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. § 1101

et 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