MANIVANNAN v. U.S. DEPARTMENT OF ENERGY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

AYYAKKANNU MANIVANNAN, )

)

Plaintiff, ) Civil Action No. 18-297

) Magistrate Judge Maureen P. Kelly

v. )

) Re: ECF No. 63

U.S. DEPARTMENT OF ENERGY, )

)

Defendant. )

OPINION

KELLY, Magistrate Judge

Plaintiff Ayyakkanu Manivannan (“Manivannan”) is a former United States Department

of Energy (“DOE”) employee assigned to the National Energy Technology Laboratory (“NETL”)

in Morgantown, West Virginia. In June 2015, DOE received a complaint from an administrator at

the Pennsylvania State University concerning the alleged sexual harassment of an intern assigned

to work with Manivannan. Based upon the seriousness of the allegations, DOE commenced a

Management Directed Inquiry (“MDI”). The MDI led to a finding that Manivannan conducted an

inappropriate sexual relationship with the intern and then stalked and otherwise physically and

psychologically abused her when she tried to end the relationship. Manivannan also threatened to

revoke her funded participation in the internship program if she reported his conduct. See, Ph.D,

Manivannan, Ayyakkannu v. Dep’t of Energy, No. PH-1221-18-0230-W-3, 2020 WL 1130149

(Mar. 4, 2020) (attached to DOE’s Motion to Dismiss at ECF No. 63-1). Manivannan denies the

veracity of these findings and the intern’s allegations.

This action is one of several filed by Manivannan arising out of the DOE’s disciplinary and

removal proceedings,1 and seeks an award of compensatory and injunctive relief against the DOE

for alleged violations of the Privacy Act of 1975 (“Privacy Act”), 5 U.S.C. § 552a, during and

following a concurrent state criminal investigation of his conduct. In addition, Manivannan brings

negligence and intentional tort claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§§ 1346(b) and 2671 et seq., for the DOE’s alleged invasion of his privacy, intentional infliction

of emotional distress, failure to amend personnel records, and failure to return personal property

after he resigned in lieu of termination. ECF No. 59.

Presently before the Court is the Motion to Dismiss the Second Consolidated Amended

Complaint filed on behalf of the DOE, ECF No. 63, raising the lack of subject matter jurisdiction

over Manivannan’s claims and, alternatively, for failure to state a claim upon which relief can be

granted. Because jurisdiction over Manivannan’s claims is precluded by the Civil Service Reform

Act of 1978 (“CSRA”), 5 U.S.C. § 1101 et seq., the Motion to Dismiss will be granted.2

1 Manivannan is pursuing relief for alleged retaliation for whistleblowing activities under the Civil

Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 111 (codified as amended at 5 U.S.C.

§ 1101 et seq.). See, Ph.D, Manivannan, Ayyakkannu v. Dep’t of Energy, 2020 WL 1130149

(Mar. 4, 2020). Manivannan has appealed the Final Decision denying relief to the United States

Court of Appeals for the Federal Circuit at No. 20-1804. Manivannan also has pursued at least two

actions in state and federal courts in West Virginia, and two actions in this Court, all arising out

of his removal from DOE employment.

2 Pursuant to 28 U.S.C. § 636(c), the parties have consented to the jurisdiction of a United States

Magistrate Judge to conduct all proceedings in this case. ECF Nos. 58 and 62.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. DOE Disciplinary Proceedings

The facts underlying Manivannan’s claims have been described in agency removal

proceedings as follows.3

Dr. Manivannan, who has PhD’s in engineering and physical science, has served as

a physical scientist at the Department of Energy’s (DOE's) National Energy

Technology Laboratory (NETL), Office of Research & Development (ORD), since

approximately 2005 in Morgantown, West Virginia. In June 2015, the Pennsylvania

State University (PSU) Affirmative Action Office contacted NETL manager

Maryanne Alvin and told her that a former NETL intern (FB) wanted to talk about

her internship with the appellant. In sum, FB reported that she and the appellant

had an affair for years, and he had stalked her (including hacking her cell phone)

and physically and psychologically abused her when she ended the relationship.

This report ultimately led to a criminal prosecution and an internal agency

investigation that resulted in a proposal to remove the appellant. [] During the

internal investigation, the appellant was placed on administrative leave. []

On April 8, 2016, the agency issued a proposed notice of removal to the appellant:

Charge I: Improper Conduct

The Management Directed Inquiry (MDI) documents the nature of your

relationship with [FB]. In her sworn statement [FB] described a long-term personal

and sexual relationship with you that began in the summer of 2012, shortly after

she began working at NETL as your intern. In your interview for the MDI you

denied having a personal or sexual relationship with [FB]. In formulating this

charge I considered all of the evidence in the MDI and conducted my own

credibility assessment of the evidence, including, but not limited to, your individual

sworn statements to the investigator, the emails and text messages between you and

[FB], as well as the photographs of you and [FB] together in a variety of settings. I

3 “To decide a motion to dismiss, courts generally consider only the allegations contained in the

complaint, exhibits attached to the complaint[,] and matters of public record.” Pension Benefit

Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). In addition, “a

document integral to or explicitly relied upon in the complaint may be considered without

converting the motion to dismiss into one for summary judgment.” In re Burlington Coat Factory

Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (internal quotation marks, citation, and emphasis

omitted). Because the agency proceedings and determination attached to DOE’s motion to dismiss

and Manivannan’s state criminal proceedings and resulting Pennsylvania Superior Court opinion,

Commonwealth v. Manivannan, 186 A.3d 472 (Pa. Super. 2018), are integral to his complaint, the

Court may consider both.

also considered the clarity, consistency, and details provided by each of you in your

sworn statements and the motives each of you may have had to exaggerate or

fabricate. Given the length of your relationship, the amount of contact between you

and [FB], and the general nature of some of your communications, I do not find it

credible that your relationship was purely professional or that you did not have a

personal or a sexual relationship with [FB].

Specification 1: Beginning in or around June 2012 through in or around December

2013, you were engaged in a sexual relationship with your intern, [FB], a student

you were assigned through the ORISE program to officially mentor as part of your

official duties.

Specification 2: On multiple occasions, beginning in or about June 2012 through in

or about August 2012, you engaged in sexual intercourse with [FB], in your

government office located at NETL in Morgantown, West Virginia.

Specification 3: You intimidated [FB], in or around December 2013, after she had

returned to Morgantown over the PSU semester break to work at NETL. You did

this by placing [FB] in reasonable fear of what you might do, including, but not

limited to, terminating her internship, through the following actions:

1. By becoming angry when she told you that she only wanted a professional

relationship with you by “not seeing you anymore” or words to that effect; and/or,

2. By calling [FB] a “f[…]ing b[..]ch” and “whore,” or words to that effect; and/or,

3. Refusing to leave the apartment at which [FB] was staying in or around

Morgantown, West Virginia, when [FB] had to meet with her therapist for a

previously arranged Skype appointment. Instead, you demanded to stay in the room

to monitor and direct what she said to her therapist by texting her responses.

Specification 4: [FB] sent you an email on or about January 31, 2014 in which she

told you that her mother was ready to report your behavior towards her to someone

at Human Resources at DOE and ready to contact a labor lawyer. You threatened

[FB], on or about February 25, 2014 by telling her that her January 31, 2014 email

to you was “with our legal people,” or words to that effect, and that she might not

be able to continue her internship in the summer 2014.

Specification 5: You intimidated [FB] in or about March 2013 by calling security

in her presence to report she was at the NETL site in Morgantown without a badge

and subsequently, as she attempted to leave NETL, you attempted to prevent her

from leaving by following her from the building and blocking the exit so she could

not drive her car offsite, causing her fear and/or confusion.

Specification 6: You obtained access to [FB]’s personal email account without her

authorization or consent from on or about June 22, 2014, through on or about July

18, 2014.

Specification 7: You went to PSU to try to talk to [FB], on or about January 24,

2014. [FB] went to Hershey, Pennsylvania, for the day to avoid seeing you. She

returned at approximately 12:30 AM, and went to speak to Mr. Mishra in the

vicinity of his apartment. While [FB] and Mr. Mishra talked in her car, you found

them, drove slowly through the permit-only parking lot in which they were parked

and parked your vehicle behind the car in which she and Mr. Mishra were talking.

[FB] became alarmed and drove away and you followed her for approximately 10

minutes while trying to call her on her telephone. [FB] drove to a police station and

pulled over to the side of the road near the police station. You parked your vehicle

behind [FB]. [FB] got out of her car and confronted you and you left.

Specification 8: You slapped [FB] on the face, and kicked her after she fell to the

floor, in or around December 2013, at an apartment where she was staying in or

around Morgantown, West Virginia.

CHARGE II: MISUSE OF POSITION

You are a Research General Engineer, GS-801-13 employed by NETL. A portion

of your duties include serving as a mentor to students under the ORISE program.

As such, your official duties included scientific and engineering research and

mentoring and participating in the educational experience of a student intern. The

MDI documents that you were assigned as [FB]’s mentor and that you had frequent

interaction with her personally, in and out of the lab, and by email, text, and

telephone conversations. In her sworn statement [FB] described a long-term

personal and sexual relationship with you that began in the summer of 2012, shortly

after she began working at NETL as your intern and continuing until, at least,

December 2013. In your interview for the MDI you denied having a personal or

sexual relationship with [FB]. You both agree that there existed a professional

relationship between you that began because [FB] was assigned as your intern as a

part of your official duties. [FB], however, discussed a number of occasions upon

which your interactions with her were inappropriate in your role as a federal

employee and/or ORISE mentor. In formulating this charge I considered all of the

evidence in the MDI and conducted my own credibility assessment of the evidence,

including, but not limited to, your individual sworn statements to the investigator,

the emails and text messages between you and [FB], as well as photographs of you

and [FB] together in a variety of settings. I also considered the clarity, consistency,

and details provided by each of you in your sworn statements and the motives each

of you may have had to exaggerate or fabricate. Given the length of your

relationship, the amount of contact between you, and the general nature of some of

your communications, I do not find it credible that your relationship was only

professional or that you did not have a sexual relationship with [FB].

Specification 1: You misused your position as a Research General Engineer and/or

an ORISE mentor at NETL, beginning in or around June 2012 through in or around

December 2013, when you had a sexual relationship with your intern and thereby

used your position to gain a benefit for yourself.

Specification 2: You misused your position as a Research General Engineer and/or

ORISE mentor at NEIL, in or around December 2013, by compelling [FB] to

perform actions that were beyond your authority as her mentor and unrelated to her

internship, including, but not limited to:

1. unlocking her personal mobile telephone so that you could read her emails and

other personal information contained on the telephone; and/or,

2. deleting contact information from her personal telephone pertaining to Mr.

Mishra.

Specification 3: You misused your position as a Research General Engineer and/or

ORISE an Mentor at NETL, in or around February and/or March 2014 by inducing

Professor Donghai Wang, a person with whom you had a professional relationship

due in part to your employment at NETL, to facilitate contact with [FB]. [FB] was

working in Dr. Wang's lab and you used your prior association with Dr. Wang to

make contact with her. You did this by, including, but not limited to:

1. borrowing Professor Wang's cellular telephone to place a call to [FB] so

that she would answer because the number that was calling her would be displayed

on [FB]'s telephone would be that of Professor Wang rather than your number;

and/or

2. using your association with Professor Wang as an excuse to visit his laboratory

in order to see [FB].

Specification 4: You misused your position as a Research General Engineer and/or

an ORISE Mentor at NETL during a course of conduct from in or around May 2012

through in or around July 2014 by communicating with [FB] by telephone, email

and text messages, often multiple times a day and/or late at night, about subjects

not related to your role as her mentor and that, on some occasions, she found

bothersome, inconvenient, and/or stressful.

Specification 5: You misused your position as a Research General Engineer and/or

an ORISE Mentor at NETL by requesting that Mr. Daniel Haynes, a NETL

employee and your colleague, speak with [FB]to discourage her from pursuing a

relationship with Mr. Parth Mishra by telling her that Mr. Mishra was using her and

had no interest in marrying her. Mr. Haynes subsequently did have a conversation

with [FB] to this general effect.

Manivannan v. Dep’t of Energy, 2020 WL 1130149. The DOE also charged Manivannan with

Failure to Follow Procedures and Lack of Candor. Id.

Manivannan appealed the notice of removal to the Merit Systems Protection Board

(“MSPB”) and alleged, inter alia, that the MDI, his proposed removal, and the agency’s

cooperation with the District Attorney relative to criminal charges arising out of his misconduct

all constitute unlawful retaliation for protected whistleblowing disclosures. Id. After a three-day

hearing, the Administrative Judge determined that Manivannan’s disclosures were not contributing

factors to the DOE conduct investigation, any complained of personnel actions, or Manivannan’s

recommended removal from employment. While the Administrative Judge did not find the DOE’s

cooperation with the Centre County prosecutor’s office qualified as a “personnel action”, id. n. 7,

this conduct was included in Manivannan’s workplace retaliation claim. Manivannan’s appeal of

the denial of corrective action is pending before the United States Court of Appeals for the Federal

Circuit, No. 20-1804.

B. State Criminal Proceedings

Concurrent with the DOE investigation, the intern contacted the Pennsylvania State

University Police to complain that Manivannan was “repeatedly contacting [her] daily by phone

call, text message, email, and Skype,” and had followed her in his car on at least one occasion.

Comm. v. Manivannan, 186 A.3d at 476. The intern reported “that from June 22, 2014, to July 18,

2014, her [email] account was accessed twenty-one times from thirteen different Internet Protocol

(“IP”) addresses located [throughout the United States] …. Of note, [the intern’s] email account

was accessed five times from [an IP address in Morgantown, WV and in Los Angeles, CA].” Id.

at 477. The intern’s companion sent screen shots of the identified IP addresses to the assigned

Pennsylvania State University police officer, who traced the internet provider in each case through

the website Geektools.com. The police officer obtained and served “particularized subpoenas” on

the providers. Comcast responded with a form letter that identified Manivannan as the subscriber

connected to an IP address involved in five separate instances of unauthorized access to the intern’s

email account. Each was traced to Manivannan’s Morgantown address and formed the basis for

five state unlawful use of computer charges filed against Manivannan in Centre County. Id.

During the trial on these charges, the jury also heard evidence based on DOE travel receipts that

four attempts to access the intern’s account from IP addresses in Los Angeles corresponded to

dates when Manivannan was there on DOE business. Manivannan was also charged with one count

of harassment. Id. A jury convicted Manivannan of each of the five computer charges and

harassment and he was sentenced to a period of probation. Comm. v. Manivannan, 186 A.3d at

475.

Manivannan appealed the judgment of sentence and the Pennsylvania Superior Court

found that it was “constrained to agree” that the trial court abused its discretion in permitting lay,

rather than expert, testimony to introduce the evidence connecting an internet service provider to

an IP address, and then to an approximate “real world location” that coincided with Manivannan’s

Morgantown address. The Superior Court concluded that the absence of expert testimony resulted

in prejudicial error and so vacated the convictions and remanded the case for a new trial. Id. The

criminal record after remand is unavailable to the Court but agency proceedings reveal that “the

prosecutor elected not to go forward with the new trial.” Manivannan v. Dep’t of Energy, 2020

WL 1130149.

C. Related Litigation

Beyond requesting corrective action for agency conduct in accordance with CSRA

procedures, Manivannan filed at least two lawsuits in state and federal courts in West Virginia

seeking information concerning DOE communications with the Centre County District Attorney’s

Office and recovery of personal property. See, e.g., Manivannan v. U.S. Dep’t of Energy, No. 1:17-

cv-192 (N.D. W. Va. Sept. 30, 2019). Manivannan’s appeal of the district court’s entry of judgment

against him is pending in the United States Court of Appeals for the Fourth Circuit, No. 19-2188.

D. Consolidated Second Amended Complaint

Along with his administrative and West Virginia litigation, Manivannan commenced this

lawsuit alleging that a DOE Attorney-Advisor violated his rights under the Privacy Act. In

particular, Manivannan alleges that the agency unlawfully disclosed to the assigned prosecutor the

existence of business records related to travel and leave dates and then produced a copy of those

records and the DOE’s report of its internal investigation. ECF No. 1. On July 11, 2019,

Manivannan filed a second lawsuit against the DOE in this Court, alleging claims for conversion

of his personal property (Count I), negligence in conducting the internal investigation that led to

Manivannan’s removal for improper conduct with an intern (Count II), and negligence for

improper communication with the Centre County District Attorney’s Office (Count III).

Manivannan v. United States, No. 19-828 (W.D. Pa. July 11, 2019), ECF No. 1.

The Court granted the DOE’s unopposed motion to consolidate the two lawsuits and

Manivannan filed a Consolidated Second Amended Complaint (“the Complaint”). ECF No. 59. In

the Complaint, Manivannan alleges seven claims:

(1) Count I – Violation of the Privacy Act by disclosing the MDI report, time, and attendance

records, travel records and DOE emails to the Centre County District Attorney’s Office

and by providing a witness to testify at Manivannan’s criminal trial;

(2) Count II – Violation of the Privacy Act by failing to maintain complete and accurate SF-

50 and investigatory records;

(3) Count III – an FTCA claim for conversion of Plaintiff’s personal property;

(4) Count IV – an FTCA claim for negligence committed in conducting the internal

investigation;

(5) Count V – an FTCA claim for negligence in the maintenance of personnel records;

(6) Count VI – an FTCA claim for invasion of privacy based on the investigation of

Manivannan’s sexual misconduct;

(7) Count VII – an FTCA claim for intentional infliction of emotional distress related to

disclosing records in violation of the Privacy Act and pursuing a criminal prosecution

related to the intern’s allegations.

Id. The DOE has responded to the Complaint with the pending Motion to Dismiss and contends

that pursuant to the CSRA, the Court lacks jurisdiction over Manivannan’s claims and, in the

alternative, that Manivannan’s FTCA claims are time-barred. ECF No. 64 at 13, 20 and 22.

Manivannan has filed his brief in opposition, ECF No. 71, and the DOE has replied, ECF No. 72.

The Motion to Dismiss is now ripe for consideration.

II. STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the subject-

matter jurisdiction of the court to address the merits of a plaintiff’s suit. Fed. R. Civ. P. 12(b)(1).

Under Rule 12(b)(1), “a court must grant a motion to dismiss if it lacks subject-matter jurisdiction

to hear a claim.” In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d

235, 243 (3d Cir. 2012); see Fed. R. Civ. P. 12(h)(3).

The first step in analyzing jurisdictional challenges under a Rule 12(b)(1) motion to dismiss

is to determine whether the “motion presents a ‘facial’ attack or a ‘factual’ attack on the claim at

issue, because that distinction determines how the pleading must be reviewed.” Constitution Party

of Pa. v. Aichele, 757 F.3d 347, 357–58 (3d Cir. 2014) (quoting In re Schering Plough, 678 F.3d

at 243). “A facial 12(b)(1) challenge, which attacks the complaint on its face without contesting

its alleged facts, is like a 12(b)(6) motion in requiring the court to ‘consider the allegations of the

complaint as true.’” Hartig Drug Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 268 (3d Cir. 2016)

(quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006)). “But a factual 12(b)(1)

challenge attacks allegations underlying the assertion of jurisdiction in the complaint, and it allows

the defendant to present competing facts.” Id. (citing Constitution Party of Pa., 757 F.3d at 358).

“When considering a factual challenge, ‘the plaintiff [has] the burden of proof that

jurisdiction does in fact exist,’ the court ‘is free to weigh the evidence and satisfy itself as to the

existence of its power to hear the case,’ and ‘no presumptive truthfulness attaches to [the]

plaintiff’s allegations....’” Id. (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884,

891 (3d Cir. 1977)). Additionally, under a factual challenge, “a court may weigh and consider

evidence outside the pleadings.” Id. (quoting Constitution Party of Pa., 757 F.3d at 358). Thus, “a

12(b)(1) factual challenge strips the plaintiff of the protections and factual deference provided

under 12(b)(6) review.” Id. (citing Davis v. Wells Fargo, 824 F.3d 333, 348–50 (3d Cir. 2016)).

When assessing the sufficiency of a complaint pursuant to a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in

the complaint and all reasonable factual inferences must be viewed in the light most favorable to

the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). While a complaint does not need

detailed factual allegations to survive the motion to dismiss, a complaint must provide more than

labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A “formulaic

recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S.

265, 286 (1986)). “Factual allegations must be enough to raise a right to relief above the

speculative level” and sufficient “to state a claim to relief that is plausible on its face.” Twombly,

550 U.S. at 555, 570.

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.... Where a complaint pleads facts

that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between

possibility and plausibility of ‘entitlement to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 557).

In other words, at the motion to dismiss stage, a plaintiff is required to make “a showing’

rather than a blanket assertion of an entitlement to relief.” Phillips v. County of Allegheny, 515

F.3d 224, 232 (3d Cir. 2008). “This ‘does not impose a probability requirement at the pleading

stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery

will reveal evidence of the necessary element.’” Id. at 234 (quoting Twombly, 550 U.S. at 556 n.

3).

To determine the sufficiency of a complaint, “a court ... must take three steps,” that include

(1) taking note of the elements a plaintiff must plead to state a claim; (2) identifying allegations

that are merely legal conclusions “because they ... are not entitled to the assumption of truth;” and

(3) assuming the veracity of all well-pleaded factual allegations and determining “whether they

plausibly give rise to an entitlement to relief.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787

(3d Cir. 2016) (quoting Iqbal, 556 U.S. at 675, 679). If the court finds, even after construing the

complaint in the light most favorable to the plaintiff, that the plaintiff is not entitled to relief, the

court can dismiss the claim. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

III. DISCUSSION

In an apparent facial challenge to this Court’s jurisdiction, the DOE contends that

Manivannan’s claims implicate agency actions taken in the course of and related to his

employment and thus must be remediated, if at all, through the exclusive administrative and

judicial procedures set forth in the CSRA. ECF No. 64 at 13. Further, the DOE argues that because

the CSRA deprives the Court of subject matter jurisdiction, dismissal is warranted. Manivannan

responds that the CSRA does not apply because the alleged Privacy Act violations are subject to a

separate statutory remedy and are not otherwise included in CSRA’s itemized list of “personnel

actions” for which resort to judicial process is foreclosed. ECF No. 71 at 9-19. Upon review, the

Court is compelled to agree that under established precedent, regardless of the existence of separate

remedies under the Privacy Act or under common law as to his tort claims, Manivannan’s claims

arise because of his DOE employment and thus must be pursued though the CSRA review process.

The CSRA “established a comprehensive system for reviewing personnel action taken

against federal employees.” United States v. Fausto, 484 U.S. 439, 455 (1988). In enacting the

CSRA, Congress “‘overhauled the civil service system,’ Lindahl v. OPM, 470 U.S. 768, 773 []

(1985), creating an elaborate ‘new framework for evaluating adverse personnel actions against

[federal employees],’ id., at 774 []. It prescribes in great detail the protections and remedies

applicable to such action, including the availability of administrative and judicial review.” Fausto,

484 U.S. at 443. By enacting the CSRA, “[Congress] replaced the patchwork system with 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.” Id. at 445 (citing S. Rep. No. 95–969, at 4). “Three main sections of the CSRA

govern personnel action taken against members of the civil service.” Id. Two are relevant here. As

summarized by the United States Supreme Court in Fausto,

the CSRA establishes the principles of the merit system of employment, § 2301,

and forbids an agency to engage in certain “prohibited personnel practices,”

including unlawful discrimination, coercion of political activity, nepotism, and

reprisal against so-called whistleblowers. § 2302. Nonpreference excepted service

employees who are not in positions of a confidential or policymaking nature are

protected by this chapter, § 2302(a)(2)(B), and are given the right to file charges of

“prohibited personnel practices” with the Office of Special Counsel of the MSPB,

whose responsibility it is to investigate the charges and, where appropriate, to seek

remedial action from the agency and the MSPB. § 1206.

Chapter 75 of the Act governs adverse action taken against employees for the

“efficiency of the service,” which includes action of the type taken here, based on

misconduct. Subchapter I governs minor adverse action (suspension for 14 days or

less), §§ 7501–7504, and Subchapter II governs major adverse action (removal,

suspension for more than 14 days, reduction in grade or pay, or furlough for 30

days or less), §§ 7511–7514. In each subchapter, covered employees are given

procedural protections similar to those contained in Chapter 43, §§ 7503(b),

7513(b), and in Subchapter II covered employees are accorded administrative

review by the MSPB, followed by judicial review in the Federal Circuit.

§§ 7513(d), 7703.

Fausto, 484 U.S. at 446–47. In accordance with these provisions, Manivannan’s MSPB

administrative challenge characterizes the DOE’s investigation, disclosure of employment records,

and removal proceedings as retaliation for protected whistleblowing activities within 5 U.S.C.

§ 2302(b)(8). Manivannan, v. Dep’t of Energy, 2020 WL 1130149. In addition, it is beyond

dispute that the DOE’s investigation and misconduct resolution, including its disclosures to law

enforcement officials relative to Manivannan’s workplace criminal conduct, implicate actions

taken in the course of disciplinary and removal proceedings. Therefore, the applicability of the

CSRA and the administrative and judicial processes set forth therein to Manivannan’s current

claims is evident.

Manivannan argues, however, that this Court has jurisdiction because his Privacy Act

claims do not seek work-related damages such as back pay or reinstatement or other remedies

available under the CSRA. ECF No. 71 at 4. Rather, because Congress created a distinct statutory

remedy when it enacted the Privacy Act and with it, the right to seek enforcement in federal court,

the CSRA does not preclude jurisdiction.

In Fausto, a federal employee similarly sought to circumvent the CSRA and argued that

statutory rights under the Back-Pay Act were separate from the CSRA and thus properly

adjudicated in the Court of Federal Claims. The United States Supreme Court rejected this

argument and held that the comprehensive design of the CSRA reflected “a congressional

judgment that [nonpreference excepted service employees] should not be able to demand judicial

review for the type of personnel action covered by that chapter.” Id. at 448. Thus, because the

alleged violation of the Back-Pay Act occurred in the course of plaintiff’s employment, he was

required to pursue relief through the CSRA process. Here, as in Fausto, Manivannan’s claims

arose as a result of and in the course of his DOE employment. Accordingly, Manivannan must

pursue any alleged Privacy Act or tort-based remedy through the CSRA process, with judicial

review afforded in the United States Court of Appeals for the Federal Circuit.

To that end, the administrative process remains appropriate despite the MSPB

administrative judge’s conclusion that the MSPB lacked the authority to resolve Privacy Act

claims. The United States Supreme Court held that direct judicial relief remains available through

the CSRA despite the MSPB’s inability to resolve a disputed claim. In Elgin v. Department of

Treasury, 567 U.S. 1 (2012), plaintiff was terminated for failing to register with the Selective

Service and sought to challenge the constitutionality of the Selective Service law. The MSPB

dismissed the claim, concluding it did not have jurisdiction to rule on challenges to the

constitutionality of a federal statute. Elgin did not appeal this ruling to the Federal Circuit but filed

suit in federal district court. The district court held that the suit was properly before it but, on

appeal, the First Circuit vacated the judgment and directed that the action be dismissed for lack of

jurisdiction. The Supreme Court affirmed dismissal on jurisdictional grounds and held that direct

judicial review was not available simply because the MSPB determined it was not the appropriate

forum for Elgin’s claim. In such instances “the CSRA does not foreclose all judicial review of

petitioners’ constitutional claims, but merely directs that judicial review shall occur in the Federal

Circuit,” which “is fully capable of providing meaningful review of petitioners’ claims.” Id. at 10.

As applied here, the MSPB’s conclusion that it could not resolve a Privacy Act claim arising out

of the DOE’s cooperation with the criminal investigation does not permit avoidance of the required

administrative process. As observed by the Court in Elgin, the factual record supporting such

claims may be compiled in MSPB proceedings and then, as required by the CSRA, a full

adjudication of Manivannan’s rights under the Act may occur in the Federal Circuit.

Finally, Manivannan argues that his Privacy Act and FTCA claims are not within the scope

of personnel actions subject to the CSRA because of the nature and timing of the DOE’s alleged

misconduct. Given the obvious connection to workplace criminal conduct and disciplinary

proceedings, as well Manivannan’s characterization of his claims as seeking relief for retaliation

in MSPB proceedings, this argument is not persuasive. In Yu v. U.S. Dep’t of Veterans Affairs,

528 F. App’x 181 (3d Cir. 2013), the plaintiff similarly argued that Privacy Act violations and the

confiscation and destruction of property after his termination were not within the scope of the

CSRA based on the nature and timing of the challenged conduct. The United States Court of

Appeals for the Third Circuit affirmed this Court’s dismissal for lack of subject matter jurisdiction

based upon the scope of the CSRA and the relationship between the plaintiff’s claims and his

employment:

[The CSRA] provides an exclusive method for federal civil servants to obtain

damages for personnel decisions that violate statutory, regulatory, or constitutional

rights. See Bush v. Lucas, 462 U.S. 367, 388, 103 S. Ct. 2404, 76 L. Ed. 2d 648

(1983); Sarullo v. U.S. Postal Serv., 352 F.3d 789, 795 (3d Cir. 2003) (holding that

a Bivens damages claim was foreclosed by the Act because it “provides the full

scheme of remedies available” to civil servants for actions “arising out of the

employment context”); Filebark v. U.S. Dep’t of Transp., 555 F.3d 1009, 1010

(D.C. Cir. 2009) (“[W]e have held that [the Civil Service Reform Act’s]

comprehensive employment scheme preempts judicial review under the more

general APA even when that scheme provides no judicial relief—that is, what you

get under the CSRA is what you get.” (citation and quotation marks omitted));

Kleiman v. Dep’t of Energy, 956 F.2d 335, 337–38 (D.C.Cir.1992) (“This court has

refused to allow the exhaustive remedial scheme of the CSRA to be impermissibly

frustrated ... by granting litigants, under the aegis of the Privacy Act or otherwise,

district court review of personnel decisions judicially unreviewable under the

CSRA.” (citations and quotation marks omitted)).

Id. at 184. The Third Circuit determined that the alleged misconduct fell within the CSRA’s

jurisdiction for personnel actions, which includes action taken in the course of disciplinary or

corrective actions, as well as conduct that results in significant changes in working conditions. Id.

In addition, “[t]he VA’s subsequent decision to retain possession of the equipment and funds and

to destroy the samples obtained by Yu are also personnel decisions because they centrally relate

to Yu’s employment relationship with the VA. In other words, ‘the violations complained of …

occurred only as a result of the employment relationship.’ Lombardi [v. Small Business Admin.,

No. 88-1718, 889 F.2d 959 (10th Cir. 1989)] – and, more particularly, occurred only as a result of

the specific personnel decision made.” Id. at 184-85.

The Court agrees that Manivannan’s claims arose because of and during his employment

relationship with the DOE and thus must be resolved within the exclusive CSRA process. Pursuant

to the CSRA, judicial review, if any, for Manivannan’s statutory and FTCA claims is available in

the United States Court of Appeals for the Federal Circuit and this Court lacks subject matter

jurisdiction. In light of this disposition, the Court does not reach DOE’s alternate grounds for

dismissal related to the statute of limitations and the sufficiency of Manivannan’s claims for relief.

IV. CONCLUSION

For the reasons set forth herein, Defendant DOE’s Motion to Dismiss for lack of subject

matter jurisdiction and pursuant to Rule 12(b)(1), ECF No. 63, is properly granted. An appropriate

Order granting the Motion to Dismiss for Lack of Jurisdiction will be entered.

/s/ Maureen P. Kelly __________

MAUREEN P. KELLY

UNITED STATES MAGISTRATE JUDGE

Dated: October 7, 2020

cc: All counsel of record by Notice of Electronic Filing