Ayyakkannu Manivannan v. United States Dept. of Energy

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 20-3463
AYYAKKANNU MANIVANNAN,
Appellant
v.
UNITED STATES DEPARTMENT OF ENERGY;
UNITED STATES OF AMERICA
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
Argued on November 18, 2021
Before: AMBRO, JORDAN, and ROTH, Circuit Judges
(Opinion filed: July 26, 2022)
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
OPINION OF THE COURT
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, 5 U.S.C.
2
§ 552a, and Federal Tort Claims Act (“Tort Claims Act”), 28
U.S.C. § 1346(b) and §§ 2671–80, violations stemming from
the agency’s disclosure of records to state prosecutors, its
alleged negligence in conducting the internal investigation, and
its refusal to return his personal property.
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”), 5 U.S.C. § 1101et seq., because they arose in the context of Manivannan’s
federal employment. We hold that a narrower inquiry is
required. Under this inquiry, much of the conduct challenged
by Manivannan still falls within the CSRA’s broad purview,
such that the Magistrate Judge was right to dismiss on
jurisdictional grounds. But some of that conduct does not. We
therefore affirm in part, reverse in part, and remand for further
proceedings.
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
“screaming loudly” at Manivannan in front of others and
3
transferring him to a new research division. J.A. 152. In 2013,
he was transferred again, this time to a research division
supervised by Mary Anne Alvin, who reported to Gemmen.
Alvin and Gemmen purportedly continued to target
Manivannan in several ways: they allegedly imposed on him
arbitrary requirements not imposed on other researchers,
terminated his research, and relocated his office.
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.
4
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.
5
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
6
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
7
(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 matter jurisdiction. Specifically, it
argued that the CSRA barred Manivannan from bringing his
employment-related claims in a federal district court. It further
submitted that the Tort Claims Act counts should be dismissed
as untimely and, alternatively, as meritless.
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 28 U.S.C.
§§ 1331 and 1346(b)(1). The Magistrate Judge exercised
jurisdiction over the proceedings via the parties’ consent under
28 U.S.C. § 636(c)(1). We have jurisdiction to review the
Magistrate Judge’s dismissal order under 28 U.S.C.
8
§§ 636(c)(3) and 1291.1
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
1
Manivannan also moved for reconsideration of the Magistrate
Judge’s dismissal order. While that motion was pending, he
filed his notice of appeal of the dismissal order, which became
effective on the Magistrate Judge’s denial of reconsideration.
Fed. R. App. P. 4(a)(4)(B)(i). He did not, however, file a new
or amended notice of appeal relating to the denial of
reconsideration. We thus lack jurisdiction to review that
second decision. See Fed. R. App. P. 4(a)(4)(B)(ii); United
States v. McGlory, 202 F.3d 664, 668 (3d Cir. 2000) (en banc).
2
Manivannan argues that the District Court erred in
considering the Protection Board judge’s decision and the
decisions of the Pennsylvania state courts in his criminal
proceedings. But even if that were error—and we make no
comment on that—it is harmless because the jurisdictional
issue here can be resolved without reliance on information
from those materials.
9
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 28 U.S.C. § 1331.
Our question here is whether the substance of Manivannan’s
claims makes them unreviewable per a different federal statute,
the CSRA.
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
10
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 5 U.S.C § 4303 (covering “[a]ctions based on
unacceptable performance”); id. §§ 7501–43 (covering
adverse actions); id. § 2302 (covering “[p]rohibited personnel
practices”).
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
11
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,
12
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 5 U.S.C. § 7512. The statute
also provides for administrative review of “[p]rohibited
personnel practices,” meaning any “personnel action”
motivated by an impermissible ground, including
whistleblower reprisal and discrimination unrelated to the
employee’s work performance. See id. § 2302(a)(1), (b)(1)–
(14). It specifically notes covered personnel actions:
(2) For purposes of this section—
13
(A) “personnel action” means—
(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this
title or other disciplinary or corrective
action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under
chapter 43 of this title or under title 38;
(ix) 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;
(x) a decision to order psychiatric testing
or examination;
(xi) the implementation or enforcement
of any nondisclosure policy, form, or
agreement; and
(xii) any other significant change in
duties, responsibilities, or working
conditions.
Id. § 2302(a)(2)(A)(i)–(xii).
The Government points to no statutory language
suggesting that any dispute primarily involving a plaintiff’s
14
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
15
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
3
Though not pressed in his briefing, Manivannan also brought
claims of alleged inaccuracies in the Form 50 documenting his
separation from the DOE. He aired this challenge in his
whistleblower retaliation action before the Protection Board,
which noted that the changes to his Form 50 were outside the
scope of those proceedings but could be addressed under a
different CSRA provision, 5 U.S.C. § 3322. See Manivannan,
2020 WL 1130149, at n.3. We agree. Section 3322 concerns
an employee’s voluntary resignation from government
employment prior to the resolution of a personnel investigation
and entitles the employee to appeal to the Board the accuracy
of any adverse findings noted in his or her official personnel
record file. 5 U.S.C. § 3322(a), (c). Having had access to that
procedure, Manivannan cannot now use the Privacy and Tort
Claims Acts to attack the contents of his Form 50 in federal
court.
16
As to those claims based on the internal investigation,
we are persuaded, under these specific facts, that the
Magistrate Judge rightly dismissed them as precluded by the
CSRA. Manivannan’s complaint and its attached exhibits
indicate that the internal investigation involved allegations of
serious (indeed, potentially criminal) misconduct prompting
the DOE to obtain outside counsel, place Manivannan on leave,
and begin removal proceedings. These “extreme
circumstances” were a “significant change in [Manivannan’s]
working conditions,” thus qualifying as a personnel action
under the statute. See Sistek v. Dep’t of Veterans Affs., 955
F.3d 948, 955–56 (Fed. Cir. 2020) (distinguishing “routine”
investigations, which are not personnel actions, from
investigations which, “on [their] own or as part of a broader set
of circumstances,” comprise a significant change in working
conditions); 5 U.S.C. § 2302(a)(2)(A)(xii). Fairly read,
Manivannan’s pleadings also indicate his belief that the
investigation was impermissibly retaliatory and discriminatory
(i.e., that he was subjected to a prohibited personnel practice).
See 5 U.S.C. § 2302(b)(8), (10); see also J.A. 226 (describing
a “workplace vendetta” against him); J.A. 218 (“The intention
was to destroy my livelihood . . . . Randy Gemmen initiated
an investigation” and “falsely explained that the investigation
was a simple management-directed inquiry . . . .”). Indeed,
Manivannan himself characterized the internal investigation as
a personnel action before the Protection Board, which
addressed it as such. See Manivannan, 2020 WL 1130149. On
these facts, his claims involving the internal investigation are
subject to the CSRA.4
4
It makes no difference that Manivannan’s claims attack
Williams’s actions in conducting the investigation rather than
the DOE’s decision to initiate it (the specific personnel action
17
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 5 U.S.C. § 7512, nor
does it fall within any of the personnel actions noted in § 2302.
And the Protection Board has already disclaimed that the
DOE’s alleged cooperation with state prosecutors is a
personnel action covered by the CSRA.5 See Manivannan,
2020 WL 1130149, at n.8; see also Minshew v. Donley, 911 F.
Supp. 2d 1043, 1069 (D. Nev. 2012) (unauthorized disclosure
of material from employee’s official personnel file is not a
“personnel action”); cf. Quinn v. Stone, 978 F.2d 126, 128 (3d
challenged in his Protection Board proceedings). Reviewing
Williams’s conduct would necessarily require us to review the
legitimacy of the internal investigation, which would in turn
infringe on territory exclusive to the Board.
5
The Magistrate Judge held as irrelevant the Protection
Board’s finding that certain conduct alleged by Manivannan
was not a “personnel action” under the CSRA, as a full airing
of Manivannan’s claims based on this conduct could still occur
on appeal to the Federal Circuit. She relied on Elgin, which
held that the Federal Circuit has jurisdiction over constitutional
claims tied to a CSRA-covered employment action, namely,
the employee’s allegedly unconstitutional termination. See
Elgin, 567 U.S. at 18–19. Here, however, the issue is whether
Manivannan has alleged conduct that would trigger the
Board’s jurisdiction in the first place. Because the Federal
Circuit’s jurisdiction is coextensive with that of the Board in
this context, see Schmittling, 219 F.3d at 1337, if Manivannan
is not “challenging a covered adverse employment action,”
Elgin, 567 U.S. at 21, then neither the Board nor the Federal
Circuit may review his claims.
18
Cir. 1992) (accepting jurisdiction over federal employees’
Privacy Act challenge to their employer’s disclosure of
employment records without considering CSRA preclusion).
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,” 5 U.S.C. § 2302(a)(2)(A)(iii), a “significant
change in duties, responsibilities, or working conditions,” id.§ 2302(a)(2)(A)(xii), or any other employment action set out
in the statute.6
6
The Government relies on a nonprecedential decision from
our Court to argue that all Manivannan’s claims belong before
the Protection Board. See Yu v. U.S. Dep’t of Veterans Affs.,
528 F. App’x 181 (3d Cir. 2013). Yet that case did not address
whether an employer’s allegedly unlawful disclosure of
employment records is within the CSRA’s exclusive purview,
nor did it consider an employer’s alleged refusal to allow for
the return of an employee’s personal property. See id. at 184
(considering whether an employer’s post-termination
decisions to withhold research equipment and funds secured by
the terminated employee and destroy research samples were
personnel decisions covered by the CSRA).
19
* * *
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.
20