
USCA1 Opinion

	




          March 19, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2201                                               JOHN F. DESMOND,                                Plaintiff, Appellant,                                          v.                                DEPARTMENT OF DEFENSE,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               John F. Desmond on brief pro se.               _______________               A.  John Pappalardo,  United  States Attorney,   William  L.               ___________________                              ___________          Parker,  Special  Assistant  United  States  Attorney,  and  Scot          ______                                                       ____          Gulick,  Assistant General  Counsel, Defense  Mapping Agency,  on          ______          brief for appellee.                                  __________________                                  __________________                      Per Curiam.   The question before us is whether the                      __________            district court correctly granted summary judgment in favor of            defendant  on various  claims  involving the  termination  of            plaintiff's employment by the Defense Mapping Agency ["DMA"].            As we find  that the  Civil Service Reform  Act provides  the            exclusive procedure  and remedies governing these  claims, we            affirm the district court's disposition of the case.                      Our review  of a district court's  grant of summary            judgment is plenary.   See  Garside v. Osco  Drug, Inc.,  895                                   ___  _______    ________________            F.2d 46, 49 (1st Cir. 1990).  Summary judgment is appropriate            where the  record  reflects  "no  genuine  issue  as  to  any            material  fact  and  ...  the moving  party  is  entitled  to            judgment as a  matter of  law."  Fed.  R. Civ.  P. 56(c).   A            perusal of the entire record, including the numerous exhibits            appended   to  the   plaintiff's   complaint,  the   parties'            affidavits, and motion papers, reveals the following sequence            of events.                       Appellant   was  employed   by  DMA  as   a  Marine            Information   Specialist.    His  appointment  was  effective            September  11,  1989,  subject  to a  one  year  probationary            period.  On December 29,  1989, DMA terminated the employment            because,  according to  DMA,  appellant refused  to accept  a            security clearance.  A  security clearance, DMA maintains, is            a requirement of the position.                                          - 2 -                                         -2-                       Appellant   appealed  his  removal  to  the  Merit            Systems  Protection Board  ["MSPB"]  on the  ground that  the            manner in  which his employment had  been terminated, without            notice  and  an   opportunity  to  answer,   violated  agency            regulations.    See  5   C.F.R.     315.805  (requiring  such                            ___            procedures  where  an  employee  is dismissed  for  a  reason            arising out of pre-employment events).                        Appellant acknowledged that  after he was hired  he            refused to sign the  document necessary to accept a  security            clearance.  He also admitted sending a letter to the Director            of  the DMA  in December,  1989, stating,  "I do  not wish  a            security  clearance now or at any further date."  However, he            argued that this refusal was the product of a pre-appointment            condition, to  wit, a lack  of knowledge  on his part  that a            security clearance was  required, attributable  to the  DMA's            representations  to that effect when he was offered the job.                       Appellant  did  not deny  signing  a "Statement  of            Understanding," the day  his employment began,  acknowledging            the  security clearance requirement.  But he implied that the            manner  in   which  the  DMA  presented   the  "Statement  of            Understanding" to him,  amid many other personnel  documents,            caused  him  to  overlook  its  contents.    Finally,  in  an            affidavit  directed to the MSPB, appellant  stated, "If I had                                        - 3 -                                         -3-            been  informed that  the security  clearance was  mandatory I            would have accepted the clearance."                          The  MSPB  determined that  appellant's employment            had been terminated for  a "post-appointment" reason.  Since,            with few exceptions,  the MSPB has no  jurisdiction over such            probationary  period terminations,  it dismissed  the appeal.            See  5 C.F.R.   315.806(b)-(d).   The MSPB  also declined, in            ___            light of  this lack of jurisdiction,  to consider appellant's            argument that  his First  Amendment rights had  been violated            because his termination followed  on the heels of  his letter            complaining about the  security clearance requirement.   MSPB            No.  DC 315H9010170 (Feb. 20, 1990).  The MSPB's decision was            affirmed on  appeal to  the  circuit court,  and the  Supreme            Court  denied  certiorari,  and  a  rehearing.    Desmond  v.                                                              _______            Department of Defense, 915 F.2d 1584 (Fed. Cir.  1990), cert.            _____________________                                   _____            denied, 111 S.  Ct. 792 (1991), reh'g denied, 111 S. Ct. 1030            ______                          ____________            (1991).                          Appellant then filed  this lawsuit in  the district            court.  In a  complaint, and then an amended  complaint, both            filed  pro  se,  appellant   changed  his  factual  theories.                   ___  __            Appellant's first  complaint alleged that the  DMA originally            hired him  for a non-sensitive position.   In December, 1989,            however,  he discovered  that  he was  the  object of  covert            surveillance because, he alleged, the DMA was considering him            for  a  "collateral  job  assignment"  requiring  a  security                                        - 4 -                                         -4-            clearance.  In contrast  to the affidavit he filed  with MSPB            ("if  I had  been  informed ...  I  would have  accepted  the            clearance"),  appellant's  district court  complaint asserted            that "he did not wish any type of security clearance" because                         ___            of a  prior experience in the Navy when, he said, he had been            exposed  to  nerve gas  and  held  incommunicado against  his            wishes.   He attributed  the DMA's subsequent  termination of            his employment  solely to retaliation for  his December, 1989            letter objecting to the security clearance.1                        In  his amended  complaint appellant  again changed            his  factual  theory.2     This  time,  despite  his  earlier            characterization of the December, 1989 letter as a product of            misunderstanding, his amended  complaint echoed the  letter's            contents.   It alleged that  the DMA had  hired appellant for            the very  purpose of conducting  a "witch hunt"  against him,                                            ____________________            1.      In addition to the MSPB action, appellant's complaint            also alleged that he  had filed an action with the EEOC which            was  dismissed   as  untimely.     Exhibits  submitted   with            appellant's various motion papers  also refer to one or  more            additional actions involving  the same facts,  brought before            the State's unemployment  compensation office  and the  state            courts.   In a "Reply to  Defendant's Answer," appellant also            refers  to  two  additional  appeals to  the  MSPB  involving            denials of employment by  other government agencies connected            to the instant termination.             2.     The record before us does not indicate a direct ruling            on appellant's  motion to  amend his  complaint.   Since  the            district  court  referred to  the  amended  complaint in  its            decision  dismissing  the  case,   we  read  its  opinion  as            effectively  granting  the  motion   to  amend  and  treating            defendant's  summary  judgment  motion  as  directed  to both            complaints.                                         - 5 -                                         -5-            "under the disguise  of a security clearance  investigation."            This  "witch  hunt,"  appellant   said,  was  a  response  to            complaints he had made to Congress about his treatment in the            Navy,  where,  he  reiterated,  he  had  been  exposed  to  a            chemical-biological nerve agent and "held  political prisoner            to  cover-up  that  fact."    Moreover,  appellant's  amended            complaint  now  seemingly  denied   the  genuineness  of  his            signature on the  "Statement of  Understanding," alleging  it            was "obviously" an altered or forged document.                     Without characterizing  apellant's claims precisely,            it  appears he  is now  seeking to  assert tort  and contract            claims,  including  claims  for   violations  of  his   first            amendment,  privacy and  due process  rights.   See generally                                                            _____________            Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics,            ______    __________________________________________________            403 U.S.  388 (1971).  Appellant  demands reinstatement, back            pay  plus interest, a full  evidentiary hearing on the merits            of his termination, and $100,000 in compensatory and punitive            damages.                        Appellee  challenged  the   legal  sufficiency   of            appellant's claims on numerous grounds, including preemption,            res  judicata and  collateral  estoppel, sovereign  immunity,            failure  to file a proper claim under the Federal Tort Claims            Act, and  the absence of an  enforceable employment contract.            We  do not  need  to reach  most  of these  issues,  however,            because no matter how appellant's claims are styled, they are                                        - 6 -                                         -6-            precluded by  the exclusivity of the  remedies and procedures            provided in the Civil Service Reform Act of 1978 ["CSRA"] and            the Whistleblower's Protection Act of 1989.                       "The  CSRA  was meant  to  provide a  comprehensive            framework   for   personnel   policies    governing   federal            employees."   Roth v. United  States, 952 F.2d  611, 614 (1st                          ____    ______________            Cir. 1991); see also  Bush v. Lucas, 462 U.S. 367 (1983).                        ________  ____    _____                      The  legislative  history  of   the  CSRA                      establishes beyond  dispute that Congress                      intended  that  statute  to   provide  an                      exclusive   procedure   for   challenging                      federal  personnel   decisions  ....  The                      history  and intent  of the  CSRA plainly                      prefigures that collateral district court                      jurisdiction would impede  the ideals  of                      fast,  efficient  management and  greater                      uniformity   in   the   judicial   review                      process.            Roth, 952 F.2d at  615 (quoting Berrios v. Department  of the            ____                            _______    __________________            Army,  884 F.2d  28,  31-32  (1st  Cir.  1989)).    See  also            ____                                                _________            Schweiker v. Chilicky, 487 U.S. 412, 427-28 (1988).             _________    ________                      Exclusivity of the remedial scheme provided by  the            CSRA   is  necessary  to  effectuate  the  statutory  design,            "balanc[ing]   the  legitimate   interests  of   the  various            categories of federal  employees with the needs of  sound and            efficient regulation."  United States v. Fausto, 484 U.S. 439                                    _____________    ______            (1988).    To avoid  "inconcinnous judicial  incursions" into            this carefully  constructed  regulatory structure,  CSRA  has            been  held to preclude a wide  variety of Bivens-type actions                                                      ______            and  other federal law claims.   Montplaisir v. Leighton, 875                                             ___________    ________                                        - 7 -                                         -7-            F.2d 1, 3 (1st Cir. 1989) (citing cases); see also Rollins v.                                                      ________ _______            Marsh, 937 F.2d  134 (5th Cir. 1991) (Bivens  claims alleging            _____                                 ______            violations  of First,  Fourth,  Fifth, Sixth  and  Fourteenth            Amendments  and Privacy  Act violations); Jones  v. Tennessee                                                      _____     _________            Valley Authority, 948 F.2d 258 (6th Cir. 1991) (Bivens action            ________________                                ______            alleging  retaliation  for  whistleblowing and  civil  rights            action under 42  U.S.C.   1985(1));  Kotarski v. Cooper,  866                                                 ________    ______            F.2d  311   (9th  Cir.   1989)  (Bivens  claims   brought  by                                             ______            probationary employee alleging violations of privacy and free            speech rights).  In addition, CSRA has been held to preempt a            variety of  state common law claims.   Roth, 952 F.2d  at 611                                                   ____            (Bivens and  state law  tort claims alleging  retaliation for             ______            refusal to cooperate in improper conduct, citing cases); Saul                                                                     ____            v.  United  States, 928  F.2d  829  (9th Cir.  1991)  (Bivens                ______________                                     ______            claims, labor, and state common law claims).                        Although   CSRA   does  not   provide  probationary            employees  with the  same  remedies and  protections accorded            fully tenured  employees, the difference is  due to Congress'            deliberate  choice  in  balancing  the  employee's  need  for            constitutional protection against the public's interest in an            efficient  and disciplined  federal workforce.  See Kotarski,                                                            ___ ________            866 F.2d at  311; Saul, 928 F.2d at 837,  840-41.  Management                              ____            concerns necessarily require great flexibility in determining            to whom to  grant permanent  status.  Kotarski,  866 F.2d  at                                                  ________            312.   Probationary employees are accorded certain procedural                                        - 8 -                                         -8-            protections, however, where termination is for pre-employment            reasons. See  5  C.F.R.     315.805,  315.806(c).   A  direct                     ___            appeal to  the MSPB  is also  permitted to  challenge actions            based  on "partisan political affiliation or marital status."            5 C.F.R.   315.908(b).                        Congress  has  recently  sought to  strengthen  the            administrative  protections  accorded probationary  employees            who  speak out  against mismanagement  and waste  through the            "Whistleblower's   Protection  Act"  of   1989.     With  the            amendments included  in that Act, Congress  provided "what it            considers  adequate  remedial   mechanisms"  for   redressing            constitutional  violations.   Kotarski,  866  F.2d   at  312.                                          ________            Probationary employees are given the right to seek corrective            action   for  prohibited   personnel  practices   through  an            independent Office  of Special Counsel.   The Special Counsel            is  empowered to receive  complaints, investigate, and, where            there are reasonable grounds, seek correction of a variety of            constitutional violations, including, notably,  complaints of            abuse of authority.   5 U.S.C.    1211,  1213, 1214(a)(1)(2),            1216,  2302(b)(8).    At   the  termination  of  the  Special            Counsel's inquiry,  the probationary  employee may  appeal to            the MSPB.  And if the  Special Counsel fails to terminate his            inquiry within  120 days  after receiving the  complaint, the            probationary employee may appeal directly to MSPB.   5 U.S.C.               1214(2)(B)(3), 1214(3).                                          - 9 -                                         -9-                      Appellant points to the jurisdictional dismissal of            the claim  he  filed with  the  MSPB as  demonstrating  that,            despite this scheme,  in practice the CSRA  provides no means            to redress  the  constitutional  violations  alleged  in  his            district court  complaints.   But, we  do not  understand the            agency's action in this way.  First, the MSPB's dismissal was            based on facts and theories very different from those alleged            here.   Second, even  if, properly presented,  the MSPB would            have  had no jurisdiction over an appeal based on the instant            factual theories,  (although appellant had the  right to seek            relief from the Special Counsel's office).                       Appellant also denies  the Special Counsel's actual            authority citing a  telegram he sent  to the Special  Counsel            which allegedly was not answered.   The meaning and relevance            of  the  allegations in  appellant's  telegram  are far  from            clear.   But even  indulging appellant's  interpretation, and            viewing the telegram as a formal complaint, it does not prove            his  point.   The Act  clearly permitted appellant  a further            administrative avenue for pursuing constitutional complaints,            regardless  of  any  inadvertent   inaction  by  the  Special            Counsel's office.                       Although  Congress has  vested  discretion  in  the            Office of  Special Counsel  and the  MSPB, we  have elsewhere            observed  that "even  where the  CSRA provides  no guaranteed            forum,  preemption  of   ...  work-related  tort   claims  is                                        - 10 -                                         -10-            necessary to  fulfill congressional intent."   Roth, 952 F.2d                                                           ____            at  615 (quoting Saul, 928 F.2d at 843).  Appellant's showing                             ____            falls far  short of demonstrating that  the CSRA's regulatory            scheme does not provide a reasonable mechanism for protecting            against the class of constitutional violations alleged here.                      We have  also considered appellant's  other grounds            for appeal and find them without merit.                      Accordingly, the judgment of the  district court is            affirmed.             _________                                        - 11 -                                         -11-
