United States v. 2005-05-09 | 04-15093 | MAHTESIAN VLEE | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RONALD MAHTESIAN,
Plaintiff-Appellant, No. 04-15093
v.  D.C. No.
CV-03-02691-PJH BENNY LEE,
Defendant-Appellee. 
 RONALD MAHTESIAN, No. 04-15094
Plaintiff-Appellant, D.C. No.
v.  CV-03-02692-PJH
HELEN WONG, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted April 13, 20051
San Francisco, California
Filed May 10, 2005
Before: John T. Noonan, David R. Thompson, and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Noonan
1This panel unanimously finds these cases suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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COUNSEL
Barbara M. Rizzo, Redwood City, California, for the plaintiff-
appellant.
Chinhayi J. Coleman, San Francisco, California, for the
defendants-appellees.
OPINION
NOONAN, Circuit Judge:
Ronald Mahtesian appeals the district court’s order of
November 14, 2003 dismissing for lack of subject matter
jurisdiction his complaint against Benny Lee and Helen
Wong. The question presented is whether the alleged wrong-
ful actions of Lee and Wong fall within the ambit of the Civil
Service Reform Act (CSRA) (codified in various sections of
5 U.S.C.). Holding that the alleged tortious conduct is within
the CSRA’s confines, we affirm.
FACTS
In January 2001, Mahtesian applied for a promotion to
become a supervisory auditor at the Department of Treasury,
in the Office of the Inspector General, San Francisco Regional
Office (Treasury). Mahtesian had spent the last six years as an
auditor for the Department of Justice, in the Office of the
Inspector General, in San Bruno, California (Justice). In Octo-
ber 2001, he was offered the position at Treasury subject to
successful completion of a background investigation.
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Background investigators interviewed among others Helen
Wong, a former co-worker of Mahtesian at Justice who had
transferred to Treasury in March 2001. Wong’s statements
were highly critical. Mahtesian alleges they were false.
Benny Lee, an Audit Manager at Treasury, obtained a copy
of the background investigation and interviewed several of
Mahtesian’s co-workers including Wong. Mahtesian alleges
that Lee in the course of the interview revealed the contents
of his background investigation to individuals both inside of
Treasury and outside of the agency.
Treasury subsequently withdrew the job offer.
PROCEEDINGS
Mahtesian filed tort claims against Wong and Lee in the
Superior Court of California. The complaint against Wong
alleges causes of action stemming from the alleged defama-
tion and slander. The complaint against Lee alleges causes of
action based upon his interference with Mahtesian’s employ-
ment interest and invasion of Mahtesian’s privacy.
The United States removed the cases to the federal system
and filed for certification pursuant to 28 U.S.C. § 2679(d) that
Wong and Lee were acting within the scope of their employ-
ment. The district court rejected Mahtesian’s challenge to this
certification. The district court then dismissed the complaint
for lack of subject matter jurisdiction under the CSRA and
under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 2680(h).
ANALYSIS
[1] The CSRA limits federal employees challenging their
supervisors’ “prohibited personnel practices” to an adminis-
trative remedial system. “If the conduct that [Mahtesian] chal-
lenge[s] in this action falls within the scope of the CSRA’s
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‘prohibited personnel practices,’ then the CSRA’s administra-
tive procedures are his only remedy, and the federal courts
cannot resolve Appellants’ claims under . . . the FTCA.”
Orsay v. United States Dept. of Justice, 289 F.3d 1125, 1128
(9th Cir. 2002); see also Saul v. United States, 928 F.2d 829,
835-43 (9th Cir. 1991) (holding the CSRA precludes both
constitutional and common-law tort claims); Collins v.
Bender, 195 F.3d 1076, 1079 (9th Cir. 1999) (“[E]ven if no
remedy were available to [Mahtesian] under the CSRA, he
still could not bring [his] action if the acts complained of fell
within the CSRA’s confines.”).
The CSRA defines “prohibited personnel practices” as any
“personnel action” taken for an improper motive by someone
who has authority to take personnel actions. 5 U.S.C.
§ 2302(b) (delineating improper motives). “Personnel action”
as defined by the statute includes any appointment,
promotion, or performance evaluation. See 5 U.S.C.
§ 2302(a)(2)(A)(i)-(xi); Brock v. United States, 64 F.3d 1421,
1424-25 (9th Cir. 1995); Collins, 195 F.3d at 1079-80. We
apply these rules to the defendants.
[2] Benny Lee. The CSRA prohibits supervisors from
improper consideration of “recommendations or statements”
except as provided under 5 U.S.C. § 2302(b)(2). This section
limits solicitation and consideration of employment recom-
mendations to statements based on personal knowledge or
records concerning the candidate’s employment qualifica-
tions, past performance, and general character and suitability.
See id. Lee’s alleged wrongful conduct concerned collection
and dissemination of recommendations and evaluations in
consideration of whether or not Mahtesian should be hired as
a supervisory auditor. Collection of such information and
exchanges about it are steps in getting data on a new
employee. As the appointment or promotion of an individual
is defined as a personnel action by the statute, if Lee acted
inappropriately his conduct would have violated the CSRA’s
strictures and would be subject to the statute’s remedial
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scheme. To the extent that Lee’s alleged wrongful conduct
consisted of interference with employment interest and inva-
sion of privacy, this alleged conduct also constituted prohib-
ited personnel actions, as it would have been a “willfull[ ]
obstruct[ion of] [Mahtesian] with respect to [his] right to
compete for employment,” 5 U.S.C. § 2302(b)(4), and a viola-
tion of the merit system principles by treating Mahtesian
without “proper regard for [his] privacy.” Saul, 928 F.2d at
833 (quoting 5 U.S.C. § 2301(b)(2)); 5 U.S.C. § 2302(b)(12).
[3] Helen Wong. Wong’s alleged conduct occurred when
she was approached by Treasury officials with authority to
solicit recommendations from her. Wong was questioned
about Mahtesian’s character and job performance. She
answered these questions. Section 2302(b) proscribes prohib-
ited conduct by “[a]ny employee who has authority to . . . rec-
ommend . . . any personnel action.” 5 U.S.C. § 2302(b). As
she was approached and queried by appropriate authorities,
Wong had authority to recommend or not recommend Mahte-
sian for employment. The statute specifically prohibits a per-
son with such authority from “deceiv[ing] or willfully
obstruct[ing]” a person’s right “to compete for employment.”
5 U.S.C. § 2302(b)(4). Wong’s conduct falls under the ambit
of the CSRA. It would be illogical for the CSRA to extend to
employees seeking recommendations but not to those actually
providing them. The statute covers both recommenders and
those who collect their evaluations.
[4] As Mahtesian’s claims fall within the CSRA, the district
court properly found it did not have subject matter jurisdic-
tion. Saul, 928 F.2d at 835-43. We need not consider other
matters on appeal. Id. at 840 n.21.
AFFIRMED.
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