    Case: 17-30465    Document: 00514606746     Page: 1   Date Filed: 08/20/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                 No. 17-30465                    August 20, 2018
                                                                  Lyle W. Cayce
DOCTOR THAYNE C. GRIENER,                                              Clerk


             Plaintiff – Appellant

      v.

UNITED STATES OF AMERICA,

             Defendant - Appellee


                Appeal from the United States District Court
                   for the Eastern District of Louisiana




Before JOLLY, JONES, and HAYNES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Dr. Thayne Griener—a physician who worked part-time at a hospital
operated by the U.S. Department of Veterans Affairs (“VA”)—brought this
action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b),
2671–80, claiming that his discharge by a VA hospital and its employees
intentionally inflicted emotional distress upon him and tortiously interfered
with his business relationships. The district court, relying on Mangano v.
United States, 529 F.3d 1243 (9th Cir. 2008), determined that it did not have
subject-matter jurisdiction, because the Civil Service Reform Act (“CSRA”), 5
U.S.C. § 1101 et seq., preempted Dr. Griener’s claims.
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                                  No. 17-30465
      We hold that the CSRA preempts Dr. Griener’s FTCA tort claims. Thus,
we affirm the judgment of the district court, as modified to reflect that the
dismissal is without prejudice.
                                       I.
      We turn to the facts. Dr. Griener is a board-certified otolaryngologist
who began working at the Southeast Louisiana Veterans Health Care System
in New Orleans in 2007. To do so, he curtailed his private medical practice.
Dr. Griener worked 40 hours per week every other week and 30 hours per week
on the alternate weeks. His schedule qualified him as a part-time employee
under 38 U.S.C. § 7405(a)(1) and 38 U.S.C. § 7401(1), because he worked an
average of 35 hours per week.
      Dr. Griener worked at the VA for almost five years. He received a
termination notice on July 9, 2012, which said that the VA was firing him for
inappropriate behavior. According to Dr. Griener’s complaint, the VA later
changed its reason for terminating him, stating that he was no longer needed.
Dr. Griener alleges that this statement was false: he was needed, as he was
the only surgeon completing certain types of surgeries. He alleges that he was
fired, instead, due to his whistleblowing about VA practices, which he believed
violated the laws, rules, and regulations governing patient care. He alleges
that the day before he was fired, he had contacted Congressman Charles
Boustany about the VA’s medical practices to request an investigation.
      Dr. Griener originally filed an appeal of his termination with the Merit
Systems Protection Board (“MSPB”), but it was denied. In an initial decision,
an administrative judge determined that Dr. Griener did not qualify as an
“employee” under 5 U.S.C. § 7511(a) and that he had not established that he
had sought corrective action concerning his claim that the VA had removed
him in reprisal for whistleblowing. His appeal to the MSPB, requesting it to
reconsider the administrative judge’s decision, was similarly denied.
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                                No. 17-30465
      He also filed an administrative FTCA claim with the VA, but that claim
too was denied. Dr. Griener did not, however, file a claim with the Office of
Special Counsel (“OSC”), which “is authorized and required to investigate any
allegation of prohibited personnel practices, and may request the MSPB to
consider and order corrective action on the matter.” See Broadway v. Block,
694 F.2d 979, 982 (5th Cir. 1982).
      Afterward, Dr. Griener filed this FTCA tort lawsuit in federal court. He
pleaded intentional infliction of emotional distress, negligent infliction of
emotional distress, tortious interference with          business relationships,
intentional damage to professional reputation, negligent injury to professional
reputation, and “any and all other torts/actions in tort encompassed by his
claim.” The government moved the district court to dismiss Dr. Griener’s
complaint for lack of subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1), arguing that the CSRA preempted Dr. Griener’s FTCA
claims. The court granted that motion and dismissed the case, holding that
Dr. Griener’s FTCA claims were indeed preempted by the CSRA.
      Dr.   Griener   moved   for    reconsideration,   arguing   that   it   was
fundamentally unfair for his claim to be dismissed when the MSPB and the
VA had similarly dismissed his FTCA claims based on his part-time employee
status. But the court denied the motion.
      Dr. Griener timely appealed.
                                       II.
      We turn now to the central question in this case: whether the CSRA
preempts FTCA claims that are based on employment decisions when the
claims relate to the same facts under which a CSRA claim could be brought.
We hold that the CSRA provides the exclusive remedy for these claims.




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                                  No. 17-30465
                                       A.
      The government moved for dismissal under Rule 12(b)(1), arguing that
this court lacks statutory subject-matter jurisdiction to hear the case. See In
re FEMA Trailer Formaldehyde Prod. Liab. Litig. (Mississippi Plaintiffs), 668
F.3d 281, 286 (5th Cir. 2012) (“Federal courts are courts of limited jurisdiction;
without jurisdiction conferred by statute, they lack the power to adjudicate
claims.”). “Under Rule 12(b)(1), a claim is ‘properly dismissed for lack of
subject-matter jurisdiction when the court lacks the statutory or constitutional
power to adjudicate’ the claim.” Id. (quoting Home Builders Ass’n, Inc. v. City
of Madison, 143 F.3d 1006, 1010 (5th Cir.1998)); see also Tubesing v. United
States, 810 F.3d 330, 332 (5th Cir. 2016) (affirming a district court’s dismissal
for lack of subject-matter jurisdiction because a plaintiff’s FTCA claims were
precluded by the CSRA).
      The standard of review for a district court’s dismissal under Rule 12(b)(1)
is de novo. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). “[W]e take
the well-pled factual allegations of the complaint as true and view them in the
light most favorable to the plaintiff.” Id. “The burden of proof for a Rule
12(b)(1) motion is on the party asserting jurisdiction.” Alfonso v. United States,
752 F.3d 622, 625 (5th Cir. 2014) (quoting In re FEMA Trailer Formaldehyde
Prods. Liab. Litig., 646 F.3d 185, 189 (5th Cir. 2011)).
                                       B.
      Before proceeding to the parties’ arguments, we provide the background
of the civil-service system created by the CSRA. The Supreme Court has held
that the CSRA forecloses other avenues of judicial review outside of its
procedures. See Elgin v. Dep’t of Treasury, 567 U.S. 1, 11 (2012); United States
v. Fausto, 484 U.S. 439, 443 (1988).        This is so because the CSRA is an
“elaborate . . . framework for evaluating adverse personnel actions against
[federal employees].” Fausto, 484 U.S. at 443 (alteration in original) (quoting
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                                 No. 17-30465
Lindahl v. OPM, 470 U.S. 768, 774 (1985)). “It prescribes in great detail the
protections and remedies applicable to such action, including the availability
of administrative and judicial review.” Id.
         When examining whether the lack of a remedy within the CSRA
precludes judicial review through some other statute, the Supreme Court has
instructed us to examine “the purpose of the CSRA, the entirety of its text, and
the structure of review that it establishes.” Id. at 443–44; see Elgin, 567 U.S.
at 11.
         In terms of the CSRA’s purpose, one of the primary reasons Congress
passed the CSRA “was to replace the haphazard arrangements for
administrative and judicial review of personnel action, part of the ‘outdated
patchwork of statutes and rules built up over almost a century’ that was the
civil service system.” Fausto, 484 U.S. at 444 (quoting S. Rep. No. 95-969 at 3
(1978), 1978 U.S.C.C.A.N. 2723, 2725). This purpose has led the Supreme
Court to find that the CSRA is the exclusive avenue by which an employee can
bring a claim for employment disputes addressed by the CSRA. See Elgin, 567
U.S. at 13 (“The purpose of the CSRA also supports our conclusion that the
statutory review scheme is exclusive, even for employees who bring
constitutional challenges to federal statutes.”); see also Grisham v. United
States, 103 F.3d 24, 26 (5th Cir. 1997) (“The government argues that because
the CSRA, including the WPA, is a comprehensive remedial scheme, it
precludes causes of action relating to the type of employment disputes covered
by the statute. We agree with the government.”).
         Further, the text of the CSRA—which establishes an elaborate
framework—demonstrates Congress’s intent to entirely foreclose judicial
review to employees to whom the CSRA denies statutory review. Elgin, 567
U.S. at 11. This framework is the only remedy for those employees to whom
the CSRA grants some sort of administrative or judicial review. Id.; Grisham,
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                                  No. 17-30465
103 F.3d at 26. “Given the painstaking detail with which the CSRA sets out
the method for covered employees to obtain review of adverse employment
actions, it is fairly discernible that Congress intended to deny such employees
an additional avenue of review in district court.” Elgin, 567 U.S. at 11–12.
      With this comprehensive scheme as the backdrop, we turn to the parties’
arguments.
                                        C.
      Dr. Griener argues—based upon “a close reading of the statutory web”—
that he may bring this FTCA lawsuit because he does not have an individual
right to appeal his termination to the MSPB under the CSRA. He is not
entirely clear about how the CSRA’s “statutory web” grants him the ability to
bring his claims, but his basic argument seems to be that (1) 5 U.S.C. § 7511,
which governs removal for adverse employment actions, does not allow part-
time physicians to appeal their removals to the MSPB, id. § 7511(b)(10);
(2) 5 U.S.C. § 7405(a), under which Dr. Griener was appointed, says that part-
time physicians may be employed “without regard to civil service or
classification law, rules, or regulations,” id. § 7405(a); (3) based on § 7405(a)’s
statement, Dr. Griener’s position is excepted from the competitive and civil
service; and (4) because his position is excepted from the competitive service,
the civil-service mechanism for contesting adverse actions such as removal
does not apply to Griener. But his argument ignores a different part of CSRA,
5 U.S.C. § 2105(f), which says that “employees appointed under Chapter 73 or
74 of title 38”—which includes Dr. Griener—“shall be employees” for the
purposes of § 2302. Section 2302 governs adverse employment actions. Dr.
Griener argues that this statute is an “anomaly.”
      We find Dr. Griener’s statutory argument unconvincing. The CSRA says
that part-time employees are considered “employees” for the purposes of
adverse actions, and it establishes an avenue for Dr. Griener to challenge his
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                                    No. 17-30465
termination. Dr. Griener is correct that he does not have an individual right
to petition the MSPB directly. 1 But, there is another CSRA remedy available
to Dr. Griener: he can petition the OSC of the MSPB to investigate his
allegations. The OSC “is authorized and required to investigate any allegation
of prohibited personnel practices, and may request the MSPB to consider and
order corrective action on the matter.” Broadway, 694 F.2d at 982. After the
OSC has investigated the matter, it must determine whether “reasonable
grounds [exist] to believe that a prohibited personnel practice has occurred.”
5 U.S.C. § 1214(b)(2)(B).     If so, then the OSC may work with the agency
involved to correct the prohibited personnel practice, id., and if that agency
fails, the OSC may “petition the [MSPB] for corrective action.”                     Id.
§ 1214(b)(2)(C). After the MSPB enters a final order for a complaint brought
by the OSC, “[j]udicial review of any final order or decision of the [MSPB] under
this section may be obtained by any employee, former employee, or applicant
for employment adversely affected by such order or decision.” Id. § 1214(c)(1).
It is undisputed that Dr. Griener has never petitioned the OSC.
      It seems clear that the CSRA is the exclusive remedy available to Dr.
Griener.    Part-time employees are “employees” for claims of “prohibited
personnel practice” by employees, 5 U.S.C. § 2105(f). Dr. Griener’s claim that
he was fired in retaliation for his opposition and vocal complaints about VA
practices falls squarely within the CSRA’s “prohibited personnel practices”
provision. That provision says that supervising personnel cannot:
      (8) take or fail to take, or threaten to take or fail to take, a
      personnel action with respect to any employee or applicant for
      employment because of—

      1 The individual right to petition the MSPB is reserved only for employees in the
“competitive service” and the “excepted service” who meet certain requirements regarding
probationary periods and years of service. See 5 U.S.C. § 7511(a); Elgin, 567 U.S. at 5.
Griener, as a part-time employee, cannot meet these requirements. See 5 U.S.C.
§ 7511(b)(10); 38 U.S.C. § 7401(a).
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                                       No. 17-30465
              (A) any disclosure of information by an employee or
              applicant which the employee or applicant reasonably
              believes evidences—
                    (i) any violation of any law, rule, or regulation, or
                    (ii) gross mismanagement, a gross waste of funds, an
                    abuse of authority, or a substantial and specific danger
                    to public health or safety.
5 U.S.C. § 2302(b)(8). And a “personnel action” obviously includes firing an
employee.      See id. § 2302(a)(2)(A)(xii) (stating that a “personnel action”
includes “any [] significant change in duties, responsibilities, or working
conditions”); see also Mangano, 529 F.3d at 1247 (“[The plaintiff’s] 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.”). Although Dr. Griener argued in his brief that
he did “not seek a judicial determination as to whether his termination was
unlawful,” he conceded at oral argument that each remedy he seeks is based
on his improper firing. In short, as the Mangano court observed, “[W]here
Congress has provided a process for processing prohibited personnel practices,
other potential employee remedies are preempted.” 529 F.3d at 1246 (citing
Fausto, 484 U.S. at 455). Thus, the only remedy available to Dr. Griener is to
petition the OSC of the MSPB, so the district court did not err in dismissing
the case. 2


       2  Dr. Griener further argues that because 5 U.S.C. § 2105(f) references 5 U.S.C.
§ 1222—which says, “Except as provided in section 1221(i), nothing in this chapter or chapter
23 shall be construed to limit any right or remedy available under a provision of statute which
is outside of both this chapter and chapter 23”—his FTCA claims should be allowed under
the statute because the FTCA is not in chapter 5 or chapter 23.
        We decline to address this argument. Dr. Griener did not present this argument to
the district court, and thus waived the argument because “[w]e will not reverse a district
court ruling based on a claim not presented to that court.” E.g. Sims v. City of Madisonville,
894 F.3d 632, 644 (5th Cir. 2018). And even assuming the argument were before us, in a
similar case, we held that the CSRA precluded FTCA claims related to whistleblowing and
that § 2105(f)’s reference to § 1222 did not change that conclusion. Grisham, 103 F.3d at 26–
27.
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                                  No. 17-30465
                                       III.
      One final issue that we need to address is whether the district court
erred in dismissing the case with prejudice instead of without prejudice. We
find that it did, because “[a] dismissal for want of jurisdiction bars access to
federal courts and is res judicata only of the lack of a federal court’s power to
act. It is otherwise without prejudice to the plaintiff’s claims.” Voisin’s Oyster
House, Inc. v. Guidry, 799 F.2d 183, 188 (5th Cir. 1986). A decision by a court
without subject-matter jurisdiction is not conclusive of the merits of the claim
asserted, meaning judgment should be entered without prejudice. Id.; see also
Campos v. United States, 888 F.3d 724, 738 (5th Cir. 2018) (“We agree with our
prior cases that have precluded district courts from dismissing plaintiffs’
claims with prejudice when the basis for the dismissal is lack of subject-matter
jurisdiction under Rule 12(b)(1).”).          Because the district court lacked
jurisdiction over Dr. Griener’s claims, “it was without authority to dismiss the
claims with prejudice because ‘[a] dismissal with prejudice is a final judgment
on the merits’ of a case.” Campos, 888 F.3d at 738 (alteration in original)
(quoting Brooks v. Raymond Dugat Co. L C, 336 F.3d 360, 362 (5th Cir. 2003)).
Thus, we modify the judgment as to Dr. Griener’s claims so that they are
dismissed without prejudice. See Warren v. Chesapeake Expl., L.L.C., 759 F.3d
413, 414 (5th Cir. 2014).
                                       IV.
      We bring this opinion to its end and now sum up. We hold that the CSRA
preempts Dr. Griener’s FTCA tort claims relating to his discharge for alleged
whistleblowing. This means that he cannot bring his FTCA claims here for
lack of jurisdiction. But we modify the judgment to reflect that his claims are
dismissed without prejudice.




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                               No. 17-30465
     The district court’s judgment is thus so MODIFIED and, in all other
respects, the judgment of the district court is AFFIRMED.




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