
USCA1 Opinion

	




          June 28, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2195                                             STEPHEN J. VESSELLA,                                Plaintiff, Appellant,                                          v.                             DEPARTMENT OF THE AIR FORCE,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Stephen J. Vessella on brief pro se.               ___________________               A. John  Pappalardo, United  States Attorney, and  Cheryl L.               ___________________                                _________          Conner, Assistant U.S. Attorney, on brief for appellee          ______                                  __________________                                  __________________                      Per Curiam.   Plaintiff,  a former employee  of the                      __________            Department  of the  Air Force,  appeals the  district court's            grant of  summary judgment dismissing  his complaint  brought            under  the  Privacy  Act.    The  district  court  held  that            plaintiff's   complaint   was   barred  because   it   was  a            "transparent attempt" to collaterally attack the result of an            earlier proceeding brought under the Civil Service Reform Act            ("CSRA").    Alternatively, the  court held  that plaintiff's            allegations failed  to set forth claims  cognizable under the            Privacy Act.                       Since  we  agree with  the  district court's  first            ground            for decision,  we have  no  need to  separately consider  the            sufficiency  of  the  claims  under  the  Privacy  Act.    We            summarize  below  only  the  record facts  necessary  to  our            opinion.                      The dispute  here began with  an investigation  and            report  by the  Air  Force Office  of Special  Investigations            ("AFOSI") regarding certain allegedly improper claims made by            plaintiff for reimbursement of travel expenses.  Based on the            contents  of  the  AFOSI  report, the  Air  Force  issued  to            plaintiff a  "Notice of Proposed Removal."   Plaintiff sought            help from his union.  After a meeting with  plaintiff and his            union representative, the Air Force Deciding Official instead            determined, on  July 19,  1989, to  suspend plaintiff for  14                                         -3-            days and demote  him one grade.   Plaintiff filed  grievances            from the agency's actions,  and then voluntarily resigned his            position on October 27, 1989.                        Approximately  four months  after he  resigned, and            seven months  after issuance of  the decision to  suspend and            demote him, plaintiff filed an appeal from the  decision with            the   Merit  Systems   Protection   Board   ("MSPB").     The            Administrative Judge ("AJ") initially issued an order to show            cause  why the  appeal should  not be  dismissed for  lack of            jurisdiction since  ordinarily an employee's choice  to use a            negotiated  grievance process ousts the MSPB of jurisdiction.            5  U.S.C.      4303,   7121(e),  7512.    However,  plaintiff            prevailed  on the  jurisdictional issue,  producing documents            which  showed  that his  grievances  were  filed before,  not            after,  the  critical  effective  date of  the  demotion  and            suspension decision.    Nonetheless, the  AJ  concluded  that            plaintiff's  appeal should  be dismissed  because it  had not            been filed  within the 20  day regulatory filing  period, and            plaintiff's evidence failed to demonstrate good cause for the            delay.  Vessella  v. Department  of the Air  Force, MSPB  No.                    ________     _____________________________            BNO7529010127, Initial Dec. at  2, 3-5 (June 14, 1990).   The            full  Board  affirmed  the  dismissal on  October  10,  1990.            Vessella  v. Department  of the  Air Force,  1990 MSPB  LEXIS            ________     _____________________________            1401.   Plaintiff  was notified  of his  right to  appeal the            dismissal  within  30 days  to  the Federal  Circuit  under 5                                         -4-            U.S.C.   7703(b)(1).     Instead of taking a direct appeal to            the  Federal Circuit, on March 1, 1991 plaintiff brought this            suit alleging violations of the  Privacy Act.  The violations            plaintiff alleges here are the same as those he challenged as            impermissible  adverse personnel  practices before  the MSPB.            Without attempting to characterize his claims precisely, they            include   the   agency's   allegedly  improper   maintenance,            circulation,  and action upon  inaccurate documents involving            the  AFOSI  investigation;  the  alleged  withholding   of  a            favorable  document  for  a  period of  time;  discussion  of            plaintiff's case with other employees without his permission;            and   requests  that   he  disclose   certain   tax  records.            Plaintiff's complaint sought from the district court remedies            normally   within  the   purview  of   the  MSPB,   including            reinstatement to his former position,  backpay, employment in            another  office, and correction  of inaccuracies, in addition            to compensation for unspecified injury to his reputation.                       The Privacy  Act  permits  an  individual  to  seek            correction of  an agency's  inaccurate or incomplete  records            and  other  relief in  defined circumstances.   It cannot  be            used,  however,  to  frustrate the  exclusive,  comprehensive            scheme provided  by the CSRA for  federal employee challenges            to adverse agency personnel decisions.  See 5 U.S.C.    2301,                                                    ___            2302,  7512, 7513; Kleiman v. Department  of Energy, 956 F.2d                               _______    _____________________            335,  338 (D.C.  Cir.  1992), aff'g  742  F. Supp.  697,  699                                          _____                                         -5-            (D.D.C. 1990);  Hubbard v. U.  S. EPA, Adm'r,  809 F.2d  1, 5                            _______    _________________            (D.C.  Cir. 1986),  aff'd in  part on  other grounds  sub nom                                _________________________________________            Spagnola  v. Mathis, 859 F.2d 223 (D.C. Cir. 1988) (en banc);            ________     ______            Henderson v. Social Security Admin., 908 F.2d 559 (10th  Cir.            _________    ______________________            1990).                         While plaintiff  argues here that he  was unfairly            deprived of a hearing under the CSRA by the dismissal of  his            claims  as  untimely,  he  was afforded  the  opportunity  to            challenge  the  dismissal  through  a direct  appeal  to  the            Federal Circuit.  5  U.S.C.    7703(b)(1).  By  restyling his            action  as  a Privacy  Act  claim  instead, he  impermissibly            attempts  to bypass the CSRA's regulatory scheme.  As we have            observed in related contexts, "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 v. United States, 952 F.2d 611, 615 (1st Cir.                       ____    _____________            1991) (quoting  Berrios v. Department  of the Army,  884 F.2d                            _______    _______________________            28,  31-32 (1st  Cir. 1989))  (holding that  CSRA's exclusive            remedial scheme  precludes district court suits  by employees            alleging Bivens and state law tort claims).                     ______                      Plaintiff  also  challenges   as  error  some   ten            procedural rulings by the district court, including denial of            a request  for appointed  counsel and alleged  misreadings of            the  record.  Appointment of counsel in civil cases is within                                         -6-            the broad discretion  of the district  court.  Desrosiers  v.                                                           __________            Moran, 949  F.2d 15, 24  (1st Cir.  1991).  We  see no  abuse            _____            here.   Having reviewed  the record  de novo,  as we  must on                                                 __ ____            summary judgment, we find  that the district court thoroughly            and  fairly  characterized the  facts.   We  see no  merit in            plaintiff's remaining contentions.                         Affirmed.                      ________                                         -7-
