Mangano v. United States ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS T. MANGANO, Ph.D., M.D.,  No. 05-17334
Plaintiff-Appellant,
v.  D.C. No.
CV-05-02836-PJH
UNITED STATES OF AMERICA,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted November 9, 2007*
San Francisco, California
Filed July 1, 2008
Before: Cynthia Holcomb Hall and Jay S. Bybee,
Circuit Judges, and Frank R. Zapata,** District Judge.
Opinion by Judge Bybee
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Frank R. Zapata, United States District Judge for the
District of Arizona, sitting by designation.
7955
MANGANO v. UNITED STATES 7957
COUNSEL
Janine D. Bloch, Preston Gates & Ellis LLP, San Francisco,
California, for the plaintiff-appellant.
Katherine B. Dowling, Assistant United States Attorney,
Northern District of California, San Francisco, California, for
the defendant-appellee.
7958 MANGANO v. UNITED STATES
OPINION
BYBEE, Circuit Judge:
Dr. Dennis Mangano brought suit under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80, for
emotional distress and other injuries allegedly suffered in con-
nection with his termination from the San Francisco Veterans
Administration Medical Center. The district court found that
his claims are preempted by the Civil Service Reform Act
(“CSRA”) and dismissed the suit. Dr. Mangano contends that
the district court erred because he was hired under a provision
that allows the Veterans’ Administration (“VA”) to employ
part-time physicians “without regard to civil service or classi-
fication laws, rules, or regulations.” 38 U.S.C. § 7405(a). He
relies on Orloff v. Cleland, in which we held that the “civil
service laws [do] not apply to part-time physicians employed
by the VA.” 708 F.2d 372, 376 (9th Cir. 1983). As we discuss
in greater detail below, after Orloff was decided, Congress
amended the CSRA to apply selectively to part-time physi-
cians. 5 U.S.C. § 2105(f). We hold that Dr. Mangano’s tort
claims are subject to CSRA preemption and affirm the judg-
ment.
I
The underlying tort claims in this case arose out of a vari-
ety of employment-related incidents while Dr. Mangano was
working at the San Francisco Veterans Administration Medi-
cal Center.1 He had been appointed in 1991 to a part-time
position at the Medical Center pursuant to 38 U.S.C.
§ 7405(a)(1)(A). Dr. Mangano specialized in high-risk cardiac
surgery and, prior to 1997, consistently received high ratings
in his performance reviews.
1
Because of the procedural posture of the case, we must accept as fact
Dr. Mangano’s allegations.
MANGANO v. UNITED STATES 7959
In 1997, as Dr. Mangano was preparing for surgery, he
learned that his Service Chief, Dr. Cason, had removed a
machine Dr. Mangano needed from the operating room and
taken it to the animal lab. Dr. Mangano discovered that physi-
cians had failed repeatedly to clean thoroughly the equipment
used on animals before using it on VA patients, and he filed
a formal complaint. Although an Administrative Board of
Inquiry recommended that Dr. Cason be disciplined for “un-
ethical” conduct, he was later promoted to Chair of the Oper-
ating Room Committee.
Dr. Mangano contends that in retaliation for raising his
concerns, Dr. Cason began filing various minor formal com-
plaints against him, including that he was late for work, used
his telephone for personal calls, and switched on-call duties
with other physicians. Dr. Mangano also alleges that Dr.
Cason inappropriately criticized his handling of a patient and
provided false testimony against him. In 2000, the Medical
Center initiated Quality Assurance (“QA”) and Administra-
tive Board of Inquiry (“ABI”) proceedings against Dr. Man-
gano arising from a minor incident in a case where Dr.
Mangano was part of the surgical team. Dr. Mangano con-
tends that he had not performed that procedure. Dr. Mangano
claims that these incidents ultimately led to his termination
and deprived him of the ability to practice medicine.
Dr. Mangano brought this action in district court in July
2005, seeking damages against the United States under the
FTCA, for intentional infliction of emotional distress and
intentional interference with the right to practice a lawful pro-
fession. The United States filed a motion to dismiss for lack
of subject matter jurisdiction, arguing that Dr. Mangano’s
FTCA claims were preempted by the CSRA. The district
court agreed and dismissed his claims. Dr. Mangano timely
appealed.2
2
We review the district court’s dismissal for lack of subject matter juris-
diction de novo. Orsay v. U.S. Dep’t of Justice, 289 F.3d 1125, 1128 (9th
Cir. 2002).
7960 MANGANO v. UNITED STATES
Independent of his tort suit, Dr. Mangano filed an Individ-
ual Right of Action (“IRA”) under the CSRA. See 5 U.S.C.
§ 1221. His IRA claim was pending before the Merit Systems
Protection Board at the time the briefs in this case were filed.
II
Congress enacted the CSRA in 1978 to replace the old civil
service system, an “outdated patchwork of statutes and rules
built up over almost a century.” United States v. Fausto, 484
U.S. 439, 444 (1988) (internal quotation marks and citation
omitted). The heavily criticized pre-existing system involved
“haphazard arrangements for administrative and judicial
review of personnel action” depending on an employee’s clas-
sification and the type of personnel decision. Id. By enacting
the CSRA, Congress created “an integrated scheme of admin-
istrative and judicial review, designed to balance the legiti-
mate interests of the various categories of federal employees
with the needs of sound and efficient administration.” Id. at
445.
[1] The CSRA creates a “remedial scheme through which
federal employees can challenge their supervisors’ ‘prohibited
personnel practices.’ ” Orsay v. U.S. Dep’t of Justice, 289
F.3d 1125, 1128 (9th Cir. 2002) (quoting 5 U.S.C. § 2302). If
the challenged conduct “falls within the scope of the CSRA’s
‘prohibited personnel practices,’ then the CSRA’s administra-
tive procedures are [the employee’s] only remedy.” Id. The
CSRA’s remedial scheme is both exclusive and preemptive
because “permit[ting] FTCA claims to supplant the CSRA’s
remedial scheme” would defeat Congress’ purpose of creating
“a single system of procedures and remedies, subject to judi-
cial review.” Rivera v. United States, 924 F.2d 948, 951 (9th
Cir. 1991). Accordingly, where Congress has provided a pro-
cess for processing prohibited personnel practices, other
potential employee remedies are preempted. See Fausto, 484
U.S. at 455. In fact, a federal employee’s personnel-related
complaints are preempted “even if no remedy [is] available
MANGANO v. UNITED STATES 7961
. . . under the CSRA.” Collins v. Bender, 195 F.3d 1076, 1079
(9th Cir. 1999); see Bush v. Lucas, 462 U.S. 367, 388 (1983);
Blankenship v. McDonald, 176 F.3d 1192, 1195 (9th Cir.
1999).
A
Dr. Mangano contends that he is not subject to CSRA pre-
emption because he was not employed as a full-time civil ser-
vant, but rather was hired as a part-time physician pursuant to
38 U.S.C. § 7405(a)(1)(A). That section provides that the Vet-
erans Health Administration may employ part-time physicians
“without regard to civil service or classification laws, rules, or
regulations.” Id. § 7405(a). Dr. Mangano argues that this stat-
utory language specifically exempts his employment from all
laws, rules, or regulations relating to civil servants.
In support of his argument, Dr. Mangano cites Orloff v.
Cleland, where we concluded that the “plain language of the
statute states that civil service laws shall not apply to part-
time physicians employed by the VA.” 708 F.2d 372, 376 (9th
Cir. 1983). In Orloff, a part-time physician hired under the
predecessor statute to 38 U.S.C. § 7405(a) sought the proce-
dural protections of the Veterans’ Preference Act to contest
termination of his employment. Id. at 375-76. We held that
the civil service laws did not apply to part-time physicians
like Orloff. Id. at 376.
[2] Dr. Mangano’s reliance upon Orloff is misplaced.
Eleven years after the Orloff decision, Congress amended the
CSRA to provide that “employees appointed under chapter 73
or 74 of title 38 shall be employees” for purposes of various
sections under the CSRA, including § 2302, which governs
prohibited personnel practices. 5 U.S.C. § 2105(f). We can
give full effect to both 38 U.S.C. § 7405(a) and 5 U.S.C.
§ 2105(f). Section 7405(a) authorizes the Secretary of Veter-
ans Affairs to hire part-time physicians “without regard to
civil service or classification laws, rules or regulations;”
7962 MANGANO v. UNITED STATES
§ 2105(f) makes employees hired under the authority of 38
U.S.C. § 7405 subject to 5 U.S.C. § 2302. To the extent there
is any tension at all between these provisions, § 2105 must
govern, because “conflicting statutes should be interpreted so
as to give effect to each but to allow a later enacted, more spe-
cific statute to amend an earlier, more general statute.” Acosta
v. Gonzales, 439 F.3d 550, 555 (9th Cir. 2006) (internal quo-
tation marks omitted). There is no conflict. In effect,
§ 2105(f) is an exception to a carve-out. The two sections
should be read together to say that the Secretary may hire cer-
tain part-time employees; such employees are hired without
regard to the civil service classification law, rules or regula-
tions, except that, such part-time employees will be treated as
employees for various purposes, including § 2302. Congress
could not have made it clearer that part-time VA employees
must pursue claims of “prohibited personnel practices”
through CSRA grievance procedures.
[3] Because 5 U.S.C. § 2302 applies to part-time employ-
ees, we hold that CSRA preemption applies to claims of “pro-
hibited personnel practices” by employees hired pursuant to
38 U.S.C. § 7405(a). Congressional enactment of 5 U.S.C.
§ 2302(f) limited our holding in Orloff to situations in which
Congress has not expressly extended civil service provisions
to part-time employees. The CSRA remedial scheme—
including preemption of other remedies—applies to Dr. Man-
gano despite the fact that he was hired as a part-time physi-
cian.
B
[4] The CSRA preempts Dr. Mangano’s FTCA claims in
this case if the conduct underlying his complaint can be chal-
lenged as “prohibited personnel practices” within the meaning
of the CSRA. See Saul v. United States, 928 F.2d 829, 841
(9th Cir. 1991). The CSRA defines “prohibited personnel
practices” as any “personnel action” taken by someone in
authority that violates one of twelve enumerated practices. 5
MANGANO v. UNITED STATES 7963
U.S.C. § 2302(b). “Personnel action,” in turn, is defined com-
prehensively to include any appointment, promotion, disci-
plinary or corrective action, detail, transfer, reassignment,
reinstatement, restoration, reemployment, performance evalu-
ation, pay or benefits decision, mandatory psychiatric exami-
nation, or any other significant change in duties,
responsibilities, or working conditions. 5 U.S.C.
§ 2302(a)(2)(A)(i)-(xi).
The definition of “personnel action” is, necessarily, broad.
See Saul, 928 F.2d at 834. There are limits to what qualifies
as a “personnel action,” but the instances are well outside
anything that could reasonably be described as a “personnel
action.” See Orsay, 289 F.3d at 1129 (holding that aiming a
loaded weapon does not fit any of the CSRA’s definitions of
personnel action); Brock v. United States, 64 F.3d 1421,
1424-25 (9th Cir. 1995) (holding the CSRA does not preempt
consideration of claims of rape and sexual assault).
[5] Dr. Mangano claims he suffered intentional infliction of
emotional distress and intentional interference with the right
to practice a lawful profession as the result of various actions
allegedly taken in retaliation for his whistleblowing activities.
His claim that he was unfairly terminated falls squarely within
the definition of a personnel action as a “significant change in
duties, responsibilities or working conditions” under the
CSRA. 5 U.S.C. § 2302(a)(2)(A)(xi).
Dr. Mangano also alleges that government employees con-
spired to abuse the QA and ABI processes to prevent him
from practicing his lawful profession, and that abuse of pro-
cess is not a personnel action. We disagree. Such administra-
tive proceedings, designed to test complaints about his
performance at the Medical Center, are quintessential person-
nel actions. Id. § 2302(a)(2)(A)(iii),(xi).
Dr. Mangano contends that these personnel actions were
taken “because he reported unsafe practices and procedures
7964 MANGANO v. UNITED STATES
involving the medical care of Veterans.” Discipline for being
a whistleblower is an enumerated “prohibited personnel prac-
tice.” Id. § 2302(b)(8)(A) (prohibiting employers from taking
an adverse personnel action based on retaliation for an
employee’s disclosure of “a violation of any law, rule, or reg-
ulation” or a “danger to public health and safety.”)
[6] We hold that Dr. Mangano’s FTCA claims involve per-
sonnel actions that can be challenged as prohibited personnel
practices, and therefore the CSRA preempts those claims. His
remedy, if any, lies within CSRA procedures.
III
The judgment is affirmed.
AFFIRMED.