                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JAN 29 1998
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    PAUL R. THOMAS,

               Plaintiff-Appellant,

    v.                                                 No. 97-1155
                                                   (D.C. No. 95-D-1180)
    JANET RENO; J. MICHAEL                               (D. Colo.)
    QUINLAN; KATHY HAWK;
    ANDREA KING-WESSELS;
    ANTHONY BELASKI; JOHN
    VANYUR; ROBERT HOLTON; J. R.
    PFISTNER; C. DEROSA; D. JOSLIN;
    ROBERT HOOD; and JOHN
    BAXTER, individually and in their
    official capacities; UNITED STATES
    BUREAU OF PRISONS; UNITED
    STATES DEPARTMENT OF
    JUSTICE,

               Defendants-Appellees.




                           ORDER AND JUDGMENT *



Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff Paul R. Thomas, appearing pro se on appeal and in the district

court, appeals the district court’s order adopting the magistrate judge’s

recommendation to enter summary judgment in defendants’ favor on his claims

that defendants violated his rights relative to his federal employment.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

      Plaintiff was employed for many years by the Bureau of Prisons until 1990,

when he exercised a limited-time option to receive his retirement contribution in

a lump-sum payment. Even though he had officially retired from government

service, he was immediately rehired in the same capacity as a reemployed

annuitant. See 5 U.S.C. § 3323(b)(1) (authorizing reemployment of federal

annuitant). Beginning in 1990, plaintiff was employed as a college teacher,

in addition to his federal employment. He received oral permission to take time

during his workday for his teaching duties, and to make up the time taken from

his job by coming to work early and staying late. After he and his immediate

supervisor were reprimanded for failing to document this permission and

procedure, plaintiff filed the necessary written permission for his teaching


                                         -2-
pursuits, and agreed to document his federal work hours appropriately.

Thereafter, an anonymous tipster reported that plaintiff was taking time from his

federal employment to attend his paid teaching position without submitting leave

slips and without making up the time. Following an investigation, plaintiff was

notified that his employment would terminate on September 3, 1993, due to his

misconduct in the submission of time and attendance reports and failure to obtain

written approval for outside employment. The necessity of reducing staff was

an additional reason for the decision to terminate plaintiff’s employment. See

R. vol. I, doc. 36, ex. C. Plaintiff resigned on August 23, 1993, to avoid being

fired.

         We review the grant of summary judgment de novo, applying the same

standard as the district court. See Applied Genetics Int’l, Inc., v. First Affiliated

Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). “Summary judgment is

appropriate when there is no genuine dispute over a material fact and the moving

party is entitled to judgment as a matter of law.” Russillo v. Scarborough,

935 F.2d 1167, 1170 (10th Cir. 1991). We consider the record in the light most

favorable to the nonmoving party. See Deepwater Invs., Ltd. v. Jackson Hole Ski

Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). We may affirm on any grounds

supported by the record. See United States v. Sandoval, 29 F.3d 537, 542 n.6

(10th Cir. 1994).


                                          -3-
      On appeal, plaintiff maintains that defendants violated his rights under the

Fourth, Fifth and Fourteenth Amendments, the Privacy Act, and 42 U.S.C. § 1985.

He also invokes the doctrine of estoppel, claiming he could not be fired without

the protections afforded to a permanent employee, and asserts that defendants

breached a duty of fundamental fairness and good faith. We interpret plaintiff’s

brief to reject the district court’s characterization of his claims as falling under

the Federal Tort Claims Act, and therefore, we do not address whether that Act

applies.

      We first address plaintiff’s estoppel argument. He asserts that he was

promised that he would retain the same rights as a reemployed annuitant that he

had as a permanent federal employee, including protections available on threat

of discharge. 5 U.S.C. § 3323(b)(1) provides that a reemployed annuitant “serves

at the will of the appointing authority,” permitting plaintiff’s discharge without

notice or cause. Plaintiff argues that the government is estopped from relying on

§ 3323(b)(1) and his status as a reemployed annuitant to discharge him absent the

protections and procedures provided to permanent employees by 5 U.S.C.

§§ 2301, 2302.

      Application of the extraordinary remedy of estoppel against the government

is disfavored, and will not be invoked where it would frustrate the purpose of the

statutes or impede enforcement of the public laws. See DePaolo v. United States


                                           -4-
(In re DePaolo), 45 F.3d 373, 376 (10th Cir. 1995); see also Office of Personnel

Management v. Richmond, 496 U.S. 414, 422 (1990) (noting Court reversed every

finding of estoppel against government it reviewed, citing cases). In addition to

the traditional elements of estoppel, see DePaolo, 45 F.3d at 377, a plaintiff must

also show “affirmative misconduct on the part of the government’” a “high hurdle

for the asserting party to overcome.” FDIC v. Hulsey, 22 F.3d 1472, 1489-90

(10th Cir. 1994). “[T]he erroneous advice of a government agent does not reach

the level of affirmative misconduct.” Id. at 1490. Here, plaintiff has not made

a sufficient showing of affirmative misconduct by a government agent.

Therefore, we reject his estoppel claim on that ground.

      Plaintiff next claims that his rights under the Privacy Act, 5 U.S.C. § 552a,

were violated when defendant Joslin allowed defendants King-Wessels and

Holton to review his personnel file to ascertain whether he had filed the necessary

documents for his teaching activities. His amended complaint requested damages

for violation of § 552a(g)(1)(C). To be entitled to the civil remedy provided by

§ 552a(g)(4), a plaintiff bringing suit under § 552a(g)(1)(C) or (D) must establish

that “the agency acted in a manner which was intentional or willful.” 5 U.S.C.

§ 552a(g)(4). “Intentional or willful” under the Privacy Act is defined as “‘action

so patently egregious and unlawful that anyone undertaking the conduct should

have known it unlawful, or conduct committed without grounds for believing it


                                         -5-
to be lawful or action flagrantly disregarding others’ rights under the Act.’”

Pippinger v. Rubin, 129 F.3d 519, 530 (10th Cir. 1997) (quoting Andrews v.

Veterans Admin., 838 F.2d 418, 425 (10th Cir. 1988)). Plaintiff alleged that

government personnel acted with “gross negligence” in violating the Privacy Act.

Gross negligence is insufficient to meet the Act’s “intentional or willful”

standard. See Andrews, 838 F.2d at 424. Here, plaintiff has neither alleged nor

proffered evidence of the requisite “intentional or willful” conduct by government

personnel. Similarly, his request for criminal sanctions does not allege sufficient

facts to raise the issue of whether there exists a private right of action to enforce

the Privacy Act’s provision for criminal penalties, § 552a(i). See Unt v.

Aerospace Corp., 765 F.2d 1440, 1448 (9th Cir. 1985) (plaintiff cannot state

a claim under § 552a(i)(3) because that section “generates no civil right of

action”); cf. Federal Labor Relations Auth. v. United States Dep’t of Defense,

977 F.2d 545, 549 n.6 (11th Cir. 1992) (dicta noting that § 552a(i)(3) “seems

to provide no private right of action”). Accordingly, summary judgment on this

claim was appropriate.

      Plaintiff’s remaining claims stem from his federal employment. As a

federal annuitant, the Civil Service Reform Act (CSRA), Pub. L. No. 95-454,

92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.), applies to

him. Despite his characterization of his claims as constitutional, common law,


                                          -6-
and federal statutory violations (including 42 U.S.C. § 1985), they complain of

actions prohibited by the CSRA. “Federal and state court actions ‘complain[ing]

of activities prohibited by the CSRA . . . are preempted by the CSRA.’” Steele v.

United States, 19 F.3d 531, 533 (10th Cir. 1994) (quoting Petrini v. Howard,

918 F.2d 1482, 1485 (10th Cir. 1990)). Plaintiff argues, as a reemployed

annuitant, that because he had no rights under the CSRA, his remedy is not

restricted to the CSRA. The Supreme Court has held that absence of a remedy

under the CSRA does not create a federal cause of action under other theories.

See United States v. Fausto, 484 U.S. 439, 443, 455 (1988) (declining to find

a federal remedy for preference eligible excepted service employees who had no

remedy under CSRA), superseded by statute as stated in Bosco v. United States,

931 F.2d 879, 883 n.3 (Fed. Cir. 1991); Bush v. Lucas, 462 U.S. 367, 388, 390

(1983) (holding federal employee’s remedy was limited to CSRA even though

CSRA did not provide complete relief for First Amendment violation); cf.

Schweiker v. Chilicky, 487 U.S. 412, 425, 429 (1988) (declining to expand the

remedies provided by Congress for wrongful termination of disability benefits,

even though inadequate to provide complete relief). We hold that plaintiff’s

remedies, if any, are limited to those provided by the CSRA. We need not

examine what those remedies may be because plaintiff makes no claim on appeal

that he pursued a remedy under the CSRA.


                                        -7-
AFFIRMED. The mandate shall issue forthwith.



                                        Entered for the Court



                                        Mary Beck Briscoe
                                        Circuit Judge




                              -8-
