinds of decisions issued on the same or similar matters. Elgin v. Dep‘t of Treasury, 567 U.S. 1, 13-14 (2012) (alteration in original) (quoting United States v. Fausto, 484 U.S. 439, 444-45 (1988)).
The CSRA, by contrast, offers an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration. Fausto, 484 U.S. at 445. It does so by channeling certain employment disputes—primarily, those arising from actions based on unacceptable job performance, adverse action[s], and prohibited personnel practices—to the Merit Systems Protection Board, with judicial review of its decision available in the U.S. Court of Appeals for the Federal Circuit. See id. at 445-47 (internal quotation marks omitted); see also
In Elgin, the Supreme Court examined the CSRA‘s text, structure, and purpose to hold that where the statute grants an employee administrative and judicial review of a claim, it bars that employee from seeking review beyond what the statute allows. 567 U.S. at 10-11. The plaintiffs there were fired from their federal employment for failing to comply with the Military Selective Service Act and sought to challenge that Act in district court on constitutional grounds. Id. at 6-7. But the Supreme Court, looking to the underlying conduct challenged by the plaintiffs, determined that their constitutional claims were merely a vehicle for reversing their terminations and returning to federal employment. Id. at 22. Such a dispute was, in turn, precisely the type of personnel action covered by the CSRA and heard regularly before the Protection Board. Id. Because the statute was intended to foreclose covered employees from contesting covered employment actions outside the statutory scheme, the Court held that the plaintiffs’ challenge to their terminations—though dressed as a federal constitutional claim—had to proceed via the review procedures outlined in the CSRA. Id. at 11-12, 22-23.
And while Elgin considered only constitutional claims, rather than Privacy Act and Tort Claims Act claims, we are persuaded its reasoning extends to those statutory causes of action. As the Elgin Court noted, the CSRA‘s review scheme is exclusive. Id. at 13. An action covered by that statute is confined to the remedies it offers. See, e.g., Mangano v. United States, 529 F.3d 1243, 1247-48 (9th Cir. 2008) (claims brought under the Tort Claims Act challenging a CSRA-covered personnel action are precluded); Kleiman v. Dep‘t of Energy, 956 F.2d 335, 338 (D.C. Cir. 1992) (same as to Privacy Act claims).
But how broad is the CSRA‘s preclusive scope? The Government, relying on our pre-Elgin decision in Sarullo v. U.S. Postal Service, submits that it blocks district court review whenever the plaintiff‘s status as a federal employee is central to his complaint. Gov‘t Br. at 31 (quoting Sarullo, 352 F.3d at 796). But Sarullo, unlike this case, arose in the Bivens context and derives its holding from the Supreme Court‘s Bivens case law. See 352 F.3d at 794 n.3, 795. That case law, in turn, provides a judicially created damages remedy for a handful of constitutional violations. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971); Egbert v. Boule, 142 S. Ct. 1793, 1802-03 (2022). Because such a remedy is disfavored, the Supreme Court will extend it to new contexts only where “special factors” do not counsel against doing so. Egbert, 142 S. Ct. at 1803. Thus in Bush v. Lucas—the case relied on in our Sarullo decision—the Court merely declined to extend Bivens to the federal employment context given the CSRA‘s expansive remedial scheme. 462 U.S. 367, 388-90 (1983) (the existence of the CSRA and its remedies is a special factor counseling hesitation in extending Bivens to the employment context); see also Lombardi v. Small Bus. Admin., 889 F.2d 959, 961 (10th Cir. 1989) (same). So Sarullo‘s broad rule is not necessarily persuasive here, where Manivannan is not trying to assert a Bivens claim.
The language of the CSRA itself supports a more tailored approach. As noted, it funnels only certain employment disputes to the Protection Board. An employee may, for instance, appeal to it adverse actions, defined to include certain removals, suspensions, furloughs, and reductions in grade or pay. See
(2) For purposes of this section—
(A) “personnel action” means—
- an appointment;
- a promotion;
- an action under chapter 75 of this title or other disciplinary or corrective action;
- a detail, transfer, or reassignment;
- a reinstatement;
- a restoration;
- a reemployment;
- a performance evaluation under chapter 43 of this title or under title 38;
- a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;
- a decision to order psychiatric testing or examination;
the implementation or enforcement of any nondisclosure policy, form, or agreement; and - any other significant change in duties, responsibilities, or working conditions.
The Government points to no statutory language suggesting that any dispute primarily involving a plaintiff‘s federal employment needs to be heard by the Protection Board. Congress has instead carefully defined the types of employment actions subject to the CSRA‘s review scheme, and these statutory definitions must guide the preclusion analysis. See, e.g., Orsay v. U.S. Dep‘t of Just., 289 F.3d 1125, 1131 (9th Cir. 2002) (In order for the CSRA to preempt a federal cause of action, the underlying conduct must involve ‘personnel action,’ which the statute defines.), abrogated on other grounds by Millbrook v. United States, 569 U.S. 50 (2013); see also Schmittling v. Dep‘t of Army, 219 F.3d 1332, 1336 (Fed. Cir. 2000) (noting that the Board‘s jurisdiction is limited to those matters specifically entrusted to it by statute or regulation (internal quotation marks omitted)).
This is a narrower inquiry than the one advanced by the Government, but it is consistent with Elgin, which explained that whether the CSRA prevents a federal action turns on the type of the employee and the challenged employment action. 567 U.S. at 15 (emphasis added). If the employee‘s federal suit is, at bottom, challenging an employment action within the Protection Board‘s jurisdiction, then it must proceed through the review process provided in the CSRA. Id. at 22. Inversely, if the employee is not challenging an action covered by the CSRA, the Board will not have jurisdiction, and the suit must proceed in a different forum.
Thus, when assessing whether the CSRA bars federal jurisdiction over an otherwise reviewable claim, courts should look to the specific underlying conduct being challenged to determine whether that conduct is an employment action covered by the statute. See id.; Orsay, 289 F.3d at 1131; Mangano, 529 F.3d at 1247. Given the statute‘s comprehensive scope, see Fausto, 484 U.S. at 448, they need not apply a cramped construction of its terms, Saul v. United States, 928 F.2d 829, 834 (9th Cir. 1991). Still, the jurisdictional analysis must be tied to the employment actions set out; the mere fact that the challenged conduct occurred in the federal employment context is not enough to bring it within the CSRA‘s exclusive ambit.
B. Manivannan‘s Claims
Manivannan premises his statutory claims on the following conduct: (1) Marissa Williams‘s failure to take reasonable measures to ensure the accuracy and completeness of the DOE‘s internal investigation; (2) Mark Hunzeker‘s disclosure of the internal investigation report and other DOE records to state prosecutors; and (3) the DOE‘s refusal to return Manivannan‘s personal property following his resignation.3
We cannot say the same for Manivannan‘s other claims. As to those caused by Hunzeker‘s alleged collusion, a DOE lawyer‘s decision to disclose an employee‘s records to state prosecutors is not an adverse action, see
Similarly, the DOE‘s refusal to return Manivannan‘s personal property is not an employment action subject to the Board‘s jurisdiction. He expressly alleges that these personal belongings were not derived in any way from his employment by the DOE. J.A. 191. Even construing the CSRA‘s language broadly, we fail to see how an employer‘s alleged conversion of a former employee‘s personal property, unrelated to the latter‘s federal employment, constitutes a disciplinary or corrective action,
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While we affirm the Magistrate Judge‘s dismissal of claims tethered to employment conduct covered by the CSRA (Counts II, IV, V, and VI), we reverse as to those claims based on the DOE‘s alleged cooperation with state prosecutors and failure to return Manivannan‘s personal property (Counts I, III, and VII).
The surviving Privacy Act and Tort Claims Act counts may well fail for reasons unrelated to CSRA preclusion. But because they do not concern employment actions covered by that statute, Manivannan was entitled to present them to a federal district court. We remand for the Magistrate Judge to consider whether they can withstand the other arguments raised in the Government‘s motion to dismiss.