part time that is thirty five dollars one week for the next and he maintained a wee bit of practice in pascagoula roughly five years later notification that he was going to be terminated for conduct  part time employee that he didn't that he could be released if his services were no longer needed well we can make a long story short here because the ninth circuit explained to me why we're not bound by the ninth circuit and when i say bound what i mean is that we do not they said this was an exclusive remedy through this office a special count or council maybe or whatever it is and we do not normally create a circuit conflict and in fact if we thought we were going to do that we would have to priests are killing our pinioned of the entire court and get the entire court to sign on and we don't do that very often so that all of the remedies that your client seeks in this case are based upon his having been improperly fired and the words all of the damages flow from bad event that's correct or there's not some separate independent thing that happened that is correct your honor so then why is that not exclusively a matter of you go through the procedures limited in beautifulness as they are have going to this council to investigate intentional infliction of emotional distress claim that frankly i would question straight up whether it even exists in a circumstance like this because it's not sufficiently outrageous as upsetting as i'm sure it is for your client and i don't mean to demean that outrageous defined a little differently in my experience but putting that aside it's not a matter of pursuing some other federal statutory remedy it's a matter of essentially a common law claim that you're trying to wedge into i guess  action and in this instance and this lead duck to grind i was told you were being fired because of conduct unbecoming of an employee then when you went to the evidence public said no rather you go because you were hired as a part time employee not covered by civil service so what happens here is he went to the mayor system protection board and they said no you're not covered you don't meet the definition of an employee and then he filed a claim of the federal revive it in effect respectfully i actually think these are for real it's claims putting aside the question of whether the statute if he could be fired he was fired he was upset about it i understand that i don't doubt that but beyond that i think this is the torture center for me he was paid for the five years he worked and gave up the rest of his practice that was his choice he didn't have any guarantee that he would be kept and or he be suing i guarantee so respectfully i think this is a completely frivolous that said you still have the hurdle of making this square peg fit into a round hole and i don't think your brief does that so if you have something to add to that that might be health what i would add to that your honor is that civil service reform contains a provision that's five us code twelve twenty one the same chapter as the mungana case relied on and that that provision says nothing in this chapter or chapter twenty three shall be construed to limit any right or remedy available under a provision of a statute which is outside of both this chapter and chapter twenty three certainly the federal tort claims act is outside of chapter five and the the quote below and mangano talked about this the trying to reconcile the conflicting provisions of chapter five and came up with that being a an exception to the two to a car value so i would see respectfully submit to your honor's that employee because he's not in the competitive service well let me ask you a question here i'm looking at the appeal decision of the amas p v and that said i mean there's this that is based on the contention that the administrators or somebody didn't use due process before terminating him and the board rejects that but it is it also says greiner does not right of action that if you wanted to pursue a whistleblower claim that he would have to go to the office of special counsel and the way that works is that the office special counsel decides to prosecute it well and good if he does not so you say you are well aware of that at the time that you were going before the amas people you were well aware of this alternative of the o s c is still available it is your honor why haven't you pursued that correctly fired if he wasn't fired let's put this way if he wasn't fired for being a whistleblower if he just fired because they don't need his services anymore or they didn't like his tie he don't have any of these other claims you can't just go around suing employers for intentional push emotional stress because they fire you within their right oh and let's put another way do you have a case that says you can well i think the point is this your honor if the employer is firing you with the intent and motivation solely to cause you emotional distress to interfere with your business relationship that being the practice that he had left and how difficult the reviving as a result of the situation then we're talking about a separate claim  let me ask you about the fact that apparently your client and dr bruce tani who is a congressman and your client boss all went to medical school together  many did and she was the person who terminated him with with the collaboration of the acting head of h r at the time a gentleman named gary player but i mean the only theory of this of harming him is because he's a whistleblower otherwise it's no different then ya got to let you go i'm sorry i don't like your tie i'm going to just let you go and the only way you can show this intent to harm you that you're claiming is because of the whistleblower argument i just don't see how you can divorce your claims from the whistleblower argument i would agree that's a that's one argument that would be made but there's a second one which is this he was ultimately tol we're letting you go cause your services are no longer lead needed in point of fact there was sorely need in the minute he left they had no way to treat those patients he's been treating so so it boils down to what you're saying well was that an intent to harm him why would they have that intent to harm him but for the to discovery and trial would be able to ascertain why on information belief there was an intent simply to conflict most of the stress on this doctor and  interfere with his with his do you have any case where somebody has been able to bring an i u d cloying based on simply being fired molestation no you no abuse nothing just you're fired i believe i believe the reuben case was the first case in the fifth circuit and which of the fifth circuit recognize  stress i think this is a viable cause of action if the facts can be shown that support the claim which is was their intent was their motivation simply to to inflict this emotional distress what about the straight up argument of whether there even is an i claim it just put aside the civil service throw that out the window there is such a claim separate and apart from the whistle blowing notion i mean i just i'm really understand why we're in such deep pay here over all of this detail when it's pretty clear to me he doesn't have a cause of action period while outside of the whistle blowing claim well you were under the government brought the motion to dismiss based on subject matter jurisdiction jurisdiction so we did not address whether or not if you got if dr grant got past the subject matter jurisdiction question that he could in fact establish subject matter jurisdiction he would have a viable claim so we were focused on subject matter jurisdiction and that emphasizing that dr greiner is an employee you're a federal employee excuse me for a limited purpose is section twenty three paper to person actually i mean i personally i understand your argument i have your argument i don't have questions about it except the one i just asked which you've answered so that's ok so to move on that will the v a take us along with the office it's a softness of special counsel it's are related to personal disciplined across the federal employee spectrum or is it somebody devoted to the v the lower court relying on montana which on a side note dr mangano at the time the for the ninth circuit wrote its opinion had an ira appeal pending before the m s p b was just looking to take a direct right of appeal to the m s p vic be very much like dr greiner is here in this particular case and as as you know the district court relied on d the ninth circuit in montana by finding not only that he was an employee for purposes of whistleblowing a prohibited personnel practices and therefore he needed to take his personnel action which d itself an exception to twelve twenty two well other than the case that we cited here in our brief that the that's true in general terms and i forgot did did grisham or that there's a there's another there are other there are plenty of fifth circuit cases about exclusive remedies for federal employees but about you know this provision that it's non exclusive twelve twenty two says it's non exclusive for certain purposes yes your honor but that's just what the fifth circuit addressed that same argument that one twenty two somehow didn't make it exclusive to a federal employee and the fifth circuit in grisha cited cited the ninth circuit and held that the whistleblower protection act in creased the protection for whistleblowers but did so within the context of the civil service reform who were federal employees that they attempted to file a federal tort claims act seeking damages for emotional distress because of a terminations and the wife had lost her security clearance and the fifth circuit held that those federal tort claims were in fact preempted by the civil service reform act the difference here is that as opposed to be in hired under a statute that label's dr greiner are classified as i should say dr greiner as a civil servant he was hired as a part time employee without regard to civil service i understand that and it's because of twenty one  five f will just things him in yeah i mean just for the sake of argument can you can you cite me any cases or give me any examples of where other remedies might be available under five u s c twelve twenty two other remedies outside the civil service reform and correct while the civil service reform act expressly preserves federal employees rights and remedies under in discrimination statutes that's why federal so why not no no no no that's not what i'm saying is that the civil service reform act i mean to itself expressly preserve yes and your argument as if it's not expressly preserved in the civil service then it's you don't have it  o i'm sorry i misunderstood i agree so since since it's since twelve twenty two says except as provided in twelve twenty one i nothing in this chapter shall be construed to limit any right or remedy available under provision of statute out both this chapter in chapter twenty three been in principle the federal tort claims act is not accepted correct that our position your will so since he's a whistleblower what is why it is a federal tort claims act not accepted for him you only get there if you say the service tort claim act is the same is just charge right well we i would submit that dr grant it could never bring a federal tort claims act out of any personal action arising out of his federal employment not  slipped and fell in the v a hospital then he would be relegated to the feet that the federal employee me employee compensation act well then that's an exception under twelve twenty two just you service so you have to go back to the complaint and say the essence of the complaint cannot be deformed divorced from his terminations correct courts have found when a supervisor has put a loaded gun to a federal employees head that was not a personnel action and therefore that employee who had the gun to his head was able to avail himself of a tort claim rate by a supervisor a federal  be affirmed however with one housekeeping note the lower court's judgment on page ninety two of the record on appeal states that dr grinder's claims were dismissed with prejudice as this was a subject matter jurisdictional argument the dismissal should have been without prejudice and in keeping with this court's recent case of campus versus united states eight eight eight fed third seven two for modify it without remained according to campus versus united states which was decided in april that it needs to be remanded with instructions to revised figure that out or do you know thank r honors cases are constantly filed claims of the americans with disabilities act at the v a and those employees also file claims for stress that they are so that as a result of failure to accommodate the disability that their stress to action so forth and the the the father worker's comp claim for this without end bring claims of race color or national origin discrimination sex and they bring them through the u s equal employment opportunity commission is a completely different process the government never comes to court and says the civil service reform act is your exclusive remedy you've got to go through m s p b so in point of fact it is not as a matter of practice the sole remedy available so what i'm asking here and dr runners ask is that the court not not notified the provisions of twelve twenty one which says you can you court to address twelve twenty one and say that it's not negated it's not nullified in practice there are of the cause of action outside of the civil service reform act that are regularly pursued and in this particular that go through you know see which is not part of the civil service reform