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w . v i l l a no v a . e du/thir dc ir c uit_2013/739NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 11

- 3165

_____________ VICTOR L. YU, M.D.,

Appellant

v. UNITED STATES DEPARTM ENT OF VETERANS AFFAIRS; MICHAEL E. MORELAND, officially and individually ; RAJIV JAIN, officially and individually; UNITED STATES OF AMERICA; THE SECRETARY OF VETERANS AFFAIRS; MONA MELHEM, officially and individually; ALI SONEL, officially and individua lly; STEVEN GRAHAM, officially and individually On Ap p eal from the United States District Court for the Western District of Pennsylvania District Court No. 2

- 08

- cv - 00933 Magistrate Judge: The Ho norable Maureen P. Kelly Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

May 1 7 , 2013 Before: SMITH, FISHER, and CHAGARES, Circuit Judges

(Filed: June 4, 2013 )

_____________________ OPINION

____________

_________ SMITH, Circuit Judge. Dr. Victor Yu appeals the dismissal of h is claims against the Department of2

Veterans Affairs, the United States, and several employees of the VA in their offi cial and individual capacitie s . The District Court dismissed his Bivens damages claims, Privacy Act claims, and A dministrative P rocedures A ct claims for lack of jurisdiction because the claims should have been broug ht under the Civil Service Reform Act, which establishes the exclusive method of review ing most of the federal government’s personnel decisions . The Court granted summary judgment in favor of the defendants on Yu ’s Bivens claims seeking equitable and declaratory relief for alleged violations of his First and Fifth Amendment rights

. Our standard of review is de novo

. See Ballentine v. United States , 486 U.S. 806, 810 (3d Cir. 2007) (explaining that we review Rule 12(b)(1) motions to dismiss de novo ); Doe v. Luzerne Cnty

. , 660 F.3d 169, 174 (3d Cir. 2011) (ex plaining that we re view
summary judgment motions de novo ). We will affirm the District Court’s order for

reasons similar to those set forth in its well

- reasoned and thorough opinion. 1
This case arises from the termination of Yu ’s employment at the VA Pittsburgh Health Care System and the closing of the VA Special Pathogens and

1 The Distri ct Court ostensibly had federal

- question jurisdiction under 28 U.S.C. § 1331 and under the Privacy Act’s grant of jurisdiction in 5 U.S.C. § 552a(g)(1). Th e Court ultimately decided that it did not have power to hear some of the claims asserted because jurisdiction was forecl osed by the Civil Service Reform Act . Its power to decide that it lacked jurisdiction wa s part of its jurisdiction to determine its o wn jurisdiction

. United States v. United Mine Workers of Am. , 330 U.S. 258, 358

– 59 (1947). The parties consented to final resolution of the case by a Magistrate Judge under 28 U.S.C. § 636(c)(1). Our jurisdiction is provided under 28 U.S.C. § 1291.3

Clinical Microbiology Laboratory in Pittsburgh. In January 2006, the VA audit ed the Lab, which was headed by Yu , and determined that the Lab was operating at a loss. Furthermore, the audit found that t he Lab was operating beyond the scope of its mission to serve veterans by conducting itself like a commercial enterprise. Yu disputes this latter finding, arguing that the VA approved the Lab’s conduct.
That summer , the VA decided to close the Lab on Jul y 10, 2006. Yu was notified of this decision five days before the closure and was told to stop accepting new material for testing . On Yu ’s request, the closure was postponed to July 21, but the VA reiterated that he was not supposed to be accepting more te sting material from outside sources . Yu did not comply , instruct ing his technicians to continue accepting and testing samples from other hospitals. He also asked the VA for a written rationale for the Lab’s closure and made several statements to the local media advocating against its closure. The VA ignored his request and his advocacy, clos ing the Lab on July 21 as planned. That same day , Yu was placed on nonduty status and was prohibited from entering the VA facility. The defendants contend that this was a consequence of his insubordinat ion in refusing to comply with the VA’s instruction to stop accepting samples from other facilities. Yu argues that this was in retaliation for his statements to the press. The VA conducted a more in

- depth investigation in to Yu ’s conduct and other concerns with the Lab’s operation . This investigation concluded4

that Yu failed to comply with orders and had misrepresented the Lab’s work. The report recommended Yu’s termination, and he was dismissed on August 18, 2006. The via bility of his Bivens damages, Privacy Act, and APA claims depend s on whether our review of the defendants’ misconduct alleged in these claims would be sufficiently distinct from review of personnel decisions under the Civil Service Reform Act

. This Act pro vides an exclusive method for federal civil servants to obtain damages for personnel decisions that violate statutory, regulatory, or constitutional right s . See Bush v. Lucas , 462 U.S. 367, 388 (1983); Sarullo v. U.S. Postal Serv

. , 352 F.3d 789, 795 (3d Ci r. 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, 10 10 (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 sch eme provides no judicial relief

— that is, what you get under the CSRA is what yo u 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, unde r the aegis of the Privacy Act or otherwise, district court review of personnel decisions judicially5

unreviewable under the CSRA.‖ (citations and quotation marks omitted))

. Yu argues that the Act is irrelevant because his complaint is not about a
personne l decision that is review able under the Civil Service Reform Act. Specifically, he points to his allegations that the defendants withheld research equipment and funds that he had secured for the Lab as well as to the VA ’s decision to destroy research sampl es. All of these actions took place after his termination, which Yu argues shows that they are not related to the personnel decision to terminate his employment. We agree with the District Court that the VA’s actions are personnel decisions because they ― occurred only as a result of the employment relationship‖
Yu had with the VA. See Lombardi v. Small Bus

. Admin

. , 889 F.2d 959, 961 (10th Cir. 1989). The VA’s decision to terminate Yu falls within the Civil Service Reform Act’s definition of personnel actio ns. See 5 U.S.C. § 2302(a)(2)(A) (defining personnel action to include, among other actions, ―disciplinary or corrective action‖ as well as ―any other significant change in duties, responsibilities, or working conditions‖). The VA’s subsequent decisions 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 onl y as a result of the employment relationship,‖ Lombardi , 889 F.2d6

at 961

— and, more particularly , occurred only as a result of the specific personnel decision made. Consequently, Yu’s allegations against the VA challenge personnel decisions that ought to ha ve been brought under the Civil Service Reform Act’s procedures, which exclude federal court jurisdiction under the cause s of action asserted in this case

. See id . (rejecting a plaintiff’s argument that the damages he sought were separate from his employer

- employee relationship because they occurred after the relationship was terminated). The Civil Service Reform Act thus forecloses Yu’s damages claims.
That leave s only his Bivens claims for equitable and declaratory relief based

on violations of the First and Fifth Amendment s . We agree with the District Court that none of these claims survive the defendants’ motion for summary judgment.
Yu ’s First Amendment retaliation claim fails because there is insufficient evidence that his statements to the media were a substantial or motivating factor in the decision to terminate his employment. See Williams v. Philadelphia Hous

. Auth

. Police Dep ’ t , 380 F.3d 751, 759 (3d Cir. 2004)

. He primar il y relies on the sequence of events as evidence : his statements were publish ed in a July 19 article, a letter of suspension was received on July 21, and

— after a more extensive investigation of his conduct and the Lab’s work

— he was terminated on August 18. Temporal proximity can reveal that Yu ’s termination was retaliation for his statements if the proximity is ―unusually suggestive ‖

— meaning within a few days7

but no longer than a month. Id . at 760 & n.4. In our view, t he nearly one - month delay between publication and termination is too long to be ―unusually suggestive

. ‖ 2 Yu ’s argume nt is further undercut by his insubordinate decision to continue accepting new samples contrary to the VA’s order to stop doing so, which gave the VA reason to fire him . In light of the length of the temporal proximity and the evidence of his insubordinati on, no reasonable jury could find that Yu ’s termination was retaliation for his public statements.
Yu also argues that the VA’s investigation violated his liberty interest under the Fifth Amendment

. ―[T] o make out a due process claim for deprivation of a
l iberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest. ‖ Hill v. Borough of Kutztown , 455 F.3d 225, 236 (3d Cir. 2006). For public employees, this test is satisfied when ―an
emp loyer creates and disseminates a false and defamatory impression about the employee in connection with his termination.‖ Id . (quoting Codd v. Velger , 429 U.S. 624, 628 (1977)) (quotation marks omitted). Yu ’s claim fails because he has not produced any evid ence that the allegedly false statements were disseminated. To be sure, at least three people within the Veterans Research Foundation of Pittsburgh and the Dean of the University of Pittsburgh School of Medicine were

2 Given that one month is too long, Yu ’s argument that the samples were destroyed in retaliation also fails . The samples were destroyed in December 2006, five months after his statements.8

aware of the investigation and its resu lts. But t his evidence does not show dissemination because these two organizations were essentially operating partners with the VA and the Lab, so their notification of the VA’s investigation was not publication to the general public

. See Chabal v. Reagan , 841 F.2d 1216, 1224 (3d Cir. 1988) (finding no liberty

- interest violation because the plaintiff made ―no allegation whatsoever that the government communicated to the general public any information regarding the reasons for his dismissal‖). Finally, Yu ar gues that the defendants violated his Fifth Amendment due process rights because the y destroyed sam ples submitted to the Lab and refus ed to release money he had raised for the Lab. These claims fail because Yu cannot establish that he ha d a property intere st in the samples or the funds. See Bd. of Regents of State Coll. v. Roth , 408 U.S. 564, 570

– 71 (1972) (explaining that a property interest is a prerequisite for a successful due process claim)

. To have a property interest, a person ―must have more than a unilateral expectation to it‖ but ―must, instead, have a legitimate claim of entitlement to it.‖ Baraka v. McGreevey , 481 F.3d 187, 205 (3d Cir. 2007) (quoting Roth , 408 U.S. at 577). Yu has not established a claim of entitlement to either the samples or t he funds. The samples were submitted to the Lab, which operated as a part of the VA. And despite Yu ’s claim that there was a binding agreement to transfer the samples to him, there is no evidence of any such agreement

— the e

- mails he relies on show only tha t the9

transfer was requested and the requirements were explained.
Yu also cannot establish a claim of entitlement to the funds donated by outside groups for the Lab. These funds were donated to Veterans Research Fund, which Congress set up as a nonprofit corporation to provide the VA with flexible funding sources for its research. See 38 U.S.C. § 7362(a)

. Yu argues that he is entitled to money contributed to this fund for his research because at least o ne contributing organization, Binax, Inc., submitted a letter explaining that its contribution was to be used by Yu ―at his discretion.‖ This letter cannot, however, alter the federal law relating to funds donated to the Veterans Research Fund

— specifically , that the funds are to be used by the nonprofit corpo ration only to further the caring for and treatment of veterans, 38 U.S.C. § § 7303, 7364, and the absen ce of any right by researchers to control the funds that they solicit. Absent this right, Yu lacks a property interest in the funds solicited for the Lab

. For the reasons above, we will affirm the District Court’s order.