Griener v. United States

Filing 21

ORDER AND REASONS granting 9 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Martin L.C. Feldman on 2/9/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DR. THAYNE GRIENER

CIVIL ACTION

V.

NO. 16-13407

UNITED STATES OF AMERICA

SECTION "F"
ORDER AND REASONS

Before the Court is the defendant’s Rule 12(b)(1) motion to
dismiss. For the following reasons, the motion is GRANTED.
Background
This is a lawsuit under the Federal Tort Claims Act (FTCA).
Dr. Thayne Griener is a board certified otolaryngologist who began
working at the Southeast Louisiana Veterans Health Care System in
New Orleans in 2007. He initially learned about the position from
a medical school colleague, Dr. Mary Fazekas-May, who also worked
at

the

VA.

significantly

When

Dr.

Griener

curtailed

his

began

working

private

for

medical

the

VA,

practice

he
in

Pascagoula, Mississippi. Dr. Griener worked 40 hours per week every
other week and 30 hours per week on the alternate weeks. This
schedule classified him as a part-time employee with an average of
35 hours per week.
After working at the VA for nearly five years, Dr. Griener
received a termination notice on July 9, 2012. The notice informed
him

that

he

was

terminated

because

he

engaged

in

alleged

inappropriate behavior. However, Dr. Griener responds that his

1

termination was in retaliation for his opposition to VA practices
and his vocal complaints about these practices. He points out that
he blew the whistle on VA practices that he believed violated the
laws, rules, and regulations which govern patient care.
Dr. Griener complains that his termination caused him extreme
emotional distress, mental anguish, loss of enjoyment of life,
suffering, and personal and professional embarrassment. He also
alleges that reviving his private practice in Pascagoula has been
a slow and arduous task and that his loss of income is substantial.
In

response

to

his

termination,

Dr.

Griener

filed

an

administrative Federal Tort Claims Act claim with the United States
Department of Veterans Affairs; that claim was denied. He then
sought reconsideration of the denial; the reconsideration request
was also denied. Dr. Griener now files this civil lawsuit against
the government under the FTCA. In response, the government contends
that

the

plaintiff’s

FTCA

claims

are

preempted

by

the

Civil

Services Reform Act (CSRA) and moves this Court to dismiss the
plaintiff’s complaint. 1
I.
Motions filed under Rule 12(b)(1) of the Federal Rules of
Civil Procedure allow a party to challenge the Court’s subject
matter jurisdiction.

1

Fed. R. Civ. P. 12(b)(1). "As a court of

The issue is new to this Court and to the Fifth Circuit.
2

limited jurisdiction, a federal court must affirmatively ascertain
subject-matter

jurisdiction

before

adjudicating

a

suit.

The

district court should dismiss where it appears certain that the
plaintiff cannot prove a plausible set of facts that establish
subject-matter

jurisdiction."

Venable

v.

Louisiana

Workers'

Compensation Corp., 740 F.3d 937, 941 (5th Cir. 2014)(citations
and internal quotations omitted).
Contrary to a 12(b)(6) motion, the Court may find a plausible
set of facts to support subject matter jurisdiction by considering
any of the following: “(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3)
the complaint supplemented by undisputed facts plus the court's
resolution of disputed facts.”

Spotts v. United States, 613 F.3d

559, 565-66 (5th Cir. 2010)(citation omitted). "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)(internal

citation

and

quotation

marks

omitted)).
12(b)(1) is similar to that applicable to motions to dismiss
under Rule 12(b)(6).

See Williams v. Wynne, 533 F.3d 360, 364-65

n.2 (5th Cir. 2008)(observing that the Rule 12(b)(1) and Rule
12(b)(6) standards are similar, but noting that applying the Rule
12(b)(1) standard permits the Court to consider a broader range of
3

materials in resolving the motion). "'[T]he central issue [in
deciding a motion to dismiss] is whether, in the light most
favorable to the plaintiff, the complaint states a valid claim for
relief.'"

Gentilello

v.

Rege,

627

F.3d

540,

544

(5th

Cir.

2010)(citation omitted).
II.
In 1978 Congress enacted the Civil Services Reform Act to
replace the old service system, which was an “outdated patch work
of statutes and rules built up over almost a century.” United
States v. Fausto, 484 U.S. 439, 444 (1988) (internal citation and
quotation marks omitted). By enacting the CSRA, Congress created
“an

integrated

designed

to

categories

scheme

balance

of

of

the

federal

administrative
legitimate

employees

and

interests

with

the

judicial
of

needs

the
of

review,
various

sound

and

efficient administration.” Id. at 445. The novel issue presented
here is whether the CSRA preempts the FTCA in this case.
The CSRA provides a “remedial scheme through which federal
employees can challenge their supervisors’ ‘prohibited personnel
practices.’” Orsay v. U.S. Dep’t of Justice, 289 F.3d 1125, 1128
(9th

Cir.

2002)

(quoting

5

U.S.C.

§

2302).

If

the

employee

challenges a conduct that qualifies as a “prohibited personnel
practice[],” the CSRA’s administrative procedures are the only
remedy for the employee. Id. “The CSRA’s remedial scheme is both
exclusive and preemptive because ‘permit[ting] FTCA claims to
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supplant

the

CSRA’s

remedial

scheme’

would

defeat

Congress’

purpose of creating a single system of procedures and remedies,
subject to judicial review.’” Mangano v. United States, 529 F.3d
1243, 1246 (9th Cir. 2008) (quoting Rivera v. United States, 924
F.2d 948, 951 (9th Cir. 1991)).
III.
Dr. Griener contends that he is not subject to the CSRA
because he was a part-time physician appointed under 38 U.S.C. §
7405(a)(1). That statute provides that an agency may employ parttime physicians “without regard to civil service or classification
laws, rules, or regulations . . . .” See 38 U.S.C. § 7405(a). Dr.
Griener argues that this statutory language specifically exempts
his employment from all laws, rules, or regulations relating to
civil servants, particularly the CSRA.
Dr.

Griener,

however,

fails

to

recognize

that

Congress

amended that CSRA to provide that “employees appointed under
chapter 73 or 74 of title 38 shall be employees” for purposes of
various sections under the CSRA, including § 2302, which governs
prohibited personnel practices. 2 5 U.S.C. § 2105(f); see also
Mangano, 529 F.3d at 1246. “In effect, §2105(f) is an exception to
a carve-out.” Mangano, 529 F.3d at 1247. “Congress could not have

2

Dr. Griener was appointed under 38 U.S.C. § 7405, which is Chapter
74 of Title 38. Dr. Griener’s appointed position falls under this
amendment and qualifies his position as one governed by certain
provisions of the CSRA.
5

made it clearer that part-time VA employees must pursue claims of
prohibited personnel practices through CSRA grievance procedures.”
Id. (internal quotations omitted).
Importantly, a plaintiff’s FTCA claims are preempted by the
CSRA if the conduct complained of can be classified as “prohibited
personnel practices” within the meaning of the CSRA. “The CSRA
defines prohibited personnel practices as any personnel action
taken by someone in authority that violates one of the twelve
enumerated practices.” Id.; 5 U.S.C. § 2302(b). An example of a
“personnel action” under the CSRA is a “significant change in
duties,

responsibilities,

2302(a)(2)(A)(xi).

Dr.

or

working

Griener’s

conditions.”

claim

that

he

5
was

U.S.C.

§

unfairly

terminated falls squarely within the statutory text governing
prohibited personnel practices. See id.; Mangano, 529 F.3d at 1247.
Additionally, Dr. Griener contends that he was terminated because
he reported unsafe and illegal activities occurring at the VA
Medical

Center.

“Discipline

for

being

a

whistleblower

is

an

enumerated ‘prohibited personnel practice.’” Mangano, 529 F.3d at
1248 (quoting 5 U.S.C. § 2302(b)).
IV.
Dr.

Griener’s

FTCA

claims

undoubtedly

involve

personnel

actions that can be challenged as prohibited personnel practices.
His appointed position is governed by the CSRA for prohibited
personal practices purposes. Therefore, the CSRA preempts those
6

claims and Dr. Griener’s contention that his position is not
governed by the CSRA for these purposes fails.
IT IS ORDERED: that the government’s motion to dismiss is
hereby GRANTED.

New Orleans, Louisiana, February 9, 2017

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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